Zwart v Transport Accident Commission
[2020] VCC 1951
•11 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04394
| WILLIAM EREVILLE ZWART | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 and 24 June 2020 | |
DATE OF JUDGMENT: | 11 December 2020 | |
CASE MAY BE CITED AS: | Zwart v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1951 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the left knee and left ankle – pre-existing and supervening injuries – whether the transport injury is “serious”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Bezzina v Phi [2012] VSCA 161; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to issue common law proceedings for damages arising out of a transport accident suffered by him on or about 13 March 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr C Nettleford | Arnold Dallas McPherson Lawyers |
| For the Defendant | Mr A J McG Moulds QC with Ms V Katotas | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion, the plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common law proceedings to recover damages for a left knee and left ankle injury (“the injury”) suffered by him arising out of a transport accident on 13 March 2013 (“the transport accident”).
Relevant legal principles
2 The Court must not give leave 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 s93(17) of the Act.[1]
[1]See s93(6) of the Act
3 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act which reads:
“In this section—
…
Serious injury means—
(a) serious long-term impairment or loss of a body function; or
(b) …
(c) … .”
4 In order to succeed in his application, the plaintiff must satisfy the Court that the consequences of his injury are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and or pain and suffering;
(c)the question to be asked is whether the injury, “when judged by comparison with other cases in the range of possible impairments or losses, be fairly be described at least as ‘very considerable’ and certainly more than [merely] ‘significant’ or ‘marked’”.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
5 The plaintiff alleges that the pain and suffering consequences of his injury satisfy the threshold test as being “at least very considerable”.
6 The defendant denies that this is so and, further, that any impairment of the left knee is not compensable, as the impairment of the left knee as at the date of hearing is approximately where the plaintiff would be without the transport accident.
7 Senior Counsel for the plaintiff submitted that the injury relied upon in this application is one of aggravation of a pre-existing degenerative left knee and, to a lesser extent, a fresh injury to the left ankle.
8 It is common ground that as a result of an incident on 13 March 2013, the plaintiff suffered a left knee injury which caused him to come to surgery by surgeon, Mr Peter Lugg, on 14 January 2014 in which Mr Lugg performed, arthroscopically, inter alia, the removal of loose bodies and a chondroplasty of the MFC, MTC and LFC.[3] It was also common ground that this was a discrete injury suffered in the transport accident.
[3]Exhibit P, Plaintiff’s Court Book (“PCB”) 42
9 Senior Counsel for the defendant submits the injury was a twisting-type injury involving no nor negligible direct contact with the plaintiff’s left knee and his employer’s truck”.[4]
[4]Exhibit N, report of Mr Peter Battlay, surgeon, dated 24 June 2013 at PCB 56-61
10 Although the defendant accepts that the plaintiff aggravated underlying degenerative changes in the left knee in the relevant incident, a previous history of a 1990 left knee injury and subsequent impairment and resultant treatment led to the conclusion that the left knee, prior to 13 March 2013, was “some distance from being ‘asymptomatic’”.[5]
[5]Defendant’s written outline of submissions, paragraph 2
11 It was further submitted that the pre-existing injury forced the plaintiff to change from his work at Safeway and, in effect, choose a different occupation in security.[6] Further, it was submitted the evidence disclosed that the plaintiff, between commencing the security work in 2007 and the time of the accident, was limited to running for fifteen minutes or so[7] and started comprehensive gym work in order to cope with his left knee problems.[8] It was also asserted the plaintiff stated he could not work in a job that put him on his feet for extended periods.[9]
[6]Transcript (“T”), Lines (“L”) 17-23; T46, L6-21; T48, L1-4; T53, L24-31; T54, L1-6
[7]T56, L8-15
[8]T56, L20-31; T57, L9-20
[9]T53, L24-31; T54, L1-6
12 Nonetheless, it was common ground that after the plaintiff commenced at Armaguard in 2007, with the help of his gym and exercises, he was able to work full time, without treatment, as a crew leader.
13 It is further common ground that after undergoing the arthroscopy performed by Mr Lugg on 14 January 2014, the left knee remained symptomatic, the extent of which was in contention.[10]
[10]Defendant’s written outline of submissions, paragraph 4
14 Further, in August 2015, the plaintiff suffered an injury to his right knee when getting down from a truck. He again consulted Mr Lugg and came to arthroscopy on that knee on 17 December 2015 and thereafter, the right knee also remained symptomatic.
15 Both parties agree that the plaintiff’s injury has to meet the test laid down in Petkovski v Galletti[11] as follows:
“The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.
