Jovanovic v Transport Accident Commission
[2010] VCC 572
•25 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03520
| BOJAN JOVANOVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 and 13 May 2010 |
| DATE OF JUDGMENT: | 25 May 2010 |
| CASE MAY BE CITED AS: | Jovanovic v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0572 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment to the right knee.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Riordan with | Zaparas Lawyers |
| Ms K A Galpin | ||
| For the Defendant | Mr P Y Rattray QC with | Solicitor to Transport |
| Ms R N Annesley | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 29 October 2006 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff is the right knee, the application in relation to the spine having been withdrawn during the hearing.
5 The inquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is aged twenty eight, having been born on 7 January 1982 in Bosnia.
10 The plaintiff first came to Australia with his family in about 1994 but returned to Bosnia after a year. He completed his secondary schooling in Bosnia and trained as a fitter and turner. After that training he returned to Australia by himself in 2000.
11 The plaintiff then worked mainly in the building and construction industry and as at the said date he was working for Teslar Constructions (“the company”) doing labouring work, framing and plastering.
12 On the said date, the plaintiff was on the roadway at the back of the car in which he had been a passenger, trying to repair the tyre when he was hit by a car travelling along the road (“the accident”).
13 The plaintiff suffered injury to his right knee, lumbar spine and cervical spine in the accident. He was taken from the accident scene by ambulance to Sunshine Hospital and after a short time, he was transferred to Footscray Hospital where he spent about ten days.
14 In cross examination, the plaintiff was asked whether the bulk of the time he spent in hospital was for investigation of his kidneys. He said there was an examination regarding his kidneys “on the side where he was hit by the car” but he was also treated for “the whole aspect of his injuries” and he could not walk at that time. He was told at the hospital he had suffered an impact to the kidneys but that his kidneys were functioning. He cannot say whether he still has a problem with his kidneys nor can he say if the area in which he has back pain is because of his spinal injury or his kidneys.
15 On 23 November 2006, the plaintiff first saw his current general practitioner, Dr Andrianakis on the recommendation of a friend.
16 Prior to the accident, the plaintiff did not have a treating doctor as he had not had any real health problems. However, it was possible he had attended the Primary Health Care Clinic at Hopper’s Crossing.
17 In February 2007, Dr Andrianakis referred the plaintiff to Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who arranged for further x-rays and scans to be taken of both the plaintiff’s knee and back. Dr Thomas prescribed Lyrica for pain relief and to help the plaintiff sleep. He advised the plaintiff there was a significant problem with his right knee and referred him to Mr Russell Miller, orthopaedic surgeon.
18 The plaintiff first attended Mr Miller on 23 July 2007. Mr Miller confirmed Dr Thomas’ advice and recommended surgery to the plaintiff’s right knee which was performed on 1 October 2007 (“the operation”).
19 The plaintiff continued under Dr Andrianakis’ care and he was referred for physiotherapy to the Hopper’s Crossing Physiotherapy Clinic, where he attended regularly for treatment to assist with his low back, right knee, right shoulder and neck pain.
20 The plaintiff gained some benefit from the operation, however he continued to suffer pain and restriction in his right knee. In cross examination, the plaintiff agreed he told Dr Elder that following the operation his right knee had improved but not entirely
21 The plaintiff saw Mr Miller after the operation but he cannot be accurate about the date and he has not seen him for treatment since. The plaintiff did not go back to Mr Miller after this post-operative examination because “no one suggested it”.
22 The plaintiff thought he had seen Dr Thomas several times but he could not be exactly sure; it was possible he last saw him towards the end of 2007. After that time, Dr Andrianakis took over the plaintiff’s treatment.
23 The plaintiff was referred by Dr Andrianakis to an orthopaedic specialist, Mr Barrett, for review of his low back condition. The plaintiff saw Mr Barrett on one occasion in September 2008. Mr Barrett did not recommend any particular treatment.
24 A letter from the plaintiff’s solicitors thanking Mr Barrett for seeing the plaintiff and paying his account was tendered by the defendant. In cross-examination, it was put to the plaintiff that this examination was in fact organised by his solicitors. The plaintiff denied he had been sent to Mr Barrett by his solicitors. The plaintiff was “one hundred per cent sure” that his lawyer did not tell him to ask Dr Andrianakis for a referral to Mr Barrett.
25 The plaintiff continues to attend Dr Andrianakis for general treatment and for prescriptions. Currently the plaintiff takes Lyrica, Ducene and Tramadol on a regular basis.
26 The defendant ceased to fund the plaintiff’s physiotherapy and psychological treatment so he has just had to manage the best he can with medication.
27 Since the accident, the plaintiff has become depressed because of the severity of his symptoms and because he has been unable to work and engage in normal activities. In 2007, Dr Andrianakis referred him to Mr Tsironis, psychologist, whom he has seen a couple of times.
28 The plaintiff has not worked since the accident. His pre accident work as a plasterer was quite physical. His right knee and back pain would make it impossible for him to return to this job where he had to lift and carry large and awkward sheets of plaster. He often had to carry these sheets over uneven worksites and climb ladders. Because of his right knee condition, it would not be possible for him to be on his feet all day, move safely across the sites while carrying plaster sheets or safely climb ladders, particularly if carrying heavy items. Just driving to worksites would be very difficult because of knee pain if the worksites were not close to his home.
29 It would also be hard to manipulate and carry the plasterboard as that task places a lot of strain on the plaintiff’s back and involves a lot of twisting and awkward back postures. There is also a lot of strain when placing and fixing the plaster to the framework. As with his knee pain, driving longer distances causes and increases his back pain which would mean that the plaintiff’s back would be very bad even by the time he got to some worksites.
30 Prior to the accident, in addition to plastering work, the plaintiff did some building type work like framing. He mainly worked for the company, sometimes as an employee and at other times being paid as a sub-contractor. He also did other work at times under his ABN for other contractors and he was hoping to do more of this type of work had he not been injured.
31 The plaintiff deposed that he had been informed by his solicitor that some of the income he earned from the company was not accurately disclosed in a taxation return. The plaintiff did not know exactly what the problem was so his solicitor notified the Taxation Office on his behalf so that it could be corrected. The plaintiff was unsure how this had happened but he assumed it was accidental because of the different methods utilised by the company to pay him and how the payments were recorded.
