Reynolds v Victorian WorkCover Authority
[2023] VCC 497
•3 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04600
| NARELLE REYNOLDS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2022 | |
DATE OF JUDGMENT: | 3 April 2023 | |
CASE MAY BE CITED AS: | Reynolds v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 497 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation of impairment of right knee – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave to bring proceedings for pain and suffering damages granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Hayes KC with | Zaparas Lawyers |
| Mr P J Hayes KC with Ms K Popova (1 March 2023) | ||
| For the Defendant | Ms F Spencer (22 November 2022) | IDP Lawyers |
| Mr G Worth (1 March 2023) |
HER HONOUR:
1From March 2018 to June 2019, Narelle Reynolds worked full time as a truck driver for MGB Container Solutions Pty Ltd. On 25 June 2019, she was required to drive a large B-double truck to Toll in Laverton North. Once there, she climbed up onto the trailer to put the bolt seals on each container. Unfortunately, when she went to hop down from the trailer, a guide cable became hooked on her clothing; and she fell to her knees on the ground (“the incident”).
2After completing her shift, Ms Reynolds consulted her general practitioner (“GP”), complaining of knee pain. Her GP described her as being “in extreme pain and barely able to walk”.[1]
[1] Amended Plaintiff’s Court Book (“PACB”) 96
3It is now nearly three years after the incident. Ms Reynolds says that, since the incident, she has suffered ongoing pain and swelling in her left and right knees, as well as pins and needles, grinding, and a tendency for her knees to collapse underneath her. She says she has difficulty kneeling, squatting, sitting for long periods, walking for long periods, walking up and down stairs, walking on uneven ground, standing for long periods, climbing ladders, running, sleeping, getting out of a chair independently and driving for long periods. She says that her knee symptoms impact on her capacity to clean, shop, garden, play sports and detail cars. Most significantly, she says, because of her knee symptoms, she is no longer able to work as a truck driver, an occupation which she loved.
4She has brought these proceedings seeking leave to bring proceedings for both pain and suffering and economic loss damages, on the grounds that she has:
(a) an impairment of a body function which is a serious injury within the meaning of paragraph (a) of the definition of serious injury;[2] or
[2] See s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”)
(b) a mental disorder (in the form of a major depressive or adjustment disorder), which is a serious injury within the meaning of paragraph (c) of the definition of serious injury[3].
[3] See s325(1) and s325(2)(b) and (d) of the Act.
5Paragraph (a) of the definition of “serious injury” requires there to be an impairment of a “body function”. The parties agreed that each of Ms Reynolds’ knees reflects a separate body function. Accordingly, the Court must look at the consequences for Ms Reynolds of each knee separately and assess those consequences against the requirements of a serious injury. To satisfy those requirements, Ms Reynolds must demonstrate that either the pain and suffering consequence, or the loss of earning capacity consequence, of the impairment are “fairly described as being more than significant or marked, and as being at least very considerable”;[4]
[4] See definition of serious injury in s325(1) of the Act.
6In addition, to obtain leave to bring proceedings for economic loss damages, Ms Reynolds must specifically demonstrate that:
(a) she has suffered a loss of earning capacity consequence which is “fairly described as being more than significant or marked, and as being at least very considerable”;[5]
[5] See definition of serious injury in s325(1) of the Act.
(b) she has suffered a current loss of earning capacity of at least 40 per cent, calculated in accordance with the statutory formula under s325(2)(f) of the Act; and
(c) she will continue, permanently, to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[6]
[6] See s325(2)(e)(ii) of the Act.
7The Court is required to separate out any psychological or psychiatric consequences of the injury; and consider them only in respect to Ms Reynolds’ paragraph (c) mental disorder claim. The threshold for serious injury with respect to a mental disorder is higher, requiring Ms Reynolds to show the pain and suffering or economic loss consequence is “severe”.
8In submissions, Ms Reynolds relied primarily on her right knee to found her claim for leave to bring proceedings for damages. She submitted that her right knee was both less symptomatic than her left knee prior to the incident; and more symptomatic after the incident. As it suffices for leave to be given for Ms Reynolds to establish a serious injury with respect to her right knee only, I will consider Ms Reynolds’ right knee first, before turning to consider (briefly) the left knee and mental disorder claims.
The right knee
9Ms Reynolds had a long history of left and right knee, and foot symptoms, prior to the incident, which included:
(a) right foot surgery in 1993;
(b) left knee surgery in 1996;
(c) right knee surgery in 1997;
(d) further right foot surgery in 1998;
(e) further right foot surgery in 2000;
(f) further right knee surgery in 2004;
(g) further left knee surgery in 2005; and
(h) further left knee surgery in 2006.
10In addition, in about November 2016, Ms Reynolds suffered a painful left knee after a slip and twisting injury. Subsequently, the clinical notes reveal a number of consultations in relation to knee pain, which I will address in more detail below.
11The parties agreed that this is an “aggravation” case which must be analysed in accordance with the approach adopted in Petkovski v Galletti.[7]That is, the Court must compare:
[7] [1994] 1 VR 436
(a) the extent of the impairment of Ms Reynolds’ right knee before the incident;
with
(b) the extent of the impairment of Ms Reynolds’ right knee after the incident,
in order to determine the extent of the impairment which resulted from the incident.
12I will first consider the credibility and reliability of Ms Reynolds’ evidence, as it is relevant to both these matters.
