Russell v Central Bayside Community Health Services Inc
[2010] VCC 800
•25 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
WORKCOVER LIST
SERIOUS INJURY DIVISION
Case No. CI-09-03632
| KATHLEEN NORMA RUSSELL | Plaintiff |
| v | |
| CENTRAL BAYSIDE COMMUNUTY HEALTH SERVICES INC. | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13, 14, 17 May 2010 |
| DATE OF JUDGMENT: | 25 May 2010 |
| CASE MAY BE CITED AS: | Russell v Central Bayside Community Health Services Inc. |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0800 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – injury to left knee – pre-existing degenerative change in left knee – multiplicity of other conditions.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with | Zaparas Lawyers |
| Ms N Wolski | ||
| For the Defendant | Mr S A Smith | Thomson Playford Cutlers |
| HIS HONOUR: |
1 On 12 October 2006, the plaintiff suffered injury to her left knee when she slipped on a pool of water in the course of her employment. Subsequently, she suffered a further aggravation to the knee on 20 October 2006. Radiological investigations showed significant pre-existing degenerative change in the knee. She consulted her general practitioner, Dr Kabourakis, and was placed off work as from 25 October 2006. She did not return to work thereafter.
2 Subsequently, Mr John Churchill, orthopaedic surgeon, undertook an arthroscopic operation of the knee on 2 August 2007. The plaintiff now faces the prospect of a total knee replacement.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant on 12 October 2006.
4 Mr Moore, on behalf of the plaintiff, identified the body function said to be lost or impaired as the left knee.
5 The application is thus brought under sub-section (a) of the definition of “serious injury” contained in 134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.
7 I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the knee.
8 Further, in order for me to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her “without-injury earnings” in the three-year period before and after injury, as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
9 Following Ashley, JA’s decision in Grech v Orica Australia Pty Ltd & Anor,[1] the proper analysis to determine whether a plaintiff ought to be granted leave is:
[1] (2006) 14 VR 602
(a) to establish the plaintiff suffered compensable injury after October 1999, noting injury includes an aggravation, acceleration, exacerbation or deterioration of previous injury or disease; (b) to sufficiently establish what that injury was; (c) to determine the consequences the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and (d) to determine whether those consequences attain the “very considerable” level both as to pain and suffering and economic loss as the legislation requires. 10 The plaintiff, her treating general practitioner, Dr Kabourakis, her treating orthopaedic surgeon, Mr Churchill, and a consultant orthopaedic surgeon, Mr Grossbard, gave evidence and were cross-examined. In addition, two affidavits of the plaintiff, medical reports, vocational reports and other material were tendered into evidence. I have read all the tendered material.
Relevant Background
11 The plaintiff is now sixty-three years of age. She left school in Form 4. She commenced working for the defendant in 2003. She had worked in a range of employments, including in retail as a pharmacy assistant, various processing work in factories, as a cook and as a packer. Until the early 1990’s she had been working in full-time employment save for a period of two years away from work to look after her children, and for a period of approximately eighteen months to look after her husband after a motor vehicle accident, both in the 1970s. Her husband suffered a heart attack and she spent some time at home caring for him.
12 The plaintiff had separated from her first husband in 1989 and had three sons from that marriage, all now adult and living away. She remarried in 1993 but separated again in 2001. She was off work for twelve years before commencing employment with the defendant as her second husband had an eye disease and, due to a change in her entitlement to receipt of pension benefits, she decided to return to work in 2003.
13 The plaintiff commenced work with the defendant as a bus driver transporting disabled clients from home to placement centres. She worked on a part-time basis. In late 2004, she became an assistant carer in addition to her work as a bus driver, working, in total 38 hours per week. The work was described as physically demanding, and required her to manoeuvre clients in wheelchairs, apply harnesses to them while in the bus, and to assist the clients in various ways, all requiring significant physical effort. She earned $680.00 gross per week.
14 According to the report of Dr Kabourakis,[2] on a number of occasions from 2004 to 2006, she complained of problems with her left knee. On these occasions she complained of pain, difficulties with kneeling and restriction of movement. Generally, these complaints were made in the context of attending Dr Kabourakis for other complaints.
