Parente v Transport Accident Commission
[2013] VCC 274
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06194
| CARMINE PARENTE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2013 | |
DATE OF JUDGMENT: | 26 March 2013 | |
CASE MAY BE CITED AS: | Parente v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 274 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – impairment to the right knee
LEGISLATION CITED – Transport Accident Act 1986, s93
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak (1992) 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Stijepic v One Force Group Pty Ltd [2009] VSCA 181; State of Victoria v Glover [1998] VSCA 93
JUDGMENT: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr D Purcell | Slater & Gordon |
| For the Defendant | Mr G Lewis with Ms S Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 10 February 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the right knee.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries v Poljak.[2]
[2](1992) 2 VR 139 at paragraph 140-141
7 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s mother, Michelle Parente, swore an affidavit on 11 January 2013, and his employer, Tony Aiello, swore an affidavit on 31 January 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is presently aged twenty-nine, having been born in September 1983. He is a carpenter by trade, having completed his apprenticeship with Cassell Constructions Pty Ltd (“Cassell”) after finishing Year 10.
9 In cross-examination, the plaintiff explained he was made redundant from Cassell in December 2006. When it was suggested to him in cross-examination that in the financial year 2006-2007 his earnings totalled only $133.00, the plaintiff explained that he took some time off because he had not had a real holiday since starting work at sixteen. He lived on his redundancy payout.[3]
[3]Transcript (“T”) 19
10 The plaintiff deposed that after completing his apprenticeship, he was briefly self employed, before beginning work with Keystone Installations in about August 2007.
11 In cross-examination, the plaintiff agreed that in 2004-2005, he earned $46,312 and the following year, earned $35,012. His taxable income was $48,000 in 2008, made up of $29,132 in earnings, together with Transport Accident Commission payments.
12 The plaintiff was not limited in any way at work prior to the said date. His work as a carpenter was very physical and involved a lot of time kneeling and squatting. He installed window panels, curtains, doors, windows and wall cladding on major building projects in the city.
13 In cross-examination, the plaintiff was made aware that he had attended his general practitioner at the age of fifteen with a right knee problem which was diagnosed as chondromalacia patella.
14 In July 1994, the clinical records of Idamenco (Dr Marazita’s surgery) set out two months of bilateral knee pain and that the plaintiff’s condition was diagnosed as chondromalacia patella. There was also a note of “painful knees” on 3 December 1998, about which the plaintiff was not cross-examined.
15 The plaintiff had no memory of the 1994 attendance and, accordingly, had not told any doctor when asked of a history of any problem prior to the said date. Even on being reminded of it, he had no recollection of any earlier knee problem earlier on.
16 The plaintiff agreed that he had answered “No” to a question on the Transport Accident Commission Claim Form signed by him on 26 February 2008 as to whether he had any problems with his knee prior to the accident.
17 On the said date, the plaintiff was riding his motorbike in Brunswick when a car travelling in the opposite direction failed to give way and came across the path of his motorbike, resulting in a collision (“the accident”).
18 The plaintiff swerved in an effort to avoid the collision; however, the other car struck him on his right side and he fell to the right and slid into the gutter. His right knee was struck with significant force during the accident.
19 The plaintiff was taken to the Austin Hospital, where he was observed for several hours and discharged home.
20 As a result of the accident, the plaintiff sustained an injury to his right knee involving a bone bruise to the patellofemoral joint, injury to his left knee, laceration to both arms and knees, bruising and scarring.
21 The plaintiff attended his general practitioner, Dr Marazita, soon after the accident and was prescribed anti-inflammatories and pain medication, sent for physiotherapy and referred to orthopaedic surgeon, Mr Owen. Dr Marazita also arranged an MRI scan of the plaintiff’s right knee, which showed a soft-tissue contusion.
22 The plaintiff subsequently developed a pre-patellar ulcer which required antibiotics. He ceased physiotherapy after a few treatments as he found it exacerbated his right knee symptoms.
23 When the plaintiff first saw Mr Owen on 16 June 2008, he diagnosed a patellofemoral injury and recommended conservative treatment. The plaintiff saw him again on 7 January 2009 as he was continuing to experience pain and swelling in his right knee and had difficulty kneeling and his knee occasionally gave way.
24 The plaintiff sought a second opinion from orthopaedic surgeon, Mr Whitehead, who also recommended conservative treatment.
25 When he swore his first affidavit on 27 August 2010, the plaintiff deposed he continued to experience constant aching, discomfort, swelling and pain which worsened with kneeling, squatting and negotiating stairs. He experienced a creaking or grating sensation in his right knee and it often felt unstable and gave way.
26 The plaintiff had significant difficulty kneeling and squatting which affected his ability to return to his trade. He also had difficulty turning or twisting on his right knee and running and walking on uneven ground.
27 The plaintiff’s right quadriceps had wasted as a result of his injury. He then undertook exercises at home which involved him lying down and lifting his right leg. The exercises enabled the plaintiff to reverse the muscle wasting. He could do those exercises without aggravating his knee because they did not require weight bearing or bending.
28 The plaintiff had been advised that degenerative changes had already started in his right knee and he was at significant risk of developing arthritis and may require knee surgery in the future. The plaintiff repeated Mr Miller’s view as to the likelihood of long-term arthritic disease.
29 There was a one centimetre scar at the front of the plaintiff’s knee which was tender to touch and if knocked, he experienced pain and a stinging sensation. The plaintiff also had numbness around the scar.
30 The plaintiff often thought about the accident and continued to experience flashbacks, sometimes triggered by seeing friends on their motorbikes. He was sensitive to accident reminders and uncomfortable when passing the accident scene.
