Sirin v Eltroea Pty Ltd
[2011] VCC 1488
•20 October 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04821
| ERHAN SIRIN | Plaintiff |
| v | |
| ELTOREA PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 October 2011 |
| DATE OF JUDGMENT: | 20 October 2011 (Revised) |
| CASE MAY BE CITED AS: | Sirin v Eltroea Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1488 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, section 134AB(37) and (38)(b) and (c) – Serious injury application – injury to the right knee – aggravation of an underlying disease process – whether a compensable injury – whether the consequences of the aggravation ceased – pain and suffering consequences – whether at least very considerable –– Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Limited [2011] VSCA – leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Zaparas Lawyers |
| For the Defendant | Mr C Hangay | Thomsons Lawyers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 22 October 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering only.
3 Mr S Smith of counsel appeared for the plaintiff, and Mr C Hangay of counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is 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 7-21 and 38-80.2, and from the defendant’s Court Book ("DCB") pages 56-58 and 61-65: Exhibit A;
• The defendant tendered its Court Book, pages 19-51A: Exhibit 1;
The Statutory Scheme
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”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
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 at least “very considerable”.
(e)
Sub-section (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.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
8 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Injury
9 The plaintiff was born on 10 December 1982. He is of Turkish descent. He was born in Australia. He returned with his family to Turkey where he completed his secondary education. He subsequently returned to Australia on 18 August 2004. He lives with his grandmother.
10 The plaintiff commenced a pre-apprenticeship training course in cabinet making at the Kangan TAFE in Broadmeadows. At the end of that six-month course he was offered an apprenticeship with the defendant which he commenced in August 2005.
11 From about September 2005, the plaintiff estimates that about 80 per cent of the work he was assigned involved assembling and installing bench tops. In his first affidavit sworn 9 June 2010, he described the materials he handled and how he went about his work in a significant degree of detail which is unnecessary to repeat here.
12 I think it is sufficient to record that the work undertaken by the plaintiff was physical work which placed a significant strain on his upper body and legs to the extent that when he was working on a job at the Werribee Nursing Home in November 2005, he began to experience pain in his right knee, particularly when trying to force a shelving unit against a wardrobe and a wall.
The Plaintiff's Medical Treatment
13 The plaintiff saw Dr Phan, general practitioner, on 6 December 2005. He was advised by Dr Phan that the pain he was experiencing in his right knee was muscular pain. He recommended that the plaintiff use deep heat on his right knee and that he rest.
14 The plaintiff then went on holiday to Apollo Bay. On his return from holiday he saw Dr Slesenger, general practitioner, at the same clinic where he saw Dr Phan. Dr Slesenger recorded that the plaintiff had suffered knee pain for some three months prior to the occasion he saw the plaintiff. On examination, he noted tenderness in the right supra patella area; no effusion; a good range of movement, and that the knee was stable. He prescribed him Voltaren and referred him to the Northern Hospital for further treatment.
15 Due to the plaintiff's difficulty in obtaining treatment at the Northern Hospital, he obtained a referral from Dr Slesenger to The Royal Melbourne Hospital. It is not clear when the plaintiff first attended The Royal Melbourne Hospital, however, a letter written by Dr Young, an orthopaedic registrar at The Royal Melbourne Hospital, to Dr Slesenger dated 12 February 2008, reveals that Mr Kondogiannis, orthopaedic surgeon, undertook an arthroscopy on the plaintiff's right knee on 27 August 2007, finding patello-femoral joint chondromalacia with Grade III arthritic changes.
16 Prior to the arthroscopy the plaintiff had physiotherapy treatment for some months. Following the arthroscopy he had more physiotherapy. He attended the hospital about every six months or so, presumably for reviews. His last review was in early 2010.
17 Dr Young took a history from the plaintiff that he was pain free during the day, but experienced pain on activity in the distal right side, which he described as a burning pain. On examination, Dr Young found that the plaintiff had a normal gait, and otherwise no abnormality was detected on examination. He advised the plaintiff to undertake quad strengthening exercises, and to use Panadol and Nurofen for pain relief.
18 The plaintiff then saw Dr Baglar, general practitioner, on 21 February 2008. It is not clear when he ceased seeing Dr Slesenger, but it was probably around February 2008 after Dr Slesenger received the letter from Dr Young. Dr Baglar referred the plaintiff to have further physiotherapy. He also prescribed the plaintiff Voltaren which the plaintiff used once a week on average.
