Searle v Rand Crane Trucks Pty Ltd
[2013] VCC 591
•22 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-02533
| LAURENCE JOHN SEARLE | Plaintiff |
| v | |
| RAND CRANE TRUCKS PTY LTD and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2013 | |
DATE OF JUDGMENT: | 22 March 2013 | |
CASE MAY BE CITED AS: | Searle v Rand Crane Trucks Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 591 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Compensable right knee injury - affidavits relied upon the plaintiff setting out the consequences of the impairment of function of the right knee - unrelated right shoulder injury - affidavit produced by the defendants of the consequences of the impairment of function of the right shoulder - two separate applications for serious injury - similar consequences claimed by the plaintiff from both impairments - plaintiff engaged different firms of solicitors in relation to each application for serious injury - credit worthiness of the plaintiff - film
LEGISLATION CITED: Accident Compensation Act 1985, s134AB(16)(b)
JUDGMENT: The plaintiff's Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Carlisle Thomas |
| For the Defendants | Ms S Manova | Herbert Geer |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 0n 29 May 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr N Dunstan of Counsel appeared for the plaintiff and Ms S Manova of Counsel appeared for the defendants.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the right knee.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 18-35 and 39-49: Exhibit A;
· The defendants tendered their Court Book (“DCB”), pages 1-6 and 10-32: Exhibit 1.
· The defendants tendered film taken of the plaintiff: Exhibit 2
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b) The impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak[1], I must be satisfied that the consequences of the impairment satisfy the “very considerable” test. I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
The Plaintiff's Background
8 The plaintiff was born on 1962. He completed Form 4 at a secondary school. He then left school. He entered the workforce essentially engaging in labouring work in the building industry and truck driving.
9 The plaintiff commenced working for the first defendant on 21 August 2006 as a driver and crane operator.
The Incident
10 On 23 March 2007 the plaintiff was making a delivery to a work site in Kew. As he climbed down from the cabin of his truck his right foot slipped off a step with the result that his right leg twisted and he felt something like an explosion in his right knee.
The Plaintiff's Medical Treatment
11 The plaintiff initially attended the Frankston Hospital where he was advised to have an MRI scan and to seek orthopaedic treatment. He then saw Dr Lovig, general practitioner who prescribed the plaintiff painkilling and anti-inflammatory medication. He referred the plaintiff to see Mr Weber, orthopaedic surgeon.[2]
[2]PCB 30
12 The plaintiff first saw Mr Weber on 3 May 2007. Initially Mr Webber referred the plaintiff have physiotherapy because his knee was very stiff. He reviewed the plaintiff on 14 June 2007. At that stage Mr Weber diagnosed the plaintiff as having suffered an anterior cruciate ligament rupture. The plaintiff informed Mr Weber that he wanted to undergo a reconstruction which Mr Weber performed on 25 June 2007. The procedure was performed arthroscopically using a graft.
13 Mr Weber re-examined the plaintiff on 9 July 2007, 6 August 2007, 17 September 2007 and 11 February 2008. On the last occasion he reviewed the plaintiff he was told by the plaintiff that his knee "doesn't work". On further questioning and examination Mr Weber was of the opinion that there was some mild patella crepitus and that the plaintiff’s vastus-medialis[3] contracture was poor. At the time when Mr Weber provided a report dated 25 November 2010 he had not seen the plaintiff for three years, but he expected that the plaintiff would have improved and that he was unlikely to have any permanent impairment in the knee.[4]
[3]A muscle in the anterior compartment of the thigh
[4]PCB 31-35
The Plaintiff's Working History
14 For reasons which will become obvious it is necessary to firstly turn to the occupations which the plaintiff followed prior to suffering the knee injury and the work he returned to following the occurrence of that injury.
15 Prior to the plaintiff suffering the injury to his knee he was employed by the first defendant as a truck driver. He did not refer to the nature of the duties he performed with the first defendant in that capacity in either of his affidavits sworn 30 January 2012[5] and 17 January 2013.[6]
[5]PCB 18-23
[6]PCB 24-26
16 The plaintiff returned to his work with the first defendant about three months following the surgery to his knee. The light duties comprised answering telephone calls in the tea room. He was wearing a brace on his knee. He was informed by the first defendant that there was no work for him. He was then put off.
