Hutchinson v J G Moloney and Co (Noorat) Pty Ltd and CGU
[2009] VCC 532
•15 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-01931
| ROBERT HUTCHINSON | Plaintiff |
| v | |
| J G MOLONEY & CO (NOORAT) PTY LTD | First Defendant |
| and | |
| CGU WORKERS COMPENSATION (VIC) LIMITED | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE CAMPBELL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 10th and 11th March 2009 |
| DATE OF JUDGMENT: | 15 May 2009 |
| CASE MAY BE CITED AS: | Hutchinson v J G Moloney & Co (Noorat) Pty Ltd & CGU Workers Compensation (Vic) Limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0532 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – serious injury application – injury to right knee – return to full-time work.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC with | Stringer Clarke |
| Mr N Bird | ||
| For the Defendants | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens | ||
| HIS HONOUR: |
1 This is an application for leave to bring a proceeding for the recovery of damages in respect of injury pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”). It is brought by Originating Motion dated the 15th May 2008.
2 The claim is brought under sub-paragraph (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. The claim is made for pain and suffering damages only.
3 The part of the body identified in a document entitled “Particulars of Injury” dated the 10th September 2008 filed on behalf of the plaintiff as being the injury relied upon in this application includes the following description:
•
“Complete disruption of the distal portion of the right quadriceps tendon with significant separation from the patella
• Chronic right knee and quadriceps pain • Fluid build-up within the right knee •
Disruption of the distal portion of the right patella tendon with significant retraction
• Disturbance of mobility.”
4 There followed other particulars that are really sequelae of the injury and I need not set them out here. In essence, it is injury to the plaintiff’s right knee that is the body function of which it is contended there is a permanent serious impairment or loss of function.
5 In support of the application, the plaintiff swore affidavits on the 15th September 2007 and the 4th February 2009.
6 He also relied upon an affidavit of his sister, Elizabeth Ann Whitehead, sworn on the 15th August 2007, and an affidavit of his wife, Kylie Jane Hutchinson, sworn on the 11th September 2007.
7 The plaintiff also relied upon medical reports, radiological reports and other documents set forth in the index to the plaintiff’s Court Book (“PCB”). The plaintiff also relied on reports of medical practitioners who reported on behalf of the defendants.
8 The defendants relied upon material set forth in its index to its Court Book (“DCB”), principally the medical reports, together with films of covert surveillance of the plaintiff which were taken on the 24th and 31st May 2008 and the 25th January 2009.
9 Notice to attend for cross-examination was given to the plaintiff and he gave evidence and was cross-examined before me. Neither of the other two deponents to whom I have referred were required for cross-examination themselves, although the plaintiff was cross-examined at some length on the basis of the contents of those affidavits.
10 I have read all of the materials, including the transcript of proceedings and the addresses of counsel. I may not mention all of the medical reports, which include reports from general practitioners and physiotherapists, but I emphasize that I have taken them all into account.
11 I am obliged to determine this matter bearing in mind the definition of “serious injury” in s.134AB(37) and (38) of the Act and to direct myself in accordance with the deliberations of the Court of Appeal in the group of four cases commonly known as Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622.
12 I am also conscious of the decisions in Mobilio v Balliotis (1998) 3 VR 833; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; and more recent decisions of the Court of Appeal in Church v Echuca Regional Health [2008] VSCA 153; and Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167.
13 Reference was also made by the parties to decisions of the Court of Appeal in Ansett Australia Ltd & Anor. v Taylor [2006] VSCA 171; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 and to Stone v Jervis, one of the compendium of cases dealt with in Humphries v Poljak [1992] 2 VR 129.
14 The plaintiff was born on the 18th October 1961 and is married with two young boys aged about eleven and eight.
15 He completed Year 10 at Cobden Technical School and thereafter has had employment as a forklift driver, and since 1993 as a permanent full-time truck driver working for the first defendant, delivering stock feed.
16 Photographs contained in one of the medical reports of the truck that he customarily drives reveals it to be a large semi-trailer with a tanker type body which, according to the plaintiff, is divided into eight compartments. Access to the top of the tanker seems to be via a ladder of some eight or nine steps from the tray which the plaintiff swore that he had to climb up and down some forty to fifty times per day.
17 On the 16th August 2005, the plaintiff was delivering stock feed to a dairy in the Warrnambool area. He was required to walk across a yard which had a build up of slime on the surface, as a consequence, he said, of a leaking overhead yard wash. He slipped on the slime which caused his right foot to twist and he fell over. He attempted to get up but was unable to do so without assistance. The consequence of his fall was at least to snap his quadriceps tendon, as will appear. He was taken by ambulance to the Warrnambool Base Hospital where an x-ray of his right knee was taken. His leg was placed in a splint and he was sent home, returning the following day where an ultrasound of the anterior aspect of the right knee was performed.
