Mesiti v Hawker de Havilland Aerospace Pty Limited and WorkSafe Victoria
[2012] VCC 1528
•26 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01637
| ROCCO MESITI | Plaintiff |
| v | |
| HAWKER DE HAVILLAND AEROSPACE PTY LIMITED | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 17 September 2012 | |
DATE OF JUDGMENT: | 26 October 2012 | |
CASE MAY BE CITED AS: | Mesiti v Hawker de Havilland Aerospace Pty Limited & WorkSafe Victoria | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1528 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – knee injury – loss of earning capacity – pain and suffering damages
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Dalton v Dandenong Scaffolding Hire Company Pty Ltd [2003] VSCA 183; Angelatos v Museum of Victoria [1999] 3 VR 157; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Altona Bus Lines v Lococo [2002] VSCA 159; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
JUDGMENT – Leave granted for pain and suffering damages and loss of earning capacity damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Nowicki Carbone & Co |
| For the Defendants | Mr T Ryan | Thomsons Lawyers |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common law proceedings against the first defendant, his former employer, Hawker de Havilland Aerospace Pty Limited, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.
2 The application refers to an injury to the plaintiff’s left knee which he claimed he sustained on 18 September 2007 while performing his duties loading and unloading Boeing 787 carbon-fiber aircraft parts at the first defendant’s premises. While so doing, an errant trolley spun around, forcefully striking his left upper thigh, causing pain and swelling to his left knee.
3 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment with the first defendant on the date alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of this compensable injury. Paragraph (a) recites that “serious injury” means “permanent serious impairment or loss of a body function”.
4 In his opening, counsel for the defendants indicated that the main issue before the Court was whether the impairment existing at the time of hearing was causally related to the compensable injury occurring in September 2007. It was said that there were at least two further incidents after the compensable injury which could be causally related to the plaintiff’s present impairment, and that whatever happened at the time of the compensable injury could be described as “fairly innocuous and transient”.[1]
[1]Transcript (“T”) 15, L1
5 The plaintiff, on the other hand, argues that the impairment to the left knee as at the date of hearing is “serious”, both in respect of economic loss and pain and suffering consequences, and that he has proved that the injury which occurred on 18 September 2007 has either caused directly those consequences or has been a significant contributing factor to the injury, the resulting impairment or loss of body function, being the left knee, and to the consequences of such injury.
6 As it appears to be common ground that the plaintiff suffered an injury to his left knee in 2002 and probably suffered another two injuries to the knee after the compensable injury, I consider I am required to determine the application in the following manner:
·First, I am required to identify the injury suffered by the plaintiff on 18 September 2007;[2]
·Secondly, I should alienate the impairment consequences of the other injuries referred to;[3]
·Thirdly, the other injuries, having arisen from non-compensable and separate incidents, the consequences cannot be accumulated. The subject injury has to satisfy the requirements of a “serious injury” in its own right rather than in combination with the other injuries.[4]
[2]Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183
[3]Dalton v Dandenong Scaffolding Hire Co Pty Ltd (supra) at paragraphs [14], [39], [47] and [49]
[4]Angelatos v Museum of Victoria [1999] 3 VR 157, at paragraph [168]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd [2012] VSCA 60
The Left Knee: Facts
7 The plaintiff was born in 1956. He left school after Year 10 and worked as a panel beater, spray painter, store person and truck driver.
8 In or about 1996 and/or 1997, he suffered two back injuries with different employers. He was granted a serious injury certificate on account of either or both of these back injuries in 2000, and later settled his common law case with respect to the back. Thereafter, he undertook a program of back strengthening exercises and lost a considerable amount of weight. The ongoing back injury prevented him from undertaking heavy lifting activities.[5]
[5]Affidavit sworn 19 November 2009, paragraph 7 – Exhibit C
9 In or about 2002, the plaintiff had swelling in the left knee. He swore that it was a temporary problem and substantially resolved itself.[6] This assertion was corroborated by his general practitioner’s clinical notes.[7] He also suffered from left shoulder pain in February 2004 and a hernia in 2005 and 2008. Further, in or about August 2008, he had surgery for carpal tunnel in his right hand. All three conditions required a short time of hospitalisation.
