Lacey v State of Victoria

[2015] VCC 827

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-14-01103

D'ARCY SHANE LACEY	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2015
DATE OF JUDGMENT:	25 June 2015
CASE MAY BE CITED AS:	Lacey v State of Victoria
MEDIUM NEUTRAL CITATION:	[2015] VCC 827

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:             Serious injury – injury to the right knee – pain and suffering
Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

Judgment:                Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B W Collis QC with Mr A D Ingram	Melbourne Injury Lawyers Pty Ltd
For the Defendant	Mr S A O’Meara QC with Ms B M Bylhouwer	Russell Kennedy

HIS HONOUR:

1       In this proceeding, the plaintiff seeks leave to commence a proceeding seeking pain and suffering damages for injuries suffered by him in the course of his employment with the defendant.

2       It is not in issue in the proceeding that the plaintiff sustained a compensable injury on 15 April 2010 to his right knee and that the impairment of function relied upon in this instance involves the right lower limb.

3       In the proceeding, the plaintiff relies upon three affidavits sworn by him dated 16 August 2013, 24 March 2014 and 27 May 2015, together with an affidavit of his wife sworn 27 May 2015.[1]  The plaintiff also gave viva voce evidence and was cross-examined.  Otherwise the parties rely upon various medical reports and like records tendered by them.

[1]The plaintiff’s wife did not attend for cross-examination although her attendance was sought by the defendant.  In the circumstances the approach I will adopt as to her affidavit evidence is to make due allowance to the weight which should be accorded to it.

4       The content of the plaintiff’s three affidavits are self-explanatory and no point is served in setting out the content verbatim other than where it is necessary to give context to my reasoning.  Essentially, the plaintiff deposed that:

·He is forty-five.

·He had been employed for six years with the New Zealand Police but was forced to resign when he was diagnosed with systemic mastocytosis.  He joined Corrections Victoria in May 2008, where he sustained the subject injury in April 2010. 

·He underwent arthroscopic surgery performed by Mr Brett Jackson in treatment of the injury, from which he made an incomplete recovery, such that he has suffered from persisting pain in his knee. 

·He had, following his injury, made an application to join the Victoria Police Force but did not proceed with that application.  In the course of his evidence, he explained the reason for his withdrawal as being that his weight would have operated to cause him to fail the relevant medical examination, that in order to lose weight, he would have had to run, but that the condition of his knee excluded him from that activity.

·The condition in his knee was such that he could not squat or run. 

·He had been a softball player at a club level but had to give up that activity.  He had played club cricket as a bowler and club soccer but had to give up those activities.  He was able to play golf but that activity caused swelling in his knee.  He said that the condition of his knee now excluded him from engaging in any form of fast or active sport.

·His knee pain was exacerbated by sitting for long periods of time and climbing stairs. 

·His sexual relationship with his partner had been restricted by his knee pain. 

·He self-medicated with brufen and Panadol when his pain was bad.  He described the use of medication as only taking the edge off his pain.

·His sleep was interfered with on a regular basis by reason of pain in his knee.

·His ability to engage in activities with his children had been significantly adversely impacted upon and that his symptoms were such that they restricted him in his ability to walk with his wife, which had been a regular activity for him.

5       The plaintiff’s wife, Tricia Lacey, has sworn an affidavit in which she largely corroborated the contents of the plaintiff’s affidavit.

The viva voce evidence

6       In the course of his evidence, the plaintiff said:

·That he now operated a franchise business in New Zealand, that he was the face of the business and his work involved sourcing the work; preparing quotes; organising  equipment and manpower; collecting  fees, and the paying bills;

·That whilst he made an application to Victoria Police after sustaining the injury the subject of this application to be employed as a police officer, he  abandoned that process before he underwent the preliminary physical examination required, because he was aware that his weight was such that he would not meet the relevant BMI criteria and he would not be able to lose weight because he could not run;

·That in 2011, he had moved to Otago, where he was employed as a private investigator, but because of lack of work, he worked a second job as a night-filler for Mitre 10;

