Murray v Connect Jobs Pty Ltd (ACN 602 572 556)
[2022] VCC 1946
V
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-05296
| KARL JAMES MURRAY | Plaintiff |
| v | |
| CONNECT JOBS PTY LTD (ACN 602 572 556) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 29 September 2022 | |
DATE OF JUDGMENT: | 16 November 2022 | |
CASE MAY BE CITED AS: | Murray v Connect Jobs Pty Ltd (ACN 602 572 556) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1946 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left knee ꟷ pain and suffering only – causation – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Dwyer Legal Warrnambool Pty Ltd |
| For the Defendant | Ms B Myers KC with Mr T Storey | TG Legal & Technology |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 23 September 2019 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this case is the left knee.
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2010) 31 VR 1
12The plaintiff relied upon two affidavits, and he was cross-examined. His wife, Janelle, swore an affidavit on 12 September 2022. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13Causation and range were in issue.[3]
[3]Transcript (“T”) 4
The Plaintiff’s evidence
14The plaintiff is presently aged fifty-nine, having been born in August 1963. He is married with four adult children.
15Since leaving school in early Year 11, he has worked in a range of jobs – brickies labourer, farmhand, wood presser/roustabout, machine operator in the mines and truck driver. He worked for Direct Fuels as a tanker driver between 2016 and 2018.[4]
[4] T20
16He commenced employment with the defendant – a labour hire company – on 26 March 2019 as a mobile plant operator, working thirty-eight hours a week, with significant overtime. His duties involved driving rollers, tip trucks and water trucks. He was sent to work for John Beever, who was involved in road construction.
17As at the said date, the plaintiff was working thirty-eight hours a week, at $32.94 an hour, together with a fortnightly shift allowance for eighteen hours of $990.58.[5]
[5] Claim for Compensation dated 22 October 2019
18A couple of months before the said date, the plaintiff lost his balance climbing out of the back of a trip truck and fell backwards about 2.5 metres, landing nearly flat on his back/left hip. He was taken to Warrnambool for x-rays and was cleared for any break. Even though he had limited movement, he went back to work the next day driving a water truck.
19The plaintiff denied having any knee pain before the said date. He had not had problems in either knee.[6]
[6]T6
20An entry in his general practitioner’s (“GP”) notes at South West Healthcare of 19 August 2019 read:
“[C]ame for repeat script and wanted to ask quick question about knee
been having pain on and off with crepitus
does not recall particular injuryno obvi[o]us swelling.”
21The plaintiff did not remember mentioning a knee injury – but he would not dispute doing so if the note was there.[7] While the note also said, imaging was suggested, but he wanted to wait and see, that still did not jolt his memory – “If it was serious I would – I’d remember.”[8]
[7]T8
[8]T9
22Before the said date, he did not have any problem with his knee, which affected his ability to do anything around the house, or any recreational activities. His knee has never been right since the injury at work.[9]
[9]T40
The incident
23On the said date, the plaintiff was working as a dogman at a windfarm site in Grinters Lane. He fell forward when his left leg became caught between two packs of reo that were on the ground. He thought he had broken his left leg, as he felt excruciating pain (“the incident”)
24He thought he was just going to fall forwards, but his foot got caught in between two packs, so his left leg, from the knee down, did not move. The rest of his body went over and ripped all his tendons.[10]
[10]T11
25He was driven to Warrnambool Hospital, where he had an x-ray which did not identify any fracture. He was sent home on crutches. He saw his GP, Dr Aragon, on 26 September 2019.
26Soon thereafter, the plaintiff returned to work, as the defendant wanted him to sign on, so they did not have a lost time injury. He was sticking around each day for about an hour, but because of his knee pain, he could not do anything. Over the following days, he attended work every day, as he was asked to come in, but he was not actually working.[11]
[11]T11
27After about a week and a half, he was able to climb into and operate the roller, because it was automatic and did not require the use of his feet.
28He had an MRI scan on 4 October 2019 and saw an orthopaedic surgeon, Mr Kunle Arogundade, two weeks later. He was advised by the surgeon he would need to wear a brace for six weeks, have physiotherapy, and that there was no point operating. He was put off work.
29It took a week to get the brace put on. The plaintiff was first seen by a physiotherapist at Warrnambool Hospital on 31 October 2019. He was referred for another MRI scan, which was carried out on 20 January 2020.
30In the meantime, the WorkCover insurer, CGU, was pushing him back to work, and he thought that he needed a clearance, and therefore Mr Arogundade signed him off as fit for pre-injury duties on 20 January 2020.
31The plaintiff returned to work at that time, although his knee did not feel right, and he felt he had gone back to work too early. When doing roller duties, he found it difficult to get in and out of the roller. It was a real struggle with his knee, however, once he was seated in the roller, he found it was manageable, as there was no need to use his legs to operate it. He did not resume “the labour in the driving and roller work”.[12]
[12] Plaintiff’s first affidavit sworn 28 July 2021
32Treatment aggravated his knee, more than it doing good. He knew there was something not right. It did not feel like it was getting any better. Even when he went back to Mr Arogundade in January 2020, he knew there was something not right about his knee.[13]
[13]T13
33He assumed he had a discussion with Mr Arogundade about his knee on that visit. While Mr Arogundade then noted the plaintiff was much improved, back at work and coping okay, the plaintiff did not doubt he was back at work and was coping, but his knee still was not healed. He thought he had to go back to work and had to say that his knee was improved.[14]
[14]T14
34He was signed off as fit for normal duties, but he realised, after he had done so, he should not have, he should have still been on light duties. Mr Arogundade gave him a clearance after he asked him for a certificate so he could go back to work – “[y]eah, well he wasn’t going to argue”.[15]
[15]T15
35As at January 2020, the plaintiff’s whole argument was “There’s something not right with [my] knee”. He could not bend it to get into the back of a ute. If he went to a job site, someone would have to let him travel in the front of the seat because that was the only way he could travel. His knee was still tight, and he did not have a lot of movement in it.[16]
[16] T16
36He would have been taking a lot of Panadol and Nurofen from September 2019 until well after March 2020, when he next obtained a prescription for painkillers.[17]
[17]T17
37When he hurt himself, he was working six days, eleven hours a day, Monday to Friday and Saturday, which was overtime. When he went back, he worked full-time hours, but he just sat on the roller, even after the clearance, at work. This was his role until the actual job finished at the end of February. It was casual employment and the hours varied.[18] He did different jobs at various times with defendant.[19]
[18]T18
[19]T19
38He did not know what he told the defendant about why he was leaving, but he waited until the end of the contract and then they “put us all off”.[20]
[20]T19
39When he finished with the defendant, the plaintiff had two or three weeks of holidays and in that time, re-injured his knee.[21] During that time, he had been looking around for something else to do.[22]
[21]T20
[22]T19
Backyard incident
40On or about 9 March 2020, when stepping off a concrete path, about an inch or so, in his backyard, he felt his left knee hyperextend (“the backyard incident”).