[6]paragraph 8, Exhibit C
[7]Exhibit 6
10 The plaintiff commenced employment with the first defendant in or about April 2007. His job was to “run the ovens”. He attests that this generally involved loading or unloading carbon-fiber aircraft parts for a 787 aeroplane into and out of an oven. The parts would be loaded onto a trolley, pushed into the oven, and it was generally his job to unload them from the other side. On the other side of the oven, there was a trolley used by another employee for the purposes of loading the oven. The system was that the trolley’s wheels would be locked so that they did not swing to the side and strike the operator around the other side of the oven.
11 It is common ground that on or about 18 September 2007, the plaintiff was struck on the left leg by one of the said trolleys when it swung around from the other side of the oven.[8]
[8]paragraph 15, Exhibit C
12 Thereafter, his left knee swelled up and he reported the incident to a Mr John Dostal, who was the resident first aid person at the first defendant’s premises.[9] Mr Dostal made a note that there was swelling from the knee down and that he applied ice and elevated the leg and referred the plaintiff to a doctor. Mr Dostal drove the plaintiff in an electric car to his car in the car park.[10] Thereafter, Mr Dostal states the plaintiff worked on the dayshift and worked on alternative duties in the resin kitchen and that the work was relatively light in nature and one could choose to sit down. The plaintiff has further sworn he saw a Dr Aboud, general practitioner, who prescribed Voltaren. He took approximately two weeks off work after this incident.[11]
[9]paragraph 16, Exhibit C; and Exhibit M
[10]Exhibit 8
[11]paragraph 17, Exhibit C
13 Thereafter, during the period between October 2007 and August 2008, the plaintiff states he experienced intermittent weakness and pain in his left knee. During this period, he generally self-managed the pain with exercises such as treadmill, jogging, walking and stationary bike work. He states he also used a knee brace and anti-inflammatory medication that had been prescribed by Dr Aboud at the first consultation. He did not see another medical practitioner until he saw Dr Hocking, general practitioner, on or about 10 August 2008. In the intervening period, he continued to suffer pain which “made it difficult for me to do high-impact activities such as boxing, skipping and other high-impact physical training.”[12] Under cross-examination, the plaintiff stated that this sentence meant that he was unable to engage in those activities.[13]
[12]paragraph 18, Exhibit C
[13]T 85, L8-18
14 Thereafter, on or about 10 August 2008, the plaintiff attended Dr Hocking because the pain in the left knee was “increasing and becoming unbearable.”[14] He was given anti-inflammatory medication. He also attended a physiotherapist at his workplace once or twice a week for a period of four to six weeks. This treatment did not give him any significant relief from the symptoms.[15]
[14]paragraph 19, Exhibit C
[15]paragraph 20, Exhibit C
15 The plaintiff was referred to Mr Bernard Lynch, orthopaedic surgeon, in October 2008. He gave a history of the injury at work and that since that time he had noted pain and swelling in the left knee. The symptoms were said to have been intermittent but persistent. Treatment had included physiotherapy and anti-inflammatory medication. On examination, Mr Lynch found crepitus and irritability at the patellofemoral joint in particular, and a moderate sized effusion. Mr Lynch noted that the plaintiff was quite frustrated by his persistent problem and he recommended a left knee arthroscopy.[16]
[16]Report dated 20 October 2008, Exhibit F
16 In early December 2008, at arthroscopy, Mr Lynch found degenerate tearing of the medial meniscus which he resected back to a stable margin. In addition, he found moderately advanced degeneration affecting the entire medial compartment of the knee with unstable chondral tissue which was debrided. Synovitus throughout the knee was debrided and injected with Depo-Medrol and Xylocaine. Thereafter, Mr Lynch noted that, “Rocco has a very good result at this stage”. However, he further noted that the degeneration was likely to cause further symptoms on an intermittent basis and gradually deteriorate with time.[17]
[17]Report dated 22 December 2008, Exhibit F
17 In addition, the plaintiff attests that Mr Lynch advised that he have a full knee replacement. He stated that this scared him, so he decided to obtain a second opinion from Mr Andrew McQueen, orthopaedic surgeon, at the Melbourne Orthopaedic Group.[18]
