Walker v Heavy Automatics (Vic) Pty Ltd
[2014] VCC 507
•29 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00721
| ADRIAN GRAHAM WALKER | Plaintiff |
| v | |
| HEAVY AUTOMATICS (VIC) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2014 | |
DATE OF JUDGMENT: | 29 April 2014 | |
CASE MAY BE CITED AS: | Walker v Heavy Automatics (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 507 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right knee – identification of the injury – difference in medical opinion as the identity of the injury – sufficient evidence favouring the conclusion that the plaintiff had suffered a Complex Regional Pain Syndrome secondary to a primary injury to the right knee – film – creditworthiness and reliability of the plaintiff – whether the pain and suffering consequences were “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Griffin | Adviceline Injury Lawyers |
| For the Defendant | Ms G Cooper | Wisewould Mahoney Lawyers |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 19 February 2013, the plaintiff seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding at common law to recover damages for injuries he suffered on 5 March 2010 in the course of and within the scope of his employment with the defendant.
2 The plaintiff submitted that he has suffered a permanent serious impairment or loss of the function of his right knee.
3 Mr N Griffin of Counsel appeared for the plaintiff, and Ms Cooper of Counsel appeared for the defendant.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined
· The plaintiff tendered his Court Book (“PCB”) pages 20-82, and from the defendant’s Court Book (“DCB”) pages 42-70: Exhibit A
· The defendant tendered film taken of the plaintiff on 8 October 2013: Exhibit 1
· The defendant tendered film taken of the plaintiff on 30 and 31 May 2013: Exhibit 2
· The defendant tendered its Court Book, pages 7-21 and 34-41: Exhibit 3
· The defendant tendered a report of Dr Seneviratne, neurologist, dated 31 March 2011: Exhibit 4.
The Plaintiff’s background
5 The plaintiff was born in July 1964. He is now forty-nine years of age. After completing his secondary schooling, he entered The University of Melbourne, where he obtained a bachelor’s degree in Mechanical Engineering. He subsequently obtained a PhD in Engineering at Flinders University. He worked in the automotive industry as an engineer, probably in the mid 1980s. He then took up work with his father as a courier over 2005 and 2006. He subsequently worked as an engineer in the automotive industry for about two years, before commencing work with the defendant as an engineer on 1 December 2008.
6 The plaintiff suffered a number of injuries to his right knee before he suffered injury in the course of and within the scope of his employment with the defendant on 5 March 2010.[1] The plaintiff suffered an injury to his right knee in 1985, and subsequently underwent an arthroscopy. He suffered further injury to his right knee in May 2000, from which he made a full recovery. He suffered further injury to his right knee in May 2006, and subsequently underwent a further arthroscopy. He suffered further injury to his right knee on 2 October 2009, and subsequently underwent yet another arthroscopy.
[1]PCB 22-23
7 Each of the arthroscopies was performed by Mr Lowe, orthopaedic surgeon. He is now retired. He was succeeded by Mr Lade, orthopaedic surgeon. The plaintiff saw Mr Lade in November 2009 for treatment for his right knee. Mr Lade treated the plaintiff, and as part of that treatment, he referred him to have an MRI scan.
8 The foregoing is the sum total of the prior problems the plaintiff had with his right knee. He was not cross-examined at all on the condition of his right knee prior to the incident which occurred on 5 March 2010. The defendant accepted that the plaintiff had suffered a compensable injury as a result of what occurred on 5 March 2010.
9 It would appear that despite the extent of the treatment which the plaintiff required for the previous problems with his right knee, he had recovered sufficiently to be able to undertake relatively hard physical work with the defendant, consistent with what he was undertaking on 5 March 2010. Again, no challenge was made to that by the defendant.
The injury
10 On 5 March 2010, the defendant sent the plaintiff to a client's quarry in Albury. He was instructed to repair the transmission of a quarry dump truck. He was instructed to remove the transmission from the truck. In order to gain access to it, he had to crawl around on hard, rocky, cold and wet ground for about four-and-a-half hours. As a consequence, his knees became painful and swollen. His right knee symptoms were worse than his left knee symptoms.
The issues
11 Ms Cooper informed me that the defendant initially accepted that the plaintiff had suffered a compensable injury; however, she submitted that the defendant submitted that the plaintiff had recovered from the effects of the compensable injury.