But, next, ‘the injury’ – that is, the injury which resulted from the accident – ‘must involve serious long-term impairment … of a body function’.”
[11][1994] 1 VR 436 at 444
16 It was further submitted by the defendant that consequences which flow from the non-compensable right knee condition must be “disentangled” from the consequences which flow from the compensable injury to the left knee.
The Plaintiff’s evidence
17 The plaintiff has sworn four affidavits dated 25 September 2018, 31 January 2020, 6 March 2020 and 17 June 2020[12] and was cross-examined upon same.
[12]Exhibit A
18 The substance of this evidence was as follows.
19 The plaintiff was born in February 1969 and was aged fifty at the time of hearing. He is separated from his wife and has two children of that union, aged twelve and sixteen. He completed Year 11 education.
20 After school, he worked in retail jobs at Coles Supermarkets for a number of years, including in management roles, and also at Safeway for about six months. He had also worked in the hospitality industry and in personal training.
21 The plaintiff moved into security work in about 2000 for employers such as Chubb Security, at various venues.
22 In approximately 2007, he commenced employment with Linfox Armaguard Pty Ltd (“Linfox Armaguard”).
23 The plaintiff was employed as a crew leader and his work involved manually loading trucks with ATM cases and handling bags of coins and equipment. He was required to attend clients’ premises and undertake duties involving loading and unloading the truck, lifting and carrying consignments and clearing of safes, ATMs and change machines. The work involved regular periods of prolonged kneeling, such as when clearing safes or working on ATMs or change machines.
24 The plaintiff swore that he first injured his left knee in a motor vehicle accident which occurred on 17 November 1990. He was treated by Mr Lugg initially for an injury to his right shoulder, as apparently this was the most significant injury at the time. However, he subsequently had arthroscopies performed by Mr Lugg on the left knee, performed on 23 April 1993 and 27 March 1996. Mr Lugg continued to monitor the plaintiff for his left knee symptoms, culminating in an MRI scan being required by Mr Lugg on 27 September 1999 in order to rule out further surgery. This was not recommended.
25 The plaintiff thereafter did not see Mr Lugg again until after his left-knee injury, which was on 2 December 2013.
26 Further, the plaintiff swore that he had to do a “physical” to obtain employment with Linfox Armaguard 2007 and passed. He considered himself fit and active in that period.
27 Further, he swore that before the transport accident, he was very active. He played indoor cricket once a week, social golf with friends and was able to walk the course. He played indoor soccer once a fortnight and went to the gym four or five times a week. He stated he had no pain in the left knee and did a lot of running.
28 As to the circumstances of the injury, the plaintiff stated he was standing close to an Armaguard truck, which was reversing and about to hit a parked vehicle. The plaintiff went to the side of the truck to try and warn the driver but he did not stop. He banged on the back door but the truck kept reversing. The plaintiff was moving backwards to get out of the way when “the vehicle made contact with me. I rolled my ankle and also injured my left knee. Due to the force through my left leg and ankle, the sole separated from my boot”.[13]
[13]Exhibit A, affidavit, dated 25 September 2018, paragraph 15 at PCB 4
29 Thereafter, the plaintiff was driven to Frankston Hospital Emergency Department, underwent scans and was provided with pain medication and discharged home. He attended the company doctor and was off work for several days and thereafter, returned on modified duties. He stated his ankle settled but the left knee condition worsened.
30 The plaintiff had physiotherapy with “Physio Spot”. He was also referred back to Mr Lugg for further advice.
31 After his arthroscopic operation on 14 January 2014, the plaintiff returned to work on modified duties and over time, he got back to working on the road.
32 After returning to work, he continued to have left knee pain. He tried to protect his left knee by taking his weight on the left knee when kneeling and would limp at times. He stated the left knee pain was an ongoing significant issue.
33 In September 2015, he stated he was getting out of a truck at work when he experienced pain in his right knee. He had scans on that knee and was referred back to Mr Lugg, who then operated on the right knee on 17 December 2015.
34 The plaintiff said he had a further period of time off work following the right knee operation and subsequently, returned to work and was placed on restricted duties for about sixteen months. In this period, he stated he had “locking in my left knee and pain in both knees after sitting for lengthy periods”.[14]
[14]Exhibit A, affidavit, dated 25 September 2018, paragraph 27 at PCB 6
35 Apparently he was not cleared for his pre-injury role as a crew leader due to his problems with both knees.
36 In any event, he swore that he continued to experience pain and reduced function of his left knee. Also due to worsening symptoms of the left knee in 2016, involving pain and locking in catching, he had further attendances with Mr Lugg. Although he discussed the option of a further arthroscopic operation, he decided against it.