[18]Affidavit sworn 19 November 2009, paragraph 21, Exhibit C
18 Four days after the first arthroscopy, the plaintiff commenced work at XYZ Security Services (“XYZ”), where he patrolled vehicles, putting plastic seals on trucks once they were loaded, and checking trucks when they came in and out of the gatehouse. On or about 19 February 2009, he was squatting and kneeling to check loads. After checking one of the loads, when he was twisting to stand up, he felt a click and his left knee felt like it gave way. He was in immediate pain and his knee had swelled up. He was unable to return to work that day.[19] Thereafter, he returned to work on light duties doing office duties. He made a claim for compensation in respect of this incident and put in certificates of incapacity from Dr Hocking from 6 March 2009 to 9 April 2010.[20]
[19]Affidavit sworn 19 November 2009, paragraph 28, Exhibit C
[20]Exhibit 3
19 In or about July 2009, the plaintiff resigned his position as a supervisor with XYZ as he could not perform the duties required of him due to his left knee injury.[21]
[21]Affidavit sworn 19 November 2009, paragraph 30, Exhibit C
20 Thereafter, the plaintiff worked as a guard for about three days a week, four hours a day.[22]
[22]Affidavit sworn 19 November 2009, paragraph 30, Exhibit C
21 In or about August 2009, the plaintiff’s knee once again gave way and swelled up and he was unable to work for about two weeks.[23] Thereafter, in or about early November 2009, the pain during work became unbearable and he ceased work altogether at that stage.[24]
[23]Affidavit sworn 19 November 2009, paragraph 29, Exhibit C
[24]Affidavit sworn 19 November 2009, paragraph 30, Exhibit C
22 Upon commencing employment with XYZ, the plaintiff saw his general practitioner on 11 January 2009. There was a history taken that there had been a good result from the left knee arthroscopy one month ago, the pain had gone but the plaintiff still has a bit of residual swelling which “he would like to take something for”. He was prescribed Naprosyn tablets, 500 milligrams, with one tablet to be taken twice a day after meals.
23 Following the incident at XYZ on 19 February 2009, the plaintiff attended his general practitioner and Mr Lynch again. On 3 April 2009, Dr Hocking took a history that Mr Lynch had suggested a total knee replacement because “there was so much arthritis present when [he] scoped it”. It was at this point that the plaintiff was keen to obtain a second opinion.[25]
[25]Exhibit 6
24 When the plaintiff saw Mr Lynch on 6 March 2009, he reported doing quite well following the arthroscopy until it began to develop lateral sided left knee pain after a lot of walking, and climbing up and down on pallets (with XYZ). Over the previous two weeks, the plaintiff had made improvements in his left knee symptoms with a combination of being off work and returning to light duties. On 27 March 2009, Mr Lynch discussed surgical options with the plaintiff, including arthroscopy; high tibial osteotomy versus hemiarthroplasty. His diagnosis as at that time was left knee degenerate medial meniscal tear and medial compartment osteoarthritis.[26]
[26]Report of 22 February 2012, Exhibit F
25 In April 2009, the plaintiff saw Mr Andrew McQueen for a second opinion. At that stage, he considered there had been a further meniscal tear following the incident at work on 19 February 2009. He agreed with the plaintiff that it was reasonable not to rush into a total knee replacement at that stage but rather arrange a repeat arthroscopy.[27]
[27]Report of 22 April 2009, Exhibit G
26 At arthroscopy on 20 May 2009, Mr McQueen found a tear of the residual medial meniscus and significant chondral pathology in the medial femoral condyle. He stated, that after an extensive medial menisectomy, a chondroplasty was performed and the joint was irrigated and infiltrated with Marcain.[28]
[28]Report of 2 November 2011, Exhibit G
27 Thereafter, Mr McQueen recorded that the plaintiff was progressing well until a further injury to his left knee required a repeat arthroscopy, which was performed on 18 August 2009. This in turn revealed that the medial compartment showed significant further degeneration compared to the previous arthroscopy. There was also a minor tear of the residual anterior horn of the medial meniscus. Mr McQueen felt that a left hemi knee replacement was required, and this was performed on 15 February 2011. Arthroscopy confirmed medial compartment arthritis and a routine preparation was performed of the arthritic joint and thereafter, a 54-illimetre femoral component, combined with an extra large tibial component and an 8-millimetre bearing were inserted.