·That he suffered from the condition of systemic mastocytosis, the effect of that condition being such that it required him to resign from his employment within the New Zealand Police Force in 2003.  He described his symptoms as causing him to put on weight and feel like he was suffering the worst hangover “somebody’s ever had ... when I wake up every day”.  The plaintiff agreed that in 2003, his symptoms were such that his weight had increased and he had had to give up his position in the New Zealand Police Force.  He said that he had eventually gained control of his symptoms, and that this had changed his life such that by 2009, he had re-applied for entry to the New Zealand Police Force.  He said that although he felt he had regained his physical capacity for the work, his application had been refused because of the presence of his underlying condition.  He said he no longer experienced vomiting or chest tightness associated with the condition, but that he continued to have a rash which was permanent, was prone to experiencing anaphylactic reactions and suffered from nausea each morning;

·He agreed that in February 2013, he had attended the Dunedin Hospital with symptoms of abdominal pain, nausea, vomiting and bloating, and accepted that he had a concern that his symptoms had gradually worsened over that year.[2]  He said that at that time, he had been concerned that the progressive nature of his condition was responsible for an increase in his symptoms, but that this had not occurred to date, his symptoms on that occasion having been associated with a lack of discipline on his behalf in managing his diet;

[2]It is clear that the symptoms to which the plaintiff was referring were caused by his underlying systemic mastocytosis.

·He agreed that his mastocytosis was such that it caused him to wake up virtually every day with nausea, commenting “I accept it, that’s the way it is, that’s my hand,” and that the current management of his condition involved him consulting Dr Smith once a year;

·He agreed that he had suffered from symptoms of depression for many years, which included suicidal thoughts;

·        He agreed in cross-examination that he had suffered back symptoms in December 2012 and that those symptoms had caused weakness, groin pain and right leg symptoms.;

·He said that:

(i)    If he were able to, he would be playing Masters Cricket now;

(ii)   He was on medication for depression at the current time;

(iii)   His back was not “a massive part of his life”;

·        He described the symptoms from which he suffered in his knee as in the following terms: “It depends on what I’m doing as to whether the pain is there or not,” explaining that his knee pain had been brought on by sitting in the witness box.  He said that his knee would swell up, particularly after a round of golf, and that after 18 holes he would put an icepack on it “if need be.  Sometimes it doesn’t need it.”  He accepted that he could do vacuuming and house maintenance, and that he had the capacity to work on cars, but explained that he was unable to do these activities pain-free;

·        He said he disliked taking pills, and that it was his tendency to push through his pain, nine times out of ten;

·        He explained that he had not consulted doctors for treatment because there was nothing that could be done for his knee, and he managed the condition in the way in which he had previously described, namely by employing medication when necessary;

·        He said that he had played cricket and softball at very competitive levels, and that he had been a very good sportsman, but that those activities had been lost to him by reason of his injury;

·        He accepted that he had engaged in cricket coaching in Otago, but not for a full season, and said that it was primarily his work commitments which forced him to abandon that activity;

·        He described the nature of the depression with which he presented in the following terms: “It’s no different to any other issue out there that people need to be treated.  Not being able to do your dream job and having your sport taken away from you will do that.”[3]

·        Upon reflection, it was primarily his knee which would have prevented him from working as a policeman.

[3]There is no evidence before me which suggests that the plaintiff’s underlying depression affects his ability to function. Rather the contrary is suggested, given the plaintiff’s current activity in seeking to develop a business activity and his role in that process which involves him in managing employees liaising with clients in order to grow the business. It is clear that I must exclude any aspect of the plaintiff’s depression from my consideration in this instance.  I am satisfied however, that this statement by the plaintiff nevertheless has relevance, in that it in demonstrates the importance to the plaintiff of the loss to him of his capacity for activity.

7       The plaintiff’s veracity was challenged on the basis that in his affidavit, he had said that he had recovered from his systemic mastocytosis.  When that position was put to him in the course of his cross-examination, he immediately responded “Haven’t recovered from it – I understand it,” explaining that he managed his condition very well now. 

8       Whilst this evidence appears inconsistent with the statement made by the plaintiff in his affidavit, the way in which the evidence was adduced (namely by the spontaneous correction by the plaintiff as to the statement in his affidavit without being challenged about it), satisfies me that the inconsistency in the plaintiff’s affidavit does not tell significantly against the plaintiff as a credit issue or as to his reliability as an historian.  In particular I accept the plaintiff’s evidence that he was able to manage his systemic mastocytosis given:

·        his ability engage in the activities to which he deposed in his affidavit; and

·        the duties involved in his work for the defendant

all of which was not the subject of challenge.