37 Thereafter, the plaintiff had courses of platelet-rich plasma injections in both knees as advised by Mr Lugg. He had a repeat of these injections in 2018, which he alleged did not help.
38 As at September 2018, the plaintiff stated he was currently working for Linfox Armaguard as a driver but was unable to work as a crew leader because he was not able to do the squatting and kneeling involved in those duties “primarily to my left knee condition”.[15] He avoids kneeling in his present job. He swore:
“The pain in my left knee increases throughout the day and is typically bad by the end of the shift. I find that I have to move around and regularly straighten or bend my knee due to aching. I also have difficulty going up and down stairs, especially if I have to carry bags of coin.”[16]
[15]Exhibit A, affidavit, dated 25 September 2018, paragraph 31 at PCB 7
[16]Exhibit A, affidavit, dated 25 September 2018, paragraph 31 at PCB 7
39 Further, the plaintiff swore that he preferred doing his work as a crew leader. He enjoyed taking the lead role and arranging the delivery runs and he enjoyed interactions with customers. He does not get the same satisfaction from his current position and he now has pain every day at work and is concerned about his employment future.
40 In his first affidavit, the plaintiff swore:
“My main injury is my left knee. It is getting worse over time.”[17]
[17]Exhibit A, affidavit, dated 25 September 2018, paragraph 34 at PCB 8
41 With respect to his right knee, the plaintiff swears:
“I have some ongoing issues with my right knee and I believe this has worsened because I have been putting more weight on my right knee, such as when getting down from a truck, due to my left knee injury. However, my right knee condition is not as bad as the condition of my left knee. My left knee injury is significantly worse.”[18]
[18]Exhibit A, affidavit, dated 25 September 2018, paragraph 35 at PCB 8
42 The plaintiff also swore:
“I also have ongoing pain in my left ankle and swelling. It gives way at times. My left ankle symptoms are not to the level of my left knee injury, but the ankle is an ongoing, daily problem.”[19]
[19]Exhibit A, affidavit, dated 25 September 2018, paragraph 36 at PCB 8
43 With respect to medication, the plaintiff swore:
“I take Panadol Osteo multiple times per day, but have found that this medication does not really help with my left knee pain. I am limited in what medication I can take during work days due to the drug policy of my employer. I currently also take Panadeine Forte near the end of each shift and again when I get home. I sometimes take Mobic, an anti-inflammatory medication, but not every day as I understand there are risks with this medication for my stomach. I also take Nexium.”[20]
[20]Exhibit A, affidavit, dated 25 September 2018, paragraph 37 at PCB 8
44 The plaintiff further swore:
“In addition to the above medications, I use Voltaren and Osteo gels on a daily basis. I also use compression and ice to alleviate the symptoms in my knee and I undertake exercises, including walking in a pool, and gymnasium rehabilitation.”[21]
[21]Exhibit A, affidavit, dated 25 September 2018, paragraph 38 at PCB 8
45 Further, the plaintiff swore in his first affidavit:
“I have constant pain in my left knee. My left knee pain is deteriorating. I notice knee pain when I wake up in the morning. It gets progressively worse during a day’s work or when I have been more active. It gets worse later in the week. The pain is such that I now require Panadeine Forte in the afternoon and again before I go to bed. After work, I rest my knee. I avoid too much walking. My knee sometimes locks and catches. When I go shopping, I often use a trolley for support. I have nocturnal pain and locking in my left knee overnight. I am woken overnight by left knee pain, often two or three times per night.”[22]
[22]Exhibit A, affidavit, dated 25 September 2018, paragraph 40 at PCB 9
46 Further consequences are as follows:
“I wear a brace on my left knee every day. I sometimes also wear a brace on right knee when it is more painful, particularly later in the week.”[23]
[23]Exhibit A, affidavit, dated 25 September 2018, paragraph 41 at PCB 9
47 Further:
“My left knee aches and is stiff and sore with prolonged sitting. I need to keep my knee moving. I have difficulty getting up out of chairs after I have been sitting for a long period of time.”[24]
[24]Exhibit A, affidavit, dated 25 September 2018, paragraph 42 at PCB 9
48 Further:
“I have to take care when I get up out of bed, as my left knee sometimes gives way no reason. My left knee often feels weak. The symptoms of my knee are getting worse over time.”[25]
[25]Exhibit A, affidavit, dated 25 September 2018, paragraph 43 at PCB 9
49 As to his pre-injury condition, the plaintiff swore:
“Prior to the injury to my left knee, I was playing indoor cricket with friends in a social competition. I gave this up after the injury to my knee. I have also given up playing golf as I cannot take the weight through my knee when swinging a club. I do not run because of my knee. I basically can’t kneel due to left knee pain, and I am restricted with squatting.”[26]
[26]Exhibit A, affidavit, dated 25 September 2018, paragraph 45 at PCB 10
50 Further, the plaintiff swore:
“I am restricted in what I can manage at home and around the house. Due to my problem with kneeling, I have significant difficulty with gardening and also certain cleaning tasks. I have had to pay for assistance at home with gardening and cleaning due to the worsening of my left knee condition. Due to my knee injury, I am restricted with activities with my children. I have to avoid running or playing active sports with them. I have done some coaching of softball for one of my children which I was able to manage but had to take it easy and be careful with my knee.”[27]
[27]Exhibit A, affidavit, dated 25 September 2018, paragraph 46 at PCB 10
51 In the follow-up affidavit sworn 31 January 2020, the plaintiff swore:
“I have constant pain in my left knee. The pain is worse during the day. My left knee gives way most days. Pain can radiate up into my left thigh and hip.”[28]
[28]Exhibit A, affidavit sworn 31 January 2020, paragraph 3 at PCB 11
52 The plaintiff further swore that he wears a brace on his left knee daily until he goes to bed. Thereafter, he applies an ice pack to the knee every night when he gets home from work. He then applies a heat pack to his left knee just before he goes to bed. He stated he tried to go to the gym three times a week and uses a stationary bike to strengthen his knee.[29]
[29]Exhibit A, affidavit sworn 31 January 2020, paragraph 4 at PCB 11-12
53 Because of the employer’s drug policy, the plaintiff states:
“… I take Palexia on Friday and Saturday nights; 2 Panadeine Forte maybe once or twice a week at home; and Panadol Osteo, 2 tablets three times a day and Ibuprofen 2 tablets twice a day as the Panadol Osteo and Ibuprofen are not covered by the drug and alcohol policy. I take Temazepam to assist with sleeping on the weekends.”[30]
[30]Exhibit A, affidavit sworn 31 January 2020, paragraph 5 at PCB 12
54 As to pre-injury activities, the plaintiff confirmed his earlier evidence and also stated that he went to the gym four or five times a week and had no pain in his left knee. He also did a lot of running.[31]
[31]Exhibit A, affidavit sworn 31 January 2020, paragraph 6 at PCB 12
55 In a further affidavit sworn 6 March 2020, the plaintiff swore:
“I continue to have right knee pain. I wear a brace. My job involves kneeling. I kneel with my right knee as it less painful than the left. Sometimes I might kneel on both knees, but when I do I try to move my weight onto my right knee, as it would be extremely painful favouring the left knee. My left knee pain on a daily basis is worse than the right.”[32]
[32]Exhibit A, affidavit sworn 31 January 2020, paragraph 5 at PCB 14
56 In his final affidavit sworn 17 June 2020, the plaintiff referred to his then current injuries. He swore:
“I have no issues with low back pain. I have daily pain in my right knee, I wear a brace at work but this does not restrict me as my left knee does. My left ankle swells daily but does not inhibit my activities as my left knee does.”[33]
[33]Exhibit A, affidavit sworn 31 January 2020, paragraph 7 at PCB 18
57 With respect to his left knee, the plaintiff swore:
“I have constant left knee pain. I wear a brace during the day. My left knee pain affects my sleep. I find it difficult to get to sleep and I often wake in pain which I attribute to having straightened my left knee whilst I was asleep. Straightening my left knee is difficult, painful, and I occasionally hyperextend when walking. I can lose balance and I feel insecure, especially on uneven ground. I try to avoid squatting because it applies too much pressure on my left knee and increases my left knee pain significantly. Walking from side to side, as distinct from in a straight line, puts pressure on my left knee and increases my knee pain. As a result, I try to avoid this type of walking where possible. Going up and down stairs makes me feel insecure because it increases my left knee pain and I fear falling. I hold onto the rail. Getting in and out of the truck at work involves putting weight on my left knee and I am also careful in carrying out these activities.”[34]
[34]Exhibit A, affidavit sworn 31 January 2020, paragraph 8 at PCB 18
58 Further, the plaintiff swore:
“Domestically, doing the heavy cleaning at home, such as cleaning the shower, oven, toilet or carpet puts pressure on my left knee and increases my pain. I try to avoid these activities but often I just have to. I use a ladder to clean gutters and I try to avoid this because I fear I might fall because I feel insecure on the ladder, not being able to apply full pressure to my left knee. I avoid the gardening because it increases my left knee pain due to squatting. I do the mowing but I find this increases my left knee pain. Using the mower puts pressure on my left knee and increases my pain. Again, I feel insecure and fear falling. I have a front and rear lawn and I stop once or twice mowing the front lawn because my left knee has become too painful and about 3 times in the back yard, where there is a slope, and this increases my left knee pain.”[35]
[35]Exhibit A, affidavit sworn 31 January 2020, paragraph 9 at PCB 18-19
59 As to treatment, the plaintiff swore:
“I attend my GP for prescriptions and observation. I have a TENS machine which I use at home every night. I ice my knee when I get home and I apply a heat pack when I go to bed. I also do home exercises that have been taught to me by the physiotherapist. I use a rubber band that I attach to a chair to stretch my leg.”[36]
[36]Exhibit A, affidavit sworn 31 January 2020, paragraph 15 at PCB 20
Medical evidence
60 Senior Counsel for the defendant submitted that in the context of this particular case, the medical evidence was crucial, albeit conceding that the ultimate decision was judicial rather than medical.
