Ryan v Victorian WorkCover Authority
[2020] VCC 1476
•22 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-03598
| MICHAEL CHARLES RYAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 1, 2, 3, 4, 7 and 8 September 2020 | |
DATE OF JUDGMENT: | 22 September 2020 | |
CASE MAY BE CITED AS: | Ryan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1476 | |
REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords: Negligence – Occupational Health & Safety Regulations – causation – right knee injury – aggravation – pain and suffering
Legislation Cited: Wrongs Act 1958 (Vic); Occupational Health and Safety Act 2004 (Vic); Occupational Health and Safety Regulations 2007 (Vic)
Cases Cited:Govic v Boral Australian Gypsum Ltd [2015] VSCA 130; Swain v Waverley Municipal Council [2005] HCA 4; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Browne v Dunn [1893] 6 R 67; Pasqualotto v Pasqualotto [2013] VSCA 21; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Zumeris v Testa [1972] VR 839
Judgment: Claim successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Maurice Blackburn Lawyers |
| For the Defendant | Mr M Clarke with Mr S Martin | Wisewould Mahony |
HER HONOUR:
Preliminary
1 Mr Ryan is a fifty-three-year-old man who claims damages for an injury which he sustained to his right knee on 21 January 2010 whilst updating the GPS unit in a Freightliner truck, during the course of his employment with Transport Permanents Pty Ltd (“the defendant”).[1] Mr Ryan said that to perform this task, he was required to remove the truck’s dashboard and insert a USB stick into the GPS unit. Whilst re-fitting the dashboard, Mr Ryan was perched on the edge of the passenger seat, leaning across to place a screw in the driver’s side of the dashboard, when his right knee locked and he felt extreme pain (“the dashboard incident”). Prior to the dashboard incident, Mr Ryan had suffered symptoms in his right knee since his early 20s and had undergone two arthroscopies. Subsequent to the dashboard incident, Mr Ryan underwent three further arthroscopies and, in 2017, he had a total knee replacement.
[1]Mr Ryan’s employer ceased trading in 2010 and was deregistered on 27 May 2018. The Victorian WorkCover Authority is the named defendant pursuant to s601AG of the Corporations Act 2001.
2 Mr Ryan claims that he suffered his injury due to the defendant’s negligence and/or as a consequence of a breach of the Occupational Health & Safety Regulations 2007 (Vic) (“the Regulations”). Mr Ryan claims he had not been trained in how to perform this task and that it was a job that required two people for it to be safely carried out. Mr Ryan seeks damages for his pain and suffering and loss of enjoyment of life arising from the injury he sustained in the dashboard incident, as well as symptoms in his left knee due to overuse, and a consequential depressive condition which he developed as a result of his ongoing knee pain.
3 The defendant denies it was negligent and also denies that the Regulations applied to the task Mr Ryan was performing at the time of the dashboard incident. In the alternative, the defendant submitted that if it was liable, then the damages that I should award to Mr Ryan should be extremely modest, as although he experienced pain in his right knee at the time of this incident, this event did not alter the course of inevitable deterioration in his knee, due to his pre-existing condition.
4 Mr Ryan was called to give evidence, as was one of his treating surgeons, Dr Anita Boecksteiner, and a medico-legal orthopaedic surgeon, Mr Rodney Simm. Also in evidence were numerous medical reports, clinical records and other documents relevant to the dashboard incident and Mr Ryan’s pre-existing knee condition. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons that follow, I am satisfied that the defendant was negligent for requiring Mr Ryan to perform this task on his own. I am also satisfied that given the size of the dashboard, the task of removing and re-fitting it, constituted hazardous manual handling and that the defendant breached its duty under the Regulations. I am satisfied that the negligence and breach of the Regulations was a cause of an aggravation of Mr Ryan’s pre-existing right knee condition, and that it aggravated and accelerated this condition. For his pain and suffering arising from this, I award Mr Ryan general damages of $200,000.
The dashboard incident
6 Mr Ryan said that in his role as the morning supervisor, his working day involved him starting at 7.00am. Mr Ryan said he spent approximately five to six hours each day assisting with the loading and unloading of boxes onto trucks. He also said part of his role involved doing paperwork in the office and additional administrative tasks.
7 In January 2010, the defendant arranged for the professional installation of GPS units in each of its trucks. Mr Ryan estimated there were in excess of 30 trucks within the fleet.
8 On 21 January 2010, Mr Ryan said that his manager, Mr Andrew Burgess, asked him to upgrade all the GPS units within the defendant’s fleet of trucks. Mr Ryan said this involved placing a USB stick into each GPS unit and waiting for the updated information to upload, at which time a blue light would turn on to indicate the upgrade was complete. Mr Ryan estimated there were at least 20 trucks which he would be required to upgrade.
9 Mr Ryan said he queried with Mr Burgess why he was required to do this, and was simply told “’cause I told you to”.
10 Mr Ryan said that Mr Burgess directed him to the defendant’s mechanics’ workshop. Mr Ryan said he attended there and asked the manager in the workshop why the mechanics were not doing this task. Mr Ryan said he was told it was not the mechanics’ job. He was then handed a Phillips-head screwdriver and a flat-end screwdriver, and told that the units were behind the dashboards.
11 Mr Ryan said he had to work quickly as this task was required to be completed before the trucks were loaded and ready to leave the yard.
12 Mr Ryan said the first truck he got into was a six-pallet tray truck, and the task of updating the GPS unit was relatively simple, as the unit was behind the steering wheel. Mr Ryan said he was able to update that GPS unit without being required to manipulate any hardware components with the truck’s dashboard and thus completed the task in a matter of minutes.
13 Mr Ryan said he then went to the next truck, a Freightliner Argosy, which he described as a prime mover able to tow a semi-trailer. Mr Ryan said the width of the dashboard in this truck was approximately seven feet.
14 Mr Ryan said he climbed up into the passenger side of the truck and sat in the passenger seat. Mr Ryan said he was able to follow the cord of the GPS unit along the windscreen and down underneath the truck’s dashboard. Mr Ryan said he proceeded to unscrew the dashboard and then pulled it forward whilst he upgraded the GPS unit with the USB stick. Mr Ryan said he then moved the dashboard back into place and was about to re-attach it when he suffered his injury.
15 Mr Ryan said he was positioned on the passenger seat, with his left buttock on the edge of that seat. Mr Ryan said there was a gap between the passenger seat and driver seat, and his right leg and buttock were in that gap whilst he was reaching forward and across the dashboard in an attempt to place a screw. He said his feet were on the floor of the truck cabin, his right leg was under him and his right foot was “bent practically back under” him.
16 Mr Ryan said his body was leaning to the right, his right hand was on the driver’s side of the dashboard, and his left hand was holding the dashboard in place on the passenger side. Mr Ryan said he felt that all of his weight was in his right knee as he was leaning to the right.
17 Mr Ryan said that performing this task was similar to being a “contortionist” and the activity was “awkward” as it involved stretching his arms as far apart as he could on both sides. Whilst in this position, Mr Ryan experienced extreme pain as his right knee locked and he fell into the gap of the cabin between both seats and the dashboard.
Mr Ryan’s claim in negligence
18 As Mr Ryan’s employer, the defendant was under an obligation to provide a safe system of work.
19 In closing submissions, Mr Ryan alleged that the defendant was negligent for not training him in the task he was to perform, and for not providing him with any assistance.
20 At the commencement of the hearing, Mr Ryan’s solicitors foreshadowed reliance upon an opinion from ergonomist, Mr David Harry; however, by the afternoon on the first day of the trial, it withdrew its reliance on his report. Instead Mr Ryan relied upon his own suggestion that if there was an extra person working with him, “they could have sat in the driver’s seat while I sat in the passenger seat and screwed all the screws back in without leaning around”.
21 In closing submissions, the defendant referred to the Court of Appeal decision in Govic v Boral Australian Gypsum Ltd,[2] in which the Court noted that the onus was on a plaintiff to provide evidence as to what the proper system of work should have been.
[2][2015] VSCA 130
22 Further, the defendant referred to the High Court decision in Swain v Waverley Municipal Council[3] and comments made by McHugh J that in some cases, common knowledge or common sense is sufficient for a plaintiff to satisfy the court of how the injury could have been avoided. Whereas in other cases, “[w]here the issues involve ‘technical knowledge and experience’, the plaintiff must provide evidence as to what the defendant ought to have done. …”.[4]
[3] [2005] HCA 4
[4](ibid) at paragraph [45]
23 The defendant submitted that the removal and re-installation of the dashboard of a prime mover, and what is and is not, a practicable alternative system of work or procedure, falls within a field of technical knowledge and experience. It was submitted that Mr Ryan ought to have adduced expert evidence as to what practicable alternative the defendant ought to have adopted or mandated in the circumstances.
24 I do not accept this. Mr Ryan gave evidence that he had no experience in the task he was required to perform, but that he was able to locate the GPS unit by following the cord from the windscreen to where the unit was located in the vehicle, in this case, underneath the dashboard. He then said he was able to remove the screws which held the dashboard in place. Once the GPS unit was updated, Mr Ryan said it was a matter of repositioning the dashboard, reinserting the screws and tightening them.
25 I consider it is a matter of common sense that holding a seven-foot long dashboard in place is a task easier and more safely performed if there is a person holding it at either end. That is, one person sitting in the passenger’s side of the truck and the other, sitting in the driver’s side. The positioning of the dashboard and reinserting of screws would then involve each person working on an area of approximately three-and-a-half feet, which would eliminate the need for awkward stretching from one side of the dashboard to the other. An expert was not required to explain what is a relatively simple way of safely performing this task.
26 Mr Ryan submitted that the Court should take a common sense approach in determining attribution of legal liability. It was noted that whilst the “but for” test is important, the Court is entitled to exercise a valued judgment in determining the issue. In March v E & M H Stramare Pty Ltd,[5] Dean J noted that the court must be satisfied that the “identified negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that, as a matter or ordinary common sense and experience, it should be regarded as a cause of it …”.[6]
[5](1991) 171 CLR 506
[6](ibid) at 524
27 I also consider it a matter of common sense that if Mr Ryan performed this task with a co-worker, he would not have been sitting on the edge of the passenger’s seat whilst leaning across to the driver’s seat. If two people were in the truck, Mr Ryan would have been able to perform the task sitting with both buttocks on the seat. This would have been a safer way of doing the task, and if done in this manner, I am satisfied that Mr Ryan’s injury would have been avoided. I am therefore satisfied that the defendant was negligent for requiring Mr Ryan to perform this task on his own, and that such negligence was a cause of his injury.
