Tavendale v The Age Co Ltd

[2009] VCC 642

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION

SERIOUS INJURY

Case No. CI-07-00437

CHRISTOPHER JOHN TAVENDALE	Plaintiff
v
THE AGE COMPANY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15 and 19 May 2009
DATE OF JUDGMENT:	1 June 2009
CASE MAY BE CITED AS:	Tavendale v The Age Company Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0642

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – serious injury application – aggregation of injuries – whether injuries arose out of one incident – whether more than one body function involved – application in respect of pain and suffering and pecuniary loss.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC and	Slater & Gordon Ltd
Mr B McKenzie
For the Defendant	Mr R Gorton QC and	Dibbs Abbott Stillman
Ms C Boyle
HIS HONOUR:

1 In this proceeding, the plaintiff seeks leave pursuant to the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”) to commence proceedings seeking damages for pain and suffering and economic loss arising by reason of the consequences to the plaintiff of an injury which he suffered to his left knee in the course of his employment with the defendant on 14 October 2000 (“the incident”). In the proceeding, the plaintiff alleges that:

• as a consequence of the injury to his left knee he was caused to limp and favour that knee;

• by reason of the fact that he favoured his left knee, his right knee was exposed to additional stress, with the result that he suffered an injury to his right knee.

2          In the proceeding, the impairment of a body function relied upon by the plaintiff is the function of the left knee; alternatively, the function of the left knee and the function of the right knee; alternatively, the function of both lower limbs.

3          No issue arises as to the circumstances in which the plaintiff came to suffer the injury to his left knee to which the plaintiff deposes to in paragraph 13 of his affidavit dated 22 September 2006.[1] An issue does arise however as to the circumstances in which the plaintiff commenced to experience symptoms in his right knee.

[1]             Plaintiff’s Court Book (“PCB”) 8

4          On 12 August 2003, the plaintiff filed a worker’s compensation claim form in which he stated that on approximately 28 July 2003, he developed symptoms in his right knee as the result of the favouring of his left knee by reason of the symptoms from which he suffered in that knee.[2] In an Accident Injury Report dated 12 August 2003,[3] the plaintiff made a similar report as to the onset of symptoms in his right knee, stating:

“Due to overloading the right knee, carrying [the] damaged left knee, [the]

right knee now has similar damage.”

[2]             PCB 33

[3]             PCB 32A

5          The circumstances in which the symptoms in the plaintiff’s right knee arose were expanded upon in the course of the evidence given by the plaintiff, in which the plaintiff described an acute exacerbation of mild symptoms which he was experiencing in his right knee which came on whilst he was walking to a doctor’s appointment. The plaintiff said that after this incident his right knee became a chronic problem for him with the result that at the present time the symptoms in his right knee were posing greater problems for him than those in his left knee.

6          The plaintiff gave evidence that following the injury to his left knee he walked with a limp, and in doing so he “loaded up his right knee”. His evidence in this respect[4] contained the following passage:

[4]             T 52-T 55

“Q:	What do you think caused those symptoms in your right knee before the incident?---
A:	Just the only thing I’d say is loading it up. Everything went on my right knee as far as how I moved. Yeah, I believe – yeah, the – it just – all the time pushing the right knee.
Q:	Now this incident on 12 August, you said you overstepped. What do you mean by that?---
A:	Put too much weight onto the – to pushing, and I went over, which – it’s like bending your knee backwards.
Q:	Why were you putting too much weight on your right knee?---
A:	Because my left. All I doing was, walked, and I went over; because I pushed more on the right. If you look at me at the time that I’m on a step I do a metre or half-a-metre for the right and I’d only do a hop with the left. (sic)
Q:	What do you mean by a hop?---
A:	Well if you took a normal step, my left step couldn’t match it, because it hurt so much. I only do a bit and sometimes then I’d stop and even – lead off again with the right just how I had to get around sometimes. In this case when I stepped, I went over on the knee and I pushed it back in and that was it.”[5]

[5]             See also the plaintiff’s evidence to similar effect at T 33

7          It is submitted on behalf of the defendant that the plaintiff’s injury to his right knee:

• arose by reason of a separate incident to that in which he suffered the injury to his left knee;

• involved an aggravation of a pre-existing osteoarthritic condition which was present in the plaintiff’s right knee, and as such constituted a new injury within the meaning of the Act;

• was not consequential to the injury to the plaintiff’s left knee and was a separate injury which could not be aggregated with the plaintiff’s left knee condition to determine whether the plaintiff had suffered a serious injury by reason of the incident.[6]

[6]             In making this submission, the defendant relied upon the decision of the Court of Appeal in Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511.