61 Both counsel referred extensively to the treating surgeon, Mr Lugg, and in particular, it was submitted by the defendant that the essence of Mr Lugg’s report was that the left knee impairment was essentially the same as it would have been absent the 2013 transport accident.
62 The plaintiff tendered seven reports from Mr Lugg dated 5 December 2013 (two), 14 January 2014, 21 September 2016, 27 October 2016, 19 December 2001 and 22 July 2020.[37] The defendant, in turn, tendered fourteen reports or letters from Mr Lugg dated, 25 February 1991, 19 September 1991, 27 January 1993, 23 February 1996, 20 August 1999, 17 September 2015, 10 December 2015, 17 December 2015, 21 September 2016, 6 April 2016, 8 April 2016, 10 May 2016, 21 September 2016.[38] Mr Lugg did not give viva voce evidence before me. The clinical progress can be summarised as follows.
[37]Exhibit G
[38]Exhibit 10
63 Mr Lugg first saw the plaintiff on 4 December 1990 following a motor vehicle accident on 17 November 1990. Examination of the left knee revealed pain over the medial femoral condyle. X-rays of the knee were normal. Mr Lugg presumed the plaintiff had taken a direct blow over the medial femoral condyle, presumably from the steering wheel. He suspected that this was a soft-tissue injury, although a chondral injury was possible. He had asked the physiotherapist to turn his attention to the knee as well.[39]
[39]Exhibit 10, Defendant’s Court Book (“DCB”) 71-72
64 On 27 January 1993, Mr Lugg reported to TAC that the plaintiff continued to have pain in the left knee and he thought it appropriate to perform an arthroscopy and sought permission.[40]
[40]Exhibit 10, DCB 73
65 In Mr Lugg’s clinical records,[41] he describes the findings of the left knee at arthroscopy in March 1996 as follows:
“… No intra-articular pathology could be found apart from a medial plica and quite a proliferative retro-patellar fat pad and this was resected back in the chance it might be impinging and contributing to his anterior knee pain.
…
I think you client’s condition has stabilised. I think the prognosis is fair to reasonably good.”[42]
[41]Exhibit 19
[42]Exhibit 19, DCB 244
66 Further, Mr Lugg’s clinical records demonstrate that the plaintiff attended on four occasions in 1998 and two occasions in 1999. There was then no treatment until 2 December 2013 which was then in respect of the transport accident.
67 The evidence would also disclose that in that fourteen-year period, there is no suggestion the plaintiff had treatment in respect of his left knee or was taking any medication in respect of same.[43]
[43]T55, L15-19
68 On 17 September 2015, Mr Lugg wrote to the WorkCover insurer with respect to the right knee injury suffered on 26 August 2015. He considered the plaintiff had suffered an acute injury to the right knee as a result of a twisting injury and the likely acute injury was a tear of the posterior horn of the lateral meniscus. Subsequent to this, the plaintiff developed synovitis and a secondary effusion in the knee associated with a Baker’s cyst. Furthermore, he had chondromalacia in the knee and this may have been made more symptomatic due to the twisting injury.[44]
[44]Exhibit 10, DCB 65
69 On 10 May 2016, Mr Lugg again wrote to the WorkCover insurer that the plaintiff had –
“… achieved a good result from the arthroscopy performed on his right knee, and I would like to request permission to perform a left knee arthroscopy.”[45]
[45]Exhibit 10, DCB 62
70 On this occasion, Mr Lugg related a history that the plaintiff –
“… is having trouble with his left knee with pain and the feeling of instability. I organised an MRI which show[s] some changes in both the medial and lateral menisci.”[46]
[46]Exhibit 10, DCB 62
71 Mr Lugg had also written to the workplace doctor, Dr Alex Chau, on 6 April 2016, to similar effect.
“I reviewed William Zwart on the above date. His right knee is doing pretty well.