31 The plaintiff had not returned to riding a motorbike as he was fearful of riding since the accident and of being involved in another accident. He was also cautious when he was a passenger. He was not like that before the accident. He was worried and apprehensive about his future, particularly in relation to work and his knee in the years to come.
32 As a result of his knee injury, the plaintiff had difficulty returning to work, although he tried a number of times. He obtained a traffic controller ticket following the accident to make him more employable in light of his accident-related restrictions. He was then eager to undertake further training if it enabled him to secure and maintain permanent employment.
33 During 2009, the plaintiff helped a friend on a building site on a voluntary basis to assess his capacity. The plaintiff was there about less than a week, providing only limited help, mostly cutting boards on a drop saw. He was able to manage that job because he only had to stand in the one spot and he could sit down and rest when he wanted to and he was working for a tolerant friend.
34 In cross-examination, the plaintiff agreed that on 16 October 2009, Dr Marazita certified that he had attended that day and, in Dr Marazita’s opinion, he would be fit to work as a carpenter with his right knee injury for forty hours a week with the restriction he must not kneel on his knee as it would aggravate his condition.
35 In early 2010, the plaintiff also undertook further voluntary work for the same friend which lasted a few days, assisting with fitting floorboards and weatherboards. He found the former task particularly difficult. He did the job kneeling on his left knee and keeping his right leg straight out to the side. By the end of each day, his knee was very painful and swollen.
36 Since early 2010, the plaintiff had called a number of potential employers through Work Able or Infolink but had not received an interview, having told them he was not fully fit.
37 In about June 2010, a self-employed friend offered the plaintiff work in housing which involved simple labouring and it was not particularly physical.
38 The plaintiff worked four days a week for about three weeks and his friend, who knew of his restrictions, allowed him to avoid tasks that aggravated his knee, such as kneeling, and he could take breaks. Despite taking those measures, the plaintiff struggled being on his feet most of the day and by the end of the day, his knee ached and he was exhausted. After three weeks the job finished and there was no further work available.
39 On 22 July 2010, the plaintiff started a job through Hayes Recruitment, the work being similar to that at Keystone Installations.
40 When on site, the plaintiff tried to do as much as he could, but his co-worker, who was aware of his knee injury, provided him with assistance when needed, doing tasks that required kneeling.
41 Despite the fact the plaintiff could usually avoid more strenuous tasks, he still struggled simply being on his feet all day, and walking around the site caused pain and stiffness in his knee to flare up.
42 The plaintiff was occasionally required to climb ladders which put particular strain on his knee and at the end of a working day he was exhausted. When the plaintiff got home, he used either an icepack or a heat pack to try and alleviate the pain and stiffness in his knee and he spent a lot of time resting to manage his knee symptoms.
43 The plaintiff was then worried about long-term employment prospects and had already experienced significant difficulties with his current job. Since attempting to return to work, he found it very hard to find an employer who would take him on in light of his injuries. He feared if he lost his current job, he would have similar difficulty finding alternative employment.
44 The plaintiff was also worried if his knee deteriorated, as he was told it probably would, it would restrict him to a greater extent, and maintaining employment would become even more difficult. He suspected he would require more time off work to manage his symptoms, especially if he required surgery.
45 Prior to the accident, the plaintiff enjoyed playing tennis; however, he had been unable to return to it due to his right knee injury.
46 In cross-examination, the plaintiff agreed he told Dr Fraser that he used to play tennis before the accident but had not done so since as he had not felt like it.[4]
[4]T13
47 In re-examination, the plaintiff said that he still has all his tennis gear. He would be worried about playing because he did not know if that would further irritate his knee. He was not playing tennis immediately before the accident because of work commitments.[5]
[5]T24
48 In his second affidavit sworn 17 January 2013, the plaintiff confirmed that he continues to have ongoing symptoms, disabilities and difficulties. He continues to have difficulty with prolonged standing and kneeling and he gets increased knee pain if he walks for too long.
49 The plaintiff sees his general practitioner as needed and uses his father’s prescription for Panadeine Forte from time to time.[6] He tries to avoid taking strong medication and estimates about once every two or three weeks his knee pain gets to a level where he needs to take Panadeine Forte. At other times he takes Panadeine Max twice a week, usually late at night after work when there is more pain. Sometimes he takes it during the day if his knee is bad.
[6]T5
50 In cross-examination, the plaintiff said he last took Panadeine Forte the week before the hearing and that his intake depended on his varying level of pain. He had used Panadeine Max four times in the last month.[7]
[7]T9
51 The plaintiff recently saw Dr Marazita as he wanted a further MRI scan. Before that visit, the plaintiff last saw Dr Marazita eighteen months earlier.
52 In November 2012, the plaintiff went back to Mr Owen as he felt as if his knee was getting slowly worse and wanted to see if there was anything else that could be done. Mr Owen told him that he might ultimately need more surgery, but for the present he should just continue with conservative treatment, taking medication when needed and otherwise try to avoid activity where possible that he knew would aggravate his symptoms.
53 The plaintiff continues to be employed as a carpenter, having worked between February 2011 and August 2011 for Keystone Installations. That job involved a lot of work on his knees and it was difficult for him and caused him increased pain.
54 After leaving that job, the plaintiff obtained work with Team Commercial Constructions doing framing and fixing which involved less kneeling and bending. He continued in that job until February 2012 when the company was liquidated, but the job effectively continued under the company name “1 Commercial Carpentry”.
55 The plaintiff has a foreman’s position, spending less time on the tools and more time supervising, although there is some hands-on carpentry involved.
