Smith v Geotech Pty Ltd (T/as Geotech Engineering)
[2012] VCC 1463
•3 October 2012
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05270
| DAVID CHARLES SMITH | Plaintiff |
| v | |
| GEOTECH PTY LTD (trading as GEOTECH ENGINEERING) | First Defendant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 27 and 28 September 2012 | |
DATE OF JUDGMENT: | 3 October 2012 | |
CASE MAY BE CITED AS: | Smith v Geotech Pty Ltd (T/as Geotech Engineering) & Anor | |
| MEDIUM NEUTRAL CITATION: [First revision 11 October 2012] | [2012] VCC 1463 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: pre-existing injury to the right knee – further injury to right knee – identification of the pathology produced by a further injury – whether the further injury impaired the function of the right knee – whether the pain and suffering consequences of the impairment were serious
LEGISLATION: Accident Compensation Act 1985, s134AB(38)(c)
CASES CITED: Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Dressing v Porter [2006] VSCA 215
JUDGMENT: the plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas & McPherson |
| For the Defendants | Mr A Moulds SC with Miss S Manova | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 7 November 2011, the plaintiff seeks an order pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to bring a proceeding at common law to recover damages for injuries which he suffered on 12 April 2001 in the course of his employment with the first defendant.
2 Mr J Mighell SC appeared with Mr D Purcell of counsel for the plaintiff, and Mr A Moulds SC appeared with Ms S Manova of counsel for the defendant.
3 The body function which the plaintiff says has been impaired is his right knee.
4 The following evidence was adduced at the trial:
· The plaintiff gave evidence and was cross-examined
· The plaintiff tendered his Court Book (“PCB”), pages 22-81: Exhibit A
· The defendants tendered the following evidence:
§ The second defendant's Interrogatories dated 8 June 2012 and the plaintiff's Answers in proceeding SCI-2011-05946: Exhibit 1
§ The Defendants’ Court Book (“DCB”), pages 1, 3, and 11-23: Exhibit 2
§ Film taken of the plaintiff on 7 December 2011; 29 February 2012; 1 March 2012 and 2 March 2012: Exhibit 3
§ The curriculum vitae of Mr Hart, orthopaedic surgeon: Exhibit 4.
The Statutory Scheme
5 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 injury and 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) 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;
(e) In conformity with Barwon Spinners Pty Ltd and Ors v Podolak,[1] 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 ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
6 I am required by s134AE of the Act 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 Background Facts
7 The plaintiff was born in 1960. He is now fifty-two years of age. He is a married man with two adult children. He is an arborist by occupation.
8 On 12 April 2005, the plaintiff was employed by the first defendant at the Kangaroo Flat railway station. He lifted a large piece of formwork, and as a result, he suffered a twisting injury to his right knee.
9 The foregoing is sufficient to set the backdrop to a factually complex history of injuries suffered by the plaintiff going back to 1986. In that year, the plaintiff suffered an injury to his right knee. He subsequently suffered a further injury to his right knee on 12 April 2005, and subsequently injuries to his left knee and left shoulder.
10 To understand how each of the injuries are relevant to the ultimate determination of whether the plaintiff has suffered an impairment of the function of his right knee with pain and suffering consequences which are serious, it is necessary to set out as much of his past history and the occurrence of the other injuries as is possible to make sense of the medical opinions which I will turn to in detail later in these reasons.
The 1986 Right Knee Injury
11 In 1986, the plaintiff was employed by McConnell Dowell Construction Ltd (“McConnell”). McConnell was engaged in construction work at the Werribee sewerage farm. Amongst the tasks which the plaintiff was required to perform was with a concreting crew. He was required to enter and leave a trapezoidal channel. He entered the channel down a slope and then left the channel by the same route, with the result that he suffered a fair degree of force through his legs, and in particular, his knees.[2]
[2]DCB 2; Transcript 11-13
12 The plaintiff suffered injury to both knees as a result of the work just described. It would appear that the injury to his knees was particularly incapacitating according to the claim formally he completed.[3]
[3]DCB 1
13 The injury to the plaintiff's right knee was significant enough for him to seek medical treatment. There is little documentary evidence of the degree of the treatment which the plaintiff required for that injury, and that would appear to be due to the effluxion of time and the inability of the parties to locate that evidence.
14 The plaintiff was examined by Dr Lanyon, general practitioner, on 25 February 1991. Dr Lanyon examined the plaintiff on that occasion and provided a lengthy medical report dated 1 March 1991[4] which was addressed to a claims officer at “W.C.S. (City)”. The majority of my understanding of what injury the plaintiff suffered in 1986 and the treatment he was provided has been derived from the report of Dr Lanyon.
[4]DCB 12-15
15 The relevant portions of Dr Lanyon's report can be summarised as follows:
· In March 1986, the plaintiff suffered injury to his knees. Dr Lanyon obtained an extensive history from the plaintiff of the actual tasks which he was required to undertake which the plaintiff implicated in the causation of the injuries to his knees.[5]
[5]DCB 12
· The plaintiff saw Dr Milone, general practitioner, in about March 1986.
· Dr Milone referred the plaintiff to have x-rays of both knees, which were taken on 21 March 1986.
