Hunt v Who Group Trades and Labour Pty Ltd
[2020] VCC 214
•3 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-01120
| STEPHEN HUNT | Plaintiff |
| v | |
| WHO GROUP TRADES & LABOUR PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2020 | |
DATE OF JUDGMENT: | 3 March 2020 | |
CASE MAY BE CITED AS: | Hunt v Who Group Trades & Labour Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and CompensationAct2013
Cases Cited: Philippiadis v Transport Accident Commission [2016] VSCA 1; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Johns v Oaktech Pty Ltd [2020] VSCA 10; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; Woolworths Ltd v Warfe [2013] VSCA 22
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Slater and Gordon Lawyers |
| For the Defendant | Ms C Spitaleri | Thomson Geer |
HIS HONOUR:
Introduction
1 Stephen Hunt seeks leave to commence a proceeding for damages under s325 of the Workplace Injury Rehabilitation and CompensationAct 2013 (the Act). He says he has suffered a “serious injury” being a serious permanent impairment or loss of function of his right knee. He relies on the pain and suffering consequences only.
2 There are two issues between these parties. First, whether the accident on 16 May 2016 caused any injury to Mr Hunt’s right knee. Second, if it did, whether the pain and suffering consequences of the injury amount to a “serious injury”.
Circumstances
3 Mr Hunt is now 55.
4 Mr Hunt has enjoyed a consistent work history. Despite completing Year 12, he has worked predominantly as a labourer apart from five years in customer service. Between 2011 and 2012, his labouring work included supervision and as an OH&S officer.
5 In February 2016, Mr Hunt started with the defendant. The defendant is an employment agency and Mr Hunt worked as a dogman and labourer at various building sites in Melbourne.
2016
6 On 16 May, Mr Hunt was sent to an address in Croydon where apartments were being built. At the site, he was directed to work as a dogman associated with the lifting of timber to two levels of the building. After 20 minutes at work, in his words, the following happened[1]:
“I slung the load on the ground and then climbed the scaffold stairs to the top level to unhook the timber after it was raised. When I was on the top level I was on the radio directing the crane driver and as I was doing this I stepped in turning to my side and in doing this I fell off what in fact was a mezzanine floor onto the concrete level below. In the fall I fell approximately 3½ metres and landed on my feet before falling back onto my head. There was no barrier or handrail on the side of the mezzanine floor where I fell off.”
[1]Affidavit sworn 24 October 2018 at [7].
7 He was wearing a hard hat. Falling backward onto his head cracked his hard hat. He was surprised his hard hat stayed on. As Mr Hunt sat on the floor, his left leg swelled and his whole body was sore. He held both of his legs. They were bleeding but his left heel was the most painful part of his body.
8 Mr Hunt decided to leave the worksite because, in his eyes, those in charge paid little attention to his injuries. One of his colleagues drove him to his home. From there, he drove himself to the Chelsea Heights Medical Centre. There, his general practitioner noted: “complained of fall today from a height of three metres. Landed on heel, complaining of pain and swelling of the left foot. No headache or giddiness”. The clinic arranged an ambulance which took him to the Frankston Hospital. The admission sheet to the emergency section records among other things: “landed on feet, then fell to hands and knees”.
9 At the hospital, his cervical spine, upper limb and left ankle were examined and x-rays taken of his cervical spine, left ankle and foot, revealing no fractures. He was discharged that day with crutches and Panadeine Forte. Four days later, Mr Hunt returned to his general practitioner.
10 On 21 May, Mr Hunt completed a “worker’s injury claim form”. To the question: “What is your injury/condition, and which parts of your body are affected”, he wrote “left ankle/heel”.
11 In late May or early June, Mr Hunt stopped using his crutches and by mid-June had started physiotherapy. On 1 July, an ultrasound of the left heel revealed nothing.
12 During early July, Mr Hunt tried to return to work on restricted duties but could only manage four hours before the pain in his left heel forced him to stop. This led to further investigations.
13 On 11 July, CT scans of his left heel and ankle showed undisplaced talar and calcaneal fractures. Following these scans, Mr Hunt used crutches again and to do so for about six months. While using the them, he relied mainly on his right leg. This caused him trouble in August and September. Although not an obedient patient, he was still using crutches by October 2016.
14 During October[2], Mr Hunt returned to work again. Over about three weeks, he worked as dogman for about ten days and during which time his knee pain became more noticeable with the knee swelling and locking. It was the later which caused greatest concern. The leg would lock “dead straight” and he would massage it to get it to bend.
[2]Mr Hunt says November but he told his general practitioner on 17 October he was now working.
15 On 7 November, he complained to his general practitioner his right knee was now hurting. He had “partially” returned to work. The practitioner made the cryptic note – “could be compensating”.
16 On 17 November, Mr Hunt re-attended his general practitioner and told him of pain in the right knee. The entry reads in part:
“right knee pain past 1 month…
No specific injury recalled…fully weightbearing…”.