Mr Ryan’s claim in respect of the Regulations
28 Regulation 1.1.5 defines “hazardous manual handling” as:
“(a) manual handling having any of the following characteristics—
(i) repetitive or sustained application of force;
(ii) repetitive or sustained awkward posture;
(iii) repetitive or sustained movement;
(iv) application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;
Example
The force required to lift or otherwise handle heavy weights, to push or pull objects that are hard to move, to operate tools that require the use of 2 hands to exert sufficient force but that are designed for one hand or to operate tools that require squeezing of grips that are wide apart.
(v) exposure to sustained vibration;
(b) manual handling of live persons or animals;
(c) manual handling of unstable or unbalanced loads that are difficult to grasp or hold.”
29 Mr Ryan claims that updating the GSP unit involved removing and re-fitting the dashboard and was a hazardous manual handling activity which involved a “sustained awkward posture” as identified in Regulation 1.1.5(a)(ii) and also “sustained movement” as identified in Regulation 1.1.5(a)(iii). Further, it was submitted that it required the “application of high force” as identified in Regulation 1.1.5(a)(iv).
30 The defendant disputed the Regulations applied to the task of removing and re-fitting the dashboard. The defendant submitted that the characteristics identified in Regulation 1.1.5(a) had no relevance to the task which Mr Ryan was performing at the time he suffered his injury; that is, leaning forward and to the right to insert a screw with his right hand, with his left hand on the dashboard. Further, it was submitted that the task did not require sustained force, awkward posture, or sustained movement so as to bring it within sub-paragraphs (i)-(iii) (inclusive) of the definition; and nor did it require the application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking it, so as to bring it within paragraph (iv) of the definition.
31 Although I accept the task did not involve the application of force, I do accept the task involved a sustained awkward posture; that is, balancing the seven-foot long dashboard, whilst reinserting the screws, with arms outstretched to each side, and leaning across to one side. I accept Mr Ryan’s description of this as being an awkward position, similar to being a “contortionist”.
32 As I am satisfied that the task of removing and re-fitting the dashboard constituted hazardous manual handling under Regulation 1.1.5(a)(ii), the defendant had a duty imposed on it under Chapter 3 of the Regulations. These regulations require an employer to:
(a) so far as is reasonably practicable, identify any task by an employee involving hazardous manual handling;[7] and
[7]Regulation 3.1.1
(b) either:
(i) eliminate the risk or, if that is not reasonably practicable, then to
(ii) reduce the risk so far as is reasonably practicable.[8]
[8]Regulation 3.1.2
33 Further, an employer must ensure that any measures implemented to control manual handling risks are reviewed and, if necessary, revised.[9]
[9]Regulation 3.1.3
34 The defendant conceded that if I was satisfied that the Regulations applied, there was no evidence that the defendant had complied with the Regulations. However, the defendant submitted that I could not be satisfied that any such breach was causative of Mr Ryan’s injury.
35 I am satisfied that if the defendant had identified this task as involving hazardous manual handling, and as obliged by the Regulations, then eliminated or reduced the risks associated with it by requiring, as was reasonably practicable, that it be performed by two people, then Mr Ryan’s injury would have been avoided. I am therefore satisfied that the defendant’s breach of the Regulations was a cause of Mr Ryan’s injury.
Damages
36 Having determined that the defendant was negligent, that it breached its duty under the Regulations, and that such negligence and breach were a cause of injury to Mr Ryan, it is now necessary for me to assess Mr Ryan’s damages.
37 Mr Ryan claims damages for his pain and suffering and loss of enjoyment of life. The parties agreed that Mr Ryan had a pre-existing right knee injury prior to the dashboard incident. As such, in assessing Mr Ryan’s claim for damages, it is important to understand the extent of that pre-existing condition, so as to determine the impact which the dashboard incident had upon him.
Mr Ryan’s right knee condition prior to the dashboard incident
38 Mr Ryan said that when he was approximately twenty and twenty-two years of age, he underwent knee arthroscopies. Although Mr Ryan said he could not now recall which knee the surgeries involved, when he subsequently completed a Worker’s Injury Claim Form for a right knee injury in 2003, he indicated at that time he had previously undergone right knee arthroscopies. Mr Ryan recalled that he had provided this information in the Claim Form, after checking with his mother.
39 Mr Ryan said that after these arthroscopies, his knee was “good”.
40 On 19 June 2003, Mr Ryan suffered an injury to his right knee whilst rolling a 200-litre drum during the course of his employment as a nightshift supervisor with Pickering Transport Group. Mr Ryan’s Worker’s Compensation Claim Form dated 7 July 2003 indicated that he re-injured his knee for a second time when opening a torque liner on 2 July 2003. When this Claim Form was put to Mr Ryan in cross-examination, he said he could recall hurting his knee moving the drum but could not recall a separate incident involving the torque liner. Mr Ryan also said he could not recall which knee it was, although he did not dispute the contemporaneous records which recorded it as a right knee injury.
41 On 11 July 2003, following a referral from his general practitioner, Mr Ryan attended upon orthopaedic surgeon, Mr Miron Goldwasser. In a file note dated 11 July 2003, Mr Goldwasser noted that Mr Ryan had injured his right knee at work on 19 June 2003 and on 2 July 2003. It was noted that on each occasion, Mr Ryan had strained his knee, but in different methods. On the second occasion, it was noted that Mr Ryan had hyperextended his right knee which had become painful again, and he stopped work. At the time of the examination, it was noted that Mr Ryan’s knee was stable without effusion, but there was a diffuse joint line tenderness, mostly on the lateral side. When this file note was put to Mr Ryan in cross-examination, he again said he could not recall the second incident, nor could he recall hyperextending his right knee at this time.
42 In a letter to Mr Ryan’s general practitioner written on the same day, Mr Goldwasser noted there had been a partial improvement in Mr Ryan’s condition, such that he was able to walk, but with a mild limp. Mr Goldwasser considered Mr Ryan had suffered a sprain to his knee and referred him for an x-ray and physiotherapy.
43 On 25 July 2003, an x-ray was taken of Mr Ryan’s right knee. It was reported as follows:
“The right knee demonstrates a moderate reduction in cartilage thickness in the medial femorotibial compartment. There are small marginal osteophytes developing from the medial and anterior compartmental joint margins. There is some early subchondral cystic change within the right medial femoral condyle and tibial plateau. A solitary PA weightbearing flexed image of the left knee demonstrates no significant cartilage loss.”
44 This report was put to Dr Boecksteiner and Mr Simm in their oral evidence. Both practitioners considered the last sentence of this report difficult to reconcile. Dr Boecksteiner suspected it was probably a typographical error, as the report was in respect of the right knee and she considered that sentence was probably intended to refer to the right knee having no significant cartilage loss. However, Mr Simm said it is common for a radiologist to visualise both knees when a standing x-ray is performed, but considered it unusual for this to be of a flexed image and not as an extended image. The uncertainty raised by both surgeons in respect of the last sentence of this x-ray report, is such that I am uncertain as to whether it was a reference to the left or right knee.
45 On 25 July 2003, Mr Goldwasser reviewed Mr Ryan and noted there had been further improvement in his knee, although he still suffered from mild residual tenderness laterally and mild aching when placing heavy weight through it. At that time, Mr Goldwasser noted that Mr Ryan was continuing with physiotherapy and was keen to return to work in a week’s time. When this letter was put to Mr Ryan in cross-examination, he said he could not recall undergoing physiotherapy. It was also put to him that the timing of this letter was such that it suggested he had had approximately one month off work as a result of his right knee injury. Mr Ryan said he could not recall this but did not dispute the contents of the medical record.
46 On 4 March 2005, Mr Ryan attended the Western Hospital in Footscray at 12.49am and complained of right knee pain after his knee was squashed between two steel objects. It was noted at that time, that Mr Ryan complained of pain in his lateral knee. His past history of two right knee arthroscopies was also noted. When this medical record was put to Mr Ryan in cross-examination, he said he could not recall this attendance or the event that triggered it. Mr Ryan said that at the time he was working for Pickering TPG as a nightshift supervisor and suspected his manager would have insisted he attend the hospital, as at that time of night the local medical clinic would be closed.
47 In March 2006, Mr Ryan commenced employment with the defendant. He initially worked as a truck driver.
48 On 23 May 2006, Mr Ryan suffered an injury to his right knee whilst stepping off a loading dock in the course of his employment with the defendant (“loading dock incident”). Mr Ryan said that at the time of this incident, he suffered severe pain in his right knee. which caused him to fall to the ground. and also suffered swelling in his knee. Mr Ryan said he initially attended the physiotherapist who was onsite at his workplace. Mr Ryan said he continued to work following this incident.
49 On 2 June 2006, Mr Ryan said he suffered an aggravation of right knee pain whilst carrying cartons up steps at his workplace. After this incident, Mr Ryan said he attended upon his employer’s doctor, Dr Michael Henderson, at the Sonic HealthPlus clinic. In his clinical notes of 2 June 2006, Dr Henderson noted that Mr Ryan had initially hurt himself about ten days prior when he slipped off steps, but that he had improved with physiotherapy. It was then noted that Mr Ryan had aggravated his knee when carrying cartons up steps on the day he attended Dr Henderson. Dr Henderson noted there was a small effusion, and he was tender on the medial joint margin. Dr Henderson performed a McMurray test which was positive on the medial side. In his note of this day, Dr Henderson stated, under assessment, “maybe meniscus”. Mr Ryan was prescribed Celebrex.
50 Upon a further review by Dr Henderson on 9 June 2006, it was noted that Mr Ryan was much improved and was “95%”. Dr Henderson considered the condition was “resolving” and that Mr Ryan would be able to return to driving duties the following week and would be cleared for full duties the week after that.
51 Mr Ryan said, as part of his return to work, he did office duties for a while and then returned to driving trucks. However, when a vacancy arose for the position as morning supervisor, the defendant offered this to Mr Ryan as he was considered too talented to be driving trucks. Thereafter, Mr Ryan worked for the defendant in this role. Mr Ryan said he was responsible for the fleet of vans, which involved the loading and unloading of cartons, weighing between five to fifty kilograms. Mr Ryan said that as morning supervisor, he did five to six hours of manual handling each day, and for the rest of his shift, he did paperwork in the office.