17 The plaintiff subsequently obtained the following employment. He worked for Eddy Batur Industrial Painting doing sandblasting work. He was required to hold a hose under his arm and apply sand blasted out of the hose to clean machinery. He worked in that job from November 2008 to about March 2009 full-time.
18 The plaintiff then worked for J T Corrosion Industries doing both labouring and sandblasting work from about April to July 2009 full-time.
19 The plaintiff then worked for J & J M Schrewers as a truck driver and labourer. His working hours were from 11 pm to 8 am. That job involved driving a truck laden with stock to the Footscray market where he would unload the truck with a forklift.[7] It also involved lifting and carrying of produce, moving pallets, and also pulling and moving tarpaulins and the gates on the side of the trailer of the truck.[8]
[7]Transcript 28
[8]DCB 3
20 The plaintiff was engaged in the work I have just summarised following the occurrence of the knee injury. It would appear that it was as a result of a subsequent injury to his right shoulder which occurred on 17 May 2010, in the course of his employment with J & J M Schrewers, that he required a significant amount of medical treatment, and ultimately surgery on 1 December 2010. Mr Broughton, orthopaedic surgeon carried out a decompression and acromioplasty of the plaintiff's right shoulder. Following the surgery he had physiotherapy, and because of ongoing pain and restriction of movement in his right shoulder he had steroid injections and a hydrodilatation.[9]
[9]DCB 3
21 The plaintiff returned to work with J & J M Schrewers on modified duties working on an assembly line. He had continuing difficulty with his right shoulder and went off work again. On his next return to work he undertook truck driving duties with limitations on lifting.[10] He ceased working with J & J M Schrewers in mid-2011.
[10]DCB 4 and transcript 29-31
22 The plaintiff then obtained employment with Spiral Logistics as a truck driver. The job mostly involved delivering steel products by truck in the south-eastern suburbs. The plaintiff said that he was able to tolerate the work because he did not have to do any loading or unloading of the truck. The truck was fairly modern with controls which were easy to operate. It had supporting handrails which enabled him to climb the steps into the cabin of the truck and descend from the cabin taking a lot of weight on his arms.[11] He was sacked from his employment with Spiral Logistics.[12]
[11]PCB 21 and transcript 33-35
[12]Transcript 35
23 The plaintiff then obtained employment with ATTTS which undertakes work trimming and cutting trees around powerlines and monitoring bushfire clearance strips. The plaintiff said that he and a co-worker would pick up small branches cut down by tree workers who used telescopic towers to cut branches from around powerlines.[13]
[13]PCB 25 and transcript 36-37
24 The plaintiff ceased working for ATTTS about four weeks ago. He was involved in a transport accident in about June 2012. He was riding his motorcycle at the time the transport accident occurred. He said that he suffered a wrenching injury to his left shoulder which resulted in it becoming dislocated. He underwent a surgical reconstruction of his left shoulder which involved screws being inserted as part of the reconstruction. Subsequently, he had physiotherapy. He is presently receiving transport accident commission payments for his loss of income.[14]
[14]Transcript 7
The Knee Injury
25 I am not satisfied that the impairment of the function of the plaintiff's knee meets the statutory test.
26 The plaintiff engaged Slater & Gordon, lawyers to act on his behalf in relation to the injury he suffered to his right shoulder. A serious injury application was made on his behalf. It is unclear to me whether the plaintiff filed an originating motion or whether the application was made directly to WorkSafe.
27 Slater & Gordon prepared an affidavit for the plaintiff in support of his application for serious injury with respect to his right shoulder. The affidavit was sworn by the plaintiff on 28 October 2011. In that affidavit he made only fleeting mention of the injury he suffered to his knee on 23 March 2007. He said the following:
"Further to paragraph 4, for most of my working life however I have worked as a truck driver for a number of companies and this has included interstate haulage. I note that it approximately 2007 I hurt my right knee when I slipped whilst getting out of a truck when I was working for Rand Crane Trucks. This led to me having a right knee reconstruction. I currently suffer from intermittent right knee stiffness, however this does not cause me too much difficulty in carrying out most activities."[15]
[15]DCB 2
28 The balance of that affidavit is devoted to the consequences suffered by the plaintiff as a result of the impairment of the function of his right shoulder, in summary the plaintiff said:
· He suffers from constant restrictions in his right shoulder comprising a decreased range of movement, pain on lifting his right arm up, an inability to lift heavy weights, an interruption to his sleep with the onset of right shoulder pain when he rolls onto his right side.