56 The plaintiff’s current employer is aware of his knee injury and, as foreman, the plaintiff has the ability to regulate the work he does. He tries to avoid jobs that he knows will aggravate his knee; however, some days he struggles at work and often by the time he gets home, he has increased knee pain and needs to take the weight off his knee and rest.
57 The plaintiff is pleased he has been able to find a job that is easier on his knee but he worries his symptoms will deteriorate and that if he requires more surgery, that is going to impact on his ability to maintain a job.
58 In examination-in-chief, the plaintiff explained that the day before the hearing a few of his fellow workers were texted and told there was no work that day and there was to be a meeting the following day. He assumed the company would be liquidating, as had happened previously.[8]
[8]T8
59 In cross-examination, the plaintiff agreed that in 2012 his taxable income was $87,000.[9] His work varies every day. He could delegate duties but he still had to help apprentices.[10]
[9]T21
[10]T22
60 The plaintiff continues to live with his parents, who do most of the housework and gardening. The plaintiff’s knee injury continues to cause some restriction in what he can do around the house and interferes with his pre-injury hobbies of playing sports and running.
61 In cross-examination, the plaintiff said that he occasionally likes to go fishing in the summer off the pier at Rye. About half a dozen times last summer he fished from a friend’s boat. They usually went out for a couple of hours depending on the weather.[11] In re-examination, the plaintiff described how he “copped shocks” in his knee when on the boat in rough weather.[12]
[11]T17
[12]T24
62 The plaintiff’s main interest now outside of work is maintaining a couple of cars that he has. One of them is a quarter mile racing car. He can work on his cars at his own pace and leisure. If he is having a bad day with his knee, the plaintiff does not do much on the cars at all and if he has a good day, he then might spend an hour or so tinkering with the cars.
63 In the year prior to the accident, the plaintiff raced his car eight to ten times but he has only raced once since September last year.[13] He does not have any problems driving but he does have difficulty preparing the car and getting it ready for racing. The plaintiff explained that it is just too hard to work on his car.[14]
[13] T6
[14]T7
64 In the last year, the only work the plaintiff has done on his car is change the tyres as this has to be done after every race. In the year before that, he changed the engine and put in an anti-roll cage and a fuel cell in the boot. He has only raced once as it is a lot of work to get the car ready.[15]
[15]T16
65 Racing the car is very important to the plaintiff and is his hobby. All tasks associated with preparing the car for racing are now hard for him. Working on the car now takes at least twice as long as previously and any work he does is mainly on the weekend, because he is too tired from work to do it after hours.[16]
[16]T26
66 In cross-examination, the plaintiff agreed that on medico-legal examination with Mr Miller, he was able to move his knee fully. He agreed he had a grinding feeling when kneeling or squatting. He had occasional sleep disturbance, his knee felt weak and insecure but only occasionally gave way and he was not particularly bothered by swelling or limping.[17]
[17]T12
Lay evidence
67 The plaintiff’s mother, Michelle Parente, swore an affidavit on 11 January 2013.
68 Mrs Parente confirmed that since the accident, the plaintiff continues to experience pain, stiffness and discomfort in his right knee which sometimes gives way, and he has told her that his knee also grinds at times.
69 Since the accident, the plaintiff has avoided riding his motorbike, selling it immediately thereafter as he was afraid he would have another accident and his knee pain made it difficult to maintain his balance riding the bike.
70 Prior to the accident, the plaintiff went motorbike riding almost every weekend, riding all day with friends, which was a great source of joy for him. After the accident, the plaintiff has avoided riding his bike and so has lost an important social and recreational part of his life.
71 Mrs Parente deposed that the plaintiff is stoic and quite reserved. Before the accident, he rarely complained about anything, but since then, she has noticed he has started complaining about knee pain. In the initial period when undergoing treatment, he complained frequently about the pain, which she could see in his face.
72 The plaintiff also has difficulty with the stairs in their double story house where his bedroom is upstairs. Mrs Parente is aware going up the stairs is difficult and painful for the plaintiff as he walks up and down the stairs gingerly, and from his facial expression she can tell he is in pain.
73 The plaintiff has a scar on his right knee that is tender, particularly when he bumps it. Mrs Parente has noticed he is careful not to do so. She has observed the plaintiff being careful around furniture and he has told her he is careful not to bump the scar while at work.
74 The plaintiff’s right knee pain is also aggravated when he drives long distances and he has told her he therefore does not like long drives. The family have a beach house and she has noticed the plaintiff does not go down there as often as he did before the accident.
75 Mrs Parente has observed that the plaintiff tends to rest most days when he comes home from work because of his right knee pain and he looks to be in pain.
76 The plaintiff has also become more moody and irritable since the accident and small events that did not irritate him prior thereto now do so. For example, when his nieces and nephews come over, the plaintiff is easily irritated by the noise they make.
77 Tony Aiello swore an affidavit on 31 January 2013. He is the managing director of 1 Commercial Carpentry and is currently the plaintiff’s employer.
78 Mr Aiello worked with the plaintiff from about 2003 to 2006 and they then commenced working together again in September 2011. He has also known the plaintiff personally, as they have been family friends for about fifteen years. He sees the plaintiff mainly during work hours.
79 Mr Aiello described a typical day in the plaintiff’s present job might involve planning, organising, scheduled supervising and inspecting work. The majority of his work is light labour but it can become heavy at times, and the plaintiff also needs to get on the tools at times.
80 Mr Aiello is aware the plaintiff suffered injury to his right knee in the accident. Prior thereto, he had always known the plaintiff to be a very reliable worker and a strong individual who had worked very hard and was one of the most consistent workers he knew.
