Kesisyan v Stamward Pty Ltd
[2022] VCC 519
•22 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00045
| ANTRANIK KESISYAN | Plaintiff |
| v | |
| STAMWARD PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2022 | |
DATE OF JUDGMENT: | 22 April 2022 | |
CASE MAY BE CITED AS: | Kesisyan v Stamward Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 519 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – injury to the right knee – reliance upon paragraph (a) of the definition – occurrence of specific accident admitted – application for pain and suffering only – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Shine Lawyers |
| For the Defendant | Ms C Spitaleri | Thomson Geer |
HIS HONOUR:
(1)General background
1This matter comes before me pursuant to s325 and s335 of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. In bringing his application, the plaintiff relies upon paragraph (a) of the definition of serious injury found in s325(1) of the Act. He is seeking leave to bring proceedings in respect of pain and suffering only. Initially there was also reliance upon paragraph (c) of the definition, but it was made clear at the commencement of the matter that such reliance had been abandoned.
2The injury under consideration is one to the right knee. This shall hereinafter be referred to as “the injury”. The injury is alleged to have occurred in the course of the plaintiff’s employment with the defendant and specifically on 13 December 2016 when the plaintiff was moving a towbar whilst in the course of his employment as a warehouse assistant. This shall hereinafter be referred to as “the accident”. There is no real dispute concerning the occurrence of the accident or in relation to the fact that the plaintiff suffered a right knee injury when it occurred. I would refer to Transcript (hereinafter referred to as “T”) 2. In other words, the application is one of those frequently referred to as a “range case”. Further, leave is sought solely in relation to pain and suffering.
3Mr M Garnham of counsel appeared on behalf of the plaintiff. Ms C Spitaleri of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(2)The plaintiff’s background, training and education
4The plaintiff is aged 32 years, he having been born in Sydney in March 1989. He came to Melbourne in approximately 2000. He received secondary education to Year 11 level. For a little over two years, he worked as a cashier in a business conducted by his sister. He then undertook an apprenticeship as a motor mechanic, but completed only three years of this and left without obtaining his qualification. He obtained further employment in the motor vehicle industry, but again did not complete his apprenticeship. He then worked in various roles, such as a cook and a labourer. In 2015, he obtained a forklift licence and commenced working as a warehouse assistant with the defendant. The duties in which he was involved required either the use of a forklift or the manual unloading of pallets. He was so employed when the accident occurred.
5The plaintiff is a single man who, at the time of his earlier affidavit, was living in a house with his brother. By the time of his second affidavit, he had purchased that house from his brother and now shares that accommodation with his sister.
(3)The state of the plaintiff’s health prior to the injury
6The plaintiff had suffered some lower back pain in approximately July 2015 as a result of heavy lifting in the course of his employment. However, after a couple of visits to his general practitioner and the taking of some medication, his back symptoms resolved completely. At one time, he also had a problem with marijuana, but overcame this with the help of his doctor. His pre-accident health was otherwise good. It is not suggested that he had any right knee problems prior to the accident.
(4)The plaintiff as a witness
7Little was made by way of an attack upon the credit of the plaintiff. I would refer to the submission of Mr Garnham that the plaintiff’s credit was unassailed and that he should be accepted as a witness of credit – see T35. I note that Associate Professor Abdul Khalid, consultant psychiatrist, who examined the plaintiff at the request of his solicitors at a time when some reliance upon paragraph (c) was still envisaged, described him as cooperative and communicative. Mr Russell Miller, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors, described the plaintiff as being cooperative, clear and a straightforward historian, in addition to being pleasant. Essentially, I accept the plaintiff as a witness of credit, although he has made many visits to his treating general practitioners and appears to have had medical conditions or complaints over and above those sometimes mentioned in the histories that he has provided.
(5) The injury, its diagnosis, treatment and consequences
8Whilst there appears to have been some confusion about the date of injury, I accept that it occurred on 13 December 2016. In any event, there is no dispute concerning the occurrence of the accident. The plaintiff was initially hopeful that, whilst he was limping, the pain would improve. He attended his general practitioner, Dr Mark Ariens in Wheelers Hill, on 19 December 2016. Dr Ariens took a history of the plaintiff’s right knee giving way when he was moving a towbar at work. He had remained at work for the next five days, expecting that his knee pain would gradually resolve. In addition, the workplace was short staffed. His pain had remained and thus he had consulted Dr Ariens.