13The defendant did not contend, in closing submissions, that Ms Reynolds’ evidence lacked credibility or reliability. To the contrary, the defendant accepted that Ms Reynolds had made “very, very appropriate concessions” during nearly two hours of cross-examination.[8]
[8] Transcript (“T”) 75, Lines (“L”) 25 ꟷ T76, L3
14Ms Reynolds presented as a straightforward witness whose evidence was refreshingly lacking in guile. She made very frank concessions about her pre-existing symptoms of knee pain and her current capacity to work. Ms Reynolds also frankly conceded when she lacked recollection of events and demonstrated a willingness to agree that events she could not recall might be possible. There was no hint of any melodrama or exaggeration in her evidence.
15I found Ms Reynolds to be an entirely credible and reliable witness. I accept her evidence.
Impairment of Ms Reynolds’ right knee prior to the incident
16As noted above, Ms Reynolds had right knee surgery in 1997 and 2004. However, after 2004, there is very little in the clinical records expressly concerning Ms Reynolds’ right knee.
17Ms Reynolds had a slip and twisting injury in November 2016, which resulted in a painful left knee.[9] She consulted her GP complaining about her left knee on 26 December 2016.[10] Her GP then referred her to Western Health for orthopaedic review on 5 January 2017, again on 17 January 2017 and, again, on 7 April 2017.[11] As a result of these referrals, she ultimately saw Mr Ishfaq Hussaini, an orthopaedic surgeon at Western Health, on 12 May 2017. He records
[9] PACB 114
[10] Amended Defendant’s Court Book (“DACB”) 171
[11] PACB 127-29
“Thanks for referring Mrs Narelle Reynolds whom we consulted with today at Orthopaedics Outpatient Clinic in Footscray Hospital. As you are aware, she sustained a twisting injury to her left knee about five months ago. She works as a truck driver and has had trouble with the knee since then. She is unable to bend the knee. She describes a clicking and giving way of the left knee. She has had previous ACL reconstruction of the left knee and has had difficulty kneeling and squatting on the knee. She describes hypersensitivity to touch around the surgical scar.
On examination today, her left knee shows an anterior midline surgical scar from possibly a patellar bone-tendon-bone ACL reconstruction of the left knee. She is very hypersensitive to touch. Her left knee shows range of movement hardly of about 5 to 30 degrees of flexion. Any attempt to move the knee beyond this range is very painful. She is not allowing any proper examination and describes severe pain and tingling in the whole leg if she is touched along the anterior scar. The signs and symptoms appeared to be like neurogenic possibly from a neuroma. She has mild joint line tenderness, particularly on the medial side. McMurray's manoeuvre was impossible and stability of the knee could not be checked because of the pain.
She has had an x-ray of the leg, which appears to be normal. She also has had an ultrasound of the left knee, which as per your referral letter is reported to be normal.
She has not had any treatment, except for the pain medication.
Clinically, it is very difficult to ascertain the underlying problem. I have advised her to have a weight-bearing x-ray of the knee and MRI of the left knee. I have explained to her that there may be a metal artefact from her previous surgery on the MRI; however, I will review her with the MR scans to ascertain the underlying cause of the problem. In the meantime, she is advised to work on her knee range and take pain medication as and when required.”[12]
(sic)
(Emphasis added.)
18She was then referred to Mr Audi Widjaja, an orthopaedic surgeon. She was reviewed by him in relation to her left knee on four occasions between 6 June 2017 and 29 August 2017. On about 27 June 2017, he diagnosed:
“1. Left knee – patella chondromalacia
2.Left calf focal thrombophlebitis in the short saphenous vein without DVT”[13]
[12]PACB 122
[13]PACB 118
19On 29 August 2017 he diagnosed:
“1. CRPS left knee
2. Left knee patella chondromalacia”[14]
[14]PACB 119
20On 16 February 2019, she again visited a GP complaining about “[o]ngoing retropatellar pain, worsening”.[15] The clinical note of this visit does not record whether this pain was in her left knee or right knee, however Ms Reynolds was adamant, when cross-examined, that it was in her left knee.[16] I accept this evidence. The clinical note also records that a referral letter to Western Hospital was created and printed that day, however Ms Reynolds had no recollection of such a referral and no referral letter was tendered in evidence.
[15] DACB 157
[16] T15, L12-16
21On 18 March 2019, the clinical records of her GP note that she “[i]s on waiting list ortho for knee”.[17] The note does not record whether this was in relation to Ms Reynolds’ left or right knee, although the singular “knee” is used. In the context of the consultations before and after this record, the more likely inference is that this was a reference to Ms Reynolds’ left knee.
[17] DACB 155
22On 16 June 2019 (nine days before the incident), the clinical records note:
“Left knee pain
flare of pre-existing left knee pains”[18]
[18] DACB 154-5
23As is apparent from this review, the clinical records in the years immediately prior to the incident either relate to left knee pain only, or do not specify which knee was painful. Indeed, the only significant evidence that Ms Reynolds had active right knee symptoms in the years immediately prior to the incident, came from Ms Reynolds herself. In relation to this issue, she admitted, in cross-examination, that, in the period from 2016 to 2019:
(a) she had severe ongoing symptoms in both knees, just below the kneecap;
(b) she had difficulty with her range of motion in both knees and at times could barely move her knees;
(c) she had pain on moving her knees;
(d) she had tenderness of her knees;
(e) she had on occasion a giving way sensation in both knees;
(f) there were times when she had difficulty with kneeling and squatting due to her right knee; and
(g) as a result of the pain in both her knees, she required two to four Panadeine Forte per day.