17 Although declining the offer of MRI scans to exclude meniscus tear, four days later they were performed and revealed:
(a) a small knee joint effusion;
(b) medial compartment degenerative change with irregular degenerative tearing of the medial meniscus; and
(c) a grade 1 sprain of the anterior cruciate ligament;
18 The radiologist suspected a radial tear of the lateral meniscus.
19 Given these findings, Mr Hunt was referred to Brad Crick, an orthopaedic surgeon.
20 On 13 December, Mr Hunt completed another “worker’s injury claim form”. As to the question concerning injury/condition, he wrote “Right knee. MLC sprain/torn miscus (sic.) tendon”. To the question “What happened and how were you injured”, he wrote “continuation of left leg injury”. To the question “what was the date and time the injury/condition occurred”, he gave no answer. To the question “When did you first notice the injury/condition”, he inserted the figures in the space for a date “11 16”.
2017
21 On 22 March, Mr Crick operated on right knee. He found and debrided a complex tear of the posterior horn of the medial meniscus and a radial split in the body of the lateral meniscus. The latter was mildly degenerative. The ACL was lax but intact.
22 Following the surgery, Mr Hunt found less locking and a little less pain. He returned to Chelsea Long Beach Physiotherapy until November 2017. His treatment was mainly to the right knee but there was some treatment for the left heel and foot.
23 Until June, Mr Hunt received weekly payments of compensation. That month, he resumed working, receiving odd days of work from the defendant and then none. With bitterness, he explained[3]:
Q: “And then did the work for the Who Group cease?
A:As soon as my certificate of capacity ended, they stopped answering my calls and I tried a number of times and they just wouldn’t call back. It was pretty obvious they just dumped me.”
[3]Transcript (“T”) at p 10.
24 Since December, he obtained work through another employment agency called “Workforce”, working as a labourer, dogman and spotter at various work sites.
2018
25 For about the first six months of 2018, Mr Hunt obtained work at a construction site in Hughesdale where he did not exert his knee too much. This was due to the work he did and the help given him by fellow workers.
26 After that job, Mr Hunt has not worked regularly. In part, he has rejected work which he expected would be too physical. Nevertheless, he has applied for full-time work but “once my Workcover injury record has been disclosed prospective employers have lost interest in employing me”[4].
[4]Affidavit sworn 29 October 2018 at [15].
Current position
27 Mr Hunt suffers a constant ache (annoyance and hindrance) in his knee. It rises to pain if there is too much activity or if he stands for too long. If he walks more than 200 metres, it becomes painful. Usually, by the end of the day, the knee is painful.
28 Due to a combination of pain and a feeling of instability, he finds bending, twisting, kneeling and squatting more difficult. Since the accident, on a number of occasions, his knee has given way, causing him to stumble. On a few occasions, it has locked. Giving way can be dangerous. On 20 December 2019, his knee gave way while he carrying a piece of concrete. He fell and the concrete cut his leg “open”[5].
[5]Affidavit sworn 22 January 2020 at[6].
29 He can still ascend and descend ladders and scaffolds. He is slower now, without confidence and avoids doing so if he can. He cannot lift heavy weights. He wakes a few times each week knee pain.
30 Before the accident, he ran on the beach two to four times each week over distances up to four kilometres. Now, he alternately jogs and walks between 25 to 50 metres each for about a kilometre and then about once a week.
31 Mr Hunt lives alone. He paces himself with household chores. He can mow his lawns. Previously, he had difficulty edging by hand. He bought himself a “whipper snipper”. Unfortunately, it broke down and he cannot afford to replace. No doubt, in time, he will do so.
32 He remains socially withdrawn. He obtained some counselling in 2017. Before the accident, he went to the Mordy HQ Club about twice weekly to listen to live music and dancing. Since the accident, he visits about once a week and dances occasionally ands then only for ten minutes before the pain stops him.
33 After years of treatment, he is content to “self-manage”. He does not like prescribed pain relieving medicines and takes the over-the-counter versions once or twice a week. He usually wears an elastic knee support if he expects to be on his feet for very long. At home, he carries out the exercises recommended by his physiotherapist and often needs to massage his knee. He still takes Valium when “quite” anxious.
34 Since 2016, Mr Hunt has worked for other employment agencies. During 2018 and 2019, he received a limited amount of work: about 70 days in 2018 as a labourer and electrical spotter; and 54 days in 2019. These 54 days occurred after July and comprised 8 days of electrical spotting and light scaffolding work and 46 days with a friend assisting in carpentry work. He receives partial unemployment benefits.
35 Mr Hunt has tried to find more work. His experience is not unusual:[6]
“Over the last year and a half I would have applied for in excess of approximately 200 jobs working in labouring, dogman or light scaffold work type work. Unfortunately though when I have applied for jobs and disclosed a previous WorkCover claim, and an injury to my right knee, my work chances have fallen away. I have only had a few job interviews.”
[6]Affidavit sworn 22 January 2020 at [15].
36 During re-examination, Mr Hunt gave examples of the effect on his work of his knee injury with its inability to “hold up to physical labour”. As a concrete labourer: “so I cannot apply for that because I’d go there and I’d be stuffed in the first couple of hours and just gunna stuff everyone around”. With electrical spotting: “I might do…where I can sort of rest, not too much climbing and that”. Scaffolding was generally avoided as well as anything “real physical”.
