in the county court of victoria at melbourne common … · 2017-08-18 · at melbourne common law...

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION SERIOUS INJURY LIST

Revised Not Restricted

Suitable for Publication

Case No. CI-16-04382

ITZHAK NAFTALI Plaintiff

V

AUSTRALIAN EVEN PRESSURE CO PTY LTD Defendant

JUDGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION:

HER HONOUR JUDGE K L BOURKE

Melbourne

8 August 2017

15 August 2017

Naftali v Australian Even Pressure Co Pty Ltd

[2017] VCC 1099

REASONS FOR JUDGMENT

Subject: Catchwords: Legislation Cited: Cases Cited

Judgment:

ACCIDENT COMPENSATION Serious injury — injury to the right knee — pain and suffering only Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38) Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Dwyer v Ca/co Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Application dismissed.

APPEARANCES: Counsel Solicitors

For the Plaintiff Mr N Bird Slater & Gordon

For the Defendant Mr D Masel SC with Minter Ellison Ms D H Costaras

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

HER HONOUR:

This is an application for leave to bring proceedings for damages pursuant to

s134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") for injury

suffered by the plaintiff during the course of his employment with the defendant

on 21 June 2013 ("the said date").

2 The plaintiff seeks leave to bring proceedings for damages in relation to pain

and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of

"serious injury" to be found in s134AB(37) of the Act. There, "serious injury' is

defined relevantly as meaning:

"(a) permanent serious impairment or loss of a body function."

4 The relevant body function is the right lower limb - right knee.

5 By s134AB(38)I of the Act, the impairment must have consequences in relation

to pain and suffering which, when judged by comparison with other cases in

the range of possible impairments, may be fairly described, at the date of the

hearing, "as being at least very considerable and more than significant or

marked".

6 Subsection 38(h) provides consequences which are psychologically based are

to be wholly disregarded in paragraph (a) cases.

I. have applied the principles identified by the Court of Appeal in Barwon

Spinners Pty Ltd & Ors v Podolakl and Grech v Orica Australia Pty Ltd & Anor2

in reaching my conclusions.

(2005) 14 VR 622 2 (2006) 14 VR 602

VCC:LM/LW/AS 1 JUDGMENT


8 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition,

both parties relied on medical reports and other material which was tendered in

evidence. I have read all the tendered material.

The Plaintiff's evidence

9 The plaintiff is presently aged thirty-one, having been born in Israel in June

1976.

10 After secondary school, the plaintiff completed four years of army service and

then travelled for about two years. When he returned to Israel, he completed a

Bachelor of Arts, and thereafter, worked as a freelance journalist fora brief time.

11 In January 2004, the plaintiff came to Australia with his wife. He completed a

Master's Degree in Professional Communication at Deakin University and while

studying part time, he worked part time in a mobile car wash service.

12 In June 2004, the plaintiff commenced working for the defendant, which traded

as Pegasus Health Care. He was employed as a product representative and

mainly attended hospitals and aged care facilities, demonstrating the functions

and benefits of various products, such as air mattresses and bariatric beds.

13 The plaintiff injured his right knee in the course of his employment with the

defendant on the said date, when he and another worker were manoeuvring a

bed into the work van. While doing so, one of the rails came off the back edge

of the van, causing the bed to roll back and knock the plaintiff's right knee ("the

incident").

14 Following the incident, the plaintiff had a lot of right knee pain. He attended the

work doctor in Cheltenham on 24 June 2013, who arranged an x-ray, which the

plaintiff understood did not disclose anything wrong. However, the plaintiff then

went off work.

15 The plaintiff attended Dr Sinha, his family doctor at the Rye Clinic. An MRI scan

of the plaintiff's right knee was undertaken on 1 July 2013, which he understood

VCC:LM/LW/AS 2 JUDGMENT Naftali v Australian Even Pressure Co Pty Ltd

showed a meniscus tear. He was prescribed anti-inflammatory medication, but

that did not seem to help.

