Williams v VWA
[2024] VCC 2078
•20 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-01086
| Andrew Williams | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Judge Ginnane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2024 | |
DATE OF JUDGMENT: | 20 December 2024 | |
CASE MAY BE CITED AS: | Williams v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2078 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION -
Catchwords: Serious Injury Application – right knee injury – aggravation – pre-existing arthritis – whether aggravation continuing to account for pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, ss 335, 325(1), 5(1).
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Casarotto v Australian Postal Commission (1989) 86 ALR 399; Commonwealth of Australia v Beattie (1981) 35 ALR 369; Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Federal Broom Co Pty Ltd v. Semlitch (1964) 110 CLR 626; Humphries v Poljak [1992] 2 VR 199; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Long v Kmart Australia Ltd [2016] TASSC 6; Maimonis v Bourke [2019] VSCA 302; Sabo v George Weston Foods [2009] VSCA 242; St Mary School v Askwith [2011] VSCA 90; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; Tippett v Australian Postal Corporation [1998] 27 AAR 40.
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Slater and Gordon |
| For the Defendant | Mr C Miles | Wisewould Mahoney |
HIS HONOUR:
Introduction
1.Pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate for pain and suffering. The Particulars of Injury relied on are:
(a) Aggravation of pre-existing osteoarthritis in the right knee; and
(b) Anxiety and Depression.[1]
[1]Although not abandoned at the hearing, it was not pursued in the hearing and no evidence was adduced on it.
Relevant Legal Principles – Serious Injury
2.The Court must not give leave to a plaintiff unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.
3.Paragraph (a) of the definition of “serious injury” contained in section 325(1) of the Act reads:
“Serious injury” means –
(a) permanent serious impairment or loss of a body function; or
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder…
4.To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[2]
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future;”[3]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function or the mental disturbance or disorder “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable.”[4]
[2]Section 5(1)(a) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon”).
[3] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [111].
[4] Section 325(2)(c) of the Act.
5.The requirement of a plaintiff to satisfy these elements in his or her specific case is sometimes referred to as the “narrative test”.
6.In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, when viewed objectively, arising from the injury.
7.In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury;”[5]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[6]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
[5] Section 325(2)(h) of the Act.
[6] Section 325(2)(j) of the Act.
[7] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
8.The question of whether an injury satisfies the narrative test is largely a question of impression or value judgement.[8]
[8]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 (Dodds-Streeton JA); see also Sabo v George Weston Foods [2009] VSCA 242, [67].
9.In TTB SMS Pty Ltd v Reading,[9] Tate and T Forrest JJA emphasised the following considerations on the hearing of a pain and suffering serious injury application, and these are:
(a) serious injury means permanent serious impairment or loss of a body function;[10]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[11]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[12]
[9] [2020] VSCA 203.
[10] Section 325 of the Act.
[11]Section 325 of the Act. This formulation picked up the language in Humphries v Poljak [1992] 2 VR 199, which concerned similar provisions in the Transport Accident Act 1986.
[12]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27].
10.When a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he or she must establish at the date of the decision is:
(a) he or she has sustained a loss of earning capacity of 40 per cent or more; and
(b) he or she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
The Documentary Evidence
11.The plaintiff relied on the following evidence:
(a) Two Affidavits of the plaintiff dated 27 September 2023 and 10 September 2024;[13]
(b) Medical Panel Opinion dated 22 August 2022;[14]
(c) Imaging and radiology, including:
·Monitor X-ray Radiology Report dated 12 March 2001;
·Diagnostic Imaging Report of Right Knee and Distal Femur dated 22 March 2013;
·X-ray of Right Knee dated 24 April 2018;
·X-ray of Right Knee dated 20 May 2019;
·X-ray of Right Knee dated 4 May 2020; and
·Long Leg Views dated 4 May 2020.[15]
[13] Exhibit P1, Plaintiff Court Book (“PCB”) 10-18.
[14] Exhibit P2, PCB 27-36.
[15] Exhibit P3, PCB 37-42.
(d) Operation Report of Mr Robert Wood dated 12 March 1999;[16]
(e) Report of Associate Professor Gary Neilson dated 15 August 2024;[17]
(f) Report of Dr Siva Chandrasekaran dated 7 February 2022;[18] and
(g) Two reports of Mr Ash Moaveni dated 14 November 2023 and 18 January 2024.[19]
[16] Exhibit P4, PCB 43.
[17] Exhibit P5, PCB 44-57.
[18] Exhibit P6, PCB 58-63.
[19] Exhibit P7, PCB 64-77.
12.The defendant tendered the following evidence:
(a) Pinkerton Surveillance report dated 23 September 2024;[20]
(b) Four reports of Associate Professor Raphael Hau dated 14 November 2018, 20 February 2019, 20 May 2019, and 4 May 2020;[21]
(c) Report of Aaron Gandecha dated 22 April 2024;[22]
(d) Burgundy Street Family and Harmony Family Clinic extracts;[23]
(e) Maximise Physiotherapy Clinical extracts.[24]
[20] Exhibit D1.
[21] Exhibit D2, Defendant Court Book (“DCB”) 8-11.
[22] Exhibit D3, DCB 12-13.
[23] Exhibit D4, DCB 14-34.
[24] Exhibit D5, DCB 35-41.
The Plaintiff
13.The plaintiff is 62 years of age. He left school at about the age of 15.[25] He has worked as a welder, and for a period of time as a truck driver, and has worked on the wharfs and as a labourer and a rigger on construction sites.[26] He commenced employment with the defendant in about August 2015.[27]
[25] Exhibit P1, PCB 10.
[26] Exhibit P1, PCB 10-11.
[27] Exhibit P1, PCB 11.
The Injury
14.On or about 13 April 2018, while he was working on a building site in Greensborough, the plaintiff needed to move a pump so it could be picked up by a forklift operator. In order to perform the task, the plaintiff said he was standing on the back of a utility from which he then had to jump off so as to avoid being dragged by the forklift and, in doing so, he jarred his right knee.[28] It was not contested at the hearing that the plaintiff suffered injury from the incident.
[28] Exhibit P1, PCB 11-12.
The Pre incident Medical History
15.The plaintiff has unfortunately experienced a number of unrelated injuries occurring prior to the work injury, the subject of this application. An injury dating back to about 1988 appears to have been the cause of a diagnosed degenerative arthritic condition.
16.In 1985 the plaintiff suffered a compressed fracture of his thoracic spine on a motorbike accident and from which he said he made a full recovery.[29]
[29] Exhibit P1, PCB 11.
17.In about 1998, he suffered a break of his right femur above his knee in the sky diving accident I referred to, and it resulted in surgery that involved inserting a plate in his right leg with its subsequent removal in approximately 2001. He said following this injury he was able to bend his right leg up to about 120-125[30] and he was also able to resume his motorbike riding that he enjoyed a great deal.[31]
[30] Ibid.
[31] Ibid.
18.In about 2009 he injured his left shoulder while using a jackhammer. He had an injection into his shoulder and he said he made a good recovery.[32]
[32] Ibid.
19.In about 2012 he fractured his right clavicle when he came off a motorbike, but again he said he made a good recovery and was able to resume his motorbike riding.[33]
[33] Ibid.
The Issues
20.The issues that the defendant contended present for determination in this application are:
(a) Disaggregating the effects of the plaintiff’s other injuries; and
(b) Whether the plaintiff more probably than not has come to his present and likely future condition for his right knee because of his degenerative arthritis and irrespective of the work injury.
The Plaintiff’s Affidavit Evidence
Events Following the Work Injury
21.The work injury occurred on a Friday. The plaintiff said his knee was sore afterwards but he continued working the balance of the day. Over the course of the weekend, pain in his right knee worsened and the knee began to swell. He said he reported his injury to his supervisor, and although he went into work on the Monday, his knee pain worsened. The next day he saw his GP, Dr Idman Ng, at Health Monitor Medical Centre in Heidelberg who referred him for x-rays and who also provided him with some pain relieving medication. The plaintiff submitted a WorkCover claim. The claim was accepted. He was also referred to Associate Professor Raphael Hau, an orthopaedic surgeon. In September 2018 he had an injection into his right knee. He was referred for physiotherapy.[34] He was advised by his orthopaedic surgeon that he would need a total knee replacement but it was recommended that he delay surgery as long as possible.
[34] Exhibit P1, PCB 12.
22.The plaintiff continued working for his employer until it ceased business in about the middle of 2018. [35]
[35] Ibid.
23.The plaintiff next commenced working as a form worker with Form 8 Constructions, where he was employed as a gantry and crane operator, and was subcontracted out to another company with whom he worked on a full-time basis until about August 2022, and throughout this period of time he continued to carry the effects of his right knee injury.[36]
[36] Exhibit P1, PCB 12-13.
24.In about late 2022, the plaintiff departed Melbourne to reside permanently in Cairns.[37]
[37] Exhibit P1, PCB 13.
25.In about May 2023, he commenced employment as a truck driver for a company with whom he continues to work on a full-time basis.[38]
[38] Ibid.
26.The plaintiff has not seen a doctor regularly since leaving Melbourne for Cairns in late 2022.
27.The plaintiff says he uses Voltaren gel daily. He applies it most mornings and, more recently, he has reverted to applying it most nights so as to relieve some of his pain. He said he takes Panadol, four times a week, and takes three tablets on each occasion.[39]
[39] Exhibit P1, PCB 13.
28.The plaintiff says he tries to put up with pain as best he can until such time as a total knee replacement surgery is inevitable.[40]
[40] Ibid.
29.The plaintiff says he experiences constant pain in his right knee. It is a sharp pain and is felt in the side of his right knee and he feels pain under his kneecap if he tries to walk too far, or if he walks on uneven ground and his knee twists. He says his right knee constantly swells. He says he walks with a more pronounced limp than he did before the accident. He said his right knee pain is aggravated if he sits for too long, and his right thigh goes to sleep on occasions. He said that his right knee pain is aggravated when getting into and out of his work truck.[41]
[41] Ibid.