Medical evidence
37 Although there was no report from Mr Hunt’s general practitioner, the medical records of the clinic were admitted into evidence. As presented, these records are not always easy to read chronologically. There are several entries of note:
(a) 16 May 2016: “9.59 am with Dr Balwinder Singh at CHM for 11m 57s. No RFE c/o fall today from a height of 3 meters Referral : CT scan (foot) [Pain left heel fell from height on 16/5.2016 x-ray in hospital: no fracture U/S no tears] – Marina Diagnostic Group.”
(b) 14 September 2016: “10.39 am with Dr Balwinder Singh at CHM, for 20m 11s No RFE came with Matthew IPAR official agrees as per RTW plan no collateral laxity anterior/posterior drawer negative McMurray test positive analgesia Referral;: MRI right knee [right knee pain 1 month locking episode pain on bending McMurray test positive Meniscal tear] – Healthscope Pathology.”
(c) 17 October 2016: Mr Hunt complained of difficulty in falling asleep. The doctor noted he had returned to work.
(d) 7 November 2016: Mr Hunt saw Dr Samarakoon. The doctor examined the incision made when a cyst was removed eight days earlier. The main purpose of the visit concerned his right knee. The entry reads:
“Under WorkCover for left foot injury has “partially” returned to work usually sees Dr BS now right knee hurting OE R knee normal exam could be compensating he has appt to see physio this week and will speak to him and will f/u with Dr BS…”.
(e) 17 November 2016: “..knee pain past 1 month, medial aspect, occasional knee locking in extension, works construction, no specific injury recalled, right knee: not red, not swollen, not hot, not tender, no effusion, no restriction, full range of movement, no crepitus, neurovascular intact, fully weightbearing, investigation referral discussed, he declines MRI at this stage to exclude meniscus tear, he says he would first like to try antiinflams, no allergies, no regular meds, no past glt ulcers…”.
38 Pausing there, McMurray’s test looks for evidence of a torn meniscus. Saying the test was positive, I assume the doctor found evidence of a tear.
Rahgozar
39 Majid Rahgozar is an occupational physician. On 13 July 2016, he examined Mr Hunt at the request of an authorised agent.[7]
[7]Report dated 18 July 2016.
40 Dr Rahgozar recorded this description of the accident:[8]
“…he was coming down on steps, which did not have a safety rail, and he had a fall, which resulted in landing on his hyperdorsiflexed left foot landing on his heel…”.
[8]At page 33 of the report.
41 On examination, Dr Rahgozar found Mr Hunt could weight-bear on his left and right legs unsupported, stand on his tiptoes, fully squat and kneel with reasonable comfort.
42 Owing to the absence of radiological investigations, Dr Rahgozar diagnosed a musculoligamentous sprain of the left ankle and some degree of aggravation of degenerative changes of the left ankle joint.[9] His condition had settled. He was minimally symptomatic. He could return to work to normal hours over the next four to six weeks.
[9]Although Dr Rahgozar speaks of the right ankle, he means the left ankle.
Crick
43 Brad Crick examined Mr Hunt at the request of his general practitioner on 21 February 2017.[10]
[10]Report dated 4 July 2017 and report dated 21 February 2017.
44 Mr Crick recorded:[11]
“I first reviewed Stephen on the 21st of February 2017 when he was referred by his General Practitioner, Balwinder Singh for pain over the medial side of the right knee that had lasted for a few months. At the time that I reviewed him Stephen recalled that the injury originally occurred in the work place shortly after his return from a fractured calcaneum. His fractured calcaneum had taken six months or more to heal and the first day of him returning to work has reported that he had some swelling within his knee and mild discomfort. He had been experiencing some locking symptoms also that occurred while driving home from work. Initially he consulted with his local doctor who prescribed anti-inflammatory medication but his knee failed to improve.”
[11]At p 1 of the report.
45 On 22 March 2017, Mr Crick performed an arthroscopy. It revealed a complex tear of the posterior horn of the medial meniscus, which was debrided to a stable edge. There was a radial split within the body of the lateral meniscus, also debrided. The anterior cruciate ligament was slightly lax but intact.
46 At a review on 10 April, there was a good range of knee movement with mild discomfort while kneeling or squatting.
47 Mr Crick has not seen him since.
Shill
48 Harrison Shill is a physiotherapist, who treated Mr Hunt. On 20 May 2017, he wrote briefly to Dr Singh:
“Mr Hunt has been progressing well with physio and I have assessed his new lifting capacity to be unrestricted. I believe Mr Hunt’s strength and range in his right knee is similar to his left however Mr Hunt still reports slight pain with certain activities. In regards to return to work, I believe Mr Hunt should be able to perform all duties of a traffic regulator and I would also be happy for Mr Hunt to return to his pre-injury work duties provided he has regular days off to allow for rest and injury prevention. I will also be investigating getting a minimalist knee brace for Mr Hunt for him to only wear in the short term whilst he is still building confidence on uneven surfaces.”
Buzzard
49 Anthony Buzzard is a surgeon. He examined Mr Hunt on 2 May 2017.[12] Mr Hunt told him he landed on left foot but was “sore all over but mainly the left foot”.
[12]Report dated 3 May 2017.