81 Following the accident, Mr Aiello had noticed changes in the plaintiff’s ability to undertake his work and he was now a lot more cautious and apprehensive due to his injury. He noted the plaintiff has a flexible position where he can delegate some of the heavier tasks to other workers.
82 The plaintiff lets Mr Aiello know when he cannot do something due to his right knee injury and the company is normally flexible and understanding about his restrictions. The plaintiff’s work is not of a heavy nature; however, there are times when he would be under a lot of stress and a lot of repetitive work is involved.
83 While there may not be formal allowances for the plaintiff, he is given a degree of flexibility to choose such tasks as he feels capable of doing.
84 Mr Aiello believes the plaintiff is very lucky he is in a position where he can be accommodated for his knee and that he would otherwise really struggle in the open market working as a carpenter. Prior to the accident, the plaintiff was not restricted in his working abilities.
85 Mr Aiello has also observed the plaintiff in pain at work due to his injury. The plaintiff is a very stoic man and gets on with the job regardless of his pain. He has noticed that the plaintiff becomes a lot more frustrated at times due to his right knee injury and overall he feels the plaintiff has a number of considerable limitations working as a carpenter due to his injury.
The Plaintiff’s Medical Evidence
Treaters
86 Dr Marazita at the High Street Medical Centre in Preston first saw the plaintiff for his accident injuries on 12 February 2008.
87 On initial examination, Dr Marazita noted extensive abrasions and traumatic ulcers to the plaintiff’s arms and knees, with the right knee having the worst traumatic ulcer. The wounds were cleansed and blood tests taken. Over the following days, the plaintiff attended for his wounds to be cleaned and sterile dressings applied. Most of the wounds were gradually healing but the right knee joint remained painful and swollen and flexion was greatly reduced.
88 An MRI was arranged which revealed bone bruising to the patella. Whilst the ulcers were slowly healing, the right patella was still quite painful and tender and the plaintiff was referred to Mr Lincoln for physiotherapy. The knee remained swollen and painful despite treatment and the plaintiff was unable to work as a carpenter because he could not kneel. Thus, Dr Marazita noted the plaintiff could not be provided with gainful employment and that the plaintiff realised it would be difficult to return to his trade and he considered training as a crane operator.
89 Dr Marazita referred the plaintiff to orthopaedic surgeon, Mr Owen, who advised continued conservative treatment.
90 Dr Marazita noted the plaintiff eventually returned to work as a carpenter in July 2010 and managed to do his duties despite disability. His right knee continued to give him problems and he could not kneel on it due to patella pain. His knee also remained painful with flexion. Dr Marazita noted the patella was painfully tender to percussion and the plaintiff still had significant wasting of the right quadriceps. He could achieve a full range of knee movements but this was painful at the extreme.
91 Another MRI scan was organised which showed resolution of the bruised patella bone but that the plaintiff had developed osteochondral lesions into the patella and the patellofemoral joint.
92 A second opinion was organised from Mr Whitehead in December 2009. He also suggested conservative treatment with exercises.
93 On examination in June 2011, the plaintiff told Dr Marazita he was working as a carpenter but had problems kneeling and that he had tried various knee pads to cushion the joint but they had not given him much protection.
94 On examination, the plaintiff then walked independently without visible impairment. There was tenderness to patella compression and no visible knee effusion. Range of movement of the right knee was full and normal.
95 In his first report of June 2011, Dr Marazita concluded the plaintiff suffered significant right knee injury which had resulted in post-traumatic osteoarthritic conditions involving the articular patella surface of the right knee. He thought that condition would cause the plaintiff pain when he engaged in weight bearing activities, such as kneeling. His impression then was that the plaintiff’s injury was permanent and could degenerate further with time and it was particularly aggravated by kneeling.
96 Dr Marazita thought the plaintiff had a permanent partial disability of the right knee and was only able to perform manual work duties that did not require kneeling on the right knee joint.
97 In his most recent report of 6 February 2013, Dr Marazita noted that the plaintiff had consulted him on 17 January 2013. The plaintiff then advised he continued to suffer from pain in the right knee when kneeling and squatting. Dr Marazita then requested a further MRI scan.
98 On examination that day, the plaintiff walked without impairment and he was able to squat fully. He had a full range of knee movements with mild palpable crepitus and no knee effusion. There was only minimal quadriceps muscle wasting compared to the left.
99 Dr Marazita’s opinion remained unchanged. He thought the plaintiff’s knee injury seemed to have stabilised and noted the plaintiff was gainfully employed in his trade as a carpenter and that only time would tell if the arthritis in the patella would deteriorate further.
100 Mr Whitehead, orthopaedic surgeon, reported in June 2011 having been referred the plaintiff in November 2009.
101 On examination on 11 December 2009, there was no evidence of an effusion of the knee but the plaintiff did have irritability of his patellofemoral compartment. Mr Whitehead noted an MRI scan demonstrated a resolution of patella bone bruising and soft tissue swelling anterior to that structure. However, there was some evidence of early degenerative change in the plaintiff’s patellofemoral compartment, in particular, on the under surface of the patella.
102 Mr Whitehead advised that he agreed with Mr Owen’s management, non-operatively. He thought there was room to move with physiotherapy as long as it incorporated quadriceps strengthening and also flexibility of other muscles. He considered the plaintiff would benefit from an exercise program with a view to managing his condition without surgery.
103 At some stage, given his articular cartilage damage, Mr Whitehead thought the plaintiff may well become a candidate for an arthroscopy but he certainly would not rush into that procedure.
