Sanderson v Rentokil Initial Pty Ltd
[2013] VCC 1873
•5 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-05195
| CAROL THERESE SANDERSON | Plaintiff |
| V | |
| RENTOKIL INITIAL PTY LTD | Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 28 October 2013 | |
DATE OF JUDGMENT: | 5 December 2013 | |
CASE MAY BE CITED AS: | Sanderson v Rentokil Initial Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1873 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application under s. 134AB of Accident Compensation Act – injury to plaintiff’s knee – whether pain and suffering consequence “serious”
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
Judgment: Plaintiff’s application for leave is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. McWilliams | Slater & Gordon Lawyers |
| For the Defendant | Mr N. Chamings | Thomsons Lawyers |
HER HONOUR:
Introduction
1 The plaintiff is 53 years of age and divorced. She grew up in country New South Wales. She completed her formal education at about age 15, followed by a year undertaking secretarial studies.
2 From about 1980, plaintiff was employed as a tram driver and conductor by the Melbourne Metropolitan Tram Board. After some 13 years she took a redundancy package. Other employment included office work, working in milk bars, driving taxis and working as a courier.
3 The defendant provides sanitary waste disposal services. The plaintiff has been employed by the defendant as a service technician since about 1997.
4 Prior to 5 January 2010, the plaintiff's duties as a service technician required her to drive the defendant's truck to collect, deposit and change sanitary bins located in factories, retail outlets, shopping centres businesses and hospitals. She was also required to fill soap dispensers, clean urinals, change air fresheners and check and refill sanitiser fluid in the cisterns of urinals and toilets.
5 In her work, the plaintiff used a small step ladder, approximately 1.5 to 2 feet in height with two steps.
6 In an affidavit sworn on 19 June 2012[1] the plaintiff described an incident during the course of her employment in the following words:
[1] Plaintiff's Court Book (PCB) 10-12
"5. On 5 January 2010 at a bit before 2 o'clock in the afternoon, I was at a factory at Banbury Road, Reservoir and had to attend the men's toilets to check the liquid sanitiser in the cistern of the urinal. The cistern was made of plastic and located to the left of the urinal. In order to access the cistern I was required to place the step ladder with the front legs in the tray of the urinal and the back legs placed on the step of the urinal.…
6.…
7. When I retrieved the dispenser from the cistern I notice that it was full and did not need refilling. I then stood up on my tip toes and placed the dispenser bottle back in the cistern. After I dropped the dispenser back in the ladder moved or slipped and the back legs fell off the step of the urinal. I can't really recall how I landed but I believe I landed awkwardly on my left leg, injuring my left knee. When I fell, I fell from the top of the ladder….
8. When I landed my left knee felt numb. I tried to get up and realised I couldn't put any weight on my left leg because my left in a setting so I sat back down on the floor.…(the incident)."
7 At her request the plaintiff’s supervisor drove her home. She was later taken to her general practitioner's clinic and then to the Sunshine Hospital, where the plaintiff was admitted for treatment.
8 X-ray investigation and later CT scan revealed fracture of the lateral tibial plateau.[2] On 9 January 2010 the plaintiff underwent open reduction and internal fixation of the fracture with a plate and multiple screws. On 11 January 2010 the plaintiff was discharged on crutches.
[2] PCB 40 and 48
9 It appears that the plaintiff's recovery progressed well. By 15 March 2010 she had been referred for physiotherapy, by 16 April 2010 the plaintiff was advised that she could fully weight bear and, by 18 June 2010, the plaintiff was considered fit to return to light duties, not involving the driving of a manual truck.[3]
[3] PCB 49
The application
10 The plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for injury to her left knee arising out of or in the course of, or due to the nature of her employment with the defendant.
11 Leave was sought under paragraph (a) of the definition of 'serious injury' to recover damages for pain and suffering only in relation to permanent serious impairment of the plaintiff's left knee.
