R v Henare
[2009] VCC 862
•23 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-00822
| MAURICE RIGA | Plaintiff |
| v | |
| BATTMANS INSULATING SERVICES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 June 2009 |
| DATE OF JUDGMENT: | 23 June 2009 |
| CASE MAY BE CITED AS: | Riga, Maurice v Battmans Insulating Services Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0826 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – the plaintiff suffered an injury to the right knee and a number of other medical conditions, all of which contributed to the claimed pain and suffering consequences – whether the pain and suffering consequences of the right knee injury which were capable of being identified were at least very considerable: section 134AB (38) (c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with | Arnold, Thomas & Becker |
| Mr J Brett | Pty Ltd | |
| For the Defendants | Mr D Myers | Herbert Geer |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 5 March 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant on 7 August 2001.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering only, having abandoned his claim for loss of earning capacity during the hearing.
3 Mr B Collis QC of Counsel appeared with Mr J Brett of Counsel for the plaintiff, and Mr D Myers of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the right knee.
5 The following evidence was adduced during the hearing:
• The plaintiff tendered his Court Book (“PCB”) pages 13-27 and 29-110i: Exhibit A • The defendants tendered their Court Book ("DCB") pages 19-24 and 41- 83(iv): Exhibit 1. 6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(b) 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.
(f)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 9 November 1960. He is now forty-eight years of age. He is single.
10 The plaintiff completed Year 10 and subsequently engaged upon a course of further education in literacy in 1978.
11 Before commencing work with the first defendant in 1998, he worked in a variety of manual and labouring occupations.[3]
[3] PCB 13-14
12 The plaintiff was employed by the first defendant as a cellulose plant operator which required him to operate a number of machines.
13 On 7 August 2001, the plaintiff ran across a number of bags in order to trample and compress the contents of the bags. He copied this activity from another worker. In the course of doing so, a bag slipped from under him and he landed heavily on his knees and elbows.
14 The plaintiff was taken to the Frankston Hospital. An x-ray was taken which showed a longitudinal, intercondylar fracture of the distal femur which communicated with the joint space, and the second obliquely orientated fracture which also communicated with the joint fracture.[4]
[4] PCB 88
15 Mr McCombe, orthopaedic surgeon, examined the same x-ray which he interpreted as showing a vertical fracture of the lower end of the right femur going right down to the knee joint, with a very slight separation of the bone fragments at the level of the joint.[5]
[5] PCB 92
16 Mr McCombe operated on the plaintiff's right femur using two screws to internally fix the fracture into its anatomical position. He reviewed the plaintiff on a number of occasions. Although the plaintiff had an excellent range of movement, he was unable to do any work which involved weight bearing. This led Mr McCombe to advise the plaintiff to have the screws removed, which were removed operatively on 24 April 2002.
17 The decision to undertake the second operation was delayed by the plaintiff’s development of serious deep vein thrombosis which required inpatient hospital treatment at the Dandenong Hospital. The plaintiff satisfactorily recovered from that condition, although he now has a vulnerability to the development of that condition in the future.[6]
[6] PCB 92-93 and PCB 86-87
18 Mr McCombe last saw the plaintiff on 20 January 2005. On that occasion Dr Wang, general practitioner, referred the plaintiff back to Mr McCombe because the plaintiff was experiencing ongoing aches and pains in his right knee which Mr McCombe described as of a non-specific nature. On that occasion, Mr McCombe examined the plaintiff, finding no swelling or effusion, minor discomfort on patellofemoral compression, and a full range of movement and good stability.
19 Mr McCombe referred the plaintiff for an MRI scan, which did not disclose any obvious cause for his continuing complaints of pain in his right knee.[7]
[7] PCB 93 and PCB 101-102
20 Mr McCombe expressed the opinion that the plaintiff's injury had stabilised and was not likely to deteriorate in the future. He considered that the fracture was no longer displaced, and as a result it was his opinion that the plaintiff’s prognosis would be good, with a slight chance that he would develop osteoarthritic change in his right knee.[8]
[8] PCB 93
21 The plaintiff was treated by Dr Nguyen, general practitioner, on 20 August 2001 and for some time thereafter.[9] Subsequently, he was treated by Dr Wang.[10]
[9] DCB 19-20
[10] PCB 29-35
22 It would appear that one reason why the plaintiff left Dr Nguyen was as a result of Dr Nguyen disbelieving that he had suffered an injury to his lower back which the plaintiff attributed to his work with the first defendant. The plaintiff said that Dr Nguyen referred him to another medical practitioner who it would appear did not want to treat the plaintiff, and as a result the plaintiff returned to Dr Nguyen, before finally seeing Dr Wang.
