Maniatis v TAC
[2024] VCC 1483
•25 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-01386
| PERICLES MANIATIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2024 | |
DATE OF JUDGMENT: | 25 September 2024 | |
CASE MAY BE CITED AS: | MANIATIS v TAC | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1483 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages - serious injury – injury to the left knee – pain and suffering – credibility
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Barlow v Hollis (2000) 30 MVR 441; Richards v Wylie [2001] VR 79; Abbas v Transport Accident Commission [2015] VSCA 217; State of Victoria v Glover [1998] VSCA 93
Judgment: Leave granted to the plaintiff to commence proceedings for the injuries suffered in the transport accident.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Dr A Newman | Slater & Gordon |
| For the Defendant | Mr P Elliott KC with Ms A Bannon | HWL Ebsworth Lawyers |
HER HONOUR:
Introduction
1The plaintiff was injured in a transport accident on 3 June 2018 whilst riding his motorcycle when a car drove into the back of him whilst he was stopped at a red light.
2The plaintiff seeks leave pursuant to section 93(17) of the Transport Accident Act 1986 (“the Act”), to commence proceedings for common law damages in relation to the transport accident. The body function relied upon is the left knee under paragraph (a) of the relevant definition of “serious injury.”
3In order to succeed, the plaintiff must satisfy the Court that he has sustained a serious long-term impairment or loss of a body function of the left knee within the meaning of sub-paragraph (a) of section 93(17) of the Act.
4In determining this application, the Court must be satisfied, on the balance of probabilities, that the injury suffered by the plaintiff was as a result of the transport accident and that the injury is a “serious injury” within the definition of “serious injury” contained in section 93(17) of the Act. I must make the assessment of serious injury at the time the application is heard. The term “serious injury” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[1]
[1] Humphries & Anor v Poljak [1992] 2 VR 129 at 170 and accepted by the Court of Appeal in Barlow v
Hollis (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]
5The plaintiff relied upon four affidavits sworn on 23 August 2020, affirmed on 6 October 2021, 7 June 2023 and 18 March 2024, two affidavits affirmed by the plaintiff’s partner, Vaia Gounis, on 6 October 2021 and 18 March 2024, and an affidavit affirmed by Maryanne Dib, on 2 February 2022.
6In addition, both parties relied on medical reports and other material which were tendered in evidence. At the hearing of the application the plaintiff gave evidence and was cross-examined. I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
The issues
7It was not in dispute that the plaintiff was involved in a transport accident on 3 June 2018.
8What is in dispute is:
(a) what injury the plaintiff suffered in the transport accident and whether the medical condition was related to the accident;
(b) what consequences flow from the compensable injury, and whether the consequences constitute a serious injury; and
(c) the plaintiff’s credit was put in issue by the defendant.
Background
9The plaintiff was born on 28 November 1972 and is currently 51 years of age. He has an older son from a previous marriage and four daughters from a previous de facto relationship. He is now in a relationship with Ms Gounis.[2]
[2] First Affidavit of Pericles Maniatis sworn on 23 August 2020, Plaintiff’s Court Book (‘PCB’), 8 [5]
10He completed Year 11 and commenced, but did not complete, a motor mechanic apprenticeship at Richmond TAFE. In his early teens he took up Muay Thai, a combat sport sometimes known as Thai Boxing. He left his apprenticeship to take up the sport professionally which he then pursued for the next 20 years. For ten of those years, he lived and worked in Thailand as a professional Muay Thai fighter. He deposed that he was a very successful fighter and was a celebrity in Thailand fighting under the name Perikli Maniatis. He was a three-time world champion, a WKA World Champion, IKBF Champion and a Thai Champion. He had a professional record of 150 or so fights for 90 or so wins. His world title fight in Cambodia with Eh Phuthong that was broadcast on national TV at the time, can be found on YouTube where it has had more than 544,000 views.[3]
[3] Second Affidavit of Pericles Maniatis affirmed on 6 October 2021, PCB 16[4]
11From about 2012 he worked at a car yard as a detailer for a couple of years. In 2013 he obtained a private security licence and worked as a security guard at a shopping centre for a couple of years. In about 2015 he found work as a security guard doing cash deliveries and collections to and from major retail outlets.
12He deposed that he wanted a career change from Muay Thai and security to become a builder. He commenced work as a labourer with a builder before his motor bike accident. He was working fulltime at the time of the accident and sometimes more, with the intention of learning about building so that he could start renovating, developing and selling his own properties.[4]
[4] Ibid 15 [3]
13Following the accident, he was unable to continue working as a builders’ labourer and found work as a security guard at Southland Shopping Centre.
