Itin v Linfox Armaguard Pty Ltd
[2011] VCC 1448
•8 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05815
| MAX ITIN | Plaintiff |
| v | |
| LINFOX ARMAGUARD PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6, 7 December 2011 |
| DATE OF JUDGMENT: | 8 December 2011 |
| CASE MAY BE CITED AS: | Itin v Linfox Armaguard Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1448 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Injury to right knee – credit of the plaintiff –
prognosis for the development of arthritis – whether consequences ‘very considerable’.
CATCHWORDS – Serious injury
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB(16)(b)
JUDGMENT – Leave granted in respect of pain and suffering damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with | Victorian Compensation |
| Mr L R Paine | Lawyers Pty Ltd | |
| For the Defendants | Ms A C Ryan | Lander & Rogers |
| HIS HONOUR: |
1 From about 2001, the plaintiff, Max Itin, worked for the first defendant or its predecessors in manual work, lifting and manoeuvring metal vaults containing coins. The vaults were heavy and, as a result, it is accepted that he suffered various injuries, including to his right wrist, lower spine and right knee. Only the knee is the subject of this application.
2 While it is not completely clear from the evidence, it appears that he had pain in the knee in 2004 and 2005, and on 16 August 2005, suffered a significant increase in that pain. He was referred to an orthopaedic specialist, Mr Howells, who performed an arthroscopy on 4 November 2005.
3 He claims he has had ongoing pain and restriction to the present, and his capacity to enjoy a range of recreational and sporting activities is restricted.
4 There is medical evidence to the effect that he has damage to cartilage of the medial femoral condyle of the right knee which will be progressive and degenerate.
5 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of employment on or about 16 August 2005. The body function said to be lost or impaired is the right knee. The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering only.
6 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from a loss or impairment of the body function are at least very considerable and more than significant or marked.
7 I must consider the consequences to this particular plaintiff viewed objectively arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body functions.
8 The plaintiff and a supporting lay-witness, Mr Taradas, and consulting surgeons, Messrs Mangos and Myers, were called to give evidence and be cross-examined. In addition, medical reports, radiology reports and various affidavits were tendered into evidence. I have read all the tendered material.
Relevant Background
9 The plaintiff was born in the Ukraine and is now thirty-two years of age. He came to Australia in 1993. He completed VCE in Australia and then undertook an Advanced Diploma in Banking and Finance, which he completed.
10 He commenced employment with the defendant in January 2001. The work involved heavy and repetitive lifting and manoeuvring of metal vaults containing coins from ticket machines on trams and trains. I shall not describe the plaintiff's work activities in detail, as it is accepted by the defendants that the injury to the plaintiff's right knee occurred in compensable circumstances.
11 Prior to his injury, the plaintiff said that he enjoyed a range of recreational and sporting activities. According to his evidence, he used to enjoy hiking and camping with his wife and he used to go to the Grampians and Wilson’s Promontory. He said he also used to snow ski each year with a group of persons at Mount Hotham for about a week. He said he and his friend, Oleg Taradas, also used to work on cars and car sound systems together.
12 The plaintiff further alleges that in addition to his right knee injury, he also suffered injury to his right wrist and lower back. He has had some resolution and improvement in those injuries and they were not proceeded with as satisfying the serious injury threshold.
The Right Knee Injury and its Consequences
13 According to the plaintiff's affidavit, from about 2003, as a result of his work duties, he suffered low-grade discomfort in the right knee, particularly upon squatting. He said that the pain gradually worsened.
14 On 16 August 2005, the pain became much worse in the course of his employment and as a result he went to see a doctor, Dr Harris, at the Bridge Street Clinic on 18 August 2005. That doctor placed him on light duties, arranged for x-rays of his right knee and referred him to physiotherapy.
15 According to a clinical note, Exhibit 2, of the plaintiff's subsequent treating general practitioner, Dr Lebedev, of 28 April 2003, there is reference to the plaintiff suffering an injury to his right leg, two years before that attendance, while lifting at work. According to the note, the plaintiff complained of right knee pain and the entry queries “meniscal damage”. It further refers to a note, "X-ray ultrasound, re (refer) to Mr Elliott”.
