Schembri v Department of Human Services
[2016] VCC 1725
•22 November 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00100
| JOHN MARK SCHEMBRI | Plaintiff |
| v | |
| DEPARTMENT OF HUMAN SERVICES | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 15 and 16 August 2016 | |
DATE OF JUDGMENT: | 22 November 2016 | |
CASE MAY BE CITED AS: | Schembri v Department of Human Services & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1725 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – knee injury – causation – whether workplace injury has serious consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Dahl v Grice [1981] VR 513; EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238; McDonald v Director-General of Social Security (1984) 1 FCR 354; Petkovski v Galletti [1994] 1 VR 436; Bezzina v Phi [2012] VSCA 161; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted for pain and suffering damages and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B E Walters with Mr K D Mueller | Saines Lucas Solicitors |
| For the Defendants | Mr P A Scanlon QC with Ms F Ryan | IDP Lawyers |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common-law proceedings against the first defendant, his former employer, the Department of Human Services (“the employer”), pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect to both pain and suffering and loss of earning capacity damages.
2 The application refers to an injury to the plaintiff’s left knee (“the injury”) which he claimed was the result of a kick to the knee on 23 May 2013 while performing his duties as a mentor to young men in the justice system. The plaintiff had been directed by his manager to be one of five persons to escort one of the inmates at the Malmsbury Youth Justice Centre back to his room. The inmate resisted attempts to escort him and as he tried to struggle free, he allegedly kicked the plaintiff very hard in the left knee and the plaintiff fell to the ground beneath the inmate and some fellow workers.
3 The plaintiff claims that the injury is a “serious injury” within the meaning of paragraph (a) of the definition in s134AB(37) of the Act, in that it is “a permanent serious impairment or loss of a body function”.
4 The particulars of the injury relied upon are as follows:
“Traumatic injury to the left knee in the form of complete rupture of the anterior cruciate ligament necessitating arthroscopic and reconstructive surgery;
Aggravation, acceleration and exacerbation of pre-existing significant chondral degeneration of the left knee;
Pain restriction of movement and loss of function of the left knee joint.”
5 It is common ground that the present condition of the plaintiff’s left knee constitutes a permanent serious impairment of the knee joint in terms of loss of earning capacity and pain and suffering.
6 In a written submission before me, defence counsel identified the essential issues as:
(a) the plaintiff’s onus of affirmative satisfaction;
(b) the identity of any specific injury sustained on 23 May 2013;
(c)whether the consequences of the injury (as opposed to the consequences of other injuries and conditions of the left knee which the plaintiff expressly does not rely upon) are, assessed as at the date of trial, both “serious” and “permanent”.
7 In terms of identifying the injury, counsel, in their written submissions, stated:
“In that regard, the plaintiff must identify and establish the ‘specific injury’ to which s134AB applies, which involves ‘identifying precisely the nature and extent of the injury relied upon and of the consequent impairment of a body function said to have been produced.”[1]
[1]Barwon Spinners v Podolak (2005) 14 VR 622
8 It was further submitted:
“In that context, ‘injury’ comprises ‘some physiological change to a body part’.”[2]
[2]Grech v Orica Australia Pty Ltd (2006) 14 VR 602 at paragraph [43]
This particular reference and definition set out in Grech actually cites a quote from Barwon Spinners to the effect that it was, in fact, counsel’s submission that that definition was appropriate and, in the case of Barwon Spinners, it was at least implicitly accepted by the Court. However, Ashley JA, in Grech, referred to the extended definition of injury as follows:
“‘Injury’ means any physical or mental injury and without limiting the generality of the foregoing includes —
…
(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.”[3]
[3]Grech v Orica Australia Pty Ltd (supra) at paragraph [47]. This definition was that extant under Reprint 12, but subsequent amendments still required the recurrence et cetera to contain a significant contributing factor from the employment. See Act No 85/2003 s3(5), amended by No 9/2010 s13(1)
9 His Honour went on to state:
“48.Pausing for a moment, ‘injury’ – as there defined or more generally for accident compensation purposes – will often be constituted by ‘some physiological change to a body part’. But that will not always be so, as Windeyer J, observed in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 592‒593, in connection with the similar phrase ‘a sudden physiological change for the worse’.”