50 His examination of the right knee revealed some pain at the extremes of movement without ligamentous laxity or other significant abnormality.
51 Owing to the absence of a further accident or injury, Mr Buzzard attributed the right knee pathology to the fall:[13]
“A particular concern is whether or not the right knee problem occurred as a result of the accident when he fell at work or whether or not the right knee problem occurred as a result of some other incident. I think it more likely than not that it occurred as a result of the fall of 4 metres. I think that it was not symptomatic initially because of his left foot problem. It became symptomatic when he returned to work. I don’t think there was any particular accident at that time.”
[13]At p 8 of the report.
52 Mr Buzzard believed Mr Hunt could not return to his pre-injury duties or hours as a dogman but could return to modified duties which excluded working at heights or a lot of involving bending or squatting of his right knee.
Elder
53 David Elder is a physician, specialising in occupational and environmental medicine. He examined Mr Hunt on 13 September 2017 for the purposes of an impairment assessment of the left foot and ankle. Despite his narrow focus, Dr Elder paid some attention to the right knee.
54 Dr Elder took a history including “..he stepped back as a crane load was coming in onto the roof deck. There was no safety rails so he accidentally stepped off the fourth floor landing on both feet on the third floor. This was onto concrete. He had immediate pain in his left foot/ankle.”
55 After CT scans revealed fractures, Dr Elder noted Mr Hunt saying: “At that time, it was too late to be put in plaster so he was told just to non-weight bear on crutches and he stated that he essentially did that for about 6 months. In the intervening period, he had right knee pain develop and he had an arthroscopy on 2 March 2017 the subject of a different claim”.
56 Mr Hunt’s main complaint was stiffness in the ankle, which translated on examination into difficulty in walking on heels and toes and squatting. There was restriction in dorsiflexion and inversion. Dr Elder concluded an ongoing left ankle dysfunction leaving a stabilised impairment of 5 per cent based on the range of movement.
Khan
57 Michael Khan is an orthopaedic surgeon, who examined Mr Hunt on 27 February 2018 at his solicitor’s request.
58 Mr Khan took a history of the fall: “As it was a construction site there were no safety rails and as he stepped backwards he stepped off from the 4th floor, landing down on the ground on the 3rd floor on a concrete surface…he landed on his left leg on the concrete surface from a height of approximately 4 metres…”.
59 Mr Hunt complained of ache and tightness in the knee. His knee had given way at times, causing stumbling, not falling. He spoke of occasionally disturbed sleep due to knee ache. He could sit and stand but long periods of standing caused ache in the knee and left heel. He was taking Neurofen and wore shock absorbing insoles in all of his shoes.
60 On examination, Mr Khan found knee movement between 0 and 120 degrees, an inability to fully squat or kneel, no effusion and a tendency to give way occasionally. Lachman’s test was negative while a mild version of McMurray’s test was positive. He noted a bow leg deformity with mild genu varum.
61 Mr Khan measured movements of the left ankle and thoracolumbar spine. Mr Hunt could walk reasonably well but noted a tendency to favour the left leg. There was a good range of movement in the cervical spine and shoulders.
62 Mr Khan concluded:[14]
“He has mild residual pain with limitation of movements, particularly flexion of his right knee and a feeling of minimal instability in the joint. He has been left with residual after effects of the injury with flare-up of pre-existing degenerative arthritis, particularly in the medial compartment of the right knee and mild instability due to ligament laxity of a minimal degree, not requiring reconstructive surgery.”
[14]At p 10 of his report.
63 Mr Khan was guarded in his prognosis for both the heel and knee. With both, he foresaw the likelihood of flare-up of the pre-existing degenerative changes. The fall remained a significant contributing factor to his present symptoms, restrictions and impairment affecting his knee.
64 Mr Khan was asked questions about the foot and knee. Regarding the knee:[15]
“…your client is likely to be restricted or precluded in relation to employment and activities involving kneeling, squatting or crouching, prolonged sitting, walking or standing, walking up inclines or down declines and using steps or ladders.”
[15]At p 13 of his report.
65 After excluding any return to pre-injury duties due to the knee, for the foreseeable future, Mr Khan saw limitations in social, domestic and recreational activities.
McLean
66 Iain McLean is an orthopaedic surgeon. At the request of Mr Hunt’s solicitors, he examined him on 8 May 2019.[16] He took an extensive history including a brief description of the accident:[17]
“…he attended a work site as a crane dogman and was directing a crane driver, when he stepped back, falling 3.5 metres to concrete landing on both his feet and then falling backwards.
…he had specific pain in his left foot and was aware of swelling occurring soon afterwards into his boot and with an inability to weight bear. He was also aware of his ‘whole body’ aching and sore but aware of pain in both legs and his back and neck.”
[16]Report dated 16 May 2019.
[17]At p 3 of the report.
67 Regarding the right knee, Dr McLean noted a near full range of movement compared with the left knee. He diagnosed an internal derangement of meniscal and chrondal origin/pathology and aggravation of underlying but previously asymptomatic constitutional early degenerative changes in a vulnerable joint due to varus alignment. With the left ankle, there were undisplaced fractures of calcaneum and talus with mild stiffness and degenerative change.