Previous Medical History
14The plaintiff deposed in his first affidavit that he pulled a muscle in his back “about 30 years ago”, that in his late teens or early 20s he had a nose reconstruction, and in July 2011 he injured his left knee during training. He had undergone an MRI and an X-ray and had been prescribed Mobic. He deposed that “the issue resolved itself” and he suffered no further impairment. The medical records of Dr Hun Ng record this left knee injury as occurring on 12 February 2007. He also sprained his left knee and hurt his lower back at work in about April 2018 from which he had made a full recovery.[5]
[5] Ibid 9 [8]
15He also said that from time to time as a professional fighter and as part of his gym routine, he would experience intermittent injuries and pains which would resolve themselves after the passage of time and did not cause any long-term residual impairment.[6]
[6] PCB 9 [9]
The accident
16On 3 June 2018 whilst on his motorcycle and stationery at a red light, a car drove into the back of him, and he was thrown in the air and some distance from his motorcycle, landing on the road. He was taken by ambulance to the Alfred Hospital. The ambulance report noted a witness stating the plaintiff did not lose consciousness, but the plaintiff could not remember anything from the time of the impact. He was discharged from the Alfred with Panadol and Endone, and prescribed Mobic.[7]
[7] Ibid 11 [17]
Treatment
17The plaintiff consulted his general practitioner, Dr Stragalinos on 12 June 2018 complaining of ongoing left shoulder pains, left wrist pains, tender chest wall and a moderately painful and swollen left knee resulting in a limping gait and an inability to return back to his work as a builders’ labourer. Dr Stragalinos prescribed the plaintiff with Mobic, referred him for a left knee MRI as well as to Mr Joseph Robin, orthopaedic surgeon. He also provided him with a certificate of incapacity for two weeks off work.
18The plaintiff first saw Mr Robin on 13 June 2018 and on 5 July 2018 Mr Robin performed an arthroscopic examination.
19Mr Robin performed an excision of the unstable posterior horn flap, with a protruded/extruded flap tear hiding behind the upper tibia margin, and arthroscopic power-shaving of the grade I and II of the medial femoral condyle (MFC) surface.[8]
[8] Ibid 41
Employment following motor bike accident
20The plaintiff ceased work at Southland in about October 2021 as his employer lost the security contract. He found work with Gipsafe for a short period undertaking security until approximately 2022. He commenced with Treacle Painting and Maintenance in April 2022 until November 2023 when he was made redundant. He then obtained work at Bayside Maintenance and Gardening which involved shovelling, digging and pushing a wheelbarrow that weighed up to 40kg. He subsequently obtained work with Jayco Caravans performing pre delivery checks over the caravans. He deposed that he was able to cope with this work, that he enjoyed it, and he described it as very light.
Treating medical practitioners
Mr Joseph Robin, orthopaedic surgeon
21Mr Robin obtained a history of the plaintiff having first injured his left knee on approximately 9 May 2018 whilst working as a builders’ labourer and Dr Stragalinos had referred him for an MRI, which he underwent on 16 May 2018. The MRI report showed a tear of the posterior horn of the medial meniscus extending from the middle of the meniscus to the outer third. The plaintiff reported that he appeared to be getting better symptomatically with time and with the use of Mobic.
22The plaintiff was then involved in a motor vehicle accident on 3 June 2018, and he described that the impact caused him to fly over the car in front and hurt his neck, left shoulder and left knee. The left shoulder and neck settled within a few days, but the knee pain continued, deteriorating so that “he could hardly walk”.[9]
[9] PCB 43
23On review on 12 November 2019, Mr Robin noted that the plaintiff’s symptoms had settled down following surgery, that he was able to ride a bike to work every day, and working in security assessment was no physical problem.[10]
[10] PCB 44
24Mr Robin diagnosed a tear of the posterior horn of the medial meniscus of the left knee with associated chondral injuries to the MFC and patella. In his opinion, both incidents may well have contributed to the causation and/or aggravation of his left knee injury, with the acute knee sprain sustained whilst working on or about 9 May 2018, resulting in persisting pain which required him to undergo an MRI scan. The plaintiff sustained a further injury in the motor bike accident on 3 June 2018 when he was struck by the car. Following this injury, he was unable to take weight comfortably and he complained of severe left knee pain and swelling, a recurring limp and intermittent “pseudo-locking” of the left knee.[11]
[11] Ibid
25Mr Robin’s recommended treatment was repeated quadricep exercises to maintain quadriceps strength and knee mobility, walking and cycling as well as hydrotherapy. Mr Robin suggested the plaintiff avoid high-impact activity such as jumping or collision sports.[12] Mr Robin noted that the plaintiff’s prognosis was excellent, and symptoms resolved to the point where the plaintiff was able to return to work in a normal capacity as a security assessment officer.
[12] Ibid
26When reviewed on 17 May 2022, Mr Robin noted that the plaintiff reported experiencing left knee pain, which was worse at night and after episodes of high-impact activity such as skipping rope on a concrete surface. Mr Robin reviewed the further radiological investigations the plaintiff underwent on 13 February 2020 and 11 October 2021 and in his view, they did not show persisting posterior medial meniscal tearing, but rather demonstrated a stable truncated base consistent with the arthroscopic repair he undertook. In Mr Robin’s opinion, as a consequence of the physical injury and impairment of the left knee, the plaintiff was likely to be precluded or restricted in relation to employment or activities.