24Despite these frank admissions, Ms Reynolds was also clear that, prior to the incident, her left knee was worse than her right knee.[19] This is corroborated by the clinical notes summarised above, and particularly the reports of the two orthopaedic surgeons who treated her in 2017, Mr Hussaini and Mr Widjaja. Both surgeons viewed the problem to be diagnosed as one exclusively in her left knee.
[19] T18, L10
25I find that Ms Reynolds suffered pain and restrictions in range of motion in her right knee prior to the incident, but that this right knee pain was nowhere near as severe as her left knee pain. Notwithstanding Ms Reynolds’ knee pain, Ms Reynolds was able to work full time as a truck driver from March 2018 to June 2019, earning $73,849 gross in the 2018/2019 financial year. She was also able to play casual sports such as football, soccer, tennis and cricket with friends[20] and engage in her hobby of car detailing.[21]
[20] First affidavit, paragraph [17(s)], PACB 21
[21] First affidavit, paragraph [17(o)], PACB 20
Impairment of Ms Reynolds’ right knee after the incident
26I accept Ms Reynolds’ evidence that, since the incident, her knee symptoms have significantly worsened, particularly in her right knee. I accept that, since the accident:
(a) her right knee is now the worse knee in terms of pain, and numbness and pins and needles;[22]
[22] Second affidavit, paragraph [10], PACB 24
(b) she has grinding in her right knee;[23]
[23] Second affidavit, paragraph [10], PACB 24
(c) her right knee is more unstable and regularly gives way;[24]
[24] Second affidavit, paragraphs [10] and [11]; PACB [24]-[25]
(d) she consistently finds kneeling, crouching and squatting difficult and is unable to sit, stand or walk for long periods;
(e) she is unable to climb ladders;
(f) she is unable to run;
(g) she finds it more difficult to sleep;
(h) she struggles to clean and perform tasks such as vacuuming, mopping and cleaning the bathroom;
(i) she can drive, but is unable to drive for long periods;
(j) she is unable to pursue her hobby of detailing cars;
(k) she is unable to work as a truck driver;
(l) she struggles with gardening, particularly requiring kneeling and bending;
(m) she is more restricted with shopping;
(n) she struggles with some aspects of self-care, such as showering and putting on her shoes;
(o) she takes higher doses of Panadeine Forte (four to six per day instead of two to four per day) and requires Panadeine Forte more regularly (on five to seven days per week, rather than going for periods of months without Panadeine Forte);
(p) she regularly attends hydrotherapy; and
(q) she struggles with standing for long periods to cook.
27I note that much of Ms Reynolds’ evidence in relation to these matters referred to the effect of her “knees”. However, having regard to:
(a) her evidence that her right knee is worse;
(b) her evidence that her difficulties are “particularly” because of her right knee; and
(c) my finding that the consequences listed above post-date the incident, notwithstanding her significant documented left knee symptoms prior to the incident,
I am satisfied that the consequences listed above are appropriately viewed as consequences of her right knee impairment, taken alone.
28My findings in this regard are also supported:
(a) by the observations of both Dr Rekha Ganeshalingam (medico-legal orthopaedic surgeon retained by the plaintiff) and Dr Kilner Brasier (medico-legal occupational physician retained by the plaintiff), that Ms Reynolds had marked wasting in the right quadriceps, although this was not recorded by Dr Majid Rahgozar, a medico-legal consultant occupational physician retained by the defendant; and
(b) by the opinion of Dr Ganeshalingam that, by reason of Ms Reynolds’ right lower limb on its own, Ms Reynolds:
(i)would be unable to do any lifting, twisting, bending, kneeling, squatting or crouching; and
(ii)would be unable to do prolonged sitting, standing or walking.
Extent to which impairment of right knee was caused by the incident
29The defendant submitted that the incident had not caused any worsening in Ms Reynolds’ symptoms. It submitted that Ms Reynolds’ current symptoms were a result of a degenerative condition in the patellofemoral joint of her knees. Although it accepted that the incident had caused a temporary exacerbation of her symptoms, it submitted that the effect of that exacerbation had ceased and her knee symptoms would be the same today, whether the incident had occurred or not.
30The defendant relied particularly upon the reports of medico-legal orthopaedic surgeon, Mr Peter Lugg, who examined Ms Reynolds once on 1 September 2022 and prepared three reports which were tendered in the proceeding. It submitted that his comments were “the most important in the case” because he had gone into the records in the most detail, taken the most detailed history and opined “as to the continuum”, rather than focusing upon the incident alone.
31Ms Reynolds, on the other hand, attacked the reliability of Mr Lugg’s reports in light of:
(a) the “selective and gratuitous observations” in the letters of instruction provided to Mr Lugg by the defendant’s solicitor, which Ms Reynolds submitted unduly influenced Mr Lugg’s opinion; and
(b) the incorrect factual assumptions said to be made by Mr Lugg.
32In any event, Ms Reynolds submitted that Mr Lugg’s ultimate opinion was equivocal and did not dismiss the diagnosis proposed by Ms Reynolds’ experts or state that he outright disagreed with them. She submitted that the Court should prefer the opinions of the experts on which she relied.
33In light of the parties’ submissions, I will examine Mr Lugg’s reports and his tendered letters of instruction in some detail.
