McNaughton v State of Victoria
[2023] VCC 290
•7 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-02702
| KELLY MCNAUGHTON | Plaintiff |
| v | |
| STATE OF VICTORIA (VICTORIA POLICE) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February and 1 March 2023 | |
DATE OF JUDGMENT: | 7 March 2023 | |
CASE MAY BE CITED AS: | McNaughton v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 290 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the knee – claimed consequential Achilles tendon injury – causation - consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Lexa v Transport Accident Commission [2019] VSCA 123; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Kelso v Tatiara Meat Co. Pty Ltd [2007] VSCA 267
Judgment: Leave granted to the plaintiff to commence a common law proceeding for damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley with Ms G Angelowitsch | Rubicon Compensation Lawyers |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HIS HONOUR:
Introduction
1To perform a public service, you do something that helps or benefits the people in a particular community.
2Service as a police officer is an obvious example of performing a public service that benefits the community.
3The plaintiff, Kelly McNaughton, is a police officer, currently serving as a sergeant based at Hamilton in Western Victoria.
4The plaintiff can be described as someone born into, and ingrained with a sense of, public service. Her father served in the military, as did her two brothers.
5The plaintiff commenced her training as a police officer in 1993. By 1996, she was stationed at Hamilton, where she met her future husband. They married in 1998 and now have two teenage children. For many years the plaintiff, and her husband, have served as police officers in and around Western Victoria.
6In the course of her service as a police officer, on 6 October 2015, the plaintiff tripped and fell in the rear carpark of the Hamilton Police Station, causing an injury to her left knee (“the incident”).
7The proceeding before the Court is an application by the plaintiff brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013. She seeks the consent of the Court to commence a common law proceeding for pain and suffering damages. The plaintiff claims to have suffered a “serious injury” to her left knee.
8The defendant accepts that the plaintiff suffered an injury to her left knee and continues to suffer impairment and impairment consequences from that injury. The defendant disputes that the impairment consequences are “very considerable”. As a corollary to the principal dispute, the defendant disputes that the plaintiff has suffered an injury to the left Achilles tendon that is causally related to, and a consequence of, the left knee injury.
9The relevant legal principles are undisputed. The proceeding was conducted in the “usual way”. The plaintiff tendered two affidavits sworn by her, together with an affidavit from a former police colleague. In addition, she tendered various claim documents, medical reports, and other relevant documents. In response, the defendant tendered an affidavit from the station commander of the Hamilton Police Station, together with the relevant medical reports, clinical records, and related documents. The plaintiff was required for cross-examination and gave oral evidence.
10I have considered all of the relevant evidence, together with the transcript of the plaintiff’s oral evidence, and the parties’ submissions, but I will only refer to that material to the extent necessary in these reasons.
The left knee injury
11In her first affidavit,[1] the plaintiff described the circumstances of the left knee injury as follows:
“On 6 October 2015 I suffered injury. It was approximately 6.45 am. I had parked in the rear car park of the Hamilton Police Station and was walking toward the rear door. It was quite dark. At the time I was suffering a cold and veered slightly off my usual route to throw a tissue in a bin, but as I did I tripped on a nearby exposed concrete drain cover. I landed heavily on my knees, particularly my left knee. My fall was captured by CCTV footage.
I took a few days off work but was keen to get on with it, trusting the pain would settle.
Over the next couple of weeks my left knee pain persisted. It felt unstable, particularly when walking up stairs or over uneven ground. At times the knee gave way on me.
On 27 November 2015 I attended on my General Practitioner, Dr Dale Ford. He arranged for x-rays and certified me fit for only light duties with the requirement that I avoid running.
On 29 December 2015 I again attended Dr Ford. With no improvement he renewed my certificate again stipulating that I avoid running. I continued working, desk bound because of my injury.”[2]
[1]Sworn 22 February 2022, Plaintiff’s Court Book (“PCB”) 32.
[2]PCB 36.
12As mentioned, the defendant accepts that the plaintiff suffered injury to the left knee. That injury has been described in medical reports, to which I will return, as the aggravation of left knee patellofemoral osteoarthritis, although there is no suggestion that the plaintiff was symptomatic in the left knee before the incident.