10 In the case before me, it can be seen that the injury sought to be relied upon includes the “aggravation, acceleration and exacerbation of pre-existing, significant chondral degeneration to the left knee” which, in the context of the facts of the case, amounts to rendering that chondral degeneration symptomatic as a result of the injury, such that the knee in that regard never returned to its asymptomatic state.[4]
[4]See Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
11 In addition, the plaintiff relies upon a degree of instability in the knee as a direct consequence of the anterior cruciate ligament reconstruction.
The evidence
12 The plaintiff swore in his affidavit dated 10 September 2015, that:
“Upon being kicked my knee swelled immediately and I struggled to walk. My left knee has never been pain free since and I have limped from the moment of the incident described.”[5]
[5]Exhibit A, affidavit of the plaintiff sworn 10 September 2015 at paragraph [8], Plaintiff’s Court Book (“PCB”) 9
13 Thereafter, he swore that he:
“… rested at home for the next three days and applied ice to the knee. I also elevated the knee. The swelling went down in this time and I returned to work. Whilst supervising a soccer game in late May 2013 a ball hit my left knee and aggravated the pain. … .”[6]
[6]Exhibit A, affidavit of the plaintiff sworn 10 September 2015 at paragraph [9], PCB 9
14 Thereafter, he swore that:
“… On [20] June 2013 whilst at work I slipped on some wet grass and again aggravated the knee pain. I ceased work on 23 June 2013 and returned on approximately 8 September 2013.”[7]
[7]Exhibit A, affidavit of the plaintiff sworn 10 September 2015 at paragraph [9], PCB 9
15 It is common ground that the plaintiff first sought medical attention on 20 June 2013 when he consulted his general practitioner, Dr Brad Wyer, of the Springs Medical Centre.
16 The plaintiff underwent an MRI investigation in August of 2013 and underwent an operation at the hands of orthopaedic surgeon, Mr Paul Plank, on 14 November 2013. This operation took the form of an arthroscopic reconstructive procedure, using a LARS synthetic ligament.[8]
[8]Exhibit A, affidavit of the plaintiff sworn 10 September 2015 at paragraph [10], PCB 9 – 10
17 Thereafter, the plaintiff was re-admitted to hospital because he was suffering from a pulmonary embolism which was subsequently treated with anticoagulants. He further underwent physiotherapy treatment until approximately mid February 2014. He returned to work on light duties at Malmsbury until mid 2014 and was then told there was no further light work for him.[9]
[9]Exhibit A, affidavit of the plaintiff sworn 10 September 2015 at paragraph [13], PCB 10
18 At the hearing, Senior Counsel for the defendants identified the issues in the case as follows:
· first, the plaintiff was suffering from pre-existing degenerative changes of significance in the left knee and the plaintiff would have been in the same position at the date of the hearing, irrespective of the injury suffered on 23 May 2013 the subject of this application;
· alternatively, it is contended the serious injury occurred in late May 2013 when a soccer ball hit the knee and aggravated the pain; or
· alternatively, on 20 June 2013, when the plaintiff slipped on the grass whilst supervising clients playing basketball, causing the pain.[10]
[10]Transcript (“T”) 4, Lines (“L”) 3 – 15
19 It was common ground that the plaintiff had suffered an injury to his left knee whilst playing football when he was fourteen years of age. He had an operation at the Royal Children’s Hospital and made a good recovery.[11]
[11]Exhibit A, affidavit of the plaintiff sworn 10 September 2015 at paragraph [6], PCB 8
20 Nonetheless, it was probable that that injury had contributed to the development of arthritis in the lateral compartment of the knee which was described by the operating surgeon as –
“… extensive gr[ade] 4 femur and tibia [arthritis].”[12]
[12]Exhibit B, Operation Record dated 14 November 2013, PCB 52
21 It is also common ground that prior to May of 2013, the plaintiff had consulted his general practitioner on 22 November 2012 for “a matter relating to his colon”.[13]
[13]T14, L9 – 18
22 Further, following the subject injury on 21 May 2013, the plaintiff attended his general practitioner on 5 June 2013 for matters unrelated to a left knee problem.[14]
[14]T14, L27 – T15, L14
23 Subsequently, on 19 June 2013, the plaintiff attended his general practitioner, Dr Wyer, whose clinical notes were tendered by the defendants.[15] At that consultation, it is recorded “long discussion” and the notes thereafter do not refer to his left knee.