27The plaintiff could learn to adjust his activities to minimise the symptoms, and his incapacity would likely continue indefinitely into the foreseeable future. His work prognosis was fair if he could avoid or minimise most of the triggering events. Mr Robin also noted the plaintiff was at an increased risk of developing arthritic change in the left knee, primarily as a result of the nature of the injury and subsequent deterioration due to weight-bearing stressors placed on the damaged knee.
Dr Nick Stragalinos, general practitioner
28Dr Stragalinos has been the plaintiff’s general practitioner for over 10 years.
29In his report dated 13 March 2020, he recorded that the initial examination on 12 June 2018 revealed the plaintiff had a tender left shoulder, left wrist joint, chest wall rib tenderness and left knee demonstrated an effusion with reduction in knee flexion and extension. The plaintiff also reported symptoms and signs of post-traumatic stress with vivid recollections of his motorbike accident and evolving anxiety and depressive symptoms.[13]
[13] PCB 50
30The plaintiff saw Dr Stragalinos again on 27 June 2018 complaining of ongoing left knee pain and swelling, with a recent attempt to return to work short lived and unsuccessful after only a few hours due to increasing left knee pain and swelling.
31Dr Stragalinos noted that after an eight-week period of rest and rehabilitation following the left knee surgery, the plaintiff returned to work in an alternative vocational career as a supervisory security guard in September 2018. He remained in that capacity full-time. The plaintiff reported ongoing left knee pain and swelling on 29 January 2019 as well as daily flashbacks and vivid recollections of the accident scene, affecting his sleep and resulting in low energy levels during the day. He was provided with a three-month certificate for modified duties.[14]
[14] PCB 51
32The plaintiff presented again on 24 September 2019 and 20 November 2019 exhibiting signs of significant physical and psychological sequelae. He described daily left knee pain and swelling which increased with prolonged standing and walking, worse at the end of the shift as a security guard where he averaged 20,000 steps per day. There were recurring episodes of clicking and locking of the left knee, usually associated with brief stabbing pains which caused him to stop his work to non-weight bear his left leg and to massage and stretch it out. The plaintiff reported recurring episodes of left knee instability, particularly if he was walking down stairs or a decline or if he had to change direction abruptly with his left knee. The plaintiff was unable to run, jump, fully squat, kneel and attend to his previous gym exercises. He was restricted to very light activities at the gym.[15]
[15] Ibid
33Dr Stragalinos thought the plaintiff could not return to full-time work as a builders’ labourer. He noted that the plaintiff had experienced a minor left knee sprain in his former employment as a labourer, four weeks before the motorbike accident. However, he was able to recover fully and return back to his former workplace after a few days rest and regular anti-inflammatories. The motorbike accident in June 2018 was significant enough to exacerbate and cause deterioration in the left knee symptoms by aggravating the medial meniscal tear and progressing the medial femoral condyle cartilage degeneration. Examination findings included significant quadricep muscle wasting to the left side and medial joint line tenderness.[16] Due to persisting symptoms he referred the plaintiff to undergo further MRI investigations and to go back to Mr Robin.
[16] Ibid 52
34In his opinion, the plaintiff would not be able to return to his former job as a builders’ labourer and he was just coping with his work as a security guard, as he had daily pain and restricted function. He required daily Panadol and Nurofen (as of June 2022).
The plaintiff’s medico-legal reports
Dr Nathan Serry, psychiatrist
35Dr Serry performed a psychiatric assessment on 6 May 2019. He reported that the plaintiff had ongoing physical symptoms in the left knee with pain present most of the time. The plaintiff was unable to return to his work as a labourer and found alternative employment in security in which he was coping. He reported that his social and recreational life had been compromised and he had not returned to Muay Thai fighting, he no longer ran, and he was less social. His sleep tended to fluctuate and there were nights when he did not sleep as well due to pain in the knee. He had accident-related dreams and experienced intermittent flashbacks to the accident, usually in response to an external trigger. These were more frequent in the first six months or so following the accident. He was now much more vigilant, and a cautious rider.[17]
[17] PCB 61
36On mental state examination he noted the plaintiff was pleasant and cooperative, mildly anxious and demonstrating a degree of frustration and irritability. From a psychiatric viewpoint he was someone low in mood in the months after the accident, but that had improved somewhat. The diagnosis was of an adjustment disorder with anxious features and features of traumatisation. He had a favourable psychiatric diagnosis and Dr Serry described him as an “uncomplaining individual” and he did not require any mental health intervention.[18]
[18] Ibid 63
Mr Iain McLean, orthopaedic consultant
37The plaintiff was examined by Mr McLean, orthopaedic consultant of knee problems, on 30 May 2019, 11 June 2020, 23 June 2021, and 13 September 2023.
38Mr McLean obtained a history of the plaintiff’s involvement in the motorcycle accident in 2018 in which he felt pain in the neck, and left side of the body involving the shoulder and back, and left knee pain.