12 Initially, the plaintiff also sought leave under paragraphs (b) and (c) for permanent serious disfigurement and permanent severe mental or permanent severe behavioural disturbance or disorder. Evidence was called which confirmed both residual scarring[4] and, at the date of hearing, a likely psychological sequelae involving a chronic adjustment disorder with anxious mood and a phobia which prevented use of ladders and working at heights.[5]
[4] Transcript (TN) 15.1 to 17.1
[5] Reports of medico-legal specialists, on behalf the plaintiff on 10 July 2013, psychiatrist, Dr Weissman and on behalf of the defendant on 13 May 2011, psychiatrist, Dr Kornan, PCB 70 and Defendant's Court Book (DCB) 18 respectively.
13 However, before the conclusion of final submissions the plaintiff acknowledged there was insufficient evidence to support a finding of serious injury under either of these paragraphs.[6]
[6] TN 1 and 71
14 'Permanent' refers to impairment of the left leg that is: "likely to last for the single future".[7]
[7]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
15 The determination of whether this injury is 'serious' is assessed by reference to the consequences to the plaintiff of impairment of her left leg, which would not meet the test unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments, 'fairly described as being more than significant or marked and as being at least very considerable'.[8]
[8] Section 134AB(38)(c)
16 Relevantly, section 134AB(38)(h) precludes consideration of any psychological or psychiatric consequence of the injury. It follows from this that, in this application, the adjustment disorder and the phobia mentioned above, were not relevant to the assessment of the consequences of impairment or loss of function of the plaintiff's left lower limb.
The dispute
17 The defendants have conceded compensable injury, the only issue being whether or not, by applying the narrative test, the pain and suffering consequence of the injury sustained is serious.[9]
[9] TN 2.1 to 3.1
18 There was no challenge to the plaintiff's credit. My impression of the plaintiff was that she was a straightforward and sincere witness.
19 Extracts from the court books were tendered by both parties.[10] The plaintiff relied on affidavits sworn by her on 19 June 2012 and 30 September 2013 respectively. She gave evidence and was cross-examined. Her partner of 18 years, Cathy Clarke, swore an affidavit in support on 29 September 2013. Her evidence was not challenge through cross-examination.
[10] Exhibit P1 and Exhibit D1
20 The plaintiff tendered a copy of Medical Panel Certificate Opinion dated 26 September 2011 (evidencing as it did permanent left knee and scarring impairment and psychiatric impairment[11]), a selection of the reported radiological results, medical reports from treating health professionals and reports from medico-legal experts.
[11] PCB 31-32
21 The defendant tendered five reports obtained from medico-legal experts between May 2010 and October 2013.
The Plaintiff's return to work from mid-2010
22 The plaintiff was examined by occupational physician, Dr Mutton at the request of the insurer on 7 May 2010.[12] At that stage, the plaintiff was still undergoing physiotherapy twice weekly and, based on the report made, she was not taking any specific medication for her left knee condition. Dr Mutton predicted a return to modified or alternative duties in approximately 4 weeks or earlier.
[12] DCB 1-6
23 The plaintiff returned to light office duties from July 2010, working 3 days a week, 4 hours per day. Over a period of some months the hours worked were gradually increased and, from 31 August 2010, the plaintiff returned to full time light office duties, as well as some warehouse work.
24 The plaintiff deposed that in November 2010 she resumed working her pre-injury duties on restricted hours. Having by October 2011 returned to her pre-injury duties and hours, the plaintiff has continued her employment with the defendant as a service technician.[13]
[13] PCB 13-14 and TN 4
25 In further evidence-in-chief the plaintiff told the Court that she no longer used a ladder in her work or, for that matter, at home because she had developed a phobia about ladders and heights. The plaintiff said she avoided using a ladder at work and, when at home, her partner covered any activity involving heights.[14] As mentioned, the phobia and its consequences were not relevant to the determination of whether the pain and suffering consequence of impairment of the left knee met the statutory test.
