Novak v Victorian WorkCover Authority
[2024] VCC 1970
•13 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-01025
| MICHAEL OTTO JOHN NOVAK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 September 2024 | |
DATE OF JUDGMENT: | 13 December 2024 | |
CASE MAY BE CITED AS: | Novak v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1970 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injuries to both lower limbs – paragraph (a) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie KC with Mr C Farinaccio | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie | Russell Kennedy Lawyers |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in an accident which occurred on or about 25 February 2021 (“the accident”), while he was employed by the Department of Justice and Community Safety (“the employer”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to part (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
(a)permanent serious impairment or loss of a body function; …
… .”
4The impairments of body function relied upon are dysfunction of the right knee and right lower limb, and separately, the left upper limb and left shoulder.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014. As set out in s325(1), the physical impairment must be permanent.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity (as the case may be) which must be “serious” – that is, if the plaintiff is to succeed in his claim, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “when judged by comparison with other cases, in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b) must give reasons that disclose the path of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
10By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder (as the case may be) arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
11In reaching my conclusion in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
12The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from his partner, Carol Joy Jensen. Ms Jensen was not required to attend for cross-examination. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Further Amended Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Further Amended Court Book was marked as Ex D1
The Plaintiff’s background
13The plaintiff was born in August 1955 and is sixty-nine years of age.[7]
[7]Ex P1, p10
14Prior to commencing work with the employer, his work experience included:
(a) nine months at the RAAF, training as a flight navigator, before studying to become a commercial airline pilot;
(b) working as a commercial airline pilot and flight instructor, flying mostly domestic routes, with some international routes, after obtaining his commercial airline pilot licence;
(c) owning and operating a jewellery store for about twenty years;
(d) working in Singapore as a radio operator on a ship. He worked in this role for about two years;
(e) working offshore as a radio operator on a floating refinery off Exmouth in Western Australia. At this time, the plaintiff was based in Melbourne, but worked three weeks on and three weeks off on a “fly-in-fly-out” basis;
(f) just prior to commencing work with the employer, working for about two years as a ship safety communications officer, with Maersk.[8]
[8]Ex P1, pp11-12
15The plaintiff commenced employment with the employer in around 2012. He was employed as a field officer. This role required him to manage and supervise offenders undertaking community work. He was employed on a casual basis, working ten hours a day, four days per week, usually between Thursday and Sunday;[9]
[9]Ex P1, p12
16From 2012 to around March 2020, he was required to supervise offenders undertaking community work. With the onset of the COVID-19 pandemic, it was not possible to go out into the field to do community work. The offenders would be delivered work packs which they would complete. For example the tasks included things like unstitching logos and removing them from clothing and making dog leads and dog toys for the RSPCA. The items were packed into boxes that would then be transported to a shipping container, to be sent overseas.[10]
[10]Ex P1, p12
Pre-existing injuries and illnesses
17The plaintiff has a medical history of high cholesterol, gout and impaired glucose tolerance.[11]
[11]Ex P1, p11
18In around late 2015 through to early 2016, he had some left foot pain. He was referred for an x-ray of his left foot and prescribed some pain relief. The left foot pain improved after a couple of months and did not interfere with his ability to continue working.[12]
[12]Ex P1, p11
19In August 2016, he injured his left foot stepping off the side of a vehicle. He had some pain and swelling in his left foot. He had about a week off work and was able to return to his full duties.[13]
[13]Ex P1, p11
The accident
20The plaintiff described the circumstances of the accident in the following way:
“On 25 February 2021, I was tasked to do a delivery of a bulk shipment of goods that had been packed into boxes. I was instructed to load boxes of different shapes, sizes and weights into an IVECO bus, for transportation. As I was lifting and manoeuvring a box weighing about 20-30kg, turning and twisting on its side to try and fit it into the stairwell entrance of the bus, I felt pain in my right knee and left shoulder. I was assisted to my car by a colleague as I was unable to walk unaided and made my way to my doctor.
I struggled to walk in the days after hurting my knee at work because of the pain. A couple of days after this incident, I also developed worsening pain in my left shoulder. Because of the pain in my right knee and difficulty walking as well as the restricted use of my left arm, I was unable to continue with work … .”[14]
[14]Ex P1, pp12-13
21After the accident, he attended his local doctor because of his right knee, and left shoulder pain and restriction. He was unable to weightbear on his right knee.[15]
[15]Ex P1, p13
22In the weeks following his workplace injury, he was prescribed pain-relieving medications; however, he developed a burning sensation in his right knee. His pain and swelling was also restricting his day-to-day activities. Physiotherapy was recommended.[16]
[16]Ex P1, p13
23On 16 April 2021, he underwent an ultrasound scan of his left shoulder.[17]
[17]Ex P1, p13
24On 22 April 2021, he had an MRI scan of his right knee. He understands that the MRI scan shows he had torn his medial meniscus.[18]
[18]Ex P1, p13
25In early May 2021, he was referred to orthopaedic surgeon, Mr Peter Brydon. Mr Brydon thought he might need a right knee arthroscopy, but recommended conservative treatment at that time.[19]
[19]Ex P1, p13
26In around April/May 2021, he was referred by his general practitioner (“GP”), Dr Casey Yu, for physiotherapy at Back in Motion physiotherapy, initially at Chelsea Heights, before moving his treatment to Back in Motion at Aspendale Gardens. He was referred for treatment of both his right knee and left shoulder. His left shoulder pain was limiting his movement and function and also radiating into his neck and back.[20]
[20]Ex P1, p13
27In late September 2021, he had an MRI scan of his cervical spine in relation to pain radiating from his left shoulder into his neck and pain radiating from his neck down to his arm.[21]
[21]Ex P1, p13
Evidence concerning the consequences of the Plaintiff’s injury
28The plaintiff relied upon two affidavits, the first affirmed by him on 11 October 2023 and the second affirmed on 10 September 2024.
29In summary, the plaintiff’s evidence as to the pain and suffering consequences which he presently experiences is as follows:
Experience of pain
Right knee
(a) he continues to experience a constant burning pain in his right knee, which is worse with repetitive movement such as bending and twisting. He avoids squatting because of his right knee pain and limitation. The more active he tends to be during the day, the worse the pain is at night. The worse the pain is at night, the more it impacts on his sleep;[22]
[22]Ex P1, p25
(b) he has learned to manage his pain levels in his right knee by avoiding activities that cause him pain. He tries to do things slowly and carefully, within the restrictions and limitations imposed because of the pain. Reduced movement and reduced function are associated with his right knee injury;[23]
[23]Ex P1, p26
Left shoulder
(c) he continues to have constant left shoulder pain that limits and restricts the function of his left arm. The pain spreads from his left shoulder into the left side of his neck and into his upper back. The pain is most severe around his left shoulder, where it connects with the base of his neck. His left shoulder pain worsens throughout the day;[24]
[24]Ex P1, p15 and 26
Treatment and medication
(d) he has tried physiotherapy, exercise programs, gym rehabilitation and the use of pain-relieving and anti-inflammatory medications to try and manage his right knee and left shoulder pain and restriction.[25] He saw his GP, Dr Effat Farag, in July 2024 in relation to his right knee and left shoulder injuries. Dr Farag prescribed him with Mobic due to recent flare-ups of pain with respect to his right knee and left shoulder. While there has been some small improvement in his left shoulder pain since he started taking Mobic, the pain, restriction and reduced range of movement in his right knee has remained the same;[26]
(e) he has continued to have physiotherapy treatment with Mr Brendan Mason at Back in Motion Aspendale. WorkCover has allocated him a further twenty sessions over twelve months, but those sessions have recently been completed. He is concerned that he will experience “flare-ups” in his right knee and left shoulder pain, if he does not have regular physiotherapy;[27]
(f) WorkCover approved a pain-management program for him, but he was not able to fund the significant gap payment involved in taking up that treatment;[28]
(g) any improvement in the pain and limitations of his left shoulder and right knee injuries have been slow and restricted, as he has had to try and manage two injuries with conservative treatment;[29]
(h) while surgery for his right knee was recommended by his treating orthopaedic surgeon, Mr Brydon, he feels he had no choice but to choose a conservative path of treatment. He was worried about having his right knee operated on while also having treatment for his left shoulder injury. His left shoulder pain, limitation and restrictions would make it very difficult for him to use crutches or other aids during the rehabilitation phase from any knee surgery;[30]