52 Mr Ryan said that following the incident in June 2006, he continued to attend upon the defendant’s onsite physiotherapist every two to three months until 2008, at which time the physiotherapist was no longer available onsite.
53 In cross-examination, it was put to Mr Ryan that he only ceased the physiotherapy because it was moved offsite. Mr Ryan denied that, and said if he was still in pain with his knee, he would have sought physiotherapy from an outside source.
54 Mr Ryan’s evidence was that from the period of mid-2006 up until the dashboard incident, he did not have any ongoing issues with his right knee and said he could not recall having issues with it locking or clicking.
55 The records from Sonic HealthPlus clinic indicate that subsequent to his appointment with Dr Henderson on 9 June 2006 and up until the time of the dashboard incident, Mr Ryan did not attend for any treatment in respect of his right knee, nor did he report any symptoms regarding right knee pain.
56 In cross-examination, Mr Ryan was taken to medical records and reports that post-dated the dashboard incident, in which his treating surgeons and two medico-legal doctors had recorded Mr Ryan reporting a history of knee symptoms from 2006 through to the time of the dashboard incident. These histories were as follows:
(i) On 4 March 2010, Mr Ryan was referred by his general practitioner to orthopaedic surgeon, Mr Steve Csongvay. In his clinical note of that day, Mr Csongvay recorded a history that Mr Ryan twisted his right knee three years ago jumping off a loading dock, that there had been swelling and pain, and “ongoing instability” and “episodes of locking”.
In cross-examination, Mr Ryan said he could not recall attending on Mr Csongvay and could not remember his name. Mr Ryan said he did not jump off the loading dock but stepped off it. Mr Ryan said he could not remember his right knee locking before 2010 and felt that he would remember if it had locked such that he was required to click it back into place, as was the case following the dashboard incident;
(ii) On 15 June 2011, Mr Ryan was examined by orthopaedic surgeon, Professor Vernon Marshall, at the request of the defendant. In his report of that same day, Professor Marshall stated that he had obtained a record from Mr Ryan that four years prior to the report, he had suffered a work injury when he stepped off loading steps and fell onto concrete. It was noted that Mr Ryan’s knee was very swollen at the time, and that he had experienced intermittent locking since then.
When this history was put to Mr Ryan in cross-examination, Mr Ryan considered that Professor Marshall may have been confused as to when the locking had commenced;
(iii) In July 2011, Mr Ryan was referred to Dr Boecksteiner for a further orthopaedic opinion. At that time, Dr Boecksteiner said she obtained a history from Mr Ryan that he had suffered an injury to his right knee approximately six years ago and that he had “ongoing pain of his knee”.
When this record was put to Mr Ryan, he said he could not recall what he told her on this occasion as he had seen her approximately 200 times;
(iv) On 19 March 2012, Mr Ryan was examined by orthopaedic surgeon, Mr Iain McLean, at the request of the defendant. In his report dated 20 March 2012, Mr McLean noted Mr Ryan’s past history, including the incident in 2006, when Mr Ryan was –
“… on a loading bay at a height of one to two metres from the ground, when he stepped off the loading dock landing with his weight through the right lower limb. The knee gave way and he fell to the ground with severe pain through the joint. He had almost immediate swelling. … .”
It was then noted that Mr Ryan undertook an exercise program and returned to work, “but with difficulties”. Mr McLean noted that Mr Ryan informed him that from that time, he “developed intermittent episodes of the knee locking where he was unable to fully extend the knee until he “clicked it out’”. These episodes would occur suddenly with sharp pain and would be associated with activities such as arising from a squat position or kneeling. If he stepped down off objects, there was pain and insecurity:
“Michael states that as he had such a problem he returned to the physiotherapist at work who would treat him until it settled down again. This occurred on the multiple occasions from the 2nd of June 2006 through until the significant incident on the 21st of January 2010 when he was in the cabin of a truck, in an awkward position.”
When this history was put to Mr Ryan in cross-examination, he said he could not recall his knee locking intermittently in that period, nor could he recall having issues with his knee on multiple occasions between June 2006 and the dashboard incident.
57 In his oral evidence, when each of these matters were put to Mr Ryan, he appeared to be genuinely unable to recall the symptoms he had experienced in his right knee from 2006 until the time of the dashboard incident. I accept that he tried his best to answer the questions asked of him over this extensive period. However, I consider his evidence on this in 2020 to have been unreliable, in part through the passing of time, and also through his focus at this time being upon the dashboard incident and his recall of the extreme pain he suffered at that time. I do not consider this is a reflection on Mr Ryan’s credibility, who I considered an honest and very genuine witness.
58 I note that Mr Ryan did not call any witnesses to contradict the accuracy of the past medical histories taken by those doctors in the eighteen months following the dashboard incident. The close proximity in time between the recording of those histories and the time in which those symptoms were said to be suffered, and the relative consistency in the reportage of complaints by those four doctors, are such that I am satisfied that the following is an accurate description of Mr Ryan’s right knee condition prior to the dashboard incident:
- he had two arthroscopies to his right knee in the 1980s;
- he injured his right knee twice in 2003, requiring a referral to an orthopaedic surgeon at this time, received physiotherapy treatment, had at least five weeks off work and submitted a WorkCover claim;
- he injured his right knee in 2005;
- he injured his right knee twice in 2006, following which he required ongoing physiotherapy treatment until 2008, with a frequency of attendance every two to three months;
-following the 2006 incidents, Mr Ryan’s suffering included intermittent episodes of locking, pain and instability in the right knee. However, during that period, he worked full time and his work duties included loading and unloading trucks for five to six hours each day. Further, during that period, he did not require any medical treatment or medication.
59 I also note that at the time of the dashboard incident, Mr Ryan said that he weighed approximately 120-125 kilograms.
Events and treatment following the dashboard incident
60 Mr Ryan said that when the dashboard incident occurred, his right knee “just started hurting like there was no tomorrow”. Mr Ryan said he had never felt pain like it before. Mr Ryan said that on a scale of pain from 1 to 10, his pain at this time “would have been 25”.
61 Mr Ryan said that as his right knee was locked, he was stuck in the truck and could not move. He telephoned a co-worker who was close by, and arrangements were made to jack up a pallet on a forklift, so that Mr Ryan could be eased out of the truck, at the same level. The forklift was then lowered to the ground and Mr Ryan was taken by ambulance to hospital.
62 Mr Ryan said that during the ambulance ride he was given a “green whistle” which he understood was a form of strong pain-relieving medication. The ambulance records confirm that Mr Ryan was given methoxyflurane and fentanyl.
63 Mr Ryan said he was taken to Sunshine Hospital, where an x-ray was taken. It was reported as demonstrating tricompartmental osteoarthritic changes. There was no acute fracture and a small suprapatellar effusion.
64 Mr Ryan said the dashboard incident happened around 10.00am and that he did not leave the hospital until about 5.00pm. He said his knee remained in a locked position until approximately fifteen minutes before he left, when a nurse helped him to unlock it. He said that whilst the nurse pulled his ankle, he used both his hands and “whacked” his knee back into place.
65 Subsequent to his discharge from hospital, Mr Ryan attended the Sonic HealthPlus clinic and was seen by Dr Jim Tan, general practitioner. In his clinical notes, it was recorded that Mr Ryan’s knee had locked whilst in a prime mover, leaning over the dashboard whilst putting in a screw and “pivoting” on his right knee. At the time of his attendance, Dr Tan noted that Mr Ryan was on crutches, and he referred him for an MRI scan.
66 Mr Ryan said he attended work the following day but merely sorted paperwork. Mr Ryan said his knee was sore and swollen and he could not weight bear on it. Mr Ryan said he was able to continue at work with the help of crutches.
67 On 25 January 2010, an MRI scan was taken on Mr Ryan’s right knee. It was reported as demonstrating degenerative tearing and degeneration of the menisci; multicompartmental osteoarthritis, particularly the medial compartment including full thickness change; small loose body and several detached but not displaced osteophytes, and chronic ACL deficiency. It was noted that the appearances of the ACL suggested that the deficiency was longstanding.
68 On 27 January 2010, Mr Ryan completed a Claim for Compensation form in respect of the dashboard incident. This claim was subsequently accepted.
69 On that same day, Mr Ryan re-attended upon Dr Tan, who noted that Mr Ryan was to undergo physiotherapy and should be weaned off his crutches. Dr Tan also referred Mr Ryan to an orthopaedic surgeon.
70 On 4 February 2010, Dr Tan reviewed Mr Ryan and noted he was still experiencing intermittent locking of the knee and was walking with the aid of a single point walking stick.
71 On 16 April 2010, Mr Ryan attended upon Dr Henderson at the Sonic HealthPlus clinic and complained that his knee condition had deteriorated such that his knee had given way three times, causing him to fall to the ground. Dr Henderson noted that Mr Ryan walked with a limp, and he certified him as unfit for any duties until after undergoing arthroscopic surgery. At that time, Dr Henderson prescribed Mr Ryan Endone for him to take at night – the records of this date note that Endone had been prescribed the previous month but that that there was no record of this on the clinic’s file.
72 On 20 April 2010, Mr Csongvay performed an arthroscopy on Mr Ryan’s right knee. In his operation report, the findings were stated as follows:
“Osteoarthritis Right knee - grade 4 medial, grade 2 lateral
ACL deficiency
Medial and lateral meniscal tears
Grade 2 patellar chon[d]romalacia.”
73 In the report’s details as to the technique performed during the procedure, Mr Csongvay stated that there was a degenerative tear at the medial meniscus which was resected and there was Grade 4 medial compartment OA.
74 Mr Ryan said that after this surgery his pain persisted and his pain levels were 9 out of 10 most days.
75 On 15 July 2010, Mr Ryan attended upon Dr Tan, who noted that Mr Ryan was wearing a new knee brace and riding his bike for up to 15 kilometres. Dr Tan provided Mr Ryan with a further prescription for Endone, which Dr Tan noted he still used occasionally.
76 On 25 November 2010, Mr Ryan attended upon Dr Tan in respect of his knee pain. On this occasion, Dr Tan ceased his prescription of Endone and provided Mr Ryan with a prescription for OxyContin.
77 On 15 June 2011, Mr Ryan attended upon Mr Tan and complained of medial joint pain when walking for 10 to 15 minutes. It was noted that Mr Ryan was wearing a brace and was continuing with physiotherapy. As Mr Ryan said he was not happy with Mr Csongvay, he asked Dr Tan to refer him for another orthopaedic opinion.