39He also noted the plaintiff suffered injury in the course of his employment as a builders’ labourer in around March or April 2018, in which he twisted and felt pain in the left knee whilst working on a domestic building site carting bricks. The plaintiff attended his general practitioner and was off work for approximately 10 days before returning to work and wearing a neoprene Velcro knee support. Initially he was on light duties, and he progressed with his work. The swelling improved and he was able to walk and return to digging and shovelling, negotiating stairs and ladders and reported that the knee was recovering well.[19]
[19] PCB 83
40In terms of current symptoms, the plaintiff reported to Mr McLean that he had to be careful and cautious to avoid sudden or twisting load movements onto the left knee as this would produce a sharp medial pain. He was able to walk comfortably on flat surfaces but if he was on his feet for longer periods, he remained cautious and experienced soreness afterwards. He could negotiate inclines as long as they were not too steep but felt pain and insecurity when negotiating them. When descending stairs, he had to modify the way he negotiated the steps.[20]
[20] Ibid 108
41He had persisting, unpredictable and random clicking and catching sensation to the left knee, associated with pain towards the medial side. If he attempted to squat, he needed to take his weight onto the right lower limb. At work at times, he was able to kneel, but took most of the weight on the right side, and when rising he experienced irritation. If the leg was extended for a period of time, he experienced significant pain. He experienced stiffness and soreness when he awoke in the mornings and used a pull-on elastic knee support if he had more pain. He used Voltaren cream, took Panadeine as well as Panadeine Forte at times.[21]
[21] PCB 109
42Findings on examination included definite left quadricep muscle wasting compared to the right, with medial discomfort and clicking on rising.
43Mr McLean diagnosed an internal derangement of medial meniscal and chondral origin with associated ligament injury/strain. The condition was substantially stable but with persisting symptoms. Current treatment needs were purely self-management and some analgesics, depending on symptoms. He noted that the plaintiff had been unable to return to work in manual labouring type activities and this would continue into the foreseeable future. His Thai boxing/Muay Thai coaching remained limited to demonstration only and he did not perform kicking and loading. The prognosis was very guarded.[22]
[22] Ibid 115
Dr Jennnifer Flynn, orthopaedic surgeon
44Dr Flynn examined the plaintiff on 4 August 2021 via telehealth. She obtained a history of the circumstances of the accident as well as work injury in May 2018, where he twisted his knee while moving bricks which led him to see his general practitioner and undergo an MRI. She also described him as a pleasant and cooperative fellow.
45She noted that he experienced pain although he was independent in all personal activities of daily living. The plaintiff reported difficulty running, skipping, fighting or moving as required when he tried to box. He was unable to kick. He undertook a predominantly voluntary position coaching fighters. He had difficulty squatting and kneeling. He previously enjoyed Muay Thai boxing, training daily and running long distances as part of his training. Dr Flynn diagnosed an aggravation of left knee medial meniscal tear, debrided, ongoing pain and mechanical symptoms.[23] The requirement for him to undergo the left knee surgery was “the transport accident associated aggravation”.
[23] Ibid 123
46His capacity for physically strenuous work, prolonged standing, use of steps, squatting, kneeling, walking, and running was limited. This incapacity was likely to be ongoing indefinitely. He had no capacity to undertake his pre-injury duties as a coach and labourer. He had a capacity for suitable employment such as that which he is currently undertaking.
47In a supplementary report, she said, in view of the left meniscal tear, debridement and ongoing symptoms, the plaintiff was at risk of developing degeneration of the knee. She was asked to address the question as to whether the plaintiff had an increased risk of knee replacement surgery as a result of the transport accident. In her opinion, the plaintiff’s knee degeneration stemmed from both the meniscal tear, which was unrelated, and the partial meniscal resection which was accident related. A large resection would contribute significantly to marked accelerated degeneration in the knee, but the plaintiff only underwent a partial resection. Therefore, such treatment would be as a result of both the meniscal tear and he accident aggravation injury.[24]
[24] PCB 130
The defendant’s medico-legal reports
Mr Vishal Pai, consultant orthopaedic surgeon
48The plaintiff was examined on behalf of the defendant by Mr Pai on 5 October 2021. In his report dated 13 October 2021, Mr Pai noted that the plaintiff had sustained a motor vehicle accident on 3 June 2018 following which he underwent an arthroscopy. The plaintiff reported difficulty running, jumping changing directions quickly, difficulty walking downhill or a decline due to left knee pain. The pain bothered him daily and was localised to the medial aspect of the knee. He had associated painful clicking and locking symptoms 1 to 2 times per day. He did not take any analgesia. He reported intermittent knee swelling. He was able to perform body weight training when exercising on a stationary bike to maintain his fitness. There was knee pain at the end of the workday and if he turned at night on the bed. He was constantly anxious that his knee would give way and click, which occurred frequently and was associated with pain and catching.[25]
[25] Defendant’s Court Book (‘DCB’) 39
49The plaintiff reported being able to walk 20,000 steps a day. Prior to his knee injury he reported being able to run 15 km without issues. He was unable now to run due to the left knee pain. He had previously been involved in competitive martial arts and was at the time of examination unable to participate in casual sparring and only coached participants.