The Medical Evidence Relevant to the Causation of the Injury to the Plaintiff’s
Right Knee

8          In the course of the proceedings, the plaintiff’s treating orthopaedic surgeon, Mr Mushtaq Khan, gave evidence and was cross-examined. In a report dated 11 May 2009, Mr Khan had expressed the opinion that:

“As the condition of the left knee, which caused him pain and a limp, persisted over a long period, he had been putting extra stressors on his right knee during this period. As a result of this, his right knee had developed symptoms of chondromalacia patellae and a flare-up of degenerative arthritis in the medial femoral compartment of the joint. This condition had been mildly present pre-existing, but had been considerably aggravated and deteriorated since then as a result of putting extra stressors on the right knee joint to protect the left knee, over a period of time since the injury in 2000.”[7]

[7]             PCB 122

9          Mr Kahn gave evidence:

• That the condition in the plaintiff’s left knee was due to a twisting incident associated with his fall, and that whilst the plaintiff suffered from a pre- existing degenerative condition in his left knee, it was likely that the injury aggravated that condition.[8]

• That the plaintiff made no complaint to him of any symptoms in his right knee until 12 August 2003, notwithstanding regular attendances upon Mr Kahn between November 2001 and that date.[9]

• That following the attendance on 12 August 2003, he wrote a certificate stating that the plaintiff’s right knee became symptomatic by extra weight being placed on the right knee whilst the plaintiff was walking.[10]

• That it was his opinion that pre-existing degenerative changes which were present in the plaintiff’s right knee had become painful and aggravated by the plaintiff putting extra stress on his right knee as he favoured his left knee.[11]

• That simply by reference to his left knee injury alone the plaintiff was not fit to perform the duties involved in his work with the defendant prior to the happening of the incident.[12]

[8]             T 61-T63; T 68

[9]             T 69

[10]           T 72

[11]           T 73. Whilst an issue arose as to the history taken by Mr Kahn as to the onset of symptoms in the plaintiff’s right knee (see the evidence at T 71), the viva voce evidence of Mr Kahn to which I have referred, when considered in the context of the physiotherapist’s report of 13 August 2003, referred to at T 76, reinforces the evidence in favour of the proposition that the plaintiff’s symptoms in his right knee arose as a consequence of the favouring of his left knee when walking.

[12]           T 59

10        When the evidence given by the plaintiff in the course of the application as to the onset of mild symptoms in his right knee and the circumstances in which they were exacerbated, was put to Mr Kahn, he opinion:

“I would consider that he developed the symptoms that’s tenosynovitis due to this episode in the left knee protection putting stressors on the right knee became painful. I would not know whether at the same time he could have, due to uneven stressors on the left knee, he could have put extra stressors on the right knee or not. Still it would be related indirectly. It comes, logically speaking, to the original injury to the left knee.”[13]

[13]           T 78

11        When further questioned as to the relationship between the plaintiff’s injury to his left knee and the continuing symptoms from which the plaintiff suffers in his right knee, Mr Kahn said:

“I think presently it is related. It’s continued to remain symptom- symptomatic and it hopes to consider a direct relationship between the left knee injury and the right knee injury since it has continued to persist.”[14]

[14]           T 78

12        Mr Kevin King, orthopaedic surgeon, in his report dated 30 January 2007, accepted that the incident was substantially responsible for the disability which he found to be present in the plaintiff’s right knee at the time of his examination.[15]

[15]           PCB 77

13        Other than for these two opinions, the medical material upon which the parties rely in this application does not deal with the causation issue which arises between the incident and the onset of symptoms in the plaintiff’s right knee.

Findings upon the Causation and Aggregation Issue

14        In Lu v Mediterranean Shoes (supra), Chernov JA, when considering the effect of the occurrence of two or more workplace injuries in the context of the assessment as to serious injury as required by the Act, commented:

“…But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.”[16]

[16]           at para 26

15        His Honour continued:

“…But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term. …”

16        In the matter before me, the plaintiff is required to establish:

(i)	firstly, that the injury which is relied upon;
(ii)	secondly, that the consequences of that injury in terms of impairment, are “serious” within the definition of the Act.