[14] TN 11.1-12.1 and 21
26 At some stage after the plaintiff returned to her normal duties, the defendant introduced changes in the system of work for all service technicians.[15] While these changes have been beneficial, the plaintiff agreed that they were not implemented in response to her injury. For instance, the plaintiff told the Court that the defendant was in the process of replacing its manual trucks with automatic vans. Having resumed her normal duties, which initially involved a return to driving a small manual truck with a clutch (albeit a light clutch which the plaintiff said she had managed[16]), since August 2013, the plaintiff has driven an automatic van.
[15] TN 1-2
[16] TN 5-6
27 The plaintiff also told the Court that the vans have folding ramps which lessened the amount of walking involved, as they allowed service technicians to wheel bins into the customer's premises and change the bags before wheeling the bins back to their van.[17]
[17] TN 13.1
Pain and suffering consequence
28 As was explained by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon,[18] the evaluation of the pain and suffering consequence requires consideration of the plaintiff's experience of pain and the disabling effect of pain on her physical capabilities (including her capacity for work) and enjoyment of life.
[18] [2010] VSCA 69 [9]-[17] and applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
29 Evidence of the intensity and frequency of pain (from the plaintiff, her partner and doctors), the treatment received or recommended and any objective evidence as to the disabling effect of pain is important to any proper evaluation of the plaintiff's experience of pain. The evaluation of the disabling effect of pain called for consideration of the extent to which pain continues to limit this plaintiff's activities and to interfere with her enjoyment of life.
30 In this assessment the significance of what is lost may be informed to some extent by what the plaintiff has retained. For instance, unlike some other applicants for leave whose disability precludes working in the kind of work in which they were formally engaged, the plaintiff has retained the capacity to continue her full-time pre-injury employment. She manages this, albeit with some degree of difficulty. However, it was common ground that her return to full-time work with the defendant itself did not preclude a finding of serious injury.
31 The doctors have not questioned the account they received from the plaintiff of her ongoing symptoms of pain and, more recently, Mr Wilde appears to have accepted her complaint that her knee swells. Nor have they questioned the plaintiff’s description of the limitations on her activities due to pain and permanent impairment of the knee.
32 Understandably, the plaintiff was particularly concerned about the risk of developing post-traumatic osteoarthritis and, should the condition of her knee deteriorate, the possibility that she would require knee replacement in the longer term.[19] There was, however, no evidence that knee replacement surgery, if required in the longer term, was likely to close off engagement in her current area of work.
The experience of pain
[19] PCB 14-15 and 19
33 The plaintiff no longer receives active treatment for her knee injury. In her first affidavit, among other things, the plaintiff deposed that she had pain on most days in and around her knee for which she took “around” two Panadol tablets each day. She described this pain as a “burning” on the left side of her knee with aching and some tightness around the knee.[20] On 30 September 2013 the plaintiff deposed that she continued to experience pain and discomfort in her left leg and knee and on working days she took two to four Panadol tablets.
[20] PCB 14
34 Under cross-examination the plaintiff told the Court that her knee had always been painful.
35 Further to her use of medication, at hearing the plaintiff confirmed that, she had been discharged from hospital with a limited amount of OxyContin medication and had since relied on over-the-counter paracetamol medication (Panadol and the like) for pain relief.[21] Based on the plaintiff’s evidence, the level of her pain and the extent to which pain relieving medication was required on working days varied (between two and four Panadol tablets), depending on the level of the plaintiff’s activities.[22] According to the plaintiff, medication only lessened her pain and, as the plaintiff explained at hearing, she had pain, in her words: "all the time," which working intensified.[23]
[21] TN 3
[22] PCB 14 and 17 and TN 13-14
[23] TN 20
36 The impression I formed on the evidence, was that there was some discrepancy between the doctors' interpretation of the intensity and frequency of the pain suffered (based on the plaintiff’s reports and their clinical examinations) and the intensity and frequency of pain described by the plaintiff at hearing.