68 Dr McLean described his prognosis for the knee as guarded after noting the joint pathology, partial meniscectomies, chrondal pathology and the varus knee alignment, saying:[18]
“…Undoubtedly the degenerative changes will progress with the further passage of time. The rate of progression is difficult to determine, but certainly with his underlying vulnerability and anatomical alignment, this will become more symptomatic and problematic. Undoubtedly at some point in the future there is a possible requirement for osteotomy or knee replacement surgery at an earlier stage than would otherwise have been anticipated.”
[18]At p 10 of the report.
69 With the left foot, the prognosis was relatively good with the likelihood of some progression of degenerative changes in the subtaler and talonavicular joints, the rate of which was difficult to determine.
70 The same question posed to Mr Khan about causation was asked of Dr McLean, who replied at length:[19]
“Considering the honesty and recollection of Mr Stephen Hunt and the history as told to me at consultation of 08.05.2019 then the answer is yes.
Stephen Hunt outlined to me his awareness of right knee and lower limb soreness and restrictions from the time of the injury; and mentioning these but being told it was normal as he was on crutches and limping and hopping between the crutches, because of his left foot.
He was on crutches or attempting to come off them over a long period of time; and during this time putting greater loads through his right lower limb. So that the right knee pain became more noticeable as he was then limping using a stick; and then attempting further work.
This has initiated the symptomatic problematic right knee, relative to the meniscal and chrondal pathology and the aggravation of the underlying constitutional changes.”
[19]Pp 10-11 of the report.
71 Due to the right knee, Dr McLean saw limitations in kneeling, squatting, crouching, prolonged sitting, walking and standing, walking up inclines and down declines and using steps or ladders.
Simm
72 Rodney Simm is an orthopaedic surgeon. He wrote two reports. Unusually, he did not examine Mr Hunt for the first.[20] However, for that report, he made a detailed examination of various reports and files, some of which are not available to me. His view was the pain in the knee was mainly due to osteoarthritis, predominantly in the medial compartment. The osteo-arthritis was longstanding. Part of the osteo-arthritic process are tears or disruption of the medial meniscus, as in this case. The symptoms in the knee occurred spontaneously in late October or early November 2016. The injury to that knee did not result from the fall. His underlying assumption was that the knee became spontaneously painful at a time when his gait was at or near normal.
[20]Report dated 11 February 2019.
73 As this case proceeded, Mr Simm was asked to examine Mr Hunt, which he did on 10 October 2019.[21] Among other things, Mr Simm supplemented his earlier chronology with information from Mr Hunt.
[21]Report dated 10 October 2019.
74 Following his examination, Mr Simm considered the current knee symptoms were consistent with degenerative patello-femoral pathology and was not coming from medial compartment or was related to the medial meniscus.
75 With the significant varus deformity of his knees, Mr Simm expected the osteo-arthritis to progress as Mr Hunt ages. He may cope for a while but ultimately may need to knee replacement.
76 Twice in his report, Mr Simm discussed the issue of causation. I will quote the second occasion:[22]
“I have discussed this at length in my first report and above. If it is accepted that he had a painful right leg, including his right knee, following the fall, and that the right knee symptoms worsened when he was using crutches and transitioning from crutch walking to walking without an aid, then there would appear to be a relationship between the fall and the initiation of symptoms from the osteoarthritis in his right knee. If the history is as I have understand it, that he developed pain in the right in November 2016, after he had returned to work and after his gait had returned to normal, then my opinion would be that there is no relationship between the exacerbation of symptoms from degenerative pathology in the right knee and the alleged incident on 16 May 2016.”
[22]At p 6 of the report.
Submissions
77 As I said earlier, the parties raised two issues. The respondent recast them negatively: Mr Hunt did not injure his right knee in the fall on 16 May 2016; and, if he did, then the pain and suffering consequences of the injury do not meet the threshold for a serious injury. Putting it that way does not place the onus of proof upon the respondent. It remains with Mr Hunt.
78 As to the first issue, the respondent raised a number of matters.
79 First, the incident report did not mention the right knee even though some of Mr Hunt’s handwriting appears on the document.
80 Second, the note of the general practitioner taken when Mr Hunt visited the clinic after the fall does not mention the knee.
81 Third, the admission record of the Frankston Hospital does not mention the right knee.
82 Fourth, in his claim for compensation, Mr Hunt did not mention his right knee even though the question asked for a listing of all parts of the body affected.
83 Fifth, when Mr Hunt saw Dr Rahgozar in July 2016 he did not mention his right knee and the doctor found he could squat and kneel with reasonable comfort. The latter was apparently inconsistent with an injured knee.
84 Sixth, the records of Mr Hunt’s attendances upon his general practitioner after 16 May 2016 until 17 November 2016 do not mention the right knee. If he was experiencing knee pain one would expect him to mention it to his doctor and for the doctor to note it. Counsel referred to two paragraphs from Philippiadis v Transport Accident Commission.[23]
[23][2016] VSCA 1 at [105] and [106].
85 Seventh, in neither of Mr Hunt’s affidavits does he mention knee pain from the date of the accident. At paragraph 10 of his first affidavit, he deposes to beginning to notice right knee pain in the latter part of 2016, explaining in evidence that this was an exacerbation of the existing condition.