23 It would appear that a further reason why the plaintiff left Dr Nguyen was as a result of the receipt by Dr Nguyen of a report of Dr Silver, physician. Dr Silver examined the plaintiff for an insurer on 20 February 2003. He was of the opinion that the plaintiff was fit for his pre-injury employment. The plaintiff said that Dr Nguyen was not prepared to reach an independent opinion about the plaintiff's capacity for his pre-injury work because of the opinion of Dr Silver.[11]
[11] Transcript 12
24 The plaintiff also said that Dr Nguyen certified him as being fit for his pre-injury work based upon the opinion of Dr Silver, despite his protestations that he was not fit for work.[12]
[12] Transcript 12-13
25 Dr Wang referred the plaintiff to Mr Byrne, orthopaedic surgeon. According to Dr Wang, Mr Byrne referred the plaintiff for an MRI scan of his right knee on 4 June 2007 which apparently showed some abnormalities, but Mr Byrne reported to Dr Wang that there were no symptoms of true mechanical locking of the right knee, and that the abnormalities were not the likely cause of the plaintiff's right knee pain.[13]
[13] PCB 62. Mr Byrne wrote to Dr Wang on 20 June 2007 referring to x-rays of the plaintiff's right knee and an MRI scan of the plaintiff’s right hip (PCB 72). The MRI scans are at PCB 101-102
26 The only medical report from Mr Byrne is in the form of a letter which he wrote to Dr Wang. It is not written in customary medical report form and is rather cryptic in what it refers to, however, what can be gleaned from it, is that Mr Byrne suggested the plaintiff have a cortisone injection to his right hip and right knee. He considered that surgery was not warranted for either medical condition.[14]
[14] PCB 72
27 The plaintiff said that Mr Byrne treated him by CT-guided cortisone injections which the plaintiff said did not help him.[15]
[15] Transcript 22
28 Dr Wang continues to treat the plaintiff. In his medical report dated 15 October 2008, Dr Wang refers to the plaintiff visiting him regularly for recurrent right knee pain; recurrent lower back pain radiating into his right hip and thigh which resulted from an injury which occurred on 30 May 2003; left elbow pain and left arm weakness due to a mild to moderate ulnar nerve lesion from which the plaintiff had suffered since about 7 August 2001; recurrent right hip pain radiating into his right buttock, groin and thigh; and depression.[16]
[16] PCB 62
29 The plaintiff said that he was prescribed Panadeine Forte for pain relief. He takes between four and six tablets per day.[17]
[17] Transcript 8
30 In expressing an opinion on the plaintiff's capacity for work, Dr Wang appears to have based this opinion upon the plaintiff's medical conditions affecting his right hip, lower back, left elbow and arm weakness and the injury to his right knee, and similarly, when he expressed an opinion on the plaintiff’s prognosis, he appears to have offered the opinion that the plaintiff's pain arising from those medical conditions will fluctuate and will be present permanently.[18]
[18] PCB 64-65
The Plaintiff's Other Medical Conditions
31 It is convenient to examine the plaintiff's other medical conditions because they figure prominently in the most recent medical reports on which Mr Collis and Professor Myers relied.
32 The plaintiff gave graphic descriptions of the extent to which the other medical conditions affecting his lower back, hip, groin and left elbow and arm problems affect him.
33 In relation to his lower back, hip, and groin, he said that he suffered persistent pain, and added that he also suffered from persistent pain to his abdomen.[19]
[19] Transcript 13
34 In relation to his left elbow and arm problems, he said that the left elbow pain causes his left hand to lock up and his knuckles to collapse.[20]
[20] Transcript 22
35 The strong impression I obtained from the plaintiff's evidence was that he has a constellation of medical conditions which cause him persistent pain and disablement, including the claimed injury to his right knee.