37 The reports of treating physiotherapist, Mr Mahmud and general practitioner, Dr Thomas suggest that the plaintiff underwent regular physiotherapy for some time. By March 2011, the treating general practitioner noted, among other things, that the plaintiff reported mild discomfort, which had been well controlled with simple analgesics.[24] This statement was repeated in his final report dated 26 September 2013. However, the general practitioner also noted there had been short periods when the plaintiff's knee was more painful and required treatment before returning to: “her recent “normal” level of functioning”.[25] Without indicating whether he had viewed the X-rays to which he referred (obtained in August 2011 and July 2013), Dr Thomas predicted a moderate to good prognosis, there being, he said, the possibility of occasional exacerbations of pain and the development of osteoarthritis in the knee.
[24] PCB 18-52
[25] PCB 53
38 When taken to Dr Thomas’ report, the plaintiff was unable to recall using the words: “mild discomfort” to describe the intensity of her pain. Rather, the plaintiff said the level of her pain had increased.[26]
[26] TN 9 and 14
39 Through her responses the plaintiff reiterated that she was never free of pain. Indeed, the plaintiff said working on her feet “a lot” (7 ½ hours per day), increased her symptoms; namely, pain and swelling. These symptoms subsided with rest at home or during periods when the plaintiff was not walking or standing.[27]
[27] TN 9-10 and 20
40 On 12 May 2011 Mr Troy examined the plaintiff at the request of the defendant. She relevantly reported discomfort in the knee, pain laterally and “even medially” and taking Panadol if needed.
41 The reports of orthopaedic surgeons, Mr Wilde and Mr Dooley, however, provide the most recent specialist evidence. Mr Wilde re-examined the plaintiff at the request of her solicitors on 23 July 2013. Mr Dooley examined her once at the request of the defendant's solicitors on 23 August 2013.[28]
[28] PCB 72-76 and DCB 23-25
42 Mr Wilde's first report, dated 25 July 2012, generated some controversy about whether he had accurately recorded the reported level of pain and a further complaint of swelling in plaintiff's knee from time to time. Mr Wilde recorded the plaintiff’s complaint in the following words:
"At present her left knee gives her low-grade symptoms of pain and she feels she has lost some movements in her left knee. It does not give way or feel unstable and does not swell up. She finds walking up and down stairs particularly unpleasant. She says that the knee swells from time to time.
At present she is not undergoing active treatment but uses Panadol Osteo regularly if the pain is bad."[29]
[29] PCB 55-56
43 As to the disputed matters, Mr Wilde's record of complaint focussed on the intensity, not the frequency of the plaintiff's reported experience of pain. Moreover, his clinical examination had not revealed swelling or joint effusion (this clinical finding was also reported following re-examination on 23 July 2013 and found support in the results of Mr Dooley’s clinical examination on August 2013 – “There is no effusion of the knee”[30]).
[30] DCB 24
44 Nevertheless, Mr Wilde appears to have accepted that, impaired functioning of the left knee interfered with the plaintiff's ability to walk up and down stairs, inclines or declines, to walk long distances, to kneel, squat or crouch or to use her left leg repetitively. While Mr Wilde considered the plaintiff's immediate prognosis to be good, he too identified the risk of post-traumatic osteoarthritis developing (he specifically identified the lateral compartment of the left knee) and the, further, possibility of total knee replacement in the longer term.[31]
[31] PCB 56 and 58-59
45 As mentioned, the plaintiff contested the accuracy of the statement describing her symptoms of pain as "low-grade", because in her words, her knee was "quite painful".[32]
[32] TN 11
46 After re-examination of the plaintiff on 23 July 2013, Mr Wilde appears to have understood the following: [33]
"The main ongoing symptom was low-grade pain in the left knee with occasional swelling and stiffness. She told me that she used to play tennis and softball but because of her knee she can no longer do these activities. However, despite the pain she walks normally and is not particularly restricted with walking. Her knee is quite stable and does not give way. It does not restrict her driving a work vehicle or house work. She rates pain levels at 7 out of 10 on a visual analogue scale."
