Scutchings v Greenfreight (Services) Pty Ltd

[2013] VCC 418

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT WANGARATTA

DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-04194

KEVIN PAUL SCUTCHINGS	Plaintiff
v.
GREENFREIGHT (SERVICES) PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Wangaratta
DATE OF HEARING:	15 and 16 April 2013
DATE OF JUDGMENT:	29 April 2013
CASE MAY BE CITED AS:	Scutchings v Greenfreight (Services) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 418

REASONS FOR JUDGMENT

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Catchwords:             Accident compensation – Serious injury – Workplace injury in June 1997 – Application not made by the plaintiff until May 2012 – Plaintiff’s knowledge of the “incapacity” – s. 135AC(b) Accident Compensation Act 1985.     

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.A Jewell SC  with Mr G. Pierorazio	Nevin Lenne & Gross
For the Defendant	Ms K. Galpin with Ms L. Glass	Wisewould Mahoney

HIS HONOUR:

1On 9 June 1997, Kevin Scutchings injured his left knee whilst working as a truck driver. An orthopaedic surgeon, Mr Mark Falkenberg performed an arthroscopy in July 1997 and a knee reconstruction in October 1997 “to fix the ruptured anterior cruciate ligament”. In May 2007, the plaintiff returned to his general practitioner Dr Bennie complaining of left knee pain. The plaintiff was again referred to Dr Falkenberg who performed two further arthroscopies in July 2007 and January 2008.

2The plaintiff had returned to full time work following the surgery in 1997 and 2008. However, after the latter surgery, it was clear to both Mr Falkenberg and Dr Bennie that the plaintiff had serious problems with his left knee. He has osteoarthritis and it was probable the plaintiff would, within a few years, need left knee replacement surgery.

3The plaintiff’s original workplace injury on 9 June 1997 fell within a limited period prior to 12 November 1997 when leave could be sought pursuant to section 135AC of the Accident Compensation Act 1985 for a plaintiff to bring a proceeding for damages, if the application were made to the Court within 3 years “after the date the incapacity became known”.

4The present application was made on 2 May 2012. The plaintiff says that 3 years previously, in May 2009, he was not aware that the problems he was experiencing with his left knee, including the knee replacement surgery foreshadowed for sometime in the future, would not be resolved with only limited periods of disability. After a flare up of his knee injury in mid 2011 when Mr Falkenberg told him that he needed the knee replacement surgery “without delay”, he became aware of the nature and extent of his incapacity. The surgery was carried out on 22 September 2011.

5The critical questions in the present application are:

a.what the plaintiff was told by Dr Bennie and Mr Falkenberg in 2007 and 2008 and;

b.what was the state of the plaintiff’s knowledge at that time of the incapacity arising from the injury to his left knee.

Plaintiff’s medical history

6The plaintiff was aged 35 when he injured his left knee on 9 June 1997. He slipped on the icy surface of the truck wash area falling backwards. He said, “I felt a tear in my left knee and heard a noise and then suffered acute pain in my left knee”. Mr Falkenberg performed an arthroscopy and, on 23 October 1997, a “knee reconstruction to fix the ruptured anterior cruciate ligament”.

7The plaintiff was off work for about 5 months and then returned to “full duties”. He had “general aches and pains in the knee” and occasionally “felt some instability” when his knee twisted or he “stepped down heavily on my knee”. He said, “I modified the way I got up and down [from] my truck and onto the trailer. I avoided squatting and climbing but otherwise I had no work restrictions”.

8In 2007, the plaintiff “suffered a general increase in left knee pain”. Mr Falkenberg performed further arthroscopies in July 2007 and January 2008. The plaintiff said, “After the arthroscopy in January 2008, Mr Falkenberg advised me that I did have osteoarthritis in the left knee and that at the end of my working life I would require a left knee replacement. I did not believe that would be necessary until I was at least aged 60”. In January 2008, the plaintiff was aged 46.