17        In assessing the issue as to the consequences of the injury, I accept the submission made by Mr Mighell SC on behalf of the plaintiff that if I am satisfied that:

(i)	the plaintiff suffered injuries which arose out of the one incident; and
(ii)	those injuries impair one body function,

the injuries may be aggregated for the purpose of determining whether the
plaintiff has suffered a “serious injury”.

18        There is no issue in the matter that the injury relied upon is that which the plaintiff suffered to his left knee in the incident. Whilst it was contended by the defendant that in these circumstances:

• I am required to consider only the impairment present with respect to the function of the plaintiff’s left lower limb;

• that I should disregard the impairment in the plaintiff’s right lower limb;

• that to consider together the effect of the impairments which are present in both of the plaintiff’s knees would involve an inappropriate aggregation of separate body functions,

I do not accept that submission.

19        I accept the plaintiff’s evidence that the symptoms and disability from which he presently suffers in his right knee arose in the circumstances described by him in his evidence. It is clear from the evidence that the symptoms in the plaintiff’s right knee arose at a time well after the injury sustained to the plaintiff’s left knee in the incident. I am satisfied however that the evidence establishes that the plaintiff’s right knee gradually became symptomatic as the plaintiff was caused to favour his left knee by reason of the presence of symptoms in that knee, and that the symptoms in the plaintiff’s right knee increased dramatically as a result of his knee succumbing to the increased pressure placed upon it in these circumstances. In my opinion, it is appropriate to categorise the plaintiff’s injury to the right knee as arising as a consequence of the injury occasioned to the plaintiff’s left knee because it was caused directly by reason of the fact that the plaintiff, in protecting his left knee following his injury, altered his gait which in turn exposed his right knee to unusual and unnatural pressure with the result that his right knee became symptomatic.

20        In Koceski v Ajellac Transport Pty Ltd & Victorian WorkCover Authority [2006] VCC 1500, His Honour Judge Strong found that the function of both legs, involving as it did standing and walking, should be considered as the one body function. I adopt the reasoning of His Honour as expressed in that case and find that in the circumstances of the present case it is appropriate to regard the function of both the plaintiff’s left and right lower limbs as involving one body function.

21        Finding as I have:

(i)	that the function of the plaintiff’s legs should be categorised as one body function;
(ii)	that the condition in the plaintiff’s right knee arose directly as the consequence of the condition in the plaintiff’s left knee, and as such that both the condition in the plaintiff’s left knee and his right knee arose out of the one incident,

I consider it appropriate, when assessing the consequences to the plaintiff of the injury occasioned in the incident, to consider the combined effect of the incapacity present in the plaintiff’s left knee and his right knee when assessing the effect of the plaintiff’s impairment upon both the plaintiff’s level of pain and suffering and his income earning capacity.

The Consequences to the Plaintiff of his Injury

22        In his affidavit, the plaintiff described the presence of ongoing symptoms of pain in his left knee. He said that he had constant pain around the front and the inside of his left knee which was increased with activities such as standing or walking and particularly by any activity which involved bending, squatting, kneeling or the like. He described the symptoms in his right knee as being aggravated by similar activities to those which caused an aggravation of the symptoms in his left knee.

23        In the course of his evidence the plaintiff said that the pain in his knees prevented him from sleeping for more than four or five hours each night and that he managed his symptoms with the use of Panadol and Panadol Forte when his symptoms were severe.[17] He described his knees as feeling like broken glass was present in his kneecaps. He said that he tended to trip whilst walking on uneven ground. He described the symptoms in his left knee as involving pain which was constantly present. In response to a question as to whether he was ever free of pain in his left knee, he said:

“There are – if I am sitting down, when I first sit down, that’s right, that’s the only time, for a couple of minutes, then it will start to ache, then I’ve got to move.”[18]

[17]           T 25

[18]           T 20

24        He continued:

“When I take me weight off it and I sit down, and then – yeah it comes – it starts on the inside of the knee and I’ve got to massage it, and then I’ve got to move the knee and stand or sit down again.”[19] (sic)

