Kosakiewicz, Roger v T S Constructions Pty Ltd
[2009] VCC 1482
•21 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-04131
| ROGER KOSAKIEWICZ | Plaintiff |
| v | |
| T S CONSTRUCTIONS PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 October 2009 |
| DATE OF JUDGMENT: | 21 October 2009 |
| CASE MAY BE CITED AS: | Kosakiewicz, Roger v T S Constructions Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1482 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – S.134AB Accident Compensation Act – injury to right knee – subsequent further injury to right knee – pain and a suffering only.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D M O’Callaghan | Galbally & O’Bryan |
| For the Defendant | Mr B R McKenzie | Lander & Rogers |
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered injury to his right knee in a fall from a ladder while working for the defendant on 7 May 2003 (“the subject incident”). As a result, he underwent two arthroscopic procedures to the knee undertaken by Mr Nigel Broughton, orthopaedic surgeon, in January and December 2004.
2 On 26 January 2006, the plaintiff, then working for a different employer, fell through a roof, a distance of 2 to 3 metres, and aggravated his knee injury when it struck the ground (“the second incident”). Mr Broughton performed two further procedures in July 2006, and November 2008. There has been deterioration of the plaintiff’s knee condition, and according to his treating surgeon, he faces the prospect of knee replacement within the next ten years or so.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 7 May 2003.
4 Mr O’Callaghan, on behalf of the plaintiff, identified the body function said to be lost or impaired as the right leg. The application is thus brought under sub- section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, and leave is sought in respect of pain and suffering only.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.
6 I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the leg.
7 Following Ashley JA’s decision in Grech v Orica Australia Pty Ltd & Anor,[1] the proper analysis to determine whether a plaintiff ought be granted leave is:
[1] [2006] VSCA 172
(a) To establish the plaintiff suffered compensable injury after October 1999, noting injury includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; (b) To sufficiently establish what that injury was; (c) To determine the consequences the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and (d) To determine whether those consequences attain the “very considerable” level as to pain and suffering. 8 The plaintiff, a consultant surgeon, Mr Kenneth Brearley, and the plaintiff’s treating orthopaedic surgeon, Mr Nigel Broughton, were called to give evidence and be cross-examined. In addition, medical reports, radiological reports, two affidavits of the plaintiff and other material were tendered into evidence. I have read all the tendered material.
9 On behalf of the defendant, Mr McKenzie outlined the position of his client in response to the application as follows:
•
There was a disentangling exercise in identifying the consequences of the subject incident, from those of the second incident.
•
When analysed separately, the consequences of the subject incident did not attain the “very considerable” level.
•
The consequences of the second incident were more significant, and overwhelmed those of the first.
•
When looked upon at the present time, particularly considering the plaintiff’s return to employment, the consequences, regardless of whether they could be attributed to the subject or the second incident, did not meet the “very considerable” test.
Relevant Background
10 The plaintiff was born in 1961 and is currently forty-eight years of age. He lived in a defacto relationship which has since broken down, and has no children.
11 He was educated to Year 10, and then obtained trade qualifications as a carpenter. Principally, his working life has been as a carpenter, working for various construction companies around Melbourne. In the early 1990s he obtained a further qualification as a remedial masseur and over the years from 1992 until 1999 worked as a masseur.
12 Prior to the subject accident he was in good health, save that he was an insulin-dependant diabetic. In particular he had no difficulty with his right knee.
13 He commenced employment with the defendant in January 2001 as a full-time carpenter.
14 Prior to the subject incident, the plaintiff enjoyed pushbike riding, surfing and swimming, which he undertook regularly. He enjoyed general good fitness and regularly jogged from his place of residence to the beach. He lived in a defacto relationship and performed the bulk of the domestic duties. He undertook renovation and repair work at his house at Cowes. He enjoyed gardening and general maintenance around the property. He enjoyed fishing with members of his family.
The Injury and its Consequences
15 On 7 May 2003, the plaintiff was working at premises at Cowes and was required to climb by ladder onto the roof to remove a sign. In the process of returning to the ground, the ladder slid from under him causing his feet to become entangled in the rungs. He grabbed guttering with his right hand, but that did not support his weight, and he fell to the ground onto a colleague below, landing upon his feet.
