Pilkington v Transport Accident Commission; Pilkington v Toll Holdings Limited
[2017] VCC 572
•24 May 2017
Heal
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-05413
| LARRY JOHN PILKINGTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
-AND-
Case No. CI-14-02571
| LARRY JOHN PILKINGTON | Plaintiff |
| v | |
| TOLL HOLDINGS LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING | 25, 26 and 29 August 2016 | |
DATE OF JUDGMENT: | 24 May 2017 | |
CASE MAY BE CITED AS: | Pilkington v Transport Accident Commission; Pilkington v Toll Holdings Limited | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 572 | |
REASONS FOR JUDGMENT
---
Subject:SERIOUS INJURY APPLICATIONS under the Transport Accident Act 1986 and the Accident Compensation Act 1985, as amended
Catchwords: Whether the plaintiff suffered a “serious injury” in relation to a transport accident on 24 October 2008; whether injury suffered on 24 October 2008 was causative of further impairment on 9 April 2009 and 1 October 2013; whether the plaintiff suffered a “serious injury” in relation to an industrial accident on 9 April 2009, whether such injury on 9 April 2009 was causative of further impairment on 1 October 2013
Legislation Cited: Transport Accident Act 1986, s93; Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Transport Accident Commission v Kamel [2011] VSCA 110; Richards v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Transport Accident Commission v Zepic [2013] VSCA 232; Altona Bus Lines v Lococo [2002] VSCA 159; Fishlock v Plummer [1050] SASR 176; State Government Insurance Commission (WA) v Oakley (1990) 10 MVR 570; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Woolworths Ltd v Warfe [2013] VSCA 22; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494
Judgment: (1) In relation to Originating Motion No. C1-13-05413, leave is given to the plaintiff pursuant to s93(4)(d) of the Transport Accident Act 1986 to bring common law proceedings to recover damages for injuries to his right leg (particularly the right knee) and left leg (particularly the left ankle) suffered by him arising out of a transport accident on or about 24 October 2008, which was a cause of the incidents on 9 April 2009 and 1 October 2013.
(2)In relation to Originating Motion No. C1-14-02571, leave is given to the plaintiff pursuant to s135AB(16)(b) of the Accident Compensation Act 1985 to bring common law proceedings for pain and suffering damages and pecuniary loss damages for injuries to his right leg (particularly the right knee) and the left leg (particularly the left ankle) in relation to the injury suffered by him arising out of and in the course of his employment with Toll Holdings Limited on 9 April 2009, which was a cause of the incident on 1 October 2013.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton QC with Mr L Allan | Henry Carus & Associates |
| For the Transport Accident Commission | Mr P Elliott QC with Ms J Clark | Solicitor for the Transport Accident Commission |
| For Toll Holdings Limited | Mr B McKenzie | Thomson Geer Lawyers |
HIS HONOUR:
1 By way of Originating Motion number CI-13-05413 issued on 18 October 2013 (“the first application”), Larry John Pilkington (“the plaintiff”) seeks leave, pursuant to s93(4)(d) of the Transport Accident Act 1986 (hereinafter referred to as “the TA Act”), to bring common law proceedings to recover damages for injuries to his right leg (particularly the right knee) and left leg (particularly the left ankle), suffered by him arising out of a transport accident on or about 24 October 2008 (“the transport accident”) and the consequences of that injury on 9 April 2009 and 1 October 2013 (involving impairment of the left ankle).
2 By way of Originating Motion number CI-14-02571 issued on 26 May 2014 (“the second application”), the plaintiff seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the AC Act”), to bring common law proceedings for injuries to his right leg (particularly the right knee) and left leg (particularly the left ankle), said to have occurred during the course of his employment with Toll Holdings Limited (“Toll”) on 9 April 2009 (“the industrial accident”) and the consequences of that injury on 1 October 2013 (involving impairment of the left ankle).
3 All parties accepted that both applications should be heard jointly.[1]
[1]See Transcript (“T”) 2, Line (“L”) 4-16
4 The plaintiff was the only witness to give evidence and be cross-examined. All parties tendered a large number of documents.[2]
[2]Refer to exhibit A
Relevant legal principles
5 In relation to the first application which is against the Transport Accident Commission (“TAC”), the Court must not give leave unless it is satisfied, on the balance of probabilities, that the injury or injuries are a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the TA Act. The plaintiff relies on paragraph (a) of the definition, which reads:
“In this section—
…
serious injury means—
(a) serious long-term impairment or loss of a body function; …”
6 The part or parts of the body said to be impaired for the purposes of paragraph (a) in relation to the transport accident are the right and left legs and, in particular, the right knee and left ankle.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by him was a result of the transport accident;
(b)the requirements of the test set out in the seminal decision of Humphries & Anor v Poljak[3] are met, wherein a majority of the then Full Court of the Supreme Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusion to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequence of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[4]
(my emphasis).
(c)“serious injury”, as defined in sub-paragraph (a), can have its seriousness measured in part by a mental response to a physical impairment — however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[5]
[3][1992] 2 VR 129
[4]Humphries & Anor v Poljak (op cit) at 140; see also Mobilio v Balliotis [1998] 3 VR 833 and Transport Accident Commission v Kamel [2011] VSCA 110 at paragraphs [61]‒[64]
[5]See Richards v Wylie (2000) 1 VR 79
8 In relation to the second application against Toll, the Court must not give leave unless it is satisfied, on the balance of probabilities, that the injury or injuries are a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the AC Act.[6]
[6]See s134AB(19)(a) of the AC Act
9 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the AC Act. That paragraph reads:
“serious injury means—
(a)permanent serious impairment or loss of a body function; … .”
10 The parts of a body said to be impaired for the purposes of paragraph (a) are the right and left legs of the plaintiff and, in particular, his right knee and left ankle.
11 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) The injury (or injuries) suffered by him arose out of, or in the course of, or due to the nature of, his employment with Toll on or after 20 October 1999;[7]
[7]See s134AB(1) of the AC Act and Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622 at paragraph [11]
(b) the injury (or injuries) and resulting impairment (or impairments) must be “permanent” — that is, permanent in the sense that it is “likely to last for the foreseeable future”;[8]
(c) the “consequences” to the plaintiff of any impairment in relation to “pain and suffering” and “pecuniary loss” must be serious — that is, “when judged by comparison with other cases in the range of possible impairments as the case may be … [can be] … fairly described as being more than significant or marked and as being at least very considerable”.[9]
[8]See Barwon Spinners (op cit) at paragraph [33]
[9]See s134AB(38)(b) and (c) of the AC Act
12 Section 134AB(38)(b) of the AC Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies subparagraph (i) but not subparagraph (ii) of s134AB(38)(b) of the AC Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB of the AC Act is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[10]
[10]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]‒[64] and Acir v Frosster Pty Ltd [2009] VSC 454
13 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[11] to establish:
[11]See s134AB(19)(b) and (38)(e) of the AC Act
(a) that as at the date of hearing he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the AC Act;[12]
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[13]
[12]See s134AB(38)(e)(i) of the AC Act
[13]See s134AB(38)(e)(ii) of the AC Act
14 In determining the second application, the Court must not take into account psychological or psychiatric consequences of the injury (or injuries) for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purpose of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”.[14]
[14]See s134AB(38)(h) of the AC Act
15 In respect of both applications, the Court must make the assessment of “serious injury” at the time the application is heard. In relation to industrial actions, s134AB(38)(i) of the AC Act provides for such, whereas the common law in relation to applications under the TA Act makes plain that the assessment of serious injury must be at the time that the application is determined.
16 Furthermore, in both applications, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[15]
[15]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]‒[36]
The case for the Plaintiff
17 All parties prepared written submissions. In the submissions relied on by the plaintiff, there is set out how the claim is put by the plaintiff. The plaintiff submits as follows:
“2.The key dates are then:
(a)24 October 2008, when the plaintiff’s vehicle was hit while he was in the process of getting out of it, injuring his right knee;
(b)9 April 2009, when the plaintiff tripped on a satchel immediately behind his van when he was unloading it, further injuring his right knee; and
(c)1 October 2013, when the plaintiff almost fell down some stairs, injuring his left foot and ankle.
3.The plaintiff seeks leave to commence proceedings:
(a) in respect to injury sustained to his right knee in the 24 October 2008 transport accident. This application is pursuant to s93 of the Transport Accident Act 1986; and
(b) in respect of further injury sustained to his right knee, in the 9 April 2009 unloading incident. This application is pursuant to s134AB of the Accident Compensation Act 1985.
4.The plaintiff contends that injury sustained in the 24 October 2008 transport accident has resulted in:
(a)a ‘serious’ impairment of the function of his right knee; and
(b)a ‘serious’ impairment of the function of his left foot and ankle.
5.The plaintiff contends that the (aggravation) injury sustained in the 9 April 2009 unloading incident has also resulted in:
(a)a ‘serious’ impairment of the function of his right knee; and
(b)a ‘serious’ impairment of the function of his left foot and ankle.
6.This is because:
(a) the 24 October 2008 injury required operative treatment and led to the plaintiff still having in April 2009 a weak right knee, and this was a cause of him suffering further injury in the 9 April 2009 unloading incident;
(b) the further (aggravation) injury sustained in the 9 April 2009 unloading incident created a situation where the plaintiff’s knee was thereafter liable to give way without it being under undue load and without warning; and
(c) this feature of his knee condition was a cause of him falling or near falling on 1 October 2013 and injuring his left foot and ankle.”
18 In general, it is not permissible to aggregate several impairments or injuries to several body functions which are not serious into an overall, serious impairment.[16] Such principle applies where the injuries were sustained on one occasion or on several occasions.[17] The plaintiff must identify the impairment or loss of body function which he or she claims is a “serious injury”. This identification focuses on the function rather than the physical injury, which produces the relevant impairment or loss of body function.[18]
[16]Humphries & Anor v Poljak (op cit) at paragraph [138]
[17]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Transport Accident Commission v Zepic [2013] VSCA 232
[18]See Humphries & Anor v Poljak (op cit) at paragraph [138]
19 However, the concept relied on by the plaintiff is amply demonstrated in the Court of Appeal decision of Altona Bus Lines v Lococo.[19] In that matter, the worker, Lococo, was employed by Altona Bus Lines as a bus driver and suffered the following injuries in the course of his employment:
(a)On 3 July 1995 (“the first injury”), in the course of his employment, the worker was alighting from a bus when he slipped and fell and, as a result, suffered a lower back injury for which he was treated with analgesia and anti-inflammatory medication. He was off work for about three weeks and returned to light duties, and remained on light duties for a number of months before resuming full-time work as a bus driver, experiencing intermittent pain;
(b)On 3 December 1998 (“the second injury”), the worker rose from his seat on the bus, forgetting to disengage his seatbelt, and suffered severe pain in his lower back, which gradually worsened, and radiological studies revealed that he had suffered a disc extrusion, compressing the L5 nerve root. He returned to work on light duties, but did not resume his bus driving.