86 Eight, Mr Crick noted Mr Hunt telling him that there was swelling and mild discomfort of the knee on his first day of returning to work after the fall.
87 Ninth, Associate Professor Buzzard refers to a further accident occurring in November 2016 resulting in right knee pain.
88 Tenth, Mr Khan noted Mr Hunt noticed pain in his right knee when he returned to work in November 2016.
89 Eleventh, the histories taken by Dr McLean and Mr Simm of right knee pain are incorrect because they fly in the face of contemporaneous evidence. Their opinions are based on these incorrect histories.
90 Finally, since Mr Hunt said he told both his general practitioner or his physiotherapist before November 2016 of his knee pain then given the absence of reports from them, I should infer that neither would have assisted him.
91 As to the second issue, the respondent pointed to the absence of any report from the treating medical practitioners about the limitation of his employment opportunities. A knee replacement is not required now but may be needed earlier than if there was no injury. When Mr Crick last saw Mr Hunt he expected a return to pre-injury work. Mr Hunt has retained his abilities to perform most of his daily activities. He describes his knee pain as a hindrance, annoyance and niggling. He can still climb scaffolds and ladders. He conceded part of his limitation for work related to his depression and anxiety.
92 Not unnaturally, Mr Hunt submitted the right knee was injured in the fall but the symptoms became preponderant later and the pain and suffering consequences reach the threshold.
93 First, Mr Hunt says the knee was always painful but became more evident upon his return to work in November 2016.
94 Second, the hospital admission notes say he landed on both feet and then fell onto his hands and knees after a significant fall.
95 Third, the claim form was completed five days after the accident. It is unsurprising there is no mention of the knee for he was non-ambulant for immediate period after the fall and was not using his right knee.
96 Fifth, notwithstanding his affidavits, his oral evidence and the histories given to Dr McLean and Mr Simm say he had knee pain which came to the fore later.
97 Sixth, whether the ability to squat and kneel comfortably in the presence of Dr Rahgozar is inconsistent with a knee injury is a medical question and there is no medical evidence about it.
98 Seventh, neither Associate Professor Buzzard or Mr Khan were troubled by the delay in the onset of the symptoms in the knee.
99 Eighth, Mr Simm did not examine Mr Hunt for his first report where he says the changes in the knee are due solely to degenerative changes. If so, he does not explain why the left knee is not symptomatic due to the same changes. He does not comment on the laxity of anterior cruciate ligament found in the operation report or the likely effect of the fall by landing from three metres.
100 Ninth, Mr Hunt has limited education. He is unsophisticated. He has difficulty in understanding or accepting propositions.
101 Tenth, Mr Hunt did not attend his general practitioner about his knee so one cannot infer such a report would not assist.
102 As to the second issue, the applicant relies on Dr McLean’s acceptance of his work limitations and the permanency of them with the possibility of a knee replacement earlier than anticipated. The applicant also relies on the restrictions placed by Associate Professor Buzzard of working at heights and avoiding bending or squatting of the right knee. Mr Hunter gave detailed evidence in his second affidavit of his decreased work and income. He pointed to the decrease in dancing, social outings, running and edging.
Legal considerations
103 Mr Hunt relied on the pain and suffering consequences of the injury to his right knee. In Haden Engineering Pty Ltd v McKinnon,[24] Maxwell P said the concept of “pain and suffering consequences” as encompassed by 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.
[24][2010] VSCA 69.
104 As to capacity for work, his Honour said:[25]
“…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].”
[25]At [15].
105 Mr Hunt also relied on passages from the judgment of Tate JA in Hawkins v DHL Express (Australia) Pty Ltd[26] 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.
[26][2013] VSCA 26 at [72].
106 As to the absence of mention of the right knee in the general practitioner’s notes, the respondent’s counsel referred to two paragraphs in Philliippiadis v Transport Accident Commission.[27] First, a court needs to exercise care when relying on those notes through inaccuracy or incompleteness but they can constitute highly probative evidence through independence, contemporaneity and dealing with matters within expertise. Second, ordinarily, one expects a patient to tell his or her longstanding doctor the health issues of concern to the patient and the doctor would note them.
[27][2016] VSCA 1 at [105] and [106].
Discussion
Did he injure his right knee in the accident?
Credit
107 In these types of cases, the credit of the applicant will often be critically important.[28] It is the case here. Mr Hunt struck me as a truthful witness although, sometimes, he did not express himself well. He is not a good historian, but is not sufficiently unreliable to give me concern. Contrary to the respondent’s submission, he was not unco-operative during cross-examination or did he avoid answering questions. The fact the respondent accepted his evidence on some points and not others is immaterial. An untruthful person is not necessarily untruthful in all things.
[28]Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76].
108 Incidentally, several of the specialists considered Mr Hunt genuine.
Both feet
109 The first thing to say is that the accident could have easily injured Mr Hunt’s knee. Three and a half metres is a considerable distance to fall and a concrete floor is a hard surface to fall on. Second, even Mr Hunt’s description of the fall is somewhat vague. This is understandable. His fall is unexpected. Its duration is very brief. He then experiences considerable pain in his left foot. These are confusing circumstances.