[2] Plaintiff’s Court Book (“PCB”) 37
15 Additionally, in the course of cross-examination, the plaintiff admitted the following:
• From approximately 2005, the plaintiff’s left knee used to lock up occasionally, particularly when using the manual clutch of her car, walking on flat surfaces and walking up and down stairs.[3] • On one occasion in 2005, the plaintiff’s left knee “gave way” and she fell to the ground while shopping.[4] • Before the slipping incident on 12 October 2006 (“the subject incident”), the plaintiff suffered a constant sharp pain to the front and back of her left knee.[5] • She suffered pain from time to time in the course of manoeuvring wheelchairs and attaching harnesses to clients while driving the van.[6] • “Troublesome” pain in the left knee from time to time from 2000 which caused difficulties in walking, and on occasions was sufficiently serious to prevent the plaintiff leaving her house.[7] [3] Transcript (“T”) 27-28
[4] T 29
[5] T 30
[6] T 31
[7] T 36
16 Despite these problems with her left knee, prior to the subject incident, the plaintiff stated that she was able to maintain full-time employment, without any periods away from work, and to undertake all of her activities of daily living without restriction. She stated that the pain in her left knee was not sufficient to cause any significant alteration in her lifestyle.
17 In 1984, the plaintiff suffered a fracture to her right leg and because she placed more pressure on her left leg as a result, eventually pain developed in her left knee in approximately 2000. This was sufficient to require an x-ray at that time.[8] These problems with the left knee continued from the middle of 2000 through until the date of the first incident.[9]
[8] PCB 63
[9] T 37
18 In addition to the problems with her left knee, the plaintiff also suffered a number of other physical and psychological disorders:
•
She commenced to suffer depression in approximately 1976. This was short-lived, but recurred in approximately 2001 in the course of a separation from her second husband. It resolved shortly thereafter, and she had no further difficulties with depression until after the subject incident.
•
Pain in both hands which required cortisone treatment by Dr Kabourakis every two years or so. The problem commenced during the course of her employment in the early 1990s using her hands, and has become so severe that it is likely she will require some form of surgery.[10] The condition poses problems with gripping, writing, knitting and lifting. She has been unable to play darts for a considerable period as a result. On occasions, she had difficulty moving the wheelchairs in the course of her employment with the defendant. From 2003, the pain has been persistent and debilitating.[11] It did not interfere with the plaintiff’s capacity to look after herself nor to carry out her employment up to the time of the subject incident. She accepted that she had some difficulties in relation to activities of daily living.[12] She further stated the following:[13]
[10] T 39-40
[11] T 44
[12] PCB 54
[13] T 45
“Q:
I want to suggest to you given that the problem is on both sides with your hands, again, things like securing people in wheelchairs or harnesses in the bus?---
A: I wasn’t working then. Q: But given the way you are now, that would be difficult for you
given the state of your hands?---A: Probably, yes.”
•
Since 2001, the plaintiff accepted that she had problems with her back, largely because of her weight, which varied between 125 and 140 kilograms. This required her to stop walking after 50 metres or so. She also had difficulty bending, standing for periods of time and caused difficulties with sleep.[14] She took sleeping tablets both in respect of her knee and her back.
[14] T 46-48
19 Despite all these various problems, the plaintiff stated that she was not only able to work, but enjoyed various activities, including line dancing, and was able to wear boots before the subject incident.
The Injury and its Consequences
20 On 12 October 2006, whilst walking to the staffroom at her place of employment, the plaintiff slipped and fell heavily upon her left knee. She got slowly to her feet, and sat in a chair. She noticed she had slipped on a pool of water. Her knee was immediately painful and she felt some swelling. She placed ice on the knee. She remained at work that day, although walked with a limp. Driving the bus caused difficulty, although she was able to drive a bus with automatic gears. The next morning the knee was stiff and swollen and she took Panadol and bandaged the knee. She continued to work and made an appointment to see Dr Kabourakis.
21 On Friday, 20 October 2006, the plaintiff was getting out of a van when she turned and strained the knee further, feeling worse pain (“the second incident”). She saw Dr Kabourakis on 23 October 2006 and had an x-ray.[15] She was put off work and used crutches for a period. Dr Kabourakis injected cortisone to the left knee which did not improve her symptoms and he referred her to Mr John Churchill, orthopaedic surgeon, in December 2006. An MRI examination of 14 December 2006[16] showed severe degenerative changes in the medial compartment of the knee, and moderate degenerative changes in the patellofemoral compartment. There was a tear in the medial meniscus.
