Wilson v Collingwood Store Pty Ltd and VWA
[2012] VCC 43
•24 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00333
| NATASHA WILSON | Plaintiff |
| v | |
| COLLINGWOOD STORE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 February 2012 | |
DATE OF JUDGMENT: | 24 February 2012 | |
CASE MAY BE CITED AS: | Wilson v Collingwood Store Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 43 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – pain and suffering consequences of injury to knee – prior injuries to worker’s knee – extent of aggravation of injury – whether the pain and suffering consequences of the worker’s injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are fairly described as being more than significant or marked and as being at least very considerable.
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB, s.135AB(19)(a), s.134AB(37), s.134AB(38)(b), s.134AB(38)(c).
CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Dulieu v White & Sons [1901] 2 KB 669; Watts v Rake (1960) 108 CLR 158; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor. [2011] VSCA 249.
JUDGMENT – Leave granted to the plaintiff to issue proceedings for pain and suffering damages against the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr J Fitzpatrick | Slater & Gordon Ltd |
| For the Defendants | Mr N Rattray | Wisewould Mahoney Lawyers |
HIS HONOUR:
1 Natasha Wilson alleges that she suffered an injury to her right knee on or about 3 July 2002 in the course of her employment with the first defendant. She seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 Her right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by her is a “serious injury”.[1]
[1]Section 135AB(19)(a)
3 The term “serious injury” is defined in sub-s.134AB(37) of the Act, insofar as is relevant in this application, as a “permanent serious impairment or loss of a body function”.
4 Ms Wilson’s application is based on an impairment or loss of function of her right knee.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Ms Wilson of any impairment or loss of the function of her right knee with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application, unless the pain and suffering consequences are, when judged by comparison with others cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c)
8 The application relates solely to the pain and suffering consequences of Ms Wilson’s injury.
9 Counsel for the defendant conceded that Ms Wilson’s current right knee condition and symptoms would be such as to satisfy the “at least very considerable” threshold. However, the defendant disputes that her condition and/or symptoms are a consequence of the July 2002 workplace incident. It alleges that they are effectively the result of congenital abnormalities in her knee combined with the effects of previous dislocations of the knee.
10 It follows that the matters in issue and to be determined in this application are:
(a) What injury was suffered by Ms Wilson in the workplace incident?
(b) Insofar as the injury is an aggravation of earlier injury, what is the extent of that aggravation and what are the consequences of that aggravation to her?
(c) Whether the consequences to Ms Wilson of the injury or aggravation can fairly be described as “more than significant or marked and as being at least very considerable”.
Background
11 Ms Wilson is thirty-one years old. She was educated to VCE level and, since shortly after leaving school, has worked for the first defendant as a sales assistant, initially at its Preston store, and later at Collingwood.
12 In 1997 she suffered pain in her right knee whilst playing netball. She experienced further problems with that knee, particularly in February 2000.
13 A CT scan taken in 2000 revealed a significantly deficient lateral femoral condyle which caused a mal-tracking of the right patella or kneecap. It was common ground that this was a congenital deformity which made her vulnerable to dislocations of the right patella. That is, she had a propensity before the subject accident for dislocations of that patella.
14 Notwithstanding that congenital vulnerability, she had for many years led an active life. She enjoyed playing competitive netball and was involved in kickboxing. On at least one occasion she played touch rugby.[5]
[5]Plaintiff’s Court Book (“PCB”) 95
15 On 7 November 1997 Ms Wilson attended at the Western Hospital Emergency Department, distressed with right knee pain. The history was that she had suffered a twisting injury whilst playing netball.[6] An x-ray was reported as showing no abnormality. She did not attend at the hospital for follow up. She saw her general practitioner, Dr Duong, once on 19 November 1997 at which time his notes indicate a diagnosis of ligament strain, a normal knee on examination and that she was “ambulating OK”. He referred her to physiotherapy.[7]
[6]DCB 40-42
[7]PCB 96.
16 I consider that, regardless of whether the November 1997 injury was a dislocation (as assumed later by various doctors) or a ligament strain, the consequences of it were relatively minor.