16 He suffered general soreness, but remained working. On 12 May 2003, he saw his treating general practitioner, Dr Struk. By that time he was suffering low-grade right knee pain which he did not consider serious, but which progressively became worse. He remained under the treatment of Dr Struk, and was referred to Mr Nigel Broughton, orthopaedic surgeon, on 1 September 2003. Generally, he remained in employment over that period undertaking more or less his usual duties, with some restrictions in ladder work. In addition, he had suffered injury to his spine in the subject incident and although these symptoms improved with time, they never resolved.
17 Mr Broughton undertook an arthroscopy of the right knee on 16 January 2004. He found some tearing of the posterior horn of the medial meniscus which was trimmed. He further found a split in the medial synovial shelf which was debrided. He noted an area of Grade III fibrillation on the central part of the retropatellar surface about one centimetre in diameter.[2]
[2] Plaintiff’s Court Book (“PCB”) 38
18 The plaintiff made reasonable progress after this procedure and returned to work with the defendant on 15 March 2004. He ceased work shortly thereafter but because of back rather than knee problems. He returned to work in May 2004 but was restricted in the activities he could undertake both because of his right knee problem, but also because of his lower back. Following the first procedure, he was referred for physiotherapy and treatment was rendered both for his right knee and back. Towards the latter part of 2004, his right knee pain increased, and he was again referred to Mr Broughton. An MRI of 15 October 2004[3] showed a further tear of the medial meniscus. On 10 December 2004, Mr Broughton performed a further arthroscopy and found tearing of the posterior horn of the medial meniscus which was trimmed. He said the rest of the knee “looked fine”.[4]
[3] PCB 73
[4] PCB 39
19 On 16 March 2005, the plaintiff resigned from his employment with the defendant as work had become occasional. In August 2005, he commenced work with a construction company, The Complete Builder Pty Ltd, working full- time as a sub-contractor/carpenter. Throughout this period from August 2005 until January 2006, he worked full-time undertaking his normal range of duties. In his affidavit he stated:
“By that time the problems in my right knee and back seemed to have
largely settled.”
20 This is confirmed in the history to a number of doctors. To Mr Brearley,[5] he said he was able to work full-time with little if any difficulty.
[5] PCB 64
21 On 26 January 2006, he was working for The Complete Builder when he fell a distance of approximately 2.8 metres through the ceiling of a building site where he was working. He slid down a plank upon which he had been kneeling, and struck the ground with his right knee. He was taken to Cabrini Hospital and subsequent investigations showed fractures through the transverse process of L2 and L3 of the lower spine, and in addition fractures to three ribs on the right side. He said that his main problem after the second incident was back pain, although he did feel an aggravation of right knee pain. He was referred for treatment to Mr D’Urso, neurosurgeon, in October 2006 and his treatment was largely in respect of his back problem. As time passed, the pain in his right knee became more substantial, and he was referred back to Mr Broughton in May 2006. In a history provided to Mr Broughton at that time, the plaintiff said that his knee had become very painful and that he had developed a limp after the second incident. A further MRI scan of the right knee of May 2006[6] showed a minor defect at the junction of the posterior horn of the medial meniscus. It was thought there was a small residual or recurrent tear which was not of full thickness.