30.The plaintiff said that prior to his injury with his employer he had been able to perform work as a rigger and that the duties required an ability on his part to climb up and down ladders, navigate going up and down stairs and unloading trucks at building sites. He said when performing these activities, he would experience “an occasional twinge if I bent my right knee too far, however this pain would generally only last a day also.”[42]
[42] Exhibit P1, PCB 11, at paragraph [10].
31.Prior to the work injury, the plaintiff said he could ride his motorbike, which was something he said he did each work day.[43]
[43] Exhibit P1, PCB 11.
32.He said that before the work injury, he walked with a slight limp but it is now much more pronounced.[44]
[44] Exhibit P1, PCB 13.
33.He said his pain is aggravated if he walks greater than 100 metres.[45]
[45] Ibid.
34.He said his sleep is disturbed most nights by pain in his right knee and he places a pillow between his legs, although when he rolls over on his right knee during the night, he is woken because of pain. He described that in the morning his right knee is often very sore and stiff, and he rubs Voltaren gel into it to warm it up and to help him get moving.[46]
[46] Exhibit P1, PCB 13.
35.As a result of the right knee injury, he said his bending it is very limited and he can only flex it up to about 80 to 90° with the result that he can no longer ride his motorbike. He said he used to ride the bike to work most days.[47]
[47] Exhibit P1, PCB 13-14.
36.The plaintiff said that before the injury to his right knee he also rode a pushbike 2 to 3 times a week, and he attended the gym and swimming pool. He said he no longer rides a pushbike because of the limited flexion in his right knee, and he can no longer attend the gym also because of the injury to the right knee, and he also said he no longer runs or jogs because of the condition of his right knee.[48]
[48] Exhibit P1, PCB 14.
37.The plaintiff said that because of the state of his right knee, he struggles with undertaking household chores. He said he still has to attend to them because he lives alone, but it is a struggle, and it takes him longer to attend to and complete them. He said he still mows his lawn but he needs to take regular breaks and do it takes much longer than was the case before the injury.[49]
[49] Ibid.
38.Prior to the injury, the plaintiff said he regularly enjoyed scuba diving but he now has great trouble pursuing it because of the need to carry all the heavy kit required of it.[50]
[50] Ibid.
39.In his second affidavit sworn 10 September 2024, the plaintiff corrected the statement contained in his first affidavit where he deposed that he rode his motorbike to work every day. He stated he should have said that he rode it to work “most days”. The plaintiff also said that despite having deposed in his first affidavit that he no longer runs or jogs because of the injury to his right knee, he did not intend to convey the impression that he ran or jogged for exercise before he suffered the right knee injury, but instead, that since the injury to his right knee, he can no longer run or jog at all.[51]
[51] Exhibit P1, PCB 15, [2].
40.The plaintiff said that he continues to be employed as a truck driver on a full-time basis and works 45 to 50 hours a week. The job involves him driving a truck and operating a water blasting hose .[52]
[52] Exhibit P1, PCB 16, [3].
41.The plaintiff says he has a local GP in Cairns but he does not see him often, if at all, for his right knee. He said his orthopaedic surgeon, Associate Prof Hau, told him some time ago, that there was nothing that could really be done for his right knee other than at some stage in the future needing a total knee replacement.[53]
[53] Exhibit P1, PCB 16, [4].
42.The plaintiff said he is takes up to 10 Neurofen tablets a day, on about 6 days a week, for right knee pain. He still massages Voltaren gel into his right knee twice a day.[54]
[54] Exhibit P1, PCB 16, [6].
43.He said his regular level of pain at the start of a day is 2-3/10, but by the end of a working day, after prolonged walking, or getting in and out of his truck, the pain is more 8 or 9/10.[55] He said the knee pain is aggravated by any repetitive strain placed on it, such as prolonged walking, walking on uneven ground, walking up or down stairs or getting into and out of his truck.[56]
[55] Exhibit P1, PCB 16, [7].
[56] Exhibit P1, PCB 16, [8].
44.He described his right knee pain aggravation or flareup of knee pain as accompanied by a sharp pain that shoots up into his right knee with the pain feeling as if someone is sticking a needle or sharp knife into the side of it. He said he experiences this type of pain whenever the knee pain is aggravated. [57]
[57] Exhibit P1, PCB 16, [9].
45.The plaintiff said his walking capacity is now more limited than a year ago, and his right knee pain is now aggravated by walking greater than 30 to 40 metres.[58]
[58] Exhibit P1, PCB 17, [10].
46.He said his sleep remains disturbed most nights. He continues to sleep with a pillow between his legs and his knee pain still frequently disturbs his sleep.[59]
[59] Exhibit P1, PCB 17, [11].
47.He still cannot ride his motorbike at all because of the limited flexion in his right knee and nor can he ride his pushbike or attend gym or run or jog at all.[60]
[60] Exhibit P1, PCB 17, [13]-[14].
48.He continues to struggle with house work because of the right knee injury. He purchased a ride on mower because of his inability to push a stand up mower due the condition of his right knee. [61]
[61] Exhibit P1, PCB 17, [15].
49.The plaintiff said he has still not been scuba diving which he used do most weekends but he has snorkelled once, which he did a few weeks ago.[62]
[62] Exhibit P1, PCB 17, [16].
50.The plaintiff said that he bought a dog in the last 12 months but that he struggles to walk it very far because of right knee. He said he takes the dog to a dog park about once or twice a week and lets her off her leash to run around.[63]
[63] Exhibit P1, PCB 17, [17].
The Plaintiff’s Medical Evidence
The Medical Panel Opinion
51.A Medical Panel Opinion dated 19 July 2022 concluded that the plaintiff was suffering from right knee dysfunction due to a persisting aggravation of osteoarthritis, relevant in part to the accepted right knee injury, and in part to the unrelated past united fracture of the distal third of the femur (the sky diving injury from 1998).[64]
[64]Exhibit P2, PCB 77.
52.The Panel found that due to the nature of the plaintiff’s physical injury and the length of its history, his physical condition had substantially stabilised and was unlikely to remit regardless of medical treatment.
53.The Panel found that the plaintiff’s noted leg length difference and the femorotibial alignment with pseudo-laxity of the medical collateral ligament, were due to his previous fracture of the thigh from 1998, and the pseudo-laxity of the medial collateral ligament was pre-existing, and unrelated to the aggravation of osteoarthritis relevant to the accepted right knee injury.
Mr Robert Wood
54.Mr Robert Wood is an Orthopaedic Surgeon, whose operational report dated 12 March 1990 noted an absence of signs of arthritis in the right knee.
Associate Professor Nielsen
55.Associate Professor Nielsen is a General Orthopaedic Surgeon and he provided a report to the plaintiff’s solicitors dated 15 August 2024.[65] He examined the plaintiff in Queensland on 2 August 2024. A/Prof Nielsen took a history from the plaintiff including the work injury of 13 April 2018. I note that the history he obtained of the injury, together with the account of a worsening of pain over the course of the weekend that followed the injury, largely accords with the plaintiff’s affidavit.[66]
[65] Exhibit P5, PCB 44.
[66] Exhibit P5, PCB 46-48.
56.Over time the plaintiff explained that he had ongoing right knee pain and that he came to see a doctor, had x-rays of his right knee and a referral to Professor Raphael Hau, Orthopaedic Surgeon in August 2018, who diagnosed the plaintiff with a work-related aggravation of arthritis of the right knee.[67] Prof Hau believed that the injury from 1998 in which the plaintiff sustained a closed fracture to his right distal femur in a skydiving accident and that required internal fixation, had led to him developing a symptomatic arthritis in his right knee due to a femoral malunion.[68]
[67] Exhibit P5, PCB 46.
[68] Ibid.
57.Prof Hau recommended the plaintiff increase his anti-inflammatory medication and also recommended physiotherapy.[69]
[69] Ibid.
58.A/Prof Nielsen noted that Prof Hau saw the plaintiff on 25 September 2018 at which time he administered a hyaluronate injection into the right knee to alleviate pain. The plaintiff told him that it had helped settle the pain and that he still was obtaining some benefit from it .[70]
[70] Exhibit P5, PCB 46-47.
59.Prof Hau followed up with the plaintiff regularly, but in the longer term, he thought that he was likely to require knee replacement surgery on the right side because of the probable progression of his arthritis.[71]
[71] Exhibit P5, PCB 47.
60.A/Prof Nielsen said that the plaintiff continues to suffer ongoing anteromedial knee pain involving his right knee and he was taking approximately 8 Neurofen tablets each day, which was what enabled him to continue working. The plaintiff told A/Prof Nielsen that he was not receiving physiotherapy to his knee or undertaking any other treatment.[72]
[72] Ibid.
61.A/Prof Nielsen recorded that the plaintiff with constant ongoing right knee pain of a maximum 9/10 and 2/10 at best. Various activities exacerbate the pain and he said he had an exercise tolerance of approximately 300 metres before he needs to rest to relieve exacerbations of pain in the right knee. He encounters difficulty walking on uneven ground and he avoids squatting and kneeling. When ascending and descending stairs he uses a handrail. He said he supports himself with a trolley when shopping, and he had noted regular clicking in his knee and has had several episodes of giving way with the right knee and has suffered two falls over the last few months. The plaintiff said that his right knee swells with activity and it has lost a range of motion since his injury. He avoids sleeping on his right side and his sleep is interrupted a couple of times a week because of exacerbations of pain in the knee. He thought the situation with his right knee was slowly worsening with the passage of time. Since the injury and because of the pain in the right knee the plaintiff said he was required to alter his employment from construction work to truck driving.[73]
[73] Exhibit P5, PCB 47.
62.A/Prof Nielsen noted that the plaintiff is independent in self-care, and can perform his home duties although he does them more slowly and less efficiently than before the accident, and he purchased a ride on lawnmower. He has difficulty getting in and out of vehicles, including his work truck, because of exacerbations of pain and a loss of range of motion in the right knee. He described a lifting restriction of approximate 10 kilograms. He avoids long-standing. He said that he had been unable to return to his preinjury hobbies of motorcycle riding and scuba-diving.