41A photograph of the area where this incident occurred, taken a fair while later, showed a concrete path in the plaintiff’s backyard with an area of grass across which he had walked from the path. He denied he fell when he stepped into a crevice or had ever told any doctor that he had.[23]
[23] T21
42He was just walking to check the clothes on the line and stepped onto the grass, and his knee just jarred, and it went back to “virtually the same as it was when [he] first did it”.[24] He thought his foot was going on the same level it had just come off, but it sort of dropped that little bit and he “virtually jarred it”.[25]
[24]T5
[25]T6
43He would not say he fell into a crevice. It was only about half an inch from the concrete to the ground. He had never used the word “crevice”.[26] That was Mr Arogundade’s word in his 26 March note – how the doctor pictured it. There had been a few different scenarios described. His knee did not buckle or give way. He did not step into a hole, he just stepped off the concrete onto the grass.[27]
[26]T21
[27]T23
44The plaintiff started work with Direct Fuels on 19 March 2020 but lasted only until 21 April 2020, because his knee pain was severe.[28]
[28]T20
45He ended up seeing orthopaedic surgeon, Associate Professor (“AP”) Sutherland, a couple of times, initially on 22 April 2020. Like Mr Arogundade, he recommended a brace and time off work.
46The plaintiff was off work from April until early October 2020. During that time, he had Telehealth physiotherapy with Susan Lim. He saw her about five or six times, and she gave him direction as to exercise and movement.[29]
[29]T30
47Ms Lim noted the plaintiff had then started riding a pushbike as a form of exercise, and commenced riding for 5 kilometres three times over the last week. He bought a new bike “and everything”. He told her sleep was good. While she noted he told her he had been walking fifteen minutes three times a week, he did not think he was walking that far.[30] He never incorporated a kilometre walk on the sand as she reported. His knee probably felt alright after he had walked 3 kilometres for thirty minutes in September.[31]
[30]T30
[31]T31
48He did have an issue with his left hip and saw a chiropractor, but it had settled. He did tell Ms Lim he was a bit nervous about walking and scared to walk on uneven ground because he was worried his knee might give way.[32]
[32]T31
49On 5 October 2020, he told Ms Lim his job at Direct Fuel involved prolonged sitting, loading, and unloading for an hour, and dragging a heavy hose weighing 15 to 20 kilograms. He told her he was able to walk 3 kilometres a day, on a flat surface, with no issues. He probably told her that, but he was “probably exaggerating” what he was doing “to make her feel better about herself”.[33]
[33]T32
50On his return to work with Direct Fuels in October 2020 as a fuel tanker driver, he worked four days a week on the roster. Because of his knee condition, he found this suited him, as he did not want to work any more hours.
51As at July 2021,[34] he was earning approximately $2,000 gross per week. He found, by the end of the working day, his knee was quite sore.
[34] First affidavit sworn on 28 July 2021
52Climbing in and out of the truck aggravated his knee. Part of the job also involved climbing up a ladder once or twice a day to check the top of the tanker and also kneel down to check the dips at the petrol station, tasks which he found difficult because of his knee.
53Fortunately, the truck was automatic. However, even just sitting in it for long periods, he tended to stiffen his left knee for a couple of hours, and following which, he would need to get out and stretch it out. Moreover, because of the sideways movement of his knee, if he hit a bump while driving the truck, his knee tended to move sideways inside his leg. He doubted whether he could drive a manual truck. His daily drive was automatic.
54He found it difficult putting his left foot on the ground and pivoting with his leg. Doing so was extremely painful and felt like something was going to snap inside it.
55His knee injury affected his other day-to-day activities.
56He found it difficult to get the kick stand down on his Harley with his left leg. He could, however, manage to ride it “okay”, although he needed to be very careful when stopping, where he put his left leg down to avoid twisting it.
57He also used to enjoy playing golf casually a few times a year with mates. He always intended resuming golf, but did not think he would be able to do so now because of his left knee injury.[35]
[35] T38
58Around the house, tasks such as mowing the lawns now took him longer, as he needed to take rests. This was not a problem in the past.
59Even getting out of a chair could be difficult because of his left knee injury and he recently borrowed an electric recliner from a friend, which made it easier to get up from the chair.
60He and his wife had always enjoyed camping and sleeping in swags. Now, because of his left knee injury, he found that too difficult, and they bought a stretcher, which was easier to get on and off from.[36] He also needed to be mindful crossing uneven terrain to make sure he did not step in a hole with his left leg.
[36] T38
61He found he could not get carried away drinking now, and although he had never been a big drinker, he had not had a big session for a long time, as he needed to concentrate when he was walking.
62He continued to have ongoing pain in his left knee, which felt loose, and had sideways movement. In addition, he felt as though his left hip was going and he had seen a chiropractor a few times for treatment.
63He had had physiotherapy and massage therapy for his left knee. He generally took anti-inflammatories and Panadol from time to time. He also relied on an elastic support, which he wore over his knee, with metal bands running down the sides to help with lateral movement. He wore the support all day, every day, apart from when he was asleep.
64He had always been a large man, weighing about 140 kilograms at the time of the incident. He tried to lose weight to reduce his left knee symptoms, but had only managed to get down to 130 kilograms due to difficulty exercising.
65He had difficulty kneeling, because of pain. He found it difficult to negotiate stairs, and relied on a handrail where possible.
66He had always enjoyed walking dogs, but doing so for about 2 kilometres was then about his limit. Their dogs are now in Perth with his wife.[37]
[37] T39
67He also used to enjoy cycling a lot, but could not do that anymore because of his left knee injury. He gave cycling away and was “concentrating more on the work”.[38]
[38] T39
68He attended the May Warrnambool Racing Carnival this year. Because of the hilly terrain, his left knee started to ache, and he ended up sitting in a tent for half the day while his friends walked around enjoying the day. He left the course before the races had finished.
69In his most recent affidavit sworn on 7 September 2022, he deposed his left knee had not improved and, if anything, had gotten worse.
70Notwithstanding his knee pain restriction and instability, he continues to work as a fuel tanker driver. From about October 2020 until the middle of 2022, he had managed to work eight days a fortnight most weeks. He was able to just manage those hours, despite knee pain and restrictions.
71In the last three or so months, he had to reduce his work hours due to his left knee pain. On the days he does work, he works between nine and eleven hours a day, mostly driving. There is more work available if he wants it. He has been asked now and then to do the extra day, but he has told the scheduler he does not want more than four days a week, so they no longer ask him.
72He believes he is working to his absolute limit. He continues to experience the problems he earlier deposed to. Indeed, due to instability in his knee when he is driving a fuel tanker, he tends to extend his left leg out, placing extra pressure on his foot on the floor of his truck to keep his left knee stable.