50Mr Pai noted that the plaintiff was pleasant and cooperated throughout the process. He noted mild wasting of the left quadricep, that he was able to squat with the knee in 90° of flexion but had left medial knee pain when doing so. There was audible clicking when the knee moved from a position of extension to flexion. The tracking of the patella was normal.
51In Mr Pai’s opinion, the plaintiff had ongoing left knee medial pain following a partial medial meniscectomy more likely due to re-tear or residual tear in his medial meniscus in conjunction with medial compartment osteoarthritis. The updated MRI performed on 13 February 2020 suggested a tear recurrence within the medial meniscus. In his opinion the MRI findings were such that the motorbike accident on 3 June 2018 had more than likely lead to an aggravation of a pre-existing complex meniscal tear that occurred in the context of the workplace-related incident four weeks prior.[26] He was asked what course the plaintiff’s left knee would have likely taken, had the transport accident not occurred. In his opinion, the plaintiff would have more than likely continued to experience aggravations of the left medial knee pain to varying degrees with highly physical activity. His symptoms may have improved with non-surgical treatment, but it is likely he would have experienced residual medial sided knee pain.
[26] Ibid 44
52In a supplementary report, he arbitrarily apportioned 50% contribution each from the meniscal tear following the work incident and significant aggravation of the left knee symptoms following the transport accident. In his opinion, the plaintiff exhibited symptoms consistent with medial compartment osteoarthritis. He had an aggravation of degenerative medial meniscal tear following a work-related injury event in April 2018 from which he reported recovering well. In June 2018, he had another aggravation of his symptoms from a degenerative medial meniscal tear from a motor bike accident. This led to him having a partial medial meniscectomy and medial femoral condyle chondroplasty in July 2018. The plaintiff continued to experience ongoing medial knee pain and difficulty with pivoting motions. His recent MRI on 12 October 2021 showed mild medial compartment osteoarthritis and evidence of a previous medial meniscectomy. The likely cause for his symptoms was medial compartment osteoarthritis. The natural history of a degenerative medial meniscus tear is a progression of osteoarthritis in the affected compartment. The degenerative medial meniscus tear was likely to have been present prior to his workplace injury in April 2018 as the plaintiff did not report any symptoms in his knee prior to this workplace incident. In his opinion, he would likely have developed the same symptoms if his left knee condition ran its natural course irrespective of the transport accident.[27]
[27] DCB 50
Dr Anthony Kam, consultant radiologist
53Dr Kam was asked to review the MRI findings of 16 May 2018 and 13 June 2018 as well as excerpts of the Alfred Hospital notes, and Mr Robin’s notes. He noted that the MRI Left Knee dated 16 May 2018 was obtained in respect of a work-related acute knee sprain which had occurred in the preceding 7 days. Persisting pain and swelling were noted. The images showed a joint effusion and a complex tear of the posterior horn medial meniscus with parameniscal cyst formation. There was oedema and signal change at the medial collateral ligament consistent with an acute low-grade injury.[28]
[28] DCB 36
54The repeat MRI Left Knee dated 13 June 2018 also showed the joint effusion had decreased in size. A complex tear of the posterior horn medial meniscus was again seen with parameniscal cyst formation and low grade signal change was again seen at the medial collateral ligament. Based on the images and information available, he expressed the opinion that the 3 June 2018 accident caused a symptomatic exacerbation of the plaintiff’s pre-existing left knee condition. Complex tearing of the posterior horn medial meniscus with parameniscal cyst as well as a low grade medial collateral ligament injury predated the subject accident. The symptomatic exacerbation by the 3 June 2018 accident was not evident on the MRI images of the left knee taken on 13 June 2018, as the 13 June 2018, the MRI images were not significantly changed compared to 16 May 2018.[29]
[29] Ibid 37
Issues and submissions
Plaintiff’s submissions
55It was submitted on behalf of the plaintiff that:
(a) His credit was not in issue and that he was a very forthcoming witness who made admissions against interest in cross examination. The employment application completed on 29 June 2018 was in the face of his impending knee surgery and his explanation that he lied to find employment to support his family was logical and compelling. The fact that he made that application points strongly to the fact that the plaintiff is very stoic.
(b) He was not challenged in relation to his evidence in relation to working with and volunteering with underprivileged youth at the Oakleigh Youth Centre.
(c) His prior knee injury was settling based on his evidence and the fact that he had returned to work immediately before the motorbike accident.
(d) Despite his pre-existing back condition, he was able to engage in heavy work in 2016 and 2017.
(e) As work at Treacle Painting and Maintenance was no longer available, he obtained work in a different capacity with another employer and was unable to handle that work physically. He now works in employment where he has an unchallenged loss of earnings from $1,400-$975 per week as he had to resort to exercising his remaining work capacity in different employment.
(f) He was not challenged that he was unable to return to work as a builders’ labourer and that he has lost that capacity. He was not cross-examined in relation to his plan to become a builder and supervise building developments.