19 At present, the plaintiff continues to see Dr Baglar. He continues to take a Voltaren once a week, and Panadol every couple of days. He continues to have intermittent physiotherapy as well.
The Medical Opinions
20 Mr Hangay submitted, firstly, that the plaintiff had not suffered a compensable injury; secondly, if he suffered a compensable injury, then it was an aggravation of pre-existing chondromalacia patellae which was a short-lived aggravation; and, thirdly, that if I was satisfied that the plaintiff had suffered an aggravation of the chondromalacia patellae which resulted in an impairment of the function of the plaintiff's right knee which was permanent, then the consequences are could not satisfy the statutory test.
21 I propose to review the opinions of a number of medical practitioners who examined the plaintiff at the request of the defendant before turning to the opinions of the medical practitioners who examined the plaintiff at the request of his solicitors.
22 Mr Hangay relied upon the opinion of Mr Williams, orthopaedic surgeon, in support of his submission that the plaintiff had not suffered a compensable injury. Mr Williams examined the plaintiff on 17 April 2008. On examination, he found no abnormality in the knee.
23 Initially Mr Williams was of the opinion that, because the plaintiff had evidence of chondromalacia changes in the knee, it was susceptible to physical strains, and because of the work undertaken by the plaintiff, his knee had become symptomatic, but there had been no structural change in the knee due to the plaintiff's work. He then expressed the opinion that the plaintiff's condition had not completely resolved and that the plaintiff's work was still materially contributing to his incapacity for work.[3]
24 Mr Hart, orthopaedic surgeon, examined the plaintiff on 20 April 2009. On examination, he found that the plaintiff could walk normally; jogging on the spot was slightly limited; squatting was also slightly limited, but otherwise he found no other abnormality in the knee. He was of the opinion that the plaintiff was suffering from chondromalacia patellae. He did not offer an opinion on causation and that was because it would appear he was asked to undertake an impairment assessment only.4
25 Mr Jones, orthopaedic surgeon, examined the plaintiff on 27 May 2009. The only abnormality he found on examination was discomfort when the patello- femoral joint was compressed. He appears to have accepted that the plaintiff suffered an injury resulting from his work. He described the disability resulting from the injury as minor, which he considered was associated with the patella and trochlea irregularity in the right knee.5
26 Mr Marshall, general surgeon, examined the plaintiff on 23 June 2009. He found no abnormality in the knee on examination. He was of the opinion that the plaintiff had suffered a temporary aggravation of pre-existing chondromalacia patellae.6
27 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 2 August 2011. On examination, he found no abnormality in the knee. He was of the opinion that the plaintiff had pre-existing chondromalacia patellae which was rendered symptomatic by his work. He was of the opinion that the effects of the aggravation had substantially ceased. He was somewhat equivocal in his expression regarding whether the plaintiff’s symptoms were due to the aggravation or not.7
ultimate opinion on with the plaintiff suffered a compensable injury; however, my interpretation of his opinions leads me to conclude that he was of the opinion that there had been an aggravation, but that it was short-lived
[3] DCB 22. Mr Williams provided three further reports at DCB 24-29. He seems to have become confused and distracted by what constitutes an "injury", making it a little difficult to determine his
DCB 34-36
DCB 41
DCB 44-45
DCB 51
28
What is evident from the opinions I have just reviewed is that the plaintiff had pre-existing chondromalacia patellae in the knee which was aggravated, which subsequently was made symptomatic. What is also evident is that there is a divergence in the opinions as to whether the aggravation was short- lived or whether it continues.
29
On the plaintiff’s side, Dr Slesenger expressed the same opinion as Mr Williams and Mr Marshall, that the effects of the aggravation were short-lived.[8]
30
Dr Baglar is of the opinion that the plaintiff suffered an injury which resulted from his work. Dr Baglar did not express that opinion in as many words, but it is clear from thrust of the narrative discussion in his medical reports that he is of the opinion.[9]
31
Mr Flanc, general surgeon, examined the plaintiff on 21 January 2009. The only abnormality he detected on examination was a 1 centimetre difference in circumference of the right thigh when compared with the left. No other medical examiner found any muscle wasting. He was of the opinion that the plaintiff had pre-existing chondromalacia patellae and that it had been aggravated by his work which made it symptomatic. He considered that the plaintiff’s disability was relatively mild.[10]
32
Mr Grossbard, orthopaedic surgeon, examined the plaintiff on 23 August 2011. The only abnormality he detected was pain on patello-femoral compression of the knee, which is the same finding made by Mr Jones. He was of the opinion that the plaintiff had pre-existing chondromalacia patellae, and that the work he undertook resulted in an aggravation of the chondromalacia patellae and was a significant contributing factor to the progression of that underlying disease process. He was also of the opinion that the underlying process would continue. He considered that the plaintiff might require further treatment in the form of surgery at some time in the future, but he was of an age when it was too early for that option to be considered. He considered that the degree of pathology in the plaintiff's knee was modest.[11]
33
What is evident from these medical opinions is that Dr Baglar, Mr Flanc and Mr Grossbard have expressed opinions which are entirely consistent with the opinion of Mr Jones, that the plaintiff had pre-existing chondromalacia patellae and that it was aggravated by the plaintiff's work. Although Mr Shannon expressed an opinion in somewhat equivocal terms, he otherwise appears to agree with these opinions.