73He knows working seven to eight days a fortnight is his limit. Recently having worked four days, on his day off he had to move house, and really struggled because of his left knee pain.
74His knee remains unstable and feels like it wants to give way, for example when climbing up and down stairs and ladders.
75His current work involves driving from Warrnambool to Melbourne to Mt Gambier. He could also drop off between Camperdown, Colac and Warrnambool, but Mt Gambier is the longest trip. He picks up the empty truck in the Warrnambool yard, drives to Melbourne, and goes to the refinery. He punches in the computer and the fuel automatically fills and he just watches. He has to load each compartment separately and that takes about three quarters of an hour. He has to take the hose off one section and put it onto the next. The hoses are not heavy, because they are extended from the roof and he just pushes them around.[39]
[39]T26
76He then heads to Mt Gambier – about a five-and-a-half-hour trip – he then unloads and then drives the empty vehicle back to Warrnambool. He has to put the fuel into the tanks underneath the service station. This process is mainly computer operated. He has to read how much is in each tank so he does not overfill. He has to manually dip in some tanks, which he struggles to do, putting the dipstick in the oil, while on the ground.[40] He never has to get up onto the top of the truck.[41]
[40]T26
[41] T27
77In the last couple of months, he has only been doing seven shifts, cutting back shifts because it has been a bit hard on him. He has also been taking extra days off.[42]
[42]T28
78He struggles at work getting in and out of the truck, and sometimes unloading hoses manually.
79To deal with his pain, he generally relies on Panadol or Nurofen, two tablets every four hours while at work. He is not allowed to take anything stronger while working. When not working, and the pain becomes too much for him, he relies on Panadeine Forte or Tapentadol, a form of Oxycodone.
80He continues to wear a sock type brace for extra support during the day, whether working or not, and only takes it off when he goes to bed. This brace at least gives him extra support and confidence in getting about, and if he does not wear it, his knee joint simply feels too loose.
Specialists
81The plaintiff saw Mr Byrne, orthopaedic surgeon, in August 2020. Mr Byrne wanted to do an arthroscopy on his left knee, but indicated it would not necessarily help and the plaintiff therefore elected not to proceed. He saw Mr Byrne, having already seen Mr Arogundade and AP Sutherland, because he really wanted to know what was going on with his knee. Mr Byrne wanted to do an arthroscope, because he “had not been doing much driving during the Pandemic”.[43]
[43]T36
82The plaintiff had asked AP Sutherland and his colleague about future treatment, and they indicated that even a knee replacement would not do much in terms of fixing the knee ligaments. That was reiterated to the plaintiff by a colleague of AP Sutherland, whom the plaintiff saw in October 2021. During that consultation, the plaintiff was advised he would certainly need a knee replacement sometime in the future, but to delay having surgery for as long as he could.
83The plaintiff assumed he had a discussion with AP Sutherland about progressive arthritis in his knee. He told the surgeon that the pain was on the inside, rather than on the outside, of his knee.[44]
[44]T37
84He sought so many opinions about his knee because he wanted to get a definitive answer about what was wrong with it. He knows there is something wrong with it. The “sideways movement has been a constant thing the whole time with every doctor who has touched it”. If he does not put pressure on his left leg when driving, and he hits a pothole or a bump, his whole kneecap moves sideways.[45]
[45]T42
85As Dr Menz reported, the plaintiff told him his knee had never given way. It feels like it could give way on uneven ground, up and down ladders, in and out of the truck. That is why he wears a brace.[46]
[46] T43
Activities
86The plaintiff continues to remain restricted in terms of the activities previously deposed to.
87He has hardly taken his Harley out in the last six months and, when he does ride it, he tends to place pressure on his left foot on the peg in order to keep his knee stable. Probably, in the last six months, he had ridden it twice, 3 kilometres around the lake, just to charge the battery.[47]
[47]T38
88He has not tried to get back to golf, notwithstanding his mates still play. He has not accompanied them on their regular trips to the Murray. He recently went camping with some mates and struggled setting up the tent and campsite.
89As he is unable to exercise, he has put back on most of the weight he lost. He has difficulty going for long walks.
90He is currently living on his own, as his wife has been in Western Australia since Easter, with their daughter. He is housesitting and staying with friends in Warrnambool, and goes back to Lake Bolac when he has his days off.[48]
[48]T38
Medication
91“It sounded about right” that the prescription of Endone in March 2020 was the first prescription for analgesia since the initial Panadeine Forte after the incident.[49] Endone was prescribed again six months later. He agreed he occasionally needed something stronger to deal with flare ups, otherwise he could deal with over-the-counter medication.[50]
[49]T32
[50] T34
92However, now and then, he could “grab something off his wife,” who was going through cancer, if he ran out of medication. He would not take stronger medication while he was at work on shift driving.[51]
[51]T33
93He agreed he was not prescribed any further painkillers from September 2020 until December 2021.[52] During that time, he was working eight days a fortnight for Direct Fuel, taking over-the-counter medication, but not every day. He could not remember how many Panadol or Nurofen he took; it was just as he needed it.
[52]T33
94He never used to be someone who took painkilling medication. He probably now takes it three or four times a week.[53]
[53]T41
Lay evidence
95The plaintiff’s wife, Janelle Murray, swore an affidavit on 12 September 2022. They married in 1985. For reasons relating to her own health, she has been living in Western Australia with their eldest daughter since Easter.
96Prior to the incident, she and the plaintiff rode motorbikes together at least once a month, cruising around the local district for up to two hours. Since then, he has hardly ridden a motorbike at all, perhaps two or three times. One of the reasons she sold her bike was that he was not able to ride anymore because of his knee.
97Before the incident, the plaintiff went water skiing on Lake Bolac on the back of his mate’s boats.
98Maintenance around the house has suffered since the plaintiff’s injury. Prior thereto, he used to spend a whole weekend weeding, taking rubbish to the tip, mowing, digging, and tending to the veggie garden, et cetera. Since the incident, he had struggled to do any of these tasks for more than a couple of hours a week before needing a rest. They had abandoned the veggie patch.
99Before the plaintiff injured his knee, they went camping at Lake Bolac, where he went swimming and played actively with the grandchildren. However, since the incident, he moved around gingerly and slowly after the kids, rarely went camping and avoided activities where he had to bend down and change directions suddenly because he was scared of knee pain. He was worried he was going to re-injure his knee, so he took a much more hands-off approach with the kids.
100The plaintiff’s confidence had markedly suffered since the incident. She sees him sizing up stairs, steps, uneven ground and slopes, before he attempts to navigate them. This was a bloke who used to love playing local football and doing triathlons.