9       In re‑examination, the plaintiff said that:

·        His back caused him no problems at all;

·        His mastocytosis was largely under control.

The medical evidence

10      It is not in issue that:

·As the result of the injury to his right knee, the plaintiff underwent surgery at the hands of Mr Brett Jackson in 29 September 2010, in the form of a right knee arthroscopic procedure in order to treat a lateral meniscal tear of the mid body.

·In the course of that procedure, a partial lateral meniscectomy was undertaken.

11      In a report dated 1 September 2011, Mr Jackson reports that he reviewed the plaintiff following surgery on 10 October 2010, at which time, although the plaintiff was having some tenderness in the area of the resection, he was walking unaided.  Mr Jackson said that his plan at that stage had been to slowly reintroduce the plaintiff to his activities and to review him on 28 October 2010.  Mr Jackson reported that despite the fact that he had arranged appointments to follow up the plaintiff’s progress, the plaintiff failed to attend those consultations. 

12      Mr Jackson said that he was unable in these circumstances to “comment as to whether the plaintiff’s injuries had stabilised or on his capacity for pre-injury employment”.  Mr Jackson opined:

“I would expect from the arthroscopy findings that he would make a full recovery from his injuries sustained at work and he would have been highly employable for pre-injuries duties in the short period after surgery.”

13      Prior to undergoing surgery at the hands of Mr Jackson, the plaintiff had been treated by Aaron Sandilands, a physiotherapist. 

14      Following the procedure undertaken by Mr Jackson, the plaintiff consulted Mr Sandilands on 15 October 2010, at which time Mr Sandilands reported that it was “likely that central sensitisation had contributed to a period of chronic pain of Shane’s right knee that would take months to ease”.

15      In doing so, Mr Sandilands was clearly echoing the view Mr Jackson had expressed to him.

16      At the same time, Mr Sandilands opined that the plaintiff’s:

“… injuries limited Shane’s ability to squat, run or spend extended periods of time either in a sustained standing or seated position.  Considering the degree of pain, movement and strength displayed by Shane at his last physiotherapy visit, it was not appropriate for him to participate in his pre-injury duties as a prison guard and I would suggest that such a physical duty would be unlikely to ever be achieved at full capacity.

Alternative employment which limited repeated squatting and lifting from low heights, limited stair negotiation and alternating between sitting and standing/walking would have been the most appropriate at this time.”

17      Whilst Mr Sandilands clearly referred to the presence of physical signs and “pain sensitisation” as influencing his presentation at that time, I interpret the comments made by Mr Sandilands as to the likely effect of the plaintiff’s injury, to which I have referred above, to have been expressed on the basis that the restrictions set out by Mr Sandilands were likely to be the effect of the plaintiff’s organic condition, once the contribution to his “central sensitisation” had resolved.

18      Mr John Mathieson, a consulting orthopaedic surgeon, examined the plaintiff on 3 April 2013.

19      In the course of that consultation, Mr Mathieson obtained a history from the plaintiff that:

§He had never fully recovered from his injury and the surgery;

§He continued to struggle with continuing pain which limited his activity.

20      On examination, Mr Mathieson recorded the presence of 2.5 centimetres in wasting of the plaintiff’s right thigh and a small effusion in the right knee.  He described a finding of marked patello-femoral crepitus and clicking in the right knee, and expressed the opinion that the plaintiff had not made a full recovery from his injury and that his ongoing problems were related to patello-femoral articular damage.

21      In my view, these findings involve objective findings consistent with the presence of an ongoing organic condition in the knee, the presence of which was capable of generating ongoing symptoms of the type complained of by the plaintiff.

22      Mr Mathieson opined that the plaintiff’s knee was unlikely to return to normal, and expressed the hope that the plaintiff’s symptoms “could be more controlled with a particular exercise program”.

23      I note that on 3 April 2013, Mr Mathieson, in reporting to Dr Madigan, who had referred the plaintiff to Mr Mathieson for assessment, commented that the plaintiff presented “with a permanent problem with his knee and the circumstances of his injury had undoubtedly resulted in articular damage in the patello-femoral joint”.