The Other Medical Evidence
36 Dr Blombery, vascular physician, commented on the cause of the plaintiff's deep vein thrombosis.[21] He did not examine the plaintiff for the purpose of providing an opinion relevant to the plaintiff’s right knee injury.
[21] PCB 96
37 Professor Myers, consultant general surgeon, examined the plaintiff on 12 June 2003 and in October 2006.[22] In his second report dated 19 October 2006, Professor Myers diagnosed the plaintiff’s injuries as comprising a fracture of the right femur; subsequent deep vein thrombosis and pulmonary embolism; probable ongoing damage to a meniscus within the right knee joint; and possible damage to the articular cartilage of the right knee joint.
[22] Professor Myers provided three reports dated 18 June 2003 (PCB 73-79); 2 July 2003 (PCB 80-81) and 19 October 2006 (PCB 82-87)
38 Professor Myers was of the opinion that the plaintiff needed to avoid prolonged standing, walking, bending, kneeling or squatting and was probably fit to obtain sedentary employment. He was also of the opinion that there was a possibility that the plaintiff could develop degenerative changes in his right knee.[23]
[23] PCB 84-85
39 Mr King, orthopaedic surgeon, examined the plaintiff in May 2009. Mr King obtained a history from the plaintiff that he was disabled by pain in his lower back, right hip and right knee and, to a lesser extent, by mild symptoms of ulnar neuritis in his left hand. The plaintiff gave a history to Mr King of having intermittent aching pain in his right knee which was present most of the day and night and was of mild to moderate severity, with intermittent severe sudden stabbing pain in the right knee up to a dozen times per day, and also weakness and instability in the right knee with a tendency for it to give way.
40 On examination of the right knee, Mr King found a small effusion with a small synovial thickening and mild generalised crepitus on flexion and quite coarse patellofemoral crepitus and some patellofemoral tenderness. He concluded that there was definite mild osteoarthritic change present in the plaintiff's right knee.
41 Mr King concluded that the trauma required to produce the fracture would have been very considerable and inevitably would cause significant damage to the articular surfaces of the femoral condyles. His overall impression was that the plaintiff had developed a mild but definite secondary osteoarthritic change in his right knee joint which he considered represented a serious impairment of function of the right lower limb, however, in reaching that conclusion, he combined the injury to the plaintiff’s right knee and what he described as the mild damage to the articular surface of the right hip joint in conjunction with a labral tear.[24]
[24] PCB 110d-110h
42 Dr Castle, occupational physician, examined the plaintiff on 22 July 2008. The plaintiff gave a history of experiencing the pain every day, clicking in the right knee when he straightened it, but no history of the right knee giving way or locking. On examination, Dr Castle did not find any ligamentous laxity.
43 Dr Castle was of the opinion that the plaintiff’s prognosis was poor, however, he based that opinion upon the constellation of the plaintiff's medical conditions, referring to the plaintiff’s right knee, groin, lower back and left ulnar nerve lesion.[25]
[25] PCB 107-109
44 Mr Marshall, general surgeon, examined the plaintiff for an insurer on 29 July 2003. The report is of little value in the context of this application because Mr Marshall appears to have been asked to offer an opinion relevant to the occurrence of the injury to the plaintiff’s lower back and only made passing reference to the injury to his right knee.[26]
[26] DCB 41-43
45 Dr Silver, specialist in occupational and musculoskeletal medicine, examined the plaintiff on 20 February 2003. He was given a history that the plaintiff experienced pain around his knee and sometimes a stabbing and shooting pain. On examination, he found no muscle wasting or effusion, and found a full range of right knee movements.
46 Dr Silver was of the opinion that the plaintiff had made good recovery from the fracture, but he noted that the plaintiff was still complaining of intermittent and recurrent pain around the right knee. In answering a number of specific questions, he was of the opinion that the right knee injury had resulted in incapacity for employment, however, he felt the plaintiff had a capacity for his pre-injury employment, with the qualification that what would be suitable for the plaintiff would be any ergonomically-based sound physical activity.[27]
[27] DCB 47-48
47 The plaintiff was also examined by Dr Trembath, thoracic physician, on 23 October 2003 in relation to lung function,[28] and by Mr Flanc, vascular surgeon, on 23 October 2003 in relation to his right leg injury, but principally the consequences of the development of deep vein thrombosis and pulmonary embolism.