[19]           T 21

25        When asked how long he could sit before he had to change position, the plaintiff said:

“Move me legs and that starts around fifteen minutes, I’ll start to stretch them out in front of me. And if it gets bad I stand and I’ll walk around.”[20] (sic)

[20]           T 21

26        The plaintiff described the presence of similar symptoms in his right knee although he said that in his right knee he was never free from pain and that since the surgery undertaken upon his right knee in June 2008, the symptoms in his right knee have been worse than those which are present in his left knee.[21]

[21]           T 21-T 23

27        The plaintiff described his daily activity in the following terms:

“I get up, have myself breakfast, read a paper, I’ll – depending on the day, I might go over and see how me Mum’s going on. And generally come home and look at four walls. I don’t go to the shopping centres or anything like that. I find it gives me pain in the knees and – look, I just generally look at four walls and go crazy. If I go out and do anything, I find by the afternoon I’ve got to lie down, take the pressure of me knees because there’s problems with them, they’re aching too much.” (sic)

28        When asked how frequently he needed to lie down in the afternoon, he responded:

“I’d say quite honestly three – four days a week.”

29        The plaintiff said that the present disability in his left knee was 70 to 80 per cent of the disability which had been present during the period in which he was performing light work following his return to the workplace after the October 2000 incident.[22]

[22]           T 52

The Medical Evidence

30        There is little dispute within the medical material relied upon by the parties, that the plaintiff suffers from very significant problems in both of his knees.[23]

[23]           With the exception of Mr Brian Davie, who expressed the opinion that the plaintiff was guilty of exaggerating his problems, the general consensus of the medical evidence was that the plaintiff suffered from significant problems in his knees which imposed substantial restrictions to his ability to walk without pain and to engage in unrestricted work. Having regard to my assessment of the plaintiff

31        Mr Jonathan Hooper, orthopaedic surgeon, who examined the plaintiff on 29 May 2008 on behalf of the defendant, opined:

“He will eventually require bilateral knee replacements. He will take three months to rehabilitate from these procedures. These will not necessarily be done simultaneously. The proposed surgery will improve his pain but it may not allow him to get back to his work as an electrician involving squatting and bending. There are no approaches other than surgery that will improve this man’s knee condition. He does have a capacity to do light work at this time.24

32        In his report dated 14 July 2005, Mr Hugh Weaver, orthopaedic specialist who examined the plaintiff on behalf of the defendant, opined:

“As far as the longer term situation is concerned, I anticipate that he might well eventually require to be considered as a candidate for joint replacement surgery to either or both knees.

He would be theoretically capable of retraining for alternate employment, work where he could undertake in part from a seated position; he would have to have the capacity to change his position from seated to standing, throughout the course of the working day, as his symptoms demanded.”

33        In his report dated 19 September 2008, Mr Peter Kudelka, orthopaedic surgeon, opined:

“Ultimately osteoarthritis of the knees will progress to total knee replacement on both sides but should the orthopaedic surgeon decide on high tibial osteotomies this may postpone total knee replacement, perhaps for ten years, particularly if the patient co-operates in weight loss and physiotherapy.

The patient’s bilateral knee injuries affect his work capacity as he cannot stand for prolonged periods, walk for lengthy periods, run, kneel, squat, climb or descent steps, stairs and ladders and walk safely on uneven ground. Restrictions would involve sedentary or semi-sedentary work. He is a qualified electrician and could possibly do bench work repairing electrical equipment or similar. He could also work as a supervisor or trade instructor.”

34        For the purpose of assessing his capacity for work, the plaintiff was examined by Dr Amanda Sillcock, an occupational physician, on 22 April 2009. Dr Sillcock expressed the following opinion as to the plaintiff’s capacity for work:

as a person who did not exaggerate his symptoms and the difference between the opinion of Mr Davie, who was of the view that the plaintiff was exaggerating his symptoms, and the balance of the other medical evidence which does not support that view, I do not accept the opinion of Mr Davie.