(i) in addition, his treating doctors could not provide him with any assurance that he would experience significant improvements from the right knee surgery, especially if his rehabilitation was impacted or limited because of his left shoulder injury;[31]
(j) if he stands or is on his feet for extended periods of time, he often needs to rest or take Rafen, in addition to the Mobic, to deal with increased pain in his right knee;[32]
Sleep
(k) he has difficulty getting to sleep because of his right knee and also his left shoulder pain. He usually takes medication to help him get to sleep at night because of his right knee and left shoulder pain. He avoids lying on his left side because of his left shoulder injury. His right knee injury makes it difficult for him to sleep on his right knee or his right side. Because of this, he is limited to sleeping flat on his back, which he does not find comfortable;[33]
(l) he regularly wakes with pain in his left shoulder or right knee. This happens three to four times per night, most nights of the week. On average, he gets one to two hours of quality sleep at night. He tends to be tired and fatigued during the day. He struggles to function in the way he used to before the accident. He is not as sharp as he used to be. He struggles mentally because of his fatigue, tiredness and ongoing pain;[34]
[25]Ex P1, p25
[26]Ex P1, p24
[27]Ex P1, p24
[28]Ex P1, p24
[29]Ex P1, p24
[30]Ex P1, p24
[31]Ex P1, p25
[32]Ex P1, p25
[33]Ex P1, p16
[34]Ex P1, pp16 and 27
Activities of daily living
(m) he avoids repetitive or heavy lifting due to increased pain and reduced weightbearing tolerance due to his right knee injury;[35]
[35]Ex P1, p25
(n) he also continues to have difficulties with sitting, standing and walking due to his right knee injury. He avoids being on his feet for prolonged periods when possible;[36]
[36]Ex P1, p25
(o) he continues to have difficulty with weightbearing on his right knee, going up and down stairs or walking on slopes or on even ground, because of his right knee pain;[37]
[37]Ex P1, p26
(p) since the left shoulder injury, his left arm often feels weak and fatigues easily and quickly with activity;[38]
[38]Ex P1, p26
(q) he has difficulty lifting with his left arm since sustaining his left shoulder injury at work. While he is right handed, he often inadvertently uses his left arm when doing some light cooking, light cleaning or making a cup of tea or coffee;[39]
[39]Ex P1, p27
(r) he continues to have difficulties with his activities of personal care, including showering, getting dressed and doing jobs around the house. He finds it hard to put on upper-body clothing, such as t-shirts and jumpers, because his left shoulder injury restricts his left arm movement, especially above shoulder height;[40]
[40]Ex P1, p27
(s) he has difficulty showering, particularly washing his hair, because he finds it hard to reach above shoulder height because of his left shoulder injury. He tries to shower and dry himself relying only on his right arm;[41]
[41]Ex P1, p16
(t) he has difficulty getting dressed because of his right knee injury. The difficulty that he experiences is because bending, squatting or putting weight on his right knee makes it more difficult to put his underwear, trousers, socks and shoes on. He sits down to try and minimise bending his right knee and to avoid putting weight and pressure on his right leg. He did not have any difficulty getting dressed before the accident;[42]
[42]Ex P1, pp16-17
(u) he finds it hard to lift and pick things up, especially when he needs to reach above shoulder height with his left arm. For example he tries to avoid reaching with his left arm to get medication out of the bathroom cupboard, which is above head height. He tries to limit his use of his left hand to below shoulder height, to avoid making the pain around his left shoulder or neck worse;[43]
[43]Ex P1, p17
(v) he avoids squatting, bending or repetitive twisting movements that put weight or load through his right knee because of his injury. He has difficulty standing for prolonged periods of time. He avoids repetitive or heavy lifting because it aggravates the pain in his right knee. He can sit, stand and walk, but doing these activities for prolonged periods increases his pain. After walking for more than about ten minutes, the pain in his right knee increases and he needs to rest and limit the distance he walks;[44]
[44]Ex P1, p14
(w) both his left shoulder and right knee pain impact on his capacity to drive for extended periods;[45]
[45] Ex P1, p28
(x) since injuring his right knee and left shoulder, he has not been able to contribute to cleaning duties and jobs around the house as much as he used to before the accident. He has difficulty with everyday cleaning tasks such as vacuuming, mopping, and cleaning the bathroom and toilets. He generally avoids these tasks as much as possible. While he tries to do what small jobs he can, he has difficulty with lifting, reaching, pulling, pushing and carrying due to his left shoulder injury. He finds it hard to do tasks that require repetitive bending, squatting and twisting because of his right knee injury;[46]
[46]Ex P1, pp17-18
(y) his partner works full time, but has not been able to look after all the jobs around the house since the accident. He has needed paid household assistance, which was previously approved and funded by WorkCover. Since injuring his right knee and left shoulder, he has not been able to undertake the gardening and property maintenance activities that he used to do before the accident. He would struggle with gardening or maintenance tasks that require repetitive bending, squatting or twisting because of his right knee injury, such as squatting or kneeling to paint, or to pull the weeds out. He tries to spend some time in the garden, but he is generally limited to light gardening and pruning tasks that do not require him to bend, kneel or squat, or to use his left arm or hand repetitively;[47]
[47]Ex P1, p18
(z) he has difficulty reaching, lifting or painting, or manually using tools and equipment such as decking pieces, while doing property maintenance and activities in the garden. While he planned to fix the decking before the accident, he has not been able to do so because of the injuries to his right knee and left shoulder. While he was also able to build decks and pergolas, wash the windows and undertake all the property maintenance before the accident, these activities have been impacted since he sustained injuries to his right knee and left shoulder;[48]
(aa) outside of work, he used to love cooking. While he tries to help cook light meals around the kitchen, because of his left shoulder injury, he has difficulty with heavier lifting activities in the kitchen, such as lifting the roasting pan into the oven. He has difficulty with bending, squatting and twisting, which makes it difficult to get pots and pans out of lower cupboards because of his right knee injury;[49]
(bb) before the injury, he used to enjoy playing the piano in his spare time, although he had not played the piano for some time prior to the accident. Now he would have difficulty playing the piano because the movements required would aggravate the pain in his left shoulder. He also enjoyed playing the clarinet before the accident. He played the clarinet once or twice a week up until the accident.[50] He has tried playing the clarinet since the accident but it is more painful and less enjoyable because of his left shoulder injury.[51] He misses not being able to play the piano and clarinet for his own enjoyment in his spare time;[52]
(cc) he used to enjoy playing golf until some years before the accident. He intended to resume golf “later on”. He has avoided playing golf since injuring his right knee and left shoulder in the accident. He would struggle to swing a golf club because of the pain and restriction in his left shoulder. He thinks he would have difficulty lining up and taking a good swing because of the difficulty that he has with weightbearing, especially while twisting or bending, as a result of his right knee injury;[53]
(dd) outside of work, he used to enjoy swimming in his spare time and for relaxation. He lived close to the beach and enjoyed going for a swim on holidays.[54] He now struggles to swim because of both his left shoulder and right knee injuries. His ability to kick and support himself in the water is restricted, and he also struggles to weightbear when walking through water. Both of these issues are due to his right knee pain. In addition to this, using his arms to swim is painful because of the repetitive movements and lifting that is required, which cause pain in his right shoulder.[55] It is difficult to enjoy the summer and holidays in the same way that he used to, because of the difficulty he has with swimming;[56]
(ee) prior to the accident, he was actively involved in the Historic Rally Association. He organised, directed and participated in many car rallies, as an event director or crew member.[57] He would have significant difficulty participating in these activities now, given the extended driving involved, the need to get into and out of cars and having to navigate uneven terrain. These difficulties are caused by his right knee injury. He misses the enjoyment of being involved in this Association;[58]
(ff) his left shoulder and right knee injuries have had a considerable impact on his ability to enjoy himself while on holidays. Whereas he used to enjoy hiking, swimming and fishing at the beach, when he went to Cairns in the middle of 2023, he was restricted to sitting around the pool. He was not able to be as active as he usually would be because of the pain and limitations imposed by his left shoulder and right knee injuries. As a result, his holiday to Cairns was not as relaxing or enjoyable as holidays that he had taken before the accident; [59]
(gg) his partner and he had planned to go on other holidays before the accident. They are now reconsidering whether to do so, because of the restrictions and limitations that his right knee and left shoulder injuries have on his ability to do things like walking, swimming and getting “out and about”;[60]