He is now complaining of one month of left knee pain with locking and swelling which he finds annoying.
Examination doesn’t reveal very much.
I have arranged an MRI scan.
I would say that he may well be developing medial compartment osteoarthritis in his left knee as well, and lateral wedges might be worth thinking about for both knees to help him.”[47]
[47]Exhibit 10, DCB 74
72 Further, Mr Lugg wrote to the WorkCover insurer on 21 September 2016 to the following effect:
“1. What are the clinical indications for the left knee arthroscopic surgery for the claimant, given a similar procedure was performed in January 2014?
The reason why I requested it is because the patient was very keen to have it, and his reason for having it was because he had a return of the pain in his left knee, and this was associated with a crunching sensation which effectively is patellofemoral crepitus.
He said that the arthroscopy at the start of 2014 gave him significant improvement in symptoms until around the middle of 2015.
…
2. Are there any mechanical symptoms or signs present?
Yes there is. Essentially these are rather coarse patellofemoral crepitus, present in both knees, but much more in the left at present.
… .”[48]
[48]Exhibit G, PCB 224
73 Further, Mr Lugg wrote to the insurer on 27 October 2016 to the following effect:
“William has presented with ongoing pain in his left knee. WE dedcied (sic) not to proceed with an arthroscopy of either of his knees, as the few mechanical symptoms that he had have now settled. He no longer has mechanical symptoms but he does have pathology on the MRI scan, basically degenerative changes, bicompartmental, and I am as certain as I can be that this is the pathology causing his current symptoms.
I think it is unlikely that an arthroscopy would be of any use to him in helping the resolution of his symptoms.
More conservative measures are required and in his particular case I think a course of PRP injections into his left knee in particular, but also into his right knee, would be very helpful and can be done as a[n] outpatient procedure of three injections.”[49]
[49]Exhibit G, PCB 229
74 In his ultimate report dated 22 June 2020, Mr Lugg wrote to the plaintiff’s solicitors and summarised his position as follows:
“History of left knee condition prior to March 2013:
Mr Zwart was referred to me by his local doctor, Dr Peter Coulton, of Glen Waverley, for an opinion regarding management of problems following Mr Zwart being involved in a motor vehicle accident on 17th November 1990. I saw him in early December. He had a Grade Ill dislocation of the acromioclavicular joint of the right shoulder, and an irreducible anterior dislocation of his sternoclavicular joint on the same side. The should was his man problem at that time. However, he was also complaining of some pain in the left knee, mainly over the anterior aspect. He also had a likely fractured nose. I referred him on to an ENT surgeon,
I have treated his knee with non surgical management, physiotherapy and pain relief, and thought that this injury was likely, by the history he gave, due to his left knee either hitting the steering wheel or the dashboard of his car in the accident.
… .”[50]
[50]Exhibit G, PCB 134
75 Further, Mr Lugg stated:
“In 1993 I performed an arthroscopy on the left knee as he complained of ongoing anterior knee pain. The arthroscopy was basically normal apart from chondromalacia of the patella articular surface. A lateral release was performed as was the custom in those days for any non specific anterior knee pain.
…
The main issues going on a few years after the 1993 arthroscopy was that, although his anterolateral pain had largely resolved, if not completely resolved, he had persistent anteromedial left knee pain.”[51]
[51]Exhibit G, PCB 135
76 A repeat arthroscopy was performed on 27 March 1996. Mr Lugg stated:
“… The articular surfaces were all normal, the fat pad was thought to be somewhat hypertrophic and was resected using a combination of the shaver and coagulation diathermy.
It should be noted that he had an MRI scan of that left knee late in 1995 as part of our investigation leading up to the arthroscopy. This MRI scan showed normal findings apart from a small Baker’s cyst.”[52]
[52]Exhibit G, PCB 135
77 Then, Mr Lugg relates:
“lnjury 13th March 2013:
Mr Zwart described hyperextending his left knee when he tripped alongside his truck on the above date. He also suffered an inversion injury to his left ankle ..
…
An MRI scan had been arranged, and performed on 30th April, and suggested he had a meniscal body in the body of the medial meniscus.