[15] PCB 63
[16] PCB 65
22 As time passed, Dr Kabourakis continued to treat the plaintiff conservatively, although her knee condition was not improving. Her walking became restricted and he prescribed paracetamol (Panadol-Osteo). He noted her weight increased. On 8 March 2007, the plaintiff reported that she had fallen again because of instability in her left knee, while walking. Dr Kabourakis acknowledged that prior to the subject incident the plaintiff had some problems in her left knee as a result of chronic degeneration, but after the subject incident, the left knee had become a –
“… persistent dominating problem affecting all aspects of her life. She has stopped line dancing, walking, weight loss has gone backward, and her mood has diminished. Her pain is so bad sometimes she spends all day in bed. She is fearful of walking as the knee can give way at any time. She uses a walking stick for support. … She has chronic melancholia and lack of drive brought on by her chronic pain and limitation of movement. Kathleen has been seeing a psychologist for these issues. ….”[17]
[17] PCB 42
23 The plaintiff has remained under the care of Dr Kabourakis who she currently sees approximately each month. He has referred her to a psychologist, Mr Tsironis, as result of a reactive depression, in the nature of a Chronic Adjustment Disorder. She was treated by Mr Tsironis over the period from December 2008 to the present. Dr Kabourakis prescribed Panadol Osteo, Lexapro, an anti-depressant, and Temazepam to assist with sleep.
24 The plaintiff previously lived in a flat in Frankston on the first floor. Because of the gradual deterioration of her left knee, she moved to premises at Baxter where there are no stairs.
25 Dr Kabourakis referred the plaintiff to Mr John Churchill, orthopaedic surgeon, in December 2006. He noted the MRI scan taken in December 2006 showed significant degenerative changes in two compartments of the left knee. He also noted a tear of the medial meniscus. He considered the plaintiff had osteoarthritis of the left knee, exacerbated by the fall in the subject incident. He performed an arthroscopy to the left knee on 2 August 2007 which confirmed his clinical assessment. After surgery, the plaintiff undertook physiotherapy and after consultation in March 2008, the plaintiff said that her left knee was no better and that she was having constant pain, particularly on the medial side of the joint, worse when walking. He considered it appropriate to offer the plaintiff total knee replacement surgery, although was concerned that she lose weight. He has not seen the plaintiff since July 2008. He considered that the prognosis was for worsening pain in the left knee to the point where the plaintiff would require a total knee replacement.
26 The WorkCover Authority sent the plaintiff to Work Focus for vocational assistance. She undertook a computer course in February 2008, and an internet course to learn the basics.
27 The plaintiff states that the pain in her knee is ongoing and worse of recent times. She claims the knee is swollen and she has difficulty with walking. She uses a stick in her right hand to assist. On occasions the knee locks up. She uses a heat pack from time to time and an ice pack to combat the swelling. She drives a manual car for short distances. The pain in the knee is worse in cold weather. She lives by herself and is able to undertake the basic activities of daily living, including cooking and cleaning. She has assistance from a friend while doing the shopping. She used to enjoy dancing but is now unable to do so. She does not socialise as she did before the subject incident and feels isolated and cut off.
28 Of her various physical and psychological complaints and conditions, her left knee problem, she states, is the worst. She has attempted to lower her weight so as to reduce the risk in the prospective left knee surgery. She is on a waiting list at the Dandenong Hospital for knee replacement surgery but does not want to proceed at the present time as she has spoken to a friend who had a poor result.
29 She does not feel she is able to undertake any of the areas of employment which have been suggested by Work Focus. She believes office and computer work is beyond her and she has little experience in the area. Other areas of employment, including as a support worker, therapy aide or in customer service would require her to move around and use her left knee and she feels she would not be reliably able to do that work.
Medical Evidence
30 As stated, Dr Kabourakis is the plaintiff’s treating general practitioner. He provided various reports,[18] and gave viva voce evidence. He did not receive a history of the second incident.[19] He considered that at the present time, the plaintiff was unable to return to any form of gainful employment because of left knee pain and restriction.[20]
He considered that up to the time of the subject incident, her left knee problem had been intermittent but subsequently, the pain had become daily and persistent.