104 Mr Owen, orthopaedic surgeon, first saw the plaintiff on referral from Dr Marazita on 16 June 2008.
105 On that examination, the plaintiff described his knee as giving way and pulling, and told Mr Owen he had not had any previous problems with the knee.
106 On examination, there was no effusion and the range of movement was zero to one hundred and sixty degrees. The knee was stable and the patellofemoral joint was irritable. Mr Owen noted the most important finding was exquisite tenderness, not only the scar but just to the medial side of the patella.
107 Mr Owen thought that the MRI scan taken a couple of weeks after the accident did not show much wrong with the knee and that the plaintiff had a dysplastic type patella. At that stage, Mr Owen concluded that the plaintiff had suffered a considerable contusion to his patellofemoral joint and his prognosis was guarded and treatment should be conservative in the form of physiotherapy.
108 Mr Owen then thought the plaintiff was not fit to return to pre-accident employment and would not be able to comfortably kneel or squat on his right knee. If there was alternative or modified work available, he thought the plaintiff could return to work in the near future, essentially where work standing at a bench was involved. Mr Owen then thought the condition was not stable.
109 Mr Owen reported again in May 2009 that he next saw the plaintiff in January 2009 when he was complaining of anterior knee pain and, as a result, could not kneel. The plaintiff also complained that his knee occasionally gave way and it swelled.
110 On examination, there was a similar range of movement of the knee of zero to one hundred and twenty degrees and no effusion. The plaintiff was tender over the medial femoral condyle and the patellofemoral joint was not particularly irritable.
111 Mr Owen then thought the plaintiff had ongoing permanent disability from the patellofemoral injury, leading to problems relating to the loading of the patellofemoral joint, in particular, squatting and kneeling. He thought it was then certainly unlikely surgery would help.
112 In Mr Owen’s view, the prognosis had to be guarded, as direct contusion of chondrocytes could lead to an early degenerative change in the joint. However, he thought there was a relatively low probability that the plaintiff would develop substantial arthritis in the knee. However, the implications of the injury were, in Mr Owen’s view, that the plaintiff’s job as a carpenter would have to be significantly modified.
113 In his most recent report of 15 January 2003, Mr Owen essentially reported on a consultation on 29 November 2012. The plaintiff then reported his right knee was still symptomatic and, in particular, pain was a problem, with night pain and problems kneeling. The plaintiff told Mr Owen that he took the occasional Panadol for pain.
114 On examination, there was good overall alignment and there was no effusion but there was a measurable wasting of the right quadriceps compared to the left.
115 The range of movement of the knee was measured at zero to one hundred and thirty degrees and the plaintiff had no obvious instability in the knee to clinical examination. There was no joint line tenderness or signs of an internal derangement and the plaintiff’s patellofemoral joint was not irritable.
116 Mr Owen noted that the plaintiff’s 2009 MRI scan showed a dysplastic patella with loss of articular cartilage.
117 Mr Owen concluded that the plaintiff suffered from ongoing right knee symptoms which were almost totally referrable to his patellofemoral joint following an injury to the front of his right knee in the accident.
118 Mr Owen thought the plaintiff’s current symptoms were consistent with patellofemoral pathology, noting the plaintiff denied any previous problems. Looking at his notes from 2009-2011, Mr Owen thought there was some improvement, in that the examination did not show as much irritability in the patellofemoral joint. However, he considered the plaintiff’s symptoms were entirely consistent with ongoing issues in that regard.
119 Mr Owen thought the plaintiff was likely to remain symptomatic on a permanent basis and have ongoing disability, particularly in his trade. He noted the patella joint pathology had caused the plaintiff to be disabled in doing activities such as kneeling, climbing up and down stairs or ladders, and squatting, which he would no doubt perform as a carpenter.
120 Mr Owen thought conservative management was appropriate and that the results of surgery were poor, especially in replacement surgery.
Medico-Legal Examinations
121 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in November 2009 and more recently in September 2012.
122 On initial examination, there was ache and discomfort and intermittent pain in the right knee, worse with kneeling, squatting and stairs. The symptoms fluctuated and there was no pattern towards improvement.
123 There was Grade 1 quadriceps wasting and a small effusion of the knee. There was flexion from zero to one hundred and forty degrees and mild patellofemoral joint crepitus and pain on patella compression and with patella glissement. The plaintiff reported discomfort kneeling and squatting and had a slightly reduced hop distance on the right.
124 Mr Miller then thought the plaintiff would require further treatment. He considered, in the longer term, the plaintiff was at significant risk of developing evolving arthritic disease in the patellofemoral joint and he noted that the most recent MRI suggested that.
125 Mr Miller then anticipated the plaintiff would have ongoing right knee symptoms and, in particular, would have difficulty with kneeling, squatting, twisting, turning and knee agility. He therefore could not believe that the plaintiff could return to his pre-injury work he was doing, and the notion of returning to less physical work was appropriate. He thought those restrictions were permanent and accident-related and that the plaintiff’s condition had stabilised.
126 Mr Miller re-examined the plaintiff in August 2012.
127 The plaintiff then continued to have problems with his right knee, with ache, discomfort and pain, aggravated by physical activities, particularly kneeling, squatting and stairs. He had a grinding feeling when kneeling and squatting and had difficulty with his work. His symptoms fluctuated and he thought they were much the same as when last seen. He had occasional sleep disturbance; his knee felt weak and insecure, but only occasionally gave way.