17 On 18 February 1998, she attended Dr Duong who noted a knee strain.[8] A similar note was made on 17 May 1999.
[8]PCB 97
18 An indication that Ms Wilson’s knee problems at that time were minor is that in July 1999 Dr Duong referred her to an orthopaedic surgeon, Mr Ian Jones, in relation to a bunion problem.[9] I consider it likely that, if her right knee problem was causing any problems at that time, the specialist would have been asked to also examine it.
[9]PCB 97
19 As I understood Ms Wilson’s evidence, she continued to play competition netball through 1997 to February 2000.
20 On 20 February 2000 she attended the Western Hospital Emergency Department following a further netball injury to her right knee. The history taken was that she had jumped for a ball, landed awkwardly and twisted her knee.[10] Mr Epstein of the orthopaedic department at the hospital considered that the most likely sequence of events was that she had laterally dislocated her right patella which had subsequently enlocated spontaneously by the time she had been seen by the registrar.[11]
[10]PCB 43-5
[11]DCB 1
21 Ms Wilson was cross-examined in some detail concerning the extent to which she had recovered from the February 2000 injury.
22 In her first affidavit, sworn on 28 August 2008,[12] she referred only to prior incidents of dislocation of her right knee whilst playing netball in 1998 and 1999. She said:
“On each occasion I treated that injury with rest and Nurofen. On each occasion the pain in my knee lasted for about one week before I made a full recovery. I otherwise had suffered no significant illnesses or injuries.”[13]
[12]PCB 31
[13]PCB 32 para. 3
23 On any view, that evidence was incorrect.
24 In her second affidavit sworn on 29 April 2011, Ms Wilson deposed to having been shown clinical notes from the Western Hospital and from Dr Duong’s clinic relating to her earlier injuries. She made a number of corrections to matters deposed to in her first affidavit. She accepted that the dislocation incident prior to the subject incident had last occurred in February 2000, rather than in 1999. I do not consider this mistaken date, looked at alone, was deliberate or important. Further, she conceded that the treatment she obtained following the February 2000 dislocation and the period of her recuperation from that injury was far more extensive than she had recalled. It is clear from the clinical notes that she continued to experience and complain of pain and disability in her right knee throughout 2000 and 2001.
25 Ms Wilson’s first affidavit was sworn approximately eight-and-a-half years after the February 2000 incident. Although that is a considerable period of time, I find it difficult to accept that at the time she swore her first affidavit, she could have been of the belief that, following that incident, the pain in her knee lasted for about one week before a full recovery was made, as she deposed was the case.
26 A reading of the clinical notes reveals the following relevant history:
(a) On 20 February 2000, she attended at the hospital with a history of injury to her right knee whilst playing netball. She had landed awkwardly during a game and twisted the right knee as she landed.
(b) From 20 February 2000, she attended at the hospital (orthopaedic department, physiotherapy and hydrotherapy) on some thirty-eight occasions until 11 April 2001. She underwent extensive physiotherapy and hydrotherapy.
(c) In addition, she attended upon Dr Duong’s clinic on some fourteen occasions between early June 2000 and 30 January 2002, on which occasions, the doctor noted her continuing right knee problems.
(d) Her knee was placed in a Zimmer splint at the hospital. She was prescribed Panadeine Forte medication.
(e) She was certified unfit for work.
(f) Her knee was x-rayed in February 2000[14], and was the subject of a CT scan in May 2000[15] and an MRI scan in September 2000.[16]
[14]PCB 35B
[15]PCB 35D
[16]PCB 36
(g) In March 2000 she was using crutches.[17]
[17]DCB 57
(h) In September 2000 Dr Duong noted that her knee still gave way and that she needed a parking form filled out. Ms Wilson accepted in evidence that this was a reference to her obtaining a disabled parking sticker.
(i) She attended some eighteen sessions of physiotherapy between March 2000 and February 2001.[18]
[18]DCB 57-65
(j) On 4 September 2000 Ms Wilson resigned from her employment with the first defendant “due to her medical condition”.[19] There was no evidence of any medical condition other than that relating to her right knee. On 1 September 2000 Mr De Steiger at the Western Hospital had noted that her job involved a lot of squatting and she could not do it because of pain.[20]
[19]DCB 33
[20]DCB 53
(k) Through the balance of 2000 and into 2001 there are a number of references in Dr Duong’s notes relating to continuing knee pain.