(hh) prior to the accident, he had planned to get his flight instructor rating back so that he could become a flight instructor. Because of his left shoulder and right knee injuries, he doubts that he would now pass the medical. His left shoulder injury would make it difficult to operate the control column in an aeroplane with his left arm. Because of his left shoulder injury, he thinks he would also struggle with the rotation movements involved in operating an aeroplane. His left shoulder/arm and neck pain would prevent the effective control of the ailerons. He would also find it difficult to reach up or down or forward to manage the controls and instruments in the aeroplane to be able to fly safely. He is disappointed that he is unlikely to ever be able to pursue his love of flying aeroplanes in the future;[61] and
(ii) the injuries sustained in the accident have cut his working career short. He has not been able to return to work since sustaining the injuries on 25 February 2021. He had planned to continue working for as long as possible and at least until the age of seventy.[62]
[48]Ex P1, p18
[49]Ex P1, p19
[50] Ex P1, p19
[51] Ex P1, p28
[52]Ex P1, p19
[53]Ex P1, pp19-20
[54] Ex P1, p20
[55] Ex P1, p28
[56]Ex P1, p20
[57]Ex P1, p20
[58] Ex P1, pp28-29
[59]Ex P1, p20
[60]Ex P1, p21
[61]Ex P1, p21
[62]Ex P1, p22 and 29
30Under cross-examination, the plaintiff gave the following relevant evidence:
(a) he acknowledged that at the end of his first affidavit he had affirmed that the contents of the affidavit were true and correct and that the affidavit was made in the knowledge that a person making a false affidavit may be prosecuted for the offence of perjury. As a result of this, he agreed that he was aware that he knew it was a “serious document”. He agreed that he had read the document before he affirmed it;[63]
[63]Transcript (“T) TT9-10
(b) he denied that the first affidavit as originally affirmed, implied that he had been a current piano player at the time of the accident, and that he had said this, because he wanted to bolster his claim;[64]
[64]T10, Line (“L”) 8-24
(c) he agreed that when he affirmed his second affidavit, that would have been an opportunity to correct the content of the first affidavit, but he did not do so;[65]
[65]TT10-11
(d) he agreed that the same thing had happened in relation to the reference to him playing golf;[66]
[66]T11, L8-15
(e) he disagreed that he had misled Dr Weekes, pain specialist, by leading that doctor to believe that he had become unable to play the piano, clarinet and golf because of his injuries. He said that “all that I was pointing out was that if I wanted to be able to start playing the piano again, or playing golf, or any other recreational activities that we mentioned … that I’m unable to perform them now”;[67]
[67]T12, L1-15
(f) he said that he had not played golf for approximately twenty years prior to the accident;[68]
[68]TT12-13
(g) he agreed that he knew when he affirmed his first affidavit that he had not played golf at that stage for fifteen or more years. When asked whether he thought he should have said that in the affidavit, he replied “I think it should have been pointed out to me at that point in time”;[69]
[69]T13, L19-29
(h) he said that he had not played a piano for about twenty years. He said that the last time he attempted to play piano would have been ten or more years ago. He was challenged about the sentence in his first affidavit which reads, “Now, I have difficulty playing the piano”. He said that what he meant was “Now, I would have difficulty playing the piano”;[70]
[70]T14, L13-19
(i) he agreed that he had not attempted to play the piano since the accident;[71]
[71]TT14-15
(j) he agreed that he had not tried to play golf since the accident. He said that he had not attempted to play golf for at least ten years: “No, [I] haven’t been able to because I haven’t been fit enough to be able to”; [72]
[72]T15, L16-30
(k) he said he had attempted to play the clarinet since the accident. That attempt was about nine months ago and he found it very difficult to try to perform that activity;[73]
[73]TT15-16
(l) he said that he had really enjoyed playing the clarinet prior to the accident;[74]
[74]T17, L21-25
(m) he confirmed that as far back as May 2021, he had approval from WorkCover to have an arthroscopy on his right knee;[75]
[75]T17, L29-31
(n) he agreed that both Mr Brydon and Dr Yu were in favour of him having that surgery;[76]
[76]TT17-18
(o) he agreed that in May 2021, he told Dr Brydon that his right knee was improving. It was suggested to him that the reason he has not gone back to Dr Brydon to have knee surgery, was because he does not actually need it. He denied that this was true;[77]
[77]TT19-20
(p) he said that he was still interested in having the arthroscopy on his right knee: “Once my left shoulder settles and I’m able to use crutches … to make myself mobile after the surgery has been performed, then I’ll have the … procedure done.” He agreed that he had not seen an orthopaedic surgeon about his left shoulder condition. He said, “I was never … sent to see one”;[78]
[78]T21, L16-28
(q) it was put to the plaintiff that no medical practitioner had advised him he could not have an operation on his right knee because of problems with his left shoulder. In response to this, he replied, “It’s quite clear to me and everyone that has seen me, that I was unable to support myself on crutches. So If I can’t support myself on crutches … how can I possibly have the procedure done on my leg?”;[79]
[79]TT22-23
(r) he was asked whether or not he had tested his ability to use crutches. To this he replied, “I don’t need to, because I can’t push down with … my left arm. So I can’t support myself underneath”;[80]
[80]T23, L9-11
(s) it was suggested to him that he did not ever intend to have right knee surgery. He did not agree with this proposition;[81]
[81]T23, L17-21
(t) it was suggested to him that if his right knee condition was really significant, he would have had the arthroscopy surgery some time ago. In response to this, he replied, “No, I’d be totally immobile because of my inability to use crutches”;[82]
[82]TT23-24
(u) he agreed that having an injection into his left shoulder with corticosteroids, was something that had been suggested by Associate Professor Bruce Love and which he had discussed with his treating physiotherapist;[83]
[83]T25, L12-31
(v) he denied that the physiotherapist is still pressing him to have the shoulder injection. He said that he had been told the injection would provide, at most, temporary relief;[84]
[84]TT26-27
(w) it was put to him that it had been recommended that he participate in a pain management program. In response to this, he replied that he had been unable to find a practitioner that would provide such a program for a price he could afford. He said the amount WorkCover allowed for that procedure was far lower than what the practitioners were charging. He said there was about a $600 gap and he could not fund it;[85]
[85]TT27-28
(x) he agreed that he attends his general practitioner about every six months to get fresh prescriptions for all of his medical conditions, including gout. He said that when he attends the doctor, he also discusses his shoulder and right knee. He agreed he did not see these doctors separately for his left shoulder or right knee conditions. He said that none of his general practitioners had been really involved in treating his left shoulder or right knee “apart from the odd visit”;[86]
[86]TT31-32
(y) he had most recently obtained a prescription for Mobic from Dr Farag. When he was challenged about this because there was no note evidencing such an attendance, he repeated that he had definitely attended Dr Farag in 2024 and had obtained a prescription for Mobic at this time in respect of both his left shoulder and his right knee;[87]
[87]TT29-33
(z) he said he takes Mobic daily at the moment;[88]
[88]T34, L3-11
(aa) the medication he receives for gout completely controls that condition, “it’s just like I don’t have it”. The gout does not interfere with his work, his sleep or any of his activities of daily living;[89]
[89]T35, L4-20
(bb) he denied he had started taking Mobic on a daily basis because this case was coming up in court. He agreed that he had not taken Mobic or any prescription medication up until July 2024 for the left shoulder or the right knee. He said he had been taking Panadol, Rafen and Nurofen for those conditions. He said he had “sort of plateaued on them … nothing was helping me with the shoulder”;[90]
[90]TT35-36
(cc) he prefers not to take Mobic unless he has to because “it’s not good for your stomach at all … I’ll only take [prescription medicines] as a last resort”;[91]
[91]T36, L12-17
(dd) on a typical day he would take two Panadol and one Mobic in the morning, and possibly some Rafen at nighttime. He said that one Rafen will “take me through the whole night”. He would never take two Mobic, because of his concerns about his stomach;[92]
[92]TT36-37
(ee) he acknowledged that in July 2024, he may have told Mr Raf Asaid, orthopaedic surgeon, that his current medication regime was “Betaloc daily, Mobic daily. Ibuprofen when required. Panadol Osteo when required.” It was put to him that this was different to what he had told the Court about his medication needs. He said that “when required” may be “daily”;[93]
[93]TT37-38
(ff) he acknowledged that he had said in his first affidavit, that suffering the injuries had cut his career short;[94]
[94]TT38-39
(gg) he acknowledged he had said a similar thing in his second affidavit, namely, that he was unable to return to his pre-injury duties since sustaining his injuries in the accident;[95]
[95]T39, L9-15
(hh) he agreed he had told every doctor he had seen in this case that he had not been able to return to work since the accident;[96]
[96]T39, L28-31
(ii) he was taken to what he had told various doctors about this issue, including Associate Professor Bruce Love, orthopaedic surgeon; Dr Francis Ghan, orthopaedic surgeon; Mr Brendan Mason, physiotherapist, and Mr Asaid, orthopaedic surgeon. He agreed he had told each of these doctors he was unable to return to his pre-injury tasks or functions. However, he denied he told Mr Asaid that he had not been able to return to work “in any capacity since the incident”. He said he had told Mr Asaid he had not been able to return to work in his previous capacity. He specifically denied having used the words “any capacity”;[97]