16 The plaintiff did not work between the incident date and his operation. During

that time, he registered a company Naftali Group Pty Ltd and two other business

names.3

17 The plaintiff had not decided at that time to move on with his life because of his

injuries and set up his own business. The company set up was recommended

by his accountant. The plaintiff was then a sole trader and had been advised

to set up a company for taxation purposes!'

18 The plaintiff was referred to Associate Professor Max Esser, orthopaedic

surgeon, who operated on his right knee on 7 October 2013 ("the operation").

19 Thereafter, the plaintiff had some physiotherapy with Graham Reid at Sorrento

Physiotherapy, and did hydrotherapy for a couple of months.

20 The plaintiff returned to work with the defendant on modified duties in late

December 2013. His work was basically sitting at a computer and testing parts

for air mattresses. After about three months, he returned to his pre-injury duties

but struggled a bit with right knee pain and long drives, which aggravated his

pain. He was then living in Rye.

21 In January 2013, initially as a bit of a hobby, the plaintiff started his own mobile

locksmith business, known as "Unlock My Door" ("the business"). He did this

work at night after a day at work with the defendant. When the incident

occurred, the plaintiff was getting a bit of momentum with the business.

22 The plaintiff denied that before his injury it was his hope that if his business did

well, he would be able to stop working for someone else and run his own

business full time. He was getting paid $820 a week by the defendant he

3 Transcript ("T") 10 4 T11

VCC:LIWLW/AS 3 JUDGMENT Naftali v Australian Even Pressure Co Pty Ltd

wanted to make some extra money because he had two children and a

mortgage .5

23 After the incident, the plaintiff required more assistance from his wife in the

business, such as with driving. He also needed help from contractors, as he

struggled then, as has been the case since, because of right knee pain.

24 The plaintiff continued to operate the business, and that was partly why he and

his wife moved to Armadale from Rye in early 2016. A lot of the plaintiff's work

at that time was based around the south-eastern area of Melbourne, and there

was too much driving involved living in Rye.

25 Working in the business, the plaintiff's right knee became sore. He could cope

with the work because there was not much kneeling or squatting involved, and

a lot of the work could be done standing.

26 When he swore his first affidavit in April 2016, the plaintiff did not have a treating

doctor in Melbourne. He was quite health conscious and tried to avoid taking

medication if he could. He occasionally took a Panadol for pain relief and

sometimes applied ice to his right knee if it was too painful.

27 The plaintiff then experienced right knee pain if he was on his feet for too long

or he was too active. The pain was worse in cooler weather. He normally woke

up with pain if he rolled onto his right knee when sleeping.

28 Walking on uneven surfaces and up and down stairs aggravated the plaintiff's

right knee pain. If he walked too far he experienced pain. He could no longer

run properly.

29 Movements involving bending, kneeling and squatting were now more difficult.

The plaintiff's right knee began to ache if he sat in one position for too long. He

had difficulty driving longer distances.

5 T8



30 The plaintiff lived with his wife and his two boys, who were then three and five.

Unfortunately, because of the plaintiff's knee injury, he had not been able to run

around and kick a football, or play freely with his children, as he would have

naturally liked to do.

31 Prior to the incident, the plaintiff was very active in his leisure pursuits. When

he lived in Israel, he surfed frequently, about once a week. In Australia, when

he was initially living in Melbourne, he often went surfing on the West Coast.

32 The plaintiff and his wife lived in Rye for a few years leading up to the incident,

and during that time he used to go surfing about five times a week, at places

such as Rye and Gunnamatta.

33 Unfortunately, because of his knee injury, the plaintiff could not surf very well at

all. He had tried a few times since the incident, the first being for about an hour,

and that only lasted ten minutes. Surfing aggravated his knee pain a lot, and

he did not feel stable standing on the board.

34 The plaintiff also used to enjoy mountain bike riding, regularly riding about once

a week before the incident. However, since then he had barely ridden because

doing so caused a lot of right knee pain. He also used to sometimes enjoy

running but that now would cause too much right knee pain.