[19][2002] VSCA 159
20 The worker applied, pursuant to the provisions of s135A(4) of the AC Act, to bring proceedings for the recovery of damages in respect of the injury which he suffered in the first injury. Because of the provisions of s134A of the AC Act, the worker could not recover damages in respect of any injury he suffered on 3 December 1998.
21 In order to obtain leave, the worker was required to establish that the injury on 3 July 1995 (“the first injury”) was a “serious injury” within the meaning of s135A(19) of the AC Act, to wit, the injury had to fall within paragraph (a) of the definition, in that he had sustained a “serious long-term impairment of a body function”.
22 The worker succeeded at first instance and Altona Bus Lines appealed on the basis that the trial judge failed to separately assess the effects of the first and second injuries. Ultimately, Buchanan JA (with whom Chernov and Eames JJA agreed), upheld the decision on the basis that the reasons of the judge at first instance, when read as a whole, appeared to conclude that the effect of the 1995 injury (“the first injury”), considered alone, was to produce a serious long-term impairment of a body function. In particular, Buchanan JA noted (seemingly with approval) that the trial judge did state:
“But if it can be demonstrated that a subsequent injury would not have occurred but for an earlier injury, or that the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury, or the additional effects thereof (as the case may be) are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long-term impairment of the body function.”[20]
[20]See Altona Bus Lines v Lococo (op cit) at paragraph [11]
23 It was accepted by the Court of Appeal that the trial judge was effectively employing the “second way” of showing the first injury was serious, that is to say, “the additional effects [those which became manifest in 1998] are consequences of the original injury”[21] and were taken into account by him in isolation from the 1998 injury to determine that the 1995 injury produced “a severe long-term impairment of a body function”.
[21](op cit) at paragraph [12]
24 Counsel for Toll, in his written submissions, also made reference to Acir v Frosster Pty Ltd,[22] which is consistent with the principles enunciated above. Certainly, such an approach is consistent with common law principles. Counsel for the plaintiff, in their written submissions, made reference to Fishlock v Plummer[23] and, in particular, State Government Insurance Commission (Western Australia) v Oakley,[24] wherein Malcolm CJ stated:
“In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows: (1) Where the further injury results from a subsequent accident, which would not have not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence; (2) Where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and (3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”[25]
[22](op cit), in particular paragraphs [245]-[251]
[23][1050] SASR 176
[24](1990) 10 MVR 570
[25](ibid) at 7
25 Although there was dispute amongst the parties as to whether the evidence supported any particular finding of one injury being causative of another injury, no party submitted that the concept was wrong.
The issues
26 At the commencement of the trial, the Court queried counsel for the TAC and Toll, as to what were said to be the issues. Counsel for the TAC informed the Court (and later expanded in their written submissions) that there was no issue that the plaintiff was involved in a “transport accident” on 24 October 2008[26] and that he suffered a right knee injury.[27]
[26]T35, L2-10
[27]T51, L27 – T52, L7
27 However, the extent and nature of such injury was relatively minor and did not result in any permanent impairment giving rise to consequences which were “serious” within the meaning set out in Humphries & Anor v Poljak.[28]
[28]Op cit
28 Furthermore, in assessing whether the knee injury suffered by the plaintiff on 24 October 2008 was “serious”, such assessment should be made consistent with the principles set out in Petkovski v Galletti,[29] as the plaintiff had earlier suffered injury to his right knee.
[29][1994] 1 VR 436
29 In particular, counsel for the TAC highlighted that over the period from the date of the transport accident on 24 October 2008, up to the second incident on 9 April 2009, the condition of the right knee of the plaintiff was improving.
30 Counsel submitted that there was no “causal” relationship between the incident on 24 October 2008 and the incident occurring on 9 April 2009. Rather, counsel for the TAC submitted that consistent with the principles enunciated in Petkovski v Galletti[30] and reinforced in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz;[31] the second incident was an aggravation of the transport accident incident on 24 October 2008.[32] In their written submissions, the TAC seemingly suggest that a proper analysis of the incident suffered by the plaintiff on 9 April 2009 is that that incident caused an aggravation of the right knee condition and the extent of that aggravation gave rise to permanent impairment and serious consequences.
[30]Op cit
[31][2012] 34 VR 309
[32]T35-T36
31 Counsel for the TAC also submitted that there was no causal relationship whatsoever between the transport accident, that is, the incident on 24 October 2008, and the incident which occurred on 1 October 2013.[33]
[33]T37, L23 – T38, L10
32 Counsel for Toll submitted that the right knee injury suffered by the plaintiff as a result of the transport accident on 24 October 2008 played a causative role in the incidents suffered by the plaintiff on 9 April 2009 and 1 October 2013. In this respect, Toll joins with the plaintiff in the case against the TAC.
33 Toll further submits that “alternatively”, if the incident suffered by the plaintiff on 9 April 2009 was not found to be a “consequence” of the right knee injury sustained in the transport accident on 24 October 2008, it is an “aggravation” of the pre-existing condition, which must be assessed consistent with the principles of Petkovski v Galletti.[34] Toll submits that on such an analysis, any additional “impairment” resulting from the 9 April 2009 incident does not give rise to consequences which are “serious” within the meaning of s134AB of the AC Act.
[34]Op cit
34 Seemingly, Toll submit that the incident on 9 April 2009, conceptually, can be a consequence of the right knee injury suffered by the plaintiff in the transport accident on 24 October 2008 or, if not, can be assessed as an aggravation of the earlier injury, but not both. I consider that there is no legal inhibition on the incident of 9 April 2009 being found to be a consequence of the transport accident on 24 October 2008 (subject to the evidence) and, also being found to be a “serious injury” in its own right pursuant to the provisions of s134AB of the AC Act (subject to the evidence).
The evidence of the Plaintiff
35 The plaintiff relies on five affidavits sworn by him on 18 February 2014; 2 February 2015; 26 November 2015; 26 February 2016 and 12 August 2016.[35]
[35]See exhibit 1 at pages 9-45 Joint Court Book (“JCB”)
36 The plaintiff also relies on the affidavits of his friends, Vincent Paul Bevilacqua and William Gregory Curtis, sworn, respectively, on 29 January 2015 and 5 February 2015.[36] The plaintiff further relies on affidavits from his daughter, Cassy Jane Pilkington, and his estranged wife, Nicola Jane Pilkington, sworn, respectively, on 23 February 2015 and 24 February 2015.[37]
[36]See exhibit 1 at pages 46-51 JCB
[37]See exhibit 1 at pages 52-59 JCB
37 The plaintiff gave evidence that the contents of each of his affidavits were true and correct, subject to some minor corrections.[38]
[38]Paragraph 5 of the first affidavit sworn on 18 February 2014 was clarified to the extent that one of his adult children had since moved out; paragraphs 29, 30, 31, 32, 33 and 34 of the affidavit sworn on 18 November 2014 would suggest that the plaintiff was working at the time that it was sworn, but the situation was that he had met with his lawyers when working, but by the time the affidavit was sworn, he had stopped work; in paragraph 9 of the second affidavit sworn on 2 February 2015, the plaintiff deposes that he takes Glucosamine with Chondroitin to help with joint pain – but has since given up taking such medication, but was still taking Panadeine Forte on occasion; in paragraph 17 of the same affidavit, the plaintiff deposes, in part, that he had placed his house “on the market”, but the true position was that he was planning to put his house on the market in due course; in paragraph 11 of the affidavit sworn 26 November 2015, the plaintiff deposes that he was involved in a motor vehicle accident in 1982, when it should have been the 1970s. Furthermore, there is reference in that paragraph to him having had Hepatitis C, which has now been cured; in paragraph 27 of the same affidavit, he deposes that the osteopath, Dr Wapshott, referred him for a CT scan when the true position is that he raised it with his general practitioner, Dr Darrer, who made the referral; in paragraph 41 of the same affidavit, the plaintiff deposes that he saw Cable Mills for fittings of his CAM walker, which was true at the time sworn, but he has since stopped seeing Cable Mills because payment has ceased for treatment of the left ankle; in paragraph 47(d) of the same affidavit, the plaintiff deposes that he had put his boat up for sale and that the current situation is that he has sold the boat; in paragraph 52 of the same affidavit, the plaintiff deposes that when there was something heavy to be lifted you would get another driver to do it, and he clarified such assertion by stating that Toll would arrange for another driver to do it; in paragraphs 5, 6 and 7 of the affidavit sworn on 26 February 2016, the plaintiff deposes about an injury to his left wrist and he clarified that situation by giving evidence to the Court that his wrist is no longer the cause of any ongoing problems.
38 The plaintiff is sixty-five years of age[39] and although married, is presently separated from his wife. He has four adult children.
[39]Born April 1952
39 The plaintiff attended Wangaratta Technical College until about the age of fifteen, completing Year 9. On entering the workforce, he initially commenced, but did not complete, a boiler-making apprenticeship and, thereafter, worked as a truck driver for some years.
40 On or about 5 May 1982, he commenced employment with Mayne Nickless as a courier driver which, subsequently, became Toll-Chadwick Pty Ltd and, of more recent times, Toll. In his first affidavit, the plaintiff gave evidence that although the company name had changed over the years, such changes had no effect on his employment and he considered himself as having been employed by the same company since about May 1982.
41 Since leaving school, the plaintiff has never had an office job. The plaintiff also gave evidence that in recent years, he had attended a computer course but had trouble coping with such course. The course was run by the local council for adult education. The plaintiff gave evidence that he only completed the first stage of a course and never got to the second stage. In particular, the following evidence was given:
Q: “What was the problem with the course?---
A: I just couldn’t get me (sic) head around the presentation of PowerPoints and all that. I didn’t like sitting inside a great deal, either. It actually gets a little bit monoganous (sic).”[40]
[40]T288, L7-22
42 In his first affidavit sworn on 18 February 2014,[41] the plaintiff gave evidence that prior to the transport accident on 24 October 2008, he had suffered the following injuries and medical conditions:
[41]See exhibit 1 at pages 10-11 JCB
(a) When about twenty-five years old, he suffered an appendectomy, after which he suffered no complications or adverse side effects;
(b) In 1976, he was involved in a motor vehicle accident and suffered a fractured pelvis and lacerations to his upper body. He required medical care, including hospital admittance and a blood transfusion, which probably resulted in him being a carrier of Hepatitis C;
(c) Since about 2003, he has suffered hypertension, which is treated with medication. This condition has not affected his social life or daily activities;
(d) In or about 2004, he began to suffer from bilateral plantar problems for which he received some treatment at that time, causing his then symptoms to resolve;
(e) In or about 2005, he was diagnosed with Barrett’s, for which he takes medication and has no pain or discomfort or ill effects from such condition;
(f) Since about 2010, he has suffered from diabetes which is treated with diet, and from about 2005, he has also suffered from iron deficiency, for which he takes tablets;
(g) About twenty-nine or thirty years ago, he was involved in a motor vehicle collision and, as a result, suffered injury to his right shoulder and neck. He continues to suffer minor neck pain due to this accident but such condition has not stopped him from enjoying his hobbies and going about his daily activities;
(h) In or about 2007, he was advised he had cervical spondylosis. Such condition gives rise to some minor pain and only rarely needs active treatment.