9Examination on this day was consistent with a medial ligament sprain, although pathology could not be excluded. The plaintiff attended again on 6 January 2017, there being no improvement. He was referred for an MRI scan, which was performed on 13 January 2017. This revealed a medial meniscus tear with some extrusion. By this time, the plaintiff was limping and had restricted movements. In the opinion of Dr Ariens, clearly he could not work. He was referred to Mr Richard Large, orthopaedic surgeon. Further, it would appear that he first attended the Parkmore Physiotherapy Centre on 12 January 2017.
10Mr Large reported to Dr Ariens on 3 February 2017. He had taken an appropriate history. Mr Large referred to the MRI scan as showing bone bruising under the meniscus and a tear in it, with some extrusion. He had explained to the plaintiff the low risk of infection or of persistent pain despite the surgical intervention.
11A report of 20 March 2017 from Mr Large to the Accident Compensation Conciliation Service set out a history of events and the observation that Mr Large felt that the medial meniscus tear had been caused by the workplace injury. The plaintiff was currently unfit for his pre‑injury employment. It was the opinion of Mr Large that an arthroscopic resection of the torn meniscus would have a very good chance of resolving the symptoms. Some physiotherapy would be required and Mr Large hoped that the plaintiff would be able to return to pre‑injury duties within eight weeks of the surgery. Apparently there was some initial dispute involving the WorkCover Agent in relation to liability for the surgery and accordingly a considerable delay before acceptance and performance of it. The surgery in fact was carried out by Mr Large on 4 December 2017.
12In any event, on 3 February 2017 Mr Large wrote to Dr Ariens stating that the plaintiff had a medial meniscus tear in the right knee and wished to have surgery as soon as possible. Mr Large had explained to the plaintiff that there was a very low risk of infection or of persisting pain despite the intervention. It would seem that physiotherapy had not proved to be particularly helpful.
13On 20 March 2017, Mr Large wrote to the Accident Compensation Conciliation Service. He referred to his diagnosis of a medial meniscus tear, as well as describing the accident which precipitated it. He attributed the tear to the accident. He expressed the opinion that an arthroscopic resection of the torn meniscus would have a very good chance of resolving the plaintiff’s symptoms.
14On 22 March 2017, Dr Ariens, being the treating general practitioner, reported to the Accident Compensation Conciliation Service. An appropriate history had been taken of the accident on 13 December 2016 and of the plaintiff remaining at work for five days, hoping that the pain would resolve. When there had been no improvement, on 13 January 2017 Dr Ariens referred him for MRI scanning. This showed a medial meniscus tear. By this time, the plaintiff was limping and had restricted range of movements. He clearly could not work. The plaintiff was referred to Mr Large, who agreed that surgery was necessary. Dr Ariens expressed the view that there was a direct relationship of the injury to the employment and that there had been no aggravation of a pre‑existing condition. The plaintiff did not have a current capacity for pre‑injury employment, but administrative duties might be an option. An arthroscopy was the only treatment required.
15Ms Katie Punter, physiotherapist, provided a detailed report to the Accident Compensation Conciliation Service on 26 March 2017. This report contains a more detailed account of the MRI results, it apparently showing a posterior flat tear of the medial meniscus, tibial plateau bruising and a medial collateral ligament sprain. Ms Punter expressed the opinion that what had occurred was not an aggravation of a pre‑existing medical condition. She implicated the accident as being the cause of the problem. She put a considerable range of restrictions on the plaintiff’s activities and stated that he would benefit from performing “sit down desk duties”. To a considerable extent, this report, being pre-surgery, has been overtaken by events. She did state that, without the surgery, the plaintiff was likely to experience ongoing knee pain and be severely restricted in his physical capabilities in the long term. He was likely to make a full recovery with surgical intervention. Ms Punter provided a brief report to the plaintiff’s solicitors on 16 August 2017, in which she implicated both the accident and, to a lesser extent, the general nature of the plaintiff’s work.
16Another physiotherapist, Ms Dianna Sorbello, reported to Dr Ariens on 26 June 2017. This report, which is also quite detailed, has also been largely overtaken by events. Ms Sorbello did note that the plaintiff had not returned to work and had significantly reduced his activity levels because of his injury. Ms Sorbello may have been steering him more in the direction of non-operative management of the injury, but observed that he was “very fixated on needing an arthroscopy”. She suggested hydrotherapy and referral to a pain management program, as well as a clear return to work plan.