[15]Exhibit 3, Clinical notes of Springs Medical Centre
24 Thereafter, on 21 June 2013, the plaintiff attended Ms Josephine O’Connor at the general practice at 4.38pm. It is recorded:
“Injured his left knee a few weeks ago. Today felt it more severe when he twisted his leg.”[16]
[16]Exhibit 3, Clinical notes of Springs Medical Centre
25 Later that day, at 5.18pm, the plaintiff attended Dr Fiona Newton at the general practice, who has recorded:
“Three to four weeks ago kneed in left lateral knee by client at work. [Led to] mild discomfort at time, eased the following day and only mild discomfort since. Today slipped on wet grass at work approximately midday – left knee twisted awkwardly, no fall. Shooting pain localised to left lateral knee with incident and since, worse when walking or weightbearing, knee feels unstable. No locking, not aware of swelling (has not checked).
… Has not had analgesia or RICE. Worked until 4pm (mainly seated duties) then attended for medical review.
Past history footy injury fourteen year old [led to] arthroscopy left knee. ‘Took my lateral cartilage out’ – denies left knee problems since, specifically denies locking/pain/instability (has been able to play footy/marshall arts/army service without left knee problems). On examination mild diffusion left knee. Full range of movement left knee. Mild tenderness diffuse left lateral knee, not specifically over left lateral joint line. No ligament laxity clinically. No definite McMurray sign. Slight antalgic gait noted. … May be simple strain but lateral ligament or meniscal pathology possible. … Discussed options, he prefers to avoid WorkCover claim initially – has reported incidents at work though RICE, Nurofen and Panadol prn. He has light days at work next two days – no significant client contact expected; then has planned days off with next work day 28 June 2013. Advised medical review prior if not settling – can have WorkCover later if prefers.”[17]
[17]Exhibit 3, Clinical notes of Springs Medical Centre
26 Thereafter, there are relevant attendances on 27 June, 28 June, 15 July and 29 July 2013. On the latter date, there was a referral to orthopaedic surgeon, Mr Paul Plank.
Mr Plank’s evidence
27 Mr Plank provided a number of reports between 20 August 2013 and 5 August 2016.[18] Also, he was the only witness to give viva voce evidence. The above clinical entries were put to him in cross-examination.[19]
[18]Exhibit B
[19]T14, L9 – T17, L26
28 It was then put to Mr Plank:
Q:“Would it seem to indicate to you that the injury that occurs, in fact on 21 June 2013 is an injury of greater significance when he slips on the wet grass and turns his knee. Is that fair to say?---
A: Yes.
Q:If you accept that that’s the actual history that was given then the damage to the ACL that you find ultimately at surgery, would seem to be occurring or arising from the June 2013 incident. Is that fair to say?---
A: That’s certainly possible, yes.
Q:… The probability is that the twisting together with what the resultant pain in the complaint, it’s more likely than not that that occurred as a result of the twisting incident in June of 2013 than being kicked in the May of 2013. Is that fair to say?---
A:That’s a difficult one. It’s more likely twisting that a patient would end up tearing the meniscus. Usually a direct blow, like a kick or [I] guess a footy player getting tackled and their knee buckles, tears the ACL so.
Q:That’s a footy player when their knee buckles. I am asking you about looking at this history as presented to the general practitioner?---
A:Yes.
Q:If it’s a kick or a strike with no suggestion of the knee buckling but a kick or a strike, then followed by a slip on the grass?---
A:Yes.
Q:The probabilities are, aren’t they, that this damage was caused in the June incident. Is that fair to say?---
A:Look, I think it’s very difficult to say which caused which. One might have caused the ACL; one might have caused a lateral meniscal tear. Like he’s got two separate problems inside his knee. They both didn’t, I guess, necessarily happen exactly at the same time or one might have been just aggravated by that further twisting injury that he had.
Q:If you were looking for a cause though, if you were?---
A:Yes.
Q:The probabilities are that the twisting incident on the wet grass is more than likely the one that causes the internal damage. Is that fair to say?---
A:Certainly on these GP notes, that’s the one that made him present there and his knee was a lot worse after that twisting on the wet grass.