· He suffers interference with his ability to carry out household chores comprising having to pace himself when mowing lawns, having a friend's son mow his lawns, carrying out house work more slowly, and having to obtain assistance from his girlfriend to carry out household cleaning work.
· His involvement with motorcycle riding has been reduced by his right shoulder injury because riding a motorcycle aggravates his right shoulder pain restricting and limits his ability to handle a motorcycle. More particularly, he referred to being restricted and limited in engaging in day long rides and weekends away.
· His capacity to lift and manoeuvre his right shoulder when using equipment and tools has been restricted and limited, as is his capacity to engage in the leisure activity of swimming.
· He takes a Panadol on a daily basis for pain relief.[16]
[16]DCB 4-5
29 In the last paragraph of that affidavit the plaintiff then said:
"I believe the matters that I have referred to demonstrate that the right shoulder injury has caused me considerable pain and suffering. Because of this my enjoyment of life has been and will continue to be seriously diminished. Further my work options are now significantly restricted…"[17]
[17]DCB 6
30 The plaintiff did not engage Slater & Gordon to act on his behalf with respect to an application for serious injury for his right knee. He engaged Ryan Carlisle Thomas, lawyers. Ryan Carlisle Thomas prepared an affidavit for the plaintiff, on which this application is based, sworn by the plaintiff on 30 January 2012 which is only a matter of three months after he swore the affidavit prepared by Slater and Gordon.
31 The matters deposed to by the plaintiff in his affidavit sworn 30 January 2012 are in remarkable contrast to the affidavit he swore on 28 October 2011. Far from only having intermittent right knee stiffness and not much difficulty in carrying out most activities the plaintiff painted a picture of his right knee injury that it was seriously disabling. In summary the plaintiff said:
· He has continuous unremitting knee pain. He wakes in the morning with a crook knee, and the pain levels are 2 or 3 out of 10, but by the end of the day the pain levels have increased to 5 or 6.
· On 5 or 6 nights out of a week he has woken with knee pain because of the constant pain in his knee, and on other occasions he has woken when he moves his position in bed which might twist his knee in the sheets. He has tried resting his leg on pillows. He usually waits until he is exhausted at night before going to bed in the hope that he might get a few hours sleep before waking.
· He finds climbing stairs, walking up inclines or walking over uneven ground very difficult. He takes a lot of weight on his arms and shoulders when climbing the steps to get into the cabin of a truck. He cannot run, kneel or squat.
· He used to ride motorcycle almost every weekend, but now does that very rarely because of an inability to obtain a level of comfort in his left leg because of stiffness and constant pressure on the knee when riding a motorcycle.
· He does not go walking or hiking as he once did in the high country and around the Grampians, Stawell and Halls Gap.
· He mows his lawns sometimes. He does it in short stints. His mate or one of his mate’s kids helps him mow his lawns.[18]
[18]PCB 21-23
32 In the last paragraph of that affidavit he then said:
"I continue to work but with some difficulty. I have to work for a living. In other respects this injury has had a massive effect on my life. I do not enjoy or participate in any social or recreational activity. Often over a weekend I don't know what to do with myself because of my walking and standing limitations."[19]
[19]PCB 23
33 In his second affidavit sworn 17 January 2013 plaintiff said:
· He has severe pain in the knee at the end of a working day in his employment with ATTTS. He has to take the weight off his knee and wait for about an hour or so for the pain to go away.
· He pulls himself up into the cabin of his truck using his right arm.
· In his employment with ATTTS the other man with whom he works does most of the heavy work.
· He has a throbbing pain in his knee.[20]
[20]PCB 25
34 The plaintiff has blamed both the injury to his right shoulder and his right knee for the interference with his sleep, mowing his lawns, riding his motorcycle and as the cause of considerable pain and suffering (from the right shoulder), and for a massive effect on his life (right knee).