13On 27 November 2015, the plaintiff attended her general practitioner, Dr Dale Ford. Extracts of his clinical records are in evidence. On 27 November 2015, he recorded the incident in the carpark, and that when the plaintiff walked on it on any incline “the knee ‘gives out’” and that when she swims it also clicks. He recorded she was tender over the left knee and referred her for an X-ray.[3]
[3]PCB 69.
14An X-ray of the left knee was performed on 30 November 2015.[4] It was reported as demonstrating normal alignment and no significant degenerative changes or other arthropathy.
[4]PCB 52.
15The plaintiff returned to see Dr Ford on 29 December 2015. On that occasion, he recorded:
“knee occasionally giving out - mainly resting
further month on certificate”[5]
[5]PCB 69.
16Dr Ford issued a medical certificate on 29 December 2015,[6] in which he recorded the plaintiff was not improving much but could still work. He recorded the knee was swollen on examination and said the plaintiff should avoid prolonged standing, walking, and running.
[6]Exhibit P2.
17In accordance with the Certificate of Capacity from Dr Ford, the plaintiff continued as an operational police officer subject to the medical restrictions.
The left Achilles injury
18On 10 January 2016, the plaintiff was required to assist two fellow police officers to arrest an offender in circumstances where the other officers were in peril. In her first affidavit, she described this incident as follows:
“On 10 January 2016 I suffered further injury (sic) my left leg at work. Due to short staffing I was working night shift. A call was made for the attendance of all officers to a critical incident involving a suspected drug deal. As the Supervising Sergeant I was required to attend. During the incident there was a scuffle with the offender which put a fellow officer’s life in danger. I had to run full pelt to reposition. As I did, I thrust my weight through my left leg which caused my problematic knee to buckle and my left ankle to twist.
Once the situation was resolved and the adrenalin settled I found I could not walk. I attended the Emergency Department and told that I had torn my Achilles tendon. My foot was placed in plaster and I was discharged on crutches.
On 18 January 2016 I attended on Dr Ford and was sent for an ultrasound which confirmed that I had indeed torn my Achilles. I was certified off work.
On 20 January 2016 I attended on Mr Andrew Byrne, Surgeon. He arranged an MRI of my knee and advised me that the results identified significant damage to my kneecap which required surgical reconstruction. I sought a second opinion from another surgeon, Mr Price who advocated a conservative approach with physiotherapy. I opted against surgery and undertook a vigorous physio program under the guidance of Genhealth in Hamilton.”[7]
[7]PCB 36-37.
19The plaintiff’s affidavit blamed the injury to the left Achilles injury on the giving out of her left knee and the giving out of that knee to the initial compensable injury.
20The parties agreed that, if the left Achilles injury is a consequence of the left knee, then it may be considered as one of the impairment consequences of the initial compensable injury.[8]
[8]Lexa v Transport Accident Commission [2019] VSCA 123 at paragraph [50].
21The issue that was front and centre in this proceeding is whether the plaintiff’s left knee, in fact, gave way, causing the Achilles injury, or whether there was no involvement of the left knee in the Achilles injury. In other words, the defendant submitted that the plaintiff had simply suffered a separate and discrete injury to the left Achilles, unrelated to the left knee and, therefore, not an impairment consequence of compensable injury.
22In order to understand the reason why the defendant disputed the left Achilles injury as a consequence of the left knee, it is necessary to set out the contemporaneous documentation of the left Achilles injury.
23Commencing with the plaintiff’s Worker’s Injury Claim Form,[9] when asked what happened and how were you injured, the plaintiff recorded a broad description of “injury occurred whilst arresting an offender on 10/1/16 during nightshift”.[10]
[9]PCB 7.
[10]PCB 7.
24Shortly after the incident, on 10 January 2016, the plaintiff attended the Emergency Department (“ED”) at the Hamilton Hospital. In clinical notes, it was recorded that:
“Kelly is a 46 year old lady. Police officer. Was chasing suspect yesterday. Sprinted, felt pain in left posterior ankle.”[11]
[11]Amended defendant’s Court Book (“ADCB”) 123.
25Further, in what are described as retrospective notes, it was recorded by the ED that the plaintiff presented with posterior left ankle pain and that she “was running at work, denies trauma/fall. Tender in Achilles tendon”.[12]
[12]Ibid.