17A brief letter of 13 November 2017 from Dr Ariens to the plaintiff’s solicitors refers to the fact that the plaintiff did return to work on 6 January 2017 and suffered increasing pain in the knee as the day progressed. He felt an acute worsening whilst moving a box. There is reference to the general nature of the plaintiff’s work contributing to his injury. This is another report that has been overtaken by events, given the ultimate admission of liability. The same could be said of a brief report of 28 November 2017 from Mr Large to the effect that the general nature of the plaintiff’s work may have caused or contributed to his injury.
18Mr Large carried out a right knee arthroscopy and partial medial meniscectomy at Beleura Hospital on 4 December 2017. It is apparent that a second anteromedial portal was required as the first was too low to reach the meniscus “in a very tight knee”. A bucket handle tear of the posterior meniscus, still attached at middle meniscus, was “flipped” out of the joint. It was resected to a stable base. The plaintiff was to be discharged home on the same day.
19The next report from those involved in the treatment of the plaintiff is a supplementary report of Dr Ariens of 10 September 2018. In it, Dr Ariens stated that physiotherapy continued after the right knee arthroscopy until March 2018. No further treatment was proposed. The plaintiff had engaged in a gymnasium program to improve his strength. His right knee was stable, but ached after excessive use, such as prolonged walking, squatting or kneeling. His current symptoms of occasional pain and resultant restriction were the result of the injury. He considered the plaintiff’s knee condition to be permanent and stable, saying that the prognosis was guarded, as the knee would never recover its pre‑injury state. Consequently, the plaintiff did not have a capacity for pre‑injury duties. He had a capacity for suitable employment, with limitations. He was unable to squat or kneel. His right knee condition did not impact upon his activities of daily living and the like.
20Mr Large reported to the plaintiff’s solicitors on 21 June 2019. Apparently he had not seen the plaintiff since the surgery in December 2017, but stated that the plaintiff’s condition had stabilised. The plaintiff had been instructed to make contact if there was incomplete improvement in the knee, but had made no further contact. Mr Large stated, that, as far as he was aware, there should be no restriction upon the plaintiff’s ability to return to full duties for full hours, but it is to be remembered that he had not seen him since approximately the time of the surgery. He did not think that the plaintiff required any future treatment or had an impairment and considered the prognosis for the injury to be excellent. However, I would repeat that he did not appear to have seen the plaintiff again since the time of the surgery and there is no indication that he was asked so to do.
21Dr Ariens provided a further report on 31 August 2019. This report sets out the history of treatment. There is no indication as to when he had last seen the plaintiff or as to on how many occasions he had seen him since the surgery. However, he stated that, currently, the plaintiff had fully recovered from the previous knee injury, no further treatment was needed, and he had returned to full‑time work with no restrictions or limitations. Dr Ariens considered the prognosis to be excellent, stating that the plaintiff did not have a permanent impairment and could work in pre‑injury duties. No further investigation or specialist referrals were required. This could not be considered to be a very detailed report, and the only presentations by the plaintiff specifically referred to by date were before the surgery.
22I note that a Medical Panel has reviewed the plaintiff, providing its Reasons on 3 July 2020. The Opinion expressed by it is binding, but such Opinion is specifically directed towards whether there is a permanent impairment for the purposes of s54 of the Act. It concluded that the plaintiff had a 3 per cent whole person impairment, and whilst this may be binding, it does not take matters much further. The Reasons of the Panel can be viewed as a medical report. In this regard, the Panel concluded that the plaintiff was suffering from residual dysfunction of the right knee with right thigh atrophy following a soft tissue injury, including a medial meniscus tear, which had been surgically treated and was related to the accepted injury.
23The plaintiff has also been seen for medico-legal purposes and I leave to one side for the moment the report of Associate Professor Abdul Khalid, consultant psychiatrist.
24Mr Russell Miller, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 15 September 2021, reporting on the following day. Mr Miller took an appropriate history, including the fact that, after the initial accident, in 2017 the plaintiff was at home and walking down steps when his right knee gave way. This caused an increase in his pain. The plaintiff informed Mr Miller that the right knee was his major problem. He had aches, discomfort and pain in it. The knee felt week and insecure, although there had been no frank giving way. There had been moderate improvement following surgery, but the plaintiff’s symptoms had now plateaued. He had no ongoing mental health issues. He was taking Panadol and Ibuprofen as required. There was no ongoing physiotherapy. The plaintiff used a soft compression bandage for his knee, but did not use orthotics or a walking aid. The examination of the right knee revealed well healed arthroscopic portals. There was Grade I quadriceps wasting measured at 1 centimetre. There was patellofemoral joint crepitus and pain on patellar compression. Flexion was 5o‑120o, whereas the left knee range of motion was 0-140o. The plaintiff reported discomfort when attempting to kneel, squat or hop on the right leg. The plaintiff had returned to work in a predominantly office-based job and felt unable to return to pre‑injury duties.