18 The report of that ultrasound, inter alia, is that there was a:
“Complete disruption of the distal portion of the quadriceps tendon with a 1.8 cm separation from the patella. In addition there is disruption of the distal portion of the right patella tendon with 1.8 cm of retraction.”
19 The report went on to say, that the conclusion was a disruption of both distal quadriceps tendon and the distal patella tendon.
20 The plaintiff was admitted to hospital, and on the 18th August 2005, Mr N Sundaram, orthopaedic surgeon, undertook, under general anaesthetic, repair of the tendon.
21 Following that surgery, the plaintiff’s right leg was placed in a hip-to-toe plaster cast in which he remained for some six weeks.
22 Following the removal of the cast, the plaintiff was obliged to be non-weight- bearing for a considerable amount of time and was provided with crutches.
23 He had previously had a right shoulder injury for which he had undergone treatment in the form of physiotherapy and cortisone injections. The use of crutches aggravated this rotator cuff tendonitis, as it is sometimes described, in, in fact, both shoulders and, he claims, that he developed left knee pain because of the extra weight load and emphasis having been placed on that knee due to this injury.
24 Indeed the reports from his physiotherapist, Mr Hill, suggest that he is still having intermittent physiotherapy for his shoulder problems quite apart from the condition of his knee, to which I shall return.
25 The plaintiff continued to have rehabilitative treatment for his knee and indeed was off work for apparently some nine months. The material suggests that he had returned to full-time work by May 2006. I think it may be that he had a period on light duties – there is some confusion in the materials about this – but in any event, he ultimately was back to full-time duties and all that that entails.
26 It appears that his employer is sympathetic to the problems he now says he has with his knee, and to a lesser extent his shoulders, and provides assistance, particularly at loading of the bulk carrier, at the depot from which deliveries are made. I shall return to the plaintiff’s evidence in this regard at a later point.
27 I shall now turn to some of the medical reports and opinions contained in the Court Books. It is not always easy to mesh the chronology of the plaintiff’s attendance upon various doctors, and I do not pretend to have achieved any perfection in this regard.
28 Following the operation on the 18th August 2005, the plaintiff attended his general practitioner at the local medical clinic from time to time. That was initially Dr Wong, and subsequently it became Dr Fitzpatrick.
29 On one of the plaintiff’s visits to Dr Wong on the 2nd November 2005, the doctor found him to be doing well and said that the right knee now demonstrated a full range of movement, although he still needed analgesia at night to deal with pain. Dr Wong commented that the orthopaedic specialists were pleased with his progress. I assume this to be Mr Sundaram, who had carried out the operation.
30 Dr Wong also describes in his reports in November 2005 and August 2006 the need to inject Depo-Medrol into the shoulders to give the plaintiff relief from the pain that he was reporting in those joints, which Dr Wong thought may be caused or exacerbated by his original injury.
31 It would seem that Dr Wong had x-rays taken of the plaintiff’s knees, left and right, on the 19th December 2005 because a report contained in the PCB shows that the radiologist addressed that report to the doctor. Dr Wong does not appear to have made any comment himself about this investigation but it showed in regard to both knees as reported thus:
“Mild bilateral patellofemoral joint osteoarthritis is present with minimal osteophyte elsewhere on both sides. Minor medial compartment cartilage space narrowing is noted on erect films. Irregular trabecular pattern in the right patella suggests previous injury with subsequent demineralisation. A small right effusion is noted.”
32 The plaintiff’s solicitors sent him to see Mr John A Henderson, orthopaedic surgeon, for both medico-legal assessment and an impairment assessment pursuant to the provisions of the Act. For reasons I do not quite understand, whilst the plaintiff saw Mr Henderson on the 18th October 2006, the report asserts that the final editing of that report was completed on Friday, 13th April 2007. Mr Henderson saw the plaintiff on only that occasion.
33 Mr Henderson’s report is highly detailed, and recites the radiological studies up to the time that he saw the plaintiff, including the x-rays apparently sought by Dr Wong, as I have referred to.
34 As, in the history of things, Mr Henderson was the first orthopaedic surgeon to see the plaintiff for medico-legal examination, I can be reasonably brief as to what he found.
35 The plaintiff’s present symptoms included the following:
“Right knee
Knee cap tracking:
‘The knee cap seems to move outwards – and the physio. – every now
and again – tapes it up, and brings it into the centre – brings it inwards.’
Pain
‘Your client complains that he has pain ‘on either side’ of the knee cap. The pain is deep. It tends to come and go depending on activity. Going up and down stairs (or ladders or steps) aggravates this pain very much in his right knee joint.’
No Swelling
‘Apparently there is no effusion in the knee joint?’