35 The plaintiff's right knee injury had caused him considerable pain and suffering,

and his work options had been affected and narrowed.

36 In his recent affidavit sworn on 7 August 2017, the plaintiff confirmed, since April

2016, he continued to get right leg pain, in particular, over the knee, which he

described as an ache. It increases and becomes more significantly sharper

with activity, especially on bending his knee, and is also exacerbated by cold

weather.

37 The plaintiff still wakes in the mornings with right knee pain and his sleep is

disturbed if he rolls onto his right knee when sleeping.


38 The plaintiff attends the gym three times a week, but limits his exercise to his

upper body. He self manages his knee pain, as he has been advised there is

no specific treatment that can assist him further.

39 The plaintiff now occasionally takes Panadol to relieve his pain, although he

tries to avoid taking pain medication as it is not good for him.

40 • The plaintiff continues to manage the business, which is an on-call business,

twenty-four hours a day, seven days a week. He is unable to perform the

routine locksmith work for more than three hours or so each night before his

knee becomes too sore. When this happens, he arranges for a subcontractor

to complete the work.

41 The plaintiff currently employs one subcontractor and is currently holding

interviews to employ another. The plaintiff is able to carry out the administrative

work of the business without restriction.

42 The plaintiff remains limited in his ability to drive for any substantial distance

due to his knee pain, significantly increasing after about an hour behind the

wheel. He drives an automatic Volkswagen Golf, which requires him to use his

right foot and leg when driving. As the business is situated in the City, he used

to have to drive long distances to work when he lived in Rye. In order to reduce

his driving and knee pain, the plaintiff moved to Armadale in January 2016, and

from Armadale to Malvern East in January this year.

43 Some time in the very brief cross-examination was spent on the plaintiff's

activities shown on the surveillance video of 7 November 2013, when he

attended an appointment at Dr Wilson's clinic.

44 Before the film was shown, the plaintiff confirmed he had problems driving after

the injury. His wife did the driving before the operation and for a few months

thereafter.6

6 T5

VCC:LM/LW/AS 6 JUDGMENT Naftali v Aus ra Ian Even Pressure Co Pty Ltd

45 The plaintiff agreed he told Dr Wilson on that attendance that he was not driving.

He asked the plaintiff if he drove to the appointment and he told him his wife

drove, but somehow Dr Wilson said that the plaintiff drove, which he did not.'

46 The plaintiff did not know there was a film of him on that day, nor had he seen

any paperwork relating to it. Having been shown the film, the plaintiff agreed

he did drive to the appointment. During that period, he did drive and he did not

say he never drove.8 His wife used to drive him from Rye to Melbourne, but on

that day he drove.9

47 The plaintiff could not remember that occasion, and confirmed his wife used to

drive him to Melbourne.19 At that stage, he was restricted by his doctor to

driving no more than half an hour at a time. He denied that he was aware that

he was being followed at that time.11

48 The plaintiff's walking is now limited to about an hour before knee pain

increases and he has to have a rest. He usually tries to limit walking to thirty

minutes or less to prevent his knee ache from being exacerbated too much. He

is restricted when walking up and down sloping terrain. He can manage walking

on uneven ground if he is very careful.

49 The plaintiff finds prolonged sitting for more than thirty to forty-five minutes

causes his knee pain to increase and his knee to stiffen up. He also has

difficulty climbing and standing on ladders for prolonged periods. He has great

difficulty kneeling and cannot squat.

50 The plaintiff can do his work standing, but doing so for more than half an hour

increases his right knee pain and he often will require a break to rest. He also

has difficulty carrying his tool box, which weighs between 10 and 15 kilograms.

7 T12 8 T13 9 T14 10 T15 11 T16


51 The plaintiff was cross-examined about his 2014-2015 and 2015-2016 personal

taxation returns.