28 The plaintiff was next seen on 3 March 2011 when, at that stage, it was anticipated he could return to his previous duties as a security officer.[29] It would appear that this left hemi knee replacement surgery was addressing the problem of the medial compartment arthritis.
[29]Report of 2 November 2011, Exhibit G
29 Mr McQueen saw the plaintiff again on 16 February 2012. A CT scan and bone scan had suggested possible loosening of the tibial component. However, Mr McQueen felt clinically, at that stage, this was unlikely. The plaintiff had limited standing and walking distances and Mr McQueen felt, at that stage, that the only type of job the plaintiff could do would be a sedentary sort. Also, he considered that the surgery may need to be revised to a total knee replacement.[30]
[30]Report of 16 February 2012, Exhibit G
30 When Mr McQueen last saw the plaintiff on 29 March 2012,[31] the clinical situation was as follows:
[31]Report of 10 September 2012, Exhibit G
· A CT arthrogram performed on 2 February 2012 showed evidence of synovitis within the suprapatellar recess with a frond-like appearance. There was pronounced lucency along the junction between the cement and tibial component, which suggested loosening.
· A subsequent bone scan performed on 9 February 2012 demonstrated marked increase in uptake of tracer in the region of the tibial component of the joint replacement. There was also marked increase in tracer uptake on the medial aspect of the proximal tibia abutting the tibial component of the uni compartmental joint replacement, the appearances very suggestive of loosening of this tibial component of the prosthesis.
· At this point in time, Mr McQueen felt that, clinically, loosening was unlikely. However, the plaintiff had a limited standing and walking distance with variable discomfort.
· He had been performing fifteen hours of work per week as a personal trainer and would only be fit for a sedentary-type occupation in Mr McQueen’s opinion.
· On 29 March 2012, the plaintiff was advised that he would require a total knee replacement in the future.
· He was unable to box or run and experienced some difficulty in performing fifteen hours of work as a personal trainer, without any impact activities.
· His work ability would be sedentary and there would also be restrictions on his ability to get to and from work, such restrictions being permanent.
· Even after revision to a total knee replacement, he would still experience significant restrictions and it would be unwise for him to return to any occupation that required high impact activity; that is, excess walking, standing, boxing et cetera.
· Regarding his prognosis, it was guarded, in that there was clinical and radiological evidence of loosening of the tibial component of the hemi knee replacement of the left knee.
31 Mr McQueen has not given an opinion about the causal relationship between the impairment of the left knee as at 29 March 2012 and the compensable injury of 18 September 2007. Putting that issue aside for the moment, it would seem reasonable to me that the following findings are well open, based on the totality of the evidence from the three treating doctors, being the general practitioner, Dr Hocking and the surgeons, Mr Lynch and Mr McQueen, that:
· the plaintiff had extensive arthritis in his knee joint, such that it was reasonable to perform a hemi knee replacement on 15 February 2011.
· the arthritis in the medial compartment was treated with an anteromedial incision of the arthritic joint and a 54-millimetre femoral component combined with an extra large tibial component and an 8-millimetre bearing were inserted.
· although they were cemented in good position at that time, there was clinical and radiological evidence of loosening of the tibial component of this replacement procedure as at 29 March 2012, such that a total knee replacement will be required at some time in the future.
· as a consequence of the plaintiff’s current clinical state, he is only able to perform a sedentary occupation and as he experiences difficulty in performing the eighteen hours of work as a personal trainer per week, I do not consider that he is fit to perform any extra activity.