· Dr Milone gave the plaintiff a steroid injection into his right knee, and told him to wear a soft knee brace. He subsequently put the plaintiff off work for three months.
· Dr Milone referred the plaintiff to a surgeon, who had rooms at the Mercy Hospital.
· The surgeon undertook an arthroscopy of the plaintiff's right knee. The plaintiff told Dr Lanyon that he believes that the surgeon removed bits of loose bone from his right knee. He told Dr Lanyon that his right knee was not too bad following the arthroscopy and that he recovered from the injury to his left knee completely.
· The plaintiff returned to work with the defendant. The plaintiff told Dr Lanyon that he suffered an aggravation of his right knee over a weekend when he undertook fencing work. He saw Dr Milone. He was given two months off work.
16 At the time when Dr Lanyon examined the plaintiff, he recorded the plaintiff's complaints of problems with his right knee as follows:
“His knee is not as good as it was before the incident of March 1986, with hard work. There is an ache deep within the knee when he has been on it for a couple of hours. The ache is particularly bad at night or with prolonged driving for greater than 3½ hours. He has to drive from Bridgewater to Wedderburn for he lives in Bridgewater and this would give him an ache in the knee. He rated his knee as 80%. His pains are increased with strenuous work and with prolonged manual activities. His knee never locks or gives way. He can still lift very heavy weights.”[6]
[6]DCB 13. The plaintiff was cross-examined on that history at transcript 17-19
17 In relation to his incapacity, the plaintiff told Dr Lanyon that he was able to carry out all of his normal activities of life but that he had to take it more easily with his right knee than he used to. He said that he could run, walk, kneel and squat, although it would cause an ache in his right knee.
18 Dr Lanyon summarised the appearances on the x-rays which the plaintiff brought with him to the examination:
“21.3.86 BOTH KNEES: (Taken at Chelmar Diagnostic Group, 112 Synnot Street, Werribee): No bone or joint abnormality seen on either side.
13.8.86 RIGHT KNEE: (Taken at 20 Collins Street, Melbourne): There is small indentation at the articular surface of the right medial femoral condyle seen in the intercondylar view and this is most probably either post-traumatic or developmental.
No other bony lesion detected and no recent bony injury seen. The joint spaces appear normal.
Dr Steg.”
19 Dr Lanyon referred the plaintiff to have further x-rays of the plaintiff's right knee:
“25.2.91 RIGHT KNEE: In the intercondylar view there is a notch in the medial condyle of the femur. The appearances are not typical of osteo-chondritis. The appearance may be related to previous injury or may be developmental. The defect is well defined and the latter is felt more likely.
The bones, joints and soft tissues are normal in appearance.
Dr William J Rogers.”
20 Dr Lanyon then expressed an opinion based upon his examination and his opinion on the radiology. I think the relevant portions of it are as follows:
“Thus I believe that this worker has had a chip of bone avulsed from the medial femoral condyle around about March 1986. I believe that this is not develop-mental (sic) as it was not seen in the x-rays of 21.3.1986. This would give him some pre disposition to osteo arthritis in the long term even though the chip of bone has been removed arthroscopically in late 1986.”[7]
[7]DCB 14
21 Understandably, the plaintiff struggled to recall the events of 1986, the surgery, and the occasion when he saw Dr Lanyon. However, I accept what is recorded in Dr Lanyon’s report in whole.[8] I do so on the basis that the plaintiff agreed that he suffered an injury and that he had the medical treatment recorded by Dr Lanyon, and otherwise on the basis that there is really nothing particularly controversial in Dr Lanyon's report.
[8]Transcript 13-14
The Plaintiff's Employment History Post-1986
22 The fact that the plaintiff was able to return to physically arduous work following the medical treatment which he had for the 1986 right knee injury is of significance, and therefore, I will set out a summary of the work he undertook:
· Following the plaintiff's recovery from the aggravation of the injury to his right knee when he undertook his own fencing work, he then returned to work as a self-employed concreter for about two years.[9]
[9]Transcript 14
· The plaintiff then undertook concreting work for about two years, constructing formwork and drainage for houses on a sub-contract basis, working with a Mr Garry Preston. The plaintiff regarded that work as less demanding than the work he did with McConnell.[10]
· The plaintiff then undertook work as a tree cutter. He was self-employed. He worked in that capacity doing that work for about ten years with the SEC, and then for a further five years doing local contract work with local shires and like organisations.[11]
[10]Transcript 14-15
[11]Transcript 15
The Plaintiffs Right Knee from 1986 to 2005
23 Mr Moulds cross examined the plaintiff by reference to the complaints which the plaintiff made to Dr Lanyon, and put to him that he had suffered those complaints from the time he made them to Dr Lanyon in 1991, all the way through to 2005. The evidence on that score is as follows:
“Q:You gave him a history, I suggest to you, that means you told him, that you had to drive from Bridgewater to Wedderburn because you lived in Bridgewater, and that would give you an ache in the knee. Would that be what you told him at the time back in 1991?---
A:I should imagine, yes.
Q:In 1991 you rated your knee as 80 per cent. Would that be correct, that you told him that?---
A:1991?
Q:1991?---
A:Yes.