43 I refer to some of the evidence which gives details as to the nature and extent of the work undertaken by the plaintiff at or around the time of the transport accident on 24 October 2008:
(a) After the transport accident, the plaintiff lodged a Claim for Compensation dated 16 December 2008.[42] In that document, the plaintiff records that he was working approximately 65 hours per week prior to the transport accident and, indeed, the Employer Injury Claim Report[43] makes clear that Toll agreed with such assessment.
[42]See exhibit 2 at page 77 JCB
[43]See exhibit 2 at page 79 JCB
(b) I also refer to exhibit 14, referred to as an “Income Summary”, which records, amongst other things, gross payments earned by the plaintiff and payment, less expenses, for the years ending 30 June 2008 and 30 June 2009. For the financial year ending 30 June 2008, the plaintiff was paid gross payments of $92,603 and after expenses deducted, the sum of $66,204. For the financial year ending 30 June 2009, the plaintiff was paid gross payments of $84,281 and after expenses deducted, the sum of $53,088.
(c) Under cross-examination by counsel for Toll, the plaintiff gave evidence that prior to the transport accident, he would “squat on the floor in the depot 100 times a day, every morning to pick our freight up off the floor”.[44]
[44]T203, L5-7
44 In his first affidavit, the plaintiff described suffering a “… minor injury to my right knee when I was getting onto my fishing boat …”[45] in March 2008, which seemingly is the “pre-existing injury” referred to by those acting on behalf of the TAC.
[45]See exhibit 1, paragraph [16], at page 11 JCB
45 When the plaintiff gave his evidence-in-chief, I permitted Senior Counsel for the plaintiff some “leeway” in clarifying certain parts of the affidavit material. In particular, the plaintiff gave further evidence in relation to the earlier boating incident (March 2008), after which he suffered symptoms in his right knee. The following evidence was given:
Q: “… Before the car accident, would you have had - you had an incident with your boat in early 2008?---
A: Yes.
Q: For some months before the car accident, how was your knee?---
A: Very good. I had treatment and I was back working full duties, no restrictions, lifting and heavys (sic), whatever I wanted, up and down stairs.”[46]
[46]T56, L11-17
46 Dr Des Darrer has been the general practitioner of the plaintiff for many years. Dr Darrer was one of the doctors at the Rowville Health Medical Centre (“Rowville Health”). His records were tendered.[47] Also working at Rowville Health was Mr Tim McCurdy, who is a physiotherapist, and treated the plaintiff reasonably frequently over the years. His records were also tendered.[48]
[47]See exhibit Y
[48]See exhibit Z
47 Over the period from the boating accident in March 2008 up until the transport accident on 24 October 2008, the plaintiff attended Dr Darrer on 30 April 2008, 26 June 2008, 31 July 2008 and 9 October 2008, for reasons unconnected with any knee injury. Furthermore, there would not appear to be any record of any radiological studies of the right knee prior to the transport accident.
48 However, the plaintiff did attend Mr McCurdy, the physiotherapist, on 16 June 2008, 20 June 2008, 24 June 2008 and finally, on 30 June 2008.[49]
[49]T64, L28 – T65, L21
49 When initially seen on 16 June 2008, the plaintiff gave a history that he “jarred right knee” and was having “ongoing pains”. Seemingly, the plaintiff also complained that his condition was aggravated, “pushing up from squatting”. He was treated with soft-tissue therapy and ultrasound.
50 On 20 June 2008, the plaintiff complained of “more sharp pains” and his management was noted to be “soft-tissue therapy and ultrasound”.
51 On 24 June 2008, Mr McCurdy records that the plaintiff has “been good now just gen awareness of limits”. Management continued to consist of “soft tissue therapy ultrasound”.
52 Under cross-examination by counsel for Toll, the plaintiff was queried about the words “awareness of limits” recorded on 24 June 2008 by the physiotherapist. The following evidence was given:
Q: “Then the next note, 24 June 2008, Mr McCurdy has recorded, ‘Been good now. Just general awareness limits’?---
A: Yep.
Q: Do you have any idea what the ‘general awareness of limits’ was? What limits did you have at that stage? Was it squatting?---
A: Yeah, maybe squatting or doing something out of the ordinary, like stretching to lift up high or something, jumping or whatever. It could be something like that. Running. It could have been anything. Be aware and if you feel pain, don’t do it.
Q: Did Mr McCurdy encourage you to be aware of your limits?---
A: Yes.
Q: And to take it easy in terms of things like squatting?---
A: Yes.
Q: Jumping?---
A: Yes.
Q: Reaching?---
A: Yes.
Q: Heavy lifting?---
A: Yes.
Q: And he encouraged you at that stage – in terms of the treatment, he gave you some more soft tissue therapy and some ultrasound?---
A: Yep.”[50]
[50]T203, L29 – T204, L14
53 When last seen on 30 June 2008, Mr McCurdy noted the plaintiff was “doing squats okay” and again, treatment was noted to be “soft tissue therapy ultrasound”.
54 Seemingly, Mr McCurdy did not record any precise diagnosis. I do note that when the plaintiff was referred to the orthopaedic surgeon, Mr Steele, after the transport accident, Mr Steele obtained a history in relation to his previous injury in March 2008 which was said to be diagnosed as a “medial meniscal injury”.[51] Mr Steele noted also that this condition was treated non-operatively and had fully settled prior to the transport accident.
[51]See exhibit D at page 136 JCB
55 Consistent with the evidence of the plaintiff, I find that he did suffer a pre-existing right knee injury in or about March 2008 as a result of a boating incident, but such incident was relatively minor and that by late June 2008, the plaintiff had largely recovered from such condition. He thinks that he did not lose any time off work as a result of such incident.[52]
[52]T157, L22-23
56 The plaintiff also described that prior to the transport accident, he often went hunting with friends for ducks, rabbits and other game, walking long distances through swamps and over farmland. He noted that this type of hunting required carrying a loaded gun.[53] The plaintiff also described, in his first affidavit, how he regularly competed in clay target shooting and continues to be a member of Field & Game Australia Inc. He described such activity as a “major hobby for me” and a source of great enjoyment. He competed at many levels and in many tournaments, including the world titles, state titles and Oceania titles.[54]
[53]See exhibit 1, paragraph [44], at page 16 JCB
[54]See exhibit 1, paragraph [41], at page 15 JCB
57 During his evidence-in-chief, various photographs depicting the type of shooting that the plaintiff was involved with were tendered.[55] In particular, the following evidence was given:
[55]See exhibit 11
Q: “We’ve got photos, which we circulated, about this. Can you just explain to His Honour about the sort of shooting you did before you hurt your knee and compare that to what you have been able to do, in terms of shooting, after the knee?---
A: I compete in shooting disks in a sport, in clays. We can go anywhere into the bush and set up a field in there. It is not a spectator sport, but it is probably the fastest hand-eye coordinated sport in the world. It is very challenging and a great social life around it. It mainly involves field shooters from duck shooting to foxes or anything like that, rather than the ACT (indistinct) which you have in the Olympic and sporting competitions.”
HIS HONOUR:
Q: “Is it similar to that? Just coincidentally, I watched the young woman get gold. Was that clay shooting?---
A: That’s clay shooting. That is international trench. She also shoots field and game as well. We deem the Olympic sports as a practice for our sport. Ours is - we have world competitions and oceanas and - - -
Q: Just explain to me what your clay shooting is?---
…
Q: I don’t think people will mind if I clarify this. It seems to be out, firstly, in open terrain; is that right?---
A: Yes, it is.
Q: And there seems to be set up an area where you shoot from?---
A: Yes, you’ll set up a cage, always a one metre square or circle.
Q: Just explain to me what I’m not clear about. So your turn to shoot, or whoever the shooter is, is in that area of the cage and does someone mechanically let go of something?---
A: Yeah, either by remote control or a long cable, it will go off to one of the traps. We might have two or three traps set in front. It could be anywhere.
Q: Within how close to where you’re shooting from?---
A: Anything from 10 metres out to 50 metres.
Q: So the idea is that when someone let’s off the trap, the skill of the shooter has to isolate where it is coming from?---
A: In the competition, Your Honour, you’re allowed to go up because you haven’t seen the targets in the air first. The first shooter is allowed to go up and ask for a look and all the rest of the squad watches the targets so you know where they’re coming from.
Q: But it is possible at any time the target might be coming from one of the three places?---
A: No, it’s always in a combination. We might say we’re going to go one target from trap A and then it is going to be followed on, report from the target from trap C, for instance.
Q: So you know where the target is coming from?---
A: You know where they’re going to come from.
Q: So you know - the next time something is going to be let off, you will know roughly where it is coming from?---
A: Yes.
Q: And the idea is you pick it up by eyesight and then aim the gun and shoot?---
A: That’s right, yes.”[56]
[56]T59, L11 – T61, L13
58 Later, the plaintiff described that after shooting at one station, involving two or three shots, you move onto the next station, and each round consists of twenty-five targets. You are required to walk from one station to the next and that sort of terrain may be:
“Anything. Hills or along creek beds or something like that. For, example, if you know Lerderderg Gorge, we could walk into Lerderderg Gorge and set a field up in there.”[57]
[57]T62, L4-7
59 The plaintiff gave evidence that since he injured his knee, he has not been able to walk through the terrain to perform such activity. The plaintiff estimated that a walk around the course could be from a quarter of a mile to half a mile.
60 The plaintiff also described that he has been involved in what he referred to as “five stand shooting”, and when asked what is the difference between five stand shooting and the clay shooting that he enjoyed, he stated:
Q: “You don’t have it set up at every ground where you can go around and enjoy the social aspects of it and competition side of it. They’ve got it restricted at the moment of going to Frankston and Lilydale, which are the two Olympic training fields, and they have those fields set up on a permanent basis where you can go and shoot practice, or if you go to a big title, they might have one set up there. Basically there is no dealing with difficult terrain?---
A: No, not difficult terrain. Once it is set up, you’re on a cement path.
…
Q: How would you describe the difference in enjoyment for you between your participation in game shooting or - either shooting game or sporting clays compared to what you now can do in this five stand stuff?---
A: There’s really no competition there and a lot of your social activities are gone. You’re not travelling around meeting people everywhere you’ve known for years and the competition is not there. It’s not a competition I enjoy going into. It is a different form. It’s all right to shoot, but it is not a pleasurable shoot.”[58]
[58]T64, L28 – T65, L21
61 This was expanded on during re-examination, when the following evidence was given:
“HIS HONOUR:
Q:Just tell us how you feel, though, not being able to do the one you like doing, which is the - - -?---
A:Sporting clay - they're both called sporting clays. One is called five stand sporting, the other one is sporting. The one I like doing is the one where all the people are there and they can come and tick you on the back of the ear and say, "You're going to miss this."