Gait:
‘On the flat, apparently, your client walks okay. He does not need to use
a walking stick at all.’”
36 Treatment was described by the plaintiff at that stage as physiotherapy twice a week and nil medication.
37 Mr Henderson found on examination that there was quite marked muscle wasting (unilateral atrophy) of the right thigh, especially just above the knee. He said it was very obvious, and provided a photograph to demonstrate what he found at that time. He noted a two-and-a-half-centimetre difference in lower limb circumferal measurements between the right thigh and the left thigh.
38 It should be remembered that Mr Henderson’s opinion was founded upon his observations and examinations in October 2006. He noted that the plaintiff’s grossly overweight condition at the time of the accident may have been a contributing factor and relied very much, it seems, on the amount of wasting which he found in the plaintiff’s right thigh. As will be seen later, this observation appears to have ameliorated in the examination subsequently of other medical experts.
39 Mr Henderson thought that it would have been useful to have had updating x-rays and ultrasounds in order to assess the ongoing quality of what Mr Sundaram had done by way of repair to the plaintiff’s knee.
40 Mr Henderson also commented under the heading “Stabilisation”:
“Only fourteen months after such a major tendon disruption injury involving one of the major larger weight-bearing joints (the knee joint), your client’s right thigh/right knee joint injury/accident condition may not yet be completely stabilised; although I do believe that it could be regarded as sufficiently stabilised now for the purposes of this impairment assessment report.”
(underlining mine).
41 At that stage, for the above purpose, Mr Henderson thought that the plaintiff had a significant impairment of his right lower extremity.
42 The next medico-legal examination of the plaintiff, chronologically speaking, was for the defendants, who sent the plaintiff to see Mr Stanley Schofield, orthopaedic surgeon. Mr Schofield examined the plaintiff on the 8th June 2007 and reported on the 12th June 2007.
43 After taking a history of the plaintiff’s injury and treatment, Mr Schofield noted that at that stage he was told that treatment continues with massage, ultrasound and some physiotherapy on a regular basis.
44 Under the heading “Present Situation”, Mr Schofield noted as follows:
“… but the knee occasionally has a feeling that it will give way, although he has not fallen in recent times. He gets some pain in the area of the surgery if his knee is flexed (e.g., driving for more than one-and-a-half hours). He also gets an ache in the knee when loading a truck with repetitive ascending and descending steps approximately forty to fifty times a day. …
There is also some limitation in his capacity to walk and stand for long periods. The knee clicks at times, especially when ascending steps and there is some pain felt on the medial side.”
45 I will omit for the moment what the plaintiff told Mr Schofield about social and recreation activities and go on to examination.
46 Mr Schofield found that the plaintiff was overweight at about 120 kilograms. Examination of the right leg revealed the scar resulting from Mr Sundaram’s operation. Mr Schofield said there was no effusion, a good range of flexion with loss of the final 10 degrees but full and powerful extension. There was, he said, minor patellofemoral crepitus but no maltracking of the patella on the femur. All ligaments were stable, there was no effusion in the knee joint and the quadriceps repair, which was palpated with the muscle contracted, appeared completely sound.
47 Under the heading “Investigations”, Mr Schofield said x-ray of the knee on 1st February 2007 revealed normal articulation between tibia and femur. He said he could not detect any obvious loss of medial joint space in the weight- bearing view. There was no skyline views in this series of x-rays but the weight-bearing AP view revealed a mild lateralisation of the patella which was equal on both sides.
48 I must confess that I am puzzled by this x-ray of the 1st February 2007. It would seem likely that it was ordered by Dr Wong but neither he nor his successor, Dr Fitzpatrick, mention it in their reports. It was certainly seen by three of the doctors examining the plaintiff on behalf of the defendants, but as far as I can tell, there is no copy of the report in the plaintiff’s material and no specific reference is made to it in the reports of Mr Skelley or Mr Brearley.
49 Under the heading “Opinion”, Mr Schofield said, inter alia, that surgery had been successful in repairing the quadriceps muscle and tendon and that apart from very minimal loss of flexion, his knee function was otherwise normal. In particular, he said there was no measured quadriceps wasting in his examination.
50 Thereafter Mr Schofield answered a number of questions that had been postulated to him, and amongst other things said:
“1 The nature of the worker’s current medical condition is scarring in the region of the repair just above the knee joint and possible aggravation of pre-existing patellofemoral chondromalacia. 2 The contributing factors to the worker’s current medical condition are some scarring with tethering of the tissue to the periosteum of the femur and possible aggravation of articular damage beneath the kneecap. 3 There is no likelihood of further surgery to the quadriceps tendon; however, if investigations show evidence of damage to the knee joint, he may need arthroscopy.
. . .