[97]TT40-41
(jj) he agreed that he does still have a role with a company called “Black Cat Control Systems” (“Black Cat”). He is the founder and manager of Black Cat and is also a director of that company;[98]
[98]T41, L20-27
(kk) he agreed there is no reference to Black Cat in either of his two affidavits. He said, “There was no reason to mention it”;[99]
[99]T42, L13-17
(ll) in response to a question about why he had told doctors he was unable to work since the accident, he replied “Black Cat … does no physical work”;[100]
[100]T42, L22-24
(mm)it was suggested to him that in omitting this information from his affidavits and what he had told various doctors, he was trying to conceal his involvement with Black Cat. He denied this proposition;[101]
[101]T43, L4-10
(nn) he agreed he had told various doctors about his inability to participate in various activities such as golf and piano, which he had not done for nearly twenty years. When it was put to him that he did not mention Black Cat to any of them, he replied, “none of them have asked me about my full employment history”;[102]
[102]TT42-43
(oo) he agreed that doctors had asked him about his occupational history and his education. He was taken to what he had told Dr Weekes as an example. He agreed he had told Dr Weekes where he was born, his secondary schooling level and his various employment roles over the years, including being employed as an airline pilot, flight instructor, communications officer, radio operator and at one point owning a jewellery store. He was taken to a part of Dr Weekes’ report which recorded that he had told Dr Weekes he is “now retired. Unable to return to the work force since 25 February 2021.” It was put to him that he had told Dr Weekes about his past occupational activities. In response to this, the plaintiff replied, “Well, he didn’t ask about current”. It was put to him that he did not volunteer anything about his current activities, to which he replied, “Well, if you don’t ask, then you don’t know, do you?”;[103]
[103]T44, L4-30
(pp) he agreed this his partner, Ms Jensen, had never worked for Black Cat and did not work for that company now;[104]
[104]T46, L10-13
(qq) he agreed that the business name had been registered on 17 November 2015. He agreed that the place of business is his home address;[105]
[105]T47, L10-17
(rr) he agreed that the business has a vehicle which has the words “Black Cat Control Systems” on it, along with a sign for TEM Electrical. He agreed that the vehicle is a “work vehicle used for Black Cat purposes”;[106]
[106]T49, L11-23
(ss) he agreed that the vehicle is a black Jeep wagon that is registered to Black Cat Multi-Vend Pty Ltd, the incorporated entity behind Black Cat;[107]
[107]TT47-49
(tt) it was suggested to him that if he had a problem with driving, he would not have retained the vehicle for Black Cat. He disagreed with this proposition;[108]
[108]T50, L5-13
(uu) he denied driving this vehicle to go and see customers of Black Cat. He said the car is now about twelve years old. He agreed that if Black Cat did business, it would be supplying home automation devices in domestic homes. He denied that he has ever installed a home-automation system. He said there are separate installers who do this work;[109]
[109]T51, L4-17
(vv) he was asked why he would retain the vehicle under the name of Black Cat if he was not handling products of that company. To this he replied, “Well, I like the vehicle. It is as simple as that”;[110]
[110]T51, L23-25
(ww) it was put to him that Black Cat is still operating as at the date of this hearing. He agreed with this proposition. It was put to him that Black Cat continues to make sales. In response he replied, “very few, but yes, it does sell”. He said that Black Cat takes up about five to ten minutes of his day, checking emails;[111]
[111]TT51-52
(xx) he agreed that in his consultation with Dr Farag on 2 July 2024, there was no reference to the consequences of any injury to his right knee;[112]
[112]TT54-55
(yy) Dr Farag had prescribed him Mobic on that occasion, one per day or as required. He said that some days he has needed the tablets and other days he has not. He said that recently he has been needing to take that medication daily;[113]
[113]T55, L22-30
(zz) he is going to be seeing Dr Farag again next week to discuss how they should progress further with his injuries. When pressed on this matter, including about whether or not there may be a discussion about having a right knee arthroscopy or left shoulder cortisone injection or pain management or referral back to an orthopaedic surgeon, the plaintiff said that all of those were a possibility;[114]
[114]T56, L4-20
(aaa)he confirmed that he would follow whatever form of treatment was suggested by Dr Farag;[115]
[115]T56, L21-23
(bbb)the plaintiff confirmed that at the age of sixty-nine years, he is “now retired”. It was suggested to him that he would have retired at about this time in any event. He did not agree with this proposition, saying he would have liked to work to age seventy-five. When it was pointed out to him that his affidavits had talked about him working until at least seventy, he replied “however, I … [would] have liked to have had the option to work longer”. When he was asked why, if he wanted to work until seventy-five, he had not put that in his two affidavits, he replied “I might be dead next week, so it’s totally irrelevant as to putting a specific date on it”;[116]
[116]T57, L5-17
(ccc)it was put to him that his partner is also retired and that their current lifestyle is that of “a retired couple”. He confirmed that this was true;[117]
[117]T57, L18-28
(ddd)he was asked about a holiday that he and his partner had taken to Cairns in mid 2023. While giving evidence about that subject, the plaintiff volunteered “that’s where I nearly drowned in the Barron Gorge”. When pressed about this point, the plaintiff clarified that he did not in fact go into the moving water in the Barron Gorge, explaining that he meant, “had I moved into the moving water I would’ve drowned”. He said that he stayed in the “steady pool”. He said that he is wise enough not to enter into dangerous places in his condition. He said: “It would’ve been difficult and painful plus life threatening having to go into the moving water and the current and I wasn’t prepared to take that … if I’d fallen in, I would’ve drowned”;[118]
[118]TT58-59
(eee)when it was pointed out to him that he had initially said that he nearly drowned but had now clarified that he had actually stayed in the shallows, he agreed that he could see a “difference” in that evidence. When asked why he had exaggerated on this point, he replied: “Well, it’s something that could’ve happened had I proceeded and slipped or stumbled and fallen in, then I would’ve almost drowned”;[119]
[119]TT59-60
(fff) he said that after his experience in the Barron Gorge, he is too afraid to even enter a swimming pool. When he was asked how many times he has gone swimming since the accident, he said “I haven’t … Apart from … that one event in Barron Gorge, I haven’t been in the water since”;[120]
[120]T61, L11-19
(ggg)as a result of not being able to swim in the swimming pool and not being able to hike because of his right knee, the trip out to Fitzroy Island was “actually a totally wasted part of the … trip”;[121]
[121]T62, L13-20
(hhh)he acknowledged that he had not been swimming for some time before the accident;[122]
[122]TT62-63
(iii) the plaintiff said that there were many activities he had not done for many years such as playing tennis or participating in judo. He said: “There’s lots of activities that I have done when I was younger that I haven’t done for many years. I’d still like to be able to do them, but I’m prohibited … [from] doing them because of my injuries. It’s too difficult or painful at the same time”. When it was put to him that he had not made any reference to these activities in his affidavit material, he replied “look, there’s a lot of things that I haven’t referenced in that because they … weren’t relevant”. He ultimately agreed that there was no reference either to judo or tennis in any of his affidavits;[123]
[123]T63, L12-28
(jjj) he has not been interstate on a trip since the accident prior to going to Cairns in 2023. Usually he and his partner just go to regional places on daytrips or for lunch. He said that he had been back to Cairns in February of 2024 for seven days;[124]
[124]T64, L2-23
(kkk)he agreed that he was able to manage the steps on the bus and also the flight up to Cairns and back again, on each occasion. He said that his partner was the one that took care of most of the luggage;[125]
[125]T65, L2-13
(lll)he said that he and his partner had plans to go to New Zealand later this year. He thought that was likely to take place and that the trip would last for about seven days;[126]
[126]T66, L8-20
(mmm)it was suggested to him that if he truly could not afford the gap payment for the pain management course, then he would not be taking multiple trips interstate. He clarified that it was his partner’s money that was being used for those trips, not his money. He said they keep separate finances;[127]
[127]T67, L17-23
(nnn)it was put to him that if his right knee or left shoulder conditions were serious, then he would have found the $600 to pay for the pain management course. He said in response to this “… if that’s the final outcome, yes, we would have found that money to do it. However, at the moment I’m doing alternative treatment with Mobic”;[128]
[128]T68, L1-12
(ooo)it was suggested to him that if he was serious about resuming his previous role as a flight instructor, he would have at least undertaken the medical assessment. In response, he replied: “Well, there’s little point now because I wouldn’t be able to because of my left shoulder and right [knee]. I have difficulty in operating controls. It’s also very painful. So, the moment I went to go into a medical to revalidate my flying licence, I wouldn’t pass the medical … However, prior to my injury that was a totally different story. I would’ve been able to do it”;[129]
[129]TT68-69
(ppp)he confirmed that prior to his injury, the last time he went flying recreationally or commercially would be twenty years ago;[130]
[130]T69, L13-15