101The plaintiff has not wanted to complain, but she can see he is in pain and very careful with his left knee. He is careful not to complain about his left knee pain because of her significant health problems, but she could see the pain he was in daily when she was living in Victoria.
The Plaintiff’s medical evidence
102In a preplacement medical assessment with Sonic Health in August 2018, no knee abnormalities were noted.
Treaters
Dr Aragon, general practitioner
103The plaintiff had been a patient at Dr Aragon’s clinic since 25 May 2016. Prior to the incident, there was no record of a left knee injury.
104Dr Aragon referred the plaintiff to AP Sutherland, orthopaedic surgeon, in March 2020, after the plaintiff had re-injured his left knee. Dr Aragon noted in the referral letter that the plaintiff stepped into a crevice about two weeks ago and hyperextended his left knee. His knee now was swollen, and he had pain on climbing. Dr Aragon noted AP Sutherland had seen the plaintiff the previous year for this issue.
105In his September 2022 report, Dr Aragon described the incident at home as a new injury, as supported by the MRI scan result on 4 August 2020 – with everything going back to square one with that incident at home.
106Dr Aragon thought the plaintiff will be suitable for part-time or full-time employment as long as he does not lift/push/pull; no climbing of stairs/ladders with precaution when climbing trucks, no kneeling or squatting.
Associate Professor Sutherland, orthopaedic surgeon
107On 22 April 2020, AP Sutherland wrote to Dr Aragon, noting the initial injury in September 2019, following which the plaintiff saw Mr Arogundade, and was given a brace. He advised that the plaintiff had had a minor injury two weeks earlier hyperextending the knee and felt he was back to square one.
108AP Sutherland advised Dr Aragon that the examination revealed Grade II-III laxity of the MCL. Essentially, the plaintiff was back to square one and needed to re-apply his brace and get back to physiotherapy. WorkCover will be involved. He planned to see the plaintiff in three months.
Mr Byrne, orthopaedic surgeon
109On 24 August 2020, Mr Byrne wrote to Dr Aragon, thanking him for the referral of the plaintiff.
110He noted the work injury and the plaintiff returning to work in January, as his knee was feeling really good. Two weeks later, he re-injured his knee walking in the backyard. Pain was over the inside of the knee and above the knee.
111The October 2019 MRI scan and August 2020 MRI scan were noted, with the latter revealing a medial and lateral meniscus tear, as well as a healed medial collateral ligament (“MCL”) and posterior cruciate ligament (“PCL”) injuries. Articular damage was noted in the medial compartment.
112Examination of the knee confirmed quadriceps wasting of a significant degree. There was a small effusion present. Examination of the MCL confirmed instability of the MCL Grade II. Pseudo locking was noted. The knee was ligamentous stable with a negative Lachman’s test and a definite endpoint. The PCL revealed Grade 1 instability.
113Mr Byrne noted the October 2019 MRI scan revealed a proximal tear at the proximal lateral collateral ligament, as well as an impact fracture to the lateral femoral condyle. A full-thickness tear of the PCL and proximal MCL was noted. The August 2020 MRI scan revealed a medial and lateral meniscal tear, as well as healed MCL and PCL injuries. Articular damage was noted in the medial compartment.
114Mr Byrne diagnosed MCL instability with marked quadriceps wasting and medial meniscus tear. The medial meniscus tear was really a new injury, as it was not on the original MRI scan. The plaintiff could have an arthroscopy to treat that tear. He may require a reconstruction down the track for the MCL instability.
Investigations
115There was an x-ray of the left knee on 23 September 2019. The clinical history was left knee injury, pain over medial aspect. It was reported there was no joint effusion identified. The joint space width was well preserved, with no recent bony injury noted.
116Following an MRI scan of the left knee on 4 October 2019, it was reported there were full thickness proximal PCL and MCL ruptures, associated posteromedial corner injury and Grade II proximal lateral collateral ligament injury. There were osteochondral impaction fractures of the lateral femoral condyle and lateral tibial plateau. There was possibly a cortical fracture of the anterolateral tibial plateau. It was noted a CT scan may be of benefit.
117Mr Arogundade organised an MRI scan of the left knee on 20 January 2020.
118It was reported the femoral condyle and tibial plateau fractures had united with no deformity seen. There was a full thickness chondral defect central trochlear groove and chondral thinning, with ulceration of the lateral femoral condyle and medial generalised moderate chondral thinning, anterior weightbearing surface medial femoral condyle. There was a small amount of scar tissue which had formed at the femoral attachment of the PCL. The anterior cruciate ligament (“ACL”) remained intact. There was truncated posterior horn and, to a lesser degree, body lateral meniscus consistent with tears. There was an undisplaced inferior FLAP surface tear posterior or medial meniscus. There was a moderate amount of scar tissue formed around the femoral attachment of the MCL. The tear extended to involve the meniscofemoral ligament and there was capsular separation.
119AP Sutherland organised an MRI scan of the left knee on 4 August 2020.
120It was reported there were healed MCL and PCL tears. There was medial meniscal extrusion with FLAP tears and a small vertical tear in the body of the lateral meniscus. There was stable, marked chondrosis of the medial tibiofemoral joint. There was stable central trochlear ulcer with chondral flap and moderate joint effusion.
The Plaintiff’s medico-legal evidence
Mr Russell Miller, orthopaedic surgeon
121Mr Miller examined the plaintiff in April 2022.
122The plaintiff told him of the incident injury. Thereafter, he returned to work operating a roller, which he could do in a seated position, and continued that work, albeit with ongoing knee symptoms, until the contract was terminated, at which time he discontinued work.
123There was a second incident when the plaintiff was injured at home walking outside in the backyard. He stepped down and his left knee became painful.
124The plaintiff saw his doctor a week later as symptoms continued, and deteriorated. He subsequently returned to work as a tanker driver in October 2020, four days a week, and continued in that role.
125As at April 2020, his left knee was his main problem, with ache, discomfort and pain. It felt weak and insecure, with occasional episodes of giving way. He also had occasional discomfort in the left hip and right knee.
126He was using a range of medications, including Panadol, Nurofen and Panadeine Forte, and currently had intermittent physiotherapy, and wore a hinged brace.
127Mr Miller thought it was a complex and difficult history to take, as the plaintiff had some difficulty recalling the precise sequence of events and symptom evolution.
128Examination of the left knee revealed Grade II quadriceps wasting measured at 1 centimetre and diffuse tenderness more marked medially. Flexion was 5 to 110 degrees. There was evidence of Grade 1 posterior ligament laxity and Grade II medial ligament laxity.
129Mr Miller noted the MRI scans of 4 October 2019, 20 January and 4 August 2020.
130The second MRI scan, before the fall at home, showed an irregularity in the body of the lateral meniscus, suggestive of an undisplaced tear to the medial and posterior aspect of the medial meniscus.