…
The arthroscopy was performed on the 14th January 2014 as 6 months of non surgical management had failed to resolve his symptoms.
… The findings were as follows: Normal AGL and no tear found in the medial meniscus. Presumably the signal change in the medial meniscus was degenerative or consistent with degenerative change.
There was an area of Grade II chondral damage in the medial femoral condyle adjacent to the intercondylar notch, and a smaller area of Grade I - II changes on the medial tibial condyle. There were also Grade II changes on the lateral tibial condyle with the lateral femoral condyle being normal and the patellofemoral joint normal.”[53]
[53]Exhibit G, PCB 135
78 With respect to the right knee, Mr Lugg stated:
“He returned to see me on 10th September 2015. He said that whilst working (sic) as an Armaguard truck driver, on 26th August prior to my consultation, he twisted on his right leg as he was alighting from the truck and then felt a significant amount of pain on the medial side of the right knee.
An MRI scan had already been arranged on 27th August and this demonstrated degenerative change in the medial and lateral compartments as well as the trochlea and patella and reported (although I couldn’t see this) a small posterior horn tear of the lateral meniscus.
…
… arthroscopy … was performed on 29th December 2015, with a degenerative tear found in the medial meniscus and some degenerative change in all 3 compartments of the knee.”[54]
[54]Exhibit G, PCB 136
79 Significantly, Mr Lugg then relates:
“Early post op he did well and he returned to see me on 5th April 2016, his right knee was doing quite well. He was now however complaining of left knee pain with locking and swelling.”[55]
[55]Exhibit G, PCB 136
80 Thereafter:
“I did arrange an MRI scan of his left knee and I reviewed this with him on 20th April [2016], and basically he had similar changes in the left knee on the MRI scan as he had on his right knee.
He had a couple of appoingments (sic) in July discussing ongoing management of his knees, and when I saw him on 24th October 2016 I told him that I thought we should probably try to manage his knees conservatively for the time being, although he was probably heading for a knee replacement on both sides. I suggested a course of PRP injections and requested permission to proceed with this.
I understand he had a course of these not long after he last saw me from Dr Peter Lewis, and these did help a bit. The help seemed to be sufficient enough to last him until 2018 when he had a second course of these injections, but these apparently haven’t helped him much.”[56]
[56]Exhibit G, PCB 136
81 As to the current situation, Mr Lugg reported that the plaintiff had recovered well from the first operation on the left knee but –
“… did continue to present with anterior knee pain symptoms for some time but was treated non surgically with physical therapy.”[57]
[57]Exhibit G, PCB 136
82 With respect to the operational findings in 2014 compared to 1991, Mr Lugg commented:
“These findings were in contrast to those back in the early 1990s when all articular surfaces were normal.”[58]
[58]Exhibit G, PCB 137
83 Further, subsequent tests have shown that his left knee arthritis had worsened, both symptomatically and radiologically after the 2013 injury.[59]
[59]Exhibit G, PCB 137
84 Thereafter, Mr Lugg appears to sum up the clinical and radiological history, together with the opinions of other surgeons who have given opinions in this case, in the following manner:
“[I] have spent a great deal of time reviewing all the various reports that have been supplied in order to offer an opinion on him. The reports that I read in great detail, and read and re read them are those of Dr John Owen, Dr Peter Steadman, and Dr Garry Grossbard, all orthopaedic surgeons.
Essentially there is not a great deal of difference in their opinions: All are of the opinion that Mr Zwart now does have osteoarthritis of his left knee. It is almost certainly tricompartmental and symptoms comes from all 3 compartments.
As the reports state, the degenerative change would almost certainly have been present whether or not he had the injury in 2013. Mr Owen says there was probably a temporary aggravation of that knee’s pathology at the time of the injury and Mr Grossbard I think opines that there has been a permanent aggravation or if you like worsening of the arthritis due to the incident in 2013. Mr Steadman says only the impact of constitution and hereditary factors now is the cause of this man’s arthritis.
My opinion would lie somewhere in the middle of these. It is not that I am ‘sitting on the fence’ but having had bilateral knee replacements and put up with the arthritis for a long time, I believe I have a reasonable insight into the problem. I will offer more opinion in the answers to your questions.”[60]
[60]Exhibit G, PCB 137
85 Mr Lugg’s diagnosis with respect to the 13 March 2013 injury was as follows:
“The diagnosis of the injury sustained in your client’s left knee on 13th March 2013 is that he suffered an aggravation of pre existing, at least bicompartmental and possibly tricompartmental osteoarthritis of his left knee.”[61]
[61]Exhibit G, PCB 137
86 Mr Lugg was then asked:
“Leaving aside any psychological consequences and disregarding any other injuries he suffers, do the physical injuries and impairment of our client’s left knee cause limitations on his employment?”