25 March 2022 letter of instruction
34The letter of instruction to Mr Lugg, dated 25 March 2022, commences conventionally enough, with a reference to Ms Reynolds’ appointment time and a list of enclosed documents. It goes on, under the heading “Background” to comment on Ms Reynolds’ marital status (which is said to be “not clear”), employment history and her claimed injuries. Under the heading “Pre-existing Bilteral kneel (sic) issues/injuries” it states:
“A review of [Ms Reynolds’] clinical records reveals an extensive medical history including, relevantly, she has suffered from longstanding and persistent bilateral knee pain dating back to her youth.
…
•Between 2016 and 2019 (save for 2018) [Ms Reynolds] attended her General Practitioner at regular intervals complaining of knee pain.
•On 16 February 2019 [Ms Reynolds] attended her General practitioner for bilateral knee pain, at which time her doctors referred Western Hospital outpatient:
‘L Chondromalacia patella. Onset was 2 ½ years ago, and her pain and disability continue to increase. I append MRI report? Suitable for arthroscopic procedure. History of lateral release and ACL repair both knees’
•On 12 May 2017 she was seen by Dr Hussaini at Western Hospital who noted:
‘On examination today… She is very hypersensitive to touch. He left knee shows range of movement hardly of about 5 to 30 degrees of flexion. Any attempt to move the knee beyond this range is very painful. She is not allowing any proper examination and describes severe pain and tingling in the whole leg is she touched along the anterior scar. The signs and symptoms appeared to be like neurogenic… Clinically it is very difficult to ascertain the underlying problem’
•[Ms Reynolds] was first prescribed 1-2 Panadeine Forte 4 times a day for Knee pain and referred to on 18 March 2019 and her doctor records that she is on a waiting list to see an orthopaedic surgeon.
•[Ms Reynolds] returned to her GP complaining of Bilateral knee pain, 10 Days before the relevant incident, on 16 June 2019, at which time her doctor again prescribed Panadeine Forte at a dose of 2 tablets 3 times a day and recorded ‘left knee pain, flare up on pre-existing left knee pains’.
•[Ms Reynolds] deposes that she did experience some knee pain prior to the relevant incident in 2019 though claims ‘the pain was nowhere near as bad as it became following my injury’.”[25]
[25]Letter of Instruction to Mr Lugg, dated 25 March 2022, pages 4-5
(sic)
(Emphasis added.)
35Later, under the heading “You may wish to note the following matters when preparing your report”, it comments on or refers to specific aspects of medico-legal expert reports from Dr Francis Ghan, Dr Ganeshalingam and Associate Professor Bruce Love. For example, in relation to the report of Dr Ganeshalingam (a medico-legal expert retained by the plaintiff) it is stated “Dr Ganeshalingam also records an altered gate (sic), no other Doctors or allied health professionals have observed this”. [26]
[26](Ibid), page 6
Subsequent correspondence
36As it transpired, Ms Reynolds was not examined by Mr Lugg until 1 September 2022. It appears that Mr Lugg was provided with an amended letter of instruction and a number of other documents prior to that appointment, which were not tendered in evidence. After 1 September 2022, there were several emails to Mr Lugg from the defendant’s solicitor, and a file note of conversations with a person in Mr Lugg’s rooms, enquiring as to when Mr Lugg’s report will be provided. The messages become increasingly more urgent in tone as the hearing listed for 2 November 2022 approaches.
37On 26 October 2022, there is a file note of a conversation between the defendant’s solicitor and “Meryl” from Mr Lugg’s rooms. The note records:
“• She explained that they had so much trouble getting Ms Reynolds to an appointment, it was re-schedule (sic) quite a few times in the past (because she was scared of getting covid-19) and when she finally was seen, Peter went away – now it’s ended up close to the Court date.
• She has her fingers crossed he can get to it after surgery today but she cannot guarantee us anything, she still has to then type it.”[27]
[27]Exhibit P2, correspondence between Mr Lugg and IDP Lawyers, page 17
38On 27 October 2022, there is a file note of a conversation between the defendant’s solicitor and Meryl in which it is recorded that “Mr Lugg today saying that he has completed half of our report”.[28] There is then an email from Mr Lugg which attaches an incomplete draft report. The draft report notes that the symptoms are similar in both knees but does not contain any reference to Ms Reynolds’ left knee being more painful than her right (a statement which, as I will explain later, is included in the final report).
[28](Ibid), page 18
39After more follow-up emails, on 2 November 2022 at 9.24am, there is an email stating “[t]he remainder of the report is being typed at the moment” (ie: the morning of the hearing).[29]
[29](Ibid), page 30
40Finally, on 2 November 2022 at 10.12am, Mr Lugg’s report is emailed to the defendant’s solicitor.[30]
[30]As a result of the late service of Mr Lugg’s report, the hearing of 2 November 2022 was adjourned, with costs, to 1 March 2023.
Mr Lugg’s first report
41Mr Lugg’s first report was dated 2 November 2022, and is based on an examination on 1 September 2022 and his review of the documents, and radiology supplied by the defendant’s solicitor.
42Mr Lugg initially records that “[s]ymptoms are similar in both knees”,[31] but then goes on to say, under the heading “Examination” that “[s]he indicated that she considered her left knee more painful than her right”.[32] Under the heading “Observations re the history and re the clinical course”, he states:
[31]DACB 214
[32]DACB 215
“There is definitely a past history of related condition. She received treatment for knee pain in 2016 and saw Dr Widjaja in 2017 for treatment of knee pain, well before she saw him on 2019 for treatment of the injury she describes in 2019.