1. Report dated 29 May 2008, page 4

   “In my opinion Mr Tavendale is unfit to undertake his pre-injury employment or any electrical work. He has a theoretical capacity to undertake work that is sedentary in nature but which allows him to move around as necessary. Unfortunately he has no computer skills and his experience has all been in the electrical field. Even if he did have suitable sedentary duties, I do not believe he would be capable of working for more than fifteen hours per week.”[25]

   [25]           PCB 107

   35        In a report dated 30 April 2009, Mr Michael Fogarty, orthopaedic surgeon, expressed similar views to those expressed by Dr Sillcock, commenting:

   “The worker has no capacity for pre-injury employment and very little capacity for any form of employment. I am of the opinion that your client would be capable of part-time work but would advise that this would be no more than twenty hours per week and at very light bench type work. Given his present age, skill and experience, the condition of both knees makes it very unlikely that he would be able to resume any work.”[26]

   [26]           PCB 114

   36        The medical opinions to which I have referred which contain statements from doctors retained both by the plaintiff and the defendant to assess the level of the plaintiff’s disability, present a clear picture of a man who suffers from a substantial incapacity by reason of the condition which is present in his left knee independently of the condition which is present in his right knee. It was for this reason that the defendant directed its submission primarily to the issue of economic loss.

   37        Whilst I have previously made findings that the plaintiff is entitled in this proceeding to rely upon the incapacity which arises by reason of the conditions which are present in both of his knees, it was submitted on behalf of the plaintiff by Mr Mighell SC that the evidence established that the incapacity suffered by the plaintiff in his left knee was sufficient to satisfy the threshold imposed by the Act with respect to both general damages and pecuniary loss.

   38 Having regard to the symptoms from which the plaintiff suffers in his left knee as described by him in his evidence, when considered in combination with the medical evidence that the condition in the plaintiff’s left knee will continue to deteriorate with the result that the plaintiff is likely to require major surgery in the form of a total knee replacement, I am satisfied that the condition in the plaintiff’s left knee alone involves an impairment sufficient to meet the standard with respect to pain and suffering as imposed by s.134AB(38)(c) of the Act.

   Findings as to the Plaintiff’s Capacity for Employment

   39        In making his submission that the incapacity in the plaintiff’s left knee was sufficient to satisfy the threshold with respect to pecuniary loss, Mr Mighell relied upon the evidence given by the plaintiff as to the circumstances of his return to work following the incident,[27] which he described as follows:

   “The medical centre got involved with respect to light duties, the foreman was involved, OH&S was involved and the worker got to the stage where the question was asked ‘Could I do it?’ and if it complied with what the doctor wrote, that’s where it went. And if I could not do it, the work – or I had a problem, I just rang the foreman and someone else would do it. There were 28 electricians in the place all told. They had ample staff.”[28]

   [27]           It was submitted on behalf of the defendant that the plaintiff’s ability to continue in his employment with the defendant until his retrenchment was evidence of a capacity in the plaintiff to do restricted work on a full-time basis.

   [28]           T 32

   40        The plaintiff was asked whether during this period he was “doing a real job”, to which he responded:

   “They paid me.”

   41        He continued:

   “It was light duties. I had situations where the work involved suggested I do – there was – If I felt the work was not light in that respect I, um, challenged the person that gave me the job and it went up to – and we said ‘We’ll go to the medical centre’ so the job was never allocated.” (sic)

   42        The plaintiff acknowledged that this work situation continued notwithstanding the onset of the symptoms in his right knee until his subsequent retrenchment when the defendant discontinued printing from its premises located in the Central Business District.

   43        There was no suggestion that the plaintiff was inaccurate in his evidence or that he embellished his symptoms or the level of his incapacity. Although the plaintiff expressed considerable anxiety about having to give evidence, my impression of the plaintiff was that the answers he provided both in evidence- in-chief and cross-examination were considered, accurate to the best of his ability and truthful.

   44        The plaintiff’s return to work following the incident reflects well, not only upon the plaintiff with respect to his motivation, but upon his employer which effectively introduced a system which allowed the plaintiff to be the best judge of his tolerance to work. In this regard it would seem that the defendant accepted the plaintiff’s assessment as to the activities he could or could not perform, in circumstances in which the work which was offered to him had initially been vetted by the defendant in accordance with the restricted duty certificates which were being provided by the plaintiff’s treating doctors.