[6] PCB 75
22 Mr Broughton performed a further arthroscopy on 28 July 2006 and again trimmed the torn medial meniscus. He said the rest of the knee “looked fine”.[7] He reviewed the plaintiff through the latter part of 2006 and arranged a steroid injection under ultrasound control into the knee. The plaintiff said that he continued to suffer a dull ache in the right knee, and with a range of restriction of movements. A further MRI scan of November 2006[8] showed no further tearing of the medial meniscus, but early signs of osteoarthritis in the knee. In December 2006, the plaintiff was referred for rehabilitation to the Epworth Hospital and attended a program in April and May 2007, and further in October and November 2007. This rehabilitation was in respect of both the back and knee. The plaintiff was unable to work throughout 2006 both by reason of his right knee problems, and his lower back. There had been significant aggravation of his lower back pain in the second incident. In September 2007, he returned to part-time work with a number of employers. He was unable to maintain full-time employment, and only able to do lighter work. Longer hours led to increased intake of medication, and significant residual pain. His work in 2008 became sporadic and he finally ceased work early in 2009. At that point, he found that working as a carpenter, even in light duties required lifting, bending, kneeling and squatting, all of which aggravated his knee symptoms. At that point, he resumed his work as a masseur, and currently works three to four days a week at a clinic known as “Muscle Treatment Clinic”, and works full-time over those days. In addition, he has undertaken a diploma in remedial massage, and travels to Melbourne two days a week for study. Although he is not certain as to his future, he proposes to remain in the area of massage, and to increase his hours to full- time if he is able, after completing his diploma early next year.
[7] PCB 39
[8] PCB 78
23 In 2008 he returned to Mr Broughton for further treatment to the knee, and on 20 November 2008 a further arthroscopy was undertaken showing horizontal cleavage separation of the posterior horn of the medial meniscus. There was Grade III articular cartilage damage which was also debrided. The surface of the patellar was seen to have degenerated.
24 At the present time, the plaintiff complains of ongoing pain in the knee exacerbated by kneeling, squatting, running, walking quickly or using the knee for weight bearing. He has difficulties walking on uneven surfaces, up or down hills or using stairs. His sleep is affected.
25 His mother died in April 2005 and he suffered resultant depression. His medical condition with his right knee and lower back have also contributed to this depression and he takes anti-depressant medication prescribed by his general practitioner. He continues to have physiotherapy on a regular basis and has attempted hydrotherapy. This form of therapy is for his back and knee. He has been unable to resume his activities of swimming and surfing. He avoids riding his pushbike as it aggravates both his back and knee. His defacto relationship has broken up, in part he claims, because of his medical problems. He claims his sleep is disturbed.
26 His current regime of medication is as follows:
• Six Panadeine Forte per day for pain • Two Norflex, per day, a muscle relaxant • Efexor, an anti-depressant • Blood pressure tablets • Diabetes medication. 27 If anything, he believes his knee is becoming progressively worse, although it depends upon the activities which he undertakes. He still sees his general practitioner once a month or so for the prescription of medication.
28 In cross-examination, he agreed that he resigned from his employment with the defendant in March 2005 for a range of reasons. Firstly, his mother was ill at the time, and further, he was not comfortable with the attitude of his employer towards his various injuries. He agreed that in 2005 the problems with his right knee and back settled. His attendances with his general practitioner over that period for knee problems were rare despite being treated for other conditions. He accepted that the pain had been significantly reduced after the second arthroscopy, and he did not require physiotherapy treatment nor prescription pain-killing medication. He accepted he was able to undertake full-time duties in the latter part of 2005 as a carpenter, albeit with some restrictions. He had no time off work in that period as a result of his right knee. He accepted that after the second arthroscopy, he returned to some surfing, although not as much as before the subject incident, and did some swimming. He intermittently rode his bike, but that stopped after January 2006.
29 At the present time, he occasionally does some carpentry work. He has a sign on his trailer announcing his name and mobile phone number and has a business, “Roger’s Carpentry and Business Service”. He has had very few calls seeking carpentry work.
30 He has recently done some work around his house, including landscaping, work on a deck and pergola and some maintenance.
Medical Evidence
31 Dr Christopher Hill of the Phillip Island Medical Group provided a report of May 2004.[9] Further, clinical notes of that medical group were tendered.10 Those clinical notes map the plaintiff’s progress until May 2005.