24      On 6 February 2015, the plaintiff was examined by Professor Myron Goldwasser, orthopaedic surgeon, at which time the plaintiff complained of pain in the right knee, which was present most of the time, and was aggravated by activities such as prolonged sitting for more than 15 minutes and by prolonged driving.  The plaintiff said that he was able to walk up to 6 kilometres whilst playing golf but his knee “becomes painful and swells up afterwards”.

25      On examination, Mr Goldwasser detected mild diffuse swelling at the right knee compared to the left knee and the presence of patello-femoral crepitus on movement of the right knee.  He described no wasting of the thighs or calves.

26      Mr Goldwasser opined that:

·The plaintiff presented with patello-femoral joint irritability and crepitus, together with intermittent swelling of the knee with prolonged activity such as walking;

·The plaintiff presented with an aggravation of early degenerative changes in his right knee by reason of the traumatic injury suffered on 14 April 2010;

·The plaintiff’s knee condition and symptoms would remain much the same in the foreseeable future and that he would probably continue to need medication to help manage his pain;

·The plaintiff’s capacity to work had been significantly affected, and commented that the plaintiff could –

“… no longer be very active or run, as would be required for his pre-injury duties.  He also has difficulty with kneeling and squatting.”  He continued that the plaintiff “can no longer compete or participate at the high level of sports that he used to, he cannot do the heavier types of gardening and he is much slower and does activities with some discomfort around the house; such as cleaning, vacuuming, mopping and sweeping.  There has also been a significant effect on the intimate relationships with his wife.”[4]

[4]Given the fact that Mr Goldwasser in no way questioned this history by the plaintiff, I am satisfied that he accepted that the plaintiff presents with a condition which was responsible for causing such symptoms.

27      It is clear that neither Mr Mathieson nor Mr Goldwasser, in expressing their opinions, considered that the plaintiff’s level of symptoms were in any way exaggerated or inconsistent with the injury he had sustained.  This was also the impression which I formed of the plaintiff as a witness.

28      Dr Suzy Marsh has been the plaintiff’s general practitioner since February 2014. In a report dated 23 April 2015, she commented that the plaintiff did not tell her about his knee injury until January 2015.

29      In an earlier report to the defendant’s solicitors dated 16 April 2015, Dr Marsh commented that she had examined the plaintiff in March 2015, at which time she found the plaintiff’s knee to be moderately swollen with marked crepitus on flexion and extension.  She opined that the plaintiff presented with patello- femoral degeneration as well as “AO knee joint +/- lat and med meniscal tears”.

30      As to the relevance of this evidence by Dr Marsh, I am satisfied that:

·        The absence of complaint by the plaintiff as to the presence of symptoms to Dr Marsh is not inconsistent with his evidence that he has chosen to self-manage his symptoms;

·        The findings on examination by Dr Marsh are largely consistent with those of Mr Mathieson and Mr Goldwasser and support the findings I have made as to those reports as set out in paragraph 22 above.

31      On 16 June 2014, Dr Mark Smith, a consultant haematologist, reported to Dr Peter Ryan as to the plaintiff’s underlying systemic mastocytosis, commenting that the plaintiff had been feeling reasonably well and that his normal status involved the sensation of nausea most mornings which improved as the day progressed.  In his report, Dr Smith commented further: “He feels a good night’s sleep is important for him to minimise these early morning symptoms”.

32      I find the comment by Mr Smith in this regard to suggest an inconsistency as to the plaintiff’s pattern of sleep as described by the plaintiff in his affidavit in which he commented that his sleep was adversely affected by his knee symptoms. Equally however, it reinforces my acceptance, for the reasons I will develop further in due course, of the plaintiff’s evidence as to the relatively modest influence which that condition exerts upon his life at the present time.

33      On 14 May 2015, the plaintiff was examined by Mr Michael Dooley, an orthopaedic surgeon, on behalf of the defendant.