87 He answered:
“Impairment of your client’s left knee certainly causes limitations on his employment. The physical injuries at that time were part of the cause of limitations on his employment.”[62]
[62]Exhibit G, PCB 137
88 Mr Lugg was then asked in similar terms as to the future with respect to the left knee, and he replied:
“Impairment of your client’s left knee will impact on his ability to work in the future, with ever increasing severity. Whilst I think that the physical injury sustained in the accident in 2013 did increase his symptoms, perhaps even increase his symptoms to a new level from which he has never recovered, I believe that the primary factors in this man’s degenerative change are an inherited tendency to arthritis. I have also had the extra knowledge of treating Mr Zwart’s father and he developed osteoarthritis of both knees as well. It was a similar pattern arthritis.
The other factor involved in the severity of symptoms is Mr Zwart’s obesity.”[63]
[63]Exhibit G, PCB 137
89 Mr Lugg went on to comment:
“There is no doubt the impairment of your client’s left knee causes him to have significant restriction on all other non employment activities and will do so for the foreseeable future.
…
Like Mr Zwart, I did also have a couple of significant injuries to the knees which seemed to make them suddenly a step or two worse, and they did not seem to recover from that sudden sharp increase in overall disability.
I think this is what has happened to Mr Zwart. The left knee injury when he twisted on what was already an arthritic knee, with the hyperextension injury, has caused him to suddenly become a couple of steps worse on the arthritis ladder, with a concomitant increase in his disability.
In my opinion there is a small contribution from that injury to his overall disability, but the majority of his disability is undoubtedly due to hereditary factors and the pathology also aggravated by his obesity.”[64]
[64]Exhibit G, PCB 138
Conclusions
90 Senior Counsel for the defendant urges the Court to find that the gist of Mr Lugg’s opinion aligns with the statement of the Court of Appeal in Bezzina v Phi[65] to the effect that the plaintiff is virtually in the same position with respect to the impairment of the left knee as he would be without the relevant transport accident. Senior Counsel also submits that the right knee injury impairment has not been sufficiently disentangled from the left knee impairment as per the principle laid out in Peak Engineering & Anor v McKenzie.[66]
[65][2012] VSCA 161 at paragraph [23]
[66][2014] VSCA 67 at paragraphs [24] and [25]
91 In my view, the clinical increase in symptoms with respect to the left knee impairment after March 2013 has been adequately addressed by the plaintiff in his sworn evidence and corroborated with the clinical progress recorded by Mr Lugg referred to above.
92 Whilst I can accept Mr Lugg’s opinion that “… there is a small contribution from … [the] injury to his overall disability, but the majority of his disability is undoubtedly due to hereditary factors and the pathology also aggravated by his obesity”,[67] there is no doubt in my mind that the plaintiff has demonstrated a clinical worsening of his impairment in the left knee, as referred to in his evidence above, such that he has a greater compromise in the function in the left knee over and above that which subsisted prior to 2013 and has compromised his capacity to kneel and bend in the left knee independently of the right knee condition. I consider that the medication occasioned by the transport accident has continued virtually to the present time, albeit also addressing the plaintiff’s pain in the right knee. He has consistently stated that the left knee impairment is worse than the right knee and there is clinical and medical corroboration from at least Mr Lugg, as referred to above.
[67]Exhibit G, PCB 138
93 In addition to Mr Lugg’s medical expertise, I accept his own anecdotal evidence with respect to a similar condition, when he stated:
“Like Mr Zwart, I did also have a couple of significant injuries to the knees which seemed to make them suddenly a step or two worse, and they did not seem to recover from that sudden sharp increase in overall disability.”[68]
[68]Exhibit G, PCB 138
94 I find that a similar situation subsists with the plaintiff and that that increase in impairment is “serious” in terms of the template laid down in Humphries & Anor v Poljak.[69]
[69]Supra at 140
95 For completeness, the clinical findings by Mr Lugg referred to in paragraphs 77, 82, 83, 85, 87 and 88 lead me to prefer his analysis compared to the other medico-legal examiners in this case, even those who may be considered more favourable, such as Mr Grossbard.
96 Leave will be granted to the plaintiff to issue common law proceedings for damages arising out of a transport accident suffered on or about 13 March 2013.
97 I will hear the parties as to any consequential orders.
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