63.A/Prof Nielsen noted that the plaintiff had a closed fracture to his right distal femur which was plated in August of 1998. His femur subsequently malunited. He had a plate that was removed in February of 2000.[74]
[74] Exhibit P5, PCB 48.
64.The plaintiff told A/Prof Nielsen that he had minimal symptoms in his right knee prior to the work injury of 13 April 2018.
65.A/Prof Nielsen noted that the plaintiff had sustained T7 and T12 thoracic spinal fractures in a motorbike accident in 1985. He fractured his right clavicle in 2012, and had an episode of shoulder bursitis in 2012. Both these conditions apparently settled over short periods of time, and did not warrant any long term treatment.[75]
[75] Ibid.
66.A/Prof Nielsen reported on examination, that the plaintiff rose slowly from a chair and walked with an antalgic and stiff knee gait, favouring his right side. He had negative trend Ellenberg signs to both hips. He was able to heel and toe walk and could squat to approximately one third normal on the right side. He had normal alignment of his thoracolumbar spine and had a functional range of motion to his lumbar spine. He had a straight leg raise bilaterally to 80° while sitting and normal power and reflexes.[76]
[76] Exhibit P5, PCB 49.
67.The plaintiff had soft tissue swelling around his right knee and there was an obvious varus deformity of that right knee. This was associated with medial pseudo laxity and tenderness over the posteromedial aspect of the right knee. The plaintiff developed pain with patellofemoral grinding. There was altered sensation adjacent to the lateral thigh surgical scar consistent with local sensory loss. He had a 10 degree fixed flexion deformity of his right knee flexing to 85 degrees, as compared to his left knee which ranged from 0 degrees to 135 degrees. He had had equal circumferential measurements of his thighs measured 10 cm above his patellae and his calves at their maximal diameter.[77]
[77] Ibid.
68.A/Prof Nilsen wrote that the plaintiff has ongoing pain and loss of function following a soft tissue injury to his right knee, which aggravated pre-existing asymptomatic degenerative disease in a work related event on 13 April 2018.[78]
[78] Exhibit P5, PCB 50.
69.The plaintiff was unable to bend his knee past 85 degrees and twisting movements. He should avoid stooping. He would be unable to squat, kneel or crouch, given the ongoing pain and his loss of range of motion in his right knee. He had a lifting restriction of approximately 10 kilograms and should avoid heavy pushing and pulling of various items. He is able to drive both a motor vehicle and truck but should avoid prolonged driving such that he is likely to only be able to perform truck driving work in metropolitan areas. He should avoid heavy lifting. He is able to sit for an unlimited period of time but has difficulty with prolonged walking and prolonged standing. He is likely to find significant difficulty going up and down inclines and currently uses a handrail when ascending and descending stairs.[79]
[79] Exhibit P5, PCB 52, [1].
70.A/Prof Nielsen said that in his opinion the plaintiff’s right knee degenerative disease is likely to progress over time which would lead to a significant reduction in his capacity for domestic duties, work, and recreational activities.[80]
[80] Exhibit P5, PCB 53, [5].
71.A/Prof Nielsen recorded that the plaintiff suffered pre-existing arthritis in his right knee, which was aggravated by the work injury, with the arthritic condition likely to continue to deteriorate over time. However, he said that that the deterioration is likely to be due to the pre-existing condition and not the effects of the injury.[81]
[81] Exhibit P5, PCB 54, [6].
72.A/Prof Nielsen thought that the plaintiff would be likely to require a knee replacement within the next five years to manage likely increasing pain and loss of function in his right knee but in the interim he is likely to require a combination of analgesic and anti-inflammatory medication. Further injections of hyaluronate and/or injections of local anaesthetic and celestone injections into his right knee may temporarily delay his requirement to proceed to knee replacement surgery.[82]
[82] Exhibit P5, PCB 54, [7].
73.A/prof Nielsen said that the plaintiff suffered from significant pre-existing asymptomatic osteoarthritis of his right knee which developed subsequent to a malunion of his right distal femur, and which required surgical stabilisation, following his skydiving accident in 1998. He said that prior to the work accident in April 2018, the plaintiff’s right knee was asymptomatic and had been for many years. He said therefore, that the work injury significantly aggravated the pre-existing asymptomatic degenerative disease, and led to the plaintiff needing to alter employment from t a construction worker to a truck driver but that in the longer term he would be unlikely to continue in that role given the nature of his arthritis and the likely progression of that arthritic condition over time.[83]
[83] Exhibit P5, PCB 54-55, [9].
Mr Siva Chandrasekaran
74.Mr. Siva Chandrasekaran is an Orthopaedic Surgeon who provided an opinion to the defendant insurer dated 7 February 2022, but which report was relied upon by the plaintiff.[84] The plaintiff’s medical history and the limitations and restrictions imposed by his knee and the accompanying pain Mr Chandrasekaran recorded the plaintiff had related was substantially in accordance with the plaintiff’s evidence.
[84] Exhibit P6, PCB 58.
75.Mr Chandrasekaran addressed the plaintiff’s right distal femur fracture following the skydiving accident in 1998 that required open reduction, internal fixation with screws which were later removed. He identified the malunion of the fracture site which also contributed to the plaintiff’s medial compartment of osteoarthritis of the knee. He reported that prior to the April 2018 injury, the plaintiff did have intermittent pain in the knee but his range of motion was much greater and he had a bend of approximately hundred and 35.°[85]
[85] Exhibit P6, PCB 59.
76.On examination of the right knee, range of motion as measured by goniometer was 5 to 90 degrees. There was 2 degrees of varus to the knee. There was a well-healed lateral scar of approximately 22 cm from the previous open reduction internal fixation. There was no palpable patellofemoral crepitus.[86]
[86] Ibid.
77.Mr Chandrasekaran diagnosed the plaintiff with an exacerbation of osteoarthritis of the right knee. He said that the mild osteoarthritis of the knee that causes the plaintiff pain of approximately 3/10, does not interfere with his activities of daily living but does interfere with his work as he cannot bend and squat. He thought the symptoms were likely to continue into the foreseeable future.[87]
Mr Ash Moaveni
[87] Exhibit P6, PCB 60.
First report of Mr Moaveni dated 14 November 2023
78.Mr Ash Moaveni is an orthopaedic surgeon who provided two independent medical examination reports to the solicitors for the defendant, but which were tended by the plaintiff. The first report is dated 14 November 2023.[88] He said he examined the plaintiff in a video telehealth interview.[89] He described the plaintiff’s past and complex medical history that included:
(a) compression fractures of the T7 and T12 vertebrae on 16 October 1985 following a motorbike accident;
(b) shoulder pain following the use of a jackhammer in about 2009 but which shoulder improved following injection treatment;
(c) a fractured right clavicle and fractured ribs following a further motorbike accident on 31 May 20, 2012;
(d) A fractured distal right femur following a skydiving accident in August 1998 which was treated with open reduction and internal fixation but which was complicated by malunion at the fracture site and this resulted in compartment osteoarthritis of the knee. Metalware was subsequently removed in 2000, with the result that the plaintiff was able to bend and flex the knee to approximately 115 degrees but was unable to fully straighten it. [90]
[88] Exhibit P7, PCB 64.
[89] Exhibit P7, PCB 69.
[90] Exhibit P7, PCB 67.
79.Mr Moaveni observed that the plaintiff had been able to return to motorbike riding following the skydiving accident in 1998 and returned to work as a rigger and was able to undertake his duties with only mild discomfort. The work he performed as a rigger included climbing ladders and going upstairs, and unloading trucks at building sites and he would occasionally experience twinges in his knee if he bent his knee but that the pain would cease after a day or two.
80.Mr Moaveni reported that in about 2007 the plaintiff sustained pain and bruising to the right upper thigh after falling through a grid, but he said he had been able to walk immediately after that accident. No x-rays were performed and he recovered fully.[91]
[91] Exhibit P7, PCB 67.
81.Mr Moaveni detailed the mechanisms of the work injury on 13 April 2018, and the initial and subsequent treatment the plaintiff undertook.
82.Mr Moaveni noted that the plaintiff returned to his preinjury employment following the right knee injury, and he continued working in that role until the company ceased trading in around 2020. He recorded that the plaintiff next commenced employment as a truck driver working 8 to 10 hours per day, 4 to 5 days per week.
83.Mr Moaveni said that the plaintiff volunteered that he had minimal difficulty in performing self-care and personal hygiene, but in order to dress, he needed to sit down or to lean on an object. There was minimal difficulty in managing shopping duties and household chores, but Mr Moaveni noted, as others have, that the plaintiff used a trolley for support when shopping. There was modest difficulty reported in gardening and lawnmowing and, at that stage, and before the purchase of the ride on lawn mower, he was doing small amounts of gardening more regularly.[92]
[92] Exhibit P7, PCB 68-69.
84.The plaintiff told Mr Moaveni that his driving had not been impacted.
85.There was occasional sleep disturbance due to his pain with him waking once or twice per week.[93]
[93] Exhibit P7, PCB 69.
86.Mr Moaveni said that the plaintiff reported considerable difficulty and reductions in social and recreational activities and was no longer riding his motorbike or pushbike or running, and that he also has difficulty carrying his scuba equipment because of its weight. He said that before the injury he would ride his pushbike three or four times a week, and he no longer participates in bush hiking or playing squash.[94]
[94] Ibid.
87.The plaintiff described a standing tolerance of less than 30 minutes and a walking tolerance of less than the same. He reported modest difficulty in bending and/or twisting and cannot lift heavy objects. He reported reasonable difficulty ascending and descending steps or walking on uneven surfaces. There was swelling and aching in his right knee and lower limb if he walks more than 500 metres or walks on uneven ground or up and down stairs. He wears a pressure stocking for his right leg to limit swelling. He said that he finds the left side of his lower back may become sore if he walks too far, and he leads with his good leg when going up a ladder or on stairs, to limit the amount of bending to his right knee. If he sits for too long his right thigh will go to sleep.[95]
[95] Ibid.