(qqq)he denied that organising car rallies was also something that he had not done for about twenty years. He said that these activities were very recent, that he was a committee member of the Historic Rally Association in about 2000, but had participated in events and rallies since that time up to the time of the accident;[131]
[131]TT69-70
(rrr) the last time that he participated in a car rally was in around 2018 or 2019. He confirmed that participating in car rallies was not something that he was doing in the year before the injury. He explained that “… these rallies take years … to plan. And they only come up infrequently … Maybe once every two years. So just as an example, there’s one occurring this … weekend … and I know that’s been in planning probably for about three years”;[132]
[132]T70, L8-27
(sss)when asked if he was going to participate in that rally, he replied “I can’t … I’d love to … But I’m unable to … I wouldn’t be able to sit … for that period of time in a bumping car on rough roads”;[133]
[133]TT70-71
(ttt) he was asked about how frequently he used to enjoy hiking and fishing. He said that these activities were things he used to do in his teenage years. He replied, “I really enjoyed doing it”. He said that he would not be able to enjoy those activities now because of his injuries;[134]
[134]T71, L14-26
(uuu)it was suggested to him that saying he used to enjoy hiking, swimming, and fishing at the beach and so on, were deliberate efforts to mislead the Court as to his situation before and after the injury on 25 February 2021. He denied that this was true;[135]
[135]T72, L9-13
(vvv)he was asked whether or not his enjoyment of cooking was in the same category, namely, that he had not done it for many years. He said that he had always done cooking throughout his whole life;[136]
[136]T72, L14-24
(www)he still does cook, or at least tries his best to cook. He said there are a lot of things he cannot do, such as getting pots or pans out because, if they are down lower, it involves squatting and he is unable squat. He said it is the same for anything that is up high, that he cannot get that down with his injured arm. He said he is able to assemble things at waist height and he enjoys it;[137]
[137]T73, L3-13
(xxx)it was suggested to him once again that if either his right knee or left shoulder condition impeded his ability to be involved in cooking in the way that he described, then he would have had a right knee arthroscopy, a left shoulder cortisone injection or participated in a pain management program. In response to this, he replied: “Well, the pain management is something that I’d like to explore in the next few weeks.” He agreed that with respect to this, he would be guided by his general practitioner as to what steps to take with pain management;[138]
[138]TT73-74
(yyy)it was put to him that if the advice was to undergo pain management, he would find the $600 gap payment if necessary. He confirmed that this was true;[139]
(zzz)he still experiences interrupted sleep. It was put to him that he had said that if he takes a Rafen tablet, then one tablet “will take me though the whole night …”. In response to this, he replied “that doesn’t work that way. … I will still wake up some nights. Some nights, I will sleep through … just taking one tablet doesn’t guarantee that I’m going to sleep”;[140]
(aaaa)he agreed that he had not gone to his general practitioner for any medication to assist with sleep. It was suggested to him in those circumstances, that he did not actually have any problem with his sleep. He denied this proposition;[141]
(bbbb)he was asked numerous questions about the current state of his pain in both his left shoulder and the right knee. It was suggested to him that the true situation is what he described to Mr Mason, physiotherapist, namely, he has been stable with occasional aggravation in pain, that he has been able to work within his means and that his pain is mostly controlled with a reduction in the burning pain in his knee and also the pain from the left shoulder. He said that he agreed that his pain had been stable with the occasional aggravation. He said that he was able to work within his means depending on what the task is. He agreed that at the time he saw Mr Mason, which was in June 2024, his pain was mostly controlled and there had been a reduction in the burning pain in his right knee and the pain in his left shoulder;[142]
(cccc)it was put to him that his pain is controlled most of the time, except in the instance of aggravation, which he had experienced just before seeing Mr Mason in June 2024. It was put to him that on that occasion, that aggravation was managed with pain relief and anti-inflammatories. He agreed with this proposition;[143]
(dddd)it was put to him that the true situation regarding his pain is what he had told Mr Mason in June 2024 and not what he described to Dr Weekes in August 2024, where he had said that his left shoulder pain was eight out of ten and his right knee pain was five out of ten. In response to this, he replied: “It all depends on the day. I mean it does flare up. So, if I’d seen him at that point in time and I was having a flare up, I … reported to him how I feel at that point in time”;[144]
(eeee)it was suggested to him that the functional tolerances he described to Dr Weekes were exaggerated. He denied this proposition. It was suggested to him once again that he had only gone to the doctor to obtain prescription medication in order to strengthen his court case. In response to this, he replied: “No, no, no, no. … I’ve gone back to him to try and find a solution … to this problem. … the work that the physio has done has been excellent, but we’ve reached the stage – it doesn’t matter what Mr Mason was doing – it wasn’t making me any better. So I’ve gone back to Dr Farag, and I’ve gone – deliberately asked for Dr Farag because he is I believe the owner of the health centre … I’ve never had a doctor to actually overlook my case and be a treating doctor that I could go back to consistently. This time I’ve very pointedly made sure that I’ve found a doctor that would be there continually … I’ve gone back to him, discussed the right knee and left shoulder, but specifically the left shoulder, because that’s the part that is giving me the greatest amount of grief. And now hopefully, with what we’ve just recently discussed, we’ll be able to work on a management plan and treatment plan”;[145]
(ffff)it was suggested to him that he would do whatever the doctor told him to do and “see where that takes you”. In response to this, he replied “I will”. It was put to him that that would include pain management, to which he replied “yes”;[146]
(gggg)he acknowledged that he had been to the GP to seek a disabled parking permit in October 2023. He was asked why he would be asking for a disabled parking permit when he was able to travel to Cairns and go to Barron Gorge and Fitzroy Island. In response, he said that he asked the doctor if he would be able to get a disabled parking permit and that he explained to the doctor that he had difficulty with walking distances such as 100 or 150 metres;[147] and
(hhhh)he was taken to the functional assessment conducted by a nurse at the GP clinic, which recorded in October 2023 that he had a significant mobility impairment such that he was required to use a mobility aid or device. He denied that he had told the nurse this. He said that he had never used a mobility aid. He was asked to explain to the Court where this reference to a mobility aid being required had come from. In response he replied: “When I saw the nurse she didn’t have time to go through the records with me or the questions, and … she said to me … ‘leave it with me, I’ll make sure that you get the permit’.”[148]
[139]T74, L5-8
[140]T74, L9-13
[141]T75, L8-19
[142]TT76-77
[143]T77, L18-21
[144]T77, L22-30
[145]TT80-81
[146]T81, L13-15
[147]TT82-83
[148]TT84-85
31Under re-examination, the plaintiff gave the following relevant evidence:
(a) he confirmed that he hates taking prescription medication and only does so as a last resort;[149]
(b) he said that he went to Dr Farag in July and accepted his recommendation to take Mobic, because that was a last resort at that time. He said that prior to July 2024, he had significant pain in his left shoulder. He confirmed that in August 2024, when he saw Dr Weekes, his pain level was about eight out of ten. He said that his pain has improved since that time, to around three or four out of ten, depending on the amount of movement he undertakes;[150]
(c) the medication he was prescribed assists with relieving his pain. On the days when he does not take Mobic, his pain level increases;[151]
(d) he confirmed that he had disclosed his directorship of Black Cat and the money he was earning from that role, in his original Worker’s Claim Form;[152] and
(e) walking about 100 metres is the limit before he needs to take a break.[153]
[149]T89, L9-11
[150]T89, L12-24
[151]T89, L25-28
[152]T90, L10-29
[153] T91, L7-13
The lay witness
32As referred to above, the plaintiff relied upon an affidavit from his partner, Ms Carol Joy Jensen, affirmed 10 September 2024. The relevant evidence given by Ms Jensen in that affidavit is as follows:
(a) she is the plaintiff’s partner and has lived with him since about 2000;[154]
[154]Ex P1, p31
(b) since suffering his injuries, the plaintiff complains of experiencing pain in his right knee and left shoulder which impacts on his ability to undertake his activities of daily living;[155]
[155]Ex P1, p32
(c) she has observed that because of the injury to his right knee, it takes the plaintiff a lot longer to move around and walk places compared to how he was able to move before the accident. He also struggles to get up and down stairs at home;[156]
[156]Ex P1, p32
(d) she has noticed that the plaintiff avoids being on his feet for too long. For example when he cooks, he often needs to take a break to sit down because he finds it hard to stand for extended periods of time;[157]
[157]Ex P1, p32
(e) since injuring his right knee at work, the plaintiff spends a lot more time on the couch or on his laptop when he is at home. He often struggles to get up from the couch, because of the difficulty he has putting weight on his right leg;[158]
(f) before suffering his injuries, the plaintiff used to enjoy gardening and doing odd jobs around the house. He would also help her with domestic chores;[159]