12 Alternatively, if I found that the plaintiff had not recovered from the compensable injury, that the pain and suffering consequences were contributed to by both the impairment of function of the plaintiff’s right knee, and a secondary emotional reaction. If I found that to be the case, then it was for the plaintiff to undertake the disentangling of one from the other, and to demonstrate that the pain and suffering consequences were substantially caused by the impairment of function of the plaintiff's right knee, and not the secondary emotional reaction.
The medical evidence
13 Mr Griffin and Ms Cooper very helpfully took me through the medical evidence which they each relied upon. They both commenced with the initial treatment provided to the plaintiff by Mr Lade and Dr Vallipuram, and lastly, the opinions of the medical practitioners who examined the plaintiff on a medico-legal basis. I propose to follow the same route.
14 The plaintiff was referred to Mr Lade for treatment. Mr Lade referred the plaintiff to Dr Vallipuram, specialist anaesthetist. In his letter of referral dated 28 April 2010, Mr Lade referred to the injury suffered by the plaintiff on 5 March 2010, observing the following:
“ I found him to have a stiff and antalgic gait with a 5 to 10 degree fixed flexion deformity of his knee. I also found him to be extremely hyperaesthetic over the anteromedial aspect of his knee with grossly wasted quadriceps and flexion was limited to 90 degrees only. Clinically I could find no pathology in his hip nor could I define instability or significant internal derangement clinically in his knee. He has chronic infra-patella skin changes but no evidence of any bursitis.
Hence, I believe Adrian has a complex regional pain syndrome affecting his right knee and would very much value your assessment +/- intervention as I do believe we need to try and break the pain cycle and achieve more range of movement in his right knee.”[2]
[2]PCB 40-41
15 Dr Vallipuram saw the plaintiff probably on 4 June 2010. In his report of that date, he said:
“Presently at the time of consultation with me, the left knee discomfort had settled, but the right knee remained painful. He feels that it was improving and he was able to bend it up to 100 degrees whereas previously he was unable to bend it at all. He said that it was due to diligent exercises etc. The right knee was having temperature changes of hot and then cold, mainly on the inner aspect of his right knee. He also felt that this area was hypersensitive on putting pressure on this area. There is exacerbation of pain too, and when it was bad, he had to sit down and rest. He said that he was unable to stand for more than 5-10 minutes. The pain could be worse at night keeping him awake.
…
Bone scan of the right knee showed infrapatellar bursitis, and right knee ultrasound showed minor prepatellar degeneration.
On examination Mr Walker's right knee was colder than the left; there was an area of hypersensitivity on the medial aspect of his right knee. He also had weakness and wasting of his right quadriceps muscle.
My provisional diagnosis was CRPS type 1 with sensitisation. I have suggested he commence on Gabapentin 300mg tds to be increased to 300mg tabs 2 tds.”[3]
[3]PCB 50-51. CRPS Type 1 is an abbreviation for Complex Regional Pain Syndrome Type 1
16 The plaintiff returned to see Mr Lade. He noted that the plaintiff's situation was much worse. He wrote to Dr Vallipuram on 1 December 2010 and said:
“I reviewed Adrian Walker today and I am afraid he is worse now than my previous review in September. His right knee is experiencing more chronic regional pain syndrome pain even though he is now up to 900mg Gabapentin three times a day. He is also taking Panadeine Forte up to eight per day and he has a very irritable right knee, hypersensitive, with a range from 0 to 90 degrees." [4]
[4]PCB 46
17 Mr Lade asked Dr Vallipuram whether it would be worthwhile providing the plaintiff with intensive inpatient treatment and a ketamine infusion. Mr Lade's last report is dated 20 July 2011. In that report, he referred to the downward spiral in the plaintiff’s symptoms, and a referral back to Dr Vallipuram. However, he noted that he had not received any correspondence from Dr Vallipuram, and that he had not treated the plaintiff again himself. I think it is reasonably clear from the tenor of his report, that at the time he last treated the plaintiff on 1 December 2010, he still considered that the plaintiff was suffering from a Complex Regional Pain Syndrome Type 1.
18 The balance of the medical evidence is then taken up by a number of medical practitioners who examined the plaintiff on a medico-legal basis.
The medico-legal assessments
19 Mr McLean, orthopaedic surgeon, examined the plaintiff on 3 June 2013 and 28 January 2014. He obtained the same histories and examination results, and stated the same opinion in both reports. I propose, therefore, to turn to his last report only. The history obtained of the plaintiff’s symptoms was as follows:
“… He remains with constant pain and stiffness in the right knee, with his good and bad days. The pains remain in the peri and retropatellar aspect of the knee, passing to the medial aspect of the right knee. He is unable to squat or to kneel and has difficulty negotiating stairs and steps, doing one at a time and holding the rail.