Q:So five years after the time that the symptoms first arose such as to trouble you in 1986, you had an arthroscopy in that year, five years later you were still rating your knee as 80 per cent. Is that right?---
A:Yes.
Q:If he recorded that your pains were increased with strenuous work and with prolonged manual activities, that would be right, wouldn't it?---
A:Yes.
Q:If you told him your knee never locked or gave way, that would be right too, wouldn't it?---
A:My knee never gave way.
Q:No, at that point it didn't, did it?---
A:No.
Q:So he has got that right, hasn't he?---
A:Yes.
Q:If you told him you could still lift very heavy weights, that would be right in 1991 too, wouldn't it?---
A:Yes.
Q:If you told him in 1991 that you could carry out all the normal activities of life but you had to take it more easily with your right knee than you used to, that would be right, wouldn't it?---
A:Yes.
Q:If you told him that you could run, walk, kneel and squat, although with an ache, that would be right too, wouldn't it, in 1991?---
A:Yes.
Q:I suggest to you that situation that I've put to you of an 80 per cent knee, where you had to be careful with it and where you had an ache deep within it when you had been on it for a couple of hours, was not just there for that five years but continued on right through, until the time your knee collapsed on you in 2005. In other words, you always had a crook knee of some sort?---
A:It felt all right to me.
Q:Sorry?---
A:It felt all right to me after it.
Q:Sorry, I didn't hear that, I missed it.”
HIS HONOUR:
“It felt all right to me.”
MR MOULDS:
Q:It felt all right to you. Has it not been pretty much the same all along from about a year or two after 1986, in other words after it settled down after that arthroscopy it's been pretty much the same all along, hasn't it?
A:Yes, it's pretty good.
Q:But there would be no difference between, in your mind, how it was five years after the Werribee problem arose and in 2005. It would be pretty much the same, wouldn't it?--
A:It felt pretty good to me.
Q:Are you suggesting it felt pretty good to you in 1991 when you made your claim for permanent impairment?---
A:No.
Q:And it felt about the same then as it did all along until 2005, didn't it?---
A:Yes.
Q:In other words, you were able to get by with it as long as you were careful. Is that not so?---
A:I could have played footy with it.[12]
[12]The parties agreed that the transcript should be corrected from “I couldn't play footy with it” to “I could have played footy with it”.
Q:I see.”
HIS HONOUR:
Q:“How old were you in 1991?---
A:Thirty-one.”
MR MOULDS:
Q:“How long was your football career going to go past 31 anyway, Mr - - -?---
A: No.
Q:In other words look, you had - it doesn't matter how you dress it up, does it - you had a bit of a crook knee, it was about 80 per cent and you were able to get by with it provided you were careful, is that a fair summary of the situation, Mr - - -?---
A:Yeah, well I worked hard and it was good and – and I never had no problems with it, then all of a sudden it just collapsed on me.
Q:When you say you had no problems with it, you did have some problems didn't you? You were able to work, you were able - - -?---
A:Yes - - -
Q: - - - to work pretty hard?---
A:It was – it was strong - - -
Q:It wasn't a symptomless knee, was it, it gave you some problems before it collapsed?---
A:Earlier on in the piece, yeah … .”[13]
[13]Transcript 17-19
24 I accept the plaintiff's evidence that his right knee was functioning very well. He was able to undertake reasonably heavy manual work which would undoubtedly have placed daily stress and strain on his right knee. There is no evidence to suggest that he resorted to any medical treatment between 1991 and 2005, nor that he used any medication to treat right knee pain.
25 I am fortified in reaching that conclusion because the incident which occurred on 12 April 2005 was a significant one. The plaintiff described the incident in his affidavit sworn 27 June 2011,[14] but he described it in rather more graphic detail in his oral evidence as follows:
[14]PCB 23
“Q:And you told him that you had a right knee injury at work on 12 April 2005, and you told him – I suggest to you – that your right knee gave way while carrying a concrete block, would that be right?---
A:It wasn't a concrete block, it was a piece of form work.
Q:So he's got the block wrong?---
A:Yeah.
Q:It was a piece of form work rather than a block?---
A:Yeah.
Q:But the rest of it's correct isn't it, that the right knee gave way while you were carrying a concrete piece of form work?---
A:Yes.
Q:So you were walking along with the piece of form work and your knee just went bang, just gave way?---
A:No, I was working on a side of the ballasts on the train line, you've got the big bluestone rocks on the side of the train line - - -
Q:Yes?---
A:And I was lifting the form work over it, and then I was trying to get up there with the form work, and then me knee went on me.
Q:It just collapsed?---
A:Yeah … .”[15]
[15]Transcript 20-21
26 The descriptions given by the plaintiff in his affidavit and in his oral evidence are quite clearly evidence of a man who was engaged in heavy manual work on uneven ground. He was able to tolerate that work until his body was under significant loading while carrying and manoeuvring the formwork on uneven ground. It sounds very much like the plaintiff was standing on the ballast on which the railway tracks are fixed, which means he was standing on something of a slope while carrying and manoeuvring the formwork. The plaintiff described the incident to a number of examining medical practitioners as also involving twisting of his right knee.[16]
[16]For example, he gave that history to Mr James, orthopaedic surgeon, at PCB 27
27 All of this goes to demonstrate that despite the 1986 injury to his right knee, the plaintiff was otherwise able to work to his capacity in what strikes me as reasonably heavy manual work until he suffered another injury to his right knee on 12 April 2005.