5 Ongoing treatment will not alter the course of this condition.
6 Current treatment is producing some maintenance but no
improvement in function.
7 The evidence in the literature is copious but varied in opinion.”
51 As I was not provided with the questions, I do not understand the answer under number 7 above. No one sought to enlighten me in this regard.
52 Under number 11 of the above points, Mr Schofield said:
“Any further treatment will depend on investigations, which I believe are warranted. He may have a different cause for his pain, which is still work-related but may have injured the articular surface of the knee joint in the fall. I therefore recommend MRI scan of the right knee. In the meantime, I suggest that he should have massage only on a fortnightly basis.”
53 Mr Schofield was prepared to provide a supplementary report (if and when) the MRI scan was done with recommendations regarding further treatment.
54 Ultimately an MRI was performed apparently on the 22nd October 2007 but Mr Schofield was not given the opportunity to comment upon the findings of that investigation.
55 The next medico-legal assessment in point of time was on behalf of the defendants, carried out by Mr Paul Kierce, orthopaedic surgeon, on 25th June 2007.
56 In his report of the same date, Mr Kierce made the point that his was an independent medical examination, in particular to provide an impairment assessment of injuries to the right quadriceps tendon rupture and exacerbation of bilateral rotator cuff tears.
57 After taking a detailed history of the plaintiff’s work situation and of the injury, Mr Kierce noted under “Present Complaints”:
“He complains of pain all around his right kneecap and on the outer side of his right thigh. His knee will pain with steps, prolonged standing, walking for more than ten or fifteen minutes. He describes a burning sensation in the right kneecap area. His right knee clunks and locks so it is difficult to straighten after it has been bent. He has a dull pain when sitting in the car or the truck. He has to move his knee frequently while driving. He is unable to kneel; his right knee can give way on downward sloping inclines. His knee does not swell. He feels that his right knee condition is stabilised. He has noted some improvement with some occasional taping of his right kneecap by the physiotherapist.”
58 Under the heading “Medications”, Mr Kierce was told that the plaintiff took Fenac, one twice a day as required, but had not taken any for some two weeks previously. He also took Glucosamine and Fish Oil regularly.
59 I will omit for the moment what Mr Kierce was told about sports and education and daily living activities.
60 On examination, Mr Kierce said that the plaintiff walked with a slight limp on his right leg and could only do a half squat when right knee pain commenced. Mr Kierce noted that the girth of his right thigh 10 centimetres above the superior pole of his right patella and was two-and-a-half-centimetres less than the left thigh. Mr Kierce also noted that there was a valgus deformity of the right knee compared with the left which, according to Mr Kierce, was constitutional. I pause to note that this does not seem to be the view of Mr Henderson.
61 Mr Kierce went on to say that the plaintiff was able fully to extend his right knee but could flex it to 105 degrees only. He said there was some mild retropatellar tenderness in the right knee, but an equal amount of crepitus existed in each knee with flexion extension movements.
62 After referring to the x-rays and ultrasound of the 16th and 17th August 2005, Mr Kierce said that further x-rays of both knees taken on the 1st February 2007 showed a slight disuse calcification in the right patella, but no other abnormality.
63 Mr Kierce then answered a series of questions that were clearly aimed at the impairment assessment procedure provided for under the AMA Guidelines, and in that regard seemed to place emphasis on what he described as “the atrophy of the right quadriceps muscles”, as referred to above.
64 He went on to say, that in this regard he regarded the plaintiff’s impairment as having stabilised. He concluded by saying, inter alia, that the plaintiff was no longer in need of active treatment to his right knee or shoulders as a result of this accident.
65 I now turn to the reports of Mr Sundaram, the plaintiff’s operating and treating surgeon, at least up until the 15th August 2007 when he last saw the plaintiff.
66 Mr Sundaram provided two reports to the plaintiff’s solicitors, each of which states that they are “compiled from the notes”.
67 Mr Sundaram gives a fairly brief chronology of his operations and the plaintiff’s progress through the years 2005 and 2006.
68 The reports detail the gradual progress of the plaintiff but note that, without specifying measurements, there was, inter alia, evidence of wasting of the quadriceps muscle, discomfort on either side of the knee and difficulty climbing stairs. As at the 5th July 2006, Mr Sundaram noted again that the plaintiff complained of difficulty climbing and that he did not have any other significant trouble. He said that the plaintiff had a flexion range of 0 to 130 degrees and had crepitus in the patellofemoral joint.
69 When Mr Sundaram last saw the plaintiff on the 15th August 2007, he said that the plaintiff had good strength in his quadriceps muscle and a full range of knee movement and was able to climb stairs but had discomfort. At that stage the plaintiff felt that physiotherapy was helping him and that taping of the patella by the physiotherapist seemed to help.