32 There was extensive cross-examination in relation to this matter.
33 Payslips which accompanied the Claim Form sent to the TAC indicated the plaintiff had an income of $21,000 in the first half of the financial year 2006- 2007 in which the accident occurred in October. However, the plaintiff’s work invoice book which was tendered showed earnings of $13,000, a figure which also appeared in the plaintiff’s taxation return.
34 In the 2006-2007 financial year, the plaintiff received payments of $31,449.00 from the TAC. He worked for the company in the four months before the accident and was paid $13,263. The plaintiff could not be sure he had worked continually from 1 July to the date of the accident. He had some holidays four days prior to the accident.
35 At the time of the accident, the plaintiff was being paid $216 a day and he charged his services out to the company using invoices from the invoice book, following receipt of which the company transferred the money into the his account.
36 The plaintiff could not explain why and how these payslips had been calculated in this manner setting out earnings of $21,000.
37 Further, the plaintiff was unable to explain why he had declared only $591 in DSS payments in the 2005-2006 financial year when his Commonwealth Bank records showed total Newstart payments of $2,148. The plaintiff explained that his taxation documents were completed by his accountant.
38 The plaintiff was cross-examined about his earnings in the financial year 2005- 2006. He worked most weeks in that year, in which he earned $7,965. For part of the year he was working as a contractor and the other part he was employed. He did not believe he had long periods off work. The company was his main employer. He could have had a total business income of $11,000 for that year but “he could not guarantee it.” There was a period when he did not work and was on Centrelink benefits, but mostly he worked.
39 The plaintiff disagreed that on average he would have earned $271 a week in that year. He would not work one week for $200 –“that was ridiculous and would not pay for his petrol to get to work”.
40 When it was put to the plaintiff that his mortgage repayments in that financial year were $18,200 and his earnings were only $15,500, the plaintiff explained that he borrowed money to make his repayments.
41 The plaintiff has been unable to return to any form of work since the accident. He believes he is only really suited to physical type work and cannot think of any other type of work he could perform.
Pain and Restriction of Movement
42 The plaintiff deposed that since the accident, he has continued to suffer significant pain in his low back and his movements are restricted. The muscles in his back bunch up and lock in a very painful way. The pain radiates down into his left leg as far as his knee and is made worse by prolonged sitting or standing, bending, twisting and lifting.
43 In his second affidavit, the plaintiff deposed that his back pain bothers him the most. He has back pain all the time but it is variable.
44 In cross examination, the plaintiff said that his back pain is constant and restricts his movement normally. It makes things difficult and creates problems. He is able to bend with great difficulty. Every minute of extra standing gives him difficulty. If he is sitting for a long time he experiences pain in his back and then he uses tablets to soothe it.
45 The plaintiff deposed that despite right knee surgery, he continues to suffer pain and restriction in his right knee. On occasion his knee feels weak and will give way and he experiences difficulty with kneeling and crouching. His knee pain is worsened by standing and being on his feet for extended periods.
46 This pain also seems to flare up with changes in the weather and increases if the plaintiff walks up stairs or if he kneels or crouches then the pain and weakness in his knee also makes it difficult to get up.
47 The plaintiff deposed in his second affidavit that his right knee pain is also very bad (in addition to his back pain), particularly if he walks or drives or stands for extended periods. When he has to go out for a while or drive a longer distance, like from his home to the city, he takes extra medication to keep the pain under control as he knows it will get very bad by the time he returns home. Even with the additional medication, his pain still increases and makes it difficult for him to get around and it is hard to tolerate by the time he gets home.
48 In cross examination, the plaintiff said that since the operation his knee is more reliable, “not as wobbly or unsecure”. Knee pain is permanently present but of different intensity. This pain causes him to limp if he stands for a longer period or if he walks for a longer time.
49 The plaintiff deposed that he continues to feel dull pain in his right shoulder and up into the right side of his neck. Certain movements cause pain and are somewhat restricted, and the pain is made worse by activity.
50 In his second affidavit, the plaintiff deposed that right shoulder pain is also a problem (in addition to back and right knee pain) but that is not something that affects him every day. However, it is bad enough when he does things with his right hand that he does not believe he could use it to carry heavy items.
51 In cross examination, the plaintiff confirmed that most of the time he has problems with his right shoulder and can lift his arm above his shoulder but with difficulty. Every day it gives him difficulty but on some days he has less pain.
52 When asked whether it was his back pain that now bothered him the most, the plaintiff said it was the pain in his back and knee that bothered him the most; it depended on the day.
53 The plaintiff is bored, depressed and stressed as his injuries have interrupted his working life and his plans for his future and social life. He is unhappy with his life; he feels he cannot go out and meet girls and enjoy himself as much as he did before. His pain, mood and frustration have prevented relationships developing. He feels isolated, angry and lonely because he is not married like his friends and he does not see that sort of future for himself. At times he cries over this loss and the continuing pain. He would like to have counselling but he cannot afford it.
54 The plaintiff thinks about the accident a lot and how it has ruined his life, turning him from a fit, energetic and happy person to someone who has trouble looking after himself. At times he has nightmares about the accident and he is tense when in a car.
Activities
55 The plaintiff lives alone and has to manage his household tasks by himself with great difficulty as he no longer receives funding assistance. He paces himself with household tasks to avoid flaring up his pain.
56 He cooks by making himself a sandwich. He does his own shopping and makes the beds and cleans the house when he is able to. He tidies up the bed and straightens the linen a bit.
57 If the plaintiff has to vacuum he does one room a day at a time and another room a few days later. At times he gets assistance from friends with tasks that are very difficult, like doing larger amounts of shopping and cutting the grass in the backyard.
58 Before the accident, the plaintiff was earning good money and felt he was getting ahead, having already purchased a home. He had done some of the tiling work on his house and had plans to improve it further, working on it himself to make an outdoor area and work shed. He is no longer able to carry out any further improvements or maintain his house and he cannot even do the gardening. Because he cannot work, he is having trouble making repayments and may lose his house. He made a total and permanent incapacity claim on his insurance as he was having problems making these repayments.
59 The plaintiff used to do service work on his car but his back makes it too difficult for him to do it effectively.
60 Prior to the accident, when not working, the plaintiff had a social game of soccer with his friends and went out to clubs and had fun. Although he still likes to see his friends, he now cannot participate in those activities as he previously did and his level of social activity has been reduced. The plaintiff meets up with friends when he can; sometimes two or three times a week but sometimes he goes for three weeks without going anywhere.