12 April 2005 - the Plaintiff's Medical Treatment
28 The plaintiff saw Dr Lee, general practitioner, on 13 April 2005. Dr Lee referred the plaintiff to have an x-ray of his right knee and also an ultrasound.[17] The x-ray revealed soft-tissue swelling adjacent to the medial femoral condyle. The ultrasound revealed a possibility of a partial complete tear at the insertion of the right medial collateral ligament to the medial epicondyle.[18]
[17]PCB 42
[18]PCB 74
29 Dr Lee referred the plaintiff to Mr James, orthopaedic surgeon. The plaintiff first saw Mr James on 6 June 2005. He recommended the plaintiff undergo an arthroscopy, which he performed on 17 June 2005. In a report dated 18 July 2005, he summarised his findings on arthroscopy as follows:
“I performed on arthroscopy on his right knee, which revealed a displaced bucket handle tear of the medial meniscus, a small area of chondral damage over the medial femoral condyle adjacent to the tibial spine. There was grade III chondral damage over the retropatellar vertex, the trochlear articular surface was intact however. The residual ACL was thin and atrophic as was the PCL, once probed it was clear the ACL had very little substance at all. The PCL was around 1/3rd its normal size.
We went on to perform an ACL reconstruction using the ipsilateral semitendinosus and gracilis as a graft source making a 6 strand graft of 10 mm diameter … .”[19]
[19]PCB 30-31
30 Mr James reviewed the plaintiff on a number of occasions. In a letter to the insurance agent dated 11 January 2006,[20] he referred to his final check-up of the plaintiff's right knee. He said that the plaintiff is doing very well and that he had recovered a full range of motion to internal flexion, good strength in his quadriceps with no pain, and that the knee felt stable.
[20]PCB 33
31 The plaintiff returned to see Mr James in about July 2010.[21] On this occasion, he was referred to Mr James by Dr Togno, general practitioner. The plaintiff told Mr James that his right knee had “… been bothering him once again”. More particularly, he told him that he was experiencing a sense of instability walking on uneven surfaces or with more forceful or provocative manoeuvres. Mr James examined the plaintiff and considered that there might have been some degree of AP laxity. He thought that was probably due to a combination of posterior cruciate laxity and a lack of the medial meniscus or some stretching of the ACL graft. He referred him to have an MRI scan.
[21]PCB 36
32 The plaintiff was reviewed by Mr James in August 2010.[22] Mr James was of the opinion that the MRI scan demonstrated that the ACL reconstruction was intact, and that the AP laxity was principally a reflection of the plaintiff's PCL insufficiency. He also considered that the plaintiff had a diminutive of the medial meniscus consistent with the previous partial meniscectomy and that he was developing articular cartilage loss over the medial femoral condyle and medial tibial plateau.
[22]PCB 39 and 40-41
The Plaintiff's Employment History Post 2005
33 The plaintiff was off work from the date of the occurrence of the incident for about three or four months. He then obtained employment on the Bendigo Bank building site with Austress doing general labouring work, concreting and steel fixing full-time. He described it as hard physical work. The tasks he was required to perform involved bending, kneeling and squatting. He remained in that employment for about twelve months.[23]
[23]Transcript 22-23
34 He then worked on a freeway project from Taradale for about twelve months.[24] He then worked on the construction of the day surgery centre at Mt Alvernia for about three months, working about 38 hours per week.[25] On both projects he was involved in general labouring work, undertaking concreting and operating plant and equipment. He then worked for Thiess on the construction of the Calder Highway at Harcourt. He started work on that project in February 2008 until 11 July 2008, when he suffered a major injury to his left shoulder. With Thiess, he was employed as a “peggy” which involved doing work as a general rouseabout working a 58-hour week.[26] It was my impression, from his evidence regarding each of those types of work, that they involved varying degrees of hard physical work.
[24]Transcript 23
[25]Transcript 23 and 25-27
[26]Transcript 25-27
The Left Shoulder Injury
35 On 11 July 2008, the plaintiff suffered a fall. He put out his left arm to break his fall, with the result that he dislocated his left shoulder. He required surgery to repair the damage to his left shoulder.[27]
[27]Transcript 27-28
36 The plaintiff made a common law claim in the Supreme Court at Bendigo, proceeding number SCI-2011-05946, which settled a month or so prior to the trial before me. The plaintiff admitted that the settlement involved, among other things, a claim for past and future loss of earnings and earning capacity, and that he claimed a total loss of earnings and earning capacity for the past and into the future. He also admitted that he lost his earning capacity because of the left shoulder injury.[28] Mr Mighell, in his final address, did not seek to argue otherwise than the plaintiff's earning capacity was lost as a result of the left shoulder injury.