70 The plaintiff failed to attend the next six-monthly check-up with Mr Sundaram, who, in his last report, summarised the position as he saw it thus:
“Mr Hutchinson sustained a significant injury to his knee and seemed to have recovered well, although he still had some residual discomfort over the anterior aspect of his knee, especially when he climbed stairs.”
71 Mr Sundaram said he could not comment further, having not seen the plaintiff again.
72 For reasons that are unclear, Dr Fitzpatrick, by now the treating general practitioner, sent the plaintiff for an MRI of the right knee in October 2007. Dr Fitzpatrick’s reports in the PCB do not state why this was done, nor indeed why the plaintiff was referred by him on the 19th February 2008 to Mr John W Skelley, orthopaedic surgeon.
73 Mr Skelley also apparently obtained an x-ray of the right knee on that date.
74 Mr Skelley, like all the surgeons save Mr Sundaram, only saw the plaintiff once. He recorded the plaintiff’s complaints, inter alia, as follows:
“After the muscle healed, his leg never fully recovered, [and he] (sic) was left with chronic pain in the front of his right knee. The pain appears when he is working and when he sits too long. The pain settles with rest. Occasionally the knee feels unstable but has not given way. There has been no locking or swelling.”
75 Interestingly enough, Mr Skelley did not find any obvious muscle wasting in the plaintiff’s right leg and the quadriceps mechanism was, he said, intact. Leg alignment was normal, the patella was tender and had crepitus when it moved. Mr Skelley thought the tracking of both patellas abnormal.
76 Mr Skelley commented on the MRI report of the 22nd October 2007, that it showed a chronic tear of the ACL with reinsertion of the fibres and chondromalacia patella. The x-ray of the 19th February 2008, he said, reported some small areas of calcification or ossification adjacent to the patellofemoral joint but was otherwise normal.
77 Mr Skelley’s views were expressed as follows:
“I was of the opinion this man’s pain [is] (sic) due to the chondromalacia seen on the MRI scan. The chondromalacia is the result of pre-existing maltracking and some muscle weakness as a result of the rupture in 2005. There was also an injury to the anterior cruciate ligament seen on the MRI scan. I do not think the injury to the anterior cruciate responsible for the pain in the knee but it could be responsible for the knee feeling unstable and ‘giving’ even though the knee felt stable clinically. I did not recommend a reconstruction operation.
I consider this man’s pain chronic. His symptoms improved a little with physiotherapy and taping the patella. He has been prescribed anti- inflammatory medication to try. I did not think any surgery at this stage would improve his knee. However, long-term he is likely to develop post-traumatic arthritis in the patellofemoral joint. When he does and his symptoms can’t be controlled non-operative[ly] (sic) surgical intervention will be needed.”
78 The next medico-legal examination in point of time was that of Dr Chris Baker, who describes himself as a specialist in occupational medicine and in public health medicine.
79 Dr Baker saw the plaintiff for the defendants on the 23rd July 2008.
80 Dr Baker’s report is very lengthy and indeed very detailed.
81 One aspect to which I shall need to return relates to the plaintiff telling Dr Baker of his consultation with Mr Skelley, whom the plaintiff asserted advised him that he, Mr Skelley, could undertake a lateral release operation (presumably of the patella tendon) but did not know whether there would be much benefit to Mr Hutchinson. I observe that Mr Skelley’s report makes no reference to this point and indeed appears to be to the contrary.
82 The plaintiff also told Dr Baker that he now had an appointment with a Mr McQueen for a further opinion. The plaintiff’s further affidavit makes reference to having seen Mr McQueen, whom, according to the plaintiff, has advised an operation. The plaintiff asserts that he has discussed this with his physiotherapist and they have agreed that they will continue with his exercises and only have an operation as a last resort.
83 I pause to say that there is no report from Mr McQueen, which situation was explained by plaintiff’s counsel in terms that Mr McQueen had been asked for a report and had not provided one. As will be seen, another surgeon, Mr Brearley, expresses the opinion that the plaintiff’s situation has not stabilised and that Mr McQueen’s opinion would be helpful in determining this situation. I shall return to this at a later point.
84 Dr Baker, on examination, amongst other things, found only .5 centimetres of difference between the right and left thighs, and in terms of examination of the right knee, found there was some tenderness around the lateral aspect of the patella and some irritability when it was moved. He noted that there was patella “catching” during active movement with pain elicited but the joint appeared stable and there was no collateral ligament laxity and no movement in anterior/posterior direction to suggest incompetence of the cruciate ligaments.