Q:… The second point I want to raise with you, and I will not keep you much longer, is this. There’s reference, ongoing reference, in your reports and I will come to others if necessary, of bone on bone difficulty or bone on bone problems that are found by you on examination. Is that right?---
A:Yes.
Q:The MRI scans that are performed prior to surgery would confirm the ACL rupture?---
A:Yes.
…
Q:But they also show, don’t they, that there is bone on bone arthritic changes in the lateral joint compartment?---
A:Yes.
Q:And those a[re] bone on bone arthritic changes found on MRI scanning at this time and shortly after the two incidents that you and I have discussed?---
A:Yes.
…
Q:Have to be significantly long-standing in nature and cannot have been as a result of the May or June 13 incidents. Is that fair to say?---
A: Absolutely.
…
Q:It is an indication, is it not – and it is a knee that cannot recover because there won’t be regrowth of cartilage to prevent or to resolve the issue of bone on bone?---
A: That’s correct.
…
Q:So this is a knee that because it is bone on bone, it must have been pre-existing for a very long time, you would say absolutely?---
A: Yes.
Q:But he was going to come to surgery and knee replacement in due course, notwithstanding – in the absence of any impact or injury. Is that right?---
A: Yes.
Q:So he was likely to have, in the near future, in the absence of any incident, a total knee replacement and therefore impact upon earning capacity?---
A: Yes.
Q:Given his age at the time that you saw him, he having been born in 1960, that progression of bone on bone and significant degenerative change is far ahead of its time, isn’t it?---
A: Yes.
Q:Probably caused by surgical procedures undertaking, not caused by, but as a result of surgical procedures and injuries sustained back in his teenage years?---
A: Yes.
Q:Regardless of suffering any injury in the course of his employment in May or June 2013, he would come to a total knee replacement and an inability to pursue heavy on his feet work?---
A: Yes.
Q: And that is likely to have occurred sooner rather than later?---
A: Yes.
Q:In doing the best you can, if you are able, when is it likely that he would come to surgery at your hands or ultimately knee replacement, absent any injuries or incidents in May or June of 2013?---
A:Well, with the extensive amount of bone on bone that we could see even arthroscopically I guess most patients with that severe amount of arthritis usually within probably five years from now would be looking at needing a knee replacement.”[20]
[20]T17, L27 – T21, L7
29 It should be noted that Mr Plank was not asked if the injury of May 2013 had rendered the degenerative changes symptomatic.
30 On re-examination, Senior Counsel for the plaintiff put to Mr Plank the contents of a consultation with a general practitioner on 24 May 2012. This consultation documents a number of injuries suffered by the plaintiff in the course of his employment in the past but none referrable to his left knee.[21]
[21]T21, L18 – T22, L27
31 It was then put to Mr Plank:
Q:“… If His Honour were to accept this situation, that Mr Schembri is struck on the knee on 23 May 2013, experiences pain, and there’s two subsequent incidents in which he experiences pain, a ball hitting his knee and then slipping on the grass, but the pain has started from the first incident, as a matter of probability, what do you say as to whether it’s the first incident more likely than not to have caused the problem with his ACL?---
A:I think having a direct blow, obviously, is a mechanism of injuring your ACL. The twisting injury on the grass usually is a mechanism of injury of tearing a meniscus. He does have both of those diagnoses within his knee, so it is – I guess it is probable that incident did end up tearing his ACL to start with.”[22]
[22]T24, L2 – 16
32 Mr Plank was then asked what was his prediction as to when this plaintiff may have come to a total knee replacement, and he stated:
“… I guess reading that he’s doing sprint training on his knee two years prior, that’s quite physical, that he seemed to be coping well, that he might get, who knows, five years, ten years, 15 years before he might end up needing it, but I guess in this day and age now, most people don’t want to live with pain if doctors can do something to fix it. Most patients would like to get it fixed.”[23]
[23]T25, L18 – L25
33 Mr Plank was then asked:
Q:“For him personally, given that kind of history, what’s the best you can do in terms of the probabilities of the time that he would come to surgery, had it not been for these incidents?---
A:Yes, look, I guess it would be – I would still [say] it’s probably five years, even if he potentially didn’t have these incidents, that he had bone-on-bone anyway that it was going, at some point, become symptomatic for him, make him present to the doctor, but certainly several of these incidents have certainly aggravated that.”[24]
[24]T25, L26 – L26, L4
34 On further questioning, Mr Plank identified that the plaintiff, when he first presented to him, had three sites of damage: first, an ACL rupture; secondly, a lateral meniscal tear, and, thirdly, degenerative change.[25]
[25]T27, L13 – L20
35 The viva voce evidence of Mr Plank, of course, has to be considered in light of his written reports which effectively stand as his evidence-in-chief. In his report dated 6 February 2014, he stated:
“The other problem within his knee is quite significant chondral degeneration with bone on bone changes, especially involving the lateral joint compartment.