25Mr Miller recounted the history of surgical treatment. He stated that there were clinical features that suggested chondromalacia patellae and that the plaintiff was at increased risk of developing arthritic disease. He described the long-term prognosis for the knee as being only fair. He regarded the plaintiff’s current clinical status as being substantially related to the work injuries. He thought that the plaintiff required minimal conservative treatment, but was at increased risk of arthritic disease in the right knee. If this did occur, it was likely to be in the 20‑25 year time frame and may lead to a requirement for more major intervention. The plaintiff would have permanent restrictions in relation to work that involved large amounts of prolonged standing, walking, twisting, turning and the like. He noted that the plaintiff had some difficulty walking long distances, but did not use a walking aide. He would have minor reduction in his mobility as a result of the described injury. He had previously enjoyed gymnasium work and working with cars at home. He had not been able to return to the gymnasium activities. A result of the injury, he would have some restrictions on vigorous physical, leisure and recreational activities,
26Mr Miller provided a supplementary report to the plaintiff’s solicitors on 14 January 2022. There is no suggestion that he saw the plaintiff again. The purpose of the supplementary report seems to have been to comment upon a report of 16 December 2021 from Mr Michael Dooley, an examination by him having been organised by the defendant. Mr Miller disagreed with the proposition advanced by Mr Dooley that it was most likely that, in the accident, the plaintiff aggravated underlying degenerative change within the medial meniscus, including degenerative meniscal tearing. He also referred to the comment of Mr Dooley that the ongoing symptoms described by the plaintiff were greater than one would expect to see for the organic injury sustained. Mr Miller stated that it was highly likely that what had occurred was a traumatic meniscal tear, bearing in mind the age of the plaintiff and the absence of a prior history of knee problems or knee surgery. He considered it appropriate to regard the condition as a traumatic work-related injury. He did not believe that there were non-organic factors operating. He commented that, following this type of injury and meniscal surgery, “there is a spectrum in terms of the range of improvement that is seen”. Mr Miller stated that the plaintiff’s clinical history clearly indicated that his condition had not resolved and had an organic basis. It was an organically based injury which was work-related.
27The defendant has also had the plaintiff examined for medico-legal purposes. As stated, Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff, this occurring on 24 November 2021, Mr Dooley reporting to the defendant’s solicitors on 15 December. He took a history of the accident and of the subsequent surgery in December 2017. The plaintiff told Mr Dooley that he had a constant, deep, throbbing sensation in the knee and had pain “every other day”. Pain was worse in the cold, and he was unable to kneel, run or jog. He was performing strengthening exercises. He had undergone a recurrence on 21 June 2021 when, whilst exercising, he stood up and felt a shooting pain in the right calf. He needed analgesics and was off work for four weeks. Upon examination, Mr Dooley found that the knee was stable and that the quadriceps muscle was of good strength, but that there was generalised tenderness over the medial aspect of the knee.
28Mr Dooley expressed the opinion that it was most likely that, in the accident, the plaintiff aggravated underlying degenerative changes in the medial meniscus, this including degenerative meniscal tearing. He also referred to the further episode some three weeks later. Mr Dooley stated that, following the surgery that was performed, it could be expected that a patient would notice some intermittent knee pain, but it would also be expected that such a person would be able to return to a wide range of employment, domestic and leisure pursuits. Given that the plaintiff referred to a constant ongoing throbbing sensation and ongoing pain in the left knee, and was describing major disability, this was “greater than one would expect to see for his organic condition”. Mr Dooley expressed the view that the plaintiff had had a psychological reaction to his situation and that this significantly influenced his ongoing symptoms. Mr Dooley referred to degeneration of the medial meniscus occurring in concert with degeneration of the knee joint itself. He referred to factors such as smoking and the person involved being significantly overweight. He concluded by observing that, following an injury of this type, one would expect a patient to note some intermittent residual symptoms, but the ongoing symptoms described by the plaintiff were greater than one would expect to see given, the organic injuries sustained.