85 Dr Baker reviewed all of the x-ray and other investigations to which I have referred.
86 Again, in answer to what was, he said, specific questions, and under the heading “Conclusions”, Dr Baker, inter alia, said as follows:
• “The absence of the anterior cruciate ligament does not affect the functioning of the knee – he does have chondromalacia patellae affecting the lateral facet of the patella and obviously with ascending and descending steps and in and out of his tanker his condition deteriorates and he is worse towards the end of the day – and he takes anti-inflammatory medication. • He has a current work capacity for undertaking his normal duties – he does not describe any difficulties undertaking the specific tasks of delivery stock feed and … other than the build-up of soreness in the right knee because of repeated ascending and descending steps. • The condition has stabilised. • He will have an ongoing absent anterior cruciate ligament and it is probable that he will have ongoing symptoms arising from the lateral aspect of the patella due to the chondral damage – if he decides to have surgery, this would obviously impact on the stability of his condition and his future prognosis – it is possible and probable that the cruciate ligament injury occurred at the time of the incident.”
87 I come now to the report of Mr Kenneth Brearley, another orthopaedic surgeon. His is the final of the reports, chronologically speaking, put forward by medico-legal examiners.
88 Mr Brearley saw the plaintiff on 2nd October 2008 at the request of his solicitors.
89 Documentation provided by those solicitors to Mr Brearley was somewhat limited but included an earlier report from Mr Sundaram, reports of the physiotherapist, Mr Hill, the report of Dr Fitzpatrick and an MRI report of the 22nd October, apparently together with the earlier x-ray and ultrasound reports of August 2005.
90 Coincidently, the plaintiff saw Mr McQueen on the same day but prior to seeing Mr Brearely.
91 Mr Brearely reports that the plaintiff told him that Mr McQueen had suggested operative treatment, namely a lateral release, presumably of the patella tendon.
92 On examination of the plaintiff, Mr Brearley found him to be 142 kilograms and one who walked and moved normally.
93 As to the front of the knee joint, he noted the 20-centimetre operation scar and observed that there was no deformity. Movements of the knee were full and he said there was obvious crepitus. The knee joint appeared to be stable and the patella moved freely and painlessly.
94 Mr Brearley viewed the x-rays and MRI images of the right knee and commented that the x-rays of the right knee on 16 August 2005, whilst showing minor decrease in joint space in the medial compartment of the knee, said, however, that the articular surfaces were well-preserved.
95 He made comment on the ultrasound of the 17th, and then, as to the MRI of 22nd October 2007, he said, inter alia, there was some evidence of chondromalacia patellae but no chondral defects.
96 Under the heading “Diagnosis”, he said that there had been a rupture of the distal quadriceps tendon and the distal patella tendon which had been repaired and operated on successfully but leaving the plaintiff with some residual pain and disability. He said this appears to result from the maltracking of the patella which was aided by repeated strapping by the physiotherapist.
97 Under the heading “Further Treatment”, Mr Brearley observed that the patella appeared to be maltracking and a lateral release procedure would be helpful. This, he said, would enable the plaintiff to resume his work as a truck driver thereafter with less disability. Mr Brearley also said that Mr McQueen’s postulated operative procedure should give the plaintiff some improvement, although he should avoid heavy labouring work in the future.
98 Mr Brearley then said that the plaintiff’s condition was not yet stabilised and impairment assessments should be left for some months. I observe that no further assessment has been done and, indeed, as I have previously pointed out, the plaintiff has made a decision, in consultation with his physiotherapist, that mooted treatment by Mr McMcQueen should be deferred as long as possible.
99 Mr Kierce was also advised, inter alia, by the plaintiff that he was due to see Mr McQueen for an opinion about whether surgery was warranted in an attempt to improve his situation. Mr Kierce, as I think I have said, ultimately concluded that the plaintiff’s condition had stabilised. He also said that if the plaintiff did decide to have surgery this would obviously impact on the stability of his condition and his future prognosis.
100 I am a little at a loss to know what is precisely meant by this observation. It is perhaps a little more guarded than the opinion of Mr Brearley, to which I have referred, as to the operative procedure apparently proposed by Mr McQueen.
101 Regrettably, the plaintiff’s physiotherapist has not submitted a report subsequent to the plaintiff seeing Mr Brearley which might have supported the plaintiff’s assertion of discussion regarding Mr McQueen’s proposed operation.
102 I should say at this point that the issue of Mr McQueen’s opinion and lack of report was raised by me at the very outset of this case, I by then having skimmed through the PCB and noted Mr Brearley’s opinion. Plaintiff’s counsel, notwithstanding my concern with respect to Mr Brearley’s opinion that the plaintiff’s condition as at 2nd October 2008 had not stabilised, elected to proceed with the application.
103 In the course of addresses, Mr Scanlon made this very point in submitting that it was not possible for me, in the light of that opinion, to give a concluded view as to the plaintiff’s onus to satisfy the tests to which I have referred.