9In a letter to Dr Bernie dated 29 May 2007, Mr Falkenberg stated, “Thanks for sending Kevin along with early osteoarthritis of the left knee, 10 years after rupturing his anterior cruciate ligament and tearing both menisci in a work accident…In the last 2 years he has had increasing pain with swelling after activity. It is difficult for him to use the clutch of the B-Double trucks that he currently drives and he needs anti-inflammatories…Examination shows a grade 2 Lachman of the left knee and palpable osteophytes. The knee has a 0-120 degree range of movement. X-rays show reduced medical joint space on the intercondylar view. There are medical osteophytes and medial patella osteophytes consistent with early arthritis. Arthroscopic assessment and gentle debridement is recommended, such that is the severity of his symptoms…The development of arthritis in this knee I believe represents the failure of a reconstruction to compensate for severe bone bruising and injury that occurs at the original injury”.

10After the arthroscopy in July 2007, Mr Falkenberg wrote to Dr Bernie on 30 July 2007 as follows: “Unfortunately his left knee suffers with advanced osteoarthritis at only forty-six years of age. He has recovered from the recent arthroscopy and we are going to try him going back to his truck driving job on 6th August. I have asked however, that he stay off “tarp” trucks as the knee is not good enough for him to climb over the back and tie these things down. He will come to a knee replacement but hopefully will be able to put it off until his fifties”.

11Following the second arthroscopy in January 2008, Mr Falkenberg wrote to Dr Bennie by letter dated 29 February 2008 [but probably dictated 29 January] as follows: “His left knee is totally “stuffed” with Grade 3 and 4 changes in most compartments. The old cruciate ligament graft is pretty lax and it is a sloppy worn out knee. I would really like him to get to his fifties before having the ultimate treatment, which is a replacement. I agree with your decision to send him back to work. He is coping and will hopefully do so for the indeterminate future. He is driving an automatic truck now and feels that this is something his boss will always give him and helps him cope. I have not arranged to review him but will no doubt have to see him again in future years as things get inevitably worse”.

12There are significant inconsistencies between the plaintiff’s account and the details contained in Mr Falkenberg’s correspondence with Dr Bennie. However, after hearing the plaintiff, Mr Falkenberg, and Dr Bennie cross-examined, I am satisfied that the inconsistencies are explicable by the limited information given by the doctors to the plaintiff.

13The plaintiff’s recollection of events in 2007 and 2008 was limited. On a number of occasions during cross examination about his symptoms at various times and what he was told by doctors and when he was told, he responded that he could not remember. He did concede that Mr Falkenberg had talked with him about “arthroscopic assessment and debridement” and Mr Falkenberg “might have” told him that he had developed arthritis in the knee because of his reconstructive surgery.

14In January 2008, the plaintiff said Mr Falkenberg “told me that I would probably need a knee replacement later in life”. He did not think that Mr Falkenberg said he would have the operation in his “fifties”, but Mr Falkenberg “could have”. He thought Mr Falkenberg had said the knee replacement would not be necessary before he was 60. Later in re-examination, he said that he thought he would not need the operation until “perhaps after 10 years”.

15The plaintiff said that the January 2008 procedure had made his knee “better”. He thought that the foreshadowed knee replacement would be “good” and would “give me a lot more movement”.

16In a recent supplementary affidavit by the plaintiff’s wife, she said that before her husband had had the knee replacement surgery in 2011, “he thought that the surgery would make his injured knee as good as the other knee. My father had a knee replacement and he didn’t have any problems and no limp. But after the surgery the [plaintiff’s] knee did not come good as expected”.

17Dr Bennie said in evidence that the plaintiff was an “unusual patient” who “doesn’t complain until things are really bad”. Dr Bennie thought that the plaintiff’s pain had been “gradually getting worse” before he attended the practice on 10 May 2007.

18Dr Bennie said that he was likely to have mentioned the diagnosis of osteoarthritis to the plaintiff in 2007. However, he could not recall discussing with the plaintiff the implications to him of the diagnosis. Dr Bennie said he would probably not have discussed with the plaintiff the contents of Mr Falkenberg’s letter to him dated 29 May 2007, as he had made no note of that in his clinical records. In relation to Mr Falkenberg’s letter dated 29 February 2008, Dr Bennie said that he would not have discussed the contents of the letter with the plaintiff.

19After the plaintiff attended Dr Bennie’s practice on 4 February 2008 in relation to his left knee problems, he next attended the practice for his knee in June 2010. He had attended the practice in the meantime on 11 occasions for issues unrelated to the knee.