131The plaintiff was currently working four days a week due to financial imperatives. He struggled at work and felt himself unable to return to normal working hours five days a week.
132Mr Miller thought the plaintiff had suffered a complex injury to the left knee. The initial injury involved an injury to the PCL, medial ligaments, probable tears to the medial and lateral menisci and chondropathology involving an impaction fracture. There was a further injury to the knee which was likely to involve aggravation of pre-existing disease and possible further development of meniscus tears. There were significant ongoing symptoms in the knee and a high risk of development of arthritic disease, with the long-term prognosis being poor.
133The relationship between the left knee and the plaintiff’s injuries (at work and at home) was complex and multifactorial. The work injury was a severe one involving ligaments and, in his opinion, menisci. He believed the second was an aggravation of pre-existing disease and probable further injury, with extension of the pre-existing meniscal tears. The work injury involved significant force, whereas the second was regarded as minimal force.
134Mr Miller therefore regarded the current clinical status of the plaintiff’s left knee was related substantially to the effects of the first injury, acknowledging the difficulties in making that determination.
135He thought the plaintiff would require ongoing conservative treatment. He was at a high risk of developing progressive pathology in the left knee. This was likely to ultimately lead to a requirement for reconstructive surgery to either the ligament or, in the longer term, possible joint replacement. The requirement for the treatment related primarily substantially to the effects of the work injury.
136The plaintiff would have difficulty with work involving prolonged standing, walking, twisting, turning, kneeling and squatting, and it would not be safe to climb. He would not be fit to return to his previous duties, and he is unable to do so. He had returned to limited hours.
137The plaintiff’s injuries had substantially stabilised.
138The plaintiff had difficulty with heavy domestic and gardening activities. He had been unable to completely resume motorbike riding, camping, cycling, playing golf and walking the dog.
139Mr Miller wrote a supplementary report, having been provided with Dr Menz’s June 2022 report.
140Mr Miller confirmed he found a history of ongoing symptoms in the left knee, with feelings of weakness, insecurity and episodes of giving way; that is, the knee is at times behaving in an unstable manner. On examination, he found evidence of Grade 1 PCL laxity and Grade II medial ligament laxity.
141Mr Miller thought there were multiple components of the injury, many of which remain traumatic in nature, and he did not believe it reasonable to simply offer a view that those components had resolved and the ongoing problems with the knee no longer relate to the initial injury.
142He confirmed his proposal to undertake arthroscopic assessment as reasonable and incident related. He did not believe it was the role of a medical examiner to direct treatment by excluding those treatment modalities. He also noted the proposal for the arthroscopy and medial ligament reconstruction had been requested by Mr Byrne, who is a well-regarded and highly experienced knee surgeon. He did not believe the PCL and MCL had resolved.
143There was evidence of medial and lateral meniscus tears and he believed arthroscopic assessment for those was reasonable and incident related.
144He did not believe the ligaments had resolved and considered they continue to contribute to the symptom pattern. The meniscal tears were likely to be at least, in part, traumatic in nature. He did not believe that, on balance, Dr Menz’s report fully addressed the complex nature of the plaintiff’s knee injury.
Dr Michael Epstein, psychiatrist
145Dr Epstein’s July 2022 examination was of limited relevance, given there was no clam for a psychiatric impairment. He thought the plaintiff had developed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
146In terms of current knee complaints, the plaintiff told Dr Epstein that the knee does not lock, but feels unstable, although it has not yet given way.
The Defendant’s medical evidence
147A clinical note from South West Health Care on 16 May 2019 set out a complaint of knee pain. On that occasion, the plaintiff came for a repeat prescription and wanted to ask a quick question about the knee:
“…
been having pain on and off with crepitus
does not recall particular injury
no obvi[o]us swelling.”
148It was also noted, on examination, there was crepitus when extending the leg, there was no locking, and the plaintiff could weight bear. Imaging was suggested, but the plaintiff wanted to wait and see.
149Mr Arogundade wrote to Dr Aragon on 20 January 2020, having seen the plaintiff that day for a work-related impaction injury of the lateral femoral condyle and tibia. The plaintiff was much improved, back at work and coping ok. Repeat MRI showed the healed impaction fracture, and also noted osteochondral defect trochlear. He thought the plaintiff could return to full duties.
150Mr Byrne wrote to Dr Aragon on 19 October 2020, having reviewed the plaintiff that day.
151Mr Byrne noted the plaintiff was now back at work and required no medication currently for pain control. He experienced pain over the inner side of the knee. Walking a straight line was not an issue. Getting in and out of the truck was an issue still. He advised continued conservative treatment. WorkCover had accepted this “new injury”. He would review the situation in the future on an ‘as needs’ basis.
152AP Sutherland wrote to Dr Aragon in October 2021, thanking him for referring the plaintiff.
153He noted the plaintiff’s pain was degenerate due to progressive OA and there was no value in arthroscopic or other surgery. The plaintiff was not at the point of needing a knee replacement and will soldier on as best he can.
The Defendant’s medico- legal evidence
Dr Michael Lucas, consultant occupational physician
154Dr Lucas examined the plaintiff on Zoom on 5 February 2020.
155He noted that, after the incident, the plaintiff had conservative management and estimated he was off work for about four months. He returned to work in January 2020 on usual work hours and usual duties in a driving role. He subsequently ceased with that employer on 28 February 2020, as that job had been completed.
156The plaintiff was anticipating a return to work in three weeks in a new job, and on 16 March 2020, while at home, he described he was taking a step and experienced further acute left knee pain, associated with a jarring hyperextension knee exposure.
157There was subsequent orthopaedic review, where ongoing conservative management was supported. There was a third orthopaedic opinion in October 2020, at which time ongoing conservative management was again supported with the option of arthroscopic review if desired.
158The plaintiff returned to work on 6 October 2020, having had physiotherapy. He was continuing to undertake usual hours and duties of his current employed position.
159On examination, the plaintiff reported a left knee ache estimated in the order of 5/10. He indicated some limited confidence with regards weightbearing on his left knee, including when using the stairs, and was restricted with regard to kneeling.
160The plaintiff had paracetamol available for discomfort exacerbation. He indicated he was undertaking dominant components of his usual daily activities, with restriction in the usual walking of the dog and cycling, and was taking longer to mow his lawns. He was undertaking required driving. He was currently undertaking usual work hours and duties in a truck driving role. He considered he had most of his knee range of movement and no gross muscle wasting or knee swelling.
161Dr Lucas noted, in detail, the findings of the MRI scan of 4 October 2019, and commented that the August 2020 MRI scan indicated healed MCL and PCL tears, healed impaction fractures and stable marked chondrosis, and medial meniscal extrusion finding appeared new.