[33] PCB 73
47 Of itself, the plaintiff's subjective rating of her pain levels when questioned by Mr Wilde in July 2013 suggests, she probably then viewed her pain levels as greater than 'low-grade'.
48 Mr Dooley’s report following examination of the plaintiff on 23 August 2013 focussed attention on the frequency, not the level of pain suffered and, in doing so tended to contradict the plaintiff’s claim that she was never without pain. Mr Dooley said the plaintiff had noted: "ongoing intermittent left knee pain" and he added: "Following such an injury, one would expect a patient to note intermittent aching of the knee with prolonged activity and prolonged standing".[34]
[34] DCB 25
49 As mentioned, the plaintiff also contested the suggestion that her knee did not swell. The excerpt taken from Mr Wilde’s earliest report was inconsistent in its account of the report of swelling. This clearly reflected an error in the making of the report.
50 In any event in 23 July 2013, Mr Wilde appears to have based his opinion on, among other things, the plaintiff's complaint that her symptoms also involved occasional swelling.[35] This further evidence gives indirect support to the plaintiff's evidence that her knee swells, particularly on the days she works and is standing and walking.[36] Moreover, I found plausible the plaintiff’s evidence to the effect that her knee was probably not swollen during medical examinations because she did not work prior to these examinations.
[35] PCB 73
[36] TN 13
51 As to both specialist reports, it was common ground that the plaintiff's condition was stabilised and the plaintiff had likely suffered permanent impairment of the left knee which interfered with a range of activities. For instance, Mr Dooley said:[37]
"I believe that Ms Sanderson will continue to note her current symptoms, i.e. intermittent knee pain, an inability to engage in active impact pursuits and an inability to kneel and squat on her left knee. She is at some risk of developing slowly progressive post-traumatic osteoarthritis of the left knee joint in time. No specific treatment is required at present."
[37] DCB 25
52 However, where the specialist reports diverge is in their account of any clinical or radiological evidence indicative of the development of osteoarthritis.
53 As mentioned, the specialist evidence, supported by the evidence of the treating general practitioner, was consistent with a finding that, following this kind of injury, the plaintiff was at risk of developing slowly progressive post-traumatic osteoarthritis of the left knee and, if this occurred, in the longer term, the plaintiff could require a total knee replacement.
54 Mr Wilde's most recent evidence again appeared contradictory. In summarising his findings Mr Wilde ascribed the plaintiff's persistent symptoms (pain and mild stiffness of her left knee joint) to early post-traumatic osteoarthritis of the left knee lateral compartment yet, on two subsequent occasions in the same report, his responses to specific questions suggested that this had not yet occurred ("It is difficult to predict whether this will occur"[38] and "… in the longer term Ms. Sanderson might develop post-traumatic osteoarthritis of the lateral compartment of the left knee"[39]).
[38] PCB 74
[39] PCB 75
55 However, Mr Wilde said he viewed the most recent x-ray film. When asked to comment on the clinical significance of any variation between this and earlier film, Mr Wilde specified the variation and opined that the film, obtained on 10 July 2013, indicated progression of post-traumatic osteoarthritis. Notably, he said:
"Ms. Sanderson's recent x-ray demonstrated 10 degree valgus deformity with slight loss of joint space or the lateral compartment of the knee with sound union of fracture including satisfactory incorporation of the bone graft used to elevate and support the tibial plateau. There appeared to be increasing loss of joint space laterally indicating progression of post-traumatic osteoarthritis of the lateral compartment of the knee."[40]
[40] PCB 76
56 The radiologist's report for this x-ray was not tendered. Having read Mr Dooley's report, whilst it is clear that he considered the results of the most recent x-ray ("X-rays taken in July 2013 show slight irregularity of the joint surface but no evidence of narrowing of the joint base"[41]) I could not be confident that Mr Dooley (or for that matter the general practitioner) had himself viewed and interpreted the film.