Any twist or sudden movement or uneven surface will cause sharper pain in his right knee, that may then take between 10 minutes to 2 hours or more to settle down. He states this is excruciating pain.
He has sharp pain if he turns or rolls in bed at night. He does take medication at night. He is unable to squat or to kneel on that knee.
He is aware of no noises and has no true giving way or locking, but he is aware of occasional swelling if he is on his fee[t] for too long or overdoes activity.”[5]
[5]PCB 67
20 When he first examined the plaintiff, Mr McLean was provided with a number of medical reports, radiological investigations, and an accurate history of the plaintiff’s prior problems with his right knee. It was not suggested by Ms Cooper that Mr McLean was not in a position to make an adequate assessment of the plaintiff’s right knee injury.[6]
[6]PCB 58-62
21 On examination on 28 January 2014, Mr McLean noted that the plaintiff walked with a limp; was unable to squat; had a very limited range of flexion and extension; was tender and hypersensitive over the peripatellar and medial aspect of the right knee to light palpation, but with no joint effusion or other joint abnormality.
22 Mr McLean then expressed the following opinion:
“Right knee, underlying/constitutional low-grade degenerative chondropathy of the medial compartment with evidence of previous partial medial meniscectomy.[7]
…
Aggravated by work injury of March 2010; with resulting development of complex regional pain syndrome type I. Ongoing pain and disability related to the pain syndrome and low grade degenerative change.
Disability remaining because of the pain syndrome with the secondary apprehension and resulting psycho-emotional components.” [8]
[7]PCB 63
[8]PCB 70
23 Mr McLean considered that the plaintiff was only fit for light semi-sedentary type activities, where he was not required to stand for any length of time; walk any distance; perform any twisting, loading, sudden or repetitive movements; or perform any squatting, kneeling or climbing activities.[9]
[9]PCB 70
24 The plaintiff was examined by Associate Professor Hart, orthopaedic surgeon, on 17 December 2012 and 19 February 2014 for the defendant. By the time Associate Professor Hart examined the plaintiff on 19 February 2014, he had been provided with the plaintiff's affidavit sworn 28 September 2012, a number of medical reports and radiological examinations.[10] Among the reports he was provided were reports of Mr Lade, Dr Vallipuram and Mr McLean. He was, therefore, aware that a diagnosis had been made that the plaintiff was suffering from a Complex Regional Pain Syndrome Type I.
[10]DCB 43-44 and 63-64
25 Associate Professor Hart obtained the same history and examination results, and stated the same opinion in both reports. I propose, therefore, to turn to his last report only. The history obtained of the plaintiff’s symptoms was as follows:
“ Mr Walker complains of constant anteromedial pain, which varies from 4/10 to 8/10. The pain is aggravated by twisting, walking on uneven surfaces and by sudden movements. He is unable to squat or kneel. The knee swells over the medial aspect and the swelling can come on spontaneously or sometimes related to activity. There has been no locking, catchable giving way. He also stated there had been no change in the range of movement from when I saw him last.
The knee is sensitive to touch, particularly over the medial side. He is not aware of any colour changes or excessive sweating and he has not noticed that the knee has been hot or cold.”[11]
[11]DCB 65
26 On examination, Associate Professor Hart noted that the examination was significantly limited by sensitivity and discomfort over the medial aspect of the plaintiff’s right knee joint. There was no obvious swelling, nor any detected, range of motion was 15 to 90 degrees actively, and there was tenderness around all margins of the patella, maximally over the medial margin. He was unable to fully assess patellofemoral pain, crepitus and anterior/posterior and mediolateral instability because of discomfort, but he considered that there was no instability in that respect. He noted marked brush allodynia over a wide range around the right knee.