…
Moreover, she describes a grinding sensation in the left knee. I could detect very minor crepitus in the right knee but none at all in the left.
I noted that even in 2017 she could not move her knees more than approximately 25 degrees arc range of movement (5 – 30 degrees) at Western Hospital, preumably due to hypersensitivity of the knees and extreme pain. Whilst I could obtain a much better range of movement, the hypersensitivity persisted.
I was unable to detect any significant wasting in the thigh or calf of either leg, they looked symmetrical in the muscle bulk.
In my opinion she does have some chondromalacia patellae, at least of the patellofemoral joint in both knees, with a small amount of actual chondral damage in the right knee.
The pathology in my opinion is not severe enough to explain the severity of her symptoms. Many of her signs, both pre the accident and post the accident are at times way out of the severity range one would expect with the relatively minor pathology on the MRI scan.” [33]
[33] DACB 216
(sic)
(Emphasis added.)
43When asked to comment on how much of Ms Reynolds’ current position can be attributed to her pre-existing condition, he explains:
“This is an extremely difficult question to answer, but if you compare the presentation at the Western Hospital where she was barely able to move both knees to where she is currently, able to at least get to around 80 degrees flexion, there must have been a fair improvement in the knees since the fall of 2019. There may still be some contribution from the fall, but I think the pre existing (sic) condition now plays a much greater role in the current symptoms.” [34]
[34] DACB 217
(Emphasis added.)
44He explains his chain of reasoning again in response to a question of whether Ms Reynolds’ employment was a significant contributing factor to the onset of her injury:
“[Ms Reynolds] already had chondromalacia patella and symptoms of some significance before the injury of June 2019. She presented to Western Hospital in severe pain a couple of years earlier, and indeed had recent onset of reasonably severe pain only 10 days before the incident.” [35]
[35] DACB 218-9
45Although he notes that “[t]he pathology…is not severe enough to explain the severity of her symptoms”,[36] he states that he is not of the view that she is exaggerating her symptoms, or that her symptoms are due to any significant functional overlay.[37]
[36] DACB 216
[37] DACB 218
46He ultimately concludes that “the worker would be in exactly the same state now, whether or not she had suffered the injury in June 2019”.[38]
[38] DACB 219
Letter of instruction dated 16 December 2022
47This letter “re-encloses” clinical records previously provided to Mr Lugg and includes an eighteen-paragraph summary of events which the defendant’s solicitor states can be drawn from those records. It also encloses a report of Dr Brasier, dated 11 December 2022, and a report of Mr Patrick Vuong, dated December 2022. The letter then asks Mr Lugg eight specific questions.
Mr Lugg’s second report
48Mr Lugg’s second report addresses each of the questions in the 16 December 2022 letter of instruction. One of those questions indicates to Mr Lugg that, in his first report, Mr Lugg had stated that Ms Reynolds’ range of movement was observed to be restricted in both knees by the Western Hospital, whereas the letter from Mr Hussaini of the Western Hospital, dated 12 May 2017, only refers to Ms Reynolds’ left knee. Mr Lugg responds:
“In 2017 when seen at the Western Hospital, the range of movement, or rather the lack of range of movement at that time related to an examination involving the left knee. My opinion regarding the knees remained unchanged in my report to you of November 2022 as a result of reading further material provided.”[39]
[39]Defendant’s Supplementary Court Book (“DSCB”) 15
49Mr Lugg does not explain how it is that his opinion remains unchanged when Ms Reynolds’ experience of pre-incident symptoms in both knees appeared to be the primary plank of his reasoning in his first report. However, an explanation may be found in the preceding paragraph:
“Whilst the left knee has always seemed to have the more severe symptoms, both knees have similar symptoms, only the right knee is less severely affected. In the report I sometimes talk about both knees, but it was primarily the left knee I was looking at, as it was the worst. I (sic) can be assumed the right knee is identical but with less severe symptoms and signs.” [40]
[40] DSCB15
(Emphasis added.)
50Mr Lugg then repeats his belief that the left knee continues to be more symptomatic than the right knee and explains that this fits in with his conclusion that Ms Reynolds is exhibiting no more than patellofemoral degenerative changes:
“Prior to the fall of June 2019, the patient would have had symptoms from both knees, which would fluctuate from time to time and one would expect exacerbations when the patellofemoral joint was stressed. The pain would be mainly anterior knee pain, but if swelling was involved, then it could be posterior. The pain is likely to have been worse going up and down stairs, and kneeling would have been difficult. If the knee was very painful, such as during an exacerbation, range of movement may well have been affected. Both knees would have been affected but the left knee has been shown to be more symptomatic than the right in the past, and I see no reason for that to change, unless the right knee suffers an isolated aggravating injury.
…
Thus irrespective of the fall incident in June 2019, I would expect a gradual deterioration of the patellofemoral degenerative change in Ms Reynold’s knees and gradual increasing symptoms from the condition in both knees, and a gradual increase in symptoms from that condition. This is notwithstanding the fact that there will be some good times and some times when there is of symptoms.”[41]
[41] DSCB 16
(sic)
(Emphasis added.)