Second Report of Mr Moaveni dated 18 January 2024
88.In his second report to the defendant insurers dated 18 January 2024, Mr Moaveni addressed an updated medical history that included the following:[96]
(a) 13 March 2001: X-ray Right Knee;
(b) 22 March 2013: X-ray Right Knee and Distal Femur;
(c) 24 April 2018: X-ray Right Knee;
(d) 20 May 2019: X-ray Right Knee;
(e) 04 May 2020: Long Leg Views; and
(f) 04 May 2020: X-ray Right Knee.
[96] Exhibit P7, PCB 74.
89.In answer to the relationship between the plaintiff’s presenting condition in the right knee and the injury of 13 April 2018, Mr Moaveni noted the plaintiff “is suffering from Right knee dysfunction, in part due to a persisting aggravation of osteoarthritis of the right knee as a result of the 13 April 2018 incident, and in part, due to a past history of united fracture of the right distal third femur bracket 1998), complicated by arthrosis stiffness of the right knee joint) as well as post-traumatic degenerative changes”.[97]
[97] Exhibit P7, PCB 76, [1].
90.In reaching his conclusion, Mr Moaveni said he had taken into account that the plaintiff underwent right knee arthroscopy and Manipulation Under Anaesthesia (MUA) on 12 March 1999. The range of motion was recorded as 5-45 degrees (before manipulation) and 0-75 degrees (with manipulation). A normal knee range of motion is above 110 degrees of flexion. Flexion to 75 degrees is considered a ‘moderate’ degree of impairment (AMA Guides 4th Edition, Table 41. Knee Impairments, 3/78) and the plaintiff’s x-ray imaging on 22 March 2013 that reported ‘significant degenerative narrowing of both the medial and lateral joint compartments’.[98]
[98] Ibid.
91.Mr Moaveni thought that the natural development of pre-existing pathology in the plaintiff’s right knee was one of slow progression. In reaching his opinion, Mr Moaveni considered the presence of deformity and pre-existing arthritis in the plaintiff’s right knee that was evidenced on x-ray from 22 March 2013.[99]
[99]Exhibit P7, PCB 76.
92.Mr Moaveni thought that the plaintiff would likely have come to his current condition irrespective of the injury on 13 April 2018. Mr Moaveni thought that the plaintiff would likely require a right knee replacement in the future, but he also said that in his opinion, the need for it has not been caused by the work injury in 2018 and in support of his analysis, he recorded the evidence of deformity and progressive post-traumatic arthritis before the work incident in 2018, and that the right knee joint was normal at the time of arthroscopy in 1999, and of deformity and arthritis on x-ray from 2013.[100]
[100]Exhibit P7, PCB 77.
The Plaintiff’s Radiology
X-ray of the Right Knee dated 13 March 2001
93.The plaintiff’s x-ray of 13 March 2001 found osteoporosis particularly in the distal femur and patella and an old, united fracture of the lower femoral shaft.[101]
[101]Exhibit P3, PCB 37.
Diagnostic Imaging Report dated 22 March 2023
94.Dr Ng’s imaging report dated 22 March 2013 noted a past fracture of the plaintiff’s distal femur which healed with some deformity and altered bone texture with evidence of past internal fixator. Dr Ng reported there was significant degenerative narrowing of both the medical and lateral joint compartments.[102]
[102]Exhibit P3, PCB 38.
X-ray of the Right Knee dated 24 April 2018
95.An x-ray of the plaintiff’s right knee on 24 April 2018 evidenced an old healed oblique fracture in the distal end of the partially visualised shaft of the femur. It noted there was mild tricompartmental degenerative change in the knee joint, a reduction of the medical compartment joint space. No acute bony lesion or new fracture was identified.[103]
[103]Exhibit P3, PCB 39.
X-Ray of the Right Knee dated 20 May 2019
96.A further x-ray of the plaintiff’s right knee dated 20 May 2019 found moderate loss of medical femorotibial joint space height with marginal osteophytic lipping at the medial and lateral joint lines and the tibial spines, moderate patellofemoral osteophytic lipping. This report noted that disorganisation of the cortical and medullary bone at the inferior shaft of the right femur would be consistent with a healed, previous fracture. Upper tibia and fibular were normal in appearance, with the patella being normal. It concluded the plaintiff had moderate tricompartmental osteoarthritis, with a past right femoral shaft fracture.[104]
[104]Exhibit P3, PCB 40.
X-Ray of the Right Knee dated 4 May 2020
97.An x-ray of the plaintiff’s right knee noted the presence of a past lower right femoral shaft fracture which had healed. Moderately severe osteo arthritic change at the medial femorotibial joint with marked loss of joint space height, mild marginal osteophytic lipping, with the less marked change at the lateral femorotibial joint. Moderate patellofemoral osteoarthritis was concluded. No fracture or destructive lesion were reported, along with no joint effusion or loose intra-articular body.[105]
[105]Exhibit P3, PCB 41.
Long Leg Views dated 4 May 2020
98.Prior united fracture distal third right femur with varus angulation of the distal third (10 degrees). Leg lengths are 847mm on the right and 873mm on the left. There is 14.5 degrees of tibial varus on the right and 3.8 degrees on the left. The femoral mechanical/anatomical axis Is 5.3 degrees on the right and 5.6 degrees on the left. Joint space narrowing right medial compartment was moderate to severe.
The Defendant’s Evidence
Pinkerton Surveillance Report dated 23 September 2024
99.Surveillance was conducted of the plaintiff’s daily activities over a 3-day period. The tendered report stated that during the surveillance period, the plaintiff was sighted on two of the three days. He was observed driving his vehicle, attending his workplace on two days and carrying two bags to a truck and departing in the truck to a work site where he was seen using a high-pressure hose, connecting pipes to a vacuum on the truck, sitting and standing for periods of time and bending and kneeling on the ground. He was observed conversing with other workers.
100.A total of 5 hours, 38 minutes and 56 seconds of video footage was recorded.
101.On Wednesday 18 September 2024, surveillance commenced in the vicinity of the plaintiff’s home. A vehicle departed the plaintiff’s address driven by a man. The driver parked at an industrial estate, exited the vehicle and retrieved two bags from the vehicle’s boot, then entered the address. The plaintiff was observed loading the bags into a large dual-cab Isuzu truck. He departed. He arrived in Mareeba and parked the truck.
102.The plaintiff was observed for approximately 2 hours and 55 minutes at the work site kneeling on the ground, climbing on the truck, using a high-pressure hose and a vacuum on the truck. He drove away from the area and entered a small shopping centre.
103.Surveillance continued at the Trackson’s Drilling business, and the plaintiff was observed carrying two bags and walking to the rear of his vehicle.
104.Surveillance continued of the plaintiff on 19 September 2024. He arrived at the Trackson’s Drilling at 6:30 am and carried two bags into the business. He was observed inspecting the tyres.
105.The plaintiff departed in an Isuzu vehicle and arrived at a location in Mareeba. He was observed using a high-pressure water hose to clear out a drain. He was observed sitting and standing for periods of time, using the high-pressure hose, lifting and connecting hoses to the vacuum of the truck.
Associate Professor Raphael Hau
First Report dated 14 November 2018
106.Professor Hau first saw the plaintiff on 14 November 2018. He diagnosed moderate right knee arthritis. He said the plaintiff had been given a Synvisc injection 25 September 2018. The plaintiff reported to Prof Hau that he experienced a 70% symptomatic reduction in symptomology following the injection.
107.The plaintiff presented with an antalgic gait with a range of 10-85 degrees. Prof Hau said he explained to the plaintiff that his treatment options included analgesia, non-steroidal anti-inflammatory drugs, cortisone injection and eventual knee replacement. He also told the plaintiff that weight loss was important.[106]
[106]Exhibit D2, DCB 8.
Second Report dated 20 February 2019
108.Professor Hau undertook a second examination of the plaintiff. He diagnosed moderately severe right knee osteoarthritis. The plaintiff told Prof Hau he was taking two Panadol Osteo tablets per fortnight and his walking distance was unlimited. Prof Hau’s management plan consisted of the plaintiff continuing to ambulate as best he could tolerate.[107]
[107]Exhibit D2, DCB 9.
Third Report dated 20 May 2019
109.In his third report, Prof Hau said the plaintiff complained that his right knee had been hurting more in the last month and he was now taking 2-4 Panadol Osteo tablets monthly. I observe that this equates to the same overall consumption Prof Hau recorded in his second report. The plaintiff was undertaking full time work and was able to walk 7,000 to 10,000 steps a day. On examination of the right knee, Prof Hau reported a 10 degree varus alignment with medial joint line tenderness and a range of 10-90 degrees. X-ray showed a severe medial compartment right knee arthritis. Prof Hau’s management plan included ongoing Panadol, anti-inflammatory tablets, heat packs, physiotherapy and eventually a knee replacement.[108]
[108]Exhibit D2, DCB 10.
Fourth Report dated 4 May 2020
110.Prof Hau noted the plaintiff had jarred his right knee at work on or about 13 April 2018 and this had exacerbated his right knee osteoarthritis. He was taking two Panadol Osteo tablets a week, but remained in his employment. I note that the consumption of Panadol Osteo had increased at this time.
Mr Aaron Gandecha report dated 22 April 2024
111.Aaron Gandecha is a physiotherapist at Maximise Physiotherapy, who saw the plaintiff on 22 April 2024. He reported that:[109]
Objectively he presents with:
- No talocrural joint restriction
- No ligament laxity on testing
- No clear muscular weakness when compared with contralateral side
- Moderate effusion with pain on palpation over the lateral ankle
- Pain with ankle inversion
- Tenderness on palpation of the tibialis posterior
It’s an odd presentation. Both objective testing and ultrasound imaging indicate no obvious lateral ligament or peroneal tendon injury. Absence of significant pain immediately following initial injury would appear to exclude a lateral malleolar fracture.[110]
[109]Exhibit D3, DCB 12.