162He thought current symptoms may reasonably be considered in keeping with the diagnosis of mechanical knee pain. Current postural, mechanical and environmental factors, in association with indicated degenerative joint changes, may reasonably be viewed as likely dominantly contributory to current discomfort concerns. He thought that events of the said date may reasonably be viewed as of significance. Significant injury outcomes were apparent on imaging.
163He thought the events of March 2020 were of lesser significance. That event had occurred within six months of the prior considered significant injury. While acknowledging further new injury associated outcome pathology (meniscal findings), in his opinion, indicated the incident event outcomes may well be reasonably viewed as of at least predisposition, if not contributory significance. A pre-existing component to indicated joint degenerative changes evident in early imaging (MRI scan indicated mild patellofemoral articular cartilage loss. Multifocal partial thickness chondral fissuring of the contralateral femoral trochlear, plain x‑ray indicated osteophytes) may reasonably be considered.
164The plaintiff’s current condition may reasonably be viewed as an aggravation of a pre-existing degenerative knee condition. Current symptoms may reasonably be viewed as dominantly attributable to current mechanical postural and environmental factors in association with degenerative joint changes and body weight considerations.
Dr Anthony Menz, consultant surgeon
165Dr Menz examined the plaintiff in May 2022. He had available MRI reports, but not the actual films of the plaintiff’s knee.
166He noted the incident circumstances and subsequent treatment.
167Prior to the incident, the plaintiff said he had never had any left knee problem.
168The January 2020 MRI scan showed a tear of the lateral meniscus and medial meniscus, and there was a moderate amount of scar tissue around the MCL, consistent with it having healed.
169The history was of a return to work on 21 January 2020, driving a roller, and then started driving a fuel truck on 28 February,[54] which the plaintiff continues to do to this day.
[54] Incorrect history – this is the date the John Beever contract ended – started working again for Direct Fuels on 19 March 2020
170There was a further injury on 9 March 2020, when the plaintiff stepped off a path at home and sustained a significant hyperextension injury, which caused quite severe pain.
171The plaintiff was referred to AP Sutherland in April 2020, who noted that the PCL and MCLs had healed, but there were tears of the medial and lateral menisci. His approach was non-operative, and he put the plaintiff in a brace for six months.
172Mr Byrne then assessed the plaintiff in August 2020. He recommended an arthroscopy and reconstruction of the MCL, because he said there was instability.
173The current situation was that the knee became painful if the plaintiff worked [walked] too much on it, but, after a normal day’s work, he rated his pain as 3/10, and it could be aggravated by walking. He worked four days a week driving his fuel truck and there was no obvious evidence of instability with regard to his knee.
174The plaintiff was currently taking Panadol and Nurofen, and occasionally, Panadeine Forte.
175Pain rated from 3 out of 10 on a good day to 8 out of 10 on a bad day, and the plaintiff would have about four bad days in a fortnight. He reported his knee sometimes felt unstable but, on closer questioning, his knee had never given way on him, so there had been no overt instability.
176On examination, there was a Grade 1 posterior drawer and a Grade 1 medial collateral instability, both of which did not add up to joint instability.
177He thought the plaintiff suffered a twisting injury to the left knee in the incident and further injury in March 2020, when he stepped off a path at home. He suffered a rupture of the PCL and MCL at work on the said date, which was treated appropriately and conservatively in a brace, and those ligaments had healed.
178The short and long-term prognosis must be guarded, as the plaintiff is quite overweight and has significant osteoarthritis in his knee, which predated the injury. He also has degenerative meniscal tears.
179The plaintiff did not require any further surgical intervention and certainly Mr Byrne’s assessment with an arthroscopy was scientifically unfound, and certainly to reconstruct the MCL was not required, as there was no instability of the MCL, and it was well healed. Overall, the plaintiff had no instability of his knee, and it did not give way.
180Also, at the plaintiff’s age, and with the degree of arthritis in his knee, there is no need to proceed with an arthroscopy, as these have been shown to be of no benefit in his age group and with that degree of degeneration.
181The plaintiff’s PCL and MCL tears have healed, which is what the injury was on the said date. The plaintiff most likely had degenerative meniscal tears, which the most recent MRI scan showed. He has significant arthritis in his knee, and he is significantly overweight, both of which would make it difficult for him to completely recover from his ongoing symptoms. As such, Dr Menz believed the incident injuries had resolved and ongoing symptoms were related to degenerative meniscal tears, and the osteoarthritis in his knee, which predated the injury.
182Dr Menz provided a supplementary report, having been given Mr Miller’s report.
183He confirmed there was no scientific basis to undertake arthroscopic surgery in someone of the plaintiff’s age who has the degree of degeneration or arthritis in the plaintiff’s knee.
184Scientific papers[55] which backed that up and quite firmly stated, based on the science, there is no indication for knee arthroscopy in arthritic knees and in knees that have degenerative meniscal tears, which very accurately describes the plaintiff’s knee.
[55]“Arthroscopic partial meniscectomy for degenerative knee arthritis and meniscal tears”– Sihvoven, R et al (2016) and Siemieniuk, RAC (2017), tendered by the plaintiff
185He also referred to a further paper, in the British Journal of Sports Medicine, which reconfirmed there was no improvement in the outcomes of arthroscoping arthritic knees and doing nothing with arthritic knees. Overall, there was very strong evidence there was no scientific basis to arthoscoping an arthritic knee, particularly in the plaintiff’s age group.
186In response to Mr Miller’s view that the ligament injuries had not resolved, Dr Menz mentioned the August 2020 MRI scan showed they had healed, and, to his mind, that was resolution of the ligamentous tears.
187He noted Mr Miller said there was evidence of instability, but he specifically asked the plaintiff, and had written in his report that he obtained no history of instability, and the plaintiff said his knees had never given way.
188Mr Miller had reported that there was a high risk of development of osteoarthritis, however, the plaintiff already had developed severe osteoarthritis, so he could not see Mr Miller’s point.
189While Mr Miller went on to say he felt the menisci were torn in the incident in question, the MRI scan was consistent with degenerative meniscal tears, and there was no indication for arthroscopic surgery anyway.
190Mr Miller had also stated there was a high risk of developing progressive pathology which may lead to the need for ligament reconstruction. There was no indication to undertake ligament reconstruction in a severely arthritic knee, and particularly in a fifty-eight year old. Dr Menz would agree the plaintiff may well require a total knee replacement going into the future, and that is the only surgery he should have going into the future.
Overview
191It is not in issue that the plaintiff suffered a significant knee injury in the incident at work involving a rupture of the PCL, MCL and femoral condyle and tibial plateau fractures, as shown on the first MRI scan.
192While there was a note of an attendance on the GP for a knee complaint in May 2019, some months before the incident, there was no detail as to which knee was involved, nor mention of any particularly significant complaint. While he accepted the accuracy of the note, the plaintiff has no recollection of this attendance or any knee problems prior to the incident.