26Next, on 13 January 2016, Ms Sarah Baxter, injury management operations manager at Victoria Police, sent an email to the plaintiff regarding both the left knee and the subsequent left Achilles injury. The plaintiff responded to that email on 17 January 2016. It is convenient to set out those emails in full as follows:
“From: McNaughton, Kelly
Sent: Sunday, 17 January 2016 5:24 PM
To: Baxter, Sarah
Cc: Kelly, GerardSubject: RE: Injury follow up
Hi Sarah,
Yes I supplied a new certificate to Gerry. It had the same comments on it in relation to ‘no prolonged running, standing etc’.
Gerry had a discussion with me about adhering to the direction not to engage in any prolonged running, standing etc, which I have been abiding by.
To clear up any confusion, I have adhered to the direction and did not injury (sic) my Achilles through prolonged running.
I watched two of the members, SC Sally FRAZER & LSC Rod CHARMAN, run past me after the offender, and didn’t initially follow, as I thought it would involve prolonged running.
When they very quickly caught the offender some 50 metres away and started wrestling with him, I undertook a short sprint to assist the members wrestling with the offender from a standing start position.
Taking off from a standing position suddenly, then sprinting, has caused the issue.
My Achilles was initially put in a half cast and bandaged, and I was provided with crutches, as they believed there might have been a small tear.
I have booked a doctor’s appointment for tomorrow, to obtain a certificate to enable me to get back to work, as it has improved a lot since I did it.
I don’t believe it is torn, but rather it was strained, as it is getting better. It still feels like it is strained when I initially walk on it, but after it has warmed up when moving it, it feels better.
I will request a scan tomorrow to see what’s going on.
Regards
Kelly MCNAUGHTON
Sergeant | Western Region | Division 2 |
Hamilton Police Station
_____________________________________________
From: Baxter, Sarah
Sent: Wednesday, 13 January 2016 08:53
To: McNaughton, KellySubject: Injury follow up
I have received notification of a new injury (Left Achilles), sustained on 10.01.16 while you were pursuing an offender.
I just wanted to check how your recovery is going?
Did you end up getting a clearance certificate for your knee injury? I note that the certificate I currently have in relation to your knee certifies you only fit for modified duties up to 21.01.16 and stipulates that you should avoid running. If you could clarify, that would be great.
Thanks
Sarah
Sarah Baxter
Injury Management Operations ManagerHealth, Safety and Deployment Division | Human Resource Department | Victoria Police”[13]
[13]Defendant’s Amended Court Book (“DACB”) 139-40.
27Then, on 18 January 2016, the plaintiff returned to Dr Ford. On that occasion, he obtained a history as:
“while on night shift, she needed to sprint to apprehend offender.
see notes from ED 10 Jan ?partial tear left achilles tendon
for US Left achilles”[14]
[sic]
[14]PCB 69.
28By letter dated 20 January 2016, Dr Ford wrote a referral letter to Mr Andrew Byrne, orthopaedic surgeon.[15] In that letter, he noted the plaintiff had been working on modified duties since injuring her left knee and that:
“The pain has not improved and is continuing to ‘click’ and ‘give out’. She was being referred to you about this but, also, while on duty around 17 January, she needed to sprint to apprehend a criminal and support her colleagues. She felt something give at the back of her ankle – as you can see from US she has an intrasubstance achilles [sic] tear.”[16]
[15] Exhibit D1.
[16]Ibid.
29Mr Byrne then reported back to Dr Ford by letter dated 8 February 2016 regarding both the left knee and the left Achilles. In respect to the left knee, he recorded it aching occasionally and giving out at times. He also noted that on 10 January 2016, the plaintiff went to chase a person and felt a severe pain in the back of her ankle, and the next day she could not work on it.[17]
[17]PCB 70
30On 2 November 2016, the plaintiff was examined for medico-legal purposes by Dr Graeme Doig, orthopaedic surgeon. In a report of that day, Dr Doig obtained a history in respect to the left knee and left Achilles as follows:
“[The plaintiff] stated that she initially injured her left knee, particularly the patellofemoral articulation, in a fall at work on 06.10.2015. She was coming in to start her shift in the dark and, unfortunately, she fell over some broken concrete which was covering a drain in the work premises. She fell directly onto the front of both knees causing bruising and abrasions. The left side was giving her more symptoms and, in fact, she attended the Emergency Department to be assessed.