[8] PCB 42
[9] PCB 47-54
[10] PCB 62-64
[11] PCB 56-57
The Plaintiff's Evidence
34
The plaintiff swore three affidavits on 9 June 2010, 17 September 2010 and 23 September 2011. In his oral evidence, he adopted the contents of those affidavits as being a true and correct account of how he came to suffer the injury to his knee and the consequences of having suffered that injury.
35
I think it is sufficient for me to summarise what the plaintiff deposed to in those affidavits as follows – after suffering the onset of pain in November 2005, he suffered swelling and was sufficiently disabled by the pain and consequent limitation of movement in the knee to require assistance from two apprentices in undertaking heavier work, and after undergoing the arthroscopy, he ceased working for the defendant on 14 February 2007, which coincided with his application to enter an electrical engineering course at RMIT being accepted. He subsequently worked for the defendant on a casual basis until about mid- 2007, when he stopped working for the defendant altogether.
36
The plaintiff applied to enter an electrical engineering course to retrain because he did not believe that he could continue working for the defendant. He has not worked since. He has completed the electrical engineering course at RMIT. He obtained a diploma in 2009. He subsequently studied further and obtained a Bachelor's degree in electrical engineering in 2010.
37
The plaintiff subsequently looked for work in the field of electrical engineering. He was unsuccessful in obtaining employment. He then commenced a master of engineering course at Melbourne University in 2011. At the time of the trial he said he would complete the master’s degree in about eighteen months time. At the completion of his masters degree he intends to study further to obtain a PhD.
38
In his first affidavit, the plaintiff described the consequences he has endured since suffering the injury to his knee. In summary, he said that he has ongoing pain in his right knee. If he suffers a twisting of it then he will experience sharp pain which can last for as long as a day or so. The pain worsens if he is on his feet too long. His knee swells if he is on his feet too long. He is able to relieve the discomfort due to standing by sitting and elevating his leg. He has difficulty walking on an even ground and on sloping ground.
39
His knee is stiff in the morning. He gently flexes it in order to reduce the stiffness. He uses an ice pack, and he uses Voltaren and Panadol for pain relief.
40
The injury to his knee has consequences in terms of his domestic and recreational routine. He can mow a small lawn at his grandmother's home, but he needs to exercise care regarding the movements of his knee when mowing the lawn. He avoids placing pressure on his knee when he tries to get off to sleep. He enjoyed surf fishing, rock fishing and cycling. Each of those recreations are now essentially lost to him.
41
Whilst the plaintiff has experienced these consequences, he nonetheless retains a capacity to be reasonably mobile. He readily conceded that he is capable of walking, driving a car, descending stairs, taking his grandmother's dog for walk, and otherwise engaging in a daily routine adequately.
42
I accept the plaintiff's evidence that he has suffered these consequences. Firstly, I accept his evidence, because I consider that he gave his evidence in a candid and forthright manner. Secondly, there is sound support in the medical evidence for the proposition that when the plaintiff stresses his knee he is likely to be met with symptoms of pain. For example, Mr Grossbard was of the opinion that the plaintiff was fit for all work, but he considered that it was appropriate to place limitations on the plaintiff's requirement to lift, squat, walk long distances, and in particular, walking long distances on uneven ground. In other words, those sorts of activities are more likely to produce pain and disablement and it is best that the plaintiff avoid those sorts of activities.[12]
43
Mr Flanc,[13] Mr Jones,[14] Mr Shannon[15] were also of the opinion that the plaintiff should avoid certain kinds of physical activities which will place his knee under loading. Dr Baglar did not expressly deal with the limitations he would place upon the plaintiff’s activities, but I think it is inherent in the thrust of his reports that he accepted the plaintiff's complaints that he has difficulty undertaking certain kinds of physical activities.