110 Although there are discrepancies, I am satisfied he fell on both feet rather than his left foot alone. The mention of the left foot only is explained by it being the source of acute pain at the time. Saying he landed on that foot explained to others why he was complaining about pain there. Apart from the knee, the extent of his injuries were greater than damage to his foot. He grazed both legs, both bled and he banged his head. These are not mentioned in any report because of the focus on the foot.
Incident report
111 The incident report did not mention an injury to his knee. Mr Hunt wrote part of the report. He focussed on the safety issues. He was upset at management’s lack of interest over what happened. Given who completed the form and Mr Hunt’s focus, a failure to mention the knee is of no moment.
General practitioner
112 He attended his general practitioner the same day. In a very brief note of the attendance, there is no mention of the knee. The attendance lasted almost eleven minutes during which the doctor saw the need for hospital care and arranged an ambulance. The focus was on the foot. The failure to mention is of no weight by itself.
Hospital
113 At the hospital, the admission note records left ankle injury but none to the head, neck or elsewhere. It records a fall greater than 3 metres onto his left ankle at one point and landing on his feet at another. At that other point, it says he then fell onto hands and knees. It records the fall in Ringwood but the site was in Croydon. He drove himself home to Frankston, while his home is in Chelsea. The discharge summary copies the admission note adding under the heading “management & course”, fell at work from a height of approximately 3 metres and landed on left foot.
114 One would not consider either summary as reliable given the discrepancies in the first and the apparent reliance of the second on the first.
115 The hospital diagnosed a sprain or strain of the foot. The x-ray did not reveal fractures but the radiologist suspected their presence. The diagnosis was incorrect. It took until 11 July for a correct diagnosis. Having been on crutches, he returned to them. One can understand a focus on the left foot.
Claim form
116 The claim form was completed five days after the fall. Despite the question asking for all injuries, it is not surprising Mr Hunt focussed on the left foot. It was painful and incapacitating and of immediate concern.
Dr Rahgozar
117 I agree with Mr Hunt’s submission that the significance, if any, of his ability to fully squat and kneel with reasonable comfort is a medical question. Dr Rahgozar was not examining the knee. Squatting and kneeling were part of a broader examination but the focus was on the left foot. Whether Mr Hunt could squat or kneel without discomfort and with a torn meniscus is a medical question and there is no such evidence.
118 When first asked to comment, Mr Simm was not given a copy of Dr Rahgozar’s report. Apparently, he was not given a copy for his examination of Mr Hunt, which formed the basis of his second report. Except for Dr Elder, none of the medico-legal specialists were asked to comment on this finding or, indeed, commented on it. Given the purpose of Dr Elder’s examination, it is unsurprising he makes no mention for he was not looking at a causal connection, only an impairment.
Attendances on general practitioner
119 Earlier, I mentioned the difficulty in reading the clinic’s notes. It seems accepted by the parties the first mention of the knee occurs on 7 November. There is a troubling entry 14 September. It starts on one page and apparently finishes on the next. If that is the correct reading, it says:
“14/09/2016 (Wed) 10.39 am with Dr Balwinder Singh at CHM, for 20m 11s
No RFE
came with Matthew IPAR official
agrees as per RTW plan.”
120 Then over the page, the entry apparently continues:
“no collateral laxity
Anterior/posterior drawer negative
McMurray test positive
Analgesia.”
121 Then the entry continues in slightly smaller font and indented:
“Referral: MRI right knee [right knee pain 1 month locking episode on bending McMurray test positive Meniscal tear] – Healthscope Pathology”.
122 The next entry is for 17 November 2016 for Dr Breger and, surprisingly, the next is the entry for 7 November on Dr Samarakoon.
123 Despite Mr Hunt saying on 17 November he did want MRI scans at that stage, scans were requested by Dr Singh on 18 November and performed on 21 November.
124 This is the problem with clinical notes. Without a practitioner to explain them, they can assume an incorrect meaning. Because the parties have not had the opportunity to consider this entry, I will assume this entry does not refer to the knee and the entry on the second page belongs somewhere else.
Affidavits
125 It is true Mr Hunt does not mention knee pain at the time of the fall in his affidavits. In his first, he said he began to notice right knee pain in the “later part of 2016”, was advised to be non-weight bearing and would be on crutches for about six months. His first mention, under oath, came during cross-examination although he had advised each of Mr Simm, Dr McLean and Mr Khan earlier. A number of times during cross-examination, he mentioned soreness in the right knee immediately following the fall. In relation to what he told the writer of the incident report, he said his whole body was sore and he was holding both legs with his focus on the left foot which was swollen. His answer in cross-examination sums it up:[29]
“I think that overshined or overshadowed whatever term you use was the fact that the left foot was already swollen up immediately and there’s grazes and bleeding from both legs and I think the right leg was just put to the side so to speak.”
[29]T 18.
126 Later, he explained his comments in the affidavit as the soreness got worse, not first appeared.
127 In making this comment “I think that it was not symptomatic initially because of his left foot problem. It became symptomatic when he returned to work”, Associate Professor Buzzard implies Mr Hunt took notice of the pain when he returned to work for by then the foot pain was outweighed by the knee pain.