[The plaintiff] had some time off work before returning to modified duties. She did not upgrade to pre-injury status. It was in the course of running to help out some colleagues who were involved in an arrest on 10.01.2016 when she developed acute pain in her left Achilles tendon. She managed to finish her shift that day but she again attended the Emergency Department that evening and she was placed in a plaster cast as it was felt she may have torn her Achilles.”[18]
[18]DACB 125.
31As will be clear, to this point in the narrative, the recording by medical practitioners as to the circumstances of the left Achilles injury did not make note of the left knee giving way, or as being located in the injury to the Achilles.
The lack of a contemporaneous complaint of an unstable knee
32It was this lack of contemporaneous recording by medical practitioners of the left knee buckling, or giving way, that formed the basis of the challenge of the plaintiff as to the relationship between the left knee injury and the left Achilles injury during cross-examination. It is unnecessary to set that evidence out in full. It can be succinctly summarised in the following exchange during cross-examination:
Q:“And I suggest it makes no mention of your left knee because it played no role in you injuring your left achilles tendon?---
A:No, that's not correct.”[19]
[19]Transcript (“T”) 78, Lines (“L”) 28-30.
33The plaintiff was adamant and consistent during her oral evidence that the left knee was implicated in the injury to her Achilles. Again, it is unnecessary to set that oral evidence out in full, but it can also be summed up in the following exchange in cross-examination about what the plaintiff said when she first attended at the Emergency Department of the Hamilton Hospital:
Q:“Ms McNaughton, I just want to take you back to the evidence you gave about your attendance at the hospital on 10 January 2016?---
A:Yep.
Q: That was the morning after you injured your achilles?---
A: Yep.
Q:I took you to the note and you accepted that there's no mention of the left knee in the note?---
A:Yep.
Q:But you said to this court, ‘I have a recollection of telling them a version of events that included the knee’?---
A: That's right.
Q: What do you say you told them on that morning?---
A:I told them that in the process of arresting some drug dealers, my members had to sprint after an offender who was trying to escape. I've looked over and there was a life threatening situation happening and I've had to turn with maximum force and take off to chase them and my knee buckled and I felt immediate pain in my achilles.
Q: You say you can recall saying that at this attendance?---
A: Yes.”[20]
[20]T43, L10-27.
34The defendant submitted that the plaintiff’s reliability was in question and that the Court should not accept her evidence of the left knee buckling or giving way, and as causing injury to the left Achilles. However, appropriately, the defendant accepted that, if the Court concluded that the left knee did give way, then it was causally related to the left Achilles injury, which could then be taken into account as one of the impairment consequences.
35It is trite to note that there is no contemporaneous mention to a medical practitioner of the left knee buckling. But, as recently noted by the Court of Appeal in Hettiarachchi v Transport Accident Commission:[21]
“We have not lost sight of the fact that a Court needs to be careful in accepting apparent statements of fact made by patients (or plaintiffs in a medico-legal setting) and recorded by medical practitioners and contained in their notes or reports. At times what might appear to be a statement of fact may simply be an observation or impression of the doctor. Or, in some cases, may simply be an incorrect record of what was said during a busy consultation.
Usually, the recording of such statements by the doctor has one purpose: to assist in forming a diagnosis of the patient (or plaintiff’s) condition. They are not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material, particularly when the fate of the application or claim may, at least in part, turn upon the accuracy of the asserted admission against interest. This is all the more so when in most serious injury applications and personal injury trials the relevant medical practitioner is not called to give evidence...”[22]
[21][2023] VSCA 27.
[22]Ibid [57]-[58].
36In this proceeding there is nothing inherently inconsistent with what is contemporaneously recorded by medical practitioners regarding the left Achilles injury. Rather, the inconsistency is by omission, namely, the mention of the left knee buckling.
The knee and the Achilles are related
37Having considered the evidence, I conclude that the left knee injury caused the plaintiff to suffer an ongoing, unstable knee. I also conclude that the knee gave way or buckled and caused the subsequent left Achilles injury. I have reached these conclusions for the following reasons.