35 Ms Manova cross examined the plaintiff at some length about why it is that he saw different solicitors for the injuries to his right shoulder and right knee and different medical practitioners for medical treatment. I am not prepared to conclude that the plaintiff was seeing different medical practitioners to keep his injury claims with respect to his right shoulder and right knee separate, but I am very disquieted by the revelation that he swore two affidavits some three months apart which must mean that he was seeing Slater & Gordon and Ryan Carlisle Thomas at approximately the same time and appears to have done so to run two serious injury applications separately for different injuries, but with many common consequences.
The Medical Evidence
36 I will return to what I accept and reject in the plaintiff's affidavits relevant to the knee later in these reasons. I propose to turn to the medical evidence which he relies upon first.
37 Mr Weber provided a report dated 25 November 2010 which I have summarised to some degree above. It is clear from the summary I have already given that Mr Webber was optimistic that the plaintiff's knee would improve and that it was unlikely that he would be left with any permanent impairment.
38 I should interpolate at this point that the plaintiff used very extravagant language to describe the consequences of his right knee injury, such as, "unremitting knee pain", being woken because of "constant pain in my knee", the knee injury has had "a massive effect" on his life, and he has a "throbbing ache" in his knee. However, after the plaintiff was exposed to the affidavit relevant to his right shoulder, and the manner in which he chose to describe the problems with his right knee as being intermittent, the plaintiff's evidence changed markedly. He said:
"Q.Are you saying that there is never a time when you don't have knee pain?
A.No. No, I'd say it comes and goes, depends on what I do, my actions, as the sort of ground I could be on.
Q.Has that been the case since 2007?
A.Yes, I've had problems with the knee ever since.
Q.Yes, but it comes and goes, depending on your activities?
A.That's correct."[21]
[21]Transcript 42
39 The impression I was left with, from the context in which the plaintiff gave those answers, is that he does not necessarily have daily pain, but that he experiences pain which comes and goes and which is provoked by activities which will aggravate the condition of the knee.
40 The answers the plaintiff gave of pain coming and going is not consistent with the extravagant language he used to describe the duration of the pain and its intensity. It is rather more consistent with his reference to the pain being intermittent in the affidavit he swore on 28 October 2011; in the history he gave to Mr Jones, orthopaedic surgeon who examined the plaintiff on 4 February 2013, and the evidence I have referred to paragraph in paragraph 38 above.[22]
[22]DCB 10-15, and in particular at 12
41 I should also interpolate that the defendants showed film to the plaintiff taken on 24 April 2012, 3 May 2012 and 7 May 2012.[23] The film taken on 24 April 2012 commenced at about 7:07 am and ran through to just before 10.30 am. The film taken on 3 May 2012 commenced at about 6.56 am and ran through to about 9:39 am. The film taken on 7 May 2012 commenced at 6:46 AM and ran through to about 10:21 am. The plaintiff was cross-examined about the content of the film.[24]
[23]Exhibit 2
[24]Transcript 54-58
42 The film taken on 24 April 2012 and 3 May 2012 was not particularly good quality. The cameraman was following a truck pulling a wood chipper driven through suburban streets, but mainly along country roads some of which were unmade. What I was able to observe were 2 and sometimes 3 men wearing luminous green tops engaged in picking up branches which they placed into the wood chipper. It was difficult to discern precisely what each man was doing and which of the men was the plaintiff.
43 The film taken on 7 May 2012 was of better quality. At 7:30 am it showed the plaintiff walking normally at a service station. At 9:21 am it showed the plaintiff standing beside a truck and then climbing into the cabin on the driver’s side. He placed his right foot on a step and held onto vertical bars on either side of the door and then raised himself up onto the step on his right foot while supporting and pulling his body upwards with his arms. At 10:21 am and following the plaintiff and the other workers were partly obscured working off road feeding debris into the chipper.
44 The plaintiff did not deny that he was one of the workers shown in the film. He accepted that he was the driver of the truck shown in the films taken on 24 April 2012 and 3 May 2012. He accepted that he was the person shown in the film taken on 7 May 2012 entering the truck in the manner in which I have described at 9:21 am that day. The plaintiff said that he could not demonstrate anything in the films which suggested he was in any degree of discomfort, but he did say that he probably had pain on the days shown in the films and that one of the difficulties he has is that he is fairly slow getting in and out of the truck.[25]
[25]Transcript 55
45 I will now review the medical evidence relied upon by the plaintiff and the defendants. Mr Westh examined the plaintiff on 1 May 2012. He told Mr Westh that he suffers constant pain in the front and inside of his knee; numbness on the inside of the region of the scar; worse pain in cold weather; difficulty kneeling; squatting is awkward; the knee feels unstable; the knee tends to ache when he walks on uneven ground; he cannot run; he cannot do any heavy lifting; he is restricted doing house work and gardening; he finds driving okay; he wakes at night in pain; he cannot ride his motorbike over long distances, and on average his pain is 5/10 and on a good day it is 2/10.