Ideally, we would be best to put him on some anti-inflammatory medication to help control some of those symptoms of pain and swelling. The pain and swelling is due to the degenerative changes that are present within his knee.”[26]
[26]Exhibit B, PCB 54
36 Further, on 12 June 2014, Mr Plank reported to the general practitioner as follows:
“I know from his arthroscopic findings that he has significant bone on bone changes involving that lateral joint compartment … .
I do not think he will be able to return to his full role as a prison guard, considering the status of his knee and he may need to consider staying on just permanent work restrictions if this was possible.”[27]
[27]Exhibit B, PCB 55
37 Accordingly, it would appear that the serious consequences for the plaintiff emanate from the symptomatic degenerative changes in the knee.
38 Thereafter, on 5 August 2016, Mr Plank reported as follows:
“As we are all aware, he had surgery on his left knee as a child through the Children’s Hospital when he was only aged 13, in which they removed his lateral meniscus.
He then had a significant traumatic event in the course of his work on 23 May 2013, when he was escorting a violent young man to his room. Unfortunately, that significant assault led to a rupture of his anterior cruciate ligament.
MRI scans performed prior to the surgery confirmed the ACL rupture, but they also confirmed bone on bone arthritic changes in that lateral joint compartment which have been longstanding in nature, and I am sure are related to the surgery that he had back when he was a 13-year-old young man.
I understand that he was asymptomatic prior to this particular incident on 23 May 2013. He had been in the Army and had enjoyed doing long walks around his property without any significant symptoms within his knee.
Following this assault in 2013, he has had significantly increased pain in his knee and has been unable to get back to his job at the Youth Centre.”[28]
[28]Exhibit B, PCB 56C
39 As far as the relationship between the ACL rupture and the torn meniscus was concerned, Mr Plank gave the following evidence with respect to the clinical state of the plaintiff’s knee at the time of his first consultation:
Q.“So at that time, he’s got a presumptive ACL rupture, one. Two, he’s got a lateral meniscal tear?---
A.Yes.
Q.Then, three, the degenerative change?---
A.Yes.”[29]
[29]T27, L17‒20
40 Thereafter he was asked:
Q.“If he’s been kicked on the knee, are you saying that that’s unlikely to have caused the ACL rupture – sorry, it’s likely to have caused the ACL rupture, rather than the twisting on the grass?---
A.Yes. Look, they’re both potential mechanisms of injuring it, so it’s impossible to say, really, but certainly it seemed like that was the thing that he initially presented with, which was that kick to the knee which is enough to tear the ACL.
Q.Yes?---
A.Then his knee is a little bit more lax, I guess, after that because his ACL is now ruptured and then twisting on the grass can then – then he may have torn his meniscus as a separate injury, potentially, but it’s hard to know.
Q.Are we able to say what would have happened if he hadn’t ruptured the ACL, with the twisting, the twisting injury may have caused the rupture of the ACL independently of the kick or not?---
A.It may have, yes.
Q.It may have?---
A.Yes.
Q.What’s more probable, the kick or the - - -?---
A.It’s very debatable. They can both do it. I guess my experience with ACLs is usually, you know, football players, they’ve either been tackled and their knee has been crunched into by somebody, or they twist because it’s very muddy ground and both of those mechanisms can both rupture an ACL.
Q.What about the tear of the meniscus?---
A.The tear in the meniscus, like, it commonly goes hand-in-hand with the ACL, that the knee is buckled so far that not only has the ACL torn, but then the next sort of structure in the knee that can tear also then tears, which is that meniscus.