38First, the plaintiff impressed me as a credible person. I consider that she gave credible evidence and made concessions as appropriate. I accept her evidence of the circumstances of the left Achilles injury.
39Second, there is contemporaneous reporting of the plaintiff’s left knee being unstable in the months following the initial injury,[23] causing her to modify her activities. It fits in with the unstable knee giving way when in an emergency situation the plaintiff had to place a force through it to go and assist her fellow police officers.
[23]PCB 69, 70, 79, 80, 82, 84
40Third, the plaintiff provided an affidavit from Ms Bronwyn Jane Dwight, a former police colleague of the plaintiff. In that affidavit, sworn 5 February 2023,[24] Ms Dwight said that:
“In January 2016 I had been on leave, and I bumped into Kelly outside of work. I recall that Kelly was then on crutches, and she told me that she had to run and her left knee gave way and her Achilles tendon had snapped when she had to suddenly sprint to the defence of two co-workers. She told me that she had to wrestle with the offender who was assaulting the two officers.”[25]
[24]PCB 48-51.
[25]PCB 49.
41In summary, while there is no doubt that the initial recording by medical practitioners did not implicate the left knee, I am satisfied that the whole of the evidence tends to a conclusion that the plaintiff’s left knee did give way, causing the consequential injury to the left Achilles. At the risk of repetition, I am satisfied, because of the objective evidence that the plaintiff’s left knee was unstable prior to the Achilles injury. I accept the plaintiff’s evidence as to what she said at the Emergency Department in preference to what is recorded in that note. There seems a probability that the Emergency Department note was relied on by Dr Ford in his history taken, and that has translated to the information that Mr Byrne was given. In addition, there is the evidence of Ms Dwight that records a contemporaneous reporting of the left knee having given way.
Impairment consequences, service as a police officer and the PMO
42Having concluded that the left Achilles injury is an impairment consequence of the compensable left knee, the next step is to turn broadly to consider whether the plaintiff has demonstrated “very considerable” impairment consequences.
43The main challenge to this aspect of the plaintiff’s claim was built around the fact that she continues to serve as an operational police officer.
44In my view, it is necessary to put in context the plaintiff’s ongoing service as a police officer.
45I have no doubt that the plaintiff’s ongoing service is extremely important to her. I was struck by her evidence during re-examination, when she became emotional when describing how important her role as a police officer is to her emotional state. She said:
“It's everything to me. It defines who I am - sorry. I just get a bit emotional. I've done it for 30 years, I just can't imagine doing anything else. I love my job. I get so much satisfaction out of leading my troops, the troops look up to me, helping the community. My kids look up to me being a police officer. I absolutely really love my job. It's been my life. Actually, I've done it longer - you know, more than half my life. Yeah, it's everything to me.”[26]
[26]T75, L22; T 76, L1.
46That oral evidence fits comfortably with the plaintiff’s affidavit evidence of how important it is to her to continue in service as a police officer.
47It became clear during her evidence that to remain an operational police officer, the plaintiff must have clearance from the Police Medical Officer (“PMO”) and must also complete regular operational safety and tactical training.
48Regarding her ongoing physical capacity to serve as a police officer, the defendant highlighted a report from Dr Ford dated 8 November 2021 that was provided to the PMO.[27] That report can be summarised by reference to Dr Ford’s comment that there “are no restrictions that should be placed on the employee in performing their role”.[28] The report set out various tolerances for certain activities and endorsed the plaintiff as capable of those activities for the purpose of undertaking operational policing.
[27]DACB 10.
[28] Ibid.
49In addition, the defendant relied on a report provided by Ms Stephanie Farquharson, physiotherapist, to the PMO dated 15 November 2021.[29] In that report, Ms Farquharson noted the plaintiff undergoing regular physiotherapy, with significant improvement and good stability of the left foot and ankle. She opined that the plaintiff was likely to continue experiencing some pain in the Achilles for the foreseeable future, but that such pain was not currently limiting her activity, and is manageable with simple analgesia, and settles overnight. Ms Farquharson said that she did not expect the plaintiff’s Achilles injury to limit her effectiveness under adverse or abnormal conditions.
[29]DACB 15.