   45        Whilst it is suggested that the plaintiff retains a capacity to work in an administrative role, as a supervisor, customer service officer or technical advisor,[29] I accept the plaintiff’s evidence that he has, throughout the course of his working life, eschewed employment positions which required him to engage in supervision or decision-making. When describing his reaction to that type of work, the plaintiff gave evidence that:

   “It’s like now, I get hot under the collar, I worry, can’t sleep and it’s – yeah, it affected me home life as far as – cracking up, I suppose over not sleeping all night.”[30] (sic)

   [29]           See the vocational reports contained within the DCB

   [30]           T 24

   46        The plaintiff also gave evidence that he suffered from high blood pressure and that he had been unable to complete three computer courses which involved a total instruction time of some six hours by reason of the fact that he “just could not cope”.[31]

   [31]           T 23

   47        It was not suggested in the course of cross-examination or in submissions made on behalf of the defendant that the plaintiff had exaggerated the difficulty which he experienced in making decisions within the workplace. I accept the plaintiff’s evidence on this issue and I do not consider it appropriate, when assessing the plaintiff’s retained capacity for work, to include in the range of duties which the plaintiff might be fit to perform, any duties which involved administrative or supervisory work.

   48        In assessing the plaintiff’s present capacity for work, I accept the submission made on behalf of the plaintiff that having regard to his employment history, the range of work which the plaintiff would be capable of performing is limited effectively to hands-on bench type work which employs the skills the plaintiff possesses as an electrician but does not involve supervisory or administrative work.

   49        Mr Kahn, who examined the plaintiff on 26 March 2009, has been involved in the management of the plaintiff’s injury since the plaintiff first presented to him on 26 February 1999. In these circumstances, I am of the opinion that Mr Kahn, an orthopaedic surgeon of considerable experience, is well placed to assess the plaintiff’s present capacity to work. In his report dated 11 May 2009, Mr Kahn expressed the following opinion as to the plaintiff’s capacity for employment.

   “I do not think he is suited for his pre-injury employment on a permanent basis. He could perform alternate duties avoiding excessive kneeling, bending, squatting on his knees, climbing stairs, running or lifting heavy weights. He could perform alternate duties avoiding these activities on a part-time basis working within his capacity.

   50        The assessment of Mr Kahn as to the plaintiff’s capacity to work at the present time is consistent with that of Dr Amanda Sillcock, who examined the plaintiff on 22 April 2009. Given Dr Sillcock’s qualifications as an occupational physician, I am of the opinion that her report provides a persuasive analysis of the plaintiff’s present capacity for work, particularly having regard to the currency of her assessment. In the course her report, Dr Sillcock opined:

   “In my opinion Mr Tavendale is unfit to undertake his pre-injury employment or any electrical work. He has a theoretical capacity to undertake work that is sedentary in nature but which allows him to move around as necessary. Unfortunately he has no computer skills and his experience has all been in the electrical field. Even if he did have suitable sedentary duties, I do not believe that he would be capable of working for more than fifteen hours per week.”[32]

   [32]           PCB 107. I note that this assessment by Dr Sillcock is largely consistent with the assessment undertaken by Judith McKenzie on behalf of the defendant who opined the plaintiff’s working capacity was limited to part-time light work in which he could sit, stand or walk at will – PCB 95

   51        Whilst it might be said that, following his return to work after the incident, the plaintiff was performing a real job in that he was undertaking tasks which were of assistance to the defendant, I do not consider that the circumstances in which the plaintiff worked following the incident provide any real measure of his capacity to work in other than an extremely protected environment. In these circumstances, I am not persuaded that the fact that the plaintiff performed full-time light duties in his employment with the defendant following the incident, is in any way a measure of the plaintiff’s true capacity to work then or at the present time if the incapacity present in his left leg is considered independently of the incapacity present in his right leg.[33]

   [33]           Whilst the plaintiff gave evidence that there has been some improvement in the condition in his left knee when compared with its condition whilst he was employed in light work following the October 2000 incident (see the evidence at T52), the description given by the plaintiff as to the symptoms from which he suffers in his left knee at the present time, to which I have previously referred, leads me to the view that the marginal improvement described by the plaintiff in the condition in his knee would not significantly impact upon his capacity for work in a positive sense.