52 The plaintiff agreed that both returns showed he claimed driving expenses with

a business use of 75,000 kilometres in those years.12 The second year included

six months when he was living in Melbourne. During the time he lived in Rye,

the round trip to Melbourne was 300 kilometres a day before he did any work

driving.13

53 The plaintiff advised the reason he moved from Rye to Melbourne was because

he could not cope with the breaks and long drives. He confirmed he could drive

up to forty-five minutes or up to an hour without a break.14

54 The plaintiff agreed that his taxation returns indicated there were business sales

of about a quarter of a million dollars in those two years, subcontractor's fees

of about 30,000 and that the profit after deduction of expenses was about

$80,000 in both years.15 He has yet to file a return for the past financial year.

55 The plaintiff has had one subcontractor in each year. The subcontractor gets a

percentage of the sale, depending on the work, the advertising and the time of

day the work is done. The subcontractor charged $25 to $50 an hour per job,

which is paid as commission.16 The business roughly charges between $150

to $250 for a job in the middle of the night, and the commission went up

accordingly.

56 The plaintiff agreed he had told a number of doctors that he is presently working

full time in the business.17

57 Since swearing his first affidavit, the plaintiff has separated from his wife and

now lives alone. He shares custody of the two boys, who are now aged five

12 T6 13 T23 14 T24 15 T24 16 125 17 125


and seven. He looks after them every Wednesday and every second weekend.

He continues to be restricted in his ability to run around and play freely with

them.

58 Since swearing his last affidavit, the plaintiff has only attempted to kick a soccer

ball once with his boys for fifteen minutes. As a result, his right knee pain

increased considerably and the knee joint stiffened up. He took four Panadol

to manage the increased pain, but he was stiff and sore for several days

afterwards.

59 The plaintiff has not been able to surf and he cannot ride a bike, as these

activities aggravate his right knee pain.

60 On or about 10 June this year, the plaintiff went overseas to visit family

members and spent a week in Holland and two weeks in Israel. He managed

the flights okay because he arranged an emergency exit seat which gave him

extra leg room. He also regularly stood and walked around the cabin to stretch

his leg out.

61 The plaintiff took about four Panadol during the flight to help with knee pain.

While travelling, he continued to have right knee pain, which increased with

activity. When he was in Israel, he went to the beach a few times, but he could

not do anything more than stand in the water. While overseas, he took over-

the-counter medication when required.

62 The plaintiff has recently returned from a further week's trip to Holland. Again,

he obtained an exit row seat so he could have more leg room, and followed the

same routine as on the flights earlier in the year to help reduce his knee pain

and stiffness. He also took Panadol when required. He did not manage to do

any sightseeing on the trip.

63 There was no re-examination.


The Plaintiff's treaters

64 Associate Professor Max Esser, orthopaedic surgeon, first saw the plaintiff at

Dr Sinha's request on 1 August 2013.

65 The plaintiff was then complaining of pain in his right knee, with difficulty twisting

andbending. He had had a lot of discomfort for the previous five weeks and

was not able to participate in a range of sports.

66 Mr Esser noted the plaintiff was a rather apprehensive man on examination. He

lacked a few degrees of full extension of his right knee and there was marked

medial joint line tenderness.

67 Mr Esser thought an MRI scan of the right knee of July 2013 showed a tear of

the posterior horn of the medial meniscus.

68 Mr Esser considered the plaintiff had a significant inflammatory response to the

meniscal lesion. He discussed the meniscal pathology and that the plaintiff

would benefit from some regular anti-inflammatory medications.

69 On review on 19 August 2013, the plaintiff's knee had improved significantly

and at that stage, the plaintiff was keen to pursue a non-operative program. On

re-examination on 16 September 2013, the plaintiff still had pain and discomfort

in the medial aspect of his knee, and he felt he failed conservative therapy.

70 On 7 October 2013. Mr Esser carried out an EUA, arthroscopy and arthroscopic

partial medial meniscectomy of the right knee ("the operation").