20Mr Falkenberg indicated in his evidence that he was guarded in what he discussed with the plaintiff. In May 2007, when he had recommended the need for “arthroscopic assessment and gentle debridement”, he would have told the plaintiff he needed to “clean the knee out to get it more comfortable”.

21After the second arthroscopy in early 2008, Mr Falkenberg said he had no recollection of what he told the plaintiff of the future need for a knee replacement. He said he “dreaded” recommending knee replacement surgery for a person younger than their 60s or 70s. He would have hoped the surgery could be delayed for at least “ten years down the track” and would have wanted, with the plaintiff, “to get him into his 50s” before doing the operation. He would not have gone into a lot of detail and would not have used “alarmist language”. Mr Falkenberg said that he wanted to get the plaintiff “back to work” and would not have wanted to “affect his confidence” and, therefore, “may have withheld my pessimism”.

22Mr Falkenberg said that at that time he considered the plaintiff’s osteoarthritis was “severe” although the plaintiff had not “manifested severe symptoms”. The plaintiff’s arthritic joint was “intermittently” playing up and he suspected the plaintiff would have “episodic trouble rather than constant pain”.

23In the circumstances, the oral evidence of Mr Falkenberg and Dr Bennie provided support for the evidence of the plaintiff of what he knew prior to May 2009, and particularly in 2007 and early 2008.

Events after May 2009

24After May 2009, the plaintiff said he became aware of the “incapacity” arising from the injury he suffered to his left knee in June 1997. The specific matters referred to were as follows:

a.following the two arthroscopies in July 2007 and January 2008, the plaintiff did not attend his general practitioner, Dr Bennie, for any issue involving his knee until June 2010. During this period of about 18 months, the plaintiff had seen Dr Bennie on 11 occasions in relation to other health matters;

b.the plaintiff continued in his employment with the defendant until about November 2012. He returned to work “soon after” the arthroscopy in January 2008. The only modification made to his employment was that he was given an automatic truck because there would have been a problem with a manual. It was only after he saw Dr Bennie in 2010 and 2011 and returned to Mr Falkenberg on 1 July 2011, that the plaintiff changed his employment. He obtained a job with Rouse’s Transport in Myrtleford, driving trucks from Sydney to Melbourne and back which involved the lifting of gates and the loading of curtain-side trailers. The plaintiff found the tasks required by this job too physical and stopped after approximately 2 months. Following this, the plaintiff obtained his current job with Border LPG Haulage, where he continues to work. His present work involves driving gas tanks from Melbourne to Sydney and back again, however he is only required to hook up a hose, without having to lift side trailers, gates or load curtain-side trailers;

c.between 2008 and 2010, the plaintiff continued performing the type of home renovations he had always been able to carry out including installing central heating in 2002 and a swimming pool in 2004. The later renovations and maintenance work included:

i.fixing the lounge room ceiling which involved standing on a ladder for hours at a time to scrape off the plaster and apply 4 coats of sealer paint. This renovation took 4 weeks to complete, working 3 days each week;

ii.mowing the lawn and tidying the garden with handsaws and other garden tools and tending the vegetable patch and flower bed;

iii.cleaning out the evaporative cooler on the roof of his father-in-law’s house;

iv.painting around the house both inside and out and renovation work in the bathroom and kitchen.

After about March 2010, the plaintiff said that he was unable to perform similar work around the home. He no longer services the evaporative cooler on the roof of his home, paints the house, mows the lawns, trims the larger trees, digs the vegetable garden, takes rubbish to the tip, replaces defective weatherboards, services his car and motorbike or performs other similar domestic chores;

d.the plaintiff did not see Mr Falkenberg after the post-arthroscopic examination in February 2008, until he presented on 1 July 2011. Mr Falkenberg told him then that he needed knee replacement surgery “without delay”. The operation was performed on 22 September 2011. Mr Falkenberg had earlier said that he hoped to delay the need for that surgery at least “ten years down the track”. The plaintiff thought he would not need the surgery before he was “at least 60” and at the “end of his working life”.

Applicable legal principals

25The appropriate legal principles which must be applied are as follows:

a.section 135AC(b) requires the plaintiff to establish:

i.an injury from which incapacity arose was suffered by the plaintiff prior to 12 November 1997;

ii.his “incapacity” was not known until after 12 November 1997;

iii.the application for a “serious injury” determination  was made before the expiration of these years after the incapacity became known.