[28]Transcript 29
37 Mr Moulds put the second defendant's interrogatories and the plaintiff's answers to those interrogatories in the Supreme Court proceeding to the plaintiff. In particular, Mr Moulds put interrogatory 27 and the plaintiff's answer to the plaintiff. Part of the purpose in doing so was to demonstrate what consequences the plaintiff said resulted from the left shoulder injury so that a comparison could be made with the consequences the plaintiff said resulted from the impairment of the function of his right knee. The answer he gave to interrogatory 27 is as follows:
“I have pain in my left shoulder. I get a ‘pins and needles’ sensation and tingling going down my left shoulder into my left arm and into my left hand. This is present at some time of the day every day. The sensation is more so when I’m using my left arm. If I sleep on my left hand side I wake up in pain. I often have a numb feeling in my left shoulder and left arm, especially when I first wake up. I live on two (2) acres. I have a garden. I previously enjoyed working in the garden. Now I just do enough to keep the garden neat. Given the pre-existing problem to my right knee and the problems I suffer as a result of the injury to my left shoulder, I have to be careful with performing tasks such as gardening. I have bought a ride-on mower and I use a whipper snipper with a harness as this provides better support from my shoulders. I have to be careful lifting and reaching overhead. I often have poor sleep. I used to do the odd jobs around my property but I now try to avoid doing odd jobs. If I have to do odd jobs I just take things quietly and slowly or more quietly and slowly than I used to. Odd jobs take me a lot longer to do. I find dressing difficult if I have been sleeping in the wrong position and I wake up with a sore left shoulder. I now have an automatic car as the automatic car was easier to drive. I used to enjoy camping. I used to go camping about once a month. I hardly go camping at all now and if I do go camping I do things a lot slower. I do not find camping as enjoyable as I previously did … .”[29]
[29]Exhibit 1; the plaintiff was cross-examined on the interrogatories at transcript 30-34
38 The plaintiff elaborated on the interference to his outdoor activities caused by his left shoulder. He said he used to go pig shooting. He would take dogs with him. The dogs would catch the pig. The plaintiff would then kill the pig using a knife. He said that he could not do that without a fit left shoulder.[30]
[30]Transcript 33
The Plaintiff's Work Resumption
39 The plaintiff was unable to work from the date of the occurrence of the left shoulder injury until early 2011, when he purchased equipment and set himself up as a self-employed arborist.[31]
[31]Transcript 39-46
40 The plaintiff's oral evidence and the films[32] demonstrate that he has a significant amount of equipment which he uses in his self-employment as an arborist. He has a utility vehicle and a truck. He has a cherry picker, which he tows behind one of his vehicles. He uses the cherry picker to access points which he is unable to access using a ladder. He has a wood chipper, which he tows behind one of his vehicles. He uses the wood chipper to chip tree branches and foliage which he has cut down. He has two stump grinders, which he tows behind one of his vehicles. He uses the stump grinders to remove stumps of trees which he has cut down.
[32]Exhibit 3
41 The plaintiff also has other equipment – chainsaws; ropes and tackles; a leaf blower; a rake; and probably other handheld gardening tools, and I assume other equipment necessary to undertake his work.
42 The plaintiff has his father working with him. The films showed two men wearing orange reflective shirts. One was wearing khaki shorts – that was the plaintiff. The other man was wearing blue shorts – that was the plaintiff's father. The plaintiff's father appeared to be reasonably active, from what I could see in the films, in that he seemed to be walking around with pieces of equipment and tools from time to time.
43 The plaintiff admitted that the films demonstrated a typical day's work. The films showed the plaintiff driving his vehicles to various places where he undertook work. None of the films showed the plaintiff using the cherry picker, ladders or a chainsaw, but at least one part of the film of 29 February 2012 showed a lot of foliage at the back of one of the plaintiff's vehicles, and the plaintiff feeding branches into the chipper.
44 The plaintiff said that his father does about 70 per cent of the chainsaw work. The plaintiff cuts down the trees because his father does not like going up on the cherry picker. It was my strong impression that otherwise the plaintiff is able to operate the vehicles and all the other equipment used in his business.
45 The plaintiff said that he is currently working two to three days per week. That is partly due to the problems he says he has with his right knee, his left knee and his left shoulder.
The Left Knee Injury
46 The plaintiff suffered an injury to his left knee in about July 2010. The plaintiff was riding a motorbike at Balranald in the bush. He was going around a corner on the motorbike. He put his foot on the ground as he was doing so, with the result that he damaged his left knee.[33]
[33]Transcript 36-38
47 The plaintiff saw Dr Togno, who referred him to Mr James. Mr James undertook an arthroscopy on the plaintiff's left knee on 9 July 2010. He found a completely disrupted and displaced medial bucket handle tear of the medial meniscus, which he reduced. He also found a subtotal tear of the ACL, which he reconstructed using the same method he used when he reconstructed the plaintiff's right ACL.[34]
[34]PCB 37-38
The 2005 Right Knee Injury
48 Both Mr Moulds and Mr Mighell undertook a very careful and detailed analysis of the medical evidence for the purpose of identifying the pathology produced by the 1986 right knee injury; the consequences of that injury, that is, the progression of the pathology; identifying the pathology produced by the 2005 right knee injury, and then making a comparison between the progression of the pathology of the 1986 right knee injury with the pathology produced by the 2005 right knee injury; and lastly, identifying the impairment of the function of the right knee as a result of the 2005 injury and its consequences.