50The defendant submitted that the reports from Dr Ford and Ms Farquharson to the PMO demonstrated that the plaintiff was fit for full and unrestricted service as a police officer, and broadly suffered little impairment consequences. This, it submitted, should be contrasted with the plaintiff’s affidavit evidence that she was really just hanging in there at work.[30]
[30]PCB 43.
51In my view, the starting point in a consideration of this issue of the plaintiff’s current fitness to serve as an operational police officer is the evidence of the importance of the job to the plaintiff. The plaintiff accepted during cross-examination that she was effectively saying to the Court that she was not fit to work as a police officer, while on the other hand was going to the PMO and saying she was. She explained this inconsistency as, “Well, I down played the symptoms, because I knew the consequences,” and that “I’m worried about my future.”[31] It was put to her that she had told untruths to the PMO, and she agreed. Once again, she said that she had downplayed her symptoms, but that she did find it difficult to do her job.[32]
[31]T 46, L 16-29.
[32]T 47, L 5-16.
52The plaintiff gave credible and compelling evidence of how important her service as a police officer is to her, and why she had downplayed her symptoms to the PMO. I accept her evidence.
53I also conclude that Dr Ford and Ms Farquharson also played down the plaintiff’s symptoms – probably at the request of their patient – when reporting to the PMO. I make this conclusion because they had provided reports shortly before writing to the PMO in which a different picture was painted by them of the plaintiff’s ongoing physical limitations.
54In a report dated 28 September 2021,[33] Dr Ford recorded the plaintiff’s left knee as remaining painful, aching intermittently, and requiring analgesia and anti-inflammatories. He noted the subsequent left Achilles tear and ongoing lack of function and pain.
[33]PCB 82.
55Ms Farquharson provided a report dated 17 September 2021[34] which also paints a gloomier picture than what she had said to the Police Medical Officer. Ms Farquharson said the plaintiff would continue to have pain in the Achilles and dysfunction through the left lower limb. Regarding work capacity, she said:
“I believe that Kelly does have capacity to work. Currently she works light duties which from my understanding is entirely administration based duties. With regards to the current state of her injuries, this is very much appropriate. Provided that Kelly has the flexibility in this role to get up and move regularly, I believe she isn’t limited in her hours of work. In terms of her physical capacity, she is able to achieve this. For Kelly to return to her usual full duties, she requires improved walking tolerance and the ability to run, which she cannot do currently. This part of the rehabilitation process has been stalled due to the work cover insurer taking an exceptionally long time to approve the required equipment.”[35]
[34]PCB 86.
[35]PCB 87.
56I do not consider the apparent under-reporting of physical restrictions to the PMO to be a black mark against the plaintiff’s credit. Rather, it is simply a matter of fact and perpetrated by the motivation to remain an operational police officer. Likewise, I do not criticise the medical practitioners who may have assisted in the wool being pulled over the PMO’s eyes, as I conclude it was done in the best interests of their patient.
Station Commander Kelly
57For completeness, the subterfuge used by the plaintiff to remain operation – that is failing to disclose the extent of her physical limitations – appears a ‘victimless crime’. The defendant tendered an affidavit from the Station Commander at the Hamilton Police station, Senior Sergeant Gerard Kelly, sworn 20 February 2023.[36] He makes no comment about the plaintiff’s left knee/left Achilles injuries, other than noting the plaintiff recommenced operational duties in January 2022 and “currently performs all operational duties”. He also says that if the plaintiff had raised issues with him about her fitness for operational duties, then he would have “initiated a process regarding her fitness for duty”.[37]
[36] ADCB 6.
[37] ADCB 7.
58Senior Sergeant Kelly’s evidence supports the plaintiff’s evidence that fessing up to the PMO about her symptoms would jeopardise her ongoing position. I also note the high level of generality of his evidence and that he does not suggest he observes the plaintiff ‘on the beat’ on a day-to-day basis. His evidence also tends to the conclusion that whatever her difficulties, the plaintiff continues to perform valuable service as a police officer and hence the ‘victimless crime’.
59Therefore, in context, Senior Sergeant Kelly’s evidence corroborates the plaintiff’s own evidence. And as Maxwell P said in Haden Engineering Pty Ltd v McKinnon[38], the fact that the plaintiff has resumed her pre-injury role does not preclude an affirmative finding of ‘serious injury’. It is simply one of the matters that must be taken into account.