[18] PCB 35-42
[19] Clinical notes of Dr Kabourakis – 23-25 October 2006
[20] PCB 40
31 In the course of his evidence, Dr Kabourakis considered the plaintiff to have a good work ethic. He acknowledged that the problems with her right hand and lower back were significant, but they did not stop her working. He considered that she was keen and happy to work. He regarded her left knee as the most significant problem.
32 When questioned as to the likely progress of the degenerative process in the plaintiff’s left knee, had she not suffered the fall in the subject incident, Dr Kabourakis said that it was impossible to predict as to the state that her knee would be in at the present time. He noted, however, that she was able to work and undertake a range of activities up until the time of the incident. He considered that sooner or later, the plaintiff would come to total knee replacement surgery and that it was better left as long as possible as, at her age, it was likely to require a further replacement at a later time. He considered that the majority of people undergoing that surgery do well with reduced pain, although there are always risks with the procedure.
33 When it was put to Dr Kabourakis in cross-examination, the plaintiff’s own evidence as to the problems with her left knee over the period from 2000 to the date of the subject incident, he accepted that the plaintiff had significant symptoms in the left knee before the subject incident, and it was feasible that those symptoms would have worsened without the fall. He noted, however, that up until the date of the fall, she was functional and afterwards was unable to work and unable to undertake many of the activities she enjoyed. He said there was a significant deterioration of the left knee condition since the fall.
34 When apprised of the second incident, Dr Kabourakis accepted that it was more likely that a meniscal tear would occur in a twisting incident rather than in a falling incident.
35 Mr Churchill provided various reports[21] and gave viva voce evidence. He considered the plaintiff suffered osteoarthritis in the left knee which had been exacerbated by the subject incident. He received a history from the plaintiff that she had not suffered any symptoms to her left knee before the injury. He considered that she was not fit to return to her pre-injury employment but would be able to undertake sedentary work providing it did not involve any significant physical activity. Her prognosis was for worsening pain in the left knee to the point where she would require a total knee replacement but that should not be undertaken unless the pain and restriction in her activities of daily living became very significant. He would prefer her to reduce her weight to under 100 kilograms before such surgery.
[21] PCB 43-47
36 When the second incident was described to him, he accepted that the meniscal tear may have been caused in that incident.
37 When the plaintiff’s complaints of left knee pain prior to the subject incident, as recorded by Dr Kabourakis, were put to Mr Churchill, together with her evidence under cross-examination of the various problems with the left knee since 2000, Mr Churchill acknowledged that he did not obtain that history. He accepted that those complaints were consistent with the degenerative change seen on the MRI. He noted, however, that she was able to work in a physically demanding job and the escalation of her symptoms caused in the subject incident indicated that something major had changed.
38 In terms of her current presentation, he accepted that it was not possible now to say which of the symptoms from which she was suffering occurred as a result of the fall in the subject incident, and which occurred as a result of general degeneration of the knee. He accepted, however, that the subject incident had a significant impact upon the plaintiff.
39 Mr Charles Flanc, general surgeon, reported on 31 March 2010 and 10 May 2010.[22] He received a history of the subject incident, and the second incident. He also noted that the plaintiff had “intermittent niggles and aches in the left knee” prior to the subject incident. He considered the plaintiff had suffered a major injury to her left knee on 12 October 2006 when she fell to the ground. A further aggravation occurred on 20 October 2006. He said that the plaintiff had longstanding degeneration of the articular cartilage of the medial compartment of the knee evidencing longstanding osteoarthritis. The various incidents referred to in the report of Dr Kabourakis prior to the subject incident probably were small aggravations of the pre-existing degenerative condition in the knee. The episode of 12 October 2006 was a major aggravation. The further episode of 20 October 2006 was a further aggravation, but not as severe as the subject incident. He considered that the plaintiff would have continued to work had it not been for the subject incident, although she would have been vulnerable to recurrences of a painful knee due to the underlying condition. He stated she did not have the capacity to return to her previous employment and theoretically she could perform sedentary work on a part- time basis but given her education and background, had no realistic work capacity. He thought her condition would not improve unless she had a total knee replacement.