78 On 15 July 2011, Mr Ryan attended upon Dr Boecksteiner for a further opinion in respect of his ongoing right knee condition.
79 On 17 August 2011, Mr Ryan attended upon Dr Tan and complained of crepitus in his left knee.
80 Mr Ryan said he felt his left knee starting to get very sore, and felt he was favouring his left leg due to persisting pain in his right knee.
81 In September 2011, Dr Boecksteiner performed an arthroscopy on Mr Ryan’s right knee. Dr Boecksteiner stated that the arthroscopy revealed there was an old ACL injury and also –
“… a patch of wear down through to bone, a small area on the tibial plateau and he had a tear of the medial meniscus and some flap tearing of the medial femoral condylar cartilage.”
82 After this arthroscopy, Mr Ryan underwent a physiotherapy program and returned to work approximately six weeks after the surgery.
83 By November 2011, Dr Boecksteiner considered that Mr Ryan was able to return to full activities, but that he should avoid squatting exercises. Dr Boecksteiner encouraged Mr Ryan to undertake cycling at that time.
84 In April 2012, Dr Boecksteiner performed a further arthroscopy on Mr Ryan’s right knee. At that time, she noted there was further wear on the medial side of his right knee, with a small patch of exposed bone on the medial tibial plateau. Dr Boecksteiner also noted the small patch on the lateral tibial plateau was still present and there was a patch of exposed bone on the trochlear.
85 Mr Ryan continued to see Dr Boecksteiner once every three months and occasionally required a Depo-Medrol and local anaesthetic injection into his knee to reduce inflammation. Mr Ryan said these injections gave some temporary relief. In addition, Dr Boecksteiner prescribed Mr Ryan painkilling medication, including Endone and OxyContin, and recommended he undergo regular hydrotherapy and physiotherapy.
86 In January 2014, Dr Boecksteiner recommended an arthroscopy be performed on Mr Ryan’s left knee, as an x-ray demonstrated narrow joint space and cartilage wear. Dr Boecksteiner related this to Mr Ryan favouring his left knee due to his right knee problems. Such surgery was not performed and instead Dr Boecksteiner treated Mr Ryan with occasional injections into his left knee.
87 In approximately 2014, Mr Ryan said he attempted suicide as he was depressed and “sick of the pain”. He said that at the time his general practitioner prepared a mental health care plan for him and recommended he take anti-depressant medication, but he refused to do so, as he said he does not like taking medication unless he has to.
88 In January 2016, Mr Ryan lodged an impairment benefit claim with the statutory insurer in respect of the injuries he claimed to have suffered in the dashboard incident. He claimed that he suffered an aggravation of his right knee injury, a left knee injury and a psychiatric condition.
89 In May 2016, Mr Ryan was referred from his general practitioner, Dr Scarlett, to Dr Clayton Thomas, consultant in rehabilitation and pain medicine, for pain management advice. In a report dated 4 May 2006, Dr Thomas stated it was his understanding that Mr Ryan hurt his knee in a work accident in 2006. Dr Thomas then noted the treatment Mr Ryan had subsequently received. Dr Thomas considered that Mr Ryan’s problem was a mechanical condition due to an arthritic knee, and that pain management would not assist him.
90 On 8 June 2017, Dr Boecksteiner performed a right total knee replacement on Mr Ryan. Subsequent to the surgery, Mr Ryan underwent rehabilitation at Dorset Hospital.
91 In mid-July 2017, Mr Ryan returned to work with some minor restrictions such as a limitation on climbing stairs. By 27 July 2017, Mr Ryan had returned to his normal job. At a review with Dr Boecksteiner on this day, he reported to her that he had no pain and was very happy with his knee replacement. At the time, Mr Ryan continued with regular physiotherapy.
92 In a further review with Dr Boecksteiner on 5 March 2018, it was noted Mr Ryan reported that since the knee replacement he had less pain in his left knee. At that time, Dr Boecksteiner encouraged Mr Ryan to continue with his self-managed exercise program but should avoid deep squatting and repetitive kneeling.
93 In July 2018, Mr Ryan was examined by orthopaedic surgeon, Dr Graeme Doig, for the purpose of determining his lump sum claim. Mr Ryan complained that during this examination, Dr Doig pulled his leg and “it hurt like hell”.
94 In September 2018, Mr Ryan attended upon Dr Boecksteiner and complained that he was suffering constant pain following Dr Doig’s manipulation of his knee. Dr Boecksteiner examined Mr Ryan’s knee and considered that following the manoeuvre performed by Dr Doig, there had been an amount of capsular tearing and bruising which she expected would settle down with time. Dr Boecksteiner prescribed Mr Ryan Palexia and Celebrex at that time.
95 On 11 October 2018, the statutory insurer determined that in relation to Mr Ryan’s impairment benefit claim, liability be accepted for aggravation of his right knee injury and a left knee injury, but that his claim for a psychiatric condition be rejected. The insurer then determined that Mr Ryan suffered a whole person physical impairment of 22 per cent.
96 Mr Ryan’s last reported visit upon Dr Boecksteiner was on 28 October 2019. At that time, Dr Boecksteiner noted that Mr Ryan’s pain levels were improving after he had undergone a gym and swim program. She prescribed him Panadeine Forte and Celebrex for his pain.
97 Mr Ryan said his mental health is not good and that approximately four months ago he tried to take his life again. He explained he was “sick of the pain” and “people think there’s nothin[g] wrong with you. It just wears you down.” Mr Ryan said he was then referred to a psychologist but was only able to see her once due to restrictions imposed by COVID-19.
98 Save for short periods of time after each of the surgical procedures, Mr Ryan has continued to work full time since the dashboard incident. He is currently working as a yard supervisor at a transport company based in Truganina.
99 Mr Ryan said he is never “really” free from right knee pain, but that his pain levels vary. Mr Ryan said his sleep is affected and his pain sometimes wakes him. He said he no longer shares a bed with his wife, as if she accidentally knocks his leg it “hurts like hell”.
100 Mr Ryan said he is now limited in walking up to one kilometre and can only stand for 15 minutes before having to sit down. He also said he can only sit for about 20 minutes before having to move again and that his knee is tender and sensitive to bumps and knocks.
101 Mr Ryan said he occasionally takes Endone, and Panadeine Forte for his knee pain. In addition, he said he takes Celebrex medication three to four times a week as that helps reduce the swelling in his right knee.
102 Mr Ryan said his weight has fluctuated over time and at one stage, he weighed up to 160 kilograms. He said he rode his bike to help him lose weight and reduced his weight to 120 kilograms.
103 Mr Ryan said that before the dashboard incident, his hobbies included gardening, building furniture and repairing things and going fishing. He said that he can no longer enjoy these things due to his right knee injury.
Dr Boecksteiner’s evidence
104 Dr Boecksteiner provided four medical reports to Mr Ryan’s solicitors between 2012 and 2020 and had also written on numerous occasions to the statutory insurer in relation to requests for payment of treatment expenses relating to Mr Ryan’s right and left knee injuries. There was no reference to the dashboard incident, or an injury being suffered by Mr Ryan in 2010, in any of these reports or letters provided by Dr Boecksteiner.
105 In her first report dated 4 May 2012, Dr Boecksteiner noted that at his first attendance, Mr Ryan reported he injured his right knee approximately six years ago. She then noted he had “ongoing pain in his knee” and an arthroscopy in April 2010. Dr Boecksteiner noted that Mr Ryan considered his knee felt gradually worse after that time. Dr Boecksteiner reviewed the recent MRI scan which she considered showed bilateral medial and lateral meniscal tears and also a flap tear at the articular cartilage. Dr Boecksteiner considered there were some loose bodies floating in Mr Ryan’s right knee. Dr Boecksteiner was of the opinion that Mr Ryan had “signs of wear at the articular cartilage” which would probably require him to undergo a joint replacement in the future. However, as Dr Boecksteiner considered Mr Ryan was still quite young, she felt him having a joint replacement should be a last resort and so instead recommended an arthroscopy for a “washout of the debris”. Dr Boecksteiner considered at that time, that Mr Ryan was likely to require a total knee replacement within the next ten years.
106 In this report, Dr Boecksteiner stated the cause of Mr Ryan’s right knee condition was “a work related injury six years prior to him seeing me the first time”. She explained that knee injuries that cause cartilage damage and ligament damage, “lead to wear of the articular cartilage and also lead to osteoarthritis”.
107 After the conclusion of Mr Ryan’s evidence, leave was sought for him to adduce a further opinion from Dr Boecksteiner in relation to the significance of the dashboard incident. In a further supplementary report dated 2 September 2020, Dr Boecksteiner acknowledged she had been asked to assume an abridged set of facts regarding the condition in Mr Ryan’s knee prior to the dashboard incident, which included a reference to the initial arthroscopies in his early 20s, the work injury of 2003, hospital attendance of 2005 and the incidents at work in 2006. In a note of evidence, it was put to Dr Boecksteiner that:
“Thereafter the Plaintiff had occasional knee pain and attended a work physiotherapist. His knee may have locked, but he cannot remember this. He did not need to attend a doctor, take medication or have time off work. The Plaintiff was able to perform heavy work on a daily basis for the following four years.”
108 In addition, Dr Boecksteiner was provided with the following history in respect of the dashboard incident:
“On 21st January 2010 the Plaintiff suffered severe knee pain whilst in the cabin of a truck attempting to fit a dashboard. At the time, the Plaintiff was stretched over the console of the truck, his left buttock on the passenger seat, his right knee bent under him with his right foot twisted to the right. He had most of his weight on his right leg when he experienced significant pain and locking of the knee. He was removed from the truck with the use of a forklift on a pallet. He was taken by ambulance to hospital. He required green stick pain relief in the ambulance. His knee would not unlock for some hours until forcibly unlocked by the Plaintiff and a nurse. Thereafter he required the use of crutches for some weeks and medication including Endone. … .”
109 On those assumed facts, Dr Boecksteiner stated that the dashboard incident had “all the features of an acute embarrassment to the knee” causing loose pieces of articular cartilage to come off the bone. Further, Dr Boecksteiner was of the opinion that the dashboard incident “was a significant injury to his knee and necessitated the three subsequent arthroscopic procedures” and was one of the causes of Mr Ryan having to undergo right total knee replacement.