[9] PCB 31
32 Mr Broughton provided a number of reports,11 and attended to give evidence. I found Mr Broughton an impressive witness. There is no doctor who has treated the plaintiff to the same extent, particularly given the four arthroscopic procedures he has conducted, and I accept his opinions. In his report of 16 September 2008,12 he considered there had been degeneration in the right knee and that he thought it was “highly likely” that the plaintiff would come to knee replacement within the next ten years. He said the damage to the medial compartment of the right knee was as a result of the subject and the second incidents and that in combination they had led to a deterioration and degeneration of the articular surface of that compartment. These views did not alter in his report of 18 May 2009.13
33 In the course of examination-in-chief and cross-examination, Mr Broughton noted that after the first arthroscopic procedure, there was articular cartilage damage.14 The further deterioration seen in October 2004 showed the knee was progressively getting worse.15 At that point Mr Broughton felt it was likely the knee would continue to gradually deteriorate over the years and to eventually come to a knee replacement.16 Mr Broughton said, when comparing the subject incident and the second incident, the majority of the damage took place in the first incident.17
34 I put to Mr Broughton that in 2005 the plaintiff’s right knee was in reasonably good condition and that he was not complaining of pain. He was able to work full-time in a relatively heavy job and that the situation appeared to change significantly as a result of the second incident.18 Mr Broughton’s said that was
PCB 32-37
PCB 38-43
PCB 42
PCB 43
Transcript (“T”) 74
T 75
T 76
T 76
T 77
not inconsistent with his evidence that the subject incident had caused the majority of the damage. He said before the second incident there was pathology within the knee but there was no inflammation and therefore little in the way of symptoms. He noted in the most recent MRI scan of June 2009,[19] while there was no significant change, the radiologist had reported “slightly more chondral attenuation”. This showed some progress of the underlying degeneration in the knee.[20] Mr Broughton was cross-examined extensively, but did not significantly depart from the views expressed. He stated that in the second incident, had the plaintiff not had the previous damage to his right knee, he well may not have developed symptoms in that knee, although he acknowledged it was very difficult to say.
[19] PCB 79
[20] T 79
35 He confirmed[21] that the first incident was the cause of the majority of the plaintiff’s problems based upon the objective pathology shown on the earlier MRIs, and his findings upon arthroscopy. When he examined the knee in the third operation, there was no significant change to the compartment of the knee. He considered that the plaintiff’s problems were more as a result of the ongoing progression of the underlying degeneration in the knee, rather than any significant new pathology after the second incident.[22]
[21] T 87
[22] T 87
36 The plaintiff was examined by Mr Paul D’Urso, neurosurgeon, in October 2006, principally for his lower back problems.[23] He considered that the plaintiff suffered a substantial disability as a result of the injuries both to his spine and right knee in both the subject and the second incidents. He thought the plaintiff had a limited ability to perform his pre-injury employment as a result.
[23] PCB 44-46
37 The plaintiff was examined on behalf of the defendant by Mr Owen Deacon in July 2006.[24] This report was obtained for the purposes of litigation following the second incident, and is of little assistance in considering the issues relating to the injuries and consequences from the subject incident. Mr Deacon, however, noted that before the second incident there were osteoarthritic changes in the right knee.[25]
[24] PCB 47-53
[25] PCB 54
38 The plaintiff was examined, again on behalf of the defendant, by Mr Michael Shannon, orthopaedic surgeon, in July 2007.[26] Again, the emphasis of the report is upon the second incident and the injuries arising. Mr Shannon commented that following the first two arthroscopic procedures, the plaintiff made a reasonable recovery from surgery, although he did have some ongoing low-back pain. Again, he commented that after the first two procedures, the plaintiff did have early degenerative change in the right knee. He noted that the plaintiff was not symptomatic in the period before the second incident and that the MRI scan taken thereafter showed “quite minimal changes” in the knee.
[26] PCB 55-61
39 Mr Kenneth Brearley, general surgeon, saw the plaintiff in March 2008, and provided two reports.[27] He also attended to give evidence, and be cross- examined. After the two arthroscopies following the subject incident, Mr Brearley said the plaintiff had a good result and was able to work on a full-time basis with little if any difficulty in the year 2005. He stated the plaintiff had made a good recovery from the subject incident. He thought the second incident was far more significant and there was a further and more severe injury to the right knee which was the cause of the plaintiff’s ongoing problems. He thought the plaintiff would have ongoing symptoms in his right knee and in the long-term it was very likely that there would be the need for knee joint replacement.