[28] DCB 49-50
48 The only observation which Mr Flanc made relevant to the plaintiff’s right knee injury was that some of the symptoms which emerged when he examined him were related to a prior developmental problem which the plaintiff suffered known as Osgood-Schlatter’s Disease, and otherwise that it was possible that the cause of his continuing complaints of right knee pain were related to degenerative changes in cartilage which had been injured as a result of the fracture, however, he considered any abnormality to be minor and in excess of what would be expected from the pathology which was found in his right knee.[29]
[29] DCB 55-57
49 Mr Buzzard, general surgeon, examined the plaintiff on 13 February 2008. He obtained a history from the plaintiff that he had suffered pain in his right knee since the occurrence of the incident. On examination, Mr Buzzard found bilateral symmetrical crepitus on movement of both knees and otherwise no abnormality. He was of the opinion that the plaintiff appeared to have some evidence of degenerative disease in his right knee which he considered to be fairly minor, both clinically and radiologically.[30]
[30] DCB 68-75
50 Mr Jones, orthopaedic surgeon, examined the plaintiff on 1 September 2008 and 30 April 2009.[31] In his last report he obtained a history from the plaintiff of pain around the right kneecap above and to the outer side of the right knee. The plaintiff told him that he suffered an aggravation of his symptoms when crouching, bending, squatting or kneeling; that his walking capacity was variable; that the pain in his right knee interfered with his capacity to walk and to drive a motorcar, and he had experienced a locking and unlocking sensation in his right knee. Mr Jones interpreted the report of locking to be a catching feeling in the knee.
[31] Mr Jones provided four medical reports dated 2 September 2008, 16 October 2008, 1 May 2009 and 3 June 2009.
51 On examination, Mr Jones found a range of movement of the right knee from 0 degrees to 140 degrees, and on extension there was a slight click in the patellofemoral joint and mild discomfort on patellofemoral compression. He found no swelling or ligamentous laxity.
52 Mr Jones was of the opinion that the plaintiff had recovered from the effects of the fracture which had soundly united in an excellent position. He considered that the plaintiff's symptoms were out of all proportion to the physical findings he found on examination. He considered that the prognosis for the plaintiff’s right knee was good; however, he said that the plaintiff might experience aching symptoms in the region of the right knee joint if he were to engage in squatting, kneeling and stair or ladder climbing.
53 In terms of the plaintiff's capacity for employment, Mr Jones was of the opinion that the plaintiff could not return to his former employment, but was fit to undertake light employment which did not involve squatting, kneeling or climbing stairs or ladders, and that his compromised capacity for work was permanent.[32]
[32] PCB 83(ii) - 83(v) and 83(vi) - 83(vii)
Serious Injury
54 Mr Myers submitted that the plaintiff's application was “a range case”, which I have taken to mean that the defendants accept that the plaintiff suffered an injury which has resulted in a permanent impairment of the function of his right knee with consequences which the defendants submit are not “at least very considerable”.
55 Following the occurrence of the injury and a period of recuperation, the plaintiff returned to light duties with the first defendant in November 2002. He was off again in order to undergo a second episode of surgery to remove the screws from the site of the fracture, after which he then returned to light duties.