[110]Ibid.
The Plaintiff’s Evidence
112.The plaintiff made corrections to his first affidavit of 27 September 2023, when he said, “In the affidavit we didn’t mention that I was running a hydrostatic business as a hobby business in a dye shop…”. The plaintiff said he commenced the business in 2010, and it was wound up in March 2022.[111] He operated the business under an ABN, called Melbourne Hydrostatic Testing Service.
[111]Transcript (“T”) 9, Line (“L”) 1-10.
Cross-Examination of the Plaintiff
113.The plaintiff confirmed he hurt his knee on 23 August 1998 in a parachuting accident, that resulted in a fracture which required a fixation device to be inserted. The metal work was removed, and he underwent arthroscope and manipulation on his knee.
114.The plaintiff agreed that after the metal work was removed his range of movement improved slightly, however, he continued to lack a full range of movement.
115.The plaintiff agreed with Mr Miles that since the 1998 sky diving injury, he has experienced an altered sensation over the outside of his knee. The plaintiff said, “it feels different to the other knee yes” and that this had been the case since the operations.[112] As to the right leg being apparently shorter than the left because of the fracture, the plaintiff said this was what the doctor told him, and that his left leg has a “curved line” according to x-ray results.[113]
[112]T 11, L 22-28.
[113]T 11-12, L 29-4.
116.The plaintiff said he was only recently advised by his doctor of having varicose veins, but he said they “haven’t really been an issue”.[114] The plaintiff said that before 2018, he had “very rarely” worn compression stockings for leg swelling. The plaintiff said he had attended the Burgundy Street Family Medical Clinic for problems with varicose veins.[115] Records from that clinic included that the plaintiff was suffering from right ankle swelling. The plaintiff said “Yes…the right ankle swells up, yes, when the lower leg does”.[116] However, he said this only minimally impacted his ability to walk, and that his leg only aches or swells if he does not put the compression stocking on.[117]
[114]T 12, L 7-8.
[115]Exhibit D4, DCB 14.
[116]T 13, L 11-19.
[117]T 13, L 20-25.
117.The plaintiff agreed that he suffered from knee pain from time to time since the 1998 sky diving incident.[118]
[118]T 12, L 29-31.
118.Mr Miles suggested to the plaintiff that he told Dr Fernando on 26 May 2021 that he had right lower leg ankle pain for a few days, and that he had right leg trauma and undergone surgery a few years ago. The plaintiff agreed this was an intended reference to surgery in 1998.[119] Dr Fernando’s clinical notes included that since then the plaintiff had suffered from “right leg lymphedema and varicose veins”.
[119]T 14, L 22-23.
119.The plaintiff agreed with Mr Miles that as of 21 January 2021, he was still able to kayak, something that had been noted in the record from the Burgundy Street Medical Clinic when the plaintiff attended for a right shoulder injury.
120.The plaintiff said that another activity he enjoyed prior to 2018 was scuba diving, and that he was not diving as much in 2021, as he had before the work injury of 2018. The plaintiff said he has undertaken approximately six to eight dives since the 2018 accident.[120] He said the last time he recalled scuba diving was in March 2023.[121]
[120]T 15-16, L 30-2.
[121]T 16, L 15.
121.The plaintiff was asked about his weight. He said he used to weigh around 95 kilograms, and in the last few years it has increased to around 106 kilograms, and currently he sits at 102-103 kilograms.[122]
[122]T 16, L 17-21.
122.The plaintiff said his recent leg symptoms have impacted his ability to take his dog for regular walks.[123]
[123]Exhibit D4, DCB 32.
123.Mr Miles put a clinical note from Dr Jayawardana dated 27 February 2024[124] to the plaintiff that identified the plaintiff with cellulitis of the lower leg, and that had been treated at the Emergency Department.
[124]Exhibit D1, DCB 27.
124.Mr Miles put to the plaintiff that the clinical notes mentioned a past history of trauma to the right thigh and a surgical repair in 1998 (a consequence of the sky diving accident) and a clinical note that included a reference that “since then getting swelling of the same leg time to time.” The plaintiff agreed with its contents.[125]
[125]Ibid.
125.The plaintiff suffered a left ankle injury in 2023. He said that it started playing up in around October 2023 when he was stepping off a ladder. He went to Maximise Physiotherapy, who advised him to see a doctor. He saw Dr Sarah Coll, an orthopaedic surgeon. The plaintiff explained that the incident was “like [he] got stabbed in the ankle…”.[126] Mr Miles put to the plaintiff that Maximise Physiotherapy clinical notes dated 13 April 2024[127] recorded that the plaintiff had pain and loss of function developing over several days after the injury occurred. The plaintiff said, “Oh, it was sore for a few days, and it stopped, and it got worse once I had the problem with my right leg, in around March, April, I think it was, yeah”.[128] The plaintiff said he commenced taking Nurofen for ankle pain in about May 2024. The plaintiff said he takes Nurofen not just for his ankle but “… for the whole lot now, yeah”.[129]
[126]T 20, L 13.
[127]Exhibit D5, DCB 36.
[128]T 20, L 19-21.
[129]T 17, L 14-15.
126.Mr Miles put to the plaintiff that he told the physiotherapist that there was slow progressive lateral swelling in his ankle, which had persisted and the plaintiff said this related to his left ankle. The plaintiff agreed that the symptoms are aggravated by increased activity, such as being on his feet for extended periods, and walking, twisting and turning.[130]
[130]T 20, L 27-29.
127.Mr Miles asked the plaintiff about his qualification as scuba diving instructor. The plaintiff said he completed his scuba instructor ticket in 2021, although he has not taught anyone. He agreed that it was “not a small thing” to obtain a scuba diving ticket, and he accepted that he is very experienced in diving.[131] He of course, still undertakes some scuba diving.[132]
[131]T 22, L 16-18.
[132]T 23, L 14-15.
128.The plaintiff accepted that after the work injury in April 2018, he probably had one or two days off just to see the doctor.[133] He agreed that thereafter he continued to work until the business shut down, and he then moved to a different workplace. The plaintiff said initially he did welding of structural steel as a subcontractor under his own name.[134] He agreed this was very heavy work. Mr Miles suggested to him that he continued this work for approximately three to four years until he moved to Cairns, but the plaintiff disagreed. The plaintiff said, “For about 12 months I was working for Bridgecon, that was the heavy structural steel work. After Top Stress closed, I worked for Form 8 Constructions, driving – operating a gantry crane…I worked for them for about 18 months, and then I left…and started with Bridgecon”.[135] The plaintiff confirmed that the reference to Bridgecon was a reference to his welding work.[136]
[133]T 23, L 20-21.
[134]T 23, L 27-30.
[135]T 24, L 6-11.
[136]T 24, L 13-14.
129.The plaintiff said that before his 2018 injury, he had worked from time to time as a truck driver, but that it was “well, years ago, yes”.[137] He agreed he had worked on the wharves and had been a crane operator. The plaintiff agreed he is earning the same income as he did in 2018, but he said his income has been decreasing more than it has been increasing since his injury.[138]
[137]T 24, L 16-18.
[138]T 24, L 22-29.
130.The plaintiff agreed with Mr Miles that the Medical Panel recorded the plaintiff saying that he was looking for a rigging job.[139] Mr Miles asked if rigging requires being on one’s feet, and the plaintiff said, “M’hmm that’s what I was doing before 2018, yes”.[140] When asked if this was the same type of work he had done off and on for years, the plaintiff stated “No, rigging is totally different to standing there welding”.[141] The plaintiff confirmed that he had done rigging work before his 2018 injury. Mr Miles suggested that rigging work was pretty heavy work, and the plaintiff said, “physical work, yes”.[142]
[139]Exhibit P2, PCB 30.
[140]T 25, L 2-3.
[141]T 25, L 4-5.
[142]T 25, L 10-11.
131.The plaintiff said that the injection from Prof Hau following the 2018 injury, initially helped his pain considerably.[143]
[143]T 25, L 26-31.
132.The plaintiff saw Mr Nielsen in Townsville. His notes included that the plaintiff said he was still having ongoing benefit from Prof Hau’s injection, albeit diminishing.[144] The plaintiff said, “Well, I didn’t say that, I said that my knee has not been as painful since I’ve had the injection as it was before I had the injection it was just like unbearable”.[145]
[144]Exhibit P5, PCB 47.
[145]T 26, L 8-13.
133.Mr Miles suggested to the plaintiff that apart from Prof Hau, he has not seen a general practitioner for right knee pain since the injury occurred, but the plaintiff said “No.”[146] Mr Miles pressed the point and suggested to the plaintiff that not only had he not seen a GP but neither had he seen physiotherapist. The plaintiff said, “No, and there’s a reason for that”.[147] He explained that “When I saw [Professor] Hau, he’s the head orthopaedic surgeon of the Box Hill Hospital, and he told me at the time that there’s nothing they can do for my knee other than a knee replacement…and for me to leave the knee replacement until I absolutely have to have it…”.[148]
[146]T 26, L 19-21.
[147]T 26, L 24.
[148]T 26, L 26-31.
134.Mr Miles suggested to the plaintiff that he has not seen a doctor to obtain painkillers for his right knee, and the plaintiff agreed but added that, “No. I don’t like taking pills at the best of times”.[149] The plaintiff agreed with Mr Miles that contrary to his affidavit evidence in which he deposed that he use to ride his motorbike to work every day, in fact, he rode it some days.[150] However, the plaintiff said he also use to ride it outside of work.
[149]T 27, L 6-7.
[150]Exhibit P1, PCB 11, T 27, L 8-11.
135.Mr Miles asked the plaintiff if he had a limp before 2018, and he said, “I could walk without really people noticing that I had the limp, yes”.[151] He said his limp is becoming more pronounced.
[151]T 27, L 24-26.