32 If, as argued by counsel for the defendants, the consequences of a compensable injury are those that existed as at February 2009, just before the second incident with XYZ Pty Ltd, or even as at 30 June 2009, just before the third incident, the formula attached to s134AB(38)(e) and (f) would prevent the finding of the necessary 40 per cent loss of earnings as set out in the formula therein. On the other hand, if the compensable injury is causally related to the impairment that pertained at any time from 30 June 2010 or thereafter, the plaintiff would prima facie satisfy the formula referred to.[32]
[32]Exhibit 5
33 For the purposes of applying the formula, I am prepared to accept that the “without injury” gross income of the plaintiff for the purposes of s134AB(f)(ii) is $64,401.00, being the earnings he achieved in the financial year 30 June 2007.[33] I am also prepared to accept that if the necessary causal connection is made between the compensable injury and the impairment at the date of hearing, then the plaintiff’s gross income which he has either earned or would be capable of earning in suitable employment, would be somewhere between the eighteen hours of personal training that he is currently performing and the $34,230.00 gross that he earned in the financial year 30 June 2010.[34]
[33]Exhibit 5
[34]Exhibit 5
34 Further, it would appear that as the plaintiff had returned to lighter work within four weeks of his first arthroscopy and thereafter, kept returning to work after each subsequent procedure, that his actions can be assessed as reasonable in terms of his attempts to participate in rehabilitation or retraining within the meaning of s134AB(g) of the Act.
Causation
35 The evidence discloses the following.
36 The left knee had been asymptomatic for at least five years prior to the compensable injury in September 2007.[35]
[35]Exhibit 6
37 Following the compensable injury, there was pain and swelling in the left knee and these symptoms were intermittent but persistent. Treatment included physiotherapy and anti-inflammatory medication.[36]
[36]Affidavit (Exhibit C) and report of Mr Lynch (Exhibit F)
38 Arthroscopy performed in December 2008 showed degenerate tearing of the medial meniscus which was resected back to a stable margin. In addition, there was moderately advanced degeneration affecting the entire medial compartment of the knee.[37]
[37]Report of Mr Lynch dated 22 December 2008, Exhibit F
39 Although there was a good result from the arthroscopy, the degeneration was such as likely to cause further symptoms on an intermittent basis and gradually deteriorate with time.[38]
[38]Report of Mr Lynch dated 22 December 2008, Exhibit F
40 Symptoms persisted after the arthroscopy both before and after commencing the security job at the Linfox depot in or about January of 2009.[39]
[39]See attendance upon general practitioner on 11 January 2009, Exhibit 6
41 Symptoms from the September 2007 injury persisted to the point that the plaintiff considered the exacerbation or aggravation in February 2009 was really the “same injury”.[40]
[40]T 116, L20
42 When seen by surgeon, Mr John Hart, on 16 April 2009 for the defendants, he thought that the plaintiff probably had osteoarthritis of his knee prior to the incident in February 2009 which had not resolved at the time of the February 2009 incident. He considered that incident an “exacerbation of his pre-existing arthritis”.[41]
[41]Report dated 16 April 2009, page 7, Exhibit N
43 Mr Hart found that there were also clinical signs of a medial meniscal tear which may have occurred as a result of the plaintiff’s work activity on 19 February 2009. He considered that the incident on 19 February 2009 was only a temporary exacerbation of a pre-existing osteoarthritic condition. Finally, he considered the plaintiff’s employment at Linfox (in February 2009) may have contributed to a new medial meniscal tear, but not significantly to his arthritic state.[42]
[42]Report dated 16 April 2009, page 8, Exhibit N
44 Mr Hart saw the plaintiff again on or about 28 June 2010. He noted, inter alia, that arthroscopy performed on 18 August 2009 had shown a minor tear in the medial meniscus and further progression of the osteoarthritic changes in the medical compartment of the knee. Further, he noted significant pathology was noted in the patellofemoral joint which was only three months after a previous arthroscopy, when only mild chondromalacia patellae was reported.[43]
[43]Report dated 28 June 2010, Exhibit N
45 The plaintiff had been working on light duties during 2009 and had ceased work in November 2009.
46 Mr Hart had further information available on this occasion, including results of the multiple arthroscopies performed on the left knee, and considered that the plaintiff had “well-established medial compartment arthritis and patellofemoral arthritis”. He agreed that an arthroplasty at that point was indicated but that it “would be likely to fail”. He therefore suggested “a total knee replacement [as a] preferable method of treatment”.[44]
[44]Report dated 28 June 2010, page 7, Exhibit N
47 Mr Hart’s diagnosis as at June 2010 was one of medial compartment and patellofemoral osteoarthritis of the left knee. The prognosis was guarded, because the plaintiff had ongoing disease of a moderate to severe degree and was likely to require a joint replacement.