46 On examination Mr Westh found no swelling; a range of movement from 5 degrees to 120 degrees; slight patellofemoral crepitus; slight AP laxity, but a stable knee. The plaintiff was able to squat comfortably. He found 1 cm wasting of his thigh musculature on the right side.
47 Mr Westh was of the opinion that the plaintiff did not have a capacity to perform his preinjury duties. He considered that it was likely that the plaintiff would have ongoing problems with his knee due to the anterior cruciate ligament rupture and a chondral injury. He considered that the plaintiff would be at increased risk of developing degenerative changes in his knee, and would experience activity related pain and restriction of movement.
48 Mr Jones examined the plaintiff on 4 February 2013. He told Mr Jones that he has an intermittent ache in the knee; aching symptoms particular when sitting and driving long distances and aggravated by walking up and down slopes; discomfort when getting up from a seated position; difficulty squatting and kneeling, and an inability to run and a tendency to avoid using ladders. He gave no history of giving way, locking or swelling in the knee.
49 On examination Mr Jones found that the plaintiff in a range of movement from zero degrees to 130 degrees, a stable anterior cruciate ligament and no evidence of swelling in the knee. He found some moderate patellofemoral crepitus, pain on patellofemoral compression, and pain on palpation of the inferior pole of the right patella.
50 Ms Manova conceded that I should not pay any regard to Mr Jones opinion that the patellofemoral wear problem was unrelated to the compensable injury to the plaintiff’s knee. He considered that the plaintiff could return to work as a truck driver, but that he was unfit for work which required repeated squatting, kneeling, climbing stairs or ladders.[26]
[26]DCB 14-16
51 Mr Kossman, orthopaedic surgeon, examined the plaintiff on 27 February 2013. He told Mr Kossman that he has pain in his knee; pain when sitting or driving a car; pain when he tries to stand up from a sitting position; difficulty walking on uneven ground or up and down hills or walking downhill; difficulties climbing up and down ladders or walking up and down stairs; has a sensation as if his right knee is giving way, and cannot kneel or squat or sit for too long if his knee is in an angled position.
52 On examination Mr Kossman found patellofemoral friction and pain over the medial meniscus, flexion to 120 degrees and a stable anterior cruciate ligament.
53 Mr Kossman’s opinion, however, is in marked contrast to the opinions of Mr Weber, Mr Westh and Mr Jones. He considered that the plaintiff had suffered significant injury to his right knee which may trigger osteoarthritic changes in the months and years to come. He then said that he could not exclude that the plaintiff might need to undergo treatment in the form of an arthroscopy or arthroscopies. He added that there was a chance that the plaintiff will need to undergo a partial or total knee replacement in the years to come, and that chance was quite high. He considered that the work the plaintiff was performing at the time he examined him was physically demanding work which he considered was too heavy for the plaintiff given what he considered was the nature and extent of the injury to the plaintiff's right knee.[27]
[27]PCB 42-47, and in particular at 44-47
Findings
54 The plaintiff suffered a compensable injury on 23 March 2007 when his foot slipped off a step as he was climbing down from the cabin of a truck.
55 The plaintiff suffered an anterior cruciate ligament rupture which was successfully treated by surgery performed by Mr Weber. As a consequence of that successful treatment the plaintiff was able to return to work in reasonably physically demanding work.
56 The plaintiff worked for each of the employers who I have referred to in paragraphs 17-25 above without the injury to his knee interfering with his capacity to undertake that work on a full-time basis. It was his right shoulder injury which interfered with his capacity to work for J & J M Schrewers not the knee injury.
57 I reject much of the evidence contained in the plaintiff's affidavits sworn 30 January 2012 and 17 January 2013. I simply do not accept that what the plaintiff said in his affidavit sworn 28 October 2011 that he was suffering intermittent right knee stiffness which did not cause too much difficulty in carrying out most of his activities is in some way wrong, and that I should prefer what the plaintiff said in his affidavit sworn 30 January 2012 and 17 January 2013. There are many reasons why I reject much of that evidence.