16 The plaintiff could not remember this incident or his attendance upon the practitioner. In any event, he remained in full-time manual employment without any further medical attendances. I assess this incident as minor in the scheme of things.
17 After first attending his general practitioner, he continued to work but the pain did not improve. An MRI scan of 20 September 2005 concluded:
"Fissuring of the cartilage in the posterior inner aspect of the medial
femoral condyle - otherwise examination normal."
18 The plaintiff was referred by his general practitioner to Mr Howells, orthopaedic surgeon, on 14 October 2005. When first consulted, the plaintiff complained of constant pain, varying in severity from day to day. At that time, he was only on light work activities. Mr Howells performed an arthroscopy on 4 November 2005. According to the report of Mr Howells, the findings on arthroscopy were:
"… an area of local joint surface damage was noted on the medial femoral condyle to the mid and posterior aspect. A couple of small loose chondral bodies were removed from the knee which had obviously come away from this area and unstable articular cartilage was debrided until the area was generally smooth."
19 The plaintiff subsequently returned to see Mr Howells in August 2006. According to his report, the plaintiff complained that he continued to have pain in his right knee which was medial and lateral and parapatellar in location but always present posteriorly. Mr Howells said the history obtained was that this would occur with prolonged standing and driving, and the plaintiff reported occasional swelling and difficulty with bending the knee.
20 As a consequence, Mr Howells ordered a further MRI scan which showed that there was minimal thinning of the articular cartilage overlying the medial femoral condyle but there was no other abnormality present in the joint. Specifically, there was no evidence of lateral meniscal tear or any obvious patellofemoral chondral pathology.
21 Mr Howells said he thought it was likely that the plaintiff had suffered problems relating to the known chondral damage on the medial femoral condyle and with possible mild patellofemoral dysfunction.
22 Mr Howells, having examined the further MRI scan, determined there was no further surgery which he could offer the plaintiff. He said the physical effects of the plaintiff's right knee condition were having a minor impact on his current employment when he last saw him in 2006. He said that the plaintiff did not report any impact on social, recreational or domestic activities with respect to the right knee, although Mr Howells said that he suspected he might have had difficulty with repetitive bending and squatting. There is no more current report from Mr Howells.
23 Because of the ongoing problems with the right knee, the plaintiff sought a second opinion from Mr Haw, orthopaedic surgeon, in September 2008. According to that practitioner, the presenting history was of problems on descending stairs and walking down hills. The plaintiff said he could not bushwalk, and hiking could not be undertaken in the same manner as before. The plaintiff told Mr Haw that he found it impossible to squat and could not jump, and that he had to give up badminton and indoor soccer.
24 Having examined the plaintiff, Mr Haw concluded that he had originally suffered an injury to his knee at work, probably sustaining chondral damage to the medial femoral condyle. He said the plaintiff was having recurrent problems with his knee which may be an extension of the problem on the medial femoral condyle, or possibly the patellofemoral area. He suggested that the plaintiff undertake further arthroscopic surgery. He said the knee should not prevent him from doing work other than heavy work or work that involved him working in a squat position or ascending or descending stairs.
25 Further, in a letter to the general practitioner of 4 September, Mr Haw suggested the possibility of cartilage grafting which would depend upon the findings of an arthroscopy.
26 The plaintiff has had no further operative intervention, in particular no further arthroscopic nor cartilage grafting procedures. Such cartilage grafting procedure was described subsequently in evidence by Mr Myers as a very significant procedure, with the prospect of the patient having his lower limb immobilised for a period of three months and only to be undertaken if the prospects of a good outcome were strong. Such grafting has not been referred to in the reports of the more current practitioners and is apparently not part of any proposed treatment regime.
27 According to the plaintiff, the pain in his right knee has persisted through to the present time. He states he sees his general practitioner, Dr Lebedev, each month or so. That doctor prescribes Panadeine Forte and Mobic but he only takes those medications about once a fortnight. He says that he does not like to ingest painkilling or anti-inflammatory medication. He has not seen his general practitioner for some months. He also receives massage therapy on a monthly basis. He is not seeing any specialist practitioners.