49 What became evident through the addresses of Mr Moulds and Mr Mighell and my reading of all of the medical evidence is that only two medical practitioners had the whole history going back to 1986 and thereafter. Mr Hart and Mr McLean had that history. Mr James was not aware, or if he was he did not comment on the 1986 right knee injury and the pathology which it produced and the progression of that pathology up to 2005.
50 I propose to concentrate on the analysis of Mr Hart first, because he seems to have constructed a chronology which fits with the evidence, and then to have made an analysis of that evidence.
51 Mr Hart provided two reports dated 27 May 2010[35] and 2 February 2011.[36] I think it is sufficient to refer to his second report, which contains his most detailed analysis of the medical evidence.
[35]PCB 55-63
[36]PCB 64-74
52 Firstly, in relation to the pathology resulting from the 1986 injury to the right knee, he said:
“… An x-ray in 1991 indicated that there was an indentation on the medial femoral condyle and it is likely that was associated with damage to the articular cartilage and that his medial compartment arthritis is a progressive development of that lesion. It is more difficult to be sure about the origin of the patellofemoral osteoarthritis.”[37]
[37]PDC 68
53 Secondly, in relation to the presence of medial compartment arthritis, he said:
“… I consider that his medical[38] compartment arthritis is a progressive development from the pre-existing condition, which was first diagnosed in 1991. Despite the fact that he has been able to continue working as an arborist, he has been able to work around his disability.”[39]
[38]Mr Hart must have meant “medial”
[39]PCB 69
54 Thirdly, he identified the pathology found by Mr James when he undertook the ACL reconstruction of the plaintiff's right knee:
“He was referred to Mr James and he carried out an operative procedure on 17 June 2005 and removed a bucket handle tear of the medial meniscus, carried out an anterior reconstruction using hamstring tendons and noted that there were changes on the patella and the medial femoral condyle.”[40]
[40]PCB 69
55 Fourthly, in relation to the changes in the patella and the medial femoral condyle he considered that they did not result from the 2005 injury to the right knee:
“The fact that the operation was performed within two months of the injury indicated that these were pre-existing conditions.”[41]
[41]PCB 69
56 Furthermore, in relation to the production of the degenerative changes in the medial compartment and the patellofemoral joint, he said:
“In the longer term, resection of the portion of the medial meniscus may result in acceleration of the degenerative changes in the medial compartment, but are unlikely to affect the patellofemoral joint. I would therefore not consider that the medial compartment arthritis and probably the patellofemoral condition, which was also well-established at the time of the injury, should be considered as part of this claim … .”[42]
[42]PCB 69
57 At this point I return to the surgery performed by Mr James on 17 June 2005 which involved, among other things, the debridement of the displaced inner segment of the medial meniscus and the debridement of a small area of chondral damage adjacent to the tibial spine.
58 In conclusion, Mr Hart considered that what the plaintiff was suffering from was:
“… residual instability of the right knee and the effects of a partial medial meniscectomy, which are a direct result of the injury on 12 April 2005.”[43]
[43]PCB 70
59 In addition, Mr Moulds submitted that part of the reason for the instability in the plaintiff's right knee was the PCL laxity, which he submitted was pathology which pre-existed the 2005 right knee injury. He referred specifically to a courtesy letter written by Mr James to Dr Togno dated 5 July 2010,[44] in which Mr James said the following:
“He returned to work late August on modified duties. I [My] last review at that time was in January of 2006 by which time he appeared to have made a very good recovery. The knee felt stable but for the mild degree of pre-existing PCL laxity.”
[44]PCB 36
60 Mr James then added:
“Examination today [of] the knee had a lot of medial collateral laxity and mild degree of AP laxity. This is probably a combination of posterior cruciate laxity and the lack of medial meniscus. There could however be some stretching up of the ACL graft. My recommendation has been that we have an MRI performed and I will review him to discuss the findings in a few weeks.”
61 When Mr James reviewed the plaintiff with the MRI scan, he concluded that the AP laxity was principally a reflection of the PCL insufficiency.[45]
[45]PCB 39
62 Mr McLean provided a report dated 28 May 2012, after having examined the plaintiff on 29 May 2012.[46] He was provided with all of the relevant medical reports and radiological studies so that he could address the very same issues addressed by Mr Hart.[47]
[46]PCB 45-54
[47]PCB 46. Mr McLean interpolated one page of the letter of instruction from the plaintiff's solicitors in which the solicitors set out the material which they wanted him to read and consider
63 On my reading of Mr McLean's report, there does not seem to be any marked difference between the opinions he expressed in his report and the opinions expressed by Mr Hart.