56 At the time when Dr Nguyen obtained the opinion of Dr Silver, he certified the plaintiff as fit for increased duties, which the plaintiff said resulted in him developing pain in his right hip, groin and lower back. He stopped work and was then made redundant.[33]
[33] PCB 16
57 The plaintiff made two unsuccessful attempts to return to work. In March 2006, he worked as a delivery driver and labourer for Omni Products. He ceased working for that employer because he was not paid.[34] He subsequently worked for a pizza franchise known as Domino’s, as a pizza delivery driver in March 2007. He said he was unable to continue with that work because of all his medical conditions, and not just his right knee injury.[35]
[34] PCB 16 and Transcript 23-25
[35] Transcript 27
58 The plaintiff has not worked since working as a pizza delivery driver. He is now on a disability pension. He is contemplating undertaking a course of study. At present he is undecided as to the course he will undertake.[36]
[36] Transcript 32
59 In his first affidavit sworn 9 August 2007, the plaintiff described having pain in his right knee often, but not constantly. It is sometime sharp. He sometimes has pain in the back of his knee. He has pain at night. The pain he experiences has resulted in him developing a limp. He has difficulties squatting and placing strain on his right knee.[37]
[37] PCB 17 and PCB 27b-27c
60 During examination-in-chief, the plaintiff described the present situation with his right knee in the following way:
"Q: What's the current situation with your right knee? Can you just tell
His Honour about that?---A: Sometimes if I start to walk immediately, I'll get a flash of pain, a seizure of pain. Sometimes it's if I've taken 10 or so steps that it happens. Other times if I'm just sitting there watching TV, I get a seizure of pain at the immediate top of the knee that hurts more when I straighten the leg and it unlocks. Other times I get a pinpoint of pain right in the middle of the top of my knee. Every forward step I take, I get pain just above, on the left of the knee, on the right of the knee, often all around - the total is all around the knee but at different areas at times. Q: Do you ever have a day when you're pain-free as far as your knee
is concerned?---A: No, sir. Q: You also have some back pains, hips pains and groin pain?--- A: Yes."[38] [38] Transcript 8 and T 26-27
61 It is very clear to me that the plaintiff has a number of other medical conditions affecting his lower back, groin and left elbow and arm which cause him impairment of function of those parts of his body, all of which appear to be very significant.
62 As an illustration of the extent of the impairment of function caused by those other medical conditions, I refer to the histories and the examinations conducted by Professor Myers;[39] Mr King[40] and Dr Castle[41] on the plaintiff's side, and Mr Flanc[42] and Mr Buzzard[43] on the defendants’ side.
[39] PCB 82-85
[40] PCB 110a-110h
[41] PCB 103-109
[42] DCB 52-59
[43] PCB 67-75
63 During cross-examination, the plaintiff said that he stopped working in 2003 because of all of his medical conditions.[44] By 2003, the plaintiff was suffering from not only the injury to his right knee, but also from medical conditions affecting his lower back, groin and left elbow and arm. He said that he had difficulty with shopping, and in particular carrying shopping bags because that activity hurt his right leg, groin and lower back.[45] In the context of the plaintiff undertaking a course relevant to the responsible service of alcohol, he said he did not want to be pouring beer because of his fear of his left hand cramping up while carrying something.[46]
[44] Transcript 26-27
[45] Transcript 31
[46] Transcript 32
64 The obligation of a trial judge hearing an application for serious injury is not to become distracted by the presence of other medical conditions which might themselves cause an impairment of body function and might amount to serious injury for pain and suffering consequences, but to approach a fact situation like this in accordance with Dressing v Porter[47] in which Ashley JA made the following relevant observation:
“This should next be said. In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test."[48]
[47] [2006] VSCA 215
[48] at paragraph 47
65 Therefore, I must direct my attention to and determine the impairment caused by the injury to the plaintiff's right knee and what pain and suffering consequences that impairment has produced. In making that determination, it is relevant for me to inform myself of the impairment caused by the other medical conditions and what consequences they produce.
66 The consequences of the impairment of the function of the plaintiff’s right knee do not impress me as being as significant as the plaintiff described in his affidavits and in his oral evidence.
67 Mr McCombe was satisfied that after the two episodes of operative treatment, that the plaintiff would have a good prognosis and that he had some slight chance of suffering from osteoarthritic change in his right knee.[49]
[49] PCB 93
68 It seems to me that there is unanimity amongst the orthopaedic surgeons who have examined the plaintiff that he was, and is, at risk of developing osteoarthritic changes. Mr King put the issue of the osteoarthritic change at its highest, being of the opinion that the clinical signs on examination were of early but definite osteoarthritic change in the plaintiff's right knee.[50]
[50] PCB 110e
69 Professor Myers diagnosed the injury to the plaintiff’s right knee as comprising not only the fracture but also probable meniscal damage and articular cartilage damage in the right knee joint, however, the only resulting deficit which he considered worthy of comment was that the plaintiff could return to employment with a restriction to avoid prolonged standing, walking, bending, kneeling or squatting.[51]
[51] PCB 85
70 Mr King put the degree of damage to the plaintiff’s right knee joint at its highest when he said that it was inevitable that there must been significant damage to the articular surfaces of the femoral condyles, however, he is alone in expressing that opinion. Mr King had available to him a number of the radiological investigations, none of which he referred to as supporting his opinion that there was that degree of damage present.