71 Under anaesthetic, the right knee was stable. The findings were a normal

patella and patellofemoral tracking. The articular cartilage was well preserved

in both the medial femoral condyle and medial tibial plateau. The tear was

noted, and it was torn inferiorly, as was suggested by the MRI scan.

72 There was an irregular edge of the meniscus adjacent to the free edge, and

also a medial synovial plica. An incomplete tear of the capsular attachment

posterior horn was noted.



73 Mr Esser was able to reset the unstable edges of the meniscal tear adjacent to

the free edge and trimmed down the stable meniscal tissue.

74 On re-examination on 24 October 2013, the plaintiff was somewhat slow with

this rehabilitation. He had pain and discomfort in the medial ligament, and Mr

Esser thought they may have been a little stretched during the procedure and

thought the plaintiff would benefit from continuing physiotherapy. He also

arranged for the plaintiff to have some Lyrica.

75 On re-examination on 11 November 2013, Mr Esser noted that medication had

helped with the plaintiffs pain management. He had increased flexion and also

complained of some swelling with exercises. Mr Esser considered the

possibility of an x-ray-guided steroid injection. He thought the plaintiff was

walking much better, and encouraged him to swim three times a week. He

understood the plaintiff was then having physiotherapy.

76 On 21 November 2013, Mr Esser noted the plaintiff was walking well and could

get his right knee fully extended. He still had some pain over the medial femoral

condyle and tenderness over the lateral ligament, but no significant effusion.

77 A consultation was arranged for 9 December 2013, but the plaintiff did not

attend.

78 Mr Esser concluded the plaintiff had had a meniscal tear of the posterior horn

of his right knee associated with an incomplete posterior horn tear. The rest of

the knee looked normal and there was tight medial plica. The plaintiff's post-

operative progress was somewhat slow, as documented. When last seen, Mr

Esser thought the plaintiff's prognosis was good; however, he was progressing

somewhat slowly.

79 The plaintiff initially presented for physiotherapy at Sorrento Physiotherapy on

22 October 2013, two weeks after the operation.

80 Treatment was along symptomatic lines, and active and passive mobilising and


strengthening work.

81 Graham Reid, physiotherapist, noted that ongoing apprehension and poor

compliance with undertaking a home exercise regime led to slower

improvement. There were further gains in terms of increased movement by 25

November 2013.

82 The plaintiff was last seen for treatment on 17 December 2013 with a further

improvement in range of flexion.

83 Mr Reid noted the plaintiff failed to attend his scheduled appointment on 19

December 2013 and subsequent attempts to contact him were unsuccessful.

84 In Mr Reid's view, there appeared to be no physical barrier to a good prognosis

being achieved, noting the plaintiff frequently self resisted attempts to mobilise,

possibly due to apprehension.

85 Dr Sinha, the plaintiff's general practitioner at the Rye Family Clinic, reported

briefly in November 2013, and most recently in May 2015.

86 In the latter report, Dr Sinha noted the plaintiff had had a protracted recovery

after the operation, which included physiotherapy and pain relief. The plaintiff

felt he could not go back to his pre-injury duties at present; however, Dr Sinha

did not feel qualified to offer any comment regarding prognosis, and left that to

the specialist.

Medico-legal evidence

87 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in March

2016.

88 The plaintiff told him that he was then working full time as a self-employed

locksmith and was managing well at work.

89 On examination, the plaintiff complained of persistent intermittent right knee

pain, aggravated by weight bearing. The pain fluctuated in intensity and was


directly proportional to his level of physical activity. He denied symptoms of

clicking, swelling, locking or giving way. He had difficulty negotiating stairs, in

particular ascending. He was not able to squat, and had difficulty kneeling, and

his pain was aggravated by the cold weather.

90 On examination of the right knee, there was no effusion. There was mild medial

joint line tenderness and retropatellar tenderness. There was mild

patellofemoral crepitus. The knee was stable in the anterolateral, posterior and

mediolateral planes.

91 As a consequence of his knee injury, Mr Kossmann thought the plaintiff was

unfit to return to his previous employment, which necessitated heavy manual

handling of