[27] PCB 63-71
40 In the course of examination-in-chief, Mr Brearley was shown a copy of the MRI scan of October 2004.[28] He had not previously seen that scan. He said the scan indicated the plaintiff had a significant injury to his right knee, a serious injury.[29] Based upon that scan alone, Mr Brearley thought there would be ongoing problems. When shown a subsequent MRI scan of May 2006,[30] Mr Brearley said there had been some progress in the knee, but nothing as bad as was shown in the first scan. Having seen the scans, Mr Brearley considered that the major episode causing the damage was the subject incident, when a serious injury had occurred. He expected that there would have been articular damage caused to the surface of the knee.[31] The significance of such a finding is that it was almost inevitable that the development of osteoarthritis would occur.
[28] PCB 73
[29] T 58
[30] PCB 75
[31] T 61
41 In cross-examination, Mr Brearley was taken to the opinion he expressed in his report, saying that the plaintiff had made a good recovery from the first incident. He retracted his earlier opinion, and said that it was not correct to say that the second incident caused a more severe injury to the knee.[32] He appeared to, at the outset, say that his opinion was that there was a more significant injury to the plaintiff’s back in the second incident, contrary to what his report said.[33] Mr Brearley did not appear to base the change of his view upon the MRI scans which he had been shown.
[32] T 65
[33] T 65
42 Generally, I was unimpressed with the evidence of Mr Brearley. While his report is extensive, his change of view is difficult to understand. I prefer the views of Mr Broughton.
43 The defendant relies upon the opinion of Mr Clive Jones, orthopaedic surgeon, of June 2004.[34] This opinion was provided after the first arthroscopy, and is of little assistance.
[34] Defendant’s Court Book (“DCB”) 39-40
44 The plaintiff was examined by Mr Peter Battlay, surgeon, on behalf of the defendant in March 2008.[35] The purpose of this examination appears to be in relation to the second incident. He obtained a history that the plaintiff had never really recovered from symptoms after the first two arthroscopic procedures to his right knee. He noted the more recent MRI scan showed degenerative joint disease in the medial compartment of the knee. He considered most of the plaintiff’s then problems related to longstanding degenerative disease of the knee, and the extent of the aggravation from the second incident had ceased.
[35] DCB 86-89
45 Mr Robert Marshall, surgeon, provided a report of 24 July 2008.[36] He considered that the second incident was a major contributing factor, in fact the major contributing factor, to his right knee problems.
Submissions on Behalf of the Defendant
[36] DCB 130-132
46 Mr McKenzie relied upon documentation relating to the resolution of the plaintiff’s claim in respect of the second incident. The plaintiff brought an Origination Motion, and the whole of the common law proceeding was resolved on the basis of a payment to the plaintiff of the sum of $59,000, plus retention of benefits already received, totalling approximately $11,000.[37] Presumably, the proceeding was compromised on the basis of not only the plaintiff’s right knee aggravation suffered in the second incident, but also his back problem.
[37] See Release – DCB 128-129
47 Mr McKenzie submitted the appropriate approach was in accordance with the principles of Petkovski v Galletti.[38] It was necessary to assess the consequences caused by injury in the subject incident and then determine whether those consequences alone satisfy the serious injury test. Mr McKenzie submitted the consequences flowing from the injury suffered in the second incident, which he claimed were far more substantial, had to be disentangled and disregarded.
[38] (1994) 1 VR 436
48 Mr McKenzie said that after the second arthroscopy, the plaintiff had made a good recovery. There were very few attendances upon his general practitioner.[39] He gave a history to various doctors that he was suffering very little, if any pain and he had obtained employment on the open labour market which was full-time and reasonably arduous. If one were to examine the consequences at that point in time, said Mr McKenzie, then the plaintiff would not have been able to succeed in convincing a court that those consequences reached the “very considerable” level.
[39] See clinical notes – DCB 133-149
49 It was only the injury suffered in the second incident, said Mr McKenzie, which brought about a very significant aggravation of the right knee problem, to the point now where the plaintiff faced ongoing pain and limitation in the knee, and the prospect, although uncertain, of full knee replacement. This indeed was the opinion originally expressed by Mr Brearley in his medical reports.