28 According to a report of his current treating general practitioner, Dr Lebedev, the plaintiff is incapable of manual unrestricted labour. He is further unable to squat, kneel or lift any heavy objects. He described the plaintiff as having chronic pain in his knee, impeding his ability to drive and affecting his concentration in his present job. He also says the plaintiff suffers chronic insomnia due to the pain. He says the plaintiff is unable to walk or stand for more than twenty minutes and is unable to run at all, which affects his fitness level and leads to weight gain. He says he cannot lift his three-year-old daughter and cannot play with her as he would like to. He is unable to engage in sports such as badminton and bushwalking. He said that the plaintiff may benefit from further surgery but that his knee would never be 100 per cent.
29 In terms of his employment, it is the opinion of all of the practitioners that he is not able to return to the heavy manual work which he enjoyed before injury.
30 In 2006 however, he was promoted to a sedentary position as a funds co- ordinator with the first defendant at its head office. As a consequence, the money he earns now is greater than before injury. There is no evidence of him having any time off work from his employment. He drives to work and back each day for two hours using his right leg upon the accelerator and brake.
31 At the present time, according to the plaintiff's evidence, he suffers constant pain and has restriction as follows:
• in standing or sitting for long periods of time; • from being on his feet for twenty minutes or more; • twisting involving the use of his right leg; • squatting and kneeling;
• he says his sleep is affected and that his knee is worse in the morning and in cold weather; • he says his physical relationship with his wife is affected. 32 According to his affidavit, he says, in relation to his involvement with motor vehicles:
"Prior to my work injury I enjoyed meeting up with friends weekly to work on cars. Since my work injury I have tended to avoid working on cars as a result of the difficulties I experience with each of my right hand, right knee and back."
33 In terms of his outdoor activities, he says:
"Prior to my work injury I enjoyed walking and hiking. My wife and I used to go to the Grampians and Wilson’s Promontory every couple of months to do hiking. Since my work injury I have tended to avoid this due to the pain I get in each of my right knee and lower back from walking for a prolonged distance. My wife and I also used to enjoy going to the Dandenong Mountains on a regular basis to do hiking for a couple of hours. Since my work injury I have tended to avoid going."
Further:
"I enjoyed going skiing, playing badminton, playing indoor soccer and swimming about once a fortnight. Since my work injury I have tended to avoid these activities as they tend to cause increased pain in each of my right hand, right knee and lower back."
34 He complains that he finds walking on sand, and on uneven surfaces, difficult. He says he was unable to look after his daughter in the same manner as before, although, in the course of cross-examination, he accepted that for a period of approximately three months at the end of 2010 early 2011, he looked after his daughter while his wife was away on secondment, returning only on the weekends.
35 In addition to the affidavits of the plaintiff, affidavits were tendered by his wife and friend, Mr Oleg Taradas, which were largely supportive of the plaintiff's complaints of pain and restriction in his right knee.
Medical Opinions
36 I have already referred to the findings and opinions of the general practitioner, Dr Lebedev, and the treating orthopaedic specialists, Messrs Howells and Haw.
37 The plaintiff was examined by Mr Khan, orthopaedic specialist, in July 2006. That practitioner had not seen any of the MRI scans and was unable to give a definitive diagnosis of the plaintiff's right knee problem. His opinion is of little assistance.
38 The plaintiff was examined at the request of his solicitors by Dr Sutcliff, occupational physician, in July 2010. The plaintiff complained to her of constant aching in the right knee and problems particularly on ascending stairs. Dr Sutcliff had recourse to the MRI scans of 2005 and 2006. She said that she believed the plaintiff had sustained the onset of right knee pain and, subsequently, left knee pain as a result of his employment, where he performed repeated squatting and rotation, while repeatedly lifting in his occupation as a cash processor over nine years. She said he had abnormal findings of loss of cartilage with a large defect on the medial femoral condyle on the MRI scan of 2006. She said that he had no capacity to work in manual employment and that the persisting pain in his right knee may eventually impact adversely on his occupation, but it did not currently do so. She said that driving distances between his home and work increased knee pain. His prognosis was poor and there was likely to be progression of the work-related condition. She said a further MRI scan of the right knee was required to assess the current situation.