136.The plaintiff said he had also operated a scuba diving business called Melbourne Hydrostatic Testing, which tested air tanks. The businesses ABN was active until June 2023. Mr Miles referred the plaintiff to Mr Moaveni’s clinical notes from 14 November 2023[152] in which he recorded that the plaintiff saying that he was having difficulty carrying scuba gear because of its weight and that he had to be mindful of underwater currents.
[152]Exhibit P7, PCB 69.
137.The plaintiff agreed with Mr Miles that it was becoming harder for him to scuba dive as time went on.[153]
[153]T 28, L 19-20.
138.Mr Miles suggested to the plaintiff that while attending to his everyday physical work as a welder, he was also undertaking the scuba tank testing business, and the plaintiff said, “the welding isn’t that physical, it’s just basically standing there welding steel”.[154]
[154]T 30, L 8-9.
139.Mr Miles referred to the plaintiff’s affidavit of 27 September 2023,[155] and suggested that its content implied he was still doing some scuba diving. The plaintiff said, “Yeah, well, I say the last time I dived was in March 2023, just after I moved to Cairns. I haven’t been diving since. I still hope to get to diving, if I can get my knee and ankle sorted, then I hope to eventually pick up some part-time work as an instructor”.[156]
[155]Exhibit P1, PCB 14.
[156]T 30, L 21-26.
140.The plaintiff agreed with Mr Miles that following the injection in 2018, his walking was unlimited, although it appeared to have deteriorated somewhat subsequently.
141.The plaintiff said he believes he is getting closer in time to the point at which he will need to undergo the knee reconstruction, and he said that he will “when [his knee] gets too painful”.[157]
[157]T 31, L 17-18.
142.Mr Miles asked the plaintiff if the condition of his knee affects his ability to sit for a long period of time. The plaintiff said “oh, it depends where I’m sitting, you know.” On pointing out to the plaintiff that he had been seated while giving his evidence, the plaintiff said, “Yeah, well, that’s cause I can stretch out, but if I’m sitting in the passenger side of the truck when I have to keep myself bent, then it doesn’t, I can’t sit for long, you know…”.[158]
[158]T 32, L 3-7.
143.When questioned by Mr Miles about his sleep, and it being suggested that it had improved after the injection from Prof Hau , but has since slowly deteriorated, the plaintiff said, “Oh, yeah it’s getting worse now, I still sleep with a cushion or a pillow between my legs, otherwise I’ll wake up with my knee aching”.[159]
[159]T 31, L 11-15.
144.The plaintiff said that if he has inflamed his knee from work of a day, that when he arrives home, he will ice it, and he usually takes some additional painkillers before going to bed, however, if he had really aggravated his knee during the course of the day, he finds that in bed he will rollover or move around at night and wake up.[160]
[160]T 32-33, L 30-3.
145.The plaintiff explained that the awkwardness of his sleeping posture causes him to wake of a night and is then conscious of pain and that only occasionally can he get himself back to sleep.
146.Mr Miles referred to A/Prof Neilsen’s clinical note of 15 August 2024, who recorded that plaintiff said his sleep was interrupted a couple of times a week because of knee pain. The plaintiff agreed with the entry.[161] The plaintiff said he does not take any sleep medication.
[161]Exhibit P5, PCB 47.
147.The plaintiff said he had not attended the Latrobe University Gym for a long period of time, and that his last visit to the gym may have been few months before his 2018 injury.[162] He said in the past he mainly attended the centre or swimming. He would ride his bicycle there and swim for an hour and sometimes go into to the gym. He said he would swim at least three times a week, but said that gym work was not a big part of his life.[163]
[162]T 33, L 29-31.
[163]T 34, L 9-13.
148.Mr Miles suggested that having been a motor cyclist, it was likely he was going to come off his bike quite a few times. The plaintiff said he has only come off a couple of times.[164]
[164]T 34, L 17-19.
149.The plaintiff agreed with Mr Miles that he has suffered shoulder and back injuries from time to time. The plaintiff said that he still experiences back pain and shoulder pain.
150.The plaintiff said he had not thought of returning to see Prof Hau for another injection. When Mr Miles suggested to him that this was because his pain was not bad enough to have done so, the plaintiff said. “No, because [Professor] Hau said that this injection, you get maybe a second go at it, he said when I got the initial first injection, he couldn’t even guarantee that that would work. He said some people it works in a few days, a week, or it could be a month, or it could not work at all. And he goes, if it doesn’t work [the] first time…you have a second one [which it will] most likely not work then. I can only go with what the doctor tells me”.[165]
[165]T 36, L 3-12.
151.Mr Miles suggested to the plaintiff that A/Prof Nielsen had recommended the plaintiff try another injection.[166] The plaintiff said, “Well, he didn’t say it to me”.[167] The plaintiff agreed that it might be a good idea to undergo a second injection.
[166]Exhibit P5, PCB 54.
[167]T 36, L 17-18.
152.The plaintiff said he was trying to lose weight[168] as had been recommended by Prof Hau on 20 February 2019.[169].
[168]T 36, L 25-27.
[169]Exhibit D2, DCB 9.
153.Mr Miles put to the plaintiff that he told the Medical Panel on 22 July 2022[170] that he does not experience locking or jamming with his knee, and the plaintiff said, “Not now it doesn’t…in recent months I’ve had a couple of times where the knee’s given way…I was stepping around the truck both times, I think it was something I was doing there, and I was able to catch myself on the bumper”.[171] The plaintiff said the knee giving way was lately occurring more regularly.
[170]Exhibit P2, PCB 30.
[171]T 36-37, L 29-5.
154.Mr Miles also put to the plaintiff that he told the Medical Panel that he experiences low back pain if he walks too far, but the plaintiff said that he suffers back pain in his left hip when walking long distances.[172]
[172]T 37, L 10-11.
155.Mr Miles pointed out to the plaintiff that he obtained his job with Trackson Drilling as a truck driver in May 2023, and that according to his affidavit he was working 45 to 50 hours per week.[173] However, the plaintiff did not agree with the characterisation of his work as a ‘pretty full-on job’ and said, “Oh, it’s easy, it’s not like rigging work that I was doing, I’d sort of get out the truck, walk to the back of it, fire up the water blaster and turn dirt into mud”.[174]
[173]Exhibit P1, PCB 16.
[174]T 37, L 21-24.
156.The plaintiff agreed with Mr Miles that he drives a vacuum truck, he is required to step up to get into the truck, and the cabin is fairly high off the ground. The plaintiff explained the work as “it’s…non-destructive excavations, you virtually use the water to turn the dirt into mud just so if you use a digger, you’ll dig up the cables and do damage, so you use that to expose them so they know where to stay away from with the machines”.[175] The plaintiff agreed with Mr Miles that the vacuum truck also was used is assisting with cleaning of drains. Mr Miles suggested that in order to access a pit or a drain, the plaintiff had to kneel down. The plaintiff said, “I don’t kneel down much, no…most of my work is standing up, occasionally I might have to get down and get a rock out of the hose or something, but yeah”.[176] He accepted that that from time to time he has to bend. When Mr Miles suggested to him that sometimes he has to lie on the ground to get access to what needs cleaning, the plaintiff said, “Only if I have to…I can get down on the ground, yes”.[177]
[175]T 37-38, L 31-5.
[176]T 38, L 10-15.
[177]T 38, L 16-21.
157.The plaintiff agreed with Mr Miles that his employment involves a lot of standing.
158.The plaintiff accepted that he is able to step up and down from the truck, and is able to sit for a period of 40 minutes in the truck. He agreed that he can stand upright at work for extended periods if required. When asked by Mr Miles if he can bend at the waist with both knees bent if required to do so as part of his job, the plaintiff said, “Yeah, well, sort of, yeah”.[178]
[178]T 39, L 1-3.
Re-Examination
159.Mr Dunstan asked the plaintiff how often of a year he went scuba diving before the 2018 injury, and he said “couple of dozen, maybe, you know, 20 odd times, it was in Melbourne, so it was weather permitting…I’ve got dry suits and all sorts of gear so I can dive in the cold water, but when the wind’s blowing and that, you can’t get out of the head so you can’t dive”.[179] Mr Dunstan asked the plaintiff how often he rode his motorbike recreationally before the 2018 accident, and he said, “quite often. If I didn’t ride it to work, I’d get home, I’d go and visit friends, we’d go for rides with friends on weekends”.[180]
[179]T 41, L 13-19.
[180]T 41-42, L 29-1.
160.The plaintiff said that he has not been able to ride his motorbike at all since the 2018 incident, because “I can’t get my foot, my right leg on to the right foot peg, it’s about – the farthest I can get [my] foot back is about three inches away from the foot peg, forward of it.”[181]
[181]T 42, L 16-21.
161.The plaintiff said that varicose veins has not stopped him from scuba diving, and his cellulitis had never stopped him from motorbike riding nor scuba diving.[182] I asked the plaintiff if his Nurofen is taken for all of his pain associated with his lower limbs, and the plaintiff said that it was and “for any pain, yeah”.[183]
[182]T 42-43, L 22-1.
[183]T 43-44, L 30-1.
Defendant Final Address
162.Mr Miles submitted that at the time of the work injury the plaintiff was on his way to a knee replacement due to a pre-existing condition, and this was the opinion of A/Prof Neilsen, and it was an opinion with which Mr Moaveni agreed. Mr Miles referred to Mr Moaveni’s commentary on the plaintiff’s 2013 x-ray which revealed a significant degeneration, and that in his opinion the plaintiff had come to his current condition in the absence of the incident of 2018.[184]
[184]Exhibit P7, PCB 76, T 47-48, L 31-3.
163.Mr Miles submitted that both Mr Moaveni and A/Prof Neilsen agreed that the plaintiff’s need for a future knee replacement can be traced to the 1998 injury.[185]
[185]T 48, L 48, L 4-6.
164.Mr Miles highlighted an absence of any treating practitioner report and that the plaintiff’s last attendance for his knee condition had been with Prof Hau.[186]
[186]T 48, L 7-9.