(g) The medical opinion from Mr Robin was to the effect that the plaintiff’s left knee injury could affect all of his employment, domestic, social and leisure activities due to the weight-bearing stresses in an arthritic knee. The plaintiff was on the path of a total knee replacement. Mr Robin’s report in relation to the arthroscopy confirmed that the damage to the knee was worse than the reported MRI.
(h) The plaintiff had a secondary psychiatric injury which should be considered on a Richards v Wylie[30] basis.
(i) Mr McLean observed that MRIs have limitations.
(j) Dr Flynn’s opinion in relation to causation should be accepted.
(k) Mr Pai in his assessment did not take into account the extent to which the surgery itself had aggravated the degenerative process in the plaintiff’s left knee.
[30] [2001] VR 79
Defendant’s submissions
56The defendant submitted that:
(a) There were serious doubts in relation to the plaintiff’s reliability and credibility in relation to the extent and severity of the consequences that flow from the left knee injury.
(b) In the employment assessment, which was completed either on 4 July 2018 or 5 July 2018, the plaintiff reported “nil” issues in respect of the left knee and that he had resumed running 5km. Moreover, he was able to demonstrate stairclimbing, ladder climbing and lifting, and pushing and squatting without restriction. It was an extraordinary admission that he had lied to the examiner.
(c) The plaintiff was an unreliable witness that was willing to tell untruths in order to obtain a job and to obtain a serious injury certificate. The court should have severe doubts in respect of his evidence unless it was corroborated elsewhere.
(d) The plaintiff was silent in his affidavits about his recurrent severe back injury. He deposed that he had pulled a muscle in his back in the affidavits, but he had in fact suffered from chronic lower back pain and a poor prognosis. He had undergone a CT scan in 2013 and his general practitioner at the time observed that he had difficulty with repetitive bending, lifting and prolonged standing.
(e) In 2015 his general practitioner when writing to the Department of Immigration to assist with his mother-in-law’s Visa, to enable her to come to Australia to assist with his children, said that the plaintiff had a severe lower back condition in which he experienced daily lower back pain and stiffness and there was some L4l/L5 nerve root compression.
(f) Again in 2017 the plaintiff’s doctor wrote to the Department of Immigration in relation to the mother-in-law’s Visa.
(g) On 27 March 2018, the plaintiff’s general practitioner, Dr Stragalinos, referred the plaintiff to a physiotherapist for treatment of his back in the context of a three-day history of recurrent lumbar spine pain radiating to the left buttock. The treatment chronology in relation to the back points to the plaintiff’s regular attendance with doctors over the years.
(h) The plaintiff ceased work with Treacle Painting and Maintenance not because of his inability to undertake the work but because his employer lost the contract. The plaintiff retained the capacity to do the physical elements of the work of that nature.
(i) The plaintiff was still active physically, his answers in cross examination in relation to whether he owned a gym were unsatisfactory and he was still teaching gym classes for which he was being paid.
(j) In 2019, his surgeon, Mr Robin, did not consider there was anything of great significance.
(k) Radiologically there was not much difference between the MRI taken shortly before the motorbike accident and the one subsequent. Mr Pai was of the opinion that the plaintiff would have come to an arthroscope regardless of the motorbike accident. Dr Kam, radiologist, was of the opinion that there were no differences in the MRIs.
(l) The plaintiff was still active, he attended the gym, was able to teach boxing, drive and ride his to bike.
Credit
57I accept that the plaintiff gave truthful evidence. I agree with the medical examiners who described him as pleasant and cooperative. He readily conceded that he had lied on his employment application form to obtain employment. This is an inherently plausible explanation. He had attempted to return to building labouring work but found that his left knee injury prevented him from undertaking the work.
58The contemporaneous attendances with his general practitioner confirmed that on 22 June 2018 he was awaiting orthopaedic review and that he would attempt to return to work in the following 4-weeks on a trial of light duties. He attended again on 27 June 2018 where it was noted by the doctor that the left knee pain was increased “with swelling today at work, limping excessively, he was unable to continue working, left work early”. On 11 July 2018 he was seen following the left knee arthroscopy and he was on crutches. He was given a two-week certificate off work. On 25 July 2018 he presented with left knee pain and swelling persisting, despite having undergone the arthroscopy; he was limping and taking daily analgesia and Celebrex. He had purchased a knee brace. The plaintiff at that stage had an accepted TAC claim.
59The plaintiff undertook the employment assessment prior to undergoing the arthroscopy. The plaintiff was undertaking this procedure because of persisting symptoms. Mr Robin confirmed the pathology on arthroscopy. I do not accept that the plaintiff was symptom-free in the lead up to the arthroscopy. I find that whilst he may have presented for an employment assessment with a physiotherapist for the purposes of securing work and was able to display an active range of motion for a brief period of time, this did not represent a true picture of his symptoms or disability.