[38] [2010] VSCA 69 at [13] (‘Haden’).
The other evidence of consequences
60As a starting point, I have considered the evidence in the plaintiff’s affidavits about the consequences from her left knee and left Achilles. That evidence summarised is of her having ongoing pain in the left leg, with difficulty walking, standing, running, consequential weight gain, undertaking domestic tasks and interference with her job.
61Of course, one of the consequences has been the need for repeat reconstructive surgery of the Achilles, surgery was performed by the orthopaedic surgeon Dr Russell. Despite two lots of surgery, the plaintiff has ongoing pain referable to the Achilles injury.
62The most recent reporting from Dr Russell is in a letter to Dr Ford dated 20 October 2020,[39] when the plaintiff was awaiting further left Achilles tendon transfer surgery. But regarding the left knee, he noted recent MRI scanning as demonstrating moderate patellofemoral arthritis. He said that he advised ongoing activity modifications and medication and that she may need a total knee replacement down the track.
[39] Exhibit P1.
63Returning to her affidavits, in her second affidavit the plaintiff again described the difficulties her left knee/caused in her ongoing work, including a giving way of the knee causing a fall and injury to the right shoulder. She described ongoing throbbing and swelling in the knee at the end of a shift, elevating her leg, and at times having a really bad day. She described the Achilles injury as interfering with her sleep. She continued to attend Dr Ford and required regular Panadol as well as Mobic and Voltaren Gel. She continued to have physiotherapy for her left leg.
64Moving to her oral evidence, the plaintiff confirmed broadly the restrictions described in her affidavits. She said she does daily home-based exercise. She confirmed the ongoing use of pain killers and anti-inflammatory medications.
65I accept her affidavit and oral evidence of the impairment consequences that she continues to experience from the left knee injury.
66For completeness, I note that more recently, Dr Ford opined that the plaintiff would have ongoing consequences from the left knee and left Achilles. He described a poor prognosis and the need for knee replacement when the pain gets unbearable. In his letter of 24 January 2023, he opined that the plaintiff was not fit for her usual employment.[40] This evidence from her long-term treating doctor supports the plaintiff’s evidence.
[40]PCB 85.
67Also for completeness, Ms Farquharson also recently reported on the plaintiff’s ongoing situation. In a report dated 22 December 2022[41], in respect to prognosis, she described ongoing pain and the need for continuing physiotherapy.
[41]PCB 88.
Dr Parminder Singh
68In addition, the plaintiff relied upon medico-legal opinion from Dr Parminder Singh, orthopaedic surgeon.[42] In a report of 22 February 2022 he opined that the plaintiff is likely to have ongoing chronic left knee pain. He opined that the plaintiff’s left knee injury had exacerbated the left Achilles tendinosis.
[42]PCB 90.
Associate Professor Evange Romas
69Next, the plaintiff was seen for medico-legal purposes by Associate Professor Romas. In a report of 17 January 2022, he obtained a history of the initial knee injury and then the left knee as giving way, causing the Achilles injury.
70Pausing, it was put to the plaintiff that the first contemporaneous reporting to a medical practitioner of the left knee giving out was in fact to Associate Professor Romas. She accepted that was the case.
71Associate Professor Romas was provided with relevant clinical notes and medical reports and then asked to assess the question of the compensability of the plaintiff’s left knee and Achilles. He took what I consider to be disclosed on the evidence (as already discussed) to be an accurate history of the left knee and left Achilles as follows:
“Kelly was placed on lighter duties, and then on nightshift. She was treated with physiotherapy and strengthening exercises and bracing. The anterior left knee pain improved, but the left knee was still playing up.
The left ankle was injured just a few months later, in January 2016. Kelly explains that she was confronted with a difficult situation, a drug deal gone wrong, there was some sort of kerfuffle and an offender took off. She turned to give chase and “using maximum thrust’, her left knee gave way at the wrong moment, failing her. As a result, she had immediate pain in the left ankle. On this basis, it is abundantly clear that there is a connection between the left knee injury and the injury to the left ankle (probably, a sudden Achilles stretch/ distraction injury).