61 In cross-examination, the plaintiff said he watched soccer and would kick a soccer ball back if it got near him but he did not play ‘kick to kick’ with his friends at the soccer club. He still went out to clubs, having gone maybe three or four times in the last year.
62 The plaintiff denied that he had been working when asked about Dr Elder’s examination in June 2009 when Dr Elder reported the plaintiff had plaster marks on his clothing and calluses on his hands. The plaintiff has not looked for work since the accident.
63 In cross examination, the plaintiff said that he probably does not limp every day but he would limp after sitting for a long time, such as sitting in court.
Video Surveillance
64 When shown the first short film taken on 4 February 2010, the plaintiff said he was limping because he had been driving a bit and there was also a change in the weather. It was a long drive to the appointment. Once he gets the type of pain that makes him limp he takes medication. There is a possibility he has to rest.
65 It was put to the plaintiff that when he got into his car in the second film, he was shown taking all his weight on his right knee. The plaintiff said he could not be specific about it but he thought he was holding his left hand on the steering wheel and his right hand on door.
66 When it was suggested to the plaintiff that he did not appear to be restricted in movement when driving his car and that he moved freely in the supermarket car park, he explained that he always takes pills that settle down the pain. He could remember taking them on that day as he always takes tablets in the morning, at midday and in the afternoon.
67 When it was put to the plaintiff that he had stepped across the kerb without any problem, he said he experienced pain. When it was suggested he was walking across the car park without a limp, he said he walked like he walks today. Whether it is limping or not, he did not know.
68 It was put to the plaintiff that he in fact did “some sort of a jump” on his right leg to get his car keys out of the pocket of his cargo pants, but the plaintiff explained that he was simply walking when he took out the keys.
69 In re-examination, the plaintiff said his knee sometimes gives way. He has problems with walking and standing. He had a strong pain in his back radiating into his leg whilst sitting in the witness box.
70 The plaintiff confirmed he had had problems with unhappiness and depression and that was still a problem for him.
The Plaintiff’s Medical Evidence
71 The plaintiff saw Mr Hotchin, physiotherapist, on 9 and 13 November and 1 December 2006 after he was discharged from Western Hospital on 6 November 2006.
72 The plaintiff has attended Dr Andrianakis since 23 November 2006. On initial examination, the plaintiff described feeling unwell since the accident with generalised aches and pains and concern about “the near tragedy”. He also complained of difficulty sleeping. The plaintiff was prescribed Murelax, as well as Tramal, and he was referred for liver function tests.
73 On 30 November 2006, the plaintiff’s bloods were clear but he was complaining of ongoing severe right knee pain with stiffness as well as lower back pain and he was referred to physiotherapy.
74 Over the following weeks, the plaintiff was not coping with normal activities of daily living and required home help from the TAC.
75 On 19 February 2007, the plaintiff was referred to Dr Thomas for an MRI scan of his right knee. The plaintiff suffered continuing stress and anxiety because of his pain and he was referred to Mr Tsironis, psychologist, for further treatment.
76 As of May 2009, the plaintiff was taking Lyrica, Tramal and Panadeine Forte. Dr Andrianakis noted the plaintiff remained very depressed and unwell. His mobility was very restricted and he was unable to do prolonged manual duties due to the pain in his right dominant upper limb with stiffness. At that stage, Dr Andrianakis requested the TAC reinstate hydrotherapy and physiotherapy treatment.
77 In his most recent report of May 2010, Dr Andrianakis confirmed the plaintiff’s serious right knee injury remained painful and stiff despite months of rehabilitation. Due to the severe pain and the need for daily analgesics, causing drowsiness and confusion, in Dr Andrianakis’ view, that injury on its own prevented the plaintiff from returning to work as a plasterer.
78 Dr Andrianakis noted the plaintiff also suffered injuries to his neck, shoulder, lower back and hip. The lower back pain remained problematic with pain and stiffness. In Dr Andrianakis’ view, the pain into the plaintiff’s left hip could be referred from his lower back, as well as pain caused by local pathology. Dr Andrianakis noted that injury had not recovered despite months of rehabilitation and it on its own prevented the plaintiff returning to work as a plasterer, especially when required to carry weights and climb up and down stairs.
79 Dr Andrianakis noted a third injury included the plaintiff’s upper spine. Dr Andrianakis concluded all of those injuries remained severe and problematic. The injuries as described were significant and the pain, stiffness and use of medications to manage these injuries all combined resulted in the plaintiff being unfit for a return to work as a plasterer.
80 Dr Thomas saw the plaintiff on referral from Dr Andrianakis in April 2007. On examination, the plaintiff complained of everything being a problem. He had lower back pain, more on the left than the right. He had right shoulder pain. He had pain in his left lower flank and pain in the right lateral aspect of his knee. At that time he was taking Tramadol and Panadol and having physiotherapy twice a week and hydrotherapy three times a week. The plaintiff reported he had not improved.
81 Examination of the plaintiff’s back was not possible as the plaintiff was not able to stand up unaided and he stated he was not able to flex. There was a small effusion in the right knee and the plaintiff was tender over the right joint line laterally. Stressing the lateral compartment was painful but there was no meniscal click. Unloading the lateral compartment was pain free and comfortable and the plaintiff had a good range of right knee movement.
82 Dr Thomas had a great deal of difficulty working out the nature of the underlying pathological process. He noted the plaintiff presented very much as a mechanical problem relating to his right knee and it was not possible to “get a good feel” as to what was happening with the plaintiff’s lower back and left flank.
83 Dr Thomas thought further investigations were warranted. At that stage, he thought the plaintiff presented as being totally incapacitated relating to work. He thought it was not possible to determine the cause of delayed improvement without appropriate initial investigations.
84 Mr Russell Miller, orthopaedic surgeon, first saw the plaintiff on referral from Dr Thomas on 23 July 2007.
85 At that time, clinical examination revealed an effusion in the right knee, medial joint line tenderness and a click during movement. There was an increased anterior drawer and pivot shift.
86 Mr Miller noted the bone scan showed increased uptake suggestive of bone bruise or more significant chondral damage. He also noted the MRI confirmed an anterior cruciate ligament tear and large bucket handle tear of the medial meniscus.