34      On that occasion, Mr Dooley found the plaintiff to present with no effusion of his right knee and patello-femoral tenderness and crepitus and clicking with knee movement.  He opined that the plaintiff’s ongoing pain was consistent with an impact-type injury to the joint, commenting:

“Patients tend to note pain at the front of the knee that can worry them with a lot of impact activity and with kneeling, squatting and prolonged sitting.  In general arthroscopic surgery does not significantly increase symptoms in this setting.  The natural history is improvement with time but patients continue to describe intermittent pain.”

35      Mr Dooley opined that the plaintiff’s intensity of pain was greater than he would have expected and that he believed that the plaintiff presented with “a psychological reaction to his situation that does influence his ongoing symptomology”.

36      It is put on behalf of the defendant that the initial reference by Mr Sandilands as to the plaintiff presenting with “central sensitisation” is consistent with the opinion expressed by Mr Dooley that the plaintiff’s presentation was influenced by emotional factors.

37      Whilst there was initially a suggestion that the plaintiff presented with psychosocial pain influencing his symptoms, the most recent examiners of the plaintiff, with the exception of Mr Dooley, have not suggested that the plaintiff’s presentation was in any way inconsistent with his injury and the resultant pathology.

38      For these reasons, I do not accept Mr Dooley’s position that the plaintiff presents with organically based symptoms which are exacerbated by the presence of a psychological reaction. 

39      In any event, having regard to the opinion expressed by Mr Dooley that:

·the plaintiff would be likely to experience symptoms associated with impact activity and with kneeling, squatting and prolonged sitting; and

·the plaintiff’s injury would be such as would preclude him from police force work and prison officer work;

which opinion I interpret as being expressed by Mr Dooley on the basis of the organic influence of the plaintiff’ injury upon his lifestyle, the opinion of Mr Dooley is not markedly different to the other medical practitioners who have opined in this instance.

40      The medical evidence to which I have referred as to the condition of the plaintiff’s knee once the influence of the surgery undertaken by Mr Jackson had stabilized, satisfies me that the plaintiff presents with an organic condition in his knee which is responsible for causing the ongoing symptoms and incapacities which I will set out in due course.

41      Whilst the defendant points to the plaintiff’s presentation in December 2012 to the Southern District Hospital with symptoms of back pain and sciatic symptoms, it was the plaintiff’s evidence that he recovered from that condition. I accept that evidence, there being no medical evidence to the contrary.

42      My finding in this regard is supported by the content of the medical records of the Mossgiel Health Centre, which document the plaintiff as presenting with symptoms of back pain in November 2012.  The records of the plaintiff’s presentation at this Centre on 19 February 2013, 13 March 2013, 11 April 2013 and 16 April 2013 however, contain no complaint of any back pain or sciatic symptoms.

43      There is no issue that the plaintiff has suffered from a longstanding pre-existing condition of systemic mastocytosis which, when it first manifested itself, caused the plaintiff to suffer very significant symptoms and interfered with his life and lifestyle such that it was responsible for him resigning from the New Zealand Police Force.

44      It is the plaintiff’s position that this condition was initially mismanaged, having regard to the unusual nature of the condition, and that when an appropriate regime of management was introduced, he was largely able to control the symptoms associated with the condition such that they did not unduly influence his lifestyle.

45      Whilst the defendant points to various medical records which record the presence of symptoms associated with the plaintiff’s underlying systemic illness such as incidents of anaphylaxis, I accept the plaintiff’s evidence that this underlying condition is relatively stable, that he is able to accommodate it and that it does not exert a significant influence upon his life or lifestyle other than for the daily nausea which he experiences and his tendency towards anaphylaxis which manifests itself should he consume food which induces the onset of that condition such as kiwi fruit.

46      In making that finding, I take into account;

·     The fact that the plaintiff’s condition is now stable and is being managed on the basis of an annual review only;

·     The plaintiff’s ability to undertake the duties involved in his employment with the defendant, in respect of which there is no suggestion that the plaintiff’s systemic mastocytosis had any real influence.

·     The plaintiff’s capacity for employment at the present time in which he is attempting to establish his own business.

47      Further whilst there is a risk that the plaintiff’s systemic mastocytosis may progress, there is no evidence as to the likelihood that it will do so or the time frame in which it might do so. In the absence of such evidence I am satisfied that I should take that the approach that the issue as to the progress of that condition and the outcome of that progress involves mere speculation.