27 Associate Professor Hart considered that there was a functional component involved in the plaintiff’s presentation, and that it was likely that the plaintiff had developed a psychological reaction secondary to the condition of his right knee because of his inability to obtain work. The functional reaction was having a significant effect upon his social and occupational functioning. Despite that the presence of a functional reaction, he said the following:
“With respect to diagnosis, I consider that the injury the worker sustained in the accident on 5 March 2010 was pre-patellar bursitis affecting both knees. The pre-patellar bursitis resolved on the left, but has persisted on the right, complicated by the development of Complex Regional Pain Syndrome Type I.”[12]
[12]DCB 69
28 Associate Professor Hart then commented on the diagnosis made by Mr McLean, noting that Mr McLean did not diagnose prepatellar bursitis. He then said:
“I agree with Mr McLean that the major ongoing problem is the Complex Regional Pain Syndrome Type I affecting the right knee.”[13]
[13]Ibid
29 Associate Professor Hart then recommended that the plaintiff be reviewed by Dr Vallipuram, and that he obtain a second opinion from an expert in the treatment of that condition, such as Dr Peter Blombery, vascular physician.[14]
[14]DCB 65-70
30 The evidence I have just reviewed is consistent with the plaintiff having suffered trauma to his right knee on 5 March 2010, which caused some damage to the knee. Neither Mr Lade nor Dr Vallipuram appear to have diagnosed the underlying pathology in the plaintiff’s right knee. However, by inference, they accepted that the trauma to the plaintiff’s right knee was the cause of the development of Complex Regional Pain Syndrome Type I. Mr McLean considered that it was the underlying pathology which had been aggravated, and Associate Professor Hart considered that the trauma resulted in prepatellar bursitis, which has persisted.
31 The balance of the medical evidence which I will now review is to the contrary.
32 Mr Battlay, general surgeon, examined the plaintiff on 26 March 2010. On examination, he observed the plaintiff to walk with a variable limp, favouring his right leg. He found no quadriceps muscle wasting nor any instability or fluid in the knee. He found tenderness and restriction of movement, but commented that because of the tenderness, he could not examine the plaintiff’s right knee properly. He found no evidence of prepatellar bursitis and was not convinced that the plaintiff had suffered any internal derangement in his right knee. He considered that if the plaintiff had developed prepatellar bursitis, it had long since resolved.[15]
[15]DCB 9-10
33 Mr Battlay was subsequently provided with a report of Mr Lade dated 13 April 2010, and a report of the bone scan. In a supplementary report, which followed the receipt of Mr Lade’s report and the bone scan, he considered that there was no physical basis for the plaintiff’s ongoing symptoms.[16]
[16]DCB 13
34 Dr Kostos, rheumatologist, examined the plaintiff on 25 May 2011 and 19 March 2012. When he first examined the plaintiff, he found limitation of movement and sensitivity to light touch around the right patella. He could not establish any temperature, colour or dystrophic changes. He was aware of the diagnosis of other medical practitioners, that the plaintiff had suffered prepatellar bursitis in both knees, but he was not given any investigations which enabled him to confirm that diagnosis. He did not consider the diagnosis of Complex Regional Pain Syndrome Type I was appropriate. He considered that it did not meet the criteria apparently set by the International Association for the Study of Pain. Lastly, he said that he did not believe that the plaintiff had a physical problem affecting his right knee, and that a better explanation for his presentation was that he was suffering from a Chronic Regional Pain Syndrome; that is, pain in the absence of any physical abnormality.[17]
[17]DCB 16-17
35 On the second occasion Dr Kostos examined the plaintiff, he repeated the same opinion expressed after examining the plaintiff on 25 May 2011. He considered that the plaintiff had a Chronic Pain Syndrome without any features suggesting a Complex Regional Pain Syndrome Type I, and he added that he considered that the plaintiff was in a well entrenched invalid role.[18]
[18]DCB 19-20
36 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 4 November 2011 for the purpose of providing an impairment assessment according to the 4th edition AMA Guides. He referred to the bone scan, which he considered was suggestive of bilateral infrapatellar bursitis, more marked on the right side. He also referred to an MRI scan taken in June 2010, which he apparently did not see, but he saw the report of it. He understood it to show that there was no major intra-articular pathology in the right knee. He considered that prolonged kneeling could result in internal derangement in the plaintiff’s knees, although that was not confirmed on the MRI scans. He then said that he was unable to make a specific orthopaedic diagnosis, but tended to agree with Dr Kostos that the plaintiff’s presentation was not really typical of Complex Regional Pain Syndrome Type I.[19]
[19]DCB 37-38
The Plaintiff’s injury
37 What is apparent from the treatment afforded the plaintiff by Mr Lade and Dr Vallipuram, is that they were convinced, through their examinations and the radiological investigations, that a diagnosis of Complex Regional Pain Syndrome Type I was appropriate. Associate Professor Hart agreed with their analysis of the radiological investigations and their diagnoses.