87 Mr Miller operated on the plaintiff’s right knee on 1 October 2007. On examination under anaesthesia, there was a Grade II medial ligament laxity, Grade II anterior drawer and a Grade II pivot shift. The plaintiff underwent a resection of a large bucket handle tear of the medial meniscus and debridement of the knee.
88 It appears Mr Miller last saw the plaintiff on 12 November 2007, when the plaintiff complained of ongoing back ache and discomfort and pain. He also complained of ache, discomfort and some feelings of insecurity in the right knee and the plaintiff advised he was having ongoing physiotherapy treatment.
89 Mr Miller diagnosed a musculoligamentous strain to the lumbar spine, in relation to which he thought the prognosis should be good. He considered the plaintiff had also suffered a significant right knee injury with a tear to the anterior cruciate ligament, medial ligament and medial meniscus tear. He thought at that time it was too early to offer a long term prognosis and that there was a possibility the plaintiff may require reconstructive surgery. He thought the plaintiff would have a considerable requirement for further treatment with analgesics, anti-inflammatories, physiotherapy and a gymnasium program. He did not believe the plaintiff would be fit to contemplate a return to work for at least six months as he may require reconstructive surgery.
90 Mr Charles Flanc, vascular and general surgeon, initially examined the plaintiff on 3 March 2008, and saw him more recently on 25 November 2009.
91 On re-examination, the plaintiff attended alone and walked slowly with a limp affecting his left leg. The plaintiff told Mr Flanc that this limp related to his back pain, a complaint the plaintiff also made to him on the initial examination.
92 The plaintiff complained that low back pain was the most severe pain, spreading into his left leg and buttock. Right shoulder pain had become more severe and movements had become more restricted, with pain radiating to the right side of his neck.
93 The plaintiff told Mr Flanc the condition of his right knee had improved significantly following the operation, the pain was not as severe as before and only occurred once every two or three days. It was aggravated by walking and going up and down stairs. The plaintiff had not had any episodes of falls but occasionally his knee felt unstable.
94 On examination, movement of the plaintiff’s neck was easily performed and not restricted, apart from slight diminution and extension, which was measured at thirty degrees. Movement of the plaintiff’s right shoulder had deteriorated significantly since the earlier examination.
95 There was no deformity of the lumbar spine. The plaintiff still stood with slight flexion at the waist. There was still diffuse tenderness over the left lumbar region, and to a lesser extent the right. All movements were severely restricted by pain. The plaintiff had difficulty getting up onto the couch but was able to do so eventually.
96 There was no extension lag of the right knee and active flexion was easily performed. Mr Flanc was unable to detect any laxity of the medial or lateral ligaments but noted the slight sag of the lower leg behind the level of the knee. There was anterior cruciate laxity felt and the movement was about half a centimetre and there was no crepitus.
97 Mr Flanc thought the plaintiff’s most severe symptom was his lumbosacral spine. He noted the fractures shown on the CT scan of 30 October 2006 and the presence of disc degeneration at L4-5.
98 Mr Flanc thought considerable pain would have been expected from those fractures initially but they were not serious injuries and the pain usually resolved eventually, although sometimes it could persist for a long time. He noted the MRI indicated those fractures were minimally displaced and would almost certainly have healed and they did not show up on subsequent investigations.
99 Mr Flanc considered the plaintiff’s continuing severe low back pain was more related to an aggravation of the degenerative condition of the lumbar spine at L4-5, although some of the plaintiff’s symptoms were probably influenced by non-organic factors. However, he thought that the physical injuries were significant contributing factors to the plaintiff’s present symptoms.
100 Mr Flanc thought the shoulder itself may not have been injured in the accident but rather the region as a whole was injured, and the plaintiff’s condition may be attributed to frozen shoulder.
101 Mr Flanc still doubted whether the plaintiff had any significant injuries to his cervical spine and thought it was more likely the pain the plaintiff felt was referred from his lower back.
102 Noting the very satisfactory range of movement in the right knee, Mr Flanc thought the plaintiff had some instability but this would not interfere with light activities although as an isolated injury the plaintiff would have difficulties with running or twisting. He considered that the plaintiff’s feeling of some instability was consistent with the injury.
103 In a supplementary report of May 2010, Mr Flanc noted the plaintiff’s knee injury alone would preclude him working as a plasterer. He thought theoretically, the plaintiff would be capable of sedentary duties on a full time basis but there would then be the problems with language in vocational training, but nevertheless Mr Flanc thought it would be appropriate to obtain a vocational assessment.
104 In his view, the plaintiff’s spinal injury alone would also prevent the plaintiff from returning to plastering work. He considered the plaintiff may have a theoretical capacity for light part time sedentary duties although he had poor postural tolerance and any work would have to let him move around as he wished.
105 Despite this theoretical capacity, Mr Flanc thought the plaintiff would have difficulty because of his English and his history of only manual work, and the question was whether he could be retrained. In the event of light part time duties being available, Mr Flanc considered four hours a day on alternate days would be appropriate.
106 The plaintiff has been examined by Mr Grossbard, orthopaedic surgeon, on two occasions: initially, on 6 May 2008; more recently on 9 September 2009.
107 On initial examination, the plaintiff told Mr Grossbard that his knee was much improved since the operation. The plaintiff had occasional pain in cold weather but there was no swelling. The plaintiff continued to have low back pain and he had right shoulder pain.
108 On examination, there was considerable restriction of lumbar movement. There was no effusion of the right knee joint and no wasting of the quadriceps or calf muscles. There was a positive Lachman’s sign and a positive drawer sign associated with the right knee and some mild medial joint laxity. The pivot shift test was positive but McMurray’s test was negative. There was some tenderness over the antero-medial condyle.
109 Mr Grossbard thought the plaintiff had a significant injury to his knee. He had a major bucket handle tear of the medial meniscus in association with a tear of the ACL. At that stage there was no clinical instability but he thought the plaintiff certainly had signs of an unstable knee with a positive Lachman’s test and pivot shift sign.
110 Mr Grossbard thought the persistence of pain and rigidity of the spine was of concern, as one would expect better movement and less ongoing pain at that stage. He thought the plaintiff had suffered psychological injury which needed to be assessed.
111 On re-examination, the plaintiff told Mr Grossbard there had been no change at all. He had increasing low back pain and had also developed episodes of abdominal and head pain. The plaintiff continued to complain of instability of his right knee which tended to give way a couple of times each week.