(l) In February 2001, the hospital notes record that she was “unable to descend stairs due to pain +”.[21]
[21]DCB 54
(m) In May 2001 Dr Duong noted that she was still in pain frequently and could not concentrate at school. At the time she was engaged in a tourism marketing course.[22]
[22]PCB 100
(n) In July 2001, Dr Duong noted that she was unable to attend university a lot. There was a lot of walking involved.[23] Dr Duong appears to have certified her unfit for work from July 2001 to at least April 2002.[24]
[23]PCB 100
[24]PCB 100-101
(o) She does not appear to have attended at orthopaedic outpatients at the Western Hospital since April 2001 or for physiotherapy since February 2001.
(p) Dr Duong has recorded no note concerning her right knee after January 2002 notwithstanding attendances at his surgery in March, May and June 2002 for unrelated matters.
27 Notwithstanding the concessions made in her second affidavit, I consider that her amended account of the problems that she was experiencing between February 2000 and February 2002, is scant in detail and in no way would amount to a full and frank account of the problems she was encountering with her right knee in that period.
28 The histories taken by doctors who examined Ms Wilson after the July 2002 incident for treatment or medico-legal purposes is also of concern to me.
29 In August 2002, about a month after the incident, Ms Wilson was referred to Mr Howells, orthopaedic surgeon. He took a history from her of three previous dislocations of the right knee, the first being in 1997. He noted that she had not had any treatment and did not describe any significant difficulty with the knee between those episodes.[25]
[25]PCB 65
30 The history taken by Mr Fogarty in October 2009 was that she had dislocated the right knee cap playing basketball when she was about sixteen, that it had settled down, that she had chosen not to return to basketball, and that she had not had trouble with her knee since commencing work with the first defendant in 1998.[26] This history appears to have been confirmed by her when Mr Fogarty reviewed her in August 2011.[27]
[26]PCB 78, 79.
[27]PCB 82
31 The history taken by Mr Brendan Dooley was that following an earlier dislocation in late 1996 she had had intensive physiotherapy and “on the whole had done well following this”.[28] The history taken by Mr Michael Dooley in November 2011 was all but identical.[29]
[28]DCB 30
[29]DCB 32a.
32 The history taken by Mr Weaver in October 2002 was that following an injury in 1997 she had been assessed at the Western Hospital, received a few sessions of physiotherapy, used crutches for a time, and that she fully recovered with no ongoing problems until recently.[30]
[30]DCB 3-4
33 The histories taken by Mr Gale in August 2008[31], Dr Wyatt in May 2003[32], Dr Turecek in May 2004[33] and Mr Shannon in June 2004[34] similarly contain no mention of the February 2000 injury.
[31]PCB 87
[32]DCB 11
[33]DCB 13
[34]DCB 22
34 I find that these inaccurate histories combined with the matters deposed to in Ms Wilson’s first affidavit amount to a conscious and dishonest attempt by her to mislead the various doctors referred to and the Court as to the extent of her right knee problems preceding the subject incident in July 2002.
35 In a case involving a further injury to the right knee or an aggravation of earlier injury, the history of symptoms is crucial to the issue as to whether the additional injury or aggravation amounts to a serious injury as defined in the Act, especially where as here Ms Wilson bears the onus of proving the extent and consequences of the injury suffered by her. Counsel for the defendant urged me to find that she was an unreliable witness generally.
36 Ms Wilson’s inaccurate and misleading histories are of considerable concern to me.
37 Following the injury of February 2000, Ms Wilson made a decision that it would be better for her not to continue playing netball. She has not returned to that activity. Nevertheless, by early 2002, her evidence was that she was regularly engaging in a variety of physical activities. She jogged approximately five kilometres on average two to three times per week. She engaged regularly in rollerblading and regularly went out dancing.
38 Ms Wilson gave evidence that, gradually through 2001, her symptoms had improved. By early 2002, she ceased attendances on her general practitioner in respect of her knee. She ceased attending at the Western Hospital in early 2001.
39 By mid-2001, Ms Wilson had returned to part-time or casual work with the first defendant at its Preston store.
40 In early January 2002, Ms Wilson sought and obtained full time employment with the first defendant at its Collingwood store. She continued to be so employed from then up to 3 July 2002 when she suffered further injury the subject of this application. During that period, her evidence was that she was not suffering from symptoms of pain or loss of use in her right knee. She jogged regularly. She rollerbladed regularly. She was unimpaired and engaged regularly in dancing activities.