51Although Mr Lugg maintains the opinion expressed in his first report, in this report he does accept the possibility that the:
“… fall may have contributed to some increased progression of the pathology and symptoms to be more severe. However, it should be note (sic) that symptoms could be reasonably severe even prior to 2019 (see notes from Western Hospital).”[42]
[42] DSCB 16
Mr Lugg’s third report
52Mr Lugg’s third report is dated 9 February 2023. It provides comments on the report of pain physician, Dr Symon McCallum. The report focuses on the question of if, and when, Ms Reynolds developed a complex regional pain syndrome. Mr Lugg explains that, according to the Australian Orthopaedic Association:
“The definition of complex regional pain syndrome is a name that is used for pain that a patient is suffering from which seems to be out of proportion to the degree of signs and imaging available to explain that pain.”[43]
[43]DSCB 18
53On the question of whether Ms Reynolds currently has a complex regional pain syndrome, Mr Lugg is ultimately equivocal, stating on the one hand, that:
“I also agree with Dr McCallum that symptoms and signs do fluctuate, and when one doctor sees a patient and feels they have sufficient stigmata to satisfy the definition of a complex regional pain syndrome, another examining at a later date may not find sufficient stigmata.
Finally, whilst a number of competent medical practitioners have seen her, and the possibility of a complex regional pain syndrome has been mentioned by a number of them, for the most part there has never been sufficient signs to justify a definite diagnosis of complex regional pain syndrome.” [44]
[44] DSCB 19
54But then continuing as follows:
“Finally, I agree with Dr McCallum that she did develop complex regional pain syndrome, but exactly when is difficult to determine. She was thought by a number of her treating practitioners to have this in 2017. Maybe it resolved for a while and then returned later, with developing what appears to be a complex regional pain syndrome again, now a chronic type of complex regional pain syndrome.
…
In addressing the answer by Dr McCallum in question 4 of his report, I would say that it is certainly possible that she did develop a chronic type of complex regional pain syndrome in 2019 after the accident on the trailer. However I will say that the context of the development of this pain syndrome is in a context of pre existing chondromalacia, a condition of which there is little doubt, plus some mild patellofemoral mal alignment in the left knee.”
…
•The symptoms are (and were) more severe and incapacitating than I would normally expect which does raise the question of whether complex regional pain syndrome plays a role in the diagnosis.
•The possibility of this diagnosis has been raised by more than 1 practitioner, both treating and assessing. She has been described as showing all the stigmata of a complex regional pain syndrome at one examination at least, but has not shown this at many others.
•So, whether there is a diagnosis of complex regional pain syndrome in this particular case is difficult to make a definite decision about.”[45]
[45] DSCB19-20
(sic)
Discussion
55The opinions expressed by Mr Lugg in his first report are built on a foundation of his belief that:
(a) Ms Reynolds was recorded at the Western Hospital in 2017 to be barely able to move both knees; and
(b) Ms Reynolds’ left knee was, both before and after the incident, more painful than her right knee.
56These two assumptions led Mr Lugg to the conclusion that Ms Reynolds’ knees were, at the time of his assessment, if anything, better than they were in 2017, prior to the incident. This, in turn, appears to be the foundation of the opinion expressed in his first report that the incident was not “a significant contributing factor to the onset of the alleged condition”.[46]
[46] DACB 219
57The first assumption had no foundation in the evidence before the Court. The report of Mr Hussaini, the orthopaedic surgeon at Western Health who assessed Ms Reynolds, reports only on issues in relation to Ms Reynolds’ left knee. The defendant was not able to direct the Court to any clinical record of Ms Reynolds being assessed by the Western Hospital as having a restricted range of motion in her right knee.
58The second assumption is contradicted by Ms Reynolds’ evidence in this proceeding, that her right knee is worse than her left knee. It is also contradicted by the observations of both Dr Ganeshalingam (on 10 May 2021 and 21 April 2022) and Dr Brasier (on 19 May 2022) in their assessments of Ms Reynolds.
59I have found that Ms Reynolds was a credible and reliable witness whose evidence I should accept. Mr Lugg’s first report was finalised two months after his assessment of Ms Reynolds and under significant time pressure from the defendant’s instructing solicitor. There is no reference to Ms Reynolds’ left knee being more painful than her right in Mr Lugg’s draft report provided on 27 October 2022. I am conscious that Mr Lugg was not cross-examined in this proceeding, despite the defendant arranging for him to be available. However, cross-examination of a medical expert in a serious injury application is only available by leave of the Court and it is by no means clear that leave would have been granted in this case. Given the gateway nature of the application, it is not unusual, in a serious injury application, for the Court to be tasked with the difficult task of deciding between conflicting evidence without the benefit of cross-examination. In all the circumstances, I prefer the evidence of Ms Reynolds, Dr Ganeshalingam and Dr Brasier, to the effect that Ms Reynolds’ right knee is more painful than her left. It follows that the second assumption made by Mr Lugg was also not established on the evidence.
60Prior to preparing his second report, Mr Lugg was informed by the defendant’s solicitor that the Western Hospital assessment related to examination of Ms Reynolds’ left knee only. He was asked if this changed his opinion. Mr Lugg states in his second report that his opinion “regarding the knees” remains unchanged. He provides no explanation in his answer why he maintains his opinion in relation to Ms Reynolds’ right knee, even once informed that the Western Hospital examination was confined to Ms Reynolds’ left knee. To the extent that any explanation can be inferred, it appears to be built on his mistaken assumption that Ms Reynolds’ left knee was consistently more painful than her right knee,[47] rendering his previous error less significant. Indeed, at one point he states:
[47]Paragraphs [49] and [50] above.