44
It should be noted that although Mr William expressed a different opinion regarding whether the aggravation of the chondromalacia patellae continues or not, he was of a similar opinion to these medical practitioners regarding the kinds of limitations which ought to be placed upon the plaintiff.[16] Only Mr Marshall expressed the opinion that the plaintiff could return to his pre-injury work as a cabinetmaker, which I take to mean that he would not place any particular limitations on the plaintiff's activities.[17]
45
It is not lost on me that the knee is a major weight-bearing joint. It is placed under significant stress in all manner of activities connected with mobility. It is understandable why Mr Grossbard, Mr Flanc, Mr Jones and Mr Shannon refer to lifting, squatting, kneeling, walking on slopes and walking over distance and over uneven ground as placing sufficient stress on the plaintiff's knee to cause him some trouble.
46
Mr Hangay submitted that many of the medical practitioners describe the plaintiff’s injury and disablement as modest or minor, or words to a similar effect. He submitted that those opinions constitute objective evidence by which I must make a judgment whether I accept the plaintiff's evidence or not. Whilst there is some merit in the submission, I am otherwise of the view that there really is nothing inconsistent in the opinions of those medical practitioners and the complaints made by the plaintiff. In the histories given by the plaintiff to those medical practitioners, he described the sorts of problems he has had, and it is important to note that none of those medical practitioners made any observation that the plaintiff's complaints were out of keeping with the nature and extent of the injury to his knee.
47
I reject the submission made by Mr Hangay that the plaintiff's work did not result in him suffering an injury. There is no evidence to support that submission. Furthermore, it is a remarkable submission given that the defendant consented to an order in the Magistrates’ Court which amounted to a concession that the plaintiff had suffered a compensable injury and was entitled to no fault compensation.[18]
48
I also reject the submission made by Mr Hangay that the aggravation was short-lived. The preponderance of the medical evidence is that the chondromalacia patellae was aggravated by the plaintiff's work, but I prefer the opinions of Mr Grossbard, Mr Jones and Mr Shannon all of whom are orthopaedic surgeons whose medical specialty involves a special understanding of joint injuries. Furthermore, to the extent that their opinions are supported by Mr Flanc, it seems to me that there is a sturdy body of evidence to support the conclusion that the plaintiff suffered a compensable injury which persists.
49
Mr Hangay also submitted that the plaintiff cannot meet the statutory test because of the extent of the physical activities which he is still capable of undertaking,[19] and the fact that he is no longer having any medical treatment and only modest physiotherapy and modest resort to pharmaceutical medication, all of which demonstrate that the consequences to the plaintiff cannot meet the statutory test.
50
I am not satisfied that the lack of medical treatment is of any consequence. No medical treatment is advised, save that the plaintiff may need some surgical assessment in the future because of the progressive nature of the chondromalacia patellae. It is difficult to understand what medical treatment the plaintiff could have to deal with the persistent problems he has except for intermittent physiotherapy to gain symptomatic relief and the resort to medication when required. I accept that his modest use of medication suggests that he is tolerating the pain and limitation of movement to a degree.
51
In the end I am satisfied that the plaintiff suffered an injury to his right knee comprising an aggravation of pre-existing chondromalacia patellae. I am satisfied that the aggravation persists and that it has impaired the function of the plaintiff's right knee. I am satisfied that the impairment is permanent, which would seem to be consistent with the medical evidence which I accept and prefer.
52
The fact that the plaintiff is a young man with a damaged right knee which results in pain, swelling and limitation of movement, and interference with his domestic and recreational pursuits, not to mention the fact that he is no longer able to work as a cabinetmaker or in like arduous work, seems to me to speak of consequences which are at least very considerable.
[12] PCB 57
[13] PCB 69
[14] DCB 41
[15] DCB 51
[16] DCB 22-23
[17] DCB 45
[18] PCB 80.2. In addition, Mr Smith referred me to a letter of QBE to the plaintiff dated 28 April 2009 likewise admitting that the plaintiff had suffered a compensable injury and that the defendant was liable to pay the plaintiff no-fault compensation - at PCB 74-80
[19] The primary focus must be upon what the plaintiff has lost – see Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, and the relevant considerations in assessing pain and suffering referred to in Sutton v Laminex Group Pty Limited [2011] VSCA 52 at paragraphs 46-50
Conclusion
53
On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant.
54
After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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