41 Ms Wilson says that during the first half of 2002, her duties at the first defendant’s Collinwood store involved her in numerous activities going up and down stairs, squatting and bending. None of these activities caused her problems. She did not take any time off work as a consequence of any problems with her right knee. This evidence was not challenged by the first defendant. Notwithstanding, counsel for the defendant urged me not to accept her evidence of the improved state of her knee in the six months or so leading up to July 2002.
42 In the event that Ms Wilson had displayed any difficulty in performing her duties or if her duties did not involve such described activities, I would have anticipated evidence could have been led by the first defendant to that effect. In the absence of such evidence, I consider that I can rely more confidently on Ms Wilson’s evidence on those issues.
43 Whilst I am unable to accept that the matters set out in paragraph 3 of Ms Wilson’s first affidavit[35] or that the incomplete histories given to doctors were merely innocent omissions, I am nevertheless satisfied that she made a genuine attempt to put a truthful history to the Court in her oral evidence. I accept that in the six months or so leading up to 3 July 2002, Ms Wilson engaged in a variety of relatively athletic activities indicative of a recovery from her previous right knee injury. In particular, I am confident that if there had been any problems exhibited by her with regard to her left knee at work, the first defendant would have been in a position to lead evidence to that effect. It did not, and proffered no explanation for any inability to do so.
[35]PCB 32
Diagnoses of Injury and Consequences
44 Much of the medical evidence was non-contentious. It is clear from all medical reports tendered that Ms Wilson suffered from a congenital abnormality in her right knee, in that she had a very shallow trochlear groove, resulting in a mal-tracking of the patella. She had a propensity for dislocation of her right patella and similar congenital problems with her left knee.
45 For much of her youth that propensity had not prevented Ms Wilson from engaging in physical and athletic activities, including kickboxing and in particular, netball. Although she had had some isolated problems with her right knee in 1997 and 1998, it is not certain as to whether or not those problems involved a true dislocation of the patella as opposed to other provisional diagnoses of ligament strain. I consider, on balance, that those earlier incidents did involve some dislocation or subluxation of the patella.
46 I consider that it is most likely that the February 2000 incident involved a dislocation or partial subluxation of the right patella. This was the view of Mr de Steiger, who saw Ms Wilson at the Western General Hospital in 2000.
47 I accept that a person with a congenital condition such as Ms Wilson was vulnerable to dislocations of her knees. I do not accept that such dislocations were bound to occur. I note that notwithstanding the presence of such condition since birth, she has only experienced dislocations in the past as a consequence of playing netball, despite engaging in a number of energetic recreations including kick boxing, jogging, roller blading and activities in the course of employment. Ms Wilson informed me and I accept that netball is a sport involving rapid movement and sudden stops and changes of direction.
48 After the February 2000 incident she decided it would be better for her to retire from netball and she did not play thereafter. Mr Shannon expressed the view that it was almost inevitable that her patella would continue to dislocate and that it was merely a coincidence that such an event occurred at work[36] in July 2002. Likewise, Mr Brendan Dooley and Mr Michael Dooley were of the opinion that the probability was that, in the absence of the injury complained of, she would have continued to have problems with her right knee joint making it much more likely that she would suffer recurrent subluxation or dislocation of the patella in the future.[37]
[36]DCB 23
[37]DCB 32, 32d.
49 I do not accept that evidence. I consider that it ignores that, over many years, her only dislocations or subluxations occurred whilst playing netball. There was no evidence of any non-netball incident notwithstanding that she plainly had two knees more vulnerable than normal to such problems and that she had carried her work duties for the first defendant for several years.
50 The fact that Ms Wilson had a knee that was vulnerable to dislocation does not assist the defendant. It is no answer for it to submit that, but for her congenital vulnerability, she would have suffered less injury or perhaps no injury in the incident at work in July 2002.[38] The defendant bears the burden of establishing the predisposition to injury and the extent to which it has contributed to the harm suffered.[39] Insofar as the defendant carries the onus of demonstrating that Ms Wilson would have been suffering from the same or similar symptoms as presently suffered by her regardless of the July 2002 incident, I do not consider that it has discharged that onus.
[38]Dulieu v White & Sons [1901] 2 KB 669.