165.Mr Miles noted that the Medical Panel said that the plaintiff had no locking or jamming of his knees, and that the plaintiff’s right leg was shorter than his left.[187] The Panel saw prominent varicose veins at the lower leg, and observed the plaintiff presented with a compression bandage. The Panel noted no crepitus and that the most ligaments were intact except the medial collateral ligament which it attributed to the previous fracture.[188] The Panel had the record of the operation of 27 July 1998, which showed a range of movements from 5 to 80/90 degrees. In Mr Miles’ submission the plaintiff still presents with a similar range.[189] The Panel concluded the leg length differences and the ligamentous laxity were due to the prior fracture, and concluded that the leg length different and the pre-existing malalignment /deformity would contribute to the gait abnormality, with one leg being shorter than the other and this had not been altered by the work aggravation.[190]
[187]Exhibit P2, PCB 30.
[188]Exhibit P2, PCB 31.
[189]Exhibit P2, PCB 32, T 48, L 14-26.
[190]Exhibit P2, PCB 33-34, T 48-49, L 27-2.
166.Mr Miles submitted that as early as the x-ray of 13 March 2001, osteoporosis in the distal femur was observable, and the x-ray of 22 March 2019 identified a significant degenerative narrowing.[191]
[191]T 49, L 3-6.
167.Mr Miles addressed A/Prof Nielsen’s recent report of 15 August 2024, who recorded the plaintiff stating that the injection administered by Prof Hau was providing him with ongoing benefit up to the present time.
168.Mr Miles pointed out that the plaintiff agreed in cross-examination, that the altered sensation he experienced on the outside of his right knee, was related to the first operation he underwent.
169.Mr Miles referred to the finding by A/P Nielsen who reported flexion to 85 degrees, which was similar to the result from 1999, as well as to the statement from the Medical Panel.[192]
[192]Exhibit P5, PCB 47-49, T 49, L 7-21.
170.Mr Miles submitted that both A/Prof Nielsen and Mr Moaveni found that the plaintiff suffered a soft tissue work injury which aggravated his pre-existing degenerative disease.[193] A/Prof Nielsen recorded that his arthritis is degenerative.[194]
[193]Exhibit P5, PCB 50.
[194]Exhibit P5, PCB 53, T 49, L 22-28.
171.Mr Miles emphasised that A/Prof Nielsen attributed the plaintiff’s degeneration to his pre-existing condition and not the effects of the injury. Mr Miles submitted that the trajectory the plaintiff has been on, because of his pre-existing condition, is one that foreshadowed the need for a knee replacement within the next five years in order to manage likely increasing pain and loss of function.[195] Mr Miles commented that A/Prof Nielsen had recorded that in the interim, the plaintiff may benefit from further injection and physiotherapy.[196]
[195]Exhibit P5, PCB 54, T 49-50, L 29-4.
[196]Exhibit P5, PCB 54, T 50, L 4-6.
172.Mr Miles submitted that no one has offered an opinion that the plaintiff would not be in the situation he presents as today but for the 2018 injury.[197]
[197]T 50, L 7-9.
173.Mr Miles referred to Mr Chandrasekaran’s report dated February 2022, who commented that the injection the plaintiff received, had produced a 50% reduction in pain.[198] Mr Chandrasekaran also recorded that the plaintiff could walk for one kilometre, and was independent in activities of daily living.[199] When he saw the plaintiff the pain he reported was 3/10, although the plaintiff says the pain he now suffers is much greater.
[198]Exhibit P6, PCB 58, T 50, L 10-13.
[199]Exhibit P6, PCB 59, T 50, L 13-17.
174.Mr Miles also relied on Mr Moaveni’s initial report dated 14 November 2023 that it was the malunion that resulted in the osteoarthritis and the plaintiff not having undertaken any treatment.[200] Mr Moaveni recorded that the plaintiff takes two to four Panadol per day. The plaintiff’s evidence is that he takes Nurofen for the lower leg as well as the left ankle.[201]
[200]Exhibit P7, PCB 67, T 50, L 20-23.
[201]Exhibit P7, PCB 68, T 50, L 23-27.
175.Mr Miles noted that when the plaintiff saw Mr Moaveni, his sleep was interrupted once or twice per week, his driving was not impacted and, he was still scuba diving.[202]
[202]Exhibit P7, PCB 68-69, T 50-51, L 28-1.
176.Mr Miles submitted that on 14 November 2018 Prof Hau recorded a 70% reduction in the plaintiff’s symptoms.[203] In Prof Hau’s next report dated 20 February 2019, he recorded the plaintiff as taking two Panadol per fortnight for his pain, and having the ability to walk unlimitedly.[204] In his next report dated 20 May 2019, Prof Hau reported the plaintiff as walking 7,000 to 10,000 steps per day, and on 14 May 2022, he reported the plaintiff as taking two Panadol per week. Mr Miles submitted this was the last record of the plaintiff’s treatment.[205]
[203]Exhibit D2, DCB 8, T 51, L 3-6.
[204]Exhibit D2, DCB 9, T 6-7.
[205]T 51, L 9-10.
177.While Mr Miles submitted that the plaintiff’s evidence was generally frank, he referred to “oversights” in the plaintiff’s case’s presentation. Mr Miles observed that the plaintiff had not heard of anything about the effects of the plaintiff’s left ankle, which Mr Miles submitted most likely started in 2023 and certainly continued into 2024.[206] Mr Miles pointed to the report from Maximise Physio, and there has been no mention of anything about the plaintiff’s varicose veins, which Mr Miles submitted is related to the plaintiff’s earlier injury, and which flares from time to time in either a cellulitis condition or as just a painful condition for which the plaintiff must wear a stocking because of right ankle swelling.[207]
[206]T 51-52, L 28-1.
[207]T 52, L 1-7.
178.Mr Miles referred to the plaintiff’s evidence that he enjoys kayaking and has kayaked since the injury, with evidence of him having done so in 2021 and in May 2023.[208]
[208]DCB 39, T 52, L 8-11.
Plaintiff’s Final Address
179.Mr Dunstan observed that Mr Moaveni examined the plaintiff via a Telehealth appointment and his second report was conducted on the papers with some further radiological reports shown to him.[209] The implication is that such reviews are less than ideal.
[209]T 52, L 16-21.
180.Mr Dunstan submitted that there is not much to be gleaned from an acute concentration or examination of the medical evidence, but that greater probative weight should be given to A/ Prof Nielsen’s findings, who had personally examined the plaintiff on 2 August 2024.
181.Mr Dunstan submitted that the crux of A/Prof Nielsen’s reporting is of ongoing pain and loss of function following a soft tissue injury of the right knee on 13 April 2018, and that the same aggravated pre-existing asymptomatic degenerative disease.
182.Mr Dunstan submitted that although the plaintiff suffered a fracture of the distal femur in 1998 and came to surgery for it, thereafter, and for a period of 20 years, apart from some aches and pains from time to time, his right knee was largely asymptomatic.
183.Mr Dunstan submitted that following the work injury on 13 April 2018, the plaintiff has lost or had restricted in frequency, his ability to participate in two major interests in his life, of motorbike riding and scuba diving.[210] Mr Dunstan urged me to accept the plaintiff’s evidence that before 2018 he could ride his motorbike with no issues, and that since his injury he can no longer ride his motorbike.[211]
[210]T 52-53, L 22-16.
[211]T 55, L 55-19.
184.Mr Dunstan emphasised that the reason the plaintiff can no longer ride his motorbike is because of the 30% reduction in the flexion of his right knee that followed the 2018 injury and due to his inability to bend his knee to fit under the pedal of his motorbike. Mr Dunstan submitted that if I accepted that the plaintiff has experienced this degree of functional limitation since the 2018 injury, then it would also be open as a matter of logic to accept that the plaintiff is likely to experience the issues with housework, walking, and activities of daily living that he recounted in his evidence.[212]
[212]T 56, L 4-23.
185.Mr Dunstan recognised that both A/Prof Nielsen and Mr Moaveni identified the plaintiff as having a pre-existing arthritis in his right knee which was aggravated by his work injury but that A/Prof Neilsen expressing the opinion that there had been a deterioration in the plaintiff’s arthritic condition as part of its natural progression and not from the effects of the work injury.
186.Mr Dunstan submitted that the work injury significantly aggravated the pre-existing asymptomatic degenerative disease. The plaintiff has ongoing pain and has suffered a loss of function, he can no longer undertake work he once did and has needed to change his occupation as a consequence. He has had one injection and may consider future injections. He requires ongoing analgesic and anti-inflammatory medication, and is taking Nurofen and is likely to require a knee replacement.
Analysis and Findings
187.It is clear enough that when the plaintiff suffered his work injury on 13 April 2018, he had pre-existing osteoarthritic pathology. It is also the case, that this extended back to, and arose from, the 1998 sky diving accident in which he shattered the discal aspect of his femur, and required the insertion and subsequent removal of a steel plate in 2000.
188.The medical evidence does not contradict the plaintiff’s evidence that prior to the work injury of April 2018, the pathology in his right knee was not causing troublesome symptomology, other than the plaintiff acknowledging some occasional aches and pains after working. The plate was removed in 2000.
189.I accept that the preponderance of the medical evidence is that the nature of the condition of the right knee that developed in the wake of the 1998 skydiving accident, is progressive.
190.Mr Dunstan in opening address said that “the plaintiff's case is the incident in 2018 accelerated, or aggravated the under[lying] condition, and the consequences of that injury are serious”.[213] In his final address Mr Dunstan revisited this issue, and he submitted that the question is whether the incident on 13 April 2018, amounted to a significant aggravation of the pre-existing condition, in the sense that the aggravation itself occasioned pain and suffering consequences “causing an acceleration of that process such as at today's date the court can accept the consequences of that injury are serious in the Petkovski sense”.[214]
[213]T 3, L 26.
[214]T 55-56, L 28-1.