104 I should make some observations about some of these medical reports and evidence at this point.
105 In the first place, I think that Mr Henderson’s report, detailed and useful as it may be, is now a little dated, being nearly two-and-a-half-years-old and clearly things have moved on since then.
106 Further, Mr Henderson did not have the benefit of later investigations which he had requested.
107 That the plaintiff’s condition had improved from when Mr Henderson saw him on 18th October 2006 is evidenced by the recovery of the significant wasting of the right thigh, as reported by Mr Henderson. As is noted, at the time that the plaintiff got to see Mr Brearley there was no comment about wasting of the right thigh upon examination, while in July 2008, when the plaintiff saw Dr Baker, that doctor was unable to find more than a .5 centimetre difference between the right and left thighs and observed that there was no obvious muscle wasting. Mr Skelley, as I have mentioned, asserted that the “maltracking” was pre-existing (i.e., the accident).
108 The same observation was made by Mr Skelley in February 2008. It therefore appears that the plaintiff’s condition in that regard has improved, which I would assume could be attributed to his regular exercise in the course of his employment.
109 Then there is an issue as to interpretation of the movement of the plaintiff’s patella. For example, Mr Schofield could find no maltracking of the patella on the femur. Mr Schofield also asked for an MRI investigation but he was never asked to comment on the later scan.
110 I have thus far said little about the affidavit material relied upon by the plaintiff. That material is detailed and sets out a litany of consequences that he says have resulted from his knee injury. He and his supporters assert these consequences in graphic minutiae, which cross-examination showed were not entirely supportable.
111 Cross-examination also demonstrated the folly of making generalisations about assertions of “never” or “can’t”. The plaintiff was attacked on such topics, as he was on histories given to doctors where such assertions were made.
112 Thus, in his affidavits he said, inter alia, that his right shoulder was “very good” until he was obliged to use crutches and following which he had required cortisone injections for pain relief. In fact his wife, in her affidavit, said that he was still being given physiotherapy in this regard when the accident occurred, which he subsequently agreed with.
113 The plaintiff said his right knee “locks up” – although this seems to be contrary to some histories he has given to doctors. Again, he says he cannot bend his leg fully, although as the medical evidence shows, he does in fact have good functional use of his right leg, although limited in squatting.
114 He swore that he had not played his customary two or three rounds of nine holes of golf per year since the injury because of the pain that would be attendant upon walking long distances.
115 He also said that he used to enjoy playing sport with his two young boys around the home and that it “saddened him” that there was no way he could get out in the evening, i.e., after work, and play any sort of sport with them.
116 This latter topic was the subject of detailed cross-examination and some covert surveillance film. The film taken on 25 January 2009 showed the plaintiff, inter alia, playing with his boys at cricket nets. He is seen over a half pitch length to be throwing a ball and then bowling off one or two steps to one of his sons. He is also seen having a bit of “a bat”. Interestingly enough, he appeared to throw and bowl the cricket ball with his right hand whilst he batted left-handed.
117 The film also showed him using a hand-held compressed air sprayer to kill weeds around the pitch, getting up to a small trot as he completes this task.
118 The plaintiff had told Mr Brearley in October 2008, and Mr Schofield and Mr Kierce in June 2007, that he could not play sport with his children or have a kick, or a bowl of cricket with them.
119 As I say, closer scrutiny of a number of the assertions made by the plaintiff have shown them to be either wrong or exaggerated. Whilst I have no doubt that he is restricted in quite a number of respects concerning his day-to-day life, he is, I think, as much restricted by a state of ennui as much as any sheer physical inhibition.
120 The plaintiff nevertheless says that he is able – with difficulty – to do his job as before. By the end of the day his knee is painful and he needs to rest. He says, however, that he needs to work because he has a large mortgage on the family home and two young boys to educate. I am not sure whether the corollary of the latter points is that he would not be working but for those factors. This was not explored in evidence.
121 The plaintiff says that he is inhibited by his knee and shoulder conditions from prolonged walking, gardening, and other activities, including household maintenance. He says he can no longer walk the longer distances as I have said, and now has difficulty riding a bike which he had regularly done prior to the accident, at least in an attempt to lose weight.
122 There were a number of other matters in the affidavits of the plaintiff and his wife and sister which were the subject of close scrutiny which I need not retail. Again, I observe that the draftsman of such affidavits, and indeed the deponents, cannot always be taken at face value.
123 Another issue upon which I should touch relates to the injury to the plaintiff’s shoulders, particularly the right shoulder, prior to this accident. It was common ground that he had a fall in 2004 and suffered a tear of the rotator cuff for which he required ongoing physiotherapy and analgesia, the former at least up to the time of the accident. The plaintiff said both in his affidavit and in evidence that he nevertheless felt the shoulders were “coming good” at the time of the accident.