48 At the last operation, there was marked progression of osteoarthritis in the medial compartment and evidence of significant patellofemoral arthritis.
49 Mr Hart therefore considered that the current state of the knee was “predominantly associated with his work with Boeing” (i.e. September 2007).
50 Mr Hart considered it was not surprising that the plaintiff developed pain in his knee when he returned to work with Linfox as he had returned so soon after the injury. The effects of his injury (an aggravation) had not ceased and he was fit only for a sedentary position.[45]
[45]Report dated 28 June 2010, page 9, Exhibit N
51 Finally, at that time he considered the plaintiff’s employment with Boeing was “certainly contributing to his current incapacity, because his work with Boeing was responsible for the torn medial meniscus which has resulted in progression of his arthritis which also developed during his work with Boeing.”[46]
[46]Report dated 28 June 2010, page 10, Exhibit N
52 When seen by Mr Hart on or about 8 February 2012, recent imaging ordered by Mr McQueen showed:
“… evidence of chondromalacia affecting the patella and the trochlea, but no evidence of a lateral meniscal tear. The femoral component of the uni compartmental arthroplasty appeared to be intact, but there was evidence of subsidence and a very prominent lucent line around the tibial component, suggesting loosening.”[47]
[47]Report dated 8 February 2012, page 5, Exhibit N
53 Since the uni compartmental arthroplasty on 15 February 2011, the knee had been painful ever since and was as least as severe as it was pre-operatively. The plaintiff also had symptoms of instability and recurrent swelling in the left knee.[48]
[48]Report dated 8 February 2012, page 7, Exhibit N
54 Examination by Mr Hart revealed evidence of medial instability and a limited range of movement and irritability in the patellofemoral joint.[49]
[49]Report dated 8 February 2012, page 7, Exhibit N
55 Recent imaging showed evidence of chondromalacia in the patellofemoral joint but the most obvious feature appeared to be loosening with subsidence of the tibial component of the uni compartmental arthroplasty which had occurred very rapidly after the operation.[50]
[50]Report dated 8 February 2012, page 7, Exhibit N
56 At that stage, Mr Hart found it was highly likely that the uni compartmental arthroplasty will need to be revised to a total knee replacement.[51]
[51]Report dated 8 February 2012, page 8, Exhibit N
57 He regarded the original injury (September 2007) as an aggravation of a pre-existing arthritic state and the effects of that aggravation have not ceased as the plaintiff has ongoing problems with the left knee which were a direct result of that injury.[52]
[52]Report dated 8 February 2012, page 8, Exhibit N
58 The return to work as a personal trainer performing approximately three sessions a day was a suitable occupation for the plaintiff because he was able to alternatively sit and stand and to monitor his activities.
59 Mr Hart confirmed his opinion that the injury at Boeing was the most significant factor in his arthritic condition.[53]
[53]Report dated 8 February 2012, page 9, Exhibit N
60 Mr Hart saw the plaintiff finally on 28 August 2012. In his report of the same date, he opined:
“It is reasonable to say that at the time of the injury in 2007 the plaintiff had pre-existing medial compartment and osteoarthritis in his left knee which was aggravated by the injury, in that the injury caused a torn medial meniscus resulting in a partial medial menisectomy, which further aggravated the arthritis in the medial compartment. In addition, there may have been direct damage to the knee at the time of that injury. … the need for a knee replacement was then partly due to the pre-existing condition but there was a significant aggravation by the injury at Boeing, in that his knee rapidly deteriorated after that. Mr Mesiti claims that his knee was asymptomatic prior to the injury at Boeing. … It is likely that eventually he would have required a knee replacement, but the injury at Boeing, in my opinion, accelerated the need for that knee replacement to be performed.”[54]
[54]Report dated 8 February 2012, pages 4 and 5, Exhibit N
61 Mr Peter Kudelka, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 24 October 2011. His diagnosis was one of post-traumatic osteoarthritis of the left knee.[55]
[55]Page 2, Exhibit J
62 Mr Kudelka considered further treatment by way of a total knee replacement may be required within the next five years[56] and that any restrictions due to the partial impairment of his left lower limb are permanent.[57]
[56]Page 3, Exhibit J
[57]Page 3, Exhibit J