193At the time of the incident, the plaintiff was working full time in heavy work in a range of duties with no knee issues. There was no evidence of any knee problem affecting a range of activities at that time.
194In those circumstances, it seems the plaintiff did not have a left knee problem of any significance prior to the incident.[56]
[56]T67
Credit
195As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[57]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[57](Supra) at paragraph [12]
196The defendant accepted the plaintiff was a straightforward man who was doing his best in his evidence, but submitted it was clear that the contemporaneous records contain a better account of events from time to time, rather than his memory.[58]
[58]T47
197I found the plaintiff to be a credible witness who did not overstate his ongoing knee problems. I found him to be somewhat of a stoic, having little time off work after the incident and continuing to work to the present time.
198As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[59] he suspected: “… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[59] [2008] VSCA 260 at paragraph [4]
Causation
199In issue was the role played by the incident injury in the plaintiff’s current presentation, and whether there is any contribution and, if so, what, by the backyard incident in March 2020 and also a naturally occurring degenerative condition.
200Overall, I accept the incident was the most significant and continues to play a significant role the plaintiff’s current presentation.
201I accept the plaintiff’s evidence that in the backyard incident, his knee did not buckle or give way. He did not step into a crevice or a hole, he just stepped off the concrete path onto the grass in his backyard.[60]
[60]T23
202As Mr Miller described, the backyard incident involved minimal force – a simple hyperextension whereas, the incident at work involved significant force. Therefore, he thought the current clinical status of the plaintiff’s left knee was related substantially to the effects of the incident, acknowledging the difficulties in making that determination.
203In his view, the incident injury to the left knee was complex, involving an injury to the PCL, medial ligaments, probable tears to the medial and lateral menisci and chondropathology involving an impaction fracture. The backyard incident injury was likely to involve aggravation of pre-existing disease and possible further development of meniscal tears.
204Although attributing the plaintiff’s current knee condition to degeneration and the plaintiff’s weight, Dr Lucas thought that the incident may reasonably be viewed as of significance with significant injury outcomes apparent on imaging. The backyard incident was of lesser significance. It had occurred within six months of the prior considered significant injury.
205While acknowledging further/new injury associated outcome pathology (meniscal findings), he thought the incident outcomes may well be reasonably viewed as of at least predisposition, if not contributory significance. Therefore, in his view, the incident injury, at the very least, predisposed the plaintiff and may well have contributed to the backyard injury.[61]
[61]T63
206In April 2020, AP Sutherland described the plaintiff as having had a minor injury two weeks earlier hyperextending the knee.
207Dr Menz is an outlier when describing the plaintiff’s hyperextension injury in the backyard incident as “severe”.
208It is difficult to understand Dr Menz’s view that the plaintiff had significant osteoarthritis in his knee which predated the incident given there was no mention of osteoarthritis in the first MRI.[62] Further, Dr Menz also did not explain why he thought the meniscal tears were degenerative.[63]
[62]T61
[63]T62
209While Mr Byrne thought the medial meniscal tear was really a new injury and was not on the original MRI scan, he did not mention the findings on January 2020 MRI.
210Similarly in his September 2022 report, Dr Aragon described the backyard incident as a new injury, as supported by the MRI scan in August 2020 – not mentioning the January 2020 MRI findings.
211Significantly, before the backyard incident, meniscal damage was shown on the January 2020 MRI organised by Mr Arogundade which showed a truncated posterior horn and, to a lesser degree, body lateral meniscus consistent with tears. There was an undisplaced inferior FLAP surface tear posterior or medial meniscus. There was a moderate amount of scar tissue formed around the femoral attachment of the MCL. The tear extended to involve the meniscofemoral ligament and there was capsular separation.
212While the August 2020 MRI showed healed PCL and MCL tears, Mr Byrne’s August 2020 examination of the plaintiff’s MCL confirmed instability of the MCL Grade II, and the PCL revealed Grade 1 instability. In May this year, Mr Miller found evidence of Grade 1 PCL laxity and Grade II medial ligament laxity.
213In my view, it is simplistic to say because the ruptures were shown to have healed on the August 2020 MRI that the effects of the incident have resolved. As Mr Miller commented, Dr Menz’s opinion failed, on balance, to fully address the complex nature of the plaintiff’s knee injury,
214As Mr Miller explained, there were multiple components of the incident injury, many of which remain traumatic in nature, and he did not believe it reasonable to simply offer a view that those components had resolved and the ongoing problems with the knee no longer relate to the initial injury.
215Mr Miller’s opinion was strengthened by the fact he had personally reviewed the radiology, unlike Dr Menz, who just copied out the findings, not having seen the films.[64]
[64]T61
216As counsel for the plaintiff submitted, Mr Miller should be preferred, because his opinion completely accords with commonsense. The plaintiff clearly had a significant injury in the incident, not just two ligaments ruptured, but also a bony impaction injury and chondral damage. There was no report of osteoarthritis at that time and, since then, as the plaintiff has made it very clear, his knee has never been right. It makes sense that the incident injury is the cause of his problems, as there is no suggestion he has equivalent problems in his right knee.[65]
[65]T65
217While AP Sutherland noted that the plaintiff’s medial pain is degenerative, in a brief letter to the plaintiff’s GP in October 2021, he provided no explanation of his view.
218In all the circumstances, I reject the submission that the progression has continued to follow its natural course, unaffected by the compensable injury.[66]
[66]T56
Had the Plaintiff’s knee recovered before the backyard incident?
219Counsel for the defendant submitted it is quite clear from the records, there was an improvement in the plaintiff’s knee condition, enabling him to return to work at Christmas 2019, and being cleared for pre-injury duties in January 2020[67] – “By 20 January 2020, contrary to the plaintiff’s memory, he was telling his surgeon he was much improved and back at work, and coping okay, and was given a clearance.”[68]
[67]T47
[68]T48
220Further, while it was not said the plaintiff’s knee was 100 per cent better in early 2020, he had some ongoing issues, but it was very much better than it was and sufficiently better to be cleared by his specialist.[69]
[69]T52
221However, I accept the plaintiff’s evidence that his knee never recovered and since the incident, he has been aware something is not right with it.
222He returned to work prematurely, at the insistence of the defendant and at that stage was unable to do any duties at all. After a couple of weeks, he resumed roller duties only- albeit with difficulty.
223The plaintiff had to wear the special brace for six weeks and continued roller duties during that time. After the brace was removed, despite being cleared for normal duties in January 2020, he has never resumed the full range of tasks undertaken previously with the defendant. He then did not have a lot of movement in his knee. He thought he had to go back to work and had to say that his knee was improved.[70] He continued roller duties with difficulty. He could not get in and out of the work ute. He would have been taking a lot of Panadol and Nurofen at that time.