128 The plaintiff advised Mr Miller he was not particularly bothered by swelling or limping.
129 On examination of the right knee, there was Grade 1 quadriceps wasting. There was a small effusion in the right knee. Flexion was from zero to one hundred and thirty degrees. There was mild patellofemoral joint crepitus and pain on patellar compression. The knee was stable. The plaintiff had discomfort when kneeling and squatting and had a slightly reduced hop distance on the right leg.
130 Mr Miller’s views remained largely unchanged, although it was now his view that the requirement for major surgery, such as knee replacement, was likely to be in a ten to twenty-year time frame, and he acknowledged the difficulties making that determination.
131 Noting the plaintiff had returned to pre-injury duties as a carpenter, Mr Miller commented that he coped with those duties but he did have some symptoms at work, and he believed the plaintiff would have difficulty with work that involved large amounts of kneeling, squatting, twisting, turning and climbing.
132 Mr Miller concluded the plaintiff’s knee was likely to become degenerate during his lifetime.
133 Mr Miller noted the plaintiff had previously enjoyed tennis. He had not been able to resume that sport and would have a reduction in his capacity for more vigorous physical, leisure and recreational activities.
134 Mr Miller provided a supplementary report, having been provided with the 2013 MRI scan, which he noted did not show significant changes in the patellofemoral joint and that there was no effusion in the knee.
135 It remained Mr Miller’s view the plaintiff does have patellofemoral disease, notwithstanding the recent MRI scan, and that ongoing symptoms are likely and that the prognosis is only fair.
136 In terms of treatment, Mr Miller believed the plaintiff would require ongoing conservative treatment with analgesics, anti-inflammatory agents and physiotherapy as requested. He thought the plaintiff may benefit from arthroscopic debridement of the knee; however, it was now his view, taking into account the recent MRI scan, that the plaintiff was unlikely to develop arthritis to the point where a knee replacement was required.
137 In a second supplementary report of March 2013, Mr Miller commented that the plaintiff would have ongoing problems with his right knee with pain, discomfort, swelling and feelings of weakness, and those symptoms were likely to slowly deteriorate.
138 Mr Miller confirmed his view the plaintiff was unlikely to develop arthritis to the point where he would require a knee replacement. If, however, he were to require that surgery, the anticipated span of that knee replacement would be about ten to fifteen years, at which time the plaintiff may well require further revision surgery. If he were to undergo a knee replacement, the plaintiff would have further restrictions and difficulties with prolonged standing, walking, twisting, turning, kneeling, squatting and climbing.
139 Mr Murray Stapleton, plastic surgeon, examined the plaintiff in October 2010, providing an AMA assessment in relation to scarring of the right knee. His views were therefore limited to that matter.
140 Dr Sedal, consultant neurologist, examined the plaintiff in December 2010. The plaintiff told him he could not kneel as his knee grinds and is painful. He had nocturnal pain in the knee and numbness below the right kneecap and had lost muscle and had weakness of the right thigh.
141 The plaintiff told Dr Sedal his walking was limited to ten minutes and his ability to run was very limited.
142 On examination of the lower limbs, there was a two-centimetre hypersensitive circular scar over the right patella. The plaintiff had thinning of both the right thigh and calf on inspection and measurement, with a two-centimetre loss compared to the left leg, both above and below the knee. Movements of the right knee were inhibited by discomfort, but Dr Sedal did not feel there was any neurogenic weakness.
143 Dr Sedal could not test the right knee jerk because of hypersensitivity.
144 On sensory examination, the plaintiff had an area of numbness to touch and pinprick, extending for eight centimetres down below the scar at the patella in the distribution of the saphenous nerve, a branch of the right femoral nerve. This area was numb but not hypersensitive like the scar.
145 The plaintiff did not have any investigations with him.
146 Dr Sedal diagnosed healed abrasions on all four limbs. The right knee was punctured over the patella and the plaintiff had hypersensitivity of the scar and dysfunction of the knee. There was an area of sensory loss just below the knee in the distribution of the right saphenous nerve.
147 Dr Sedal concluded that, from a neurological point of view, the plaintiff had an area of numbness, but without dysaethesia, below his right knee and the distribution of the right saphenous nerve – a branch of the femoral nerve – but the area of numbness only covers a small percentage of its territory. Neurologically, Dr Sedal thought the plaintiff’s condition had stabilised and the area of sensory loss was permanent.
148 The plaintiff was examined by psychiatrist, Dr Nathan Serry, in July 2009.
149 Dr Serry noted the plaintiff continued to experience a sequelae to the accident with significant pain and limitations and considerable impact on his ability to work. He noted the plaintiff felt a little angry with his limitations but that was not marked. He remained motivated and interested, but somewhat limited.
150 Dr Serry noted the plaintiff was a clear and straightforward historian who appeared to have a stoic nature. There were post-traumatic anxiety and phobic features regarding riding, and thought content revealed a degree of preoccupation with the accident and its impact.
151 Dr Serry thought the psychiatric illness resulting from the subject accident was a post-traumatic anxiety syndrome, not a full blown Post-Traumatic Stress Disorder. He thought there was also some mild adjustment features to the plaintiff’s physical injury but they would not warrant a separate Adjustment Disorder diagnosis.
Investigations
152 Dr Marazita organised an x-ray of the plaintiff’s right knee on 13 February 2008. It was reported soft-tissue swelling was noted anterior to the patella but no fracture or definite joint effusion or other abnormality was seen.
153 There was a microbiological examination of the plaintiff’s right knee organised by Dr Marazita on 18 February 2008.
154 Dr Marazita organised an MRI scan of the plaintiff’s right knee on 23 February 2008. It was reported there was a patella bone bruise. There was soft-tissue contusion, anterior knee and no internal derangement or fracture.