[41] DCB 24
57 Mr Wilde was not required for cross examination. The defendant, nonetheless, submitted that, Mr Wilde's evidence was unsatisfactory and, in this case, the Court should proceed on the basis there was no indication that the osteoarthritic process had commenced.[42]
[42] TN 75-76
58 In my view, despite some inconsistency in statements made by Mr Wilde throughout his report, it is clear that he had applied his expert eye to the x-ray film and, in so doing, had observed some variation he considered was consistent with the progression of the disease process, namely increasing loss of joint space. I have preferred the evidence of Mr Wilde in this regard, because absent evidence that Mr Dooley (or the general practitioner) had also viewed the film, I was not satisfied that the proper resolution of this issue simply rested on conflicting interpretations of the current film by two expert witnesses.
59 Accordingly the plaintiff satisfied me that there was evidence of the disease process. This is relevant to my assessment of the pain and suffering consequence of the left knee injury.
60 In summary, there is some tension between the plaintiff’s subjective account and the doctors’ understanding of the level and frequency of pain as reported. However, if I accept, as I have, the likelihood that the disease process is present, this evidence may account for some of her reported increase in pain. This does not mean that I was persuaded by the plaintiff’s evidence alone that her pain experience had not been adequately reported or assessed by doctors when formulating their opinions and preparing their reports.
The disabling effect of pain
61 It is convenient to discuss the disabling effect of pain and the extent to which it interferes with the plaintiff’s ordinary activities and enjoyment of life, together. In her affidavit and oral evidence, the plaintiff described a range of activities impacted by pain and disability. These included, the plaintiff said:
Ø Employment. The plaintiff deposed that many of the tasks performed by her at work required walking. Being on her feet and walking worsened pain and, at the conclusion of each working day the plaintiff said her knee was very uncomfortable.[43] The 53-year-old plaintiff's evidence was to the effect that she had intended to work to retirement age. She accepted that she could do her work. Despite this causing her pain, the plaintiff said she persisted with work because she had to pay her bills.[44] Accordingly, on the assumption that the plaintiff has a further dozen or so working years ahead of her, the likely regular endurance of work-related symptoms of some level of left knee pain and swelling is a relevant factor in the assessment of the pain and suffering and loss of enjoyment of life consequence.[45]
[43] PCB 17
[44] TN 7, 13.1-13.2 and 15
[45] PCB 18
Ø Sleep. In her affidavits the plaintiff deposed: "My left leg wakes me sometimes if I'm not lying in a comfortable position" and "Sleep continues to cause me some difficulties. If I accidentally roll-over to my left-hand side it causes me pain and discomfort and will wake me."[46] Her partner's unchallenged evidence supported this claim. These complaints notwithstanding, the plaintiff's evidence under cross-examination, indicated that, at most, any disruption to her sleep was intermittent and was not such as to prevent the plaintiff rising and attending work each day.[47]
[46] PCB 14 and 18
[47] TN 15-16
Ø Mobility. The plaintiff deposed that her tasks at work took a lot longer because she was slower when walking, more so when using steps or walking up an incline.[48] The plaintiff nevertheless agreed under cross-examination that any loss of mobility had not prevented her from performing a full day’s work or mopping the floor at home. The impression I formed was that activities involving crouching, squatting or kneeling were probably the most affected by loss of mobility, such that the plaintiff could no longer scrub floors or, as she had previously done, kneel to weed the garden, whereas domestic chores such as vacuuming, mopping or standing up to wash dishes were achieved, but not without some degree of difficulty.[49] Under cross-examination, while conceding she achieved these tasks (albeit more slowly) the plaintiff also adverted to problems in putting on her socks, shoes and trousers because she could not fully bend her knee.[50]
Ø Social/Recreational pursuits. While I accept that the plaintiff is probably unable to return to playing softball, her evidence indicated that this was not a sport in which she had actively engaged for a very long time. Tennis was another story. Having played social tennis every two or three weeks before the accident, the plaintiff, who deposed that pain prevented her from running, said she missed this activity.[51] Her partner's unchallenged evidence supported this claim and the plaintiff’s further claim that due to pain she now rarely took long walks (lasting approximately 60 minutes) with her partner for exercise.[52] According to her partner prior to the incident they had walked together for exercise about four times a week.[53] I understood from the evidence before me that the plaintiff retained the capacity to takes walks with her partner, but pain and loss of mobility had significantly reduced the frequency and length of these outings. I further understood from the evidence that the plaintiff retained the capacity to socialise as she had in the past with friends at the local pub.