29The defendant also placed in evidence a report from Dr Rasanjali Rathnayake, consultant psychiatrist, this report being dated 20 September 2017. Apart from the fact that the plaintiff is not relying upon paragraph (c) of the definition, this report has to a considerable extent been overtaken by events. In any event, Dr Rathnayake described the plaintiff’s insight, judgment, attention, concentration and short-term memory as all being intact. However, the plaintiff had developed an adjustment disorder with depressed mood in the context of persistent pain affecting his right knee. He thought that the plaintiff did not have a current capacity for full pre‑injury duties and hours, either at his current workplace or at an alternative workplace. When the plaintiff’s psychiatric condition was considered alone, he had a limited capacity for work, but the pain affecting his right knee in turn affected his capacity.
30That concludes my summary of the medical material. There is no great dispute about the nature of the injury suffered by the plaintiff. The radiology confirmed that the plaintiff had a flat tear of the posterior body/posterior horn medial meniscus. He underwent surgery in the form of the right arthroscopy and partial medial meniscectomy. The most recent MRI scan of the right knee revealed a fine tear at the posterior horn/body junction of the medial meniscus and low-grade chondromalacia patellae. The Medical Panel concluded that the plaintiff was suffering from residual dysfunction of the right knee with right thigh atrophy, following a soft tissue injury which included a medial meniscus tear. Mr Miller observed that there were clinical features to suggest chondromalacia patellae, with increased risk of developing arthritic disease. Mr Dooley referred to the plaintiff as having sustained a tear through the degenerating medial meniscus. It is apparent that, as described by the operating surgeon, Mr Large, the plaintiff suffered bone bruising under the meniscus and a tear in it, with some extrusion. This came to surgery. The diagnoses effectively overlap and I accept them.
31In relation to whether or not the injury represents the aggravation of a pre-existing condition, as opined by Mr Dooley, not a great deal may hinge upon this. I have no hesitation in accepting that, prior to the accident and employment, the plaintiff was, as stated by Mr Miller, a relatively young man with no prior history of knee problems or knee surgery. Mr Miller specifically disagreed with the opinion of Mr Dooley. His opinion seems logical and in accordance with the known facts. I might add that, whether or not one accepts the opinion of Mr Miller, what does seem apparent is that the plaintiff had not suffered from any symptoms or restrictions in relation to his right knee prior to the work and, in particular, to the accident. Thus, he was symptom-free prior to the accident. He was symptomatic thereafter, ultimately coming to surgery.
32I am also satisfied that any symptoms or restrictions suffered by the plaintiff are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Mr Miller has referred to the plaintiff’s condition as having stabilised, and to his restrictions as being both permanent and work-related. A Medical Panel found that the plaintiff had a whole person impairment, albeit a very modest one, of the right knee. It is to be remembered that that such a finding related to an assessment in accordance with s54 of the Act. In any event, the Panel specifically stated that the degree of impairment was permanent. I appreciate that this was an assessment being carried out in a different manner and for a different purpose, but nevertheless permanence was found by the Medical Panel. I accept that the consequences of the injury to the right knee are permanent within the meaning of the Act and, indeed, there was no argument of substance to the contrary. Neither in her opening remarks nor her closing address did Ms Spitaleri raise the issue of permanence. That is no criticism, because she raised the relevant issues very concisely. However, permanence remains an issue concerning which I must be satisfied, and I am so satisfied.
33Psychological or psychiatric consequences of the injury are to be left to one side, particularly given that there is no reliance upon paragraph (c) of the definition. Whilst there may have been some, I am not persuaded that they are of great magnitude. As I understand it, the plaintiff has had no treatment from a psychologist or psychiatrist.
34Of the medico-legal examiners, Dr Rathnayake reported on 20 September 2017, in excess of 4½ years ago and prior to the surgery. He thought that, at that time, the plaintiff’s symptoms were at a sufficient level to constitute a diagnosable psychiatric condition. The plaintiff was taking some anti-depressant medication, and Dr Rathnayake was of the view that the treatment which the plaintiff was receiving was appropriate and adequate.
35Associate Professor Khalid, consultant psychiatrist, reported on 21 August 2021. He noted that the plaintiff was prescribed anti-depressant medication, which he took for about one month, and had not seen any psychologist or counsellor. He thought that the plaintiff may benefit from seeing a psychologist and having six to twelve sessions in order to learn stress-management strategies. He also stated that, from a psychological point of view, there was no significant impact on the plaintiff’s social, domestic and recreational life, overall describing his adjustment disorder with depressed mood as being mild in severity and not impacting upon his lifestyle.