39 The plaintiff was examined by Mr Shannon, orthopaedic surgeon, in September 2008. His report is now somewhat dated. The plaintiff complained to Mr Shannon of his right knee being painful with clicking at times, although there was no giving way. Mr Shannon said that the plaintiff had undertaken arthroscopic surgery for a chondral injury to the medial femoral condyle of his right knee. He said that his right knee remained symptomatic, although he did not have any significant mechanical symptoms. He said that he did not expect that if the plaintiff was to undertake chondrocyte transplant, he would regain a full capacity to perform work involving kneeling or squatting. He said there were no significant abnormal clinical findings other than the mildly abnormal findings seen on the MRI scan. Notably, Mr Shannon has not seen the MRI scan of 2010, nor was he asked to comment on the plaintiff's future.
40 The plaintiff was examined by Mr Mangos, general surgeon, in April 2011. By that time, an MRI scan of 20 December 2010 had been obtained. That scan said that the medial meniscus was intact but here was a full-thickness 8 x 4 millimetre chondral ulcer involving the inner weight bearing surface of the medial femoral condyle. The medial compartment articular cartilage was otherwise normal, as was the medial collateral ligament.
41 In addition to providing a report, Mr Mangos gave evidence before me. He is a general surgeon and not an orthopaedic surgeon. His career has involved mainly abdominal surgery but for a time he worked as a general trauma surgeon. He now principally undertakes medico-legal work. According to Mr Mangos' examination, the plaintiff did not walk with a limp. He said the plaintiff had suffered right femoral condyle damage with ulceration persisting. He said that he thought that his major problem was with the right knee and that he had chondral damage which would undoubtedly worsen with time. He considered his current position to be fairly stable. He thought that that chondral damage was the major cause of the plaintiff's pain. He said the plaintiff was not fit to work in full-time unrestricted manual or pre-injury employment and thought that the plaintiff's injury would interfere significantly with his recreational and sporting activities, but also with domestic and social activities.
42 He said:
"His main problem appears to be with the right knee where he has chronic pain and early cartilage damage over the femoral condyle. This most likely will worsen with time and will continue to affect his ability to perform physical work and interfere generally with daily enjoyment of life. He may well develop early and relatively severe osteoarthritis in the future."
43 In the course of evidence, Mr Mangos described the injury. He said an ulcer or gap in the lining of the cartilage was seen over the round ball of the femur (the medial femoral condyle) as it met the knee. He said that the ulcer was not large but was significant and was full-thickness; that is, to the bone. He said he could not be sure of the rate of progress of the degeneration in the right knee but said that the plaintiff was a young man and it was likely to continue to degenerate. He was asked to compare the 2006 to the 2010 MRI scans and he said there had been significant progression of the cartilage loss. He said that any such damage would be exacerbated by the use of the knee, including by walking or standing.
44 The opinion of Mr Dooley as to the future of the plaintiff's knee was put, and he said that he did not agree with an opinion that there would not be degeneration in the knee.
45 Evidence was further given by Mr Myers, general surgeon. Again, he is a general surgeon, although he has worked as a vascular surgeon. According to his report, he said the plaintiff had suffered damage to the articular cartilage of the medial femoral condyle of the right knee. He said he would not be able to return to pre-injury employment. He said he should be able to cope with his present level of employment into the distant future. He said his social, recreational and domestic activities would be restricted. Significantly, he said that there would be progressive deterioration of the arthritis within the knee joint.
46 Subsequently, he examined the MRI scan in 2010 and said that the MRI showed a small full-thickness defect of the articular cartilage of the medial femoral condyle. According to his report, having examined the scan, his opinion was that there was a permanent loss of integrity of the plaintiff's right knee. He said it was virtually certain that this would lead to the development of significant osteoarthritis within the knee joint, probably at some time within the next five years.