   52        It is clear that the injury to the plaintiff’s right knee increases his employment incapacity when compared with the employment incapacity which arises by reason solely of the injury to his left knee. In my opinion however, when the employment incapacity caused to the plaintiff by the condition which is present in both his lower limbs, is compared with the employment incapacity which arises by reason of the condition in the plaintiff’s left knee, the former incapacity is only marginally greater than the incapacity caused by the condition in the plaintiff’s left knee.

   53        In practical terms I am satisfied that:

• the injury to the plaintiff’s left knee alone has incapacitated him from performing duties other than those involved in sedentary bench type work, but that in the absence of the injury suffered by the plaintiff in his right knee, the plaintiff would be likely to be able to perform those activities on a full-time basis;

• that the effect of the injury to the plaintiff’s right knee when added to the disability associated with the injury to his left knee, has been to reduce the capacity which the plaintiff would otherwise have had, to a level at which he is now fit only to perform duties of the type described by Dr Sillcock and Mr Kahn only on a part-time basis.

54        It is submitted on behalf of the defendant that I should consider the plaintiff’s “without injury” earnings for the purposes of the Act by employing the figure of $76,398.00, this being the plaintiff’s earnings during the 2002-2003 financial year. Whilst the plaintiff submitted that the figure of $86,413.00 should be employed for the purpose of undertaking this assessment:

• having considered the plaintiff’s income stream during the three years before the accident in October 2000 and the three years thereafter; and

• having taken into account the gross income which the plaintiff was capable of earning during the period to which I have referred,

I am of the opinion that the figure relied upon by the defendant, namely $76,398.00, appropriately represents the plaintiff’s earning capacity had his injury not occurred. This gross income per annum represents a weekly gross income of $1,469.00 which, when reduced by 40 per cent, results in a figure of $881.51 per week.

55        For the reasons to which I have earlier referred, in assessing the effect which the accident has had upon the plaintiff’s earning capacity, I accept the submission made on behalf of the plaintiff that the plaintiff’s present capacity should be measured by the income which he would receive whilst employed in light bench-type work, in which the plaintiff would be paid at a rate of $14.31 per hour.[34] The plaintiff’s earning capacity when measured on that basis whether considered solely by reason of the incapacity which the plaintiff suffers from in his left knee[35] or, on the basis of the combined incapacity which the plaintiff suffers by reason of the conditions present in both his left and right knees,[36] clearly establishes the fact that the plaintiff has suffered a loss of earning capacity of more than 60 per cent of the gross income from personal exertion which the plaintiff would have received had his injury not have occurred.[37] In the circumstances, I am satisfied that the plaintiff has established his entitlement to commence proceedings to recover damages for economic loss by reason of the consequences of the injury suffered to his left knee in the incident.[38]

[34]           PCB 116

[35]           The plaintiff’s weekly earnings if employed in light bench-type work at a rate of $14.31 per hour would be $543.78 on the basis of a 38-hour week.

[36]           The plaintiff’s weekly earnings if employed in light bench-type work at a rate of $14.31 per hour would be $2386.61 on the basis of a 20-hour week.

[37]           This is the case whether the impairment as the result of the injury to the plaintiff’s left knee is considered separately or whether the conditions which are present in both the plaintiff’s left and right knee are aggregated and the resulting impairment is considered.

[38]           Having regard to the plaintiff’s age, his employment history which was confined to hands-on electrical maintenance work, the problems the plaintiff had encountered during the course of his working life if he was asked to instruct or to supervise other workers and his failure to be able to complete even a relatively simply computer course, when considered in the context of the pain from which he suffers by reason of the condition in his knees, I am not of the opinion that there are any real prospects of the plaintiff being rehabilitated or retrained in a manner which would improve in any meaningful way the residual work incapacity which I have found him to possess.

56        I am of the opinion that the finding which I have made as to the plaintiff’s loss of earning capacity requires me to grant the plaintiff leave to commence proceedings to recover damages for both pain and suffering and loss of earnings. In doing so I endorse and follow the judgment on this issue of His Honour Judge Ross in Patterson v Burbank Plumbing & Maintenance Services Pty Ltd.[39]

[39] [2007] VCC 1527

57 On the basis of the foregoing reasons, findings and conclusion, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries and pain and suffering and loss of earning capacity arising by reason of the injury suffered by the plaintiff in the course of his employment on or about 14 October 2000.

58        After discussion with counsel, I will pronounce formal orders and hear the parties on the question of costs.

- - -