112 Again, the plaintiff had signs of an unstable knee with a positive Lachman’s test and pivot shift sign.
113 Mr Grossbard confirmed the plaintiff had injuries to his neck, back, right shoulder and right knee consistent with the accident but noted, unfortunately, the situation had been complicated by non-physical injuries which, if anything, increased the plaintiff’s level of incapacity.
114 Mr Grossbard considered the plaintiff incapacitated for virtually any physical work, although he thought the plaintiff had some theoretical capacity for simple sedentary duties. However, given the plaintiff’s background, lack of English and history in manual work, he considered that the plaintiff would have difficulty finding a job, but this was not possible until the psychological and psychiatric aspects of his incapacity became controlled.
115 Dr Paul Kornan, psychiatrist, examined the plaintiff for medico-legal purposes on 27 March 2008.
116 At that time, the plaintiff told him that in addition to his physical problems, he felt very nervous and anxious, tense and angry. He was frustrated at changes in his lifestyle as a result of the accident. He had some flashbacks of the accident and was nervous as a passenger. The plaintiff was then on psychotropic medication.
117 On examination, there were raised tension and anxiety features. There were indications of depression. The plaintiff seemed to be somewhat irritable and potentially prone to being emotionally labile.
118 Dr Kornan concluded the plaintiff’s behaviour showed indications of someone who was anxious and depressed. There were no psychotic features, delusions or hallucinations.
119 Dr Kornan diagnosed an Adjustment Disorder with Depressive Features, a Post-Traumatic Stress Disorder, currently of chronic mild severity, and a specific anxiety phobia about factors relating to driving and being a passenger. Overall, he thought the plaintiff’s psychiatric state appeared to be at a level of chronic moderate intensity.
120 Dr Colman, gastroenterologist, examined the plaintiff on 14 January 2009. He thought the plaintiff had a small impairment on the basis of gastro oesophageal reflux disease.
Investigations
121 A nuclear whole body scan organised by Dr Thomas on 23 April 2007 showed an arthropathy of the right knee, most likely traumatic in aetiology given the plaintiff’s recent history. It was noted that the more focal abnormality in the postero-medial aspect of the knee adjacent to the medial condyle may reflect avulsion injury or an enthesopathy.
122 The x-ray of the right knee of that date showed bone density and alignment were normal. There was no significant degenerative or erosive change seen and no opaque loose body or joint effusion was demonstrated.
123 Investigations of the lumbar spine at that time showed the bony alignment of the lumbar spine was normal. There was no significant loss of disc height or osteophyte formation seen, nor any degenerative facet joint disease or wedge fracture or pars defect.
124 An MRI scan of the plaintiff’s right knee was organised by Dr Thomas on 22 May 2007. It was concluded there was a complete rupture of the anterior cruciate ligament. There was a large bucket handle tear of the medial meniscus. There was small subchondral bone contusion to the lateral femoral condyle.
125 Investigations of the cervical spine at that time revealed mild to moderate sized central to left-sided disc protrusion at C4-5 extending to the left intervertebral foramen. There was mild central disc protrusion at C5-6 and C6-7.
126 The MRI scan of the lumbosacral spine carried out on 22 May 2007 showed mild desiccation of the L4-5 intervertebral disc associated with a mild broad based disc bulge without any neural displacement or contact.
127 Dr Thomas organised a further MRI scan of the plaintiff’s thoracic and lumbar spine on 11 July 2007.
128 There was desiccation partially of the L4-5 disc and no disc protrusion. There was minor disc bulging at L4-5, non neural compressive. It was concluded there was an essentially normal examination of the thoracic and lumbar spine with no disc protrusion or neural compressive lesion evident.
129 Dr Andrianakis organised an MRI scan of the plaintiff’s cervical spine on 9 January 2008.
130 At C4-5, there was a mild to moderate sized central to left-sided disc protrusion, more pronounced to the left, extending to the left intervertebral foramen. The C5-6 and C6-7 discs demonstrated small central disc bulges without any neural contact.
131 Dr Andrianakis organised an x-ray and CT scan of the lumbar spine on 16 August 2008. There was no evidence of disc protrusion or thecal or nerve root compression.
132 Mr Barrett organised an MRI scan of the lumbar spine on 20 September 2008. No major imaging abnormality was demonstrated apart from the suggestion of pars intra articularis defects at the L5 level bilaterally.
The Defendant’s Evidence
Video Surveillance
133 There were two short videos of the plaintiff taken on 4 February 2010 when he attended psychiatrist, Dr Entwisle’s surgery in Richmond.
134 In the first video of some three minutes, the plaintiff was shown to get out of his car, walking and limping slowly, standing outside the surgery having a cigarette and then assisting himself up the stairs to the surgery moving slowly.
135 There was further video surveillance of three minutes and twenty seconds taken by a different operator from a different angle on that date. The plaintiff was shown getting out of his car and limping over the road to the surgery. He then rested on a fence and had a cigarette. He was then shown leaving the surgery about an hour later, limping to his car. The plaintiff then drove a distance, ending up in a supermarket car park at Brimbank. Over about ten seconds, he was shown very briefly standing on the footpath and walking off the kerb towards his car.
The Plaintiff’s Financial Records
136 Counsel for the defendant tendered records relating to the plaintiff’s Commonwealth Bank account in the 2004-5 financial year which set out receipt of Newstart payments deposited in that account of $2,148.
137 Bank records from 10 July 2006 to 20 November 2006 showed deposits from the company totalling $13,263.
138 Also tendered were the plaintiff’s taxation returns for the financial years 2004-5, 2005-6 and 2006-7.
139 In 2004-5, the plaintiff earned $33,939, made up of wages of $26,700, business income of $2,722, Newstart payments of $591 and allowances totalling $3,826.
140 In 2005-6, the plaintiff earned $15,549, made up of wages of $7,965, business income of $4,348 and he received DSS benefits of $3,236.
141 In 2006-7, the plaintiff had a total gross income of $38,660, made up of $31,449 from the TAC and business earnings of $7,211, being payments from the company of $13,263 less expenses.