60I accept the plaintiff’s evidence that he was unable to return to his building labouring work, and this is confirmed by the contemporaneous reports to the general practitioner. The plaintiff was highly motivated to return to work following his injury and his desire to secure employment resulted in his lack of candour to a prospective employer who conducted a pre-employment assessment. Rather than detract from the plaintiff’s credibility, this lack of candour points to a highly motivated individual who is prepared to endure a certain level of pain and discomfort in order to be gainfully employed. He is to be commended for attempting to return to work in the face of significant pain and restriction.
61In relation to the plaintiff’s existing back complaints, a review of the records of Dr Stragalinos confirmed that there were episodes of acute exacerbations, but they then settled. For instance, he attended on 17 December 2012 with a stiff back. Then there were a number of attendances throughout 2013 where he complained of back pain and stiffness but by 30 October 2013, the doctor was recording that his lower back exacerbation had resolved, and he was provided with a reference for his private security licence.
62The plaintiff did not attend again for any back complaint until 3 March 2015 when he reported that lifting his children may be making his symptoms worse and his wife was exhausted. He was not seen again until 8 January 2017 and that coincided with a request for a letter to the Department of Immigration to assist with his mother-in-law’s visit to Australia. Although there was a referral to the physiotherapist in March 2018, it was conceded by senior counsel for the defendant that there is no evidence that the plaintiff actually attended. The plaintiff could not recall any attendance.
63Whilst I accept that at times the plaintiff had an acutely symptomatic back, he was at all times being treated by Dr Stragalinos who observed that the acute exacerbations had settled or resolved. Dr Stragalinos supplied the plaintiff with the Centrelink certificate in 2013 and he subsequently certified that his back exacerbation had resolved. I accept the evidence of Dr Stragalinos that the back condition improved and settled after exacerbations. Similarly, there were short lived aggravations in respect of back pain in late 2018 and again in December 2019. In January 2021 the plaintiff suffered an aggravation of back pain in the course of his employment. By 28 April 2021, Dr Stragalinos said that the plaintiff had made a full recovery from the back injury. Whilst the plaintiff’s affidavits do not descend to detail in relation to the extent of the back aggravations, the medical records of Dr Stragalinos were disclosed, and the plaintiff did not hide his condition.
Compensable injury
64I accept the plaintiff’s evidence that he had largely returned to normal physical labouring duties before his motorbike accident. He did not need a referral to a specialist, nor did he require surgical intervention. The referral to Mr Robin and the surgical intervention was as a result of the transport accident.
65I prefer the evidence of Mr McLean who examined the plaintiff on four occasions in relation to diagnosis and there is a consistency in his opinion with that of Dr Flynn and Dr Stragalinos.
66The plaintiff was diagnosed with internal derangement of medial meniscal and chondral origin with associated ligamentous injury and strain by Mr McLean and an aggravation of the underlying meniscal lesion as a result of the motor bike accident. The left knee was vulnerable due to the earlier work injury, but it was rendered symptomatic and problematic by the motor bike accident. He had a definite increased risk of developing osteoarthritis having undergone the partial medial meniscectomy and although the timing of the onset was multifactorial, it was inevitable. I accept Mr McLean’s opinion particularly as he has had the benefit of four examinations of the plaintiff.
67I also accept the opinions of Mr Robin and Dr Flynn. Dr Flynn particularly has analysed the respective contributions of the two events and noted that the plaintiff’s knee degeneration stems from both the meniscal tear (not accident related), and the resection of the meniscus (accident related). The transport accident resulted in the need for the partial resection of the medial meniscus, and this may lead to arthritis and joint replacement surgery.
68I prefer their opinions to Dr Pai’s. I find the supplementary opinion of Dr Pai that the plaintiff would have required an arthroscopy in any event, inconsistent with his arbitrary 50% apportionment of the plaintiff’s condition arising from the meniscal tear following the work incident and significant aggravation of the left knee symptoms following the accident. Moreover, he opined in his original report that the transport accident had aggravated the symptoms occurring from the degenerative medial meniscal tear. I also find that Dr Pai did not consider the impact of the resection on the degenerative process itself and the consequences that will flow from the degeneration.
Consequences of the injury
Pain
69The plaintiff continues to experience pain and clicking, grinding and locking in his knee on a daily basis. The pain varies in severity from day-to-day but is aggravated by physical activity and prolonged periods of time on his feet. It ranges from a dull ache to a stabbing type of pain.
70Dr Stragalinos reported the plaintiff describes daily left knee pain. Mr McLean confirmed the plaintiff also has daily pain which he self-managed. Dr Flynn recorded ongoing symptoms which are significant. Dr Pai also recorded left medial knee pain and swelling (although his opinion is from 2021).
Medication and medical treatment
71The plaintiff last attended Mr Robin in around May 2022 and has not returned to him as no further treatment at this stage is required, although a total knee replacement has not been ruled out for the future. In terms of the plaintiff’s medication, he deposed that he avoids medication due to side-effects. He straps the knee and applies Voltaren gel as well as using hot water bottles and ice packs to relieve the pain on a daily basis. His evidence was that he also takes Panadeine and Panadeine Forte as required but rarely. He attended his general practitioner rarely as there is little that can be done treatment wise at this stage.