155 A further MRI scan of the right knee was organised on 28 August 2009. It was reported there was resolution of patella bone bruise and pre-patella soft-tissue swelling. There was low grade osteochondral lesion of the medial patella articular facet and early degenerative changes within the lateral aspect of the patellofemoral joint.
156 The most recent MRI scan was carried out on 26 February 2013. It was then reported that no significant residual patellofemoral abnormality was seen.
The Defendant’s Medical Evidence
157 Dr Fraser, rheumatologist, saw the plaintiff in January 2013.
158 The plaintiff then reported he still had intermittent right knee pain when kneeling or squatting and tried to take all pressure on his left knee. There was only occasional pain on walking and the knee sometimes tended to give way, although he had not fallen.
159 The plaintiff was not having any treatment, having had Panadeine Forte initially for a short time. The knee did not affect his leisure activity of quarter mile car racing. The plaintiff told Dr Fraser that he used to play tennis prior to the accident but had not done so since because he had not felt like it, rather than because of his knee symptoms.
160 On examination, the plaintiff moved freely and walked without a limp. There was very mild retro-patellar tenderness. Flexion of the knee was not restricted or painful. Dr Fraser had available the early investigations.
161 Dr Fraser noted the plaintiff gave his history in an honest and straightforward fashion and there was no overreaction on physical examination to suggest his symptoms were non-organically based.
162 Dr Fraser considered the plaintiff’s right knee symptoms and physical findings were consistent with very early degenerative changes involving the patellofemoral joint, likely related to the accident. He thought there may be some progression over the years, although it was unlikely to cause any significant functional incapacity in relation to the plaintiff’s work or leisure activities in the foreseeable future. In his view, there was certainly no indication for any work restrictions at present.
163 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in January 2013.
164 The plaintiff then told Mr Dooley that he noted ongoing intermittent right knee pain troubling him when kneeling and squatting and a lot of pain with walking. There was no nocturnal knee pain.
165 The plaintiff told Mr Dooley that until he began work at eighteen, he used to be active playing tennis regularly and that he had been fit and well in the past.
166 On physical examination, the plaintiff walked without a limp. There was wasting of the right quadriceps with the right thigh measuring fifty-three and the left fifty-three-and-a-half centimetres above the patella. There was no effusion of the knee. There was mild tenderness of the patellofemoral joint and some crepitus with knee movement.
167 The knee moved from full extension through to one hundred and thirty-five degrees of flexion. There was joint line tenderness and the knee was stable. Mr Dooley noted the 2008 and 2009 MRI scans.
168 Mr Dooley thought the plaintiff had suffered an impact injury to the right knee which would have involved some damage to the superficial articular surfaces of the patellofemoral joint. He had also sustained soft-tissue subcutaneous bruising, grazing and abrasions generally.
169 Mr Dooley thought the appropriate treatment was exercise and a fitness program. He noted, following an impact injury of this significance, a patient could develop slowly progressive post-traumatic degenerative changes within the patellofemoral joint in time.
170 Mr Dooley’s experience was that any progress in this regard was slow. Also, even if those degenerative changes occurred, the overall quality and quantity in regard to ongoing symptoms often does not change to any significant degree from the symptoms that were already present as a consequence of the impact injury.
171 Mr Dooley thought the plaintiff was at some risk of developing slowly progressive post-traumatic degenerative changes within the patellofemoral joint in time. He did not think any restrictions needed to be placed on the plaintiff’s duties. He noted the plaintiff would experience difficulty with a lot of kneeling and squatting, but overall he had the ability to carry out a wide range of domestic activities.
172 In relation to leisure activities, Mr Dooley thought the plaintiff might note knee pain with a lot of impact, such as associated with running or jumping.
173 Mr Dooley provided a further report, having been given the report of the MRI scan of February 2013, which essentially reported no abnormality.
174 Mr Dooley noted the scan did not cause him to alter his clinical assessment, noting that the symptoms described were consistent with an impact injury. He confirmed that the risk was small overall of the plaintiff developing post-traumatic degenerative change within the femoral joint. Mr Dooley noted the findings of essentially a normal scan four years after injury would be a further indication that it is most unlikely any post-traumatic degenerative change would develop in time. The scan finding did not alter the symptoms in relation to kneeling and squatting, nor did it change Mr Dooley’s previously expressed opinion that the plaintiff would be capable of carrying out a wide range of employment, domestic and leisure activities.
Overview
175 There is no dispute that in the accident the plaintiff suffered an impact injury to his right knee involving the patellofemoral joint. Early post-accident investigations showed soft-tissue swelling anterior to the patella, a patella bone bruise and soft-tissue contusion anterior knee.
176 An MRI scan in August 2009 showed resolution of patella bone bruise and pre-patella soft-tissue swelling. It was noted there was low-grade osteochondral lesion of the medial patella, articular facet and early degenerative changes within the lateral aspect of the patellofemoral joint.
177 It was reported that following the February 2013 MRI scan, that no significant residual patellofemoral abnormality was seen.
178 There is no suggestion at all of any functional component or exaggeration on the plaintiff’s part.
179 During the hearing it had become apparent that the plaintiff had had a limited right knee complaint at the age of fifteen diagnosed by his general practitioner as chondromalacia patella. Until being asked in cross-examination about one attendance in on his doctor in 1994, the plaintiff had no memory of any knee problem or any ongoing treatment or restriction in relation thereto.
180 In these circumstances, particularly as the plaintiff was able to work as a carpenter and finish his apprenticeship prior to the accident, I accept that at the time thereof, the plaintiff had no problems with his right knee.