38 I prefer the evidence of Mr Lade, Dr Vallipuram and Associate Professor Hart to the evidence of Mr Battlay, Dr Kostos and Mr Shannon. My reasons are that Mr Lade appears to have been suspicious that the plaintiff’s presentation to him was consistent with Complex Regional Pain Syndrome Type I. His suspicion was confirmed by Dr Vallipuram, who appears to possess the more direct and particular expertise in the diagnosis and treatment of that condition. Mr Lade was then no longer just suspicious. It would appear that Dr Vallipuram’s diagnosis, that the plaintiff’s presentation was consistent with Complex Regional Pain Syndrome Type I, confirmed for him that his initial suspicion was correct. Associate Professor Hart appears to have taken the same route as Mr Lade and Dr Vallipuram in assessing the plaintiff’s presentation, and analysing the radiological investigations. Associate Professor Hart concluded that the plaintiff’s presentation was consistent with Complex Regional Pain Syndrome Type I.
39 Therefore, I find that the plaintiff presented with symptoms to Mr Lade, Dr Vallipuram and Associate Professor Hart consistent with the development of Complex Regional Pain Syndrome Type I.
The Plaintiff’s consequences
40 The plaintiff swore two affidavits dated 28 September 2012[20] and 18 February 2014.[21] In summary, the consequences claimed by the plaintiff are as follows:
[20]PCB 20-30
[21]PCB 35-39
· Constant pain and stiffness in and around the right knee. The intensity varies. It can be severe and disabling, and at other times a dull ache. The plaintiff said that the pain he experiences is generally 3 to 4 out of 10, but can vary to 8 to 9 out of 10.[22]
[22]Transcript 17
· The pain is aggravated by prolonged periods of standing, walking, and movements such as squatting, kneeling, twisting and bending.
· Persistent swelling, particularly at the end of the day if he has been active or on his feet for a prolonged period of time during the day.
· A feeling of weakness and instability in the right knee. The instability is more pronounced when negotiating stairs, inclines and uneven ground.
· The pain in the right knee interrupts his sleep.
· His inability to play golf at a high level has been interfered with to the extent that he no longer plays golf. He previously played off a handicap of three. On the weekend preceding 5 March 2010, he shot 76 on the Saturday and 74 on the following Sunday.
· The plaintiff continues to see a general practitioner. As a result of the recent death of Dr Rubinfeld, he now sees another general practitioner. He continues to be in receipt of prescriptions for Gabapentin and Panadeine Forte.
41 The plaintiff was shown film, which Ms Cooper submitted demonstrated the plaintiff engaging in aspects of general mobility, which were to some degree in contrast to what he deposed to in his affidavits, and in the early part of his cross-examination.
42 The first film showed of the plaintiff was taken on 8 October 2013.[23] In summary, it showed:
[23]Exhibit 1
· 8.49am – the plaintiff walked down a street.
· Between 8.56am and 9.10am – the plaintiff waited for, and then boarded a bus.
· 9.45am – the plaintiff was on an escalator going down. He then walked around a shopping centre.
· Between 9.50am and 9.56am – the plaintiff sat at a table at the shopping centre eating food. He appeared to cross his left leg over his right leg.
· 9.56am – the plaintiff purchased a Myki ticket. He bent over at one point and as he did so, he moved his right leg inwards in an unusual motion as though he was protecting his right knee.
· 10.35am – the plaintiff appeared to walk into a railway station or bus station.
· 11.33am – the plaintiff was seated on a stool at a bar in a hotel drinking a glass of beer and talking to another man. For most of the time, he had his right leg dangling down. At one point he crossed his right leg over his left leg.
43 The next film was taken on 30 May 2013.[24] It showed:
· Between 8.41am and 8.42am – the plaintiff emerged from his home onto the street. He bent and picked up a newspaper. He placed his right hand on his lower thigh just above the knee as he bent over.
[24]Exhibit 2
44 The next part of the film just referred to was taken on 31 May 2013. It showed:
· Between 8.41am and 8.42am – the plaintiff retrieved a newspaper, performing the same motion as he did on the previous morning, and again placing his right hand on his lower thigh.
· Between 10.11am and 10.27am – the plaintiff walked down a street at what appeared to be a moderate walking pace. He boarded a bus at 10.16am. He alighted from the bus at about 10.23am and walked to a shopping centre.
· Between 10.27am and 10.30am – the plaintiff walked through a shopping centre.