64 Mr McLean was made aware that the plaintiff suffered injury in 1986 to his right knee and underwent an arthroscopy. He did not analyse the product of the 1986 right knee injury in the detail undertaken by Mr Hart, but it seems to me that he understood that there were components in the plaintiff’s presenting pathology which were not related to the 2005 right knee injury. The relevant part of his opinion in that respect is as follows:
“The prognosis relative to David Smith’s right knee is for that of progressive degenerative changes with the passage of time. This being a combination of the factors. His constitutional components relate to his age of 51 years, previous injury to his right knee most likely related to pathology of the medial femoral condyle back in 1986 leading to arthroscopy and removal of ‘bits’. He is also a heavy build and overweight.”[48]
[48]PCB 53
65 Mr McLean then sought to demonstrate what he considered were the injuries resulting from the 2005 right knee injury in contrast to the 1986 right knee injury and the pathology produced by it:
“His injury however of April 2005 resulting in medial meniscectomy and anterior cruciate ligament reconstruction; with some remaining anterior cruciate ligament insufficiency and instability; will however lead to the progressive degenerative changes with the passage of time. This being a significant component of his ongoing problem.”[49]
[49]PCB 54
66 Mr McLean referred to degenerative changes in the plaintiff's right knee, which pre-dated the 2005 right knee injury, earlier in his report:
“David Smith has an ongoing right knee problem relating to pain, instability, variable swelling and crepitus. This relates to chronic anterior crucial ligament insufficiency of the right knee with further degenerative changes to the medial and patellofemoral compartments.”[50]
[50]PCB 52
67 These two passages from Mr McLean's report lead me to conclude that he was of the opinion that the plaintiff had degenerative changes in the medial and patellofemoral compartments which pre-dated the 2005 right knee injury. In essence, what he intended to convey is that the plaintiff has pre-existing degenerative changes which will progress as a result of the 2005 right knee injury. It seems to me that this is broadly consistent with the opinion expressed by Mr Hart.
68 Mr Moulds concluded by submitting that when the 2005 right knee injury occurred, the plaintiff was suffering from progressive degenerative changes in the medial compartment and the patellofemoral joint, and also from PCL insufficiency. All of those conditions pre-dated the 2005 right knee injury, therefore, I should accept the ultimate opinion of Mr Hart that the plaintiff is only suffering from residual instability of the right knee and the effects of a partial medial meniscectomy.
69 Mr Mighell concentrated his address, regarding the pathology produced by the 2005 right knee injury, on the following:
· The plaintiff suffered a bucket-handle tear of the medial meniscus and a disruption of the ACL.
· Mr James was of the opinion, when he examined the plaintiff in July 2010, that the laxity in the plaintiff's right knee could have been contributed to by, among other things, the stretching of the ACL graft.[51] When he reviewed the MRI scan of the plaintiff’s right knee, he considered that the laxity was principally a reflection of PCL insufficiency, and I take that to mean that he did not entirely exclude the laxity being contributed to by the ACL reconstruction.[52]
[51]PCB 36
[52]PCB 39
· By 2005, the plaintiff had evidence of degenerative changes in his right knee consistent with the opinions of Mr Hart and Mr McLean. However, removal of a portion of the medial meniscus was likely to result in progression of the degenerative changes in the medial compartment of the plaintiff’s right knee. Mr James was of the opinion that the partial medial meniscectomy might leave the plaintiff vulnerable to more rapid wear of the medial femorotibial articular surfaces.[53] Mr Hart was of the opinion that the partial medial meniscectomy might result in acceleration of degenerative changes in the medial compartment, but was unlikely to affect the patellofemoral joint.[54] Mr Maclean was of a similar opinion to both Mr James and Mr Hart, describing the process as one of progression or furthering of those pre-existing degenerative changes.[55]
· The plaintiff is at some risk of tearing the ACL reconstruction. Mr James considered that to be a 5 per cent risk.[56] Mr Maclean considered that with ACL insufficiency, the plaintiff might suffer episodes of instability which might result in further meniscal or chondral pathology requiring arthroscopy, and with the progression of degenerative changes, he is at an increased risk of requiring a total knee replacement.[57]
[53]PCB 35
[54]PCB 69
[55]PCB 53
[56]PCB 35
[57]PCB 53
70 I have undertaken the foregoing analysis in order to determine what pathology resulted from 2005 right knee injury.
71 I find that the plaintiff had several pre-existing problems in his right knee – the degeneration in the medial compartment and patellofemoral joint of the plaintiff's right knee, and laxity of the PCL.
72 I find that the injuries which the plaintiff did suffer as a result of the 2005 right knee injury are – the bucket-handle tear of the medial meniscus and the disruption of the ACL. I find that as a result of the resection of the medial meniscus, that it created a setting for the progression or furtherance of the degenerative changes which existed at that time in the plaintiff's right knee. I also find, based upon the opinion of Mr McLean, and to some extent in the opinion of Mr James, that the plaintiff is suffering laxity in his right knee partly due to laxity in the ACL.
73 I also accept the evidence of Mr McLean that the ACL insufficiency and instability renders the plaintiff vulnerable to an incident which might result in further meniscal or chondral pathology which could lead to the necessity for an arthroscopy, and in the long term perhaps a total knee replacement.
The Plaintiff's Evidence
74 The reason why I have set out the plaintiff's working history from 1986 to 2005 is because it demonstrates that the plaintiff was able to overcome the initial injury to his right knee satisfactorily. He was able to return to strenuous labouring work of the kind which I have summarised above. Of itself, it demonstrates that his knee was functioning satisfactorily and he was capable of sustaining the stresses and strains associated with that work.