110 Dr Boecksteiner also stated that:
“The severe twisting and force in the truck has hastened his knee into a much more deteriorated situation, which with normal, and heavy duties, could easily have taken years to get to a similar point. This acceleration of damage to the knee was acute and had the effect of what years of non-injurious activity would have had, essentially bringing him to needing a Knee replacement at 50 instead of a more predicable 70 for a person in an active physical job.”
111 Dr Boecksteiner was cross-examined regarding her first attendance upon Mr Ryan and the absence in her report to any reference to the dashboard incident. Dr Boecksteiner stated that when a patient attends with a history involving a multitude of events leading up to their attendance upon her, and when another specialist had previously made a diagnosis and operated on the patient, she is usually “happy to go with that”. Dr Boecksteiner said it “wastes time” to go on with a detailed history as to each specific event leading up to the attendance, and she therefore just records the history from the time she first becomes involved in the patient’s treatment. Dr Boecksteiner also said she believed she had access to the records of Mr Goldwasser in respect of his previous attendances upon Mr Ryan in 2006, as both surgeons practiced out of the same consulting suites.
112 Dr Boecksteiner said that at some stage, Mr Ryan may have told her about the dashboard incident, but she did not write it down as it was not relevant to her treatment of him.
113 Dr Boecksteiner was then cross-examined at length as to the opinion she expressed in this initial report, that the cause of Mr Ryan’s condition was an incident six years prior and not the dashboard incident. Dr Boecksteiner said at the time of that report, it was her understanding that 2006 was when Mr Ryan’s right knee injury started and that it was an active case for him. Dr Boecksteiner said she did not try to make a patient “feel like I’m taking them to court” and make them prove to her that the injury was work related. Dr Boecksteiner explained she “just accepted” what Mr Ryan told her about it being a work-related injury, as there had been a gap in time from the beginning of the injury to when he attended upon her, with attendances on other healthcare professionals in that interim period.
114 Dr Boecksteiner was also cross-examined as to her opinion when she first saw Mr Ryan, that he would require a knee replacement. She stated there was “nothing wrong” in saying that a person who has some cartilage damage will probably require such surgery, as “any time you lose cartilage from the surface of the bone you can predict that the person will eventually need a joint replacement …”.
115 Dr Boecksteiner did not accept that the state of Mr Ryan’s knee in January 2010 was as significant as the MRI report suggested. She said that when MRI scans are taken “you will never get a normal report” and that the people who report on these scans “don’t go inside knees on a weekly basis”. Dr Boecksteiner considered that a report may state there is severe degeneration, based on the area with the largest loss of cartilage, even if most of the knee has close to normal cartilage. Further, Dr Boecksteiner said a person’s knee can look worse on an MRI scan than what it “actually physically is when you scope a patient”. In relation to Mr Ryan’s MRI scan taken at that time, Dr Boecksteiner considered there were just patches of severe osteoarthritis.
116 Dr Boecksteiner was then taken to Mr Csongvay’s operation report for the arthroscopy he performed in April 2010, which referred to there being Grade 4 osteoarthritis in the medial compartment of Mr Ryan’s knee. Dr Boecksteiner stated she did not consider that what Mr Csongvay had written in his report as reflecting what she subsequently saw when she undertook surgery on Mr Ryan’s knee. At that later time, Dr Boecksteiner said that Mr Ryan’s knee wasn’t as bad as Mr Csongvay had previously reported and thus, she considered her subsequent surgical investigations did not uphold his operation findings.
117 Dr Boecksteiner explained that the full thickness cartilage loss which she accepted was in at least part of Mr Ryan’s knee as at January 2010, would continue to degenerate over time. Dr Boecksteiner also said the arthroscopies performed on Mr Ryan in his early 20s which involved partial medial meniscectomies, would result in a “very minor” increase in the risk of osteoarthritis later in life.
118 Dr Boecksteiner accepted that a person’s weight can influence the development and progression of osteoarthritis, and that it was probable, based upon Mr Ryan’s height and weight, he was morbidly obese. Dr Boecksteiner accepted a patient with a past history of arthroscopies would be further vulnerable to the impacts of being morbidly obese.
119 Dr Boecksteiner accepted that prior to the dashboard incident, Mr Ryan likely had a vulnerable knee, with some meniscal or articular cartilage damage. However, Dr Boecksteiner considered the dashboard incident the most significant event for Mr Ryan, based upon his history of his knee being locked and needing to be taken to hospital by ambulance. Dr Boecksteiner considered this was “objective evidence” that Mr Ryan’s right knee was further injured in the dashboard incident to a “very significant and painful degree”. Dr Boecksteiner considered in this incident, cartilage came off the surface of his knee, causing the loose bodies seen on the MRI and removed in the subsequent arthroscopy.
120 Dr Boecksteiner did not accept that if not for the dashboard incident, Mr Ryan would have needed a total knee replacement within ten years. She stated it was the significant injury suffered in the dashboard incident that “accelerated the possibility of needing a knee replacement much more earlier than what age and weight and activity might have given him”.
Medico-legal evidence
121 Professor Marshall provided a report dated 15 June 2011, following his examination of Mr Ryan on that same day. In his report, Professor Marshall detailed Mr Ryan’s past medical history, as detailed above.
122 Professor Marshall then noted that Mr Ryan had sustained a meniscal injury to his right knee in the dashboard incident and had undergone arthroscopic surgery in April 2010, at which time tears of the lateral and medial meniscus were noted and a partial excision and debridement performed.
123 Professor Marshall considered that Mr Ryan had sustained injury to his knee on two occasions at work and that the most recent arthroscopic surgery was for the most recent meniscal injury. Professor Marshall also noted that Mr Ryan had suffered persisting swelling, pain, locking and a tendency to give way in his knee as a result of a chronic work injury of an anterior cruciate ligament (ACL) tear, which he attributed to the earlier incident.
124 Professor Marshall considered that, at the time, it was appropriate for Mr Ryan to be taking analgesic medication and undergo physiotherapy.
125 In respect of his future prognosis, Professor Marshall considered it was likely that Mr Ryan would require a further arthroscopy for his persisting symptoms, and he would also be likely to require, in the long term, a knee replacement. Although, given his young age, Professor Marshall recommended conservative treatment at that time.
126 Mr Ryan was examined by Mr McLean on three occasions between 2012 and 2020 – the first two examinations were arranged by the defendant, with the most recent one arranged by Mr Ryan’s solicitors.
127 In his first report dated 20 March 2012, Mr McLean obtained a detailed history from Mr Ryan as to the state of his right knee prior to the dashboard incident, as detailed above. In addition, Mr McLean detailed the history he obtained from Mr Ryan in relation to the dashboard incident and the treatment he had received subsequent to it.
128 At the time of this examination, Mr McLean noted that since January 2012, Mr Ryan reported he had done a lot of walking in the course of his employment and was required to climb onto freight boxes or pallets. With such activity, Mr Ryan had become increasingly aware of clicking and sharp pain in his knee and further pain at night time.
129 Mr McLean was asked to comment as to the further arthroscopy proposed by Dr Boecksteiner and stated that in his opinion, such surgery was reasonable and appropriate as it may assist in defining the pathology within Mr Ryan’s knee and may also deal with “any reversible or unstable meniscal or chondral components”. Mr McLean considered that following the arthroscopic surgery, a rehabilitation program would be appropriate to assist Mr Ryan with his daily living and work activities.
130 Mr McLean was of the opinion that Mr Ryan suffered an injury to his ACL in the work incident of 2 June 2006 and thereafter had ongoing symptoms and problems related to secondary meniscal and chondral pathology. Mr McLean considered that the work incident in 2006 was the initial cause of Mr Ryan’s current right knee condition, but that the dashboard incident, “tipped the balance relative to the progressive degenerative meniscal and chondral pathology in his right knee”. Mr McLean noted Mr Ryan had thereafter undergone two arthroscopic procedures and that there was evidence of significant osteoarthritis of the right knee with there being “bone on bone” in the medial compartment. He noted a definite problem with locking of the knee related to the dashboard incident.
131 In April 2014, Mr Ryan was re-examined by Mr McLean. In his report dated 3 April 2014, Mr McLean noted that at the time of this examination, Mr Ryan complained of ongoing pain and problems with his right knee with constant aching irritation, and at other times a sharp stabbing pain. It was noted that sitting, walking and standing could aggravate his right knee pain.
132 Mr McLean also noted that Mr Ryan had developed aches and pains in his left knee and that Mr Ryan considered he was conscious of protecting his right knee and taking his weight onto his left knee. Mr McLean noted there was sharp pain upon twisting or sudden movement, as well as occasional buckling with hyperextension associated with the pain in the left knee. Mr McLean was of the opinion that there were degenerative changes in Mr Ryan’s left knee which had been rendered symptomatic “by the overloading from his right knee work-related condition”.
133 Mr McLean repeated his previous opinion that the original work injury of 2006 had caused Mr Ryan to suffer an ACL injury, but the dashboard incident had been a significant aggravation of underlying changes in his right knee.
134 In April 2020, Mr McLean re-examined Mr Ryan at the request of his solicitors. At the time of this examination, it would appear that Mr McLean was not aware he had previously examined Mr Ryan for the purpose of this claim, as he made no reference to his previous reports. Further, in this report dated 30 April 2020, Mr McLean obtained a history of the 2006 work injury but then stated his understanding was that after Mr Ryan attended a physiotherapist on and off over a period, his right “knee settled down without ongoing problems so that he could do all his work activities”. I consider this history incomplete and lacking the detail which Mr McLean outlined in his initial report taken soon after the dashboard incident.
135 Mr McLean detailed the dashboard incident and the surgical treatment Mr Ryan received subsequent to it. McLean noted that at the time of his examination, Mr Ryan was limited with walking, such that he could walk for approximately one kilometre but was then aware of increasing soreness and the need to rest. It was noted that Mr Ryan was able to stand for a period of 10-15 minutes but that it was necessary for him to constantly move and transfer his weight from one leg to the other before then sitting. Mr Ryan was unable to squat or kneel relative to his right knee. It was also noted that he negotiated stairs cautiously. Mr McLean noted that Mr Ryan stated there was no true giving way of his knee, but that at times he experienced a sudden buckling into hyperextension.
136 In relation to Mr Ryan’s left knee, Mr McLean noted that Mr Ryan reported this pain had improved following the right total knee replacement surgery, and also with his workload being lighter.