MR GORTON:
Q:Can I just - I want you to explain to His Honour how important that was in the context of your life and your interests over your entire lifetime?---
A:It's been very important. It's been my social outlet. My friends are all over Victoria and Australia, so we'd go away for a week and we'd arrange to go to one of the clubs or we'd arrange to go away to Mount Gambier and spend five days at the world titles or go down to the coast here for the Oceanias, or we'd spend six days at the world masters and a group of us would come in - we didn't stay at home, we'd go and stay somewhere in a caravan park or travel around. It was a social outlet. The whole lot of it was just so much important.
Q:In terms of your inability now to engage in that sort of part of your life, can you just say to His Honour whether that affects you in any way?---
A:It affects me greatly. I have lost that social aspect of it. I used to love going down there with my children. They are all very, very good at shooting themselves. I can't take me grandkids there. I can't do it any more.”[59]
[59]T92, L25 – T93, L13
The transport accident on 24 October 2008
62 In his first affidavit, the plaintiff describes the circumstances of the transport accident on 24 October 2008 in the following terms:
“On or about 24 October 2008 I was in my delivery van, working, when the van was struck by another motor vehicle from behind. I sustained a knee injury and attended my local general practitioner (GP) for treatment. I lodged a WorkCover Claim that was accepted - claim number 8808 000 0242. After the accident I attended my usual general practitioner (GP), Dr Des Darrer of the Rowville Health Medical Centre. He referred me for physiotherapist (sic) and then to an orthopaedic surgeon, Mr Robert Steele. … .”[60]
[60]See exhibit 1, paragraph [17] at pages 11-12 JCB
63 In his evidence-in-chief, the plaintiff expanded on the circumstances of such accident, and the following evidence was given:
Q: “The transport accident - remember the transport accident, when your van was parked and you were hit by another vehicle?---
A: Yes.
Q: Where were you in the van at the time of the impact?---
A: I was just swinging out of my van, just opened the door and about to get out of the van, I had my right foot down on what they call the well between the door and the floor.
Q: There’s a little step there?---
A: Yeah, a little step there, and as I was getting out - eventually I woke up and when I woke up, I was laid back over the seat. Someone hit the rear of my car.
Q: And where were you lying after the impact?---
A: Across sideways, out towards the passenger seat across the middle console.
Q: And where was your foot?---
A: Jammed down between the door. On the impact of the vehicle hitting me - my door was probably open a short distance - the impact was so great that it pushed my van forward and the door shut, jamming my foot down in the middle, in the well.
Q: And your body went over to the left?---
A: And my body went over.”
HIS HONOUR:
Q: “When you say it was jammed, the door didn’t actually shut and jam your foot, did it, or did it?---
A: No, it didn’t jam my foot as in hit it, it was jammed in between the door and the well, there was no room to turn it sideways.
Q: I see. The other thing I just want to know is you referred to a van. You describe what was the van?---
A: It was a Renault Trafic.
Q: There’s sliding doors to the back of it or how does that work?---
A: My one has a sliding door to the left-hand side and a lift-up door on the back.
Q: I see. And just a seat at the front that would take two or three people?---
A: Two single seats.
Q: And the nature of the packages which you took in that sort of van, what was that?---
A: Anything from important documentation in satchels to small cartons of medical goods or computer components or anything under the restrictions that you could take them without being held up in work. The main object of the job is to deliver quickly, so if - - -
Q: Yes, I understand?---- - - you had a lot of bulkage there, a great deal of them and it was going to hold you up, you’d leave them at the depot and just go for the express rate. At that stage there’s no weight restrictions or anything else.
… .”
MR GORTON
Q: “After the impact, you were lying off to the left, with your head towards the passenger door?---
A: With me head looking out through the window.
Q: And your right foot was still in that gap between the door and the front seat?---
A: Still in the gap, yes.
Q: And how did you get out of the car?---
A: The policeman, he come in from the left-hand side and sort of pushed me up a bit and lifted me leg out and we climbed out the left-hand side of the vehicle.
Q: You were in the car until the police arrived?---
A: Yes. My leg was jammed down. I didn’t know what was going on. I was a little bit in shock.
Q: You say a short time after, a day or so afterwards, you noticed you had some pain in the knee?---
A: Yes, I did.
Q: What did you do in the period after the accident and before you noticed the knee pain, what were you doing?---
A: My daughter came to the accident, we waited for them to unload my van and then took me to the doctor’s and I told them I had soreness in the knee and - in the shoulder and the neck and I went hope (sic) and just rested up.
Q: You didn’t do any more work that day?---
A: No, no more work was done. They unloaded my van.
Q: You went home and rested up?---
A: Went home and rested up and when I got up - it was over the weekend, it might have been Sunday - I started feeling soreness and returned to work and it was very sore, I went back to the doctor’s and he referred me on to the physio and from there started treatment.
Q: Can I just say were you aware of - in terms of when you started walking around and using your knee again and when the onset happened, had you been working for a long time before you noticed knee pain or was it before you started work?---
A: Before I started work. I noticed a bit of soreness in the morning.”[61]
[61]T52, L17 – T55, L1
64 Following the transport accident on 24 October 2008, the plaintiff initially attended Dr Darrer on the same day, complaining that he was sitting in his stationary van, intending to climb out of the van, when it was struck initially from behind and then on the side. The van was a write-off. There was no loss of consciousness. The plaintiff reported that he experienced “tightness in his left neck and some subtle paraesthesia in the left forearm” with examination revealing “slight tenderness in the left lower neck region. Full painless range of movement – slight discomfort on left neck rotation.” He was diagnosed to have a hyperextension injury to the neck and was treated with heat massage and minimal analgesics.[62]
[62]See exhibit Y, re-consultation on 24 October 2008
65 On 6 November 2008, Dr Darrer records that the plaintiff informed him that two days after the transport accident, he commenced experiencing pain in the medial aspect of his right knee and now had increasing pain. Dr Darrer noted the earlier diagnosis of torn right meniscus which “had been good for five to six months”. The plaintiff also gave a history that two days earlier when getting out of the van, the right knee “gave way”.
66 Dr Darrer referred the plaintiff back to Mr McCurdy, the physiotherapist, and also to the orthopaedic surgeon, Mr Robert Steele.
67 Mr Steele first conferred with the plaintiff on 9 December 2008. At that time, the plaintiff complained of difficulty with walking distances and lifting, and he also had associated swelling. He had no instability in the knee. Examination findings were of a small effusion present in the joint, together with mild medial peripatellar tenderness, as well as medium joint line tenderness. The cruciate and collateral ligament examinations were felt to be normal. He had a range of movement from zero to 130 degrees.
68 Mr Steele arranged for the plaintiff to undergo an x-ray of his right knee, together with an MRI scan of his right knee, both of which were undertaken on 7 January 2009. The x-ray revealed no evidence of significant joint disease and no large joint effusion. It was concluded by the radiologist that the MRI scan revealed:
“Full thickness chondral defect overlying the medial patellar facet. No loose intra articular body visualised.”[63]
[63]See exhibit 4 at page 119 JCB
69 Following the MRI scan, Mr Steele recommended the plaintiff undergo an arthroscopy to deal with the chondral injury seen on the MRI scan. Such surgery was undertaken on 10 February 2009. His findings, at that time, were of Grade 2 cartilage wear on the retropatellar surface with marked synovitis and softening of the articular cartilage of his lateral tibial plateau.
70 I do note that in a letter from Mr Steele to Dr Darrer dated 16 January 2009,[64] Mr Steele, in recommending the arthroscopy, noted that the plaintiff was “having ongoing symptoms with his knee, the knee collapses underneath him and he has pain with any shearing force across the knee”.
[64]See page 137 JCB
71 The plaintiff was reviewed by Mr Steele after the arthroscopy on 19 February 2009, when it was noted that, post-operatively, his wounds were well healed and his range of motion was returning. Furthermore, he was undergoing a physiotherapy program to strengthen his quads and hamstrings. The review on 19 February 2009 was the last review by Mr Steele prior to the second incident of injury on 9 April 2009.
72 Over the period from the date of the transport accident up to the second incident of injury on 9 April 2009, Mr McCurdy consulted with the plaintiff on 8, 11, 15, 22 and 29 November 2008, 22 January 2009, 5, 16, 20, 23, 25 and 27 February 2009, 3, 5, 11, 13, 16, 20, 27 and 30 March 2009, and 4 and 8 April 2009, the latter day being one day before the second incident on 9 April 2009.[65]
[65]See exhibit Z, pages 12/81 – 18/81
73 In a report dated 5 June 2009,[66] Mr McCurdy records that the plaintiff, when attending him on 8 November 2008 (after the transport accident), he was complaining of “significant right knee pain”. In particular, the plaintiff reported that he experienced a “significant twisting injury to the knee and felt immediate pain”. Mr McCurdy noted that on initial examination, the plaintiff reported medial right knee pain, along with symptoms of “giving away” when walking. At that time, the plaintiff was continuing his normal duties.
[66]See report of Mr McCurdy dated 5 June 2009, page 166 JCB
74 Mr McCurdy notes that the plaintiff was treated conservatively for a meniscal strain, and physiotherapy provided good pain relief. He also noted that as the plaintiff’s work continued, this tended to aggravate the condition further and he continued to report symptoms.
75 In particular, Mr McCurdy states:
“During this time, Larry reported significant difficulties with lifting some of the objects required at work and this increased his symptoms. On February 10 2008,[67] Larry underwent arthroscopic surgery by Mr Robert Steele.
Larry next attended physiotherapy post surgery about one week later and reported minimal pain and was able to walk unaided for short distances. He had restricted movement in the right knee and a fair contraction of the quadriceps muscle. Treatment during this stage concentrated on improving muscle contraction and obtaining good range of movement in the knee through manual techniques.
Larry has since returned to work over the last 10 weeks increasing to normal hours gradually whilst still maintaining a restriction on lifting weight. … .”[68]
[67]Clearly, from the context of the note, Mr McCurdy was referring to February 10, 2009
[68](Op cit) at page 166 JCB
76 I refer to several of the last consultations the plaintiff had with Mr McCurdy after the arthroscopy on 10 February 2009 and leading up to the second incident on 9 April 2009. In particular, I refer to the last several consultations:
(a) On 25 February 2009, Mr McCurdy records:
“Medial joint line pain with loading noticed after monday’s driving. walking OK just.
Management:
SOFT TISSUE THERAPY ULTRASOUND.”[69]
[69]See exhibit Z at page 15/81
(b) On 27 February 2009, Mr McCurdy records:
“Settled from Wednesday still in med[ial] j[oin]t pain.