[22] PCB 66-75.2
40 In relation to the various employment positions suggested by the defendant, while theoretically the plaintiff might be able to undertake receptionist or customer service work, this would depend upon whether she was required to walk and be on her feet and Mr Flanc doubted whether she had the computer skills necessary. It would also depend upon the hours she was required to attend. Work as a product assembler would probably not be suitable.
41 Mr Garry Grossbard, orthopaedic surgeon, provided reports of 23 April 2010 and 11 May 2010.[23] He also attended to give evidence and be cross- examined. He received a history of the fall in the subject incident, and the twisting aggravation in the second incident. He did not obtain any history of problems the plaintiff suffered before the subject incident. He considered that the plaintiff had an osteoarthritic left knee which was aggravated in the subject incident and further aggravated in the second incident. Either, he said, could have contributed to the tearing of the meniscus. Her prognosis was for progressive degeneration of the knee which would probably require knee replacement surgery in the long-term. This surgery ought to be delayed as long as possible given the plaintiff’s age and weight. He considered the plaintiff would not be able to return to work as a bus driver but could possibly undertake work involving lighter activity.
[23] PCB 76-78.1
42 When the complete history of the plaintiff’s problems prior to the subject incident was put to Mr Grossbard, he considered that those matters would not really change his opinion. He thought that the incidents of 12 and 20 October 2006 caused her to stop work. He was unable to distinguish between the two incidents as to which was more responsible for her current pain. He accepted that classically, a twisting incident was more likely to cause a meniscal tear. He accepted that the MRI of 2006 showed very significant degenerative change which had been present over a long period.
43 On behalf of the defendant, the plaintiff was examined by Dr Ralph Poppenbeek, consultant in rehabilitative medicine, in December 2006.[24] He obtained a history of the subject incident, and the second incident, but no history of prior problems with the left knee. He concluded that the plaintiff probably had a tear of the posterior horn of the medial meniscus of the left knee with underlying widespread severe degenerative change in the knee. He considered there were three contributing factors: firstly, the pre-existing constitutional degenerative change; secondly, the fall of 12 October 2006 and, further, the twisting strain of 20 October 2006. Each of the subject and second incidents was an aggravation of the pre-existing condition, resulting in a meniscus tear. He considered the plaintiff had no capacity for her pre-injury work although she may be able to obtain sedentary work which did not involve walking or standing for any period. He noted the plaintiff was in significant pain.
[24] Defendant’s Court Book (“DCB”) 1-3
44 The plaintiff was next examined by Mr Paul Kierce, orthopaedic surgeon, on 20 May 2008.[25] He obtained a history of the subject incident, but not of the second incident. The plaintiff denied to Mr Kierce any previous trouble with the left knee. He concluded that the plaintiff had aggravated pre-existing osteoarthritis of her left knee in the subject incident which was likely to have caused a tear to the already degenerate medial meniscus. He thought the plaintiff was unfit for pre-injury duties, but was fit for sedentary work. He considered the plaintiff did require a total knee replacement, but this was not related to her work, but rather as a result of the underlying degenerative condition.
[25] DCB 10-19
45 The plaintiff was examined by Professor John Hart, orthopaedic surgeon, on 12 January 2010 and reported on 12 January 2010 and 18 April 2010.[26] He obtained a history of the subject incident and the second incident. He noted, from the report of Dr Kabourakis, a significant past history in relation to the left knee. When questioned by Professor Hart about this, the plaintiff stated that she had injured the left knee earlier on but had recovered. He said the plaintiff suffered osteoarthritis in the left knee with a major involvement of the medial compartment and moderate involvement of the patellofemoral joint. The left knee became a very significant problem following the subject incident. He considered the plaintiff had a poor prognosis and that her symptoms would become progressive and she was, at the time, significantly disabled and likely to require a total knee replacement. The subject incident aggravated the pre- existing osteoarthritis in the left knee and possibly caused a tear to a degenerate medial meniscus. The plaintiff, he said, did not have a capacity for pre-injury duties but would be capable of undertaking a sedentary job although he noted she did not have computer skills. In relation to the areas of employment identified by Work Focus, he said the plaintiff had agreed she would be able to do office work, preferably in the disability area. Professor Hart noted the plaintiff had not divulged details of the pre-existing left knee to him, and to other examiners, and considered she was exaggerating.