137 On examination, Mr McLean noted that Mr Ryan walked with a slight limp and that his squatting was limited to around 60-70 degrees due to tightness and discomfort in his right knee. When sitting, Mr Ryan was able to actively flex and extend his right knee and there was minimal quadricep lag. Further, Mr McLean considered that Mr Ryan had a range of movement from close to full extension and flexing to over 110 degrees. In relation to Mr Ryan’s left knee, Mr McLean considered his ability to flex and extend appeared to have a full range.
138 Mr McLean stated that, in his opinion, Mr Ryan had suffered internal derangement of the right knee of the meniscal and condyle origin as a result of the dashboard incident. Mr McLean stated that this resulted in “significant aggravation of a previously asymptomatic constitutional degenerative changes and leading to the multiple surgical procedures and the resultant right total knee replacement surgery”.
139 On the understanding that Mr Ryan’s right knee had been asymptomatic prior to the dashboard incident, Mr McLean stated that this incident resulted in the symptomatic problematic right knee. However, Mr McLean noted that Mr Ryan had a vulnerable knee with prior ACL insufficiency and early degenerative change. Mr McLean stated that, in his opinion, the right knee injury had resulted in the total knee replacement of 2017.
140 In relation to Mr Ryan’s work capacity, Mr McLean was of the opinion that he was able to work full time in non-physically demanding work, that was semi-sedentary in nature. Mr McLean considered Mr Ryan’s long-term prognosis in his right knee as fair in the short-to-medium term. However, as a fifty-three-year-old overweight, relatively active male, there is a possible risk that relates to prosthetic wear, loosening, infection and periprosthetic fracture. Mr McLean noted such things are unpredictable and multifactorial, but if they occurred, it would require revision surgery.
141 Further, Mr McLean was of the view that, as Mr Ryan had developed pain relative to his left knee with the further passage of time, it is likely there will be progression in the degenerative changes in that knee such that he may at some point require left knee replacement surgery.
142 In July 2018, Mr Ryan was examined by Dr Doig. In his report dated 7 August 2018, Dr Doig detailed the circumstances of the dashboard incident and the treatment which Mr Ryan subsequently received for it. Dr Doig also noted that Mr Ryan’s past medical history included an arthroscopy at the age of twenty, a further injury in June 2003, and a further injury in 2006. Dr Doig considered Mr Ryan’s description of the 2006 injury appeared to be consistent with an ACL injury, which was then treated conservatively with physiotherapy.
143 At the time of the examination, Dr Doig noted that Mr Ryan was asymptomatic with respect to his left knee, which had improved following the right knee replacement surgery. However, Dr Doig noted that Mr Ryan complained of occasional, moderate pain in his right knee for which he took regular Celebrex medication, as well as Palexia and occasionally Endone. Dr Doig also noted that Mr Ryan complained of an altered sensation in the lateral aspect of his knee adjacent to the scar.
144 On examination, Dr Doig noted there was a 24-centimetre longitudinal scar on the front of Mr Ryan’s right knee. Dr Doig considered there was good alignment in the knee, that his ligaments were intact, and he had a range of motion from 0 to 125 degrees. Dr Doig noted that Mr Ryan was restricted in squatting, and was also reluctant to kneel.
145 Dr Doig noted that the MRI scan taken on 25 January 2010 revealed severe, medial compartment osteoarthritis, with a medial meniscal tear and chronic deficiency of his ACL, as well as degeneration of the lateral compartment. Dr Doig noted there was no weight bearing x-ray taken of the knee at the time of the injury, whereas a subsequent x-ray taken on 13 September 2011 revealed complete loss of the medial compartment with bone on bone changes. Dr Doig considered Mr Ryan’s clinical picture was complicated due to his previous injuries to his right knee.
146 When Dr Doig was asked to consider apportionment of Mr Ryan’s impairment, taking into account his pre-existing condition, Dr Doig considered that it was difficult to accurately do so in circumstances where a weight bearing x-ray was not taken until eighteen months after the dashboard incident.
147 Dr Doig diagnosed Mr Ryan as suffering from a symptomatic exacerbation of a pre-existing arthritic right knee on a background of a probable medial meniscectomy when he was twenty years of age, and an ACL rupture. Dr Doig considered that Mr Ryan’s long-term prognosis was guarded. At the time, it was noted that he was continuing to suffer from pain and restrictions following his knee replacement. Dr Doig considered that Mr Ryan would have a 15-kilogram lifting, pushing and pulling restriction, together with limited bending, twisting and squatting through the right leg. Dr Doig also recommended that Mr Ryan avoid working at heights and on uneven ground, as well as repetitive stair and hill climbing and kneeling. Dr Doig noted that Mr Ryan was unable to run and may require breaks from prolonged standing and walking.
148 Dr Doig considered Mr Ryan’s left knee condition excellent.
149 In a supplementary report dated 9 October 2018, Dr Doig reiterated the difficulties in apportioning liability of Mr Ryan’s impairment in circumstances where the MRI scan taken at the time of the assessment revealed advanced osteoarthritis, but a weight bearing x-ray was not performed until eighteen months later. Therefore, Dr Doig stated he could not provide an accurate pre-existing impairment, although he acknowledged one was most certainly present. Dr Doig stated the need for the total knee replacement surgery and subsequent impairment was a result of the pre-existing osteoarthritis.
150 Dr Doig re-examined Mr Ryan in February 2019. In his report dated 1 March 2019, Dr Doig noted that, at that time, Mr Ryan reported his right knee had failed to improve, and he continued to complain of persistent upper pretibial pain which was made worse with activity. Dr Doig noted that Mr Ryan’s left knee had improved, although he experienced occasional discomfort in the contralateral side.
151 Dr Doig noted that Mr Ryan was no longer able to enjoy gardening or fishing, but continued to ride his pushbike in order to keep fit.
152 Dr Doig considered that Mr Ryan most likely would have come to total knee replacement surgery with or without the dashboard incident “in view of the advanced, pre-existing osteoarthritis in the joint with a chronically deficient anterior cruciate ligament”. However, Dr Doig considered that the incident at work most likely brought the need for knee replacement forward.
153 The defendant obtained an opinion from orthopaedic surgeon, Mr Rodney Simm, who did not examine Mr Ryan, and instead provided an opinion based upon his review of radiology and operation reports, as well as numerous medical reports, including those from Dr Boecksteiner, Mr McLean and Dr Doig, as well as clinical records. In his report dated 31 July 2020, Mr Simm summarised all the medical material which related to Mr Ryan’s right knee from the time of his first arthroscopy at approximately eighteen years of age, through to the period leading up to the dashboard incident.
154 Mr Simm was of the opinion that Mr Ryan suffered osteoarthritis in his right knee which had been treated with limited benefit following the total knee replacement in June 2017. Mr Simm noted that prior to the total knee replacement surgery, Mr Ryan had undergone five knee arthroscopies, and, on each occasion, the surgeon had removed a little more of the medial meniscus and, on one occasion, part of the lateral meniscus.
155 Mr Simm stated that the partial medial meniscectomy which had been performed at approximately eighteen years of age, had significantly increased the risk of Mr Ryan developing osteoarthritis later in life. Mr Simm considered that the further partial medial meniscectomy would have left even less meniscus in his knee and therefore a slight worsening of his prognosis with respect to the development of osteoarthritis.
156 Mr Simm noted that the x-rays taken in 2003, when Mr Ryan was thirty-six years of age, showed radiological changes of moderately advanced medial compartment osteoarthritis in his right knee with joint space reduction, but no significant changes in the left knee.
157 Mr Simm then considered that there was a further significant event which occurred on 23 May 2006 when Mr Ryan stepped off the dock onto his right leg and caused acute pain and his right leg to collapse. Mr Simm considered that the investigations taken after that incident demonstrated a complete tear of the ACL. Mr Simm considered that the multiple episodes of Mr Ryan’s right knee giving way between 2006 and 2010 were consistent with ACL insufficiency. Mr Simm considered the episodes of locking suggested there may also be a bucket handle or large flap tear of the medial meniscus which was not diagnosed. Mr Simm also considered that pseudo locking over that time was the knee seizing up due to osteoarthritis.
158 Mr Simm then described the dashboard incident as a “low energy incident”, as he stated, in his opinion, Mr Ryan was not weight bearing through his knee when he twisted his leg awkwardly whilst seated in a cabin. Mr Simm considered it probable that he had produced a combination of forces through the knee which caused the knee to subluxate because of the ACL insufficiency. He said in a knee which has an ACL deficiency, the tibia can subluxate forward, and that would be a very painful incident.
159 Mr Simm stated he could not explain why the “locking” in Mr Ryan’s right knee worsened after the dashboard incident in circumstances where there was no loose body of meniscal tear found that would explain such locking. Mr Simm considered that the locking was in fact pseudo locking due to the osteoarthritis in the knee and its general instability.
160 Mr Simm noted that the MRI scan taken after the dashboard incident showed end stage Grade 4 osteoarthritis in the medial compartment of the joint, with complete loss of the ACL on the medial femoral condyle and tibia with associated underlying bony changes. Mr Simm considered this indicated the osteoarthritis was longstanding and that the disruption, particularly to the medial meniscus, was consistent with the advanced degenerative changes rather than traumatic changes.
161 Mr Simm considered one of the main causative factors in the onset and acceleration of osteoarthritic changes in the knee is increased body weight, and it was noted that from at least 2010 onwards, Mr Ryan’s body weight placed him in the obese or very obese range.
162 Mr Simm stated that in circumstances where, at the time of the dashboard incident, Mr Ryan had a symptomatic right knee with chronic ACL instability and Grade 4 bone on bone end stage osteoarthritic changes in the medial compartment, in addition to being obese, it was inevitable that the osteoarthritis, and pain from the osteoarthritis, would deteriorate to the point that he would need to have a total knee replacement. Mr Simm was “somewhat surprised that it was not required until seven years later”.
163 In conclusion, Mr Simm stated that Mr Ryan had multiple major risk factors for progressive osteoarthritis of the right knee and the ultimate need for a total right knee replacement. Mr Simm acknowledged that although the dashboard incident caused Mr Ryan severe pain, in his opinion, it was unlikely that incident actually damaged the interior of the knee or influenced the clinical progression of the end stage osteoarthritis of the knee as it was already present at that time.