The left ankle injury would subsequently be identified as an aggravation of Left Achilles tendinopathy. She was treated by Warrnambool orthopaedic surgeon, Mr Nick Russell, who performed an Achilles tendon debridement (he noted mucoid degeneration of the Achilles), bolstered with flexor hallucis longus (FHL) tendon graft (surgery 27 November 2019). She later had a second procedure (simple debridement) on 8 December 2020.”[43]
[43]PCB 97-98.
72Having reviewed the relevant documentation and taken a history from the plaintiff, Associate Professor Romas opined that there was a causal connection between the left knee giving way and the left Achilles (ankle) injury. In fact, he described that causal connection as clear. I accept his opinion that the causal connection is clear.
Dr Terence Saxby
73The most recent medico-legal opinion was obtained by the defendant from Dr Terence Saxby, orthopaedic surgeon. In a report of 19 January 2023, he obtained a history of the knee injury and the subsequent injury of 10 January 2016. He obtained a history of the left knee giving way. He recorded that the left knee continued to be painful, the plaintiff could not run and had difficulty using stairs, squatting and kneeling. He also recorded ongoing left Achilles pain with swelling.[44] He opined that work was an ongoing contributing factor to the left Achilles injury, albeit he thought she did have some pre-existing pathology, but equally accepting that the tendon tear was caused in the incident on 10 January 2016. He said ongoing treatment should be physiotherapy and oral medications, and that post-injury the plaintiff was no longer as active and was unable to enjoy hiking and running.
[44]DACB 20.
74In a further report of 3 February 2023[45] he was asked questions about Achilles tendinopathy, but otherwise that report adds nothing to the current discussion.
[45]DACB 27.
75Dr Saxby’s report broadly records pain and restrictions from the left knee and left Achilles that are consistent with the plaintiff’s evidence, even if some of his opinions regarding the causal connection are not as supportive.
Serious or not?
76In determining whether an injury is serious, it is of course relevant to look at not only what is lost, but what is retained.
77In the present case, the plaintiff retains the ongoing operational employment as a police officer. This was relied on heavily by the defendant as a reason why the plaintiff does not have a “very considerable” pain and suffering consequence.
78But balanced against that, I accept that the plaintiff continues to serve as a police officer under some duress. I accept her description of pain and restrictions from service as a police officer and the fact that she limits some aspects of her ongoing role by accepting shifts that are likely to be less physically active or engaging in more supervisory or administrative duties.
79I also accept her ongoing description of pain in the left knee and Achilles, with the regular need for painkilling medication,[46] physiotherapy, and exercise at home. I accept the medical evidence that there is some possibility of a left knee replacement, but by the same token the evidence of that is of a possibility rather than a firm probability. I accept the plaintiff’s left knee and Achilles interferes with her ability to do things around the house, engage with her hobbies of vigorous physical exercise, and also interferes with her sleep.
[46] Kelso v Tatiara Meat Co. Pty Ltd [2007] VSCA 267 at [199].
80If it is not clear, I express the conclusion that I consider the plaintiff to be a stoic. As I understand the evidence, she continues to perform a valuable role as a police officer in the Hamilton community, and, notwithstanding the restrictions from her left leg injury, I hope that she continues in that role. I accept her evidence about her concern to have the physical capacity to remain an operational police officer, and that in the face of physical difficulties she continues to engage in community service as an operational police officer. In that context I consider her a stoic and her injury should not be viewed as less serious simply because she has pushed on through the pain.[47] While at present she cannot demonstrate any pecuniary disadvantage – and it would be wrong for me to take any potential pecuniary disadvantage into account – equally I consider it would be wrong to reject a conclusion that the injury is serious simply because she remains an operational police officer.
[47] Haden at [13].
81The assessment of the “seriousness” of the pain and suffering consequences to the plaintiff from left leg injury, is a question of fact, degree, and a value judgment. I am required to consider the broad range of impairments and not just those that come before the courts. Having done so, for the reasons expressed, I conclude that the plaintiff has suffered a “very considerable” pain and suffering consequence.
82Accordingly, leave is granted to the plaintiff to commence a common law proceeding for pain and suffering damages.
83I shall hear from the parties as to consequential orders for costs.
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