36The existence of a psychological or psychiatric condition which was impacting upon the consequences of the physical injury was not something that was raised by the defendant. I consider that any impact of it in relation to consequences is low. Any such consequences shall not be taken into account.
(6)Other developments since the injury
37Following surgery, the plaintiff returned to employment in June 2018, working approximately 20 hours a week for a period of approximately 6−8 months. This was work in his sister’s cafe. In January 2019, he commenced full-time employment as a field service co‑ordinator with All Lift Forklifts & Access Equipment. That work was office-based. The plaintiff has sworn that he was able to sit at a desk all day, although he had to stand and stretch regularly to prevent his right knee from seizing up, doing this when he noticed that his knee was beginning to throb. At the completion of a day’s work, his right knee was very sore. As at the date of his affidavit (9 September 2020), the plaintiff was not seeing his general practitioner.
38In October 2021, the plaintiff ceased employment as a field service co‑ordinator and worked as a service co‑ordinator for Toyota Material Handling Australia Pty Ltd. He was there for only a short time, as his application to study for a Diploma in Health Sciences at Deakin College had been successful and he was due to commence that study in February 2022.
39After the injury, the plaintiff gained approximately 50 kilograms in weight. This led him to having gastric sleeve surgery in December 2020, and he then lost approximately 55 kilograms. It should be pointed out that he had had weight problems prior to the accident. He had gone on weight-loss regimes and had lost 30 or 40 kilograms – see T14.
40It is apparent that the plaintiff has changed his treating general practitioner. It would seem that, in approximately 2019, he ceased seeing Dr Ariens and commenced seeing Dr Magdy Twodros in Pakenham. As shall be discussed, it would seem that, whilst he has attended upon that doctor on a considerable number of occasions, at no time has he mentioned or sought treatment for his knee.
Ruling
41In this matter, I am of the opinion that the plaintiff has failed to discharge the burden of proof. I appreciate that his knee has caused him some problems, but, on the balance of probabilities, I cannot be satisfied that the consequences of the injury which he suffers are more than significant or marked and are at least very considerable – I would refer to Humphries v Poljak [1992] 2 VR 129 and to this test, which has been applied in numerous cases thereafter. I would also refer to the wording of s325(2)(c) of the Act.
42I would point to the following aspects of the evidence, which are not listed in order of importance:
(i) Mr Richard Large, the surgeon who operated on the plaintiff’s knee, stated in his report of 21 June 2019 that the plaintiff’s condition had stabilised; that as far as he was aware, the plaintiff did not have a current impairment of the knee; that there should be no restriction on the plaintiff’s ability to return to full duties with full hours; that he could think of no future treatment that was required; and that the prognosis for the plaintiff’s right knee injury was excellent. It would appear that Mr Large did not see the plaintiff after the day of the surgery. The plaintiff’s solicitors obtained the report dated 21 June 2019 from him, and it is in that report that the above conclusions are stated. However, there is no suggestion in it that Mr Large had reviewed the plaintiff prior to issuing the report or that such a review had been requested. Obviously, in the absence of an up-to-date review, there are limits upon the weight to be attached to Mr Large’s opinions. However, the fact remains that no such review seems to have been requested. Accordingly, the Court is left with the opinion of the operating surgeon, Mr Large, that, as far as he was aware, the plaintiff did not have a current impairment of the knee, no future treatment was required, and the prognosis was excellent.
(ii) The plaintiff’s treating general practitioner who referred him to Mr Large and continued to see the plaintiff for a period after the surgery was Dr Mark Ariens. In his report of 10 September 2018, he stated that physiotherapy had continued until March 2018 and that no further treatment was proposed. He referred to the plaintiff’s knee condition as being permanent and stable, and stated that the plaintiff’s current right knee symptoms were of occasional pain and a resultant restriction on activities. He thought that the plaintiff did not have a capacity for pre-injury duties, but had a capacity for suitable employment. He also observed that the plaintiff’s right knee condition did not impact upon his activities of daily living or his social, domestic and recreational activities. Dr Ariens reported again to the plaintiff’s solicitors on 31 August 2019, although the plaintiff may have ceased being his patient by this time. In any event, Dr Ariens stated that the plaintiff had fully recovered from the knee injury and no further treatment was needed. The prognosis was excellent, there was no permanent impairment, and the plaintiff could work in pre-injury duties.