Management:
SOFT TISSUE THERAPY ULTRASOUND.”[70]
[70]See exhibit Z at page 15/81
(c) On 3 March 2009, Mr McCurdy records:
“puffed up during day win last night
Management:
SOFT TISSUE THERAPY ULTRASOUND.”[71]
[71]See exhibit Z at page 16/81
(d) On 5 March 2009, Mr McCurdy records:
“Still puffy after work. Win last night.
Management:
SOFT TISSUE THERAPY
... .”[72]
[72]See exhibit Z at page 16/81
(e) On 11 March 2009, Mr McCurdy records:
“Sore ++ ? after work.”[73]
[73]See exhibit Z at page 16/81
(f) On 13 March 2009, Mr McCurdy records:
“Still sore yest.. all over.
More around knee … .”[74]
[74]See exhibit Z at page 16/81
(g) On 16 March 2009, the plaintiff had attended and was treated with soft-tissue therapy and ultrasound;
(h) On 18 March 2009, Mr McCurdy records:
“Better day.
Hep: squats, vmo
unable to lunge as at yet.”[75]
[75]See exhibit Z at page 16/81
(i) On 20 March, 2009, Mr McCurdy records:
“Keen for 3 days
Management:
SOFT TISSUE THERAPY
ULTRASOUND.”[76]
[76]See exhibit Z at page 17/81
(j) On 27 March 2009, Mr McCurdy records:
“Coped with 3 days until had to lift++
Swelling + +
today.”[77]
[77]See exhibit Z at page 17/81
(k) On 30 March 2009, the plaintiff was continuing to be treated with soft-tissue therapy and ultrasound;
(l) On 4 April 2009, Mr McCurdy records:
“just stiff and sore
still being careful
coped with 4our days
Management:
SOFT TISSUE THERAPY
ULTRASOUND.”[78]
[78]See exhibit Z at page 17/81
(m) On 8 April 2009, Mr McCurdy records:
“BEEN sore this week
after stairs yest..
Management:
SOFT TISSUE THERAPY
ULTRASOUND”[79]
[79]See exhibit Z at page 18/81
77 By way of supplementary affidavit sworn on 12 August 2016,[80] the plaintiff gives evidence that:
“I wish to add one thing to my previous affidavits, if this was not obvious already. That is that in between the 24 October 2008 incident and the 9 April 2009 incident, my knee never had time to heal or to return to normal. After the arthroscopy I had on 10 February 2009, it still felt a bit tender and I was ginger on my feet, even though I returned to work.”[81]
[80]See exhibit A at page 37 JCB
[81](Ibid) at page 38 JCB
78 The plaintiff lodged a Claim for Compensation against Toll pursuant to the provisions of the AC Act on or about 16 December 2008[82] wherein he claimed medical and like expenses and compensation for time off work. In that document, the plaintiff recorded that he ceased work on 24 October 2008, resuming on 29 October 2008.
[82]See pages 77 – 78 JCB
79 The plaintiff gave evidence that on his resumption of work, he went back to “normal duties”.[83] When queried by the Court whether there was any restrictions placed on his activities, the following evidence was given:
[83]See T163, L22-23
Q:And was there any restriction placed on you when you went back to your normal duties?---
A:I can’t recall whether they placed any restrictions on me there or just took it easy; I told them I was sore.
Q: And when you say ‘took it easy’, what - - -?---
A:If I had something heavy and I couldn’t handle it, I’d let them know and they would - yeah.
Q:Only answer this if it is correct. You essentially did your normal run, though, did you?---
A:Yes. We also have in our contract the ability, if we have something that is (indistinct) if you have got problems you’re allowed to go and approach your duty manager and they’ll cover it for you, have a discussion with them and they’ll cover it for you, so if it is extra heavy or - - -
Q:So in other words, if you saw something which normally you may have been able to cope with but because of your knee symptoms that you were experiencing, thought, ‘This might be a bit much today’, you could approach a manager and that could be sidelined to someone else?---
A: And they’ll cover it for you.”[84]
[84]T163, L24 – T164, L12
80 The plaintiff also gave evidence that from about November 2008, he was never required to lift anything over 15 kilograms. This was formalised with medical certificates.[85]
[85]T232, L25-29
81 Furthermore, Mr Steele, the treating orthopaedic surgeon, certified the plaintiff unfit for all duties from 10 February 2009 to 27 February 2009,[86] over which time the plaintiff underwent his first arthroscopy and rehabilitation from such surgery.
[86]See exhibit 12
82 On his return to work, he was supplied certificates from his treating physiotherapist,[87] Mr McCurdy, who certified as follows:
[87]See exhibit 12
(a) On 27 February 2009, he certified the plaintiff to be fit for modified duties for three days that week, being Monday, Tuesday and Friday only;
(b) On 6 March 2009, he certified the plaintiff to be fit for modified duties for two days on Tuesday and Thursday;
(c) On 13 March 2009, he certified the plaintiff to be fit for modified duties for only two days, being Tuesday and Thursday;
(d) On 7 April 2009, he certified the plaintiff fit for alternative duties from 3 April 2009 to 17 April 2009. The work restrictions involved avoiding heavy lifting and repetitive bending and only to work four days a week.
83 Counsel for both the TAC and Toll extensively cross-examined the plaintiff in respect of the transport accident and the state of his right knee over the period from the transport accident on 24 October 2008 up to when the second incident occurred on 9 April 2009.
84 Under cross-examination by counsel for the TAC, the plaintiff gave evidence that at the time of the transport accident:
(a) He did not go in the ambulance to hospital;[88]
[88]T159, L3
(b) He spoke to and exchanged contact details with the driver of the other vehicle;[89]
[89]T159, L4-6
(c) He spoke to the police at the scene of the accident;[90]
[90]T159, L4-6
(d) He telephoned his daughter, who attended to pick him up;[91]
[91]T159, L12-18
(e) He telephoned the depot, which resulted in Toll providing a relief vehicle;[92]
[92]T159, L12-18
(f) He spent approximately one-and-a-half to two-and-a-half hours at the scene of the accident;[93]
[93]T159, L19-23
(g) He assisted the driver of the relief vehicle to offload the freight and move it to the relief vehicle. He had a full load with still over fifty to sixty “drops” at the time that the accident occurred;[94]
(h) (As already recorded), he had a couple of days off work following the transport accident.[95]
[94]T159, L19 – T160, L16
[95]T163, L22-23
85 When queried by the Court as to what pain he was suffering in his right knee prior to the incident on 9 April 2009, the following evidence was given:
Q:“Can I ask you this: you have talked, obviously, about the car accident or the motor vehicle accident on 24 October 2008?---
A:Yes.
Q:And you’ve got your right knee injury. From that point there’s pain and you undergo surgery and then I think we established on Friday that prior to 9 April you’d only been back at work building up, as it were, the hours?---
A:Yes.
Q:What I want to know initially is from 24 October 2008 up to 9 April 2008[96] (sic) just up to before that time, the pain in your knee, did it improve a bit over time after the surgery or was it a downhill slide always?---
[96]That should read “2009”
A:It’s too close to decide whether it was an increase - well, it was because I was back at work on light duties.
Q:And you’re suffering pain - - -?---
A:No, the pain wasn’t increasing, it was gradually getting better.
Q:The pain was improving?---
A:The pain was there, the pain was definitely there from the first accident.
Q:But improving?---
A:But improving, so I was back at work on light duties, yeah.
Q:So have I got this right to say then, from 24 October, yes, pain in your knee, the surgery, or surgeries, and then you get back to work and things are generally improving?---
A:Yes.”[97]
(my emphasis).
[97]T243, L26 – T244, L16
86 In particular, counsel for Toll cross-examined the plaintiff as to whether he had stumbled or fallen as a result of his right knee injury over the period from the transport accident up to 9 April 2009. Counsel for Toll premised his questions on the basis:
(a) of the letter from Mr Steele to Dr Darrer dated 16 January 2009 in which he reports the plaintiff complaining of ongoing symptoms with “the knee [collapsing] underneath him”;
(b) the history obtained by Dr Darrer on 6 November 2008 that the plaintiff’s leg “gave way”; and
(c) the history given to Mr McCurdy on 8 November 2008 that the plaintiff suffered right knee pain, together with symptoms of “giving away” when walking.
87 I refer to the following evidence:
Q:“I suggest to you that is what you told Mr McCurdy on that day?---
A:No. Look, it wouldn’t have been giving way with weight.
Q:So he’s just wrong about that, is he?---
A:Well, possible, because he might have had a miscrue (sic) with something else. I couldn’t carry my own weight. I didn’t want to indistinct) from there.
Q:I’m sorry?---
A:I couldn’t put me own weight on it without it being sore. He might have miscrued (sic) it from there.
Q:So Mr McCurdy’s got it wrong, has he, in relation to your knee giving way?---
A:Maybe his interpretation of it. You know, I couldn’t put me own weight on it, I couldn’t load bear it.
Q:So you couldn’t load bear on the ankle in November - - -?---
A:Yeah, but it wasn’t giving way.
Q:All right. When you say, ‘I couldn’t load bear with it’, what do you mean by that?---
A:Well, if I put weight on it, it caused me to limp. It was too sore to walk on it properly without having pain there.
Q:Did it buckle? Did it give way?---
A:No.
Q:Then on the earlier entry, you agree with me in relation to what doctor - if I could take you back to 179 of that book. This is going back to the GP, Dr Darrer?---
A:179, yep.
Q:Down the bottom, where he’s recorded - down the bottom of 179. ‘Mr Pilkington stated that he got out of the van two days ago, on 4 November 2008, and his right knee suddenly gave way.’ I think you agreed with me in relation to that?---
A:That is what it says here, yes.
Q:And that is what you told the doctor, wasn’t it, that your knee suddenly gave way?---
A:I really don’t know that that is what I said to him. It might be just my interpretation of it by giving way. I might have just said it was very sore and I couldn’t put weight on it and I said, ‘Look, I just can’t weight bear, it will give way on me’, it might be just my interpretation of it or the way I explained it to him and he’s taken the concept - - -.”
HIS HONOUR:
Q:“How were you getting about at this stage in November 2008? Did you need the assistance of a walking stick or a crutch or anything?---
A:Sorry?
Q:Did you need the assistance at this time, in November 2008, following the motor vehicle accident, and when you start to develop pain a couple of days after the motor vehicle accident and you’re going to Dr Darrer and the physiotherapist, you’ve described how you believe it’s not the case that your knee was giving way in the sense of collapsing, but you said you couldn’t weight bear on it. Did that mean you had the assistance of a crutch or a stick or - - -?---
A:No.
Q:You didn’t need that?---
A:No.
Q:I see?---
A:Just sore, sore and painful.”