63 Dr Helen Sutcliffe, occupational physician, saw the plaintiff at the request of his solicitors on two occasions, the last being 1 August 2012. She found that he continued to suffer the effects of the medial meniscus tear and aggravation of degenerative change in the left knee as a result of the work-related injury. The prognosis was poor and he required a total knee replacement. She considered he had no current capacity for his pre-injury employment, or into the foreseeable future. In addition, he had limited capacity for his current occupation as a result of the left knee condition.[58]
[58]Report dated 5 September 2012, Exhibit K
64 The plaintiff was seen by Associate Professor Myers, consultant general surgeon, on one occasion, being 25 June 2012.[59] At the first examination, he felt the plaintiff’s condition had not yet stabilised and would undoubtedly require revision of the knee joint replacement with a total knee joint replacement, being due to the initial damage to the knee in 2007 and 2008.[60]
[59]Exhibit L
[60]Report dated 25 June 2012
65 In his second report dated 3 September 2012, Professor Myers stated:
“I have no reason to disagree with any of the opinions from Professor Hart which appear to be in keeping with the general prognosis that I have suggested in my previous report.”[61]
[61]Report dated 3 September 2012, Exhibit L
66 Further, Professor Myers considered that the total knee joint replacement option will be delayed for as long as possible so that the plaintiff would have a stable condition with an unstable knee.[62]
[62]Report dated 3 September 2012, Exhibit L
67 Dr Hocking, general practitioner, was called to give evidence and was cross-examined. He opined that the subject injury in September 2007 was a likely cause of the ensuing arthritic condition which led in turn to the need for a subsequent procedure and total knee replacement in the future.
68 The defendants did not adduce any medical evidence, the reports of Mr Hart having been tendered by the plaintiff. Further, a request to cross-examine Mr McQueen was later withdrawn. I draw no adverse inference from that decision but do note that the entirety of the medical evidence was adduced by the plaintiff.
69 I am mindful that when separate injuries resulting from separate incidents occur after the compensable injury, that it is not permissible to aggregate the effects of the injuries to determine whether the impairment amounts to a serious injury.[63]
[63]See Altona Bus Lines & Anor v Lococo [2002] VSCA 159; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
70 Accordingly, it is the impairment to the function of the knee caused by the injury that the plaintiff suffered in the September 2007 incident which must answer the description of a serious injury.
Findings
71 I am satisfied that the plaintiff has proved that the September 2007 injury is a cause of the impairment consequences to the knee, as they exist at the date of hearing. My reasoning is as follows:
· The plaintiff’s left knee was asymptomatic, at least for a number of years, prior to the compensable injury on 18 September 2007.
· He suffered a traumatic injury to the left knee on the above date, being a meniscal tear, which in turn set off the degenerative condition of arthritis in the knee joint (Dr Hocking), signs of which were found at arthroscopy in December 2008 (Mr Lynch), such that the pain, swelling and loss of movement was extant from 18 September 2007 onwards, and from which the plaintiff never fully recovered.
· Alternatively, the traumatic injury to the knee in September 2007 was a significant contributing factor to the development of the arthritis which was found at arthroscopy as aforesaid, and which degenerated, predictably, thereafter.
· Following the subject injury, the plaintiff was vulnerable to further exacerbations and/or aggravations which occurred in February 2009 and in or about July of 2009, such events, being either temporary aggravations of the condition as it existed at the relevant time, or even if they were permanent aggravations of such injury, neither of them had the effect of rendering the compensable injury no longer a material contributing factor to the impairment that subsisted after each of the two aggravations.[64]
[64]See Grech v Orica Australia & Anor (2006) 14 VR 602
72 Accordingly, leave will be granted to the plaintiff to issue proceedings at common law for economic loss damages as foreshadowed in paragraph 73 above.
73 Further, in accordance with the principles set out in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170, leave will also be granted to issue proceedings at common law for pain and suffering damages.
74 I will hear the parties as to consequential costs orders.
- - -
0
7
0