[70]T14
224As the plaintiff described, from the time of the incident, he had felt that there was “something not right” with his knee. This was still the situation when he hyper extended it in the backyard incident.
Consequences
Pain
225The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[71]
[71]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
226Since the incident, the plaintiff has experienced ongoing knee pain, ache and discomfort that is worsening. His pain varies- telling Dr Lucas in February 2020 it was in the order of 5 out of 10 and reporting to Dr Menz earlier this year, from 3 out of 10 on a good day to 8 out of 10 on a bad day - with about four bad days in a fortnight.
227He has limited confidence with regards to weightbearing on his left knee, including when using the stairs and ladders, and is restricted with regard to kneeling.
228He is cautious when walking on uneven ground as his wife confirmed.
229Although his knee has not given way, there is a constant feeling of instability – a feeling as if it is moving sideways, and he has to put pressure on it when driving to prevent his knee moving if he hits a pot hole.
Treatment
230Treatment has been conservative with use of a formal brace – which took a week to put on - initially for six weeks and again later in 2020.
231He continues to wear a sock type brace which he puts on himself and only takes it off when he goes to bed. The brace provides him with extra support and confidence in getting about.
232He had physiotherapy treatment initially.
233Although he took prescription painkillers for a limited time, he has continued to require over-the-counter medication on an ongoing basis taking..
234As Dodds-Streeton JA said in In Kelso v Tatiara Meat Company Pty Ltd,[72] “the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.
[72] [2007] VSCA 267 at paragraph [199]
235There has been referral to three orthopaedic surgeons as the plaintiff has sought answers as to the cause of his ongoing left knee problem as time progressed.
236It is difficult to attribute the need for further knee surgery to the incident. This issue is complex, with various procedures having been suggested.
237In August 2020, Mr Byrne recommended an arthroscopy and reconstruction of the MCL for what he thought was a new injury, damage to the MCL not having been shown on the October 2019 MRI scan. However, made no mention of the meniscal damage shown on the January 2020 MRI scan.
238While Dr Menz talked about a possible total knee replacement in the future, he considered this was due to progressive degenerative arthritis rather than the compensable injury.[73] He thought neither of Mr Byrne’s suggestions of an arthroscopy or reconstruction for the MCL was indicated or required, as there was no MCL instability.
[73]T60
239Mr Miller thought that the plaintiff was at high risk of developing progressive pathology which was likely to ultimately lead to a requirement for reconstructive surgery to either the ligament or, in the longer term, possible joint replacement. Before this was undertaken, further assessment of the joint was required for diagnostic purposes. The requirement for the treatment related primarily substantially to the effects of the work injury.
Work
240Counsel for the defendant submitted, “looking at it globally, any incapacity does not meet the threshold”. An important factor is the plaintiff’s ability to get back, effectively, to pre-injury employment, and it may be his current job as a fuel tanker driver is even more active, and heavier, than what he was previously doing briefly with the defendant.[74]
[74]See Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] VSCA 181
241Even if the plaintiff is down to seven days a fortnight, he is working in excess of full-time hours. It is not a case like Ellis Management Services v Taylor,[75] where the plaintiff had lost the ability to do a particular job he loved or enjoyed.
[75][2013] VSCA 326
242In my view, while any impairment related interference with work may not of itself meet the threshold, it is a factor which can be taken into account when considering all the evidence as to seriousness in this application.
243Since the incident, the plaintiff has never resumed the full range of physical work undertaken before the incident. He continues to experience knee pain at work, for which he requires painkillers. By the end of the working day, his knee is quite sore. He is restricted in his ability to bend and get in and out of his vehicle and continues to have the feeling of his knee moving sideways if he hits a bump when driving.
244In recent months, because of knee pain he has had to cut back of a day a fortnight from his roster. I accept that he is now working at his absolute limit as he described.
245Medical practitioners who have commented on the plaintiff’s work capacity consider restrictions are appropriate because of his knee condition.[76]
[76]Dr Lucas did not comment on work capacity noting the plaintiff was undertaking usual work duties and hours
246Dr Aragon thought the plaintiff is suitable for part-time or full-time employment as long as he does not lift/push/pull; no climbing of stairs/ladders with precaution when climbing trucks, no kneeling or squatting.
247In Mr Miller’s view, the plaintiff would have difficulty with work involving prolonged standing, walking, twisting, turning, kneeling and squatting, and it would not be safe to climb. He would not be fit to return to his previous duties, and he is unable to do so. He had returned to limited hours.
248As counsel for the plaintiff submitted, the plaintiff is clearly a stoic[77] and never had any problems with his knee before, and the fact that he does the current job is very impressive, using a brace continually, effectively.[78]
[77]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [13]; Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [4]
[78]T66
Activities
249Counsel for the defendant submitted there had been some changes to the way the plaintiff does things but, essentially, has carried on performing all the tasks and hobbies that he used to, but perhaps just a little bit less than he used to. He continues to ride his motorbike. He was only a very occasional golfer. He still mows the lawns, still goes camping, but has to use a stretcher bed. He is not walking the dogs, because they are in Western Australia with his wife.[79]
[79]T58
250Further, while It was suggested he cannot cycle, the plaintiff was certainly an active cyclist during 2020, when seeing the physiotherapist. He still goes to the races. His wife mentioned water skiing, but this is not mentioned in the plaintiff’s affidavit, so it cannot be a particularly important activity.
251The plaintiff is living alone at the moment. He is doing the housework, shopping and cooking. He can drive for extremely long periods of time. There is no suggested inability to attend to personal care. He does not allege any significant sleep disturbance, diminution in his sex life, or inability to socialise. He still does gardening and other jobs around the house – “Perhaps not to the same extent as before but those things are still retained. So we say overall that when one looks at what has been retained, the plaintiff doesn’t meet the threshold.”[80]
[80]T60
252As to seriousness, counsel for the plaintiff relied heavily on the consequences deposed to – none of which were challenged.[81]
[81]T66
253I accept there is interference with a range of activities as a result of the plaintiff’s knee condition.
254He hardly ever rides his Harley, which was an activity he used to enjoy with his wife before the incident as she described in detail in her affidavit.
255He had been cycling as a part of his physiotherapy in 2020 but is no longer able to do so. His ability to walk long distances is limited.
256Social interaction has been affected, in that he is unable to play golf and enjoy golfing trips away with his mates. His enjoyment of a day at the races is also reduced because of his inability to stand all day.
257While he still goes camping with his wife and friends, he can no longer sleep on the ground and has difficulty setting up camp.
258He struggles with home maintenance and gardening tasks and is no longer the active husband at home, as his wife described.
259Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s left knee impairment are serious.
260As the plaintiff has continued to experience left knee pain and restriction for nearly three years without improvement despite treatment, I am satisfied his left knee impairment is permanent.
261Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
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