142 Payslips from the company set out that the plaintiff’s year to date gross pay as of 31 October 2006 was $21,739.
The Defendant’s Medical Evidence
143 Counsel for the defendant tendered reports from the plaintiff’s treaters, Dr Jensen and Mr Barrett.
144 Mr Barrett reported to Dr Andrianakis on 8 September 2008, thanking him for the referral following the accident.
145 The plaintiff described to Mr Barrett back pain from the mid thoracic region down to the lower lumbar area and out into the left buttock to the left posterior side.
146 On examination, Mr Barrett noted the plaintiff was walking slowly and stiffly and without a limp, and he avoided any significant spinal movements.
147 The plaintiff stood with a slight scoliosis to the right with movements of the lumbar spine almost non-existent in any direction and all appeared to cause low back pain into the left buttock. The plaintiff was excessively tender from the mid thoracic to the lower lumbar region, not localised to any anatomical structure. Straight leg raising was to sixty degrees on the right and to forty- five degrees on the left. Power and muscle bulk in the lower limbs were normal and symmetrical and the plaintiff could walk on his tiptoes and heels. All lower limb reflexes were brisk and symmetrical and sensation throughout the lower limbs was normal bilaterally.
148 The plaintiff brought with him the plain x-ray of his lumbar spine taken on 16 August 2008 which was essentially normal. Mr Barrett noted the lumbar CT scan taken on the same day showed no radiological evidence of any abnormality and there was no evidence of any disc nerve root irritation at any lumbar level. He arranged for the plaintiff to undergo a thoracic and lumbar spinal MRI scan on 20 September 2008.
149 Following receipt of the results of these investigations, Mr Barrett advised Dr Andrianakis that there did not appear to be any significant spinal abnormality, disc ruptures or disc bulges throughout the plaintiff’s thoracic and lumbar portions of his spine to account for his ongoing symptoms and his excessively limited lumbar spinal movements.
150 Mr Barrett concluded, if there was no clear evidence of any orthopaedic injury to the plaintiff’s spinal column, then there was really no orthopaedic treatment or suggestion for treatment that he could offer him.
151 By letter dated 2 December 2008, Zaparas Lawyers wrote to Mr Barrett enclosing a cheque “in payment for the initial prolonged consultation to the plaintiff’s back problems”.
152 Dr Jensen wrote to Dr Andrianakis on 29 July 2009, thanking him for referring the plaintiff regarding his chronic pain state following the car accident on 28 October 2006. He noted there were ongoing issues pertaining to the plaintiff’s right neck, shoulder, right thoraco lumbar region and his right knee.
153 The plaintiff reported the severity of pain at eight out of ten and Dr Jensen noted there was a very high level of perceived disability and psychosocial distress in the plaintiff’s pain presentation.
154 Dr Jensen thought the plaintiff was obviously stuck in a chronic pain scenario with its associated physical and psychosocial aspects. The only specific pathology Dr Jensen could find on examination was patellofemoral joint crepitus and some ACL laxity in the right knee. There were no hard signs in the right shoulder neck or thoracolumbar spine, and in particular, there was no evidence of any nerve root or spinal cord encroachment.
155 Dr Jensen commented that once he had the investigations available to him, he hoped he would be able to set in train a chronic pain management program that would have to incorporate both a functional restoration and also psychosocial intervention.
156 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 30 July 2008.
157 The plaintiff told him that his major concern at that time was of constant severe pain extending over the entire lumbar region, more on the left than the right. The plaintiff reported the severity of pain at ten out of ten.
158 In addition, the plaintiff stated he had constant pain over the superior aspect of the right shoulder extending proximally to the right side of the neck.
159 The plaintiff also described fluctuating anterior right knee pain aggravated mainly by prolonged standing and walking. He described no giving way or swelling of the joint, although he had difficulty squatting and running. With prolonged sitting he described the sensation of pins and needles inside his right knee.
160 On examination, the plaintiff presented with a very flat affect, giving the appearance he was somewhat depressed.
161 There was wasting of the right quadriceps. There was no effusion within the right knee. Minimal tenderness was described; however there was a moderate anterior drawer sign with some mild medial compartment laxity, a positive shift test and a positive Lachman’s sign.
162 Mr O’Brien diagnosed non-specific back pain, a soft tissue injury to the right shoulder girdle and a bucket handle tear of the medial meniscus of the right knee with rupture of the ACL.
163 Mr O’Brien noted that investigations certainly confirmed significant intra- articular right knee pathology for which the plaintiff underwent an arthroscopy with improvement but not resolution of symptoms.
164 Mr O’Brien thought there was evidence of restricted lumbar spine movements which he suggested represented non-specific back pain. He considered the plaintiff had some degree of soft tissue injury to the right shoulder which was causing restriction of movement.
165 Mr O’Brien concluded there remained signs associated with the right knee and he suggested the plaintiff continued to require an active exercise program and he thought he would be well served by continuing hydrotherapy. Mr O’Brien thought there was no indication currently for further surgery but he considered the plaintiff would continue to require medication to control pain. He thought, given the chronic nature of the plaintiff’s pain, he may well benefit from a multi discipline pain management program which would allow some psychological involvement which Mr O’Brien thought would be of benefit him.
166 Mr O’Brien noted the plaintiff certainly indicated significant disability, describing quite marked restriction of all forms of activities. He thought the plaintiff’s presentation was such that he would certainly not be capable of returning to his pre-injury occupation or any other form of gainful employment and indeed, the indications were such that that total incapacity was likely to be long term.
167 Mr O’Brien concluded he would be very guarded in relation to the prognosis as it appeared chronic pain had now developed and that really indicated a poor prognosis.
168 In a later report of 3 November 2008, Mr O’Brien commented that the plaintiff was not capable of his pre-injury occupation as a plasterer and that this was likely to be a permanent situation and would not be changed by any further active treatment.
169 Dr Elder, occupational physician, examined the plaintiff, initially on 10 June 2009, and more recently on 1 March 2010.
170 The plaintiff told Dr Elder on the first examination that he had left-sided low back pain which was his main problem. He also had right knee and shoulder pain. He told Dr Elder that his lawyers had arranged for him to see Mr Barrett.
171 Dr Elder noted that the plaintiff’s behaviour was very inconsistent between formal and informal examination. The plaintiff’s hands were calloused and he had what looked like plaster marks on his clothing.