58 Firstly, it appears to me that the plaintiff deliberately engaged Slater & Gordon to represent that his right shoulder injury was serious, and engaged Ryan Carlisle Thomas to do the same in relation to the knee injury. It is very likely that he engaged both firms of solicitors at around the same time, or at least, there was a common period of time when both firms of solicitors were representing him.
59 Furthermore, it is clear from a critical analysis of the affidavit sworn 28 October 2011 with the affidavits sworn 30 January 2012 and 17 January 2013 that the plaintiff claims that the pain in his right shoulder and the knee are both of significant magnitude, and that they both are to be blamed for similar consequences, for example, as demonstrated in the summary I gave in paragraph 34 above and in the preceding paragraphs.
60 Secondly, it is very clear that Mr Weber, after reviewing the plaintiff on a number of occasions post surgery, was satisfied that the plaintiff had obtained a good result from the surgery he performed. The plaintiff then went on to work in what I consider to be reasonably arduous physical work even after he suffered the injury to his right shoulder, and then he stopped work recently only because of the injury to his left shoulder. The opinions of Mr Westh and Mr Jones do not support the extravagant language used by the plaintiff to describe the nature and degree of the pain and disability he says he has suffered as a consequence of the injury to the knee. Indeed, I reject those descriptions and the use of that extravagant language as being consistent with the impairment caused by the injury to the knee.
61 Thirdly, the film demonstrates that the plaintiff is capable of undertaking a reasonably arduous day’s work. He is able to work as part of a team which uses a truck pulling a wood chipper following tree workers who do the cutting of branches leaving the branches to be picked up by the plaintiff and his fellow workers who then put the same into the wood chipper. The plaintiff is on his feet for the most part of the day. The film demonstrates that he can enter the truck by placing his right foot on the step, and then supporting all of his weight on it as he rises up onto the step with additional support given by his arms.
62 Fourthly, the plaintiff gave an answer relevant to the incidence of pain and its gravity which I think is far closer to the real truth, and that is, that the pain comes and goes depending on what he does and the ground he happens to be standing or walking on.
63 Fifthly, I think the work the plaintiff is able to do is of itself a very good demonstration of the pain and disability which the impairment of the function of the knee has produced. Otherwise, he uses over-the-counter medication; has not seen a medical practitioner for some years for any treatment for his knee; and has not had any time off work despite the fact that I consider that the work he is presently forming is reasonably arduous physical work which the plaintiff is coping with very well.
64 Sixthly, I prefer the evidence of Mr Weber, Mr Westh and Mr Jones, all of whom are orthopaedic surgeons for whom injuries to the knee are matters of familiarity in their surgical practices. The opinion of Mr Kossman is so markedly different in his view of the gravity of the knee injury that it less persuasive than the opinions of Mr Weber, Mr Westh and Mr Jones. Furthermore, it is quite apparent from the manner in which I have set out my reasons that I have serious doubts about the credit worthiness of the plaintiff. I am not entirely convinced that the histories recorded by Mr Weber, Mr Westh and Mr Jones and Mr Kossman paint a true picture of the nature and extent of the consequences of the injury to the knee.
65 I accept that the plaintiff suffered an injury to the knee and that there are some physical limitations on his capacity to function. I accept the opinion of Mr Westh that the plaintiff will experience activity related pain and restricted knee movement, and in the case of Mr Jones that the plaintiff should not engage in work which requires repeated squatting, kneeling, climbing stairs or ladders. Interestingly, on my examination of the evidence given by the plaintiff of the occupations he has followed both before and since he suffered the injury to the knee that there is very little evidence to support the conclusion that any of them involved repeated squatting, kneeling, climbing stairs or ladders.
66 I am not satisfied that I should accept much of the plaintiff's evidence. To the extent that I accept that the plaintiff has pain in his knee and has the restrictions referred to by Mr Westh and Mr Jones I do not accept that those pain and suffering consequences can be described as much more than approaching moderate at best, and that they are certainly not consequences which are at least very considerable.
Conclusion
67 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff's originating motion be dismissed.
68 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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