[26] DCB 22-40
46 Professor Hart identified a number of areas of employment in respect of which he concluded the plaintiff could work, including:
• clerical assistant • customer service assistant • receptionist
• process worker • product assembler and packer/machine operator. 47 He said it appropriate that she should resume work on a part-time basis at 5 hours, three days per week initially and progressively increase. It would be a condition of such employment that she did not have to kneel, squat, or stand or sit for long periods.
Vocational Reports
48 On behalf of the defendant, Work Focus provided a range of assessments and reports.[27] In particular, that company identified areas of employment, including:
[27] DCB 41-121
[28] DCB 84
• office assistant • disability services/support worker • therapy aide.[28] 49 Further:
• home support worker • therapy aide • customer service/enquiry clerk • receptionist.[29]
[29] DCB 89
50 A comprehensive analysis of the various duties involved in:
• a receptionist’s position[30] • product assembler[31] was also undertaken.
[30] DCB 107-109
[31] DCB 110-115
51 On behalf of the plaintiff, a vocational assessment report was undertaken by Mr Bill Radley, psychologist and vocational assessment specialist, on 17 March 2010 and 11 May 2010.[32] In summary, Mr Radley was of the view the plaintiff had no work capacity for pre-injury employment, and no work capacity for any alternative employment, including the various employment positions proposed by Work Focus. He considered the plaintiff unemployable.
[32] PCB 79-105.18
52 I was not greatly assisted by the vocational reports as, in my view, the capacity of the plaintiff to undertake alternative employment lies within the province of medical practitioners.
The Plaintiff’s Credibility
53 I had the opportunity to assess the plaintiff in the course of cross-examination. She presented as a somewhat nervous and uncertain witness, although gave her evidence in a forthright manner and made concessions I would expect of an honest witness.
54 It is clear that she failed to give a true history of the condition of her left knee to many of the practitioners, and on occasions denied any prior problems. In the course of her evidence, she stated that she was intimidated, particularly by Mr Kierce and Dr Poppenbeek, whose attitude she described as arrogant and who she claimed caused her pain on examination. She further stated that she was scared of saying something which might affect her claim.
55 I formed the view that generally, the plaintiff was an honest witness. I accept that her lack of frankness in the history provided to a number of practitioners was out of concern for her claim against her former employer. As such, I should have some reservations about her credit and take that matter into account when assessing her evidence.
Submissions of the Defendant
56 Although not conceding that the consequences to the plaintiff in relation to the current state of her left knee did reach the “very considerable” level in respect of pain and suffering and that the plaintiff satisfied the statutory test in relation to loss of earnings, Mr Smith did not argue the point with vigour.
57 Firstly, Mr Smith stated that the current condition of the plaintiff’s left knee was as a result of, firstly, the underlying and very extensive pre-existing degenerative process in the knee which had caused very significant problems to the plaintiff before October 2006; secondly, the subject incident and, thirdly, the second incident. Mr Smith noted the opinions of various practitioners, in particular, Mr Grossbard, that the subject incident and the second incident were both responsible for a significant aggravation. He referred to the difficulty the various doctors found, in particular Dr Kabourakis,[33] and Mr Grossbard,[34] in determining which of the incidents caused the current consequences. Further, the evidence of Dr Kabourakis[35] and Mr Churchill,[36] that looking at her symptoms at the present time, it was not possible to say that absent the two incidents, her current state would have been significantly different.
[33] T 85
[34] T 101
[35] T 84
[36] T 125
58 Thus, said Mr Smith, the onus being upon the plaintiff, she was not able to prove that the current consequences to her of her left knee injury, setting aside the consequences of the pre-existing degenerative condition, and the second incident reached the requisite level.
59 Mr Smith contended that the situation was further compounded by the fact that the plaintiff had various other significant co-morbid conditions. These involved a significant depressive condition, low-back pain and restriction and, in particular, an arthritic condition of her hands, in particular, the right hand, which significantly restricted her in a range of activities, both domestic and employment related. For example, the plaintiff claimed difficulties with sleep because of her left knee. However, her sleep problems were also related to her back condition. Likewise, walking, driving a car, and the restriction in a range of activities, because of the problems with her hands, meant that the consequences of which she complained were causatively related to these other various co-morbid conditions.