Credit
181 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[18] at paragraph 12:
“… 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.”
[18](2010) 31 VR 1
182 I found the plaintiff to be a truthful, honest witness who did not exaggerate the extent of his disability.
183 I accept that the plaintiff is somewhat of a stoic, as Mr Aiello described, continuing in employment and modifying his duties to avoid physical stress. As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd No 2,[19] 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.”
[19][2008] VSCA 260 at paragraph 4
184 There is no surveillance film showing a level of activity inconsistent with the plaintiff’s complaints of pain and restriction.
185 The plaintiff relied on lay evidence from his mother and employer confirming his difficulties at home and at work. Neither deponents were required to attend for cross-examination.
186 The plaintiff was not cross-examined specifically as to his pain, but the cross-examination focused on what he did about his pain and how it affected his life.
187 I accept that the plaintiff continues to experience a constant aching, discomfort, swelling and pain in his right knee which worsens with activity such as kneeling, squatting and negotiating. He experiences crepitus in his knee and it often feels unstable and at times it has given way. He also has difficulty twisting and turning on his knee and running and walking on uneven ground.
188 Due to restricted use of his right leg, the plaintiff has experienced wasting in that limb, the effects of which are reduced as he has undertaken exercises to strengthen his leg.
Treatment
189 The plaintiff has been seen by two orthopaedic surgeons who have suggested ongoing conservative treatment. He has undertaken physiotherapy, which has been of limited success. At this stage, no further medical treatment has been suggested. The findings on recent MRI scans in 2013 suggest the plaintiff is unlikely to develop arthritis to the point where he would require knee replacement surgery.
190 The plaintiff takes his father’s Panadeine Forte from time to time. The plaintiff also takes Panadeine Max twice a week, usually late at night after work, and sometimes during the day if his pain is particularly bad.
191 The plaintiff has followed the conservative treatment suggested by his orthopaedic surgeons and otherwise avoids activity where possible when he knows it will aggravate his symptoms.
Consequences
192 The plaintiff is relatively young, now aged twenty-nine.
193 In Stijepic v One Force Group Aust Pty Ltd,[20] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[20][2009] VSCA 181 at paragraph 43
194 The Court held, when judging the pain and suffering consequences for the appellant by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
195 In addition to ongoing pain and restriction, the main consequence to the plaintiff of his right knee injury is his inability to continue, other than in a restricted capacity, his trade as a carpenter.
196 The consensus of medical opinion is that the plaintiff is unfit for the full range of duties required of a carpenter involving kneeling and squatting and that this is a permanent situation.
197 Prior to the accident, the plaintiff had completed his apprenticeship and worked for a short time. Since then, he has been unable to resume normal carpentry duties, not being able to go back to work at all until about May 2010. Thereafter, his duties have been more in a supervisory-foreman role.
198 The plaintiff, on two separate occasions, tried to return to work in the tools, but his attempts were short-lived due to his experience of increased knee pain being on his feet all day. By the end of the day, his knee ached and he was exhausted. This situation continues even in his current job, where he is involved in more supervisory duties. At the end of the working day, the plaintiff gets home exhausted and uses either an ice pack or heat pack to try and alleviate his pain, and spends a lot of time trying to manage his knee symptoms.
199 Whilst he generally does lighter duties in his present job, the plaintiff is still required to do hands on work and has difficulty doing so, as Mr Aiello confirmed. Further, the plaintiff has a particular difficulty with ladder work.
200 Whilst the plaintiff’s income has increased substantially in recent years to $87,000 in 2012 compared to $29,000 for the first six months of the 2007-2008 financial year before the accident, his ability to pursue his trade fully is restricted by his injury and he is limited in the carpentry fields in which he can work if his present relatively protected employment ceases – see State of Victoria v Glover.[21]
[21][1998] VSCA 93 per Ormiston J at paragraph 30
201 Medical practitioners agree that the plaintiff has, and will continue to have, difficulty with any loading on his weight bearing leg, whether it be at work, walking, standing or running.
202 Whilst it was not pursued in cross-examination, the plaintiff’s evidence was not challenged that he has not ridden a motorbike since the accident because he is fearful of being involved in another accident and he is physically uncomfortable riding a bike.
203 The plaintiff is incapable of maintaining his racing car to have it ready for racing as frequently as was the case before the accident – racing it eight to nine times in the year pre-accident and only once in the last twelve months. He can only work on the car to a limited extent and no longer derives the enjoyment from this hobby that was the case before the accident.
204 Although the plaintiff was not playing tennis at the time of the accident due to work commitments, it was a hobby he had not given up as at the said date but has not resumed thereafter due to concerns about irritating his knee condition.
205 The plaintiff is unable to walk for long distances and has difficulty running.
206 The plaintiff is restricted in the amount of assistance he can give his parents with tasks at home.
207 When considering whether the plaintiff’s impairment is serious, I am also permitted to take into account the expected mental consequences of his knee condition, as Winneke P set out in Richards v Wylie.[22]
[22]supra
208 In this regard, I am satisfied, as Dr Serry concluded, that as a result of his pain and physical restrictions, there was also some mild adjustment features to the plaintiff’s physical injury, with the plaintiff being more worried and apprehensive about his future health and work prospects since the accident.
209 As the plaintiff’s symptoms have persisted for in excess of five years without significant sustained improvement and he continues to experience ongoing pain and restriction, I am satisfied his impairment is long term.
210 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s knee injury satisfy the test of seriousness in Humphries v Poljak.[23]
[23]supra
211 Accordingly, I grant leave to bring proceedings for damages in relation to the accident.
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