· From 10.31am to about 10.51am – the plaintiff walked through a Woolworth’s supermarket. It was impossible to see what he was actually doing, because the person taking the film was walking behind the plaintiff. The walking motion caused the camera to jump up and down, making it almost impossible to see what the plaintiff was doing. Furthermore, most of this portion of the film was of the plaintiff’s torso.
· 10.51am – the plaintiff walked into a takeaway food shop.
· 10.54am to 10.55am – the plaintiff walked through shopping area and appeared to walk to a railway station or bus station.
45 Under cross-examination, it was put to the plaintiff that he was able to walk without the appearance of a limp, and on one occasion in the bar, he was able to cross his right leg over his left leg. The plaintiff said that he was able to observe some interference with his gait consistent with a limp. He said that he is able to cross his right leg over his left leg. He was cross-examined about other aspects of the films, which I do not consider to be so relevant.
46 It is difficult for me to know what I should make of the films. Firstly, none of the films were shown to any medical practitioners for them to comment on. Whether the movements undertaken by the plaintiff are inconsistent with the histories they took from the plaintiff and their impressions of the interference with his mobility is unclear. Secondly, although there were occasions when I thought the plaintiff was walking at a moderate pace, there were other occasions when he walked slowly, and there seemed to be some hint of the plaintiff taking shorter steps as if there was some interference with his gait.
47 I have compared what I saw on the films with the histories taken by all of the medical practitioners whose reports were tendered into evidence. I am not sure that I can observe any significant conflict between them.
48 I am rather more inclined to accept the plaintiff’s evidence, that what occurred on 5 March 2010 resulted in him suffering injury to his right knee. I accept that the injury is consistent with the diagnosis made by Mr Lade, Dr Vallipuram and Associate Professor Hart. They were certainly convinced that there was some pathology at work which created a setting in which the Complex Regional Pain Syndrome Type I developed and then persisted.
49 I am not persuaded that the secondary psychological reaction of the plaintiff blurs my capacity to determine what injury the plaintiff suffered to his right knee and the impairment of the function which has occurred as a result of that injury. I was referred to Meadows v Lichmore Pty Ltd[25] and to the judgment of Maxwell ACJ (as he was then). His Honour observed that the practice in this Court of determining whether there is a substantial organic basis for the pain and suffering consequences contended for, is not an error of law, and is a practice which is acceptable.[26]
[25][2013] VSCA 201
[26]at [18]-[29]
50 The physical injury to the plaintiff’s right knee saw him seek out medical treatment. Subsequently, it was complicated by symptoms which Mr Lade considered were consistent with Complex Regional Pain Syndrome Type I. That was confirmed by Dr Vallipuram, and later confirmed by Associate Professor Hart. I have followed the path of the development of that diagnosis and its treatment, and have followed the path of the suggested secondary psychological reaction. I do not feel any difficulty in being able to determine what pain and suffering consequences have occurred as a result of the physical injury. I see no need to resort to the so-called process of disentangling.
51 Having arrived at this point, I now need to determine whether the pain and suffering consequences contended for by the plaintiff are at least very considerable. I consider that they are. I accept the plaintiff’s evidence that he has suffered each of the consequences which I summarised in paragraph 40 above. I accept the evidence of Mr Lade, Dr Vallipuram and Associate Professor Hart, that the plaintiff’s presentation is consistent with the diagnosis and the consequences he described to them, and that they are substantially related to the physical injury.
52 The plaintiff has suffered interference with almost every aspect of his daily living. He has pain, restriction of movement, interference with sleep, the need for medical treatment and the need for painkilling medication. Additionally, he has lost a capacity to use a great skill which he possessed, and that is, to play golf at a high level.
53 I am fortified in accepting that the plaintiff has suffered those consequences because of the contents of the affidavits by Steve Costello, sworn on 4 April 2014, and the plaintiff’s partner, Carolynne Marks, sworn 6 April 2014. Both confirm that the plaintiff has suffered significant interference in his capacity to undertake a range of activities because of the impairment of the function of his right knee.
54 The losses suffered by the plaintiff as a consequence of suffering the injury to his knee deserve the description “very considerable”. When I compare what the plaintiff has lost, as opposed to what he has retained, the conclusion I have reached is that what he has lost is a very large part of his social, domestic, recreational and vocational pursuits, which were the essence of his life prior to what occurred on 5 March 2010.
Orders
55 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for pain and suffering for injuries arising out of his employment.
56 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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