124 The plaintiff conceded that after his period of six weeks on crutches, which exacerbated his shoulder problems, they had now reverted to their condition prior to the accident. He agreed that he was taking the same medication now by way of analgesia, as he had done prior to the accident. This medication presumably doubles for both knee and shoulder pain.
125 Thus, the plaintiff says now that the shoulders are:
“More of a problem because of … having to lift myself into the truck
because the knee fatigues.”
126 As a number of doctors have observed, this problem is exacerbated by the plaintiff’s being overweight, a situation with which he has difficulty in dealing.
127 I need briefly say something of counsels’ addresses. I return, firstly, to the issue of the absence of a report from Mr McQueen, or explanation of precisely what his proposed treatment by way of lateral release, as Mr Brearley was told, might entail for the plaintiff’s future knee function. I have already commented that the plaintiff or his physiotherapist have given me no idea as to why the plaintiff has not proceeded with that operation.
128 Plaintiff’s counsel elected to proceed with the application on the basis that the plaintiff’s knee problems had stabilised, notwithstanding the reservations of Mr Brearley and those of some of the other doctors.
129 Mr Brookes insisted that the plaintiff’s knee condition should be seen as having stabilised for the purposes of this application. He submitted that the hearsay description of Mr McQueen’s proposed lateral release operation as being one that may give “some assistance to the plaintiff” did not affect the evidence otherwise that the plaintiff had chondromalacia-osteoarthritis in the right knee and as such it was a degenerative condition that would get worse.
130 Mr Brookes said that the WorkCover Authority had accepted liability for, inter alia, the plaintiff’s knee injury upon an application made by the plaintiff under s.98(c) and s.104B of the Act. Thus, in line with the well-known dicta of Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, that should be taken as indicating an admission that the knee condition had stabilised.
131 That decision, Mr Brookes said, was made on the basis of Mr Kierce’s lone report of the 25th June 2007, although I must say I should have thought that the Authority would have had the report of Mr Schofield as there is evidence to show that the second defendant received his report on the 15th June 2007.
132 It emerged in argument that the plaintiff’s s.98C application was lodged on the 31st May 2007 and payments made in respect to that application on the 6th August 2007. Clearly it was made, in my view anyway, as an administrative decision within the organisation of WorkCover. It was, of course, not made with the benefit of the later medical examinations of the plaintiff. And as I have said, those further examinations have shown at least that the wasting of the plaintiff’s right thigh has apparently resolved. That was not the case when Mr Kierce saw the plaintiff.
133 I do not, in this instance, accept that the fact of the acceptance by WorkCover of the plaintiff’s s.98C claim assists in the determination I am required to make. I also am not persuaded that, as Mr Brookes submitted, that the “preponderance of evidence from all the doctors is … that it is a stable injury”.
134 Mr Brookes then referred to the “pathology” of the injury to the plaintiff’s knee as appears in the various medical reports.
135 He referred to the sundry statements by doctors which he had opened before me, that there was evidence of chondromalacia patella of the right knee and he relied on those that suggested further operative intervention may be needed.
136 It is to be noted though that there are differences of opinion about some of these matters. I have already mentioned that of the maltracking of the patellae. Then there is a body of opinion that asserts that the chondromalacia of both patellae was pre-existing. Presumably it would be said that this accident rendered the plaintiff’s knee symptomatic.
137 Then again, Mr Brearley, on viewing the MRI, said that there was some evidence of chondromalacia patella but no chondral damage, whilst Dr Baker asserted that there was.
138 In his concluding address, Mr Scanlon, apart from reiteration of the problem of the absence of evidence as to Mr McQueen’s opinions and findings, concentrated almost entirely on the consequences to the plaintiff of his knee impairment. He did not refer to any of the medical reports, apart from that of Mr Brearley, at all.
139 He pointed at length to the concessions made by the plaintiff in cross- examination and submitted that the consequences as claimed originally by the plaintiff were either untrue or exaggerated.
140 He referred to the plaintiff’s working full-time in his former job for now some two-and-a-half-years, and cited a passage from the reasons of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd (supra), (at para 24).
141 He ultimately submitted, that on all the evidence, the plaintiff had not satisfied the test required, and cited in s.134AB(38)(c) of the Act, namely:
“An impairment or loss of a body function … shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence … is, when judged by comparison with other cases in the range of possible impairments or losses of a body function … may be, fairly described as being more than significant or marked, and as being at least very considerable.”
142 I have come to the conclusion that the plaintiff’s injury to his right knee, and the partial consequences to his right shoulder, whilst they are certainly significant, do not otherwise meet the test required. The application will be dismissed.
143 I will hear argument on the question of costs.
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