Q.So it’s causally-related to the rupture of the ACL?---
A.Yes.”[30]
[30]T29, L21 ‒ T30, L18
41 It would appear to me from the total of Mr Plank’s evidence that the following inferences are available:
(a) Prior to 23 May 2013, the plaintiff was suffering from pre-existing bone-on-bone arthritic changes in the lateral joint compartment of his knee which related back to the surgery he had as a teenager;
(b) Those changes were, for all intents and purposes, asymptomatic prior to 23 May 2013, because of the uncontradicted evidence of the plaintiff with respect to symptoms and his activities;
(c) The plaintiff had a painful knee after the assault on 23 May 2013 due to precipitation of symptoms referable to the arthritic changes, which were rendered more painful after twisting his knee on 21 June 2013;
(d) The plaintiff probably also ruptured the ACL on 23 May 2013 and possibly also tore the meniscus.
(e) Alternatively, on the basis the plaintiff probably tore the meniscus on 21 June 2013, that injury was partly due to the instability caused by the ACL rupture and partly by the twisting motion as described, and is therefore causally related to the ACL rupture.
(f) The plaintiff has ongoing pain and disability since the arthroscopic surgery on 14 November 2013 and it is likely that:
“…The pain and swelling is due to the degenerative changes that are present within his knee.”[31]
[31]Exhibit B, PCB 54
There is also some evidence that the impairment is due in part to instability contributed to by the repair of the ACL.
(g) Although those degenerative changes would have at some point become symptomatic for him, on the history before me and before Mr Plank, it appears that the symptoms were precipitated initially by the injury of 23 May 2013 and then further aggravated by the twisting injury on 21 June 2013;
(h) Prior to 23 May 2013, the pre-existing degenerative changes had not prevented the plaintiff from leading an active, athletic life as attested by him in his affidavit and which was uncontradicted;
(i) I should accept the plaintiff’s evidence that:
“Upon being kicked my knee swelled immediately and I struggled to walk. My left knee has never been pain free since and I have limped from the moment of the incident described.”[32]
(j) Thereafter, the pain was worsened when he slipped on wet grass at work on 20 June 2013 but did not fall. It would appear that the knee must have been more vulnerable just prior to 20 June 2013 than it was just prior to 23 May 2013. Prior to the latter date, the plaintiff was engaging in a full range of physical activities. Prior to the former date, the pain was worsened by the mere fact of a soccer ball hitting his knee. This would tend to corroborate the vulnerable state of the knee and the level of pain at that time.
[32]Exhibit A, affidavit of the plaintiff sworn 10 September 2015 at paragraph [8], PCB 9
42 The plaintiff therefore postulates the incident of 23 May 2013 is causally related to the state of the knee prior to, and after, surgery on 14 November 2013 in that the precipitation of the painful pre-existing degenerative changes has not ceased and that Mr Plank’s evidence that both of those two incidents have contributed to the aggravation of the degenerative change by the production of symptoms ought to be accepted.
43 Accordingly, I consider that the evidence of Mr Plank justifies the conclusion that the kick to the knee on 23 May 2013 probably caused an ACL rupture which led to the need for surgery and further aggravated underlying degenerative change in the knee, rendering it symptomatic and more vulnerable to further aggravation which occurred on 23 June 2013.
44 Insofar as it may be argued that Mr Plank’s evidence in total really amounts to a possible causal relationship between the injury and the production of symptoms with respect to the underlying arthritic condition, I would further rely on the Full Court decision of Dahl & Anor v Grice,[33] where his Honour Gobbo J stated:
“At the trial there had been a considerable body of expert medical opinion. Of the five experts that gave evidence, two were prepared to find a possible causal relationship between the accident and the haemorrhage. Neither of these two doctors spoke in terms of probability rather than possibility.”