75 The thrust of very careful and detailed analysis of the medical evidence undertaken by Mr Moulds and Mr Mighell is that it is ultimately for the plaintiff to demonstrate, on the balance of probabilities, firstly, what the impairment of function is resulting from the 2005 right knee injury, and secondly, what are the consequences which flow from that impairment.
76 I am satisfied of the following:
· The plaintiff suffered a bucket-handle tear of the medial meniscus and a disruption of the ACL. The consequences of that degree of damage necessitated a resection of the medial meniscus, with the result that the plaintiff will suffer progression or furtherance of the pre-existing degenerative changes in his right knee.
· The plaintiff is suffering from a level of instability in his right knee. He reported that to Mr James,[58] and to Mr McLean, to whom he described his right knee as being a “little iffy”.[59] In his oral evidence, the plaintiff described a sensation of having niggles in his right knee and having a feeling as if it was going to collapse.[60] He later described it as a feeling that his knee wobbles on him and feels like it is going to collapse.[61]
[58]PCB 36
[59]PCB 48 and 52
[60]Transcript 52
[61]Transcript 54
· The plaintiff suffers from swelling about once a week. The swelling occurs when he does a day’s work; or suffers a twisting of his right knee, or suffers a niggling in his right knee. When the plaintiff’s knee swells, he will go home, lie down and put some ice on his right knee.[62]
[62]Transcript 51-52 and PCB 26B
· The plaintiff takes Nurofen for pain relief. He said that he takes it mainly for his right knee, and when it swells up.[63]
· The plaintiff worked two to three days per week in his business as an arborist. He said that he is limited to working only two to three days partly because of the right knee injury and partly because of the left shoulder injury and the left knee injury.[64] Mr Moulds showed the plaintiff the films and then cross examined him at some length regarding the actual work which he undertakes in his business. There is no doubt that the plaintiff is on his feet for a lot of time when he works. He is capable of kneeling on his right knee, as was shown in the films.[65]
[63]Transcript 38
[64]PCB 26B; Transcript 51
[65]Transcript 49
77 There can be no doubt that the plaintiff also suffers interference in his capacity to work and engage in social, recreational and domestic pursuits because of the injuries to his left shoulder and his left knee. The plaintiff candidly admitted that during cross examination.
78 Mr Mighell submitted that I should accept the plaintiff as a witness of truth. I do not doubt that he gave his evidence in a straightforward manner and with great candour. I accept his evidence in whole. Whilst the medical evidence demonstrates the pathology resulting from the 2005 right knee injury, the extent to which the injury has impaired the function of the plaintiff's right knee with pain and suffering consequences can only really be determined from the evidence of the plaintiff.
79 Accepting the plaintiff's evidence as I do, I am satisfied that each of the matters referred to in paragraph 76 above demonstrate that the plaintiff has suffered pain and suffering consequences which I think meet the statutory test of seriousness. I think to have suffered a meniscal tear requiring resection which exposes him to progression or furtherance of degenerative changes in the future, exposing him to the risk of major surgery in the future, is a matter of great significance. I think the fact that he has laxity in the ACL which is contributing to the overall laxity in his right knee to which the PCL contributes, is a matter of great significance. I think the laxity in the ACL is partly the cause of the niggles and wobbling which the plaintiff experiences, and I think that is a matter of great significance. I think the fact that he runs the risk that the instability may result in further injury is a matter a great significance. I think the fact that he resorts to taking medication, which to some extent is due to pain and swelling he has had his right knee, is a matter of great significance. Whilst it is clear that his left shoulder is the major cause of his incapacity for work, the injuries to his right knee and left knee also contribute. I think, as a matter of logic and commonsense, the plaintiff would be more able to cope with his work if he did not have the deficits produced by the 2005 right knee injury.
80 I do not have much doubt that the plaintiff is a stoic. On each occasion that he has suffered what appears to be a disabling injury he has literally picked himself up and kept going. In Dwyer v Calco Timbers Pty Ltd (No 2),[66] Nettle JA, in referring to a stoic, may well have been referring to the plaintiff in this proceeding, when he said:
“Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[67]
[66][2008] VSCA 260
[67]Paragraph 3
81 It seems to me, on the basis of the evidence I have reviewed, that there is strong support for the conclusion that the plaintiff suffered injury to his right knee in 2005, described by Mr James, Mr Hart and Mr Maclean, which has caused him pain and suffering consequences, and yet he has put up with those pain and suffering consequences and has got on with his life in all respects as best that he has been able to.
82 I have only considered the injuries produced by the 2005 right knee injury in determining the extent to which they impair the function of the plaintiff’s right knee, and have only considered the injury and that impairment and the consequences which directly flow from that impairment in determining whether the plaintiff has pain and suffering consequences which are “serious”.[68]
[68]This is the focus which a judge must apply, referred to by Ashley JA in Dressing v Porter [2006] VSCA 215
83 It seems to me that the synthesis of the medical evidence and the evidence of the plaintiff points to an inevitable conclusion that he has suffered a major injury to his right knee in 2005 which I think has pain and suffering consequences which are “serious”.
Conclusion
84 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
85 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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