48      As to the viva voce evidence given by the plaintiff, I accept the plaintiff’s position that he did not disclose his comorbidities in his affidavit evidence, as he considered them to have little if anything to do with his knee condition.

49      I do not find that position surprising.  In fact, but for the artificial structure imposed by the presence of the Accident Compensation Act 1985 (“the Act”) most people would take the same view.

50      In general, I found the plaintiff to present as a largely reliable witness.  The steps he has taken to maintain employment and his income are consistent with the general impression I formed of the plaintiff as he gave his evidence that he was not inclined to embellish his symptoms, that his focus has been to get on with his life and cope with the effect of the condition of his knee in that process.

51      An issue arises as to the relevance in this instance of the plaintiff’s failure to pursue his application to be admitted to the Victoria police force in the circumstances to which I have previously referred.  I accept the fact that the plaintiff holds a belief that the ultimate influence of his knee injury was to deny him being accepted into the Victorian Police force.

52      Given however:

·     The plaintiff’s co-morbidities at the time of his application: and

·     The fact that the assessment process as to whether the plaintiff should be accepted was in its infancy:

I am unable in any way to evaluate the prospect of the plaintiff succeeding in his application.

53      In the circumstances whilst I am satisfied that some weight should be accorded to the plaintiff’s feeling that he has lost his chance of pursuing a career with the Victoria Police force, I am never the less satisfied that this loss should be accorded very little weight in the outcome of this application.

54      I am satisfied however, given the medical evidence generally and the opinion expressed by Mr Dooley specifically on this point, that the physical outcome of the injury to the plaintiff’s knee has been to preclude him from employment as a policeman or work of the type he undertook for the defendant.

55      The loss of the plaintiff’s ability to pursue his desire to be employed in the service of the state, which I am satisfied is a capacity which the plaintiff retained at the time of the injury to his knee and which is now denied to him by that injury, is clearly a factor of some significance to the plaintiff and I am satisfied that this must be accorded due weight in this application, in that it falls into a similar category to the loss of a vocation.

56      It was put on behalf of the defendant in the course of closing address that the plaintiff’s competitive sporting life would now have been terminated by reason of his age. In my view that position ignores the fact that to participate in later life in age based competition does not necessarily diminish the challenge and satisfaction which a sportsman might derive from performing at maximum level and matching skill and capacity against equals. In this respect I am satisfied that continued participation in sport at a masters level was an activity which:

·     was open to the plaintiff:

·      was one which the plaintiff  would have pursued;

and that this represents a significant loss to him.

57      I am satisfied that the medical evidence as to the current symptoms in the plaintiff’s right knee is such that he would be restricted from playing any form of cricket, including master’s cricket or other sport which involves running or squatting, and that but for that condition, the plaintiff’s comorbidities would probably not have imposed such a restriction upon him.

58      Further given the plaintiff’s history of involvement in sport at a level of some competence, I accept the plaintiff’s evidence that his participation in sport was a very important factor in his life and that:

·      The inability to pursue the sports in which the plaintiff was engaging at the time of his injury represented a very significant loss to him at the time he suffered his injury; and

·     The limitation which the current condition of his knee imposes upon his ability to participate in sport, continues to represent a very significant loss to him.

59      I make the above findings on the basis of the plaintiff’s evidence, which I accept, as to the importance of sport for him namely:” I use my sport as a form of therapy.  I need to play sport.  I need to compete and to not have anything to do it is just - it's - like sends me into cabin fever.  So I trade off the fact that I can wander around at a low impact and be painful at the end of it and that's my trade-off.  Otherwise I'd do nothing”.

60      Against this I balance the fact that that the plaintiff retains a capacity to play 18 holes of golf, which he does on a regular basis; and that this activity involves him walking 6 or so kilometres, which activity may or may not aggravate his symptoms such that they require management by use of medication or an ice pack.

61      I accept the fact that the plaintiff has regular pain in his knee. 

62      The evidence satisfies me that:

·The plaintiff’s pain fluctuates, depending on his activity; and

·Whilst, on occasions, the plaintiff is required to manage his pain with Panadol and over-the-counter anti-inflammatories, the need to resort to such management is not a constant feature of his life.   