60 Again, said Mr Smith, the onus being upon the plaintiff, she was not in a position to prove that the consequences emanating from the left knee alone met the requisite test as to both pain and suffering and economic loss.
Submissions of the Plaintiff
61 Mr Moore pointed to the fact that before the subject incident, the plaintiff was working 38 hours per week, without any time off, in a physically arduous job. That job required her to move in and out of a van, manoeuvre patients in wheelchairs and attach harnesses, all of which were demanding tasks. The plaintiff was able to attend to these tasks with little difficulty.
62 The plaintiff gave evidence that she had aspirations to work until age sixty five or beyond, and such was her financial situation that it was reasonable to infer that she would have worked for a considerable period after 2006. She gave evidence that in 2006 she enjoyed the work, enjoyed the company of the people with whom she worked and when she was unable to continue, missed her work and the social contacts it provided.[37] Dr Kabourakis was impressed by the plaintiff’s work ethic.[38]
[37] T 60
[38] T 67
63 In relation to the two incidents, the evidence of Dr Kabourakis,[39] who had treated the plaintiff over a very considerable period, stated that the subject incident had a major impact upon her life. Mr Churchill, the treating orthopaedic specialist, had a similar opinion.
[39] T 93
64 While accepting the plaintiff had various co-morbid conditions, Mr Moore submitted that none of these prevented her from working and enjoying life at the time of the subject incident and nor was there anything in the opinion of Dr Kabourakis that any of these would lead to a significant restriction in her domestic, recreational and social life, or her employment.
Conclusions
65 The starting point is to note that the plaintiff, immediately prior to the date of the subject incident, had a very significant degenerative condition in her left knee. That is clear from the MRI investigation, and is the opinion of all of the medical practitioners. In addition to the condition, the plaintiff had various problems with the left knee over the years, particularly from 2000. She had pain which, in the years before 2006 was sharp and reasonably consistent. She attended her general practitioner on a number of occasions. On some occasions the knee locked and even gave way. What is significant, however, is that up until October 2006, the plaintiff was able to carry out her rigorous employment duties without significant difficulty, without any time off, and without medication. Further, she enjoyed life generally, enjoyed the company of her fellow workers, attended a local hotel and was able to carry out most of her recreational, domestic and social activities without restriction. While fifty- nine years of age in 2006, I accept the plaintiff’s evidence that she intended to remain in employment to age sixty-five or possibly beyond.
66 The next step, in my view, is to determine the current state of the plaintiff’s left knee, and its effect upon her life. There is little doubt that the plaintiff has a serious left knee condition. She has had arthroscopic surgery to trim the meniscus of the knee which has not provided significant relief. She suffers ongoing serious pain and restriction. She walks with the aid of a walking stick and limps significantly. She requires regular pain-relieving medication and I accept that a range of activities, including sleeping, walking, bending, kneeling and squatting are all affected by her left knee problem. Such is the significance of the problem that most practitioners expect that sooner or later she will come to knee replacement surgery. This is major surgery, which may well need to be repeated, and while in the majority of cases patients gain significant pain relief, there are various risks and the outcome is not always certain.
67 The medical opinion is uniform that the plaintiff does not have the capacity for her pre-injury duties. Various alternative areas of employment have been suggested by the vocational specialists, including those areas of sedentary occupation, but particularly bearing in mind the opinion of Dr Kabourakis, I am not satisfied that the plaintiff has the capacity to undertake work in those areas. In considering the issue, I bear in mind the definition of “suitable employment” as set forth in s.5 of the Act. The plaintiff has little in the way of education or experience in office work and I accept her computer skills, despite her attempts to do courses, are limited. In all the circumstances, I am of the view the plaintiff has no current work capacity.
68 The real issue, as identified by Mr Smith, is whether the consequences of which the plaintiff complains can be directed to the subject incident rather than to the second incident, or the pre-existing condition, and further whether that pre-existing condition progressed to the point where, absent the incidents, the plaintiff would be suffering in much the same way as she now does, in any event. Further, as identified by Mr Smith, whether her co-morbid conditions would have led to loss of employment and loss of social, domestic and recreational activities in any event.