MR McKENZIE:
Q:“If you did put your weight on your knee, going back to November 2008, if you did weight bear on that right knee, what happened to your right knee?---
A:It would just get very sore and very tender and I’d sort of limp along with it or - I’d generally go home and put a lot of ice on it and settle it down or rub some Voltaren into it until it got to the stage where it was just too sore to do much with it and they referred me on to Mr Steele and all that, and I got the MRIs done and hence it developed into an arthroscope in February. So for that couple of month period from the accident, January-February, I went through a lot of pain, even more so after the second one.
Q:And when you saw Mr Steele - this is at p.137 of that book - this is a letter from Dr Steele back to Dr Darrer. The first time you see him is on the previous page, but this time is on 16 January 2009?---
A:Yep.
Q:And he says, ‘I reviewed Mr Pilkington on 15 January with the result of his MRI. Unfortunately, the MRI shows a full thickness chondral injury in the medial facet of his patella. Given that he is having ongoing symptoms with his knee, the knee collapses underneath him and he has pain with any sheering force across the knee.’ You told Mr Steele that on 16 January 2009, didn’t you?---
A:Yes.
Q: And you told him that the knee collapses underneath you, didn’t you?---
A:Yes, won’t hold me weight. Not collapse and fall over, it just wouldn’t hold my weight. I just couldn’t load bear on it.”
HIS HONOUR:
Q:“Just explain to me what - I know collapses can have a variety of meanings, perhaps, in this context, but I think you just said when you talk about collapsing, the way it is used there, you’re not saying that collapsing – that you’re walking and when the knee collapses, it causes you to - - -?---
A:Fall over.
Q:- - - drop to the ground?---
A:No, not like that at all.
Q:But when you go to put weight on it, rather than the knee taking your normal weight, the knee gives way to some degree, does it?---
A:Yeah, I just couldn’t stand on it.
Q:Is that what you’re meaning?---
A:Yeah, that’s what I’m meaning of it. Not falling over from it, just not being able to load bear it.”
MR McKENZIE:
Q:“We might be at cross-purposes there. I’m not suggesting that on 4 November 2008 you’re telling the GP that you were falling over because of your knee, or on 8 November 2008 you were telling the physio that you were falling over because of your knee. I just want to clarify. What you were telling in November of 2008 was that your knee was collapsing if you put load on?---
A:Yeah, I couldn’t stand on it.
Q:The way you have described to Mr Steele?---
A:I could not stand on it, yeah.
Q:And if you did put weight on it, it would give, the knee would give?---
A:Yeah, it felt like it wanted to give way and I was going to tumble, but I never tumbled, I never put enough weight on it. I just kept off it, simple as that.
Q:But it felt - you could feel it giving way?---
A:Yeah, I started wearing a knee brace, an elasticised one, to support it.
Q:And that was something that you continued to experience, wasn’t it?---
A:Yes.
Q:That feeling of the knee giving way or the feeling - the knee giving way?---
A:Yes.
Q:I don’t want to put any words in your mouth - but you didn’t fall; is that right?---
A:No.”[98]
(my emphasis).
[98]T210, L23 – T214, L9
88 Under re-examination, the plaintiff confirmed that situation, when the following evidence was given:
Q:“After the first operation, but before you had the incident at Toll unloading your van - I know it wasn't that long - but after the first operation and before then, were there periods of time where your knee would collapse on you for no apparent reason?---
A:No, not collapse. I would get some aggravation from it or get a bit wobbly. It had never totally collapsed on me at all. And it was only a very short time from back at work until the second accident, so I never really got to test it. I was trying to ignore the pain.”[99]
[99]T291, L16-25
The incident on 9 April 2009
89 In his first affidavit, the plaintiff describes the circumstances of his second incident of injury – on 9 April 2009 – in the following terms:
“On or about 9 April 2009, in the course of my usual employment duties, I was exiting a delivery van, via the rear exit door, when I stepped down and tripped on a[n] item placed on the floor immediately outside of [the] rear door of the van … .”[100]
[100]See exhibit 1, paragraph [18], at page 12 JCB
90 During his evidence-in-chief, the plaintiff expanded on the circumstances surrounding such incident. I refer to the following evidence:
Q:“Just in terms of this incident, were you in the process of getting out from your van on to the floor?---
A:Yes, I was in the front of my van, my left foot kneeling down, and as I stepped back, I put my left foot down in the handle of it and somehow the weight of the bag and me foot was tangled up in the handles of it and I went backwards and I put my right leg back to catch my body weight and stop flying and it buckled to one side and I went down on my knee and my hand.”[101]
(my emphasis).
[101]T55, L21-29
91 Later, the following evidence was given:
Q:“And in this incident in April 2009 you say you lost your balance because your left foot was stuck?---
A:Yes.
Q:And you put your right leg out to support you?---
A:Yes. It buckled to one side. I couldn’t support myself, my own weight.
Q:Why couldn’t you support yourself?---
A:Me (sic) knee was weaker from the operation and the accident I had in October and I was still on light duties, I was on restricted duties, still getting physio treatment.
Q:And in terms of the symptoms you experienced in your knee, were they affected by this buckling?---
A:Yes, it increased and kept working on restricted duties and as work progressed, it just kept getting sorer and sorer and I said it’s not happening, so I went back to the physio, he referred me back on to Mr Steele, who done another MRI.”[102]
(my emphasis).
[102]T56, L18 – T57, L1
92 Also, I also refer to the following evidence:
Q:“In the months before this incident, when you were working, had your knee buckled like that?---
A:No.
Q: Had it ever buckled like that before?---
A: No.”[103]
(my emphasis).
[103]T57, L12-14
93 An Incident/Hazard Report was completed by an officer of Toll on 14 September 2009 in respect to an incident on 9 April 2009 at about 6.30am. The document notes that the incident was reported to Mr Peter Ryan – Zone Manager – and occurred in the driver loading bay.[104]
[104]See Incident/Hazard Report at pages 480-481 JCB
94 On or about 1 September 2009, the plaintiff completed a Claim for Compensation in respect of the incident on 9 April 2009.[105] In that Claim Form, the plaintiff says that he has suffered a “torn muscle right knee”. Furthermore, when queried as to what happened and how he was injured, the plaintiff states “loading vehicle” and “tripped in depot and put right leg back to catch balance and twisted my leg”.
[105]See Claim Form at pages 83-84 JCB
95 The plaintiff also confirms that he reported such incident to the duty manager, Mr Peter Ryan. The plaintiff also records that he ceased work on 21 August 2009 and continued to be off work at the time of the lodging of the Claim Form.
96 On 31 August 2010, the plaintiff was notified by solicitors acting on behalf of Toll wherein, amongst other things, he was advised that Toll accepted liability for the right knee injuries suffered by him on 24 October 2008 (the transport accident) and the incident on 9 April 2009.[106]
[106]See letter dated 31 August 2010 at pages 87 – 95 JCB
97 The plaintiff attended Mr McCurdy on 17 April 2009, at which time Mr McCurdy reported a history:
“Jarred at work … saw again +”
Management consisted of soft tissue therapy mobilisation.”[107]
[107]See exhibit Z at page 18/81
98 The attendance on 17 April 2009 was a pre-arranged consultation and one of the ongoing various consultations with Mr McCurdy, the last being on 8 April 2009, one day prior to the second incident. The records of Mr McCurdy indicate that he saw the plaintiff frequently throughout 2009, 2010, 2011, 2012 and, on some occasions, in 2013, during which year, the plaintiff was advised that there would be no more funding for physiotherapy.
99 In a report dated 10 November 2009,[108] Mr McCurdy states, in part:
“Mr Pilkington attended for physiotherapy on November 8 2008 reporting significant right knee pain. Larry has been rehabilitating post arthroscopic right knee surgery for an injury sustained in November 2008.
In April of this year, Larry was working largely normal hours with restricted duties as a courier. He attended my clinic for [a] routine physiotherapy session and reported another incident at work where he felt an increase in his right knee symptoms. I treated Larry for these symptoms and attempted to settle his condition conservatively. When this failed to fully settle his symptoms, I advised Larry to review with orthopaedic surgeon, Mr Robert Steele on July 9 2009.”
(my emphasis.)
[108]See exhibit 5 at page 169 JCB
100 As I have already recorded, Mr Steele last saw the plaintiff on 19 February 2009. He, again, consulted with the plaintiff on 9 July 2009 on referral from Mr McCurdy. In a report dated 14 July 2009,[109] Mr Steele states, in part:
[109]See exhibit 5 at page 140 JCB
“At Mr. Pilkington’s next review on the 9th July 2009, he reported that his knee was giving him ongoing pain particularly on the medial aspect of the joint. He had no locking, catching or swelling. He had returned to work approximately six weeks following the surgery and had gradually increased to full duties. He did mention an incident at work around Easter time. He was stepping out of the back of his van and landed awkwardly as he was trying to avoid a bag which had been left at the back of the van due to a staff shortage.
Examinations findings were a postero-medial joint line tenderness otherwise unremarkable.
Given that his knee has failed to settle fully I ordered a repeat MRI scan for him.[110]
I reviewed Mr. Pilkington on the 21st July with the result of the MRI scan. The scan confirmed a tear of the posterior horn of the medial meniscus and also a fine tear of the anterior horn at the lateral meniscus. Both look to be new pathology. The chondral injury on the retropatellar surface that we saw at arthroscopy is also seen on the scans. A copy of the result of the scan is enclosed.
I advised Mr. Pilkington that we should proceed with an arthroscopy and I have written to Toll to ask that liability be accepted in writing for approval of such … .”[111]
Originating Motion Number CI-14-02571
236 The issue to be determined is whether the incident on 9 April 2009, when the plaintiff was unloading his van, gives rise to a “serious injury” within the meaning of the AC Act. Those acting for Toll joined with those acting for the plaintiff, submitting that the transport accident on 24 October 2008 was a cause of further impairment on 9 April 2009. As I have already recorded, I accept such submission.
237 Seemingly, in the alternative, Toll submit that although the incident on 9 April 2009 may have aggravated the pre-existing right knee injury suffered on 24 October 2008, the extent of any aggravation did not satisfy the requirements of Petkovski v Galletti,[207] reinforced by the decision of AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[208] In this sense, those acting for Toll submitted that the incident on 9 April 2009 was effectively a continuation of the same symptomology suffered by the plaintiff in the transport accident on 24 October 2008.
[207]Op cit
[208]Op cit
238 I reject such submission on two bases. First, as I have already recorded, I see no legal reason why the transport accident of 24 October 2008 can be a cause of such incident and also that the incident can be a serious injury if it is established that the extent of the aggravation brought about by the incident on 9 April 2009 satisfies the requirements of Petkovski v Galletti.[209] Secondly, I reject the submission that the incident on 9 April 2009 was essentially a continuum of the symptoms suffered by the plaintiff since the transport accident on 24 October 2008.
[209]Op cit
239 As I have already found, I consider that the plaintiff was improving both in his symptoms, mobility and function prior to the incident on 9 April 2009. I consider that that incident aggravated the pre-existing right knee injury significantly, causing a dramatic increase in symptoms, increasing time off work leading to a second arthroscopy on 24 August 2009.