(Morris & Joan Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 at paragraphs 30 and 31);

b.the “incapacity” for the purposes of section 135AC(b) is “relatively similar“ to “the incapacity arising from the injury” referred to in section 135A(2)(b). The phrase, “the incapacity arising from the injury”, was defined by Winneke P in State of Victoria v Collins [1999] 1 VR 215 at 222 and the definition was adopted by Callaway JA in Paget v JLT Workers Compensation Services Pty Ltd [2005] VSCA 144 at paragraph 30 as appropriate for a determination under section 135AC(b). Such “incapacity” was “not the temporary incapacity for work produced by the initial insult, but rather was ‘serious injury’ incapacity, which becomes known when events demonstrate that the victim of the injury is, for the purposes of that case, and the present case, suffering from a serious long term impairment or loss of a body function”. This approach was followed by Ashley JA in Edwards v McSaveny [2005] VSCA 252 at paragraph 20;

c.“the words ‘the incapacity arising from the injury’ in s. 135AC(b) should be taken to mean any consequence , known to the worker deriving from compensable injury, whether constituted by pain or suffering, or pecuniary damages, or both, which would found a successful serious injury application. So to read the critical words is to recognise that ‘the [serious injury] incapacity arising from the injury’ may be sufficiently constituted for the purposes of the subsection by a single consequence” (Papercorp Pty Ltd v Nicolaou & Anor [2006] VSCA 143 at paragraph 33 per Ashley JA);

d.“the test is ‘knowledge’, not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the [plaintiff] “State of Victoria v Collins [1999] 1 VR 215 at 222 per Winneke P, quoted with approval by Callaway JA in Paget at paragraph 29;

e.the Court must determine “what the worker knew about the extent of and probable duration [of] this, or her incapacity arising from the compensable injury at a particular time” (Papercorp at paragraph 50 per Ashley JA);

f.“the question whether a worker had relevant knowledge at a particular time requires an assessment of the worker’s actual knowledge of those matters at that time in all the circumstances of the case. Those circumstances might include a matter such as a worker’s optimism – so long as it is not wholly unfounded – to prognosis; or, as I noted before, the ability of a particular worker to block out pain”. (Papercorp at paragraph 47 per Ashley JA);

g.“All [a plaintiff] had to prove was an absence of knowledge, not an absence of suspicion or of facts from which persons of less fortitude might have drawn a more pessimistic conclusion” (Paget per Callaway JA at paragraph 34);

h.“there may come a point at which stoicism gives way to a deliberate refusal to accept the obvious, whereupon knowledge is acquired” (Papercorp at paragraph 7 per Nettle JA);

i.a worker’s claim will be barred, “if prior to the relevant date, he or she knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that the worker does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative” (Morris & Joan Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 at paragraph 36);

j.Redlich JA in AEP Industries Australia Pty Ltd v Mahmoud [2007] VSA 203 at paragraph 11 said that the earlier authorities, including Papercorp, established that “s. 134AC(6) involves a two-step process. First, the trial judge must identify what the injured worker in fact knew in relation to his injury at the relevant time. Second the judge must determine whether in the judge’s opinion – and this is a matter of fact and degree and value judgment for the judge - those known facts constitute knowledge of serious injury incapacity as explained in Humphries v Poljak”;

k.A plaintiff “would fail to satisfy the criteria in s.135AC(b) if he knew of facts which, viewed objectively, established that he suffered from one kind of incapacity but was not aware of facts which established knowledge of another” (AEP Industries per Redlich JA at paragraph 26);

Conclusions

26The plaintiff suffered a compensable injury to his left knee on 9 June 1997. About 5 months after an arthroscopy and knee reconstruction surgery, the plaintiff returned to his pre-accident employment and continued with his life relatively unaffected. In 2007, increased pain led him to seek medical attention.

27Although the plaintiff had “modified” the way he got up and down from his truck and had “general aches and pains” in his knee and felt “some instability”, it is my view that until 2007 or 2008, it could not be said that these consequences of his left knee impairment would have founded a successful serious injury application.