[39]Watts v Rake (1960) 108 CLR 158
51 I do not consider that the nature of the traumatic event of July 2002, or events similar to it, were events that would have inevitably occurred in time. Rather, I consider its occurrence was most unlikely in normal circumstances.
52 Counsel for the defendant did not dispute that Ms Wilson currently suffered from consequences of injury to her knee that, when looked at alone, satisfied the “more than considerable” threshold.[40] Rather he submitted that extent of injury or aggravation of injury suffered in the July 2002 incident and the consequences of it did not satisfy the threshold.
[40]T. 168-9.
53 I consider that the threshold test is satisfied here for the following reasons:
(a) Notwithstanding that Ms Wilson had lead an active and athletic lifestyle, she appears only to have dislocated her knee playing netball.
(b) After the February 2000 incident she retired from netball and did not intend to take it up again. It follows that complications from netball were unlikely to recur.
(c) Despite a relatively lengthy recovery period after the February 2000 incident involving extensive treatment by way of physiotherapy, hydrotherapy and analgesic medication, by the early part of 2002 she had largely recovered from the injury or aggravation of injury suffered in that incident.
(d) She had returned to full-time employment with the first defendant in a job involving frequent squatting, climbing of stairs and remaining on her feet for much of the day. She had no time off work in the first half of 2002 and coped with all of her duties.
(e) In the first half of 2002 her knee condition was such that she was able to regularly jog and roller-blade.
(f) For nearly all of the six months leading up the July 2002 incident, she did not attend upon any medical practitioner in respect of her knee.
54 The contrast between her condition over the six months leading to the July 2002 incident and that afterwards is immense:
(a) She has suffered from severe knee pain.
(b) She has undergone three surgical procedures –
(i) In February 2003, an arthroscopy involving chondroplasty of articular damage, and a lateral patellar retinacular release performed through an open lateral incision.
(ii) In October 2003, an open patello-femoral stabilization of the knee described more fully in Mr Howells’ operation note.[41]
[41]PCB 70-71
(iii) In July 2004, the removal of surgical staples inserted in the knee in the second procedure.
(c) She has needed to take considerable quantities of analgesia up to the present time. Before the July 2002 incident she was taking no such medication.
(d) She is unable to walk or stand for any prolonged period.
(e) She has difficulty sitting for prolonged periods or in bending her knee or squatting.
(f) She has difficulty in lifting objects of any substantial weight.
(g) She has difficulty in walking up or down stairs or over uneven ground.
(h) Her sleep is frequently interrupted by knee pain. She sleeps in broken shifts.
(i) She is no longer able to jog, roller-blade or dance.
(j) Whilst she may be able to return to some form of light work in the future (not involving prolonged periods sitting, standing, use of stairs or steps, lifting of weights etc) her capacity for employment has been considerably impaired and she will find it more difficult to find steady employment than would have otherwise have been the case.
55 I am required to make a comparison of Ms Wilson’s condition immediately before the July 2002 incident with her condition thereafter and currently and assess any additional impairment in order to assess whether this additional element amounts to a serious injury as defined.[42]
[42]Petkovski v Galletti [1994] 1 VR 436 at 443; De Agostino v Leatch & Anor [2011] VSCA 249 at paragraphs 9 – 11.
56 Counsel for the defendant conceded that the decision as to whether or not Ms Wilson has suffered a serious injury in the July 2002 incident depended upon whether or not I accepted her evidence concerning her condition, activities and lack of symptoms in her knee in the period of six months or so leading up to the incident. In view of my findings in that regard I do not consider it necessary to examine further the various opinions of medical practitioners whose reports were tendered in evidence.
57 On the basis of the matters set out above, I am satisfied that a comparison of the condition of Ms Wilson’s knee immediately prior to the July 2002 incident and afterwards up to the present time establishes that the consequences to her of the aggravation of her left knee are, when judged by comparison with other cases in the range of possible impairments or losses of body function, can fairly be described as more than significant or marked and at least very considerable.
Conclusion
58 For the reasons expressed above, there will be leave to Ms Wilson pursuant to s.134AB(16)(b) to commence proceedings for recovery of pain and suffering damages in respect of injuries suffered in the course of her employment with the first defendant on or about 3 July 2002.
59 I shall hear the parties in respect of costs.
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