240 Of course, for the purposes of whether the plaintiff suffered a serious injury as a result of the incident on 9 April 2009, it does not matter as to how the plaintiff suffered the aggravation of the pre-existing knee injury so long as such aggravation of the pre-existing condition arose out of, or in the course of, his employment with Toll. On that issue there is no dispute.
241 After a consideration of all of the evidence, I have come to the view that the incident on 9 April 2009 resulted in an aggravation of the plaintiff’s pre-existing knee condition, and the extent of that aggravation gave rise to consequences which are “serious” within the meaning of s134AB of the AC Act. I have come to such view for the following reasons:
(a) The plaintiff described a significant increase in his right knee symptoms following the incident on 9 April 2009 which did not abate, causing Mr McCurdy to refer the plaintiff back to Mr Steele, who further consulted with the plaintiff on 9 July 2009. The plaintiff was complaining of ongoing pain on the medial aspect of the joint;
(b) Although the MRI scan on 21 July 2009 suggested a tear of the posterior horn of the medial meniscus and also a fine tear of the anterior horn of the lateral meniscus (which was initially considered to be a new pathology), the arthroscopy on 24 August 2009 revealed similar findings as the earlier MRI scan with cartilage damage on the retropatellar surface. There was no meniscal tearing;
(c) Following the incident on 9 April 2009, the plaintiff experienced pain and swelling in his right knee, causing him to cease work and a short time thereafter, experienced only half days on restricted light duties, although building up over time his hours but struggling with some pain. Furthermore, the plaintiff was totally off work from 21 August 2009 until January 2010, during which time he had the second arthroscopy and recovered. In particular, when he did return to work in January 2010, he began to experience increased pain in his knee and the knee began to lock up and he was unable to straighten the knee or leg;[210]
[210]See exhibit 1 at paragraph [23] at page 12 JCB
(d) Throughout this period of time, the plaintiff was attending his treating physiotherapist, Mr McCurdy, who reported that after his return to work in January 2010, the plaintiff was reporting increasing general soreness, particularly after getting in and out of the car at work and climbing stairs. The plaintiff also reported that he was trying to remain cautious of lifting heavy objects but the repetitive nature of the work continued to worsen his symptoms, which impacted on his preferred activities of daily living such as gardening and fishing. In particular, the plaintiff also reported to Mr McCurdy episodic “locking” incidents of his right knee that leaves him incapacitated for a few hours, after which there is an increase in pain symptoms over the next few days;
(e) The plaintiff was referred back to Mr Steele on 29 September 2011, at which time the plaintiff was complaining of increasing pain in his right knee over the last couple of months and his quality of life had deteriorated – he could no longer easily jump onto his boat or go fishing, walk up and down streams to do his fly fishing or walk on uneven ground. Mr Steele noted that there had been no incidents, no new injury or fall since the incident on 9 April 2009;
(f) As I have recorded already in this Judgment, the plaintiff gave unequivocal evidence that any locking up or falling down as a result of his knee condition occurred after the incident on 9 April 2009;
(g) Of course, as time has gone on, the plaintiff has required injections of Synvisc and on occasion different medications to help deal with his knee condition.
242 Although I accept that the plaintiff had continued to work with Toll up until after the incident on 1 October 2013 and that he had always suffered some diminution in capacity ever since the transport accident on 24 October 2008, I consider that both his symptoms, signs and restrictions (particularly the falling down and the locking of the knee) demonstrate a material worsening of his right knee condition which satisfies the test set out in Petkovski v Galletti.[211]
[211]Op cit
243 In particular, I find that the incident on 9 April 2009 arose out of, or in the course of, his employment with Toll on or after 20 October 2009 and that such injury resulted in a permanent impairment of the right knee. Before discussing any consequences of permanent impairment, I also find that the injury on 9 April 2009 was a cause of him falling down on 1 October 2013, at which time he injured his left ankle.
244 I am also satisfied that the incident on 1 October 2013 which was caused by the compensable incident on 9 April 2009 has given rise to a permanent impairment of the left ankle in the terms as described by Associate Professor Elton Edwards. For the same reasons advanced earlier in this Judgment, I consider that the impairment of the right knee has given rise to organic pain and suffering consequences which, when judged by a comparison with other cases in the range of possible impairments, as the case may be, [can be] … fairly described as being more than significant or marked and as being at least very considerable.
245 Similarly, I consider that the left foot impairment results in pain and suffering consequences which, when judged by a comparison with other cases in the range of possible impairments, as the case may be, [can be] … fairly described as being more than significant or marked and as being at least very considerable.
246 After a consideration of all of the evidence, I have also come to the view that both the impairment of the right knee and the impairment of the left ankle and foot have each given rise to pecuniary loss consequences which satisfy the requirements of s134AB(38) of the AC Act.
247 In their written submissions, both counsel referred to exhibit 14 which sets out the gross payments of the plaintiff for the financial years from 2005-2006 to 2013-2014, together with amounts which represent such payments, less expenses. Both counsel for Toll and counsel for the plaintiff refer to the financial year 2011-2012 where it is recorded that the plaintiff had gross earnings of $91,840.00 with net earnings (that is, less expenses) of $61,970.00. Sixty per cent of that figure is $37,182.00 or $714.00 gross per week.
248 Toll submit that the plaintiff is fit for “suitable employment” within the meaning of the AC Act and in particular, rely on the report from IPAR dated 3 December 2015.[212] In that report, it is recommended that the plaintiff would be capable of:
[212]See exhibit W at pages 539-551
(a) Performing work as a stock clerk, earning $901.00 gross per week;
(b) Despatch and receiving clerk, earning $1,150.00 gross per week;
(c) Warehouse administrator, earning $1,102.00 gross per week;
(d) Enquiry clerk, earning $1,000.00 gross per week.
249 As counsel for the plaintiff in their written submission points out, the plaintiff needs to be found capable of working the following number of hours in each position (rounded up) in order to exceed his 60 per cent figure at $714.00 gross per week:
(a) 31 hours per week or more as a stock clerk;
(b) 24 hours per week or more as a despatch or receiving clerk;
(c) 28 hours per week or more as a warehouse administrator;
(d) 24 hours per week or more as an enquiry clerk.
250 I refer to the definition of “suitable employment”, which states:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker’s pre‑injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker … .”
251 Counsel for the plaintiff referred to the Court of Appeal decision of Aluthgamage v Select Care Personnel Pty Ltd[213] where it was noted that practical considerations set out in the definition of “suitable employment” contained in the Act should be taken into account, including the worker’s level of education, age, technological literacy and capacity for retraining. In particular, it was stated:
“By virtue of the definition of ‘suitable employment’ found in s 5(1) of the Act, regard is required to be had to ‘the nature of the worker’s pre-injury employment’ and ‘the worker’s age, education, skills and work experience.’ As at the date of trial, the appellant was 69 years of age. She had worked as a qualified nurse in a number of countries for more than 40 years. She was plainly qualified to continue working in that capacity but, equally, faced difficulties in obtaining employment in other areas of work. Her evidence at trial was that she could not return to the type of light administrative nursing work envisaged by Mr Dooley because she did not have computer skills. I accept that having regard to her pre-injury employment, her age, education, skills and work experience, the appellant had no practical capacity for suitable employment after her attempts to return to nursing. Her age effectively precluded successful retraining. No submissions were made to the contrary on behalf of the respondent.”[214]
[213](2012) 35 VR 494 at paragraph [47]
[214](Ibid) at paragraph [47]
252 As I have already recorded, the plaintiff is a sixty-five-year-old man of limited education who has only worked in jobs requiring a certain degree of physical fitness and has never worked in any type of clerical position inside an office or factory. Over the years, Toll never promoted him to any position or offered him any such position of a clerical nature.
253 The plaintiff has been on payments since ceasing work in or about January 2014. During such time, such payments have continued for no work incapacity and there has been no attempt by Toll to offer him any employment within its own organisation or indeed, make any arrangements for him to be retrained in any particular capacity. It is to be noted that the plaintiff himself attempted a computer course and only got through the first part as he “could not get [his] head around it”.[215]
[215]T288, L19
254 The report from Toll considers only the plaintiff’s capacity in light of his right knee impairment and expressly disclaims any consideration of the left ankle injury as the right knee was considered to be the only compensable condition. Furthermore, seemingly, the only independent medical opinion relied on by the writer of the IPAR report was the examination by Dr Kostos, the rheumatologist, who found that the left ankle injury was not compensable.
255 I also note that the physical demands of stock clerk, despatch and receiving clerk, and warehouse administrator particularly involve, amongst other matters, the following:
(a) Employees to frequently walk and or stand around the work area to verify cargo and examine shipping documents;
(b) Bending, squatting or crouching may be required occasionally, for example when inspecting goods.
256 Moreover, the job of a warehouse administrator typically involves employees frequently sitting at a computer workstation while completing the clerical tasks required. The job of enquiry clerk typically includes employees occasionally to frequently be standing and walking about the office to facilitate the collection of resources, carry out research and meet with customers, and involves including a sound level of recording, organisation and communication skills.
257 I consider, based on the opinion of Associate Professor Elton Edwards, the plaintiff only has a very limited capacity to perform work as a result of his left ankle injury. It is to be noted that Associate Professor Edwards was of the opinion that the plaintiff suffers very significant pain in his ankle and has no current capacity for his pre-injury employment and would only have a limited capacity for any alternative employment which would need to be sedentary, with minimal walking and standing intervals required. It is also to be noted that the plaintiff has no experience whatsoever performing clerical work and clearly, has only very little knowledge of the workings of computers. Although theoretically, the plaintiff may have some capacity to perform some limited hours per week, I am not satisfied that he would have the capacity to perform any of the jobs nominated by Toll to the extent that he would earn more than $714.00 gross per week.
258 Similarly, for completeness, I am also of the opinion that the right knee impairment also prevents the plaintiff earning anything like $714.00 gross per week in so-called suitable employment. I should add that the very nature of such employment, I consider to be unsuitable for the plaintiff, given his industrial background, his dislike of working indoors and his lack of clerical skills.
259 I consider it impractical that a man who is now sixty-five years of age, with limited education, who has only largely worked in the outdoors, performing physical work relying on his legs to a large part to access staircases and deliver freight to various places in the suburbs, could realistically work full time in the jobs nominated, given his injuries. Although I appreciate each impairment must be considered separately, practicality dictates that the person must be taken as a whole when considering what is suitable employment.
260 Those acting for Toll also submit that:
(a) The plaintiff had not discharged his onus for the purpose of proving a loss of earning capacity, his inability to be retrained or rehabilitated or undertake suitable employment.