63      Whilst it is the plaintiff’s evidence that he attempts to avoid the use of medication, in quantifying the level of the plaintiff’s symptoms, I take into account that the plaintiff has been able to manage his condition without recourse to any regular medical attention, or recourse to prescription strength medication. Whilst my impression of the plaintiff is that he has a tendency towards stoicism as demonstrated by the way he manages his systemic illness and I accept his evidence that he tends to, eschew the use of medication, I never the less have difficulty in fixing with any degree of precision the level of pain with which the plaintiff presents. As to that issue, whilst I am satisfied given the nature of the medical evidence that the plaintiff suffers from pain the level is appropriately described as being significantly greater than a nuisance level of pain but is less than that which may be described as being serious or severe pain.  

64      In making this finding, I do so taking into account:

·The plaintiff’s  lack of complaint to his general practitioner of the presence of pain or need to resort to prescription-strength medication or, for that matter, any form of constant medication;

·Further, the plaintiff’s ability to engage in golf and cricket coaching, his evidence being that he ceased the latter activity by reason of the demands associated with his work and not his symptoms.

65      There is no issue that the plaintiff:

(i)    Retains the capacity to maintain his cars, undertake home maintenance and perform various cleaning chores around the house. I accept the plaintiff’s evidence, however, that the performance of such activities may involve consequences in the form of pain of a degree of severity such that, whilst it does not cause the plaintiff to avoid engaging in the relevant activity, nevertheless it is such that it impacts upon his enjoyment of life.

(ii)Maintains a considerable capacity for employment given his demonstrated ability to hold the job of private investigator and a second job as a night-filler for Mitre 10, each of which must have involved the plaintiff in significant time on his feet.

(iii)Manages his symptoms of pain without recourse to prescription strength medication.

66      Against these factors I balance the evidence which I accept that the physical influence of the condition of the plaintiff’s knee is such is responsible for:

·     The fact that the pain is a regular feature in the plaintiff’s life notwithstanding that pain presents itself in the manner to which I have previously referred in terms of severity;

·     The fact that the plaintiff symptoms have impacted adversely upon his intimate relationship with his wife;

·     The loss to the plaintiff of his ability to pursue his vocation in the service of the State, employing that word in the sense to which I have referred;

·     The plaintiff’s limited tolerance for walking as described by both the plaintiff and his wife in their respective affidavits, which was not really the subject of challenge;

·     The loss of the plaintiff’s ability to engage not only in sport which was such an important part of his life but also from associated activity such as running; this loss being a very significant one for the plaintiff for the reasons to which I have previously referred;

·     The fact that the plaintiff’s symptoms are in my opinion such that they would be likely to assume the position of being a frequently recurring feature of his life given their influence in restricting him in his capacity to kneel, sit in one position, drive long distances or climb stairs, without pain;

·     The loss of the plaintiff’s ability to engage in physically demanding activity generally including robust physical interaction with his children.

67      In assessing the issue which arises in this case, namely whether the plaintiff's pain and suffering consequences when judged by comparison with other cases in the range of possible impairments, or losses of body functions may be fairly described as being “more than significant, or marked and as being at least very considerable”, I am required to assess the consequences in terms of pain and suffering which the plaintiff's injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases.

68      My task has been described as involving a value judgment in which matters of fact, and degree and of impression are operative: see Stijepic v One Force Group (Australia) Ltd & Anor[5]; and one in which I am required to:

[5][2009] VSCA 181

“… take into account not only what symptoms there are in what a worker is precluded from doing, but also what limits there are to symptoms, and to inhibitions upon activities.  It is true that impairment is concerned with what has been lost, but the significance of what has been lost which bears upon the seriousness of the consequences may be informed to some extent by what is retained.”

See Dwyer v Calco Timbers Pty Ltd (No. 2).[6]

[6][2008] VSCA 260

69      In applying that approach to my assessment of the evidence in this case, I am satisfied in that in this instance the relevant impairment may be appropriately described being “more than significant or marked” and as being “at least very considerable”.

70 In these circumstances I am satisfied that the plaintiff's impairment meets the high threshold test which is imposed by the Act and accordingly that the plaintiff has made out his case as to his entitlement to the leave sought in this proceeding.

71      I will hear the parties as to the precise form of the order which I should make in the proceeding, and also upon the issue of costs.

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