(iii) In more recent times, the plaintiff’s treating general practitioner has been Dr Magdy Twodros. No report from him was put in evidence by the plaintiff. In his more recent affidavit, the plaintiff has referred to his attending Dr Twodros. Strictly speaking, that would appear to be accurate. What it does not say is that the multiple attendances upon Dr Twodros would not appear to have been for reasons directly associated with the right knee injury. The defendant put in evidence the relevant notes from the clinic at which Dr Twodros is based. The plaintiff’s first consultation with Dr Twodros would appear to have been on 16 July 2019. It would appear to have been for an upper respiratory tract infection. The records of the clinic at which Dr Twodros is based are from 16 July 2019 to 24 November 2021, during which period of approximately two years and four months the plaintiff was seen at the clinic, principally by Dr Twodros, on approximately 41 occasions. There are references to such things as a mild neck condition and exhaustion, but no reference to a right knee injury, pain in the leg, prescription of medication for this or the like. The plaintiff’s explanation for this is that he had to learn to deal with and manage the pain, and felt no need to mention it – see T11. In this regard, the plaintiff agreed that the pain in the knee was mild, but was aggravated by certain activities.
(iv) Dr Twodros has not been prescribing painkilling medication. The plaintiff has not been taking any prescription medicine for his knee condition. In his affidavit of 28 January 2022, the plaintiff swore that the medication which he was taking for his knee pain was “a couple of Panadol Osteo approximately every second or third day”. Thus, the level of medication taken by him for his knee pain could not be described as high.
(v) I appreciate that leave is not sought in relation to loss of earning capacity as such. However, general interference with employment and hence the ability to earn income arguably may be a factor. If it is so considered, it does not assist the plaintiff in this application. His earnings at the time of the accident were in the vicinity of $32,000 per annum. When he returned to work in a different capacity in mid-2018, his earnings were in the vicinity of $60,000 per annum. He has since left that occupation and is now studying for a Diploma in Health Sciences at Deakin College, having commenced that course in February of this year. It may be that he has a liking for working with motor vehicles, but it is to be remembered that he did not complete an apprenticeship, did not obtain his qualification, left that industry in 2011, and does not seem to have worked in it since. He commenced, but did not complete, an apprenticeship as a cook, worked in a cafe and the like. The point of this is that, on the available evidence, I am not persuaded that inability to work in a particular occupation looms large as a factor.
(vi) Similarly, I am not persuaded by the suggested argument that inactivity associated with the knee injury led to the plaintiff rapidly putting on weight and ultimately to the sleeve gastrectomy performed in December 2020. The history taken by the surgeon, Mr Aly, as reported to Dr Twodros, was that the plaintiff had struggled with his weight since his teen years and in the past had been able to lose up to 40 kilograms at a time. However, he had not been able to sustain this and was now considering surgery. Mr Aly referred to him as being well informed and well researched, intelligent, and of a realistic outlook. There is no reference to the accident or to inactivity playing a role.
(vii) I note from the clinical notes of Dr Twodros that, on 29 June 2021, the plaintiff attended complaining of right calf muscle pain after injuring himself when heavy lifting one week previously. It would appear that this may have been an injury sustained when weight lifting. In any event, some radiology was carried out and a prescription for Panadeine Forte provided. It seems that the plaintiff also obtained some tramadol from another doctor. The plaintiff returned, in pain and limping, and there is a further entry concerning this. On 24 November 2021, Dr Twodros prescribed Tramadol for lower back pain and the history recorded was of no other joints problem. The point of these references is that the plaintiff was quite prepared to mention to his treating general practitioner back pain and, indeed, injury to the lower right leg, but it appears that at no time, in a multitude of visits, did he make any reference to knee problems, surgery or the like.