I reject such submission. Toll are paying this man weekly payments of compensation as for total incapacity and at no time have offered him any employment in what must be a large organisation, or suggested or provided any retraining or rehabilitation to be undertaken so as to make the plaintiff re-employable. Indeed, Toll has kept the position of the plaintiff open and indeed, apparently has advised him that if he improves his physical condition, that is, improves his left ankle condition and right knee condition, he would have the prospect of returning to work with Toll. The critical issue is that Toll will not allow the plaintiff to be physically employed and saw fit to bring his work to an end, and have continued to make weekly payments of compensation over the years. Furthermore, I consider that it would be impractical to expect a sixty-five-year-old to be retrained with his industrial and education background.
(b) Similarly, counsel for Toll submits that the plaintiff has not discharged his onus under s134AB(38)(g), in that he has not reasonably attempted to participate in any rehabilitation or retraining to improve his capacity for employment or alternative employment.
I refer to and repeat what I said in relation to what has occurred since the plaintiff has been on payments, and further note that the plaintiff has privately attempted one computer course which he could not cope with. I reject such submission.
(c) Counsel for Toll also submitted that the plaintiff gave evidence that there was a job at Toll Freight Enquiries which he thought would be suitable[216] and for which he would be paid “significant wages”. The evidence establishes that at no time has Toll offered that job to the plaintiff despite that it continues to pay the plaintiff weekly payments of compensation and is under the statutory obligation to attempt to facilitate a return to work. The plaintiff stated that he had been liaising with Toll’s WorkCover agent[217] and that he said that Toll considered him to be an occupational health and safety risk.[218] It is of some significance that Toll has continued to pay weekly payments of compensation beyond the expiry of the second entitlement period. The plaintiff has been assessed by Toll as having “no current work capacity, and likely to continue indefinitely to have no current work capacity”.
[216]See T272-273
[217]Mr Cliff Vengtasamy
[218]T288, L9
261 In all of the circumstances, I do not accept any submission that the plaintiff has been unreasonable but rather, in appropriate circumstances, I gained the impression that the plaintiff would give some job “a go”. I ultimately consider that given his age, education and industrial background, coupled with the ongoing impairments to his right knee and left ankle, there is little employment to which the plaintiff could realistically return to other than perhaps Toll offering some type of work, which has not been forthcoming.
262 In all of the circumstances, I am of the opinion that the plaintiff has discharged his onus in establishing that each of the impairments give rise to pecuniary loss consequences which satisfy the requirements of the Act.
263 Accordingly, I will grant leave to the plaintiff to claim pecuniary loss damages in respect to the injuries suffered by him during the course of his employment on 9 April 2009 which was a cause of a further incident of injury on 1 October 2013, all of which gave rise to permanent impairment of his right knee condition and left foot condition, both of which independently give rise to pain and suffering consequences which are “serious” within the meaning of the Act, and also pecuniary loss consequences which, again, satisfy the requirements of the Act.
264 Accordingly, I make the following orders:
(1) In relation to Originating Motion number CI-13-05413, leave is given to the plaintiff pursuant to s93(4)(d) of the Transport Accident Act 1986 to bring common law proceedings to recover damages for injuries to his right leg (particularly the right knee) and the left leg (particularly the left ankle) in relation to the injuries suffered by him arising out of a transport accident on or about 24 October 2008, which was a cause of the incidents on 9 April 2009 and 1 October 2013;
(2) In relation to Originating Motion number CI-14-02571, leave is given to the plaintiff pursuant to s135AB(16)(b) of the Accident Compensation Act 1985 to bring common law proceedings for pain and suffering damages and pecuniary loss damages for injuries to his right leg (particularly the right knee) and the left leg (particularly the left ankle) in relation to the injuries suffered by him arising out of and in the course of his employment with Toll Holdings Pty Ltd on 9 April 2009, which was a cause of the incident on 1 October 2013.
265 I will hear the parties on costs.
ANNEXURE “A”
1 The plaintiff tendered the following material:
Exhibit 1
·Affidavits of the plaintiff sworn 18 February 2014, 2 February 2015, 26 November 2015, 26 February 2016 and 12 August 2016
·Affidavit of Vincent Bevilacqua sworn 29 January 2015
·Affidavit of William Curtis sworn 5 February 2015
·Affidavit of Cassy Pilkington sworn 23 February 2015
·Affidavit of Nicola Pilkington sworn 24 February 2015.
(All such documents are found at pages 9‒59 of the Joint Court Book (“JCB”)).
Exhibit 2
· Victoria Police Collision Report dated 24 October 2008
· Worker’s Injury Claim Form dated 16 December 2008 together with Employer Injury Claim Report dated 22 December 2008
· Worker’s Claim for Impairment Benefits Form dated 26 April 2010
· Worker’s Injury Claim Form dated 1 September 2009
· Worker’s Claim for Impairment Benefits Form dated 26 April 2010
· Section 104B(2) Notice dated 31 August 2010.
(All such documents are found at pages 75‒95 JCB).
Exhibit 3
· Notice regarding “entitlement to weekly payments and medical and like expenses” dated 17 March 2015.
(Document found at pages 113‒115 JCB).
Exhibit 4
·MRI scan and x-ray of the right knee dated 7 January 2009
·MRI scan of the right knee dated 13 July 2009
·X-ray of both knees dated 19 October 2010
·X-ray of both knees dated 1 July 2011
·MRI scan of the right knee dated 7 October 2011
·X-ray of the left foot dated 3 October 2013
·Ultrasound of the left heel dated 4 October 2013
·Ultrasound of the left ankle dated 4 November 2013
·CT scan of the left foot dated 14 February 2014
·X-ray of the left ankle and foot dated 14 May 2014
·MRI scan of the left ankle dated 17 June 2014
·MRI scan of the left ankle dated 7 May 2015
·X-ray of the right knee dated 15 September 2015.
(All such documents are found at pages 119‒133A JCB).
Exhibit 5
·Medical reports of the rheumatologist, Dr Mark Patrick, dated 4 February 2006 and 6 March 2006
·Reports of the initial treating orthopaedic surgeon, Mr Robert Steele, dated 10 December 2008, 16 January 2009, 25 February 2009, 13 July 2009, 14 July 2009, 23 July 2009, 15 September 2009, 30 November 2009, 22 September 2011, 6 October 2011, 21 October 2011, 14 December 2011, 21 February 2012, 14 May 2012, 22 November 2012, 12 February 2013, 1 August 2013, 1 November 2013, 12 December 2013, 3 June 2014, 4 July 2014 and 27 October 2014
·Reports of the treating physiotherapist, Mr Tim McCurdy, dated 5 June 2009, 10 November 2009 and 20 September 2011
·Reports of the treating general practitioner, Dr Des Darrer, dated 6 November 2008, 1 December 2008, 30 September 2010, 22 October 2010, 24 December 2010, 26 August 2011, 30 August 2011, 9 February 2012, 11 May 2015, 12 May 2015 and 28 August 2015
·Reports of the treating osteopath, Dr Kellie Wapshott, dated 11 February 2014, 19 March 2015, 7 May 2015 and 1 September 2015
·Reports of the treating podiatrist, Mr Cable Mills, dated 18 October 2013, 2 May 2014 and 21 April 2015
·Reports of the treating specialist, Associate Professor Elton Edwards, dated 25 February 2014, 14 May 2014, 23 June 2014, 9 February 2015 and 12 October 2015
·Reports of the treating orthopaedic surgeon (taking over from Mr Steele), Mr Rabi Solaiman, dated 12 January 2015, 27 January 2015, 7 September 2015, 28 September 2015, 1 April 2016 and 6 May 2016.
(All such documents are found at pages 134–236F and 444–449 JCB).
Exhibit 6:
·Medico-legal reports of the orthopaedic surgeon, Mr Owen Deacon, dated 8 July 2011 and 22 July 2011
·Medico-legal reports of the orthopaedic surgeon, Mr Russell Miller, dated 25 February 2013, 13 October 2014, 7 July 2015 and 28 January 2016
·Medico-legal reports of the orthopaedic surgeon, Mr Douglas Gardiner, dated 12 May 2015, 22 June 2016 and 20 July 2016.
(All such documents are found at pages 237–272 and 291–313 JCB).
Exhibit 7:
·Incident Hazard Reports of 24 October 2008 and 9 April 2009.
(Documents found at pages 478–481 JCB).
Exhibit 8:
·Report of Ms Annette Webster dated 10 August 2016.
(Document found at pages 314–327 JCB.)
Exhibit 9:
·Email from Toll Priority to Clifford Vengtasamy dated 27 July 2012.
(Document found at pages 486–487 JCB).
Exhibit 10:
·Incident Notification Report dated 14 October 2013.
(Document found at pages 497–500 JCB).
Exhibit 11:
·Bundle of photographs.
Exhibit 12:
·Certificates of Capacity from Mr Tim McCurdy, physiotherapist, concerning examinations running from 5 February 2009 to 14 July 2009.
Exhibit 13:
·File note entered by Khan Geon and Dr Amanda Sillcock documentation.
Exhibit 14:
·Document headed ‘Income Summary’.
2 The Transport Accident Commission tendered the following material:
Exhibit A:
·The report of the orthopaedic surgeon, Mr Ian Jones, dated 29 July 2010
·Medico-legal reports of the general surgeon, Associate Professor Anthony Buzzard, dated 4 July 2011, 8 January 2012 and 18 May 2012
·Medico-legal reports of the orthopaedic surgeon, Mr Iain McLean, of 22 December 2014, 4 November 2015 and 6 July 2016.
(All such documents found at pages 337–343 and 353–391 JCB).
3 Toll tendered the following material:
Exhibit Z:
·Notes of physiotherapist, Dr McCurdy, running from pages 1–81.
Exhibit Y:
·Bundle of notes of the treating general practitioner, Dr Darrer.
Exhibit X:
·Medico-legal reports of the orthopaedic surgeon, Mr J Kendall Francis, dated 23 September 2009 and 9 November 2009
·Medico-legal reports of the rheumatologist, Dr Tony Kostos, dated 18 June 2014, 15 April 2015, 5 May 2015 and 19 May 2015
·Medico-legal reports of the orthopaedic surgeon, Mr Iain Kelman, dated 12 February 2013, 7 October 2013 and 8 March 2016.
(All such documents found at pages 328–336 and 392–443 JCB).
Exhibit W:
·Incident Hazard Reports dated 20 January 2010, 27 July 2012, 24 April 2013, 1 October 2013
·Various Earnings Reports from 5 April 2015 to 10 January 2016 from two comparable employees
·An undated Incident Notification Form.
(All such documents found at pages 482–485, 488–491, 509–514 and 536–538 JCB).
Exhibit V:
·130-Week Vocational Assessment Report dated 3 December 2015.
(Document found at pages 539–551 JCB).
Exhibit U:
·A Worker’s Injury Claim Form dated 31 July 2012, together with an Employer Injury Claim Report dated 3 August 2012
·A Worker’s Injury Claim Form dated 25 October 2013, together with an Employer Injury Claim Report dated 31 October 2013.
(Documents found at pages 105–112 JCB).
15
0