(g) the plaintiff now experiences increased pain in his right knee, if he is on his feet for a long time. He experiences pain in his left shoulder if he is using that arm repetitively or above shoulder height. Accordingly, he now tries to avoid gardening, home maintenance or other heavy chores where he can;[160]
(h) before the accident, the plaintiff used to help with jobs like hanging out the wet washing on the clothesline, vacuuming and mopping. Since suffering his injuries, he avoids reaching up to hang the wet clothes on the line or removing them once they are dry, because of his left shoulder pain and restriction. The repetitive and forceful pushing and pulling involved with vacuuming and mopping can also make his left shoulder pain worse;[161]
(i) the plaintiff has told her that he struggles to get a good night’s sleep because of his injuries. The plaintiff and she sleep separately. The plaintiff can often be irritable and look tired during the day;[162]
(j) prior to suffering his injuries, the plaintiff enjoyed his recreational activities. In particular, he enjoyed car rallies and his involvement with the Historic Rally Association. He also enjoyed his flying activities;[163]
(k) since injuring his right knee and left shoulder at work, the plaintiff has been unable to participate in those activities. He misses the camaraderie and social aspect of the Historic Rally Association in particular;[164]
(l) she and the plaintiff used to enjoy travelling interstate before he suffered his injuries. The plaintiff enjoyed exploring nature and going on long walks where he could be gone for hours. While they have been able to travel interstate to Cairns since the plaintiff injured his right knee and left shoulder, his right knee injury has significantly impacted on his ability to go on long walks and explore. He now spends most of his time around the pool when on holiday;[165]
(m) before suffering his injuries at work, the plaintiff was looking forward to working for as long as possible and at least to the age of seventy. He enjoyed his job. He expressed disappointment to her that he had to stop working prematurely;[166]
(n) from her observations of the plaintiff, his right knee and left shoulder injuries have had a very considerable impact on his quality of life, especially his ability to work and pursue his social and recreational activities that he once greatly enjoyed;[167]
[158]Ex P1, p32
[159]Ex P1, p32
[160]Ex P1, p32
[161]Ex P1, p33
[162]Ex P1, p33
[163]Ex P1, p33
[164]Ex P1, p33
[165]Ex P1, p33
[166]Ex P1, p34
[167]Ex P1, p34
The medical evidence
33There were numerous medical reports contained in the tendered material. Both parties relied on reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
34The plaintiff relied upon three reports from Mr Peter Brydon, orthopaedic surgeon, the first dated 4 May 2021, the second dated 5 May 2021 and the third dated 17 July 2024. In the first report, Mr Brydon reported that the plaintiff was at that time saying that his knee was feeling better on a daily basis. Mr Brydon thought that it was possible that the plaintiff could get back to the point of living with the meniscal tear from which he had suffered. Notwithstanding this, he supported a request to WorkCover for approval for a right knee arthroscopy to take place at a time that suited the plaintiff. He also observed that if the plaintiff’s knee was to “settle down completely”, then the plaintiff would not need any further treatment.[168]
[168]Ex P1, p50
35In the third report, Mr Brydon repeated the information about the fact that an approval had been obtained from WorkCover for a right knee arthroscopy. Mr Brydon observed that there was a question at that time about whether or not the right knee was “settling”, so the plaintiff did not wish to have the arthroscopy done at that time. Mr Brydon reported that the plaintiff had also advised that he wished to speak with his physiotherapist and GP before undergoing that operative procedure, and would contact Mr Brydon when he was ready to book the surgery. Mr Brydon thought that the plaintiff’s prognosis was guarded, although he noted that he had not seen the plaintiff since his initial consultation in May 2021 and therefore could not make “a significant comment on his outcome”.[169]
[169]Ex P1, p48
36The plaintiff relied upon two reports from Mr Brendan Mason, physiotherapist, the first dated 10 August 2023 and the second dated 28 June 2024. In the second report, Mr Mason made the following observations.
“… [the plaintiff] reported sustaining a workplace injury on the 25th of February 2021. [The plaintiff] was lifting boxes and placing them into a bus for transportation … [the plaintiff] lifted one box into the bus, which involved a twisting movement, as well as raising the box to lift into the bus … There was a sharp pain into the knee and [the plaintiff] immediately attended to his General Practitioner. The shoulder pain was not immediately sore, however developed over the following days and became more sore …
The MRI [of the right knee] noted a medial meniscal tear without any other findings of note. … [The plaintiff] also had an ultrasound on his shoulder which determined that there was subacromial and subdeltoid bursitis, however I also believe that [the plaintiff] sustained a rotator cuff injury (likely supraspinatus muscle/tendon tear based on his symptoms).
We … [commenced] physiotherapy treatment … on the 10th of May 2021. This initially involved treatment onto the knee due to the delay in acceptance of the shoulder injury under the claim as described above. Then we also treated the shoulder injury as well – with both areas being treated with manual therapy and soft tissue management. We initially used tape onto the shoulder … however [the plaintiff] developed a skin reaction … which precluded any further use. We also tried various knee supports … however these were all noted as being too constrictive and aggravated [the plaintiff’s] pain … [hence], tape and bracing were unfortunately not options for … [the plaintiff].
[The plaintiff] had an Independent Medical Examination with Mr Bruce Love (Orthopaedic Surgeon) on the 17th of June 2021. At this time, … [the plaintiff] still had marked medial joint line tenderness, significant swelling and inability to comfortably weight bear. He also had limitations in his shoulder range of movement and reductions in strength. It was concluded by Mr Love that the arthroscopy was an appropriate procedure for … [the plaintiff] to undergo should he wish to. Mr Love also noted that corticosteroid injections would be appropriate for [the plaintiff’s] shoulder.
We discussed these options in subsequent sessions, and over a long period of time. We continued physiotherapy treatment where progress was slow. However there were still positive gains since the commencement of treatment and … [the plaintiff] was generally happy with progress and [prefers] to proceed down the conservative path, compared to potential surgery or cortisone injections. The concerns raise[d] by … [the plaintiff] with his knee operation revolved around the requirement to use crutches (or similar) to ambulate post operatively, and the pain and limitation that he had (and has) in his shoulder which would not support the use of an ambulatory aid. … [The plaintiff] was also concerned with the increased risk of osteoarthritis following a knee operation, and hence with the small gains that he could see, he opted for continuation of conservative treatment, with the support of his General Practitioner and myself. With regards to the cortisone injections, [the plaintiff] noted potential side effects, limited efficacy and likely short-term benefit as reasons to not proceed with this. Again, despite slow progress, [the plaintiff] is happy with progress compared to his initial presentation.
…
[Since August 2023] … [the plaintiff] has been … [predominantly] self-managed, and we have been able to complete physiotherapy sessions approximately every 2-4 weeks and are due to end management by September 2024. … [The plaintiff] has been stable during this time, with occasional aggravation in pain. He still experiences difficulty with … [managing] tasks and relies on his partner for assistance with domestic duties. He has limited shoulder movement, and still has difficulty squatting and negotiating stairs, however he is able to work within his means. His pain is mostly controlled, with a reduction in the burning pain in his knee, and also the pain from his shoulder. This is the case for most of the time, except in the instance of aggravation, which he has had recently, and was managed with pain relief and anti-inflammatories.
…”[170]
[170]Ex P1, pp51-52
37Mr Mason expressed the opinion that the plaintiff’s pain was currently stable, noting that he had received less physiotherapy recently without significant decline in either the left shoulder or right knee. However, he stated:
“There are certainly times when either is aggravated, and so it is clear that … [the plaintiff] will continue to experience these aggravations of pain ongoing.”[171]
[171]Ex P1, p55
38He said that the plaintiff’s base level of pain and dysfunction is remaining stable. He noted that the plaintiff was not able to do many of his pre-injury tasks or functions, including but not limited to:
“… reaching above his head, deep squatting or ascending and descending stairs with comfort. He notes difficulty in walking long distances and swimming. Given the chronic nature of his pain and injuries, it is reasonable to assume that … [the plaintiff] will continue to have these ongoing issues. It is not likely that these will resolve and it is not likely that … [the plaintiff] will return to his previous level of function …
…
I believe that attendance at a Pain Management Program would be of benefit to … [the plaintiff] in his recovery, even at this stage. I understand that he was approved for this program, but was unable to attend due to the additional gap payment required … I believe that it is still of value and should be considered to assist … [the plaintiff] in the management of his flare ups … .”[172]
[172]Ex P1, p55
39The plaintiff relied upon two letters from his general practitioner, Dr Casey Yu, the first dated 7 April 2021 and the second dated 28 April 2021. Neither of those letters contained any information that was of particular relevance to the plaintiff’s current presentation.