50 Setting aside the contribution of either of the incidents, Mr McKenzie submitted that the plaintiff’s current situation did not achieve the “very considerable” level in terms of the consequences. The plaintiff was still reasonably active, able to engage effectively in full-time employment as a masseur, and capable of doing a range of physical tasks around his house. He was even still advertising himself as able to do carpentry work. The prospect of future knee replacement was somewhat speculative given particularly the finding on the more recent MRIs that there had been very little deterioration in the pathology over the period from 2007 to the present.
Conclusions
51 In my view, the analysis of Ashley JA in Grech[40] is apposite and relevant. Although His Honour was dealing with the gradual onset of carpal tunnel syndrome in the context of the “black hole” period before October 1999, the principles expressed bear relevance to this case. His Honour considered that the appropriate task, having identified compensable injury occurring after October 1999, was to determine whether those consequences suffered as a result of injury achieved the “very considerable” level, and then to determine whether the subject incident gave rise to injury which “materially contributed” to those consequences. If there is conflict between the approaches prescribed on the one hand by Petkovski,[41] and on the other hand by Grech, I prefer the approach in Grech.
[40] (supra), at paragraphs 64-67
[41] (supra)
52 It is correct to say that the plaintiff had made a significant recovery after the second arthroscopic procedure. In the latter part of 2005, the plaintiff was suffering few symptoms in his knee, was able to work full-time, and was receiving little, if any treatment for the pain in the knee. However, the evidence of Mr Broughton is important in this regard. Accepting there were little in the way of symptoms, there was an underlying degenerative process ongoing in the knee which he established as evident when he inspected the knee in the course of the first two surgical procedures. The plaintiff’s current knee condition is a progression of that process, he said. Mr Broughton considered that upon the evidence of the MRI scans over the period after January 2006, there was very little evidence of trauma to the knee caused as a result of the second incident.
53 Mr McKenzie’s submission was that it is not necessary to assess the state of the pathology in the knee, but rather to assess the consequences in the form of pain, limitation of movement, and restriction in work ability. When looking at these consequences alone, the injury could not be said to be “serious” in the period immediately before the second incident.
54 Having heard from Mr Broughton, I accept his evidence. I accept that the first incident was the major cause of the plaintiff’s current condition in the right knee. The plaintiff’s condition has waxed and waned over the years since 2003 and undoubtedly in 2005, there was a period of significant remission. I accept the evidence of Mr Broughton that the plaintiff’s current condition is a product of the degeneration established largely after the first incident. I accept his evidence that it is likely the plaintiff will have to have a total knee replacement within the next ten years. While the forces involved in the initial assault in 2003 were not very substantial, nonetheless the damage caused in that incident has resulted in a very significant problem in the plaintiff’s right knee.
55 Even if I am wrong in that approach, in my view the plaintiff’s current condition in his right knee does satisfy the “very significant” test established by the Act. I am satisfied that the first incident has materially contributed to that condition and as such, within the reasoning of Grech, the plaintiff establishes serious injury.
56 I accept the plaintiff has ongoing pain in the knee requiring, in conjunction with his back problem, significant medication. I am satisfied he is unable to return to his former employment as a carpenter and that this, in significant part, is as a result of his knee condition. While it is clear the plaintiff, at the present time, is able to undertake a wide range of activities, including effectively full-time employment, I am impressed by his efforts at rehabilitation and re-training and his activities and employment do not derogate from the seriousness of the underlying condition. As stated by Mr Broughton, a total knee replacement in a man of the plaintiff’s relatively young age is a serious step.
57 I found the plaintiff a truthful and credible witness and accept his evidence as to the extent of the restrictions he suffers because of his knee problem. I accept his sleep is disturbed, the pain in the knee is ongoing and has required various forms of treatment, particularly arthroscopic procedures, and ongoing physiotherapy.
58 In all the circumstances, I am satisfied the consequences to the plaintiff of the injury to his right knee suffered in the subject incident do meet the “very considerable” test as prescribed by the legislation.
59 Accordingly, I grant leave to the plaintiff to issue proceedings at common law, and will make consequent orders.
- - -
0
1
0