164 Mr Simm was called to give evidence and was cross-examined in respect of this medical opinion. It was put to him that the dashboard incident was not a “non-weight bearing low energy incident”. Mr Simm was taken to Mr Ryan’s oral evidence in which he described how he was positioned at the time of the incident and it was put to him that Mr Ryan was almost entirely weight bearing through his right knee. Mr Simm stated he did not accept that would be the equivalent of fully weight bearing as Mr Ryan was not standing at the time. However, Mr Simm acknowledged with that description of Mr Ryan’s position, he considered the most likely cause of the pain was that Mr Ryan had dislocated his patella in the dashboard incident. Mr Simm said that would explain the reason for the extreme pain experienced by Mr Ryan at the time. Mr Simm considered that subsequent to this event, Mr Ryan developed an “abnormal pain response”.
165 Mr Simm stated he did not consider the performance of the arthroscopies of any benefit to Mr Ryan, as in his opinion, arthroscopies can accelerate the osteoarthritis in a patient’s knee. Mr Simm said this is now recognised in the published literature and that the Australian Orthopaedic Association recommends arthroscopies should not be performed to treat osteoarthritis. However, Mr Simm acknowledged that some surgeons still do such procedures. Mr Simm considered that the arthroscopies were performed as a matter of “choice” by Mr Ryan’s surgeons in their management of his right knee pain. In closing submissions, it was suggested that as Mr Simm’s opinion that the dashboard incident had nothing to do with Mr Ryan’s need to undergo the three arthroscopies, or the right knee replacement, was not directly challenged in cross-examination, and that consistent with the rule in Browne v Dunn,[10] I should accept his unchallenged evidence on those surgical procedures being unrelated to the dashboard incident.
[10][1893] 6 R 67
166 I was referred to the Court of Appeal decision in Pasqualotto v Pasqualotto,[11] in which the rule in Browne v Dunn was discussed, and it was noted that there were two aspects to the rule:
“… First, it is a rule of practice and procedure designed to achieve fairness to witnesses and a fair trial between the parties. The second aspect relates to the weight or cogency of the evidence. That is, evidence which is unchallenged ought to be accepted, or ought to be accepted in the usual case. This analysis of the dual character of the rule has been adopted in Australia ever since.”[12]
[Footnotes omitted.]
[11][2013] VSCA 21
[12](ibid) at paragraph [243]
167 In circumstances where Mr Simm had categorically stated that the dashboard incident played no role in the deterioration of Mr Ryan’s knee condition, I do not accept it was necessary for such matters to be put to Mr Simm in cross-examination. Mr Simm’s opinion, both in his reports and whilst giving evidence in court, was so emphatic, that I consider if he had been asked, it is a given, that he would have denied the dashboard incident playing a role in such surgeries. There was no unfairness to the defendant or Mr Simm in such questions not being asked.
168 At the request of his solicitors, and for the purpose of assessing his claim for damages in respect of his psychiatric condition, Mr Ryan was examined by psychiatrist, Dr Gregor Schutz, in April 2020. In his report dated 10 April 2020, Dr Schutz noted Mr Ryan’s past history, as well as the circumstances of the dashboard incident and the treatment which Mr Ryan had received subsequent to it. Dr Schutz noted Mr Ryan complained that his mood had been “up and down” and he was probably depressed around 50 per cent of the time. Dr Schutz noted that Mr Ryan had attempted suicide in 2015, at which time he had taken an overdose of 60 tablets. Dr Schutz noted that approximately four weeks prior to the examination, Mr Ryan reported taking a drug overdose after being upset by friends who alleged he was trying to “rip off WorkCover through his current claim”.
169 Dr Schutz noted that Mr Ryan was working full time and felt he was good at his job which was an indication to him that he was “not completely useless”.
170 Dr Schutz noted that Mr Ryan reported he had not been sexually intimate for the past two years due to his pain. Dr Schutz noted that Mr Ryan did not garden as much as he had previously, and that Mr Ryan found it difficult to go fishing. Further, he noted Mr Ryan could not watch his local football team on a reliable basis due to pain, or walk long distances. Dr Schutz then noted that Mr Ryan had regained weight as he was no longer able to ride his bike. Further, Dr Schutz noted that Mr Ryan had been president of his local RSL club for two years, but had stepped back from the role as a result of lack of motivation.
171 Dr Schutz was of the opinion that Mr Ryan had developed a Chronic Adjustment Disorder with Anxious and Depressed Mood as a consequence of his right knee injury. It was noted that Mr Ryan had lost interest, was less social, had lost motivation and enjoyment in life. It was also noted that he had previous suicide attempts. Dr Schutz noted that Mr Ryan reported “drinking heaps” on the weekends including “on a Saturday he might have 20 to 30 standard drinks”. Dr Schutz also noted that Mr Ryan drank to excess and considered this constituted an Alcohol Use Disorder. Dr Schutz considered that Mr Ryan’s drinking may be contributing to his anxiety and lowered mood.
172 Dr Schutz considered that Mr Ryan’s mood and anxiety symptoms have arisen as a result of his experience of pain and inability to engage in meaningful pre‑injury activities. Further, Dr Schutz considered it was reasonable to conclude that Mr Ryan’s Alcohol Use Disorder was a maladaptive attempt to manage his pain.
173 Dr Schutz recommended that Mr Ryan undergo psychological therapy and also discuss with his general practitioner the option of being prescribed an antidepressant medication and consider undertaking formal alcohol counselling.
Assessment of damages in the context of Mr Ryan’s pre-existing right knee condition
174 Given my findings in paragraph 58 as to the state of Mr Ryan’s right knee at the time of the dashboard incident, it is necessary for Mr Ryan’s damages to be adjusted to reflect the degree of probability as to how his knee would have progressed, if not for the dashboard incident.
175 In Malec v JC Hutton Pty Ltd,[13] the High Court held the likelihood of both past or future hypothetical events are to be taken into account when assessing damages. In doing so, it was noted that questions regarding the future effects of a physical injury or degeneration “are not commonly susceptible of scientific demonstration or proof”.[14]
[13](1990) 169 CLR 638
[14](ibid) at 643
176 In Malec, Deane, Gaudron and McHugh JJ said:
“… If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise awarded. … .”[15]
[15]Ibid
Was the dashboard incident anything more than an inconsequential event?
177 In support of its claim that the dashboard incident was a relatively minor incident and one that did not alter the future progression of the pre-existing degeneration in Mr Ryan’s knee, the defendant relied heavily on the absence of a reference to the dashboard incident in the reports and records of Mr Csongvay, Dr Boecksteiner and Dr Thomas.
178 In cross-examination, it was put to Mr Ryan that the reason his treaters were not provided with a history of the dashboard incident was because Mr Ryan believed the cause of his right knee problems was the loading dock incident. Mr Ryan denied this and said he could not recall specifically what he told the doctors, but believed he had told them about the dashboard incident.
179 Dr Boecksteiner said she could not recall having a history of the dashboard incident until she was told of it by Mr Ryan’s legal advisors in the week the trial commenced. I accept Dr Boecksteiner’s explanation that when she sees a patient who has previously undergone surgery elsewhere, she gains little assistance from obtaining details as to the mechanism of injury. I accept that as a treating surgeon, it is not a matter of priority for her.
180 So too with Mr Csongvay and Dr Thomas, who did not refer to the dashboard incident in their medical reports. As with Dr Boecksteiner, I consider that when seeing a patient with a longstanding history of right knee problems, doctors are likely to have minimal interest in the details of each incident and are instead focused on making a diagnosis and providing treatment for the condition complained of. As treating practitioners, I consider little turns on the absence of the dashboard incident in their reports.
181 If there was doubt as to the circumstances of the dashboard incident, and Mr Ryan’s condition following it, the absence of a reference to the dashboard incident in Mr Ryan’s treating specialists’ reports may have been of significance. However, there is ample evidence as to the significance of it – including Mr Ryan’s own evidence, as well as the hospital and ambulance records, and the records from the Sonic HealthPlus clinic. Such evidence can be summarised as demonstrating the following matters which support Mr Ryan’s claim that the dashboard incident was a significant incident:
- it was the worst pain he had ever experienced and required him to be taken to hospital by ambulance and required an opioid-based medication on the way there. Given Mr Ryan’s demonstrated stoicism, I accept his evidence as to the degree of extreme pain he suffered at the time.
- Mr Ryan initially used crutches and then moved to a single walking stick, such that I am satisfied he required a mobility aid for some weeks after the dashboard incident. I note there is no evidence of him requiring such an aid prior to the dashboard incident.
- Mr Ryan’s right knee was noted as having given way three times in a short period, such that he fell to the ground. Although I am satisfied Mr Ryan’s knee gave way on an intermittent basis before the dashboard incident, there is no report of it ever having resulted in him falling to the ground (save for the loading dock incident). I consider these incidents, which occurred closely in time to the dashboard incident, indicate a significant worsening of his symptoms.
- Mr Ryan required prescriptions of Endone medication on approximately three occasions following the dashboard incident and otherwise took painkilling medication over the course of that year. I consider this also indicates a prolonged worsening of his symptoms.
- Mr Ryan required regular physiotherapy during 2010 and 2011, before and after the surgical procedures. I consider the frequency of such treatment also evidence of a worsening of his symptoms.
182 My acceptance of the matters outlined in the preceding paragraph is relevant to my determination as to the significance of the dashboard incident.
Aggravation and acceleration of Mr Ryan’s right knee condition
183 Mr McLean, Dr Doig and Professor Marshall each attribute the dashboard incident to the worsening of Mr Ryan’s pre-existing degenerative right knee condition. Mr McLean considered it resulted in a significant aggravation and one that “tipped the balance”. Dr Doig considered it resulted in a symptomatic exacerbation. Professor Marshall considered that Mr Ryan had suffered a meniscal tear. All of these doctors were aware of Mr Ryan’s longstanding right knee problems, including the intermittent symptoms he suffered prior to the dashboard incident. These doctors considered that, notwithstanding the likelihood that Mr Ryan had suffered an ACL injury in 2006, the dashboard incident was, of itself, a cause of his ongoing right knee condition. I consider their findings on this consistent with my acceptance that there was a significant worsening of Mr Ryan’s right knee condition in the period immediately after the dashboard incident.
184 Dr Boecksteiner also supported the significance of the dashboard incident, although given how partisan Dr Boecksteiner appeared in giving evidence, I give little weight to her opinion on this.
185 Mr Simm was the only specialist who considered the dashboard incident was of no ongoing significance to Mr Ryan, beyond a temporary injury, and that his condition since the dashboard incident was no different to what it would have been if not for that event. I do not accept this. I consider my acceptance of the dramatic and sustained worsening of Mr Ryan’s right knee condition following the dashboard incident inconsistent with Mr Simm’s opinion that it did not alter the clinical progression of Mr Ryan’s knee.