(viii) The defendant also placed in evidence the clinical notes from the surgery at which Dr Ariens was based. It is to be remembered that the last letter or report from him that was put in evidence is dated 31 August 2019. According to the notes of the clinic at which he is based, the plaintiff saw Dr Ariens on 6 February 2019, the reason for his visit being that there had been knee pain since the operation (in December 2018) and patellofemoral joint syndrome was apparently considered. There was reference to an MRI scan that might be performed. On 21 June 2019 the plaintiff was seen in relation to a plastic piece which went into his left eye at work. There is a follow-up note in relation to that. On 31 August 2019 the plaintiff was seen again by Dr Ariens. A number of reasons are listed in relation to this visit. Apart from hay fever, a skin infection and folliculitis, there are the words “Review Knee injury stable”. Apart from a reference to some prescriptions which do not seem to be relevant, there is also the entry “Letter printed”. This would appear to be a reference to the report of Dr Ariens of 31 August 2019 that was placed in evidence. In other words, as far as the right knee was concerned, the reason for the consultation appears to have been to obtain a report for the use of the plaintiff’s solicitors. The knee injury was considered to be “stable”. It is to be remembered that, in the report, Dr Ariens referred to the plaintiff as having fully recovered from his previous knee injury; requiring no further treatment; and having returned to full-time work with no restrictions or limitations. He also stated that the prognosis was excellent, the plaintiff did not have a permanent impairment, and could perform pre-injury work duties. Thus, the report containing those observations seems to have followed an appointment with the plaintiff on that day.
(ix) Thus, essentially the plaintiff made little or no references to his knee injury to a treating general practitioner from approximately 6 February 2019 until 3 February 2022, when the records of Dr Twodros halt. The last notes of any substance are those of 24 November 2021 and relate to the plaintiff’s lower back pain.
(x) I turn now to the medico-legal opinions of Mr Dooley and Mr Miller. Mr Dooley, examining on behalf of the defendant, implicated employment and stated that, following such an injury and arthroscopic surgery, the plaintiff would be expected to note some intermittent knee pain, and difficulty with regular impact activity and with a lot of kneeling and squatting. The symptoms as described to him by the plaintiff were greater than one would expect to see from his organic condition. Leaving to one side his observations concerning psychological reaction and the desirability of having the type of surgery that the plaintiff had undergone, his general opinion was that the plaintiff should be able to walk reasonable distances, cycle, undertake water exercise and the like, and did not require specific ongoing orthopaedic treatment in his management. Indeed, as has been set out above, the plaintiff has not had ongoing treatment.
(xi) Mr Miller, examining the plaintiff at the request of his solicitors, stated that the plaintiff now required minimal conservative treatment. He stated that the plaintiff will have minor reduction in his mobility as a result of the injury. However, whilst the plaintiff would also only have minor restrictions in relation to domestic and gardening activities, in the opinion of Mr Miller he will have some restrictions in regard to vigorous physical, leisure and recreational activities. The supplementary report of Mr Miller contained his disagreement with Mr Dooley in relation to the importance of such things as smoking, weight and age-related change, but that area of dispute does not take one far in relation to the issue of pain and suffering in a situation where the only real dispute relates to consequences of injury. Mr Miller also disagreed with Mr Dooley in relation to the possible existence of non-organic factors. Whilst the plaintiff makes many visits to the doctors, as earlier stated I am not of the view that psychological or psychiatric factors have any substantial role to play in his symptomatology. In his supplementary report, Mr Miller referred to post-meniscectomy syndrome and probable chondromalacia patella, stating that the plaintiff’s clinical history clearly indicated that his condition had not resolved and had an organic basis. As stated, this, in essence, is a view which I accept. I also agree that Mr Dooley’s observations concerning the plaintiff’s smoking and the like are not important in the context of this particular case.
(xii) When the above is taken into account, there is probably less difference between the opinions of Mr Dooley and Mr Miller in relation to relevant matters than might at first appear to be the case. What emerges is a picture of the plaintiff as having a minor reduction in his mobility and minor restrictions in relation to domestic and gardening activities, but some restrictions in relation to vigorous physical leisure and recreational activities.
(xiii) I appreciate that the plaintiff may experience some knee pain. He has also sworn that there is interference with his sleep, although he does not appear to have complained of this to those treating him, and it would not appear that he is taking any specific medication in this regard.
(xiv) I accept that the plaintiff has some knee pain and that he has some restrictions. However, in a situation where he is receiving minimal or no treatment and his general practitioner at the time of his surgery, along with his treating surgeon, say that he has made an excellent recovery, and where he is making no relevant complaints to his current treating general practitioner, whom he seeks frequently, he faces problems in relation to the burden of proof.
43In summary, in light of all the above, I am not satisfied that the plaintiff has discharged the burden of proof.
Conclusion
44The plaintiff is unsuccessful. He has failed to discharge the burden of proof. The application is dismissed. I shall hear the parties as to any further orders that are required.
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