47 In the course of his evidence, Mr Myers resiled somewhat from that opinion by saying that the osteoarthritis would develop possibly at some time in the next five to fifteen years. He said that his view of the progress of the deterioration in the condition over the period was because that was the intrinsic nature of an injury. He was also asked to comment on the opinion of Mr Dooley, and said as follows:
"I think it is difficult to determine whether the 'consistency and intensity of his ongoing pain' and his described disability are greater than what I would expect to see for his condition.' I cannot argue with his opinion that the future treatment will be difficult. I also agree with his opinion that there will be future progressive osteoarthritis developing within the medial compartment of the knee. I agree with his opinion that 'employment may have been a continuing factor to the development of the condition or to the aggravation of the underlying condition' but do not agree with his opinion that ‘I do not believe that I could state that the continuing factor has been significant.’ “
48 Mr Myers emphasised that the development of osteoarthritis in a person of the plaintiff's age was more rapid.
49 Finally, the plaintiff was examined on behalf of the defendant by Mr Michael Dooley, orthopaedic surgeon. He had available to him all of the relevant MRI scans. He said the arthroscopic and MRI examinations of the knee showed a focal area of articular cartilage loss over the weight bearing medial femoral condyle. He said:
"It is possible that with repetitive kneeling and squatting articular cartilage damage could occur or aggravation of any underlying damage could occur. Mr Itin noted the onset of the symptoms almost six years ago. While I would expect him to note some difficulty with a lot of impact activity and with a lot of kneeling, squatting and stair use, it would be my observation that the constancy and intensity of his ongoing pain and his described disability are greater than I would have expected to see for his condition. I would have expected Mr Itin to be able to ride an exercise bike and to have been able to swim without any significant difficulty. I think that it would have been reasonable to state that in regard to treatment there is no scientifically based management for this condition. The option of articular cartilage grafting surgery can be considered but whether or not such treatment alters the natural history of the condition is unclear. In fact no one can be truly sure of the prognosis in this sort of condition. It would be accepted that in some patients the degree of articular cartilage damage will increase and that possibly a more diffuse, slowly progressive osteoarthritis of the medial compartment of the knee may occur over a long period of time."
50 He said that he believed the plaintiff would continue to note some intermittent right knee pain which would interfere with his ability to undertake active impact pursuits. He said it would be difficult for the plaintiff to regularly kneel and squat, but he said it would be difficult to make an accurate prognosis.
51 As I shall shortly explain, much of this application depends upon the prognosis for the plaintiff's right knee. Of those doctors who have seen all the radiological scans and examined the plaintiff of more recent times, on the one hand Messrs Myers and Mangos say that this condition will deteriorate, although they find it difficult to predict as to the rate of deterioration, each placed significant emphasis on the fact that the plaintiff is young and the effect of that deterioration will be significant to him in the future. According to Mr Mangos, he detected deterioration on the MRI scan. According to Mr Myers, the condition in itself leads to deterioration in the joint.
52 On the other hand, Mr Dooley, an orthopaedic surgeon, is of the opinion that the extent of the pain and restriction is greater than he would have expected for the condition. He said that the prognosis was unsure, although he admitted that some persons with the condition would suffer increased cartilage loss and slowly progressive osteoarthritis.
53 It is significant, in my view, that Mr Dooley did not say that progression of the osteoarthritis would not occur. All he could say was that it would occur with some people but that he was uncertain as to the plaintiff's future.
54 It is difficult to differentiate between the opinions of consultant practitioners who have seen the plaintiff on only one occasion, in particular, where there is no current report from his treating surgeons. It is arguable that there is little difference between the opinions of Mr Myers and Mr Mangos on the one hand, and Mr Dooley on the other hand, given one opinion is that deterioration will occur and the other is that it might. However, considering all of the medical evidence and the history given by the plaintiff to the various doctors, I prefer the opinions of Messrs Myers and Mangos for the following reasons:
•
While they are not orthopaedic surgeons, they have sufficient qualifications and experience to form a diagnostic view based upon the nature of the condition and the findings of the MRI scan;
•
Each is of the firm view that the condition will deteriorate, although unable to say at what rate, while Mr Dooley is uncertain, but says deterioration is possible;
•
In the case of Messrs Myers and Mangos, I had the benefit of hearing them in evidence and hearing their opinions challenged and tested in cross-examination. I am satisfied their opinions withstood that challenge;
•
Further, their opinions are supported to some extent by the evidence of the plaintiff that the condition in his knee, firstly, is not getting better and, secondly, of more recent months, is getting worse.
On balance, I accept the evidence of Mr Myers and Mr Mangos on this point.
The Plaintiff's Credibility
55 For the reasons I shall set out, I have reservations as to the plaintiff's credibility. Despite his claim that his recreational and sporting activities are significantly restricted, he is able to drive for two hours a day in the course of the journey to and from his work. Further, of recent times he was able to look after his daughter while his wife was away over a period of three months. This is contrary to what is said in his affidavit. He has also recently been overseas and admitted to walking and travelling in the course of that trip. He said further that he was unable to hike in the mountains with his wife. It is noted that his wife came to Australia in March 2005 and, given his injury occurred in August 2005, the extent of that walking and hiking could only have been short.
56 Extensive video surveillance of the plaintiff was shown. It is acknowledged by the defendant that in total, 91 hours of video surveillance was undertaken. Surveillance occurred on a range of dates from December 2010 until 19 November 2011. Generally the surveillance showed the plaintiff attending principally two car wrecking yards in Melbourne with his friend, Mr Oleg Taradas. He was seen to carry a toolbox and at times to dismantle parts from the cars in the yards, take them away, and he admitted then to either selling them on e-Bay or using them to repair his or his wife's vehicle. He said he undertook this activity several times a month.
57 He was shown to walk freely without a limp and on one occasion to lean into a car to remove a part and even to lean under the dashboard. On another occasion he was seen to lie under the car to remove a part. He said in explanation that Mr Taradas did the bulk of the work and he was there as much for company.
58 I am of the view that there was nothing significant shown in the surveillance film inconsistent with the plaintiff’s evidence to the Court or in his complaints of pain and restriction to the doctors. Rather, this is an activity which he enjoys and is regularly involved in. There is no mention in his affidavit nor in the histories to any of the doctors of this activity despite him saying that a range of other sporting, recreational and social activities were significantly affected. In particular, he said in his affidavits that he was not able to work on cars as he had done before. It is clear from the video surveillance that he does do some work on cars and is active in obtaining and selling car parts.
59 As a result of all these matters, I have concluded I should have some reservations as to the accuracy and truth of the evidence of the plaintiff and wherever possible seek objective confirmation of his allegations.
Conclusions
60 Setting aside for the moment the evidence of the prognosis for the plaintiff's right knee condition, on the evidence as it stands I would not be satisfied the consequences to the plaintiff as a result of the injury meet the “very considerable” test as the legislation requires. That is because the plaintiff is generally an active person engaged in a significant range of activities. He is in full-time employment, although it is of a sedentary nature and there is no evidence that he requires any time off as a result of his injury. He is able to drive for two hours a day and recently undertook a significant overseas trip. He has modest treatment and medication and is able to look after his young daughter. Further, he has an extensive involvement in obtaining, selling and using motorcar parts.
61 I do however accept that he does have pain and restriction in the right knee as concluded by all the doctors. The real focus of this application is, however, the prognosis for the plaintiff's right knee.
62 I take into account the following matters:
•
The plaintiff has had an injury to his right knee which, despite arthroscopic debridement, has continued to cause some pain and restriction;
•
He is permanently incapacitated from the type of heavy work duties he previously undertook and for some of the more active and strenuous sporting and recreational activities he used to enjoy;
•
According to the medical evidence of Messrs Myers and Mangos, and based upon significant objective signs, including progression of cartilage loss on MRI scan and the intrinsic nature of the underlying injury, the plaintiff faces the gradual deterioration through osteoarthritis to the medial femoral condyle of the right knee;
•
I further accept that such a prognosis is particularly significant in a man now of only thirty-two years of age and that while the rate of the deterioration in the knee is uncertain, it is likely within the next five to fifteen years to lead to significantly increased symptoms and restriction.
63 Bearing these matters in mind, in my view, the consequences of the right knee injury to the plaintiff do reach the “very considerable” level that the legislation requires.
64 Accordingly, the plaintiff's application in respect of pain and suffering succeeds.
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