28Such an application, whether made in relation to the plaintiff’s knowledge of incapacity prior to 2007 or 2008, or after that time and prior to May 2009, or even since then, would need to rely upon the “pain or suffering” consequences, rather than any “pecuniary disadvantage”.

29After the two arthroscopies in July 2007 and January 2008, and prior to May 2009, the plaintiff had the following knowledge of the incapacity arising from his left knee injury:

a.by 2007, he had “suffered a general increase in left knee pain”;

b.over the previous two years, the pain and swelling had increased after activity and he needed anti-inflammatories;

c.he had osteoarthritis in his left knee;

d.he should stay off “tarp” trucks as he should not climb over the back of these trucks to tie down the load;

e.he was likely to have knee replacement surgery at some time in the future;

f.he had already had an arthroscopy and knee reconstructive surgery in 1997 and two arthroscopies in 2007 and 2008.

30Plaintiff’s senior counsel, Mr Jewell SC submitted that it was also important to take account of certain matters of “context” which affected the plaintiff’s “knowledge”, including:

a.the plaintiff had returned to his pre-surgery employment  duties on each occasion;

b.the plaintiff’s activities of daily living were relatively unaffected by his left knee injury;

c.the plaintiff’s symptoms of pain and suffering required little medical attention or medication apart from the periods immediately before and during recovery from the surgical procedures;

d.the treating doctors (Dr Bennie and Mr Falkenberg) had been circumspect in discussing the consequences of a diagnosis of early onset arthritis and the possible need for future knee replacement surgery and its consequences. Both were anxious not to affect the plaintiff’s confidence and his return to work;

e.the plaintiff’s father-in-law had undergone knee replacement surgery without any greater consequences than the plaintiff had experienced following his earlier surgical procedures.

31I consider that these contextual matters do need to be taken into account when determining the plaintiff’s knowledge of his incapacity prior to May 2009. There is no doubt that a serious injury application made soon after February 2008, if founded upon the views expressed in Mr Falkenberg’s letter to Dr Bennie dated 29 February 2008, would have been successful.

32However, that conclusion is not determinative of the present application, because the plaintiff was not fully informed of his doctors’ views and rather than discussing the consequences of his injury with him, they had deliberately kept that information from him.

33Defendant’s senior counsel, Ms Galpin, relied upon the Full Court’s determination in the successful appeal in the matter of Jarvis, one of the cases reported as Humphries v Poljak [1992] 2 VR 129, at 146. Mr Jarvis was 56 years old and had injured his knee as a result of a motor vehicle accident. There was a reasonable expectation that he would continue working until he was 65. However, as a result of his progressive arthritis, there was “a real risk of the necessity” of a total knee replacement surgery at some stage as his knee was “very considerably damaged”. The Full Court determined that the risk of major surgery was sufficient for Mr Jarvis’ impairment to be regarded as a “serious injury”.

34The Full Court was unanimous in this decision, although Crockett and Southwell JJ said they regarded Mr Jarvis’ case as “borderline”. Mr Jewell SC submitted that in the present plaintiff’s case, the issue was his “subjective” knowledge, which included a significant degree of ignorance about the extent of his injury and the prognosis, and his “optimism” that any further surgery would only involve a “period of short term adversity”.

35I do not consider that the plaintiff was wilfully blind in the sense that there was a “deliberate refusal to accept the obvious” seriousness of his injury and the future consequences for him of the impairment. I am satisfied that, for the plaintiff, these matters only became known to him in 2011 when his symptoms increased and Mr Falkenberg told him that his condition was such that immediate surgery was necessary. It was at about this time that the plaintiff experienced difficulties at work and at home to such a degree that, although he continued working full time as a truck driver, he was unable to pursue many of the activities that had been part of his employment and domestic life.

36In these circumstances, I am not satisfied that prior to May 2009 the plaintiff had the required knowledge which would bar him from making the present application. The present application was issued within the period of 3 years after he had acquired the knowledge of facts which objectively would constitute serious injury capacity.

Order

37The plaintiff will have leave to issue a proceeding for damages in respect of his workplace injury on 9 June 1997.

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Certificate

I certify that these 11 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 29 April 2013.

Dated: 29 April 2013

Philippa Gilkes    

Associate to His Honour Judge Anderson