69 I shall first consider the plaintiff’s co-morbid conditions. It is clear the plaintiff has a depressive condition which has required treatment by her general practitioner, consultation with a psychologist, and medication. Further, the plaintiff has a lower back condition which affects her sleep, and restricts her various movements, including her ability to walk for long periods.
70 Of most significance is an arthritic condition which affects both her hands, in particular her right hand. She is unable to lift items of any weight, open jars with a twisting motion, and it has prevented her from participating in darts which she enjoyed for a considerable period. As the plaintiff admitted, such a condition was likely to, at least at the present time, provide restrictions in her ability to carry out her employment, were she still to be employed. I did not have any substantial medical opinion as particularly to the low-back condition and hand problem. It is difficult to therefore understand the true nature of these conditions.
71 In Acir v Frosster Pty Ltd,[40] Forrest, J concluded that an unrelated supervening event which rendered a worker unable to carry out employment, in that case cirrhosis of the liver, was not a matter to be taken into account in a serious injury application, but rather a matter to be determined in the assessment of damages at trial. However, his Honour said:[41]
“…The consideration of the period of the three years after the injury is confined to these matters. On this analysis a court would be entitled to look at a worsening of a pre-injury condition affecting a worker’s capacity before the injury, but not to an independent supervening medical condition which would be a consideration solely at the damages trial. …”
[40] [2009] VSC 454
[41] at paragraph 175
72 I conclude that the plaintiff’s co-morbid conditions do not constitute a supervening event as was considered by Forrest J.
73 However, in my view, it is again important to focus upon the state of the plaintiff’s health immediately before the subject incident. She was, as stated, able to work on a full-time basis. She enjoyed a range of other domestic and social activities. Within a short period, these things were taken from her. Further, at the present time the plaintiff has very significant pain in the left knee which of itself restricts her in many areas. While some of the consequences to which she refers, in particular restriction of movement, sleep and some domestic affairs are affected by these other co-morbid conditions, the injury to her left knee in itself has given rise to very significant consequences which I am satisfied achieve the statutory requirement both in respect of pain and suffering and loss of earnings. While it may be said that, absent the subject and second incidents, the plaintiff would now have been restricted, possibly considerably so, in her employment, I am nonetheless satisfied that the knee injury of itself, as from 2006, rendered the plaintiff unemployable. The fact of these various other co-morbid conditions does not affect my view in that regard.
74 The second contention of the defendant relates to the various causes of the left knee injury. There are clearly three: firstly, there is significant osteoarthritis in the left knee which pre-existed the incidents; secondly, there is the subject incident and then, thirdly, the second incident. I accept the opinion of various of the doctors, in particular, Dr Kabourakis and Mr Churchill, that it is difficult, looking at the situation now, to determine which of these events (presuming the pre-existing degenerative condition is an “event”) is responsible for the consequences for which the plaintiff currently suffers.
75 In Grech v Orica Australia Pty Ltd & Anor,[42] Ashley, JA considered the concept of a consequence having a multiplicity of causes. In my view, his Honour’s comments are apposite, even notwithstanding that case was more concerned with the determination of the cause of an injury before and after the “black hole”. His Honour said:[43]
“… It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”
[42] (2006) 14 VR 602
[43] at paragraph 58
76 His Honour concluded that the question to be resolved was whether an injury materially contributed to an incapacitating consequence.[44]
[44] at paragraph 65
77 I accept that there are the three contributing factors to the plaintiff’s left knee injury. I do not find it necessary to determine which of those is the most significant, and in what proportions the others contributed. I am of the view that the subject incident did “materially contribute” to the plaintiff’s current condition and the consequences to her of it. All of the medical evidence is to the effect that the subject incident did significantly aggravate the underlying condition. In my view, that was a major aggravation. I note the plaintiff kept working up until the time of the second incident, although I accept her evidence that she was restricted in the manner in which she was able to work and restricted in movement of the knee generally. I accept that the second incident played an aggravating role as well.
78 In summary, the plaintiff does suffer consequences as to pain and suffering which achieve the “very considerable” level in relation to her left knee. Further, I am satisfied that she currently has no work capacity as a result of her left knee problem. While there are various contributors to that condition, I am satisfied that the subject incident did materially contribute to her current consequences. Thus the plaintiff’s action succeeds. I shall make orders granting leave and as to costs.
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