Ø Limping. In her first affidavit the plaintiff deposed that she tended to limp if she walked long distances.[54] In July 2012 she apparently told orthopaedic surgeon, Mr Wilde that she limped: "… occasionally when the leg gets tired and aching pain comes on".[55] Under cross-examination the plaintiff expressed her belief that she limped and did not walk “normally”.[56] I accept that occasionally, when tired, the plaintiff may feel that she limps. However, the evidence of the specialists suggests that, the plaintiff has probably retained a normal gait. For instance, in his final report, Mr Wilde recorded that, despite pain, the plaintiff walked normally and she was not particularly restricted with walking. This evidence finds support in the final report of orthopaedic surgeon, Mr Dooley who in a report dated 16 October 2013, among other things, informed the defendant's solicitors that the plaintiff walked without a limp.[57]
[48] PCB 18
[49] PCB 14, 18 and 21 and TN 16
[50] TN 18
[51] PCB 14 and 18 and TN 19
[52] PCB 14 and 18
[53] PCB 21
[54] PCB 14
[55] PCB 55
[56] TN 14
[57] PCB 73 and DCB 24
Conclusions
62 In conclusion I find that as a result of the incident the plaintiff suffered compensable fracture injury to her left knee with likely permanent impairment of the knee.
63 As mentioned, the plaintiff’s evidence as to the intensity and constancy of pain is not easily reconciled with the treating and specialist medical evidence of their understanding of the matters reported to them. The plaintiff is, however, now facing the slow progression of the degenerative disease process, which increases the risk of requiring knee replacement surgery in the long term.
64 There is evidence that, while the plaintiff manages her pre-injury employment duties, she does so with some degree of difficulty and, when working, she requires over-the-counter pain relieving medication daily. The plaintiff said she had intended to work until retirement age. Allowing for the doctors’ evidence I did not, however, form the view that the plaintiff’s level of activity in her work was somehow greater than might have been expected given the assessment of the level of her pain and disability or, the fact that she had remained in her pre-injury employment was evidence of a willingness to endure a high degree of pain in order to stay working.
65 I have summarised the impact on the plaintiff's day-to-day activities. No doubt the plaintiff feels strongly the loss of the opportunity to play social tennis regularly with her partner and to take long walks with her for exercise. She has, nonetheless retained a broader social life and, if I am correct in my analysis of the evidence, a capacity to go for shorter walks. There is some impact on the plaintiff’s contribution to her shared domestic life but certainly not such that it could be characterised as significant.
66 I was referred to a number of decisions delivered by this Court and by the Court of Appeal. It goes without saying that each case was, as this case must also be, decided on its facts. Having considered the evidence as a whole, I was satisfied that the pain and suffering and loss of enjoyment of life consequence was probably aptly characterised as significant or marked. I was not however persuaded that by comparison with other cases in the range of possible impairments, the consequence so described could be fairly described as being more than significant or marked and as being at least very considerable.
67 The plaintiff’s application for leave is dismissed.
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