40The plaintiff relied upon a medico-legal report from Associate Professor Bruce Love, orthopaedic surgeon, dated 23 June 2021. In that report, Associate Professor Love confirmed the details of the accident on 25 February 2021 and stated that it is reasonable to accept that the conditions in both the right knee and left shoulder are a consequence of that incident.[173] Associate Professor Love considered that as a result of the accident, the plaintiff had suffered a medial meniscus tear of the right knee and aggravated the rotator cuff of the left shoulder, resulting in subacromial bursitis.[174] He stated that the plaintiff’s current symptoms in the right knee are pain, with significant swelling and an inability to comfortably weightbear. He noted that the left shoulder had improved somewhat since onset, but commented that there is still pain and a limited range of movement.[175]
[173]Ex P1, p64
[174]Ex P1, p64
[175]Ex P1, p62
41Associate Professor Love recommended that the plaintiff’s right knee injury be treated by having surgery in the form of a right knee arthroscopy. He thought that this surgery was required to “treat the injury due to a severe dysfunction of the right lower limb and associated pain”.[176] He thought that the appropriate treatment for the left shoulder was by way of physiotherapy and anti-inflammatory medication. He noted that resolution of this injury may be slow and incomplete, but that there were no indications for surgery at that time.[177]
[176]Ex P1, p64
[177]Ex P1, p67
42The plaintiff relied upon one medico-legal report from Mr Raf Asaid, orthopaedic surgeon, dated 31 July 2024. In that report, Mr Asaid noted that on physical examination, the plaintiff had difficulty removing his jacket and was only able to use his right arm to do so. He observed that the left shoulder was “irritable”. He said that rotator cuff strength was unable to be assessed secondary to pain. He noted that when attempting to assess the active range of motion, the plaintiff developed a tremor in his left upper limb. He noted that the plaintiff walked with an antalgic gait. The plaintiff stood with a flexed posturing of his right knee. He was unable to raise himself onto the examination table due to right knee pain. He noted that there was a limited range of motion in the right knee with evidence of right knee crepitus. He noted that the plaintiff was tender to palpation over both the medial and lateral joint line.[178]
[178]Ex P1, p84
43Mr Asaid diagnosed the plaintiff as suffering from a right knee medial meniscus tear and left shoulder rotator cuff tendinosis and subacromial bursitis. He thought the plaintiff also had clinical evidence of adhesive capsulitis in the left shoulder. He noted that the plaintiff is now suffering from chronic pain in his left shoulder and right knee. He considered that the plaintiff’s injuries were consistent with the stated cause. He considered that there was an organic component to both injuries, as demonstrated on the radiology.[179]
[179]Ex P1, p85
44Given the chronicity of the plaintiff's condition, Mr Asaid thought that the plaintiff’s physical impairments were likely to persist for the foreseeable future.[180]
[180]Ex P1, p85
45The plaintiff relied upon medico-legal opinion from Dr Gavin Weekes, pain specialist, dated 5 August 2024. In that report, Dr Weekes stated that the plaintiff’s worst pain is the left shoulder pain. He said that the plaintiff described the pain as “constant”. He said that it predominantly affects the top of his left shoulder, and he described the characteristics of the left shoulder pain as “sharp”. He gave a pain score on the day of examination as eight out of ten in the left shoulder. He noted that the plaintiff also reported ongoing right knee pain. It was noted that the pain affects the medial to anterior aspect of the right knee. He said that the plaintiff described the pain as “burning” and “constant”. The plaintiff ascribed the right knee pain a score of five out of ten on that day.[181] He noted that the plaintiff continued to have medication, including Mobic and ibuprofen, as required, and had continued with physiotherapy treatment.[182]
[181]Ex P1, p77
[182]Ex P1, p78
46Dr Weekes thought that the plaintiff presented with a Chronic Pain Syndrome affecting his left shoulder, secondary to bursitis and rotator cuff tendinosis which had led to a left frozen shoulder/adhesive capsulitis. He also thought that the plaintiff had developed a Chronic Pain Syndrome affecting his right knee, secondary to a medial meniscus injury.[183] He stated that the basis on which he described the plaintiff’s pain as “chronic pain syndrome” was that the pain had lasted more than three months. He commented that he considered there to be a substantial organic component to the plaintiff’s pain with respect to both his right knee and left shoulder injury.[184]
[183]Ex P1, p78
[184]Ex P1, p79
47Dr Weekes expressed the opinion that as a consequence of the right knee injury, the plaintiff would be severely limited in his ability to lift, bend, kneel, squat and sit, and stand and walk for any significant period of time. He said that this incapacity would continue for the foreseeable future.[185] He thought that as a consequence of the plaintiff’s left shoulder injury, the plaintiff was likely to be restricted with regard to activities involving lifting, reaching, gripping, pushing and pulling. He thought this incapacity would likely continue into the foreseeable future.[186]
[185]Ex P1, p79
[186]Ex P1, pp79-80
The Defendant’s medical evidence
48The defendant relied upon two reports from Dr Anthony Kam, consultant radiologist, the first dated 7 August 2024 and the second dated 19 August 2024. In the second report, Dr Kam stated that, based on the radiological images and background information with which he had been supplied, he had not detected any specific evidence of trauma to either the left shoulder or right knee, which appeared to be related to the accident on 25 February 2021. He said:
“The exact cause of the radiological changes at the right knee and left shoulder is unable to be accurately determined using radiological images alone. Rather, the radiological findings should be considered in the context of the clinical records taken at the time of assessment shortly following the work incident. I expect an injury resulting a right knee meniscal tear and left shoulder subacromial bursal thickening to be accompanied by acute onset of symptoms such as pain at the right knee and left shoulder immediately or shortly following the injury.”[187]
[187]Ex D1, p30
49The defendant relied upon one medico-legal report from Dr Francis Ghan, orthopaedic surgeon, dated 18 December 2023. In that report, Dr Ghan stated that it was his opinion, on the balance of probabilities, that the nature of the injuries sustained by the plaintiff were “soft-tissue sprain of the left shoulder and right knee”.[188]Dr Ghan said that in his opinion, the effects of the accident had now resolved. He said that the cause of the plaintiff’s ongoing pain was “not clear”. He expressed this opinion based on what he described as “an essentially normal left shoulder ultrasound and normal MRI scan of the right knee”.[189]
[188]Ex D1, p20
[189]Ex D1, p20
50As to this observation, I note that neither the MRI of the right knee dated 22 April 2021, nor the ultrasound of the left shoulder dated 16 April 2021, could be described as “essentially normal”. The MRI of the right knee specifically notes the presence of a tear of the medial meniscus, which has been described by every other medical expert who has provided an opinion in the case, as the source of the plaintiff’s right knee pain. Similarly, the ultrasound of the left shoulder makes a finding under the heading “Conclusion”: “Subacromial/subdeltoid bursitis.” Once again, this finding has been accepted by the other medical experts in this case as being the source of the pain experienced by the plaintiff in his left shoulder. In those circumstances, I am unable to place any reliance on the opinion expressed by Dr Ghan.
51The defendant also relied upon a medico-legal report from Dr Nicholas Ingram, psychiatrist, dated 15 August 2024. This report was relied upon as evidence of the plaintiff’s willingness to give an incorrect history to a medico-legal examiner which included an assertion that because of pain, he had not been able to return to work, and also, that it was now impossible for him to do things such as swimming and playing golf.[190] As noted above, under cross-examination the plaintiff made significant concessions about the frequency with which he had undertaken these activities in recent years.
[190]Ex D1, pp70-71
52In addition to these medical records, the defendant also relied upon certain clinical records in relation to the plaintiff from the Wells Road Medical Centre and also documents in relation to Black Cat Control Systems. These documents appeared at pages 76-114 of the Defendant’s Court Book.[191] None of these documents took matters any further than the evidence that had been given during cross-examination, during which I note that the plaintiff made significant concessions.
[191]Ex D1, pp76-114
The issues
The Plaintiff’s credit
53During cross-examination, as has been set out above, the plaintiff was challenged in relation to many aspects of his evidence, in particular, the severity of his present pain and also, in relation to the number and type of activities which he asserted in his affidavits that he is now unable to perform.
54As can be seen from the summary of the cross-examination as set out above, when pressed about certain matters, the plaintiff was compelled to make significant concessions about the consequences of his injuries in relation to particular activities which he had asserted he was now unable to engage in. It became clear during cross-examination, and was admitted by the plaintiff himself, that in effect, if he was not asked a particular question, he would not volunteer any additional information. He also gave unsatisfactory answers as to why it was that he had made reference to now being unable to perform various activities which, it was ultimately conceded, he had not engaged in for many years and sometimes, not since childhood.