[33][1981] VR 513 at 515
45 Further, his Honour cited with approval the decision of EMI (Australia) Ltd v Bes,[34] where Asprey JA said, at page 243:
“Where scientific knowledge properly adduced in evidence as expert opinion deposes to more than one event as a possible cause of a medical condition and where it appears from the evidence accepted by the tribunal of fact that of those possible causes of that condition one of them, on the balance of probabilities, is more likely than the others to be the cause of the medical condition in question, in this case the syncopal episode, then the tribunal may properly draw the inference of fact that such was the operating cause of that condition in the particular circumstances. Reliance for the purpose of drawing that inference may be placed by the tribunal on the evidence as a whole and is not confined to the medical evidence only (see St. George Club Ltd. v Hines, except where all the medical evidence agrees that the matters sought to be relied upon must be excluded from consideration as lacking justification for the drawing of the inference. That is not the case here.” [35]
[34][1970] 2 NSWR 238
[35]Dahl v Grice (supra) at 520 – 521
46 It would appear to me that this reasoning is corroborated by the defendants’ orthopaedic consultant, Mr Iain D McLean, who had the history of the three relevant pathologies and the twisting incident on 20 June 2013 and opined:
“[There was a] work injury of 23 May 2013 resulting in the anterior cruciate ligament rupture and lateral meniscus tear and then aggravation of underlying constitutional degenerative changes to the knee, with most likely a previous partial lateral meniscectomy.
This has resulted in the need for the surgical intervention; and with the ongoing symptoms and problems as outlined.
Employment therefore still being a significant contributing factor to the ongoing disability.”[36]
[36]Exhibit F, report of Mr Iain D McLean dated 21 April 2015, PCB 119
47 For completeness, I am of the view that Mr McLean’s opinion is not at odds with the opinion of the other defendants’ surgeon, Mr Michael Shannon, who does not seem to address whether the pre-existing osteoarthritis may have been aggravated by the incident by the production of symptoms. Rather, his evidence seems to be expressed in this manner:
“However, the osteoarthritis is pre-existing and the available radiology reports within weeks or months do not suggest that there has been any actual damage to the articular surface of the joint in the work related injury.”[37]
[37]Exhibit 1, report of Mr Michael Shannon dated 8 October 2014, PCB 12
48 In terms of the impairment thus extant at the time of hearing, the serious consequences conceded by the defendants in this case can seem to be the symptomatic degenerative change in the knee together with the instability therein caused by the restructured ACL.
49 In my view, that is sufficient to decide the matter in favour of the plaintiff. However, despite the concession about the state of the plaintiff’s knee, defence counsel raise the question of permanence with respect to a knee replacement perhaps being required by 2021 (being five years from the date of hearing). In Barwon Spinners v Podolak,[38] Phillips JA stated, at paragraph 18:
“Before us counsel were agreed that ‘permanent’ meant ‘likely to persist in the foreseeable future’.”
[38](2005) 14 VR 622
50 His Honour went on to say, after referring to the decision by Woodward J in McDonald v Director-General of Social Security,[39] this meant:
“… likely to last for, during or through the foreseeable future.”
[39](1984) 1 FCR 354 at 360
51 His Honour considered that the relevant minister would agree as to this parliamentary intention.
52 The impairment has subsisted from 2013 to the present time and will continue through the foreseeable future. It appears to me that it is speculative as to whether a knee replacement would be accepted by the plaintiff in or about 2021 and as to whether that would in effect defeat the finding of permanence.
53 The injury and the impairment seen in this light would satisfy the template set down in Petkovski v Galletti.[40] Further, when one examines the consequences of the claimed serious injury, to look at how they affected the plaintiff as he was and would likely have been absent the injury he sustained in the incident of 23 May 2013, one is entitled to conclude that the level of activities being performed by the plaintiff prior to this date, and the absence of symptoms referable to the knee condition, would lead to the conclusion that he was likely to remain asymptomatic into the foreseeable future and at least into a period approaching 2021.[41]
[40][1994] 1 VR 436 at 443 – 444
[41]See Bezzina v Phi [2012] VSCA 161 at paragraph [23]
54 Further, the injury viewed in this way, in my view, does not require that the consequences flowing from either the twisting injury on 20 June 2013 or the consequences flowing from the pre-existing degenerative change should be “disentangled” from the consequences which flow from the injury as per the principles set out in Peak Engineering & Anor v McKenzie.[42] In that decision, the Court considered, when considering consequences from a hand injury, that consequences from a subsequent injury to the knee would have to be excluded from the first injury. This is not such a case here.
[42][2014] VSCA 67
Conclusion
55 In the circumstances of the concession made by Senior Counsel for the defendants as to the plaintiff’s loss of earning capacity, leave will be granted to the plaintiff to issue proceedings at common law with respect to loss of earning capacity damages and in accordance with the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle.[43] Leave will also be granted to claim pain and suffering damages.
[43][2009] VSCA 170
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