71 Professor Myers, Mr Buzzard and Mr Jones did not share Mr King's opinion regarding the degree of damage to the plaintiff's right knee joint nor his opinion regarding the presence of osteoarthritic change.
72 It is probable that the impairment of the function of the plaintiff's right knee has had consequences for him consistent with what he said in his affidavits, that is pain and restriction of movement,[52] which I accept would restrict his capacity relevant to standing, walking, bending, kneeling and squatting, and this seems to be consistent with the general thrust of the medical opinions of Professor Myers, Mr King, Mr Buzzard and Mr Jones.
[52] PCB 17 and PCB 27b-27c
73 However, from that point it is difficult to determine what consequences the plaintiff has suffered which are due to the impairment of the function of his right knee. In both of his affidavits he describes the combination of the injuries to his right knee and the medical conditions affecting his lower back and groin as working to “really limit him”.[53]
[53] PCB 17 and PCB 27b
74 Furthermore, the answers the plaintiff gave when cross-examined, which I have summarised in paragraph 63 above, make it abundantly clear that the plaintiff's mobility is also significantly affected by his lower back and groin problems, and his capacity to function in undertaking manual work is significantly affected by his left elbow and arm problems.
75 I do not accept the plaintiff's evidence that the impairment of the function of his right knee impacts upon his mobility as severely as he described it in his examination-in-chief. I conclude that the plaintiff was exaggerating the consequences of that impairment, and I base that conclusion upon a comparison between that evidence and the histories taken by Professor Myers, Mr Buzzard, Mr King and Mr Jones, and the opinions which they have reached that the fracture was undisplaced; that the plaintiff's movements on examination were reasonably full; that no other serious abnormality was detected save for a clinical finding of a setting in which osteoarthritic change might or has occurred.
76 I am mindful of what the Court of Appeal recently decided in Grace v Elmasri[54] that a trial judge in such an application as this must weigh up the whole of the evidence in determining whether a plaintiff has suffered serious injury consequences of an impairment,[55] and being mindful of that, I have paid particular attention to the opinion of Mr King in determining whether, even though he stands alone in terms of the degree of injury suffered by the plaintiff, his opinion should outweigh those of Professor Myers, Mr Buzzard and Mr Jones.
[54] [2009] VSCA 111
[55] See also Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA; Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17 and Forder v Hutchinson [2005] VSC 291
77 In rejecting the opinion of Mr King, I have had regard to the opinion of Mr McCombe, the operating surgeon, who had the opportunity to look inside the plaintiff's knee on two occasions and found no such articular damage in the plaintiff’s right knee joint, and the opinions of Professor Myers, Mr Buzzard and Mr Jones, which do not support the conclusion reached by Mr King.
78 On the basis of the foregoing analysis of the evidence, I have concluded that the plaintiff did suffer a major injury in the form of the fracture which ultimately resulted in an injury to his right knee. The operative treatment provided by Mr McCombe on two occasions successfully repaired the fracture, leaving the plaintiff with little residual problems save for limitations on his capacity to engage in prolonged standing, walking, bending, kneeling or squatting, and leaving him with a residual capacity for full-time work where it does not include those activities.
79 The plaintiff's other medical conditions affecting his lower back, groin and left elbow and arm also appear to be major medical conditions according to the plaintiff's own assessment of their impact upon his capacity to work and engage in social, domestic and recreational activities.
80 It is for the foregoing reasons that I am not satisfied, when I analyse the injury to the plaintiff’s right knee and the impairment of function which has resulted from it, that the consequences to him are “at least very considerable”, after making the relevant comparison which I am required to make referred to in my discussion of the statutory scheme.
Conclusion
81 On the basis of the foregoing reasons, findings and conclusions, I dismiss the plaintiff's Originating Motion.
82 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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