55Given these significant concessions, I am not prepared to accept that the plaintiff’s inability to perform any of these activities at this time is a significant loss to him. However, in relation to other activities such as participation in the Historic Rally Association, no concessions were made by the plaintiff.
56While the way in which the plaintiff’s evidence about consequences of his injuries emerged was unsatisfactory, I did not form the conclusion that overall, the plaintiff’s evidence in relation to these other matters was either false or unreliable. I am satisfied that the skilful and detailed cross-examination to which the plaintiff was subjected, fully exposed the true nature of the injuries from which the plaintiff undoubtedly still suffers, as a result of the accident. In relation to the plaintiff’s pain, I find that the plaintiff was somewhat more forthcoming, as is evidenced by the consistency of his reports of these matters to various medical practitioners.
57During cross-examination, the plaintiff gave consistent and cogent evidence about the way in which the pain of both his right knee and his left shoulder presently affect him, including consistent evidence about the current level of pain and the fact that he continues to suffer from flare-ups of pain in relation to both injuries, from time to time. In relation to these issues, I find that the plaintiff gave reliable evidence upon which I am prepared to act.
58Lastly, the plaintiff was challenged about his assertion to all of the medical practitioners that he had been unable to work since the accident, especially in light of the evidence of the existence of Black Cat, a currently registered company engaged in selling components of security and home automation systems.
59In response to these matters, the plaintiff gave evidence that Black Cat performs very little, if any work, and does not require him to engage physically in any workplace activities. While I do not accept that the plaintiff’s omission about these matters from the histories which he gave to doctors and in his affidavits affirmed before the Court was accidental, similarly, I do not consider that the omission of these matters makes any material impact upon my assessment of the plaintiff’s credibility in relation to the matters set out above. I note that the plaintiff disclosed the existence of Black Cat and the income which he expected to earn from his involvement in that company, in his Worker’s Claim Form.[192] I accept the evidence given by the plaintiff about his involvement in this company and the fact that the company presently does very little business. Apart from establishing the fact that the plaintiff’s car has a “Black Cat” logo on it, and is used for work purposes (which matters were readily admitted by the plaintiff), the video surveillance tendered to the Court did not take this issue and further.[193]
[192] Ex P1, p37
[193] Ex D1
Compensable injury
60The details of the occurrence of the accident are not in dispute.
61Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffered:
(a) an organic injury in the form of a medial meniscus tear to the right knee; and
(b) an organic injury to his left shoulder in the form of an aggravation of the rotator cuff, resulting in subacromial bursitis and adhesive capsulitis.
Is the compensable injury permanent for the purposes of the Act?
62During the hearing, the plaintiff gave evidence that he was now considering participating in a pain management course, which had been recommended for some time. He said that in the week following the hearing, he was intending to return to see his GP and would discuss taking this step at that consultation. He agreed that he would take the advice of his GP in relation to this matter.
63During closing addresses, it was submitted on behalf of the defendant, that in these circumstances, the plaintiff was unable to demonstrate that his injuries are “permanent” for the purposes of the Act.[194] In response, Senior Counsel for the plaintiff submitted that participation in a pain management course is not designed to “cure” the condition giving rise to the plaintiff’s pain, rather, it is designed to enable a person to “live with” the condition.
[194] T96ff
64I accept the submission made on behalf of the plaintiff in relation to this issue. In relation to the participation in a pain management course, I note that Mr Mason continues to make this recommendation in the context of his concerns about the cessation of physiotherapy treatment and the potential for deterioration in the plaintiff’s condition as a result. It was in this context that Mr Mason commented that “[participation in a pain management program] is still of value and should be considered to assist [the plaintiff] in the management of his flare ups, especially as we cease physiotherapy treatment …”.[195] I note that ultimately, Mr Mason’s opinion was that “Given the chronic nature of his pain and injuries, it is reasonable to assume that … [the plaintiff] will continue to have these ongoing issues …”.[196]
[195] Ex P1, p55
[196] Ex P1, p55
65Taking these matters into account, and having considered the other relevant reports and, in particular, the reports from Associate Professor Love,[197] Dr Weekes[198] and Mr Asaid,[199] I find that the plaintiff is likely to suffer from the consequences of each of the injuries he sustained while working for the employer, for the foreseeable future.
[197]Ex P1, p67
[198]Ex P1, p79
[199]Ex P1, p85
66Given this, I find that each of the injuries is “permanent” for the purposes of the Act.
Are the consequences to the Plaintiff of the workplace injury “serious”?
The right knee injury
67Having considered all of the evidence, I find that by reason of the injury sustained in the accident to the right knee alone, the plaintiff suffers from the following consequences:
(a) the experience of a constant burning pain, which is worse with repetitive movement such as bending and twisting. The more active he tends to be during the day, the worse his right knee pain is at night. The worse the pain is at night, the more it impacts on his sleep;
(b) the need to avoid activities that cause him pain in his right knee, such as squatting or repetitive or heavy lifting. He tries to do things slowly and carefully, within the restrictions and limitations imposed because of the right knee pain. He has difficulty with going up and down stairs or walking on slopes or on even ground;
(c) reduced movement and reduced function of the right knee;
(d) increased pain, reduced weightbearing tolerance and the need to rest if he stands or is on his feet for extended periods of time;
(e) the need to engage in physiotherapy, exercise programs, gym rehabilitation and the use of pain-relieving and anti-inflammatory medications to try and manage his right knee pain and restriction. He has recently been prescribed Mobic due to flare-ups of his right knee pain. Despite this, the pain, restriction and reduced range of movement in his right knee has remained the same. Sometimes, he needs to take Rafen in addition to Mobic, in order to deal with increased pain in his right knee;
(f) some difficulty getting to sleep at night and the need to take medication to assist with this. He also experiences difficulty sleeping on his right side. Because of this, and because he is also unable to sleep on his left side due to his left shoulder injury, he is limited to sleeping flat on his back, which he does not find comfortable;
(g) waking with pain in his right knee most nights of the week. On average, he gets one to two hours of quality sleep at night. He tends to be tired and fatigued during the day. He struggles to function in the way he used to before the accident. He is not as sharp as he used to be. He struggles mentally because of his fatigue, tiredness and ongoing pain;
(h) difficulty getting dressed because bending, squatting or putting weight on his right knee makes it more difficult to put his underwear, trousers, socks and shoes on. He sits down to try and minimise bending his right knee and to avoid putting weight and pressure on his right leg;
(i) a limitation in his capacity to drive for extended periods;
(j) a reduction in his ability to contribute to cleaning duties and jobs around the house as much as he used to before the accident. He finds it hard to do tasks that require repetitive bending, squatting and twisting because of his right knee injury;
(k) a reduction in his capacity to undertake gardening and property maintenance. He struggles with tasks that require repetitive bending, squatting or twisting because of his right knee injury, such as squatting or kneeling to paint, or to pull the weeds out;
(l) a reduction in his capacity to cook at home. While he tries to help cook light meals around the kitchen, he has difficulty with bending, squatting and twisting, which makes it difficult to get pots and pans out of lower cupboards because of his right knee injury;
(m) a reduced ability to swim, due to being unable to weightbear or kick properly while in water;
(n) a reduction in his ability to enjoy holidays with his partner as he would like to. In particular, his difficulties with walking and swimming mean that they are unable to undertake some of the activities that they used to enjoy, such as hiking and swimming in open water;
(o) an inability to be involved the Historic Rally Association in the way that he would like to. He used to organise, direct and participate in many car rallies, as an event director or crew member. He is unable to undertake these activities any longer, as he cannot drive for extended periods, get into and out of cars easily and walk over uneven terrain;
(p) the need to cease working prematurely.
68In Haden Engineering Pty Ltd v McKinnon,[200] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[201] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.
[200](2010) 31 VR 1
[201]ibid at paragraph [9]
69In Kelso v Tatiara Meat Co Pty Ltd,[202] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[202]Supra at paragraph [199]
70I have set out above the consequences which the plaintiff’s injury has had on his day-to-day life. I have made findings which support the conclusion that chronic pain in his right knee is a prominent feature of the plaintiff’s life, requiring him to take frequent medication.
71Having regard to this and by reason of the findings which I have made above about the additional consequences from which the plaintiff suffers as a result of the injury to his right knee alone, I am satisfied to the requisite standard, that those consequences are properly described as being “very considerable”. In those circumstances, I am not required to consider whether the plaintiff’s injury to his left shoulder alone constitutes a separate “serious injury”.
Conclusion
72As set out above, I am satisfied to the requisite standard that as a consequence of the workplace events, the plaintiff suffered a “serious injury”, as defined in the Act, in the form of an injury to his right lower limb. In those circumstances, the application is granted.
73I will hear the parties on the question of costs.
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