Work capacity
72The plaintiff continues to be employed which is to his credit. After he was made redundant with Treacle Painting and Maintenance in November 2023, he obtained work at Bayside Maintenance and Gardening which involved shovelling, digging and pushing a wheelbarrow that could weigh up to 40kg. He was unable to cope with that work due to the impact on his left knee and he resigned from that employment. He has now obtained a new job with Jayco Caravans doing pre-delivery check-overs on new caravans that does not involve any heavy manual work. He is able to cope with this work. His weekly net wage at Treacle was $1,400 per week. He now earns approximately $975 per week at Jayco. He deposed that he is glad to have a job in order to provide for his family, despite his ongoing pain.
73Mr Robin’s considered that the plaintiff would be precluded from engaging in the following:[31]
(a) high-impact sporting or recreational activities (although Mr Robin noted the plaintiff had returned to Muay Thai in a teaching capacity without restriction);
(b) repetitive prolonged use in a weight-bearing activity;
(c) kneeling, squatting and crouching, prolonged sitting or other prolonged static postures including walking or standing for long distances; and possibly
(d) using steps or ladders on a repetitive basis.
[31] PCB 49
74Mr McLean also confirmed limitations on twisting, squatting and loading the left knee. These limitations would continue into the future. As a result, he would be precluded from returning to work in manual labouring type activities into the foreseeable future.
75Dr Flynn also agreed that the plaintiff’s capacity for physically strenuous work, prolonged standing, use of steps, squatting, kneeling, walking and running was limited. This incapacity is likely to be ongoing indefinitely. He had no capacity to undertake preinjury duties as a labourer or as a Muay Thai coach. The capacity was significant.
Sleep
76The plaintiff has deposed that his sleep has been impacted. This is confirmed by Dr Stragalinos, and Dr Serry noted that the plaintiff did not sleep well due to his knee pain. Dr Flynn also noted that the plaintiff reported pain and stiffness particularly at night which frequently woke him.
Sports and hobbies
77The plaintiff continues to attend the Oakleigh Youth Centre to work with at risk youth and provide mentorship which he regarded as a light activity. In terms of his recreational activities, he attended the Muay Thai Gym to instruct children. He gave verbal directions and did not spar or kick or put any significant pressure on his knee. He found this depressing as he loved Thai kickboxing, he was an elite sportsman, but was now unable to participate in it as he did before the accident. He attended the gym but was limited to pull-ups and sit-ups and did not do any exercises that involved putting pressure on his knee.
78The plaintiff cannot go rollerblading or skateboarding with his daughters. There have been many activities that he has not been able to enjoy with his daughters that he used to. His relationship with his current partner has been impacted.
Findings
79I accept the plaintiff’s evidence in relation to the limitations he experiences as a result of his left knee condition, virtually daily and the impact those limitations have on his occupational, domestic and recreational activities. The evidence of the plaintiff’s partner has not been impeached. Ms Gounis largely corroborates the plaintiff’s evidence. She has observed the impact of the left knee injury on him which has restricted his activities both socially and at work. She has observed the way he is impacted when he walks on uneven ground and climbs up the stairs. She also has observed him struggling with domestic activities.
80I also note the evidence of Ms Dib, who is the owner of the gym and an amateur Muay Thai fighter, who corroborates the plaintiff’s complaints of pain and his inability to perform any of the actions required in Muay Thai and in training sessions.
81The plaintiff’s senior counsel referred me to Abbas v Transport Accident Commission, where the Court accepted:[32]
“... The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capability for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. ... .”
[32] [2015] VSCA 217
82I was also referred to State of Victoria v Glover, where the Court accepted the injuries had caused a lack of flexibility in the workforce in relation to future employment, noting:[33]
“... The impairment may be ‘serious’ although it does not at present result in any substantial loss of income.”
[33] [1998] VSCA 93
83Both these cases are pertinent. The plaintiff’s injury has disabled him from pursuing a career direction which he was embarking on, and I find this is a very significant pecuniary disadvantage.
84I accept the plaintiff’s evidence, and psychiatrist, Dr Serry’s opinion, that he has an adjustment disorder with anxious features and features of traumatisation and has intermittent flashbacks. Consistent with the principles in Richards v Wylie, I accept that the cause of the plaintiff’s impairment is organic and as a measure of the seriousness of the organic impairment, it is permissible to take into account the psychological response.
85In conclusion, I take into account the pain and suffering consequences for the plaintiff as outlined above, which are chronic, and the evidence supports they are likely to remain so at least for the foreseeable future. When combined with the pecuniary disadvantage, which I have detailed above, which constitutes the loss of his preferred career, I am satisfied the combined consequences of the injury are serious to the applicant when judged by comparison with other cases in the range of possible impairments and losses and are at least “very considerable” and certainly more than “significant” or “marked”.
Conclusion
86Leave is granted to the plaintiff to commence common law proceedings for injuries suffered in the transport accident on 3 June 2018.
87I will hear argument with respect to costs.
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