“… Both knees would have been affected but the left knee has been shown to be more symptomatic than the right in the past, and I see no reason for that to change, unless the right knee suffers an isolated aggravating injury.”[48]
[48] DSCB 16
(Emphasis added.)
61He also expresses the view that, in the absence of the incident, he would expect a “gradual deterioration of the patellofemoral degenerative change in Ms Reynold’s knees and gradual increasing symptoms from the condition in both knees”.[49]
[49] DACB 217
62Ms Reynolds’ right knee has distinctly worsened since the accident and is now more symptomatic than her left knee; whereas prior to the incident, her left knee was more symptomatic than her right. On the correct factual assumptions, if anything, Mr Lugg’s second opinion appears to provide support for the view that Ms Reynolds’ right knee has suffered an aggravating injury.
63Finally, there is also an observable shift in Mr Lugg’s opinions over the course of his three reports, as more documents and detailed information is provided to him and his previous incorrect assumptions are corrected. By the time of his third report, the opinions that Mr Lugg expresses are decidedly equivocal, particularly in relation to the question of whether Ms Reynolds may have developed a complex regional pain syndrome subsequent to the incident, which would explain her current symptomology.
64The opinion expressed by Mr Lugg in his first report (and confirmed in his second report) is based on factual assumptions which have not been established on the evidence. For this reason, I prefer the opinions of the plaintiff’s medico-legal experts, Dr Ganeshalingam and Dr Brasier. The opinions of Dr Ganeshalingam and Dr Brasier also:
(a) provide a more cogent explanation for the distinct worsening in Ms Reynolds’ right knee (both considered alone and relative to the left knee) after the incident than either Mr Lugg or the defendant’s other medico-legal experts, Dr Rahgozar and Dr Ghan; and
(b) are supported by the opinions of Ms Reynolds’ treating practitioners, particularly the GP, Dr Mas Syed; pain specialist, Dr McCallum and treating orthopaedic surgeon, Mr Widjaja.
65To the extent that the defendants’ experts rely upon the lack of specific radiological evidence of injury as demonstrating that the incident did not have a lasting impact on Ms Reynolds, I prefer the opinion of pain specialist Dr McCallum that Ms Reynolds is suffering from a complex regional pain syndrome as a result of the incident. In the end, I did not understand Mr Lugg to reject Dr McCallum’s opinion in his third report and, in any event, I accept that Dr McCallum, as a pain specialist, is more qualified to diagnose a pain syndrome than an orthopaedic surgeon or an occupational physician.
66The more likely inference on the evidence is that the distinct worsening of Ms Reynolds’ right knee symptoms since the incident resulted from the incident. I am satisfied that the worsening of Ms Reynolds’ right knee symptoms after the incident is specifically referrable to the incident.
Comment on letters of instruction
67It was submitted on behalf of Ms Reynolds that the weight accorded to Mr Lugg’s opinion should be “discounted” because the first letter of instruction, dated 25 March 2022, “perniciously invites cynicism in Dr (sic) Lugg’s opinion, by including throughout selective and gratuitous observations about the Plaintiff and the opinions of other experts”.[50] The second letter of instruction, dated 16 December 2022, was also attacked as containing “gratuitous observations … directing a person who is purportedly an independent expert, towards their opinion”.[51]
[50] Plaintiff’s written outline of closing submissions, paragraph [23(c)(i)].
[51] T96, L18-22
68I prefer to deal with the reliability of Mr Lugg’s opinions as I have above, on the basis that Mr Lugg’s opinions were founded on incorrect factual assumptions.
69However, the content and tone of the first letter of instruction dated 25 March 2022 is concerning. This letter of instruction included summaries of clinical notes under a heading “Pre-existing Bilateral kneel (sic) issues/injuries”. The summaries de-emphasise the predominance of left knee issues in the clinical notes after 2017; and incorrectly describe particular clinical notes as recording “bilateral knee pain” when, in fact, a careful reading of those clinical notes reveals that they did not specify which knee was affected. Although it may be appropriate to direct an expert to relevant material from the clinical records in a letter of instruction, great care must be taken to ensure that any summaries of relevant material are accurate and that factual assumptions which an expert is asked to make are clearly identified. The letter also included an instruction that Mr Lugg “may wish to note the following matters when preparing [his] report”,[52] followed by highly selective extracts from, or comments on, previous medical reports. A letter of instruction is not a submission. The first letter of instruction crossed the line from providing appropriate assistance in identifying relevant material to actively suggesting that Mr Lugg include material beneficial to the defendant’s case in his report.
[52]Letter of instruction, dated 25 March 2022, page 6
70I do not hold similar concerns in relation to the second letter of instruction, dated 16 December 2022. That letter did not go beyond drawing Mr Lugg’s attention to an incorrect factual assumption that he had made and directing him to relevant material from the clinical records.
Consideration of pain and suffering consequences of right knee impairment
71I am satisfied that, as a result of the incident, Ms Reynolds has suffered an impairment of her right knee which has resulted in increased pain, numbness and pins and needles; made kneeling crouching and squatting difficult; prevents her from sitting, standing or walking long distances; prevents her from climbing ladders and running; disrupts her sleep; and makes household maintenance, gardening and self-care much more difficult.
72I am satisfied that, as a result of her right knee impairment, Ms Reynolds’ takes an increased dose of Panadeine Forte and requires pain medication more regularly.