186 In his oral evidence, Mr Simm raised the possibility of Mr Ryan suffering a dislocation of the patella in the dashboard incident. This possible diagnosis was not raised in his written report and was not cited as a possible cause by any of the medico-legal doctors. Further, and most significantly, this diagnosis was not made by the ambulance officers, hospital staff or Dr Tran, all of whom examined Mr Ryan on the day of the dashboard incident. I therefore do not accept Mr Simm’s postulation on this.
187 In view of the above, I am satisfied that the dashboard incident was a cause of an aggravation and acceleration of the pre-existing osteoarthritis in Mr Ryan’s right knee. It follows that Mr Ryan should be compensated for the extreme pain he suffered at the time of the incident, the subsequent swelling, and inability to weight bear for a period of time. I accept his knee gave way to the extent that he fell to the ground. Mr Ryan required strong painkilling medication. Mr Ryan underwent an arthroscopy within a few months of the incident, during which osteophytes were removed and damage to his meniscus was trimmed. Despite the surgery, I accept that Mr Ryan’s right knee pain persisted at high levels.
188 Mr Ryan required two further arthroscopies and multiple injections. He also required ongoing hydrotherapy and physiotherapy, far in excess of what he had required prior to the dashboard incident. Such treatment was provided by Dr Boecksteiner, who considered it an appropriate surgical procedure in response to Mr Ryan’s ongoing complaints of pain. The damages to be awarded to Mr Ryan must compensate him for the pain and suffering associated with him undergoing such medical treatment, which I am satisfied was required as a consequence of the dashboard incident.
189 In addition to the pain and suffering associated with his ongoing symptoms, I also accept that for the past ten years, Mr Ryan’s enjoyment of life and ability to undertake recreational activities such as fishing has been curtailed. Further, I accept that his ability to enjoy activities around the home such as gardening and building furniture has also been impacted as a consequence of the aggravation of his right knee condition in the dashboard incident.
Mr Ryan’s total knee replacement
190 Mr Ryan’s right knee replacement was required as a result of severe loss of articular cartilage, which I accept was well established prior to the dashboard incident. I accept the medical opinions of Dr Doig and Mr Simm that given the state of his knee at the time of the dashboard incident (including his past history of arthroscopies, the end stage degenerative changes seen on the MRI scan of 25 January 2010, as well as his excessive weight), it was inevitable that Mr Ryan would come to this procedure. The issue for me to determine is the probable timing of the knee replacement if not for the dashboard incident.
191 Dr Boecksteiner’s current opinion that if not for the dashboard incident, Mr Ryan would probably not have required a knee replacement until the predictable age of seventy years, is difficult to reconcile with the opinion she expressed when she first met Mr Ryan. At that time, Dr Boecksteiner was not aware of the dashboard incident but nonetheless considered that the pathology in Mr Ryan’s knee indicated he required a knee replacement then, but should try to defer it due to his young age, although he would likely require it within ten years.
192 In her oral evidence, Dr Boecksteiner sought to justify her position that Mr Ryan could have made it to seventy years without requiring a knee replacement by noting that many people who have them at age seventy have past histories of some minor knee injuries through their teens, 20s, 30s and 40s. Her non-specific evidence on that was of no assistance to me in my understanding of the likelihood of this for Mr Ryan.
193 Further, Dr Boecksteiner then compared Mr Ryan’s left knee and stated that his problems with that had not resulted in him requiring a knee replacement, and it had been subjected to some of the same things as his right knee. I considered Dr Boecksteiner’s evidence on this an example of her partisan and adversarial disposition, demonstrated throughout the course of her evidence. I consider there can be no fair comparison of Mr Ryan’s right knee to his left knee, even without the involvement of the dashboard incident. His left knee was asymptomatic until 2011, with no history of injury or surgery. Mr Ryan’s right knee had longstanding problems from his early 20s, involving two arthroscopies and multiple episodes of injury. Dr Boecksteiner’s reference to Mr Ryan’s left knee not requiring a total knee replacement as a justification for her opinion that he would not have required one in his right knee, absent the dashboard incident, defied logic.
194 Mr Simm was of the opinion that the dashboard incident did not contribute to Mr Ryan’s need for this surgery, as at the time of the incident, he already had advanced osteoarthritis, together with risk factors, including two previous arthroscopies and excessive weight. As stated previously, I do not accept Mr Simm’s opinion that the dashboard incident was of no ongoing consequence to Mr Ryan and therefore I am not assisted by his opinion on this.
195 In his first two reports, Mr McLean was of the opinion that the arthroscopy procedures were reasonable to perform and notwithstanding Mr Ryan’s pre-existing symptomatic right knee condition, attributed the need for such procedures to the dashboard incident. In his most recent report, Mr McLean stated that, in his opinion, the right knee replacement surgery was attributable to the dashboard incident. I note this opinion was offered in the context of an erroneous history that Mr Ryan’s right knee was asymptomatic in the lead up to the dashboard incident. Mr Mighell invited me to infer that, based upon Mr McLean’s previous opinions, he would have supported the need for this further surgery also being related to the dashboard incident. However, an arthroscopy is performed to trim and clean up cartilage damage, whereas a total knee replacement is performed to resolve pain caused by the absence of articular cartilage. Given the difference in the need for such surgeries, I am not willing to infer Mr McLean’s support for the dashboard incident being a cause for the knee replacement surgery, in the context of his report containing this significant inaccuracy in respect of Mr Ryan’s past history.
196 Dr Doig was of the opinion that Mr Ryan would have required the total knee replacement irrespective of the dashboard incident but acknowledged the dashboard incident most likely brought it forward – he did not state by how many years. I consider this acknowledgement by Dr Doig to be the most realistic opinion offered on this theoretical question. It accords with the dashboard incident aggravating and accelerating the pre-existing condition, whilst also recognising the significance of the pathology in Mr Ryan’s right ACL at that time, together with the increased risks arising from his past history of arthroscopies and being morbidly obese.
197 Noting that in July 2011, Dr Boecksteiner considered that Mr Ryan was likely to require a total knee replacement within ten years, in the absence of her knowledge of the dashboard incident, I consider that is a fair benchmark as to when Mr Ryan would have undergone such surgery. Noting that none of this is capable of precise calculation, I am satisfied that it if not for the defendant’s negligence or breach of the Regulations, it is probable Mr Ryan would have undergone his total knee replacement by approximately July 2021. Thus, there has been a partial acceleration of approximately four years.
198 In the Full Court of the Supreme Court in Zumeris v Testa,[16] it was recognised that even if a disablement would inevitably have occurred later in life, if the negligent event accelerated the need for such treatment, the plaintiff should be entitled to an award of damages for “the ill effects suffered during the period of acceleration”. However, “the ill effects suffered thereafter may generally speaking be disregarded in the assessment, because such ill effects would inevitably have been suffered in any event. …”.[17]
[16][1972] VR 839 at 842
[17]Ibid
199 Accordingly, Mr Ryan should be awarded some modest compensation for having undergone knee replacement surgery earlier in time, but damages associated with the aggravation of his right knee condition should cease as at July 2021.
200 Further, as I am satisfied that the total right knee surgery was only accelerated by four years, I consider this an inconsequential period of time in regard to Mr Ryan’s long-term prognosis and possible need for any revision surgery. I consider an award of damages for the small contribution to the need for any revision surgery, which is only a possibility, would be speculative on the evidence before me.
Left knee injury
201 Mr Ryan complained of crepitus in his left knee approximately eighteen months after the dashboard incident. It worsened overtime, but then improved following Mr Ryan’s right total knee replacement.
202 Dr Doig, Dr McLean and Dr Boecksteiner all accept that the onset of Mr Ryan’s left knee pain was attributable to him overusing his left leg arising from symptoms in right knee. In the circumstances in which I have accepted that the dashboard incident aggravated and accelerated the deterioration of Mr Ryan’s right knee condition, I am satisfied that Mr Ryan should also be compensated for the pain in his left leg.
Depressive condition
203 Over time, Mr Ryan has shown himself to be a hardworking and stoic person. He had rarely missed time off work following incidents at work in 2003, 2005 and 2006. After the dashboard incident, Mr Ryan was back at work the following day, on crutches. However, despite remaining in full-time employment, I accept that since the dashboard incident, Mr Ryan has suffered ongoing pain, has required extensive medical treatment and has been restricted in some of his recreational activities.
204 In approximately 2014, Mr Ryan attempted suicide by taking an overdose and did so again earlier this year.
205 Dr Schutz has diagnosed Mr Ryan as suffering a Chronic Adjustment Disorder with Anxious and Depressed Mood. I accept that this condition has arisen due to Mr Ryan’s persisting pain and the restrictions which his aggravated right knee injury has placed upon his ability to enjoy life.
206 I note that at the time of the dashboard incident, Mr Ryan was forty-four years of age. I accept that the last ten years has been a very difficult period for him. If not for the dashboard incident, I am satisfied he would have experienced occasional right knee pain, but not with the frequency and intensity that he has. In what should have been a prime decade of his life, Mr Ryan experienced constant pain, requiring ongoing medical treatment. I therefore consider that Mr Ryan should be compensated for the depressive condition and suicide attempts which I am satisfied have arisen as a consequence of the dashboard incident.
Summary
207 In his closing submissions, Mr Mighell invited me to award Mr Ryan damages of $300,000. I consider that to do so would not take into account my conclusion that Mr Ryan would probably have had a total knee replacement by July 2021, irrespective of the dashboard incident.
208 In the defendant’s closing submissions, Mr Clarke suggested that if I was satisfied there had been a dislocation of the patella in the dashboard incident, that may have attracted an award of a few thousand dollars, and if I was satisfied that it caused a minor acceleration in the timing of the need for Mr Ryan to undergo the total right knee replacement, an award in the range of $20,000 to $30,000 would be appropriate.
209 For the reasons outlined above, the damage Mr Ryan suffered as a consequence of the dashboard incident is far greater than that suggested by the defendant. It is also not as great as that sought by Mr Mighell, on behalf of the plaintiff, as I am satisfied if not for the dashboard incident, Mr Ryan would soon have come to a total knee replacement.
210 Taking into account the matters identified above, I am satisfied that Mr Ryan should be awarded a sum of $200,000 for his pain and suffering damages.
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