What he told Crick, Buzzard and Khan
128 He told Mr Crick on 21 February 2017 of pain when he returned to work and, in a later report, recorded as lasting a few months. He told Associate Professor Buzzard the pain started on his return to work in November 2016. He told Mr Khan his pain started in November 2016. These are consistent with an increased in the pain at a later time without contradicting the earlier existence of the pain.
What he told McLean and Simm
129 In light of earlier considerations, I do not consider the histories given to Dr McLean and Mr Simm were inaccurate. Accordingly, they do not undermine their respective opinions because of a mistaken assumption of fact.
Jones v Dunkel
130 Mr Hunt said in evidence he was told by, at least, his doctor and physiotherapist his right leg had hurt more because he was overusing it. The respondent’s counsel relied on the principle in Jones v Dunkel.[30] Before one can infer the evidence of an absent witness would not have been favourable to a party two things must be established. First, the witness must be someone whom the party might reasonably call and, second, there is no explanation for the failure to do so.[31]
[30](1959) 101 CLR 298.
[31]O’Donnell v Reichard [1975] VR 916 at 929.
131 Given the nature of the evidence, I doubt whether the general practitioner or the physiotherapist would record the making such a comment unless he or she was asked to speak about a causal link between the fall and the injury. Only then would you expect reference to the favouring of one leg when using crutches in particular. Regarding the general practitioner, the unexplained absence of a report from him, at least, regarding capacity for work, could enable the drawing of an adverse inference, but I would not draw it. There was no real challenge about what Mr Hunt said about his more recent work experience and this was not a case directly involving the loss of earning capacity consequence.[32]
[32]See Woolworths Ltd v Warfe [2013] VSCA 22 at [151] – [152].
132 Incidentally, contrary to the submission of Mr Hunt’s counsel, the general practitioner did treat his knee.
133 Mr Hunt’s counsel criticises Mr Simms when he said in his first report the condition of the right knee was solely due to degeneration, arguing if that was so, why the other knee similarly affected. Even if the left knee was arthritic, knees might become symptomatic at different times. This is a medical question about which there is no evidence.
Conclusion
134 Individually or collectively, these issues arising out of documents do not cause me to doubt Mr Hunt’s truthfulness about feeling pain in his right knee and leg immediately after the fall. More broadly, I am satisfied Mr Hunt fell a distance of, at least, three metres, landing on both feet on the concrete floor below. As a result, he suffered injuries to his left foot and right knee. More particularly, I am satisfied Mr Hunt suffered an injury to his right knee arising out of or the course of his employment with the defendant.
Pain and suffering consequences
135 Mr Hunt has been a labourer of one kind or another most of his working life, spanning many years. His kind of labouring has been very physical. Before the fall, he was a fit person, priding himself on his fitness. His fitness formed the basis of his employment. The condition of his knee has affected his employability as a labourer. By about July 2017 the defendant stopped offering him work despite his availability. Others have proven less interested in employing him. Apart from the drying up of opportunities, he is selective as to what he can do physically to protect himself. Even with selectiveness, he has experienced unexpected weakness in his knee, leading to injury. In this regard, I am ignoring his recent use of a sling to relief his painful left shoulder because it did not stop him going to work or working when there.
136 This is not a case of an avenue of employment being completely and permanently denied to Mr Hunt through his injury. However, at 55, he now earns much less, so much so he is in arrears of the payments on the mortgage on his home. He lives alone. He has no one to fall back on financially. He has little contact with his brother and sister or with his daughter. I accept the genuineness of his self-assessment because it is having significant financial consequences for him. He is placing his continued ownership of his home at risk. His work and financial future are very uncertain. As Tate JA said this consequence is not determinative of the application but, in this case, it is important.
137 Although constant, Mr Hunt considers the ache or pain in his knee as niggling, a hindrance or an annoyance. That is the background. At the end of a working day, it is painful. His assessment of the degree of ache must be seen in the light of his long history of physical work and putting up with what that entails. He does take over-the-counter pain relieving medicines, described by his counsel as “a light pain killing regime”. Although the word is overused in submissions in these cases, I do consider him stoic.
138 The condition of the knee makes more difficult bending, twisting, kneeling and squatting. He cannot lift heavy weights.
139 Before the fall, Mr Hunt was very fit. He ran on the beach two to four times each weekly over distances of up to four kilometres. Now, he jogs and walks alternatively between 25 to 50 metres each for about a kilometre once a week. The contrast is marked.
140 He still performs his household chores, only more slowly. Edging by hand is beyond him. However, this is a relatively minor matter.
141 I spoke earlier of Mr Hunt living alone. Since the fall, his social life has diminished including his dancing. He is more isolated socially.
142 The sum of these symptoms and consequences relating to pain and suffering consequences are when judged by comparison with other cases, in the range of possible impairments or losses of body functions, fairly described as more than significant or marked, and is very considerable. Mr Hunt has suffered a serious injury.
Conclusion
143 I will grant Mr Hunt leave to bring a proceeding for damages arising out of the fall on 16 May 2016.
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