73I am satisfied that, as a result of the incident, Ms Reynolds is precluded from working as a truck driver. It was clear from Ms Reynolds’ evidence that the potential her employment options might now be confined to indoor, office-based work, was deeply distressing. As she explained, in what was compelling oral evidence in the context of her otherwise undemonstrative demeanour:
“…it’s pretty yuck… It pretty hurts, gut-wrenching … Because it’s a job you loved to do and you got up to go to and I just loved to do it.”[53]
[53] T50,L29 ꟷ T51, L1
74I accept that the loss of capacity to work as a truck driver is, indeed, a very considerable consequence for Ms Reynolds.
75The preponderance of medical evidence is that the prognosis for Ms Reynolds’ right knee is poor. I am satisfied that this impairment is permanent.
76In all the circumstances, I am satisfied that Ms Reynolds has suffered a permanent impairment of her right knee which is, at least, very considerable when compared to other cases in the range of possible impairments. Accordingly, Ms Reynolds is entitled to leave to bring proceedings for pain and suffering damages.
Consideration of loss of earning capacity consequences of right knee impairment
77The defendant relied upon ten different roles which it submitted were suitable employment for Ms Reynolds and in which Ms Reynolds could earn at least 60 per cent of her without injury earning capacity. It is necessary to consider only one – that of automotive parts interpreter. This is a sales clerk role, which is largely computer based and in an area of interest to Ms Reynolds (automotive parts). Sales clerks:
“… are required to perform administrative duties associated with taking and modifying orders, preparing quotes, tracking online sales auctions, processing payments and communicating with customers and suppliers. These workers also perform general administration and reception duties”.[54]
[54] DACB 144
78According to the Recovre Vocational Assessment Report, dated 20 May 2022, in this role, workstations could be sit/stand, allowing the option for postural rotation; walking and standing is required, but is limited to short durations; and squats, kneels and bends, and carrying, lifting, pushing and pulling, are not typically required.
79When asked about this role in cross-examination, Ms Reynolds agreed that she could perform the role now, on a full-time basis;[55] and agreed it was something that interested her. She agreed that she would now look into the role.
[55] T46, L16 ꟷ T47,Ll27
80I am conscious that Dr Ganeshalingam, Dr Brasier and Ms Katrine Green (who prepared a vocational assessment report for Ms Reynolds), have expressed the view that Ms Reynolds is not capable of suitable employment. However, none specifically consider the automotive parts interpreter role. Further, although I have accepted that Ms Reynolds’ capacity to sit is more limited than it used to be, I do not accept the view expressed by Ms Green that Ms Reynolds is limited to sitting for no more than two to five minutes. Ms Reynolds’ own evidence was that she could not sit for “long periods”, particularly “in a confined space”.[56] With capacity to stretch her legs, change posture and sit and stand as needed, Ms Reynolds can plainly sit for much longer than a few minutes at a time.[57] Indeed, Ms Reynolds sat without showing any significant discomfort for more than two hours while giving evidence.
[56] Further affidavit, PACB 25
[57] T32, L20-26
81I have also taken into account Ms Reynolds’ assertion, under cross-examination, that she wouldn’t be able to do an indoor role because she would be too cooped up. There is no evidence from a psychologist or psychiatrist that Ms Reynolds is psychologically incapable of working indoors. Ms Reynolds has not tried to perform such a role since the incident; and when taken to the automotive parts assessor role, appeared quite taken with it, and willing to give it a go. I accept that Ms Reynolds has a distinct and genuinely-held preference for outdoor work. However, I am not satisfied that this renders her unsuitable for indoor employment.
82In my view, Ms Reynolds is the best judge of her current physical ability to perform the particular tasks involved in the role of automotive parts assessor. Her evidence was that she could perform this role full time. She need only work twenty-seven hours per week in this role to earn more than 60 per cent of her without injury earning capacity. Accordingly, I am not satisfied that Ms Reynolds has suffered a serious injury with respect of loss of earning capacity consequences.
Left knee impairment
83It is not necessary to consider the left knee impairment given my findings on the right knee impairment. The impairment of Ms Reynolds’ left knee as a result of the incident is less than the impairment of her right knee – both because the left knee was worse prior to the incident and because it is not as bad as the right knee after the incident. It adds nothing to Ms Reynolds’ claim.
Mental or behavioural disturbance or disorder
84In a report dated 1 June 2022, Dr André Gomez, Ms Reynolds’ treating psychologist, expressed the view that Ms Reynolds had a major depressive disorder and did not have capacity to return to her pre-injury duties. However, no updated report from Dr Gomez was tendered; Ms Reynolds gave evidence that she had not seen Dr Gomez since late last year; and Ms Reynolds did not rely upon any report from a medico-legal psychiatrist. Associate Professor Peter Doherty, a medico-legal psychiatrist retained by the defendant, expressed the view that Ms Reynolds did not have any diagnosable psychiatric condition. There is no evidence that Ms Reynolds is receiving ongoing treatment; or is rendered incapable of performing suitable employment as a result of a mental or behavioural disturbance or disorder. Ms Reynolds’ evidence as to the psychological impact of her injuries does not extend beyond complaints of sadness and guilt, and a non-specific assertion that she struggles “with anxiety and depression”.
85I am not satisfied that Ms Reynolds has suffered a mental or behavioural disturbance or disorder that is severe in its consequences, either as to pain and suffering, or as to loss of earning capacity.
Conclusion
86I will grant Ms Reynolds leave to bring proceedings for pain and suffering damages and hear from the parties on the question of costs.
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