191.The contest on the matter of acceleration or hastening and the work that such concepts might have work to do in an aggravation case, resulted in the following exchange with Mr Miles after I invited him to address the issue that Mr Dunstan raised. I put the following questions to Mr Miles:
that if a plaintiff suffers injury, and if the evidence establishes that the plaintiff would have got to the position he's in now, but has got to it in a more hastened manner, and perhaps with more acute pain and suffering along the way, hastened by, accelerated by, aggravated by, the injury from April 18, are you going to submit the law says one ignores that because he would have, without the hastening and the acceleration and the perhaps greater pain that might have been experienced, that he ultimately could have come to, that as a matter of law can't constitute a ground for the grant of serious injury?
MR MILES: Just adopting the hastening approach, possibly the hastening applies to the motorbike riding, and the bike riding, but otherwise the plaintiff would have come to that in any event by now, that's what Moaveni says.
HIS HONOUR: Okay. And I'll just leave it on this point, and therefore the - at this point I'll leave it - the accumulation, acceleration, perhaps the increase in pain and suffering greater than might have been experienced over the course of the progression but for the 13 April 18 can and must as a matter of law be excluded, if I'm otherwise satisfied that the plaintiff would have by 25 September 2024 have come to the same position he's in now?
MR MILES: Yes.
HIS HONOUR: Okay.
MR MILES: The burden's on the plaintiff.
HIS HONOUR: Yes.
MR MILES: Really no doctor says otherwise.[215]
[215]T 7, L 1 -30.
192.In my judgment the outcome of this application is not to be answered in a determinative sense by only asking if the evidence led by the plaintiff, proves on the balance of probabilities that the April 2018 work injury caused an aggravation of an otherwise quiescent pathology. That is because, the answer to that question is evidently, that it did. Thus, and without more, the next question that typically calls to be addressed in an aggravation case, is whether the extent of the aggravation is of itself, and excluding any consequences from other and unrelated conditions, serious. The answer is often revealed by comparing and contrasting the plaintiff, before and after the alleged aggravating injury. However, the defendant’s contention is, that even if the plaintiff had not suffered the 2018 work injury, the state of his right knee has by now reached the stage of causing the same restrictions and loss of amenity that the plaintiff alleges was, or is attributable to the aggravation from the 2018 accident.
Relevant Legal Principles in Aggravation/Acceleration Cases
193.Because the plaintiff’s claimed injury is allegedly an aggravation that has caused an acceleration of a pre-existing condition, it calls to be decided if there has been such an injury. It is trite but true, that if there was no compensable injury, then the question of whether there was serious injury does not arise.[216]
[216]Doulton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183 at [38]
194.The relevant definitions of “injury” and “disease” are found in section 3 of the Act and state:
(a) “Injury” includes “a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease”; and
(b) “disease” is defined inter alia as “the aggravation, acceleration, exacerbation or recurrence of any pre-existing disease”.
195.The High Court has stated that the words “aggravation, acceleration, exacerbation or deterioration” are not synonymous with each other.[217]
[217]Federal Broom Co Pty Ltd v Semlitch (“Federal Broom”) (1964) 110 CLR 626 (per Kitto J) at [634].
196.In Maimonis v Bourke[218] (“Maimonos”) the Court of Appeal accepted the submission that the word “worsening” was used as a commonly understood synonym for each of the words of the statutory test “aggravation”, “acceleration”, “exacerbation” and “deterioration”.
[218][2019] VSCA 302.
197.In Maimonis, the Court was taken to that suite of cases commencing with Federal Broom Company Pty Ltd v Semlitch (“Federal Broom”),[219] Darling Island Stevedoring and Lighterage Co Ltd v Hankinson,[220] Commonwealth of Australia v Beattie,[221] Casarotto v Australian Postal Commission,[222] Tippett v Australian Postal Corporation,[223] and Long v Kmart Australia Ltd.[224] I have considered those cases as well as the case of St Mary School v Askwith [225] when considering the meaning of the words “aggravation” and “acceleration”.
[219] (1964) 110 CLR 626 (per Kitto J) at [634].
[220] (1967) 117 CLR.
[221](1981) 35 ALR 369.
[222](1989) 86 ALR 399.
[223][1998] 27 AAR 40.
[224][2016] TASSC 6.
[225][2011] VSCA 90.
198.The word ‘acceleration” was described by Windeyer J in Federal Broom as:
…a progressive disease, one that running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached -its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli… [226]
[226] Federal Broom (1964) 110 CLR 626 [639]-[640] per Windeyer J.
199.Whether there has been an aggravation, acceleration, exacerbation or deterioration of a condition, is essentially one of fact.[227]
[227]Ibid [637] per Windeyer J.
200.In Maimonis the Court said :
The legal conception that the extended definition of ‘injury’ can be satisfied by the onset or progression of symptoms, in the absence of the any deleterious effect having been caused upon an underlying condition…[228]
[228] Ibid [60].
201.I find that the plaintiff’s arthritic condition developed following the 1998 sky diving accident. I am satisfied that the condition is a progressively deteriorating condition that existed well before the April 2018 work injury, and was not caused by it.
202.I am not satisfied that the April 2018 work injury has been a cause of the progression or acceleration of the state of the plaintiff’s right knee. There is no medical evidence to suggest that is the case, and indeed, the medical evidence is to the contrary.
203.I am satisfied on the balance of probabilities that on 13 April 2018 the plaintiff suffered a work related aggravation of his arthritic knee by way of a soft tissue injury.
204.I am satisfied that following the work injury in 2018, the right knee that had been largely asymptomatic, became symptomatic.
205.The aggravation did have pain and suffering consequences for the plaintiff, and in a temporal sense it is more probable than not to assess a number of the consequences he then experienced as being the result of the work injury. Mr Dunstan argued that the plaintiff’s prognosis that includes the very real prospect of a knee replacement had not been suggested before 2018. I accept that is the fact of the matter.
206.Mr Dunstan urged me to prefer the opinion of A/Prof Nielsen in preference to the opinion of Mr Moaveni. As I raised with Mr Dunstan in the course of final address, the difference between the two reports may not be as probative as he would have me find. Let me explain.
207.When A/prof Neilson was asked by the plaintiff’s solicitors the question whether the plaintiff is at risk of developing arthritis in his right knee or the likelihood and nature of any long-term deterioration in the future, he said that the plaintiff had pre-existing arthritis in his right knee . He said the arthritis was aggravated by the work injury. I accept the aggravation accounts for the pain and the physical restrictions and recommended limitations that A/Pro Nielson addressed in his report. However, he also said in answer to the question posed of him, that the arthritic condition was likely to continue to deteriorate over time, and that the deterioration is likely to be due to the pre-existing condition rather than the [aggravating] effects of the injury. He also said that the plaintiff likely to require a knee replacement within the next five years to manage likely increasing pain and loss of function in his right knee. Based on the date of his report, that would be sometime up to 2029, with the plaintiff during that time, needing to likely manage increasing pain and loss of function in the right knee caused not by the aggravation but the disease and its ordinary progression. Even on A/Prof Nielsen’s analysis and prognosis it is difficult to conclude, that the aggravation from 2018 is a current or ongoing serious injury, and that even if I could or should be satisfied that aggravation of the pre-existing arthritic knee prevailed at the date of hearing, that I could be satisfied that it would continue to do so into the future, as opposed to it already having been overtaken by or subsumed by the naturally deteriorating state of the disease that will culminate with the need for a knee replacement.
208.I am not satisfied in any event that I should afford less probative weight to Mr Moaveni’s reporting. The fact that the first examination was conducted by telehealth, and the second report was prepared on the papers, and why the absence of a person to person examination lessens the reporting worth was not explained. Furthermore, this case is not one determined by reference to credit issues, or by a contention that the plaintiff’s does not present with organic pain and restrictions. I told counsel that I assessed the plaintiff as a credible witness in his own cause. That is not the point.
209.I find that the plaintiff is suffering from right knee dysfunction. I find that on the balance of probabilities, the right knee dysfunction was in part due to a persisting aggravation of osteoarthritis of the right knee as a result of the 13 April 2018 incident, and in part, due to a past history of united fracture of the right distal third femur (1998), complicated by arthrofibrosis (stiffness of the right knee joint) as well as post-traumatic degenerative changes. This finding reflects my preferred adoption of the opinion expressed by Mr Moaveni in his report dated 18 January 2024.
210.I find that the natural progression of the plaintiff’s pre-existing pathology in the right knee is of slow progression that manifest itself in the form of symptoms (including pain and loss of function), and with associated worsening deformity and loss of movement.
211.I find that the very likely need for a right knee replacement, and bearing in mind, the plaintiff’s evidence that he thinks he is getting close to that time, has not been caused by or accelerated by the work incident on 13 April 2018. There is no evidence the aggravation caused an acceleration in symptomology or compressed the time at which surgery would become inevitable.
212.I find that the plaintiff would more probably than not have come to his current condition in the absence of the incident on 13 April 2018.
213.I find that even accepting that an aggravation of April 2018 to the arthritic disease in the knee made symptomatic pain that restricted the ability of the plaintiff to ride his motorbike, or scuba dive with the frequency he did beforehand, and affected other matters that the plaintiff relied on, the more compelling evidentiary explanation is that this state of affairs has now been subsumed by the disease in the right knee and does not depend on, or is conditioned by, or in the medical and legal sense, any longer caused by any continuing aggravating effects of the April 2018 injury. I am simply unable to be satisfied that the 2018 injury itself amounts to a current and continuing serious injury to the right lower limb.
214.I am not satisfied that the plaintiff has proved that he presents with a current work-related aggravation or that the aggravation suffered in April 2018 accelerated the development of the arthritis of his right knee.
215.It is unnecessary to address the many other injuries and health conditions the plaintiff has suffered because by and large they seem to have either resolved or are managed in such a manner as to not unduly interfere with his life.
216.For the reasons expressed, I find that the plaintiff has not established the grounds for the relief sought in the Originating Motion, and the application is dismissed.
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