172 In Dr Elder’s view, the physical examination was completely inconsistent with almost no range of movement of the cervical and lumbar spine. Power and sensation were completely abnormal in a non-organic fashion with a collapsing give way pattern. The plaintiff demonstrated a shuffle gait and alleged that he could not walk on his heels and toes.
173 Dr Elder does not appear to have examined the plaintiff’s right knee on this examination.
174 Dr Elder concluded that he was unable to identify any ongoing medical condition relevant to the claimed accident. In his view, there were significant signs of non-organic overlay, suggesting there were other factors promoting the plaintiff’s symptomatology.
175 On re examination, the plaintiff complained of right knee pain, neck pain, back pain, right shoulder pain and head pain, and constipation. The plaintiff was taking two Lyrica tablets a day, and also Ducene and Tramadol.
176 Presentation on examination was very inconsistent, full of abnormal illness behaviour. There were inconsistencies in relation to movement of the cervical spine on formal examination and on casual observation. The range of lumbosacral movement was also inconsistent. It was noted the plaintiff was relatively muscular, and power when tested was inconsistent with his muscle bulk and was of a collapsing give way pattern throughout the upper and lower extremities.
177 Similarly, sensation was diminished in a stocking distribution affecting predominantly the left lower leg. It was noted that there was laxity of the ACL with a positive anterior drawer sign. Range of motion was full and there was no other abnormality affecting the right knee. Right shoulder movement was diminished but inconsistent.
178 Dr Elder concluded, while there was radiological support for the plaintiff’s knee condition, there was no other significant medical condition identified on radiology to explain his alleged level of disability. In his view, examination findings did not support any medical condition of the cervical, lumbar spine or right shoulder but they did support ongoing dysfunction of the right knee.
179 Dr Entwisle, psychiatrist, examined the plaintiff for medico-legal purposes, initially in June 2007, and more recently on 10 February 2010.
180 On re examination, the plaintiff’s memory and concentration were intact, there were no perceptual abnormalities and insight was present. The plaintiff described symptoms of an Adjustment Disorder with Depressed Mood. The plaintiff told Dr Entwisle about irritability and frustration and that he felt that his life was moving against him. Dr Entwisle concluded the plaintiff presented with an Adjustment Disorder with Depressed Mood.
181 The plaintiff was examined for medico-legal purposes by Dr Weissman, psychiatrist, on 23 July 2008.
182 On examination, there was no formal thought disorder although thought stream and flow were diminished. The content of the plaintiff’s thinking revealed some thoughts, memories and reminders of the accident. There was no delusional material. There were no formal abnormalities of perception. Overall, the plaintiff’s affect appeared subdued, restricted in range, mildly tense and mildly depressed.
183 Dr Weissman concluded the plaintiff seemed to be suffering from mild residual primary or direct post-traumatic stress and anxiety symptoms and features directly due to the accident. He thought the plaintiff also seemed to be suffering from a mild to moderate mixed reactive Depressive Syndrome because of, or secondary to, his accident-related pain, injuries and disability.
184 Dr Weissman considered the plaintiff probably had an Adjustment Disorder with Depressed and Anxious Mood. He was not convinced the plaintiff’s condition had stabilised at that time.
Overview
185 I accept that the plaintiff suffered an injury to his right knee in the transport accident which has been diagnosed by Mr Miller, Mr Grossbard and Mr O’Brien as a bucket handle tear of the medial meniscus with a tear/rupture to the anterior cruciate ligament and injury to the medial ligament.
186 Anterior cruciate ligament laxity was found on examination by Mr Flanc, Dr Elder, Mr O’Brien, Dr Jensen and Mr Grossbard. Mr O’Brien, Mr Miller and Mr Grossbard also found medial compartment laxity.
187 Mr O’Brien noted that investigations certainly confirmed significant intra articular right knee pathology. Mr Miller and Mr Grossbard described the plaintiff’s knee injury as significant. Dr Elder, although critical of the plaintiff’s presentation generally, accepted that there was radiological support for the plaintiff’s knee condition and he considered examination findings supported ongoing dysfunction of the right knee.
188 In this case, there is a clear organic injury although there are functional factors influencing the plaintiff’s presentation, as his counsel conceded, with Dr Thomas and Mr Miller, who last saw the plaintiff in 2007, being the only doctors who did not comment that there was a psychological element.
189 However, those medical practitioners who found non-organic signs made these finding principally in relation to the plaintiff’s spinal and right shoulder complaints, not his right knee condition, where it was accepted there was pathology and clinical findings supportive of a genuine injury.
190 Further, Mr Flanc, Mr Grossbard and Mr O’Brien, whilst commenting on a non- organic element of the plaintiff’s presentation, did not make similar findings on examination nor share the more extreme views of Dr Elder.
191 I am satisfied that the right knee injury has produced an organic impairment or loss of body function - Richards v Wylie (supra), per Winneke, P, at para 16. The right knee pain from which the plaintiff presently suffers is organically- based.
192 Much of cross-examination was directed to the plaintiff’s credit. He was cross- examined extensively as to his taxation returns and more particularly, the payslips which were submitted with his TAC Claim Form.
193 Whilst it is clear the payslips for the period July to October 2006 set out the plaintiff earned $21,000 whereas his invoice book and taxation return showed that he had received only $13,000 income from the company, it was not directly put to the plaintiff, nor was it established that he had played a part in compiling these payslips.
194 Further, the plaintiff explained that his accountant prepared his taxation returns on his behalf. Whether his Newstart payments declared in his taxation return for the financial year 2004-2005 was $591, and not $2,148 that the plaintiff actually received, is not a matter which troubles me as to his credit.
195 Neither issue detracts from the fact that the plaintiff suffered injury to his knee in what was a traumatic accident.
196 Also in relation to credit, it was submitted by counsel for the defendant that the plaintiff had exaggerated the extent of his spinal complaints in circumstances where they could not be explained on a radiological basis. Therefore, it was submitted I should not accept the plaintiff’s evidence in relation to the severity of his knee condition.
197 In this regard, particular reliance was placed on the plaintiff’s presentation to Mr Barrett, Dr Jensen and Dr Elder.
198 Mr Barrett, having sent the plaintiff for a lumbar MRI scan in September 2008, commented there did not appear to be any significant spinal abnormality to account for the plaintiff’s ongoing symptoms and his excessively limited lumbar spinal movements. Mr Barrett concluded, as there is no clear evidence of any orthopaedic injury to the spinal column, then there was really no orthopaedic treatment to be offered.
199 It was submitted by counsel for the defendant that whilst there is some pathology in the right knee, it would be very dangerous to rely upon the plaintiff’s evidence given the radiological findings and examination findings in respect of his other problems, which have all effectively been cleared by his treating doctors.
200 As counsel for the plaintiff conceded, there was no doubt in this case that there was quite a considerable element of enhancement and “it would be silly to argue otherwise”. I accept whilst there was an element of exaggeration in terms of the plaintiff’s complaints, whether conscious or not, I accept, as have all the medical witnesses, that the plaintiff has an organically-based knee injury resulting from the accident, supported by objective findings on examination and radiological findings.
201 Further, counsel for the defendant relied upon the video surveillance taken on 4 February 2010, where he suggested the plaintiff’s manner of walking was inconsistent between earlier films shown of the plaintiff before and after attending the doctor, and then briefly in a supermarket car park later that day.
202 Whilst the plaintiff was clearly disabled in the first film, in the second film I was not able to clearly see, in the eight seconds where the plaintiff moved at the car park, any movement inconsistent with that shown earlier in the day. I do not accept the suggestion by the defendant’s counsel that during this very brief period the plaintiff moved particularly freely, nor that he was shown to drive without restriction.
203 Counsel for the plaintiff advised he would have shown the film had it not been shown by the defendant as it was supportive of the plaintiff’s evidence that the plaintiff’s knee pain caused him to walk with a limp. However, the plaintiff’s first mention of limping being related to his knee was in cross-examination. In his second affidavit, he deposed it was caused by his back pain, a complaint made by him to Mr Flanc on two examinations. In these circumstances, I do not take into account the limping shown on video as being related to the plaintiff’s knee condition.
204 Whilst not earning large amounts of income prior to the accident, the plaintiff was employed by the company and also as a sub-contractor for various periods as a plasterer and in other related jobs.
205 Counsel for the plaintiff submitted that a result of his knee injury, the plaintiff was no longer able to pursue his trade or any other heavy manual work.
206 Counsel for the defendant submitted that the plaintiff’s claim in this regard should not be accepted as his evidence generally could not be accepted because of his exaggeration in relation to other matters. Further, it was submitted that the plaintiff’s spinal condition was alleged to have resulted in incapacity for such work.
207 Whilst there may be other reasons why the plaintiff cannot do that work, such as his back condition, if his knee injury results in incapacity in that regard I am entitled to take that into account although there are other causes.
208 As Ashley, JA said in Dressing v Porter & Anor [2006] VSCA 215, at para 47:
“If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. …"
209 The consensus of medical opinion, save for Dr Elder, is that the plaintiff is unable to return to his pre-injury employment because of his knee condition.
210 Dr Andrianakis thought, because of both the injury to the right knee and the spine, the plaintiff would be prevented from working as a plasterer, but he thought the knee injury alone would be productive of this outcome.
211 Although Mr Miller did not comment specifically on the plaintiff’s work capacity when he last saw the plaintiff in late 2007, Mr Miller thought the disability relating to the knee was significant and obviously the plaintiff’s capacity was severely limited.
212 Whilst not specifically referring to the knee problem in this context, having found it was the plaintiff’s most significant problem, Mr O’Brien thought that clinical indications suggested the plaintiff would not be capable of returning to any form of gainful employment.
213 Mr Flanc thought the plaintiff could not work as a plasterer because of his knee. He thought that the plaintiff would be vulnerable to his knee giving way, resulting in falls, and therefore he should not work on ladders, stairs or uneven ground.
214 Having found the plaintiff suffered a significant injury to his knee, Mr Grossbard thought the plaintiff had a theoretical ability to perform lighter work but he did not see this as being possible until psychological issues were addressed.
215 I accept the plaintiff continues to experience weakness, instability, pain and restriction in his knee, although the severity and frequency of these complaints varies. Anterior cruciate weakness and instability has been demonstrated objectively on examination by most examiners and supported radiologically.
216 The plaintiff has difficulty kneeling and crouching and then getting up from that position. His knee pain is worsened by standing, walking and being on his feet for extended periods. Walking up stairs is a problem and he experiences more difficulty in the cold weather. He takes extra medication when he goes for a long drive to help him cope but even then his knee pain will be worse when he gets home.
217 The plaintiff continues to be prescribed Tramadol, Lyrica and Ducene.
218 Whilst the plaintiff does not have any particular sporting interests, save for social soccer, the instability in his knee would, in Mr Flanc’s view, cause the plaintiff difficulty running or twisting Even Dr Elder accepted that the plaintiff could not play soccer due to his knee injury.
219 In addition to problems with work-related tasks due to his knee condition, the plaintiff is unable to carry out repairs and renovations on the home he bought and worked on prior to the accident.
220 The plaintiff is frustrated and depressed because of the interference with his working life and his plans for his future and social life. He has been treated by Dr Andrianakis for the depression and referred to Mr Tsironis for psychological counselling.
221 These are expected emotional consequences of the plaintiff’s physical injury which I am entitled to take into account when considering the seriousness of the impairment to his right knee - see Richards v Wylie (supra), per Winneke, P.
222 In terms of future treatment, Mr O’Brien thought the plaintiff would continue to require medication to control pain and he may well benefit from a pain management program as he has not recovered despite months of rehabilitation, as Dr Andrianakis noted.
223 Whilst I do not accept that the plaintiff will require surgery in the future, there is an increased risk of degenerative change in his knee.
224 Mr Miller, who has not seen the plaintiff since November 2007, thought that he may require reconstructive surgery but the plaintiff has not seen the need to see Mr Miller in this regard since that time.
225 Mr Flanc thought the plaintiff’s knee had stabilised although it may deteriorate in the future. He considered there was a significantly increased risk of osteoarthritis developing in the plaintiff’s right knee as a result of the injury to the medial cartilage and the tear of his ACL. Mr Grossbard thought the right knee may well progress to degenerative change and there may be a period of instability which in itself may require surgical correction.
226 Taking into account the need for continuing treatment and these medical opinions, I am of the view that the plaintiff’s knee condition is long term.
227 Whilst this was a case involving injuries which were not the subject of the present claim and also a number of matters were raised as to the plaintiff’s credit, I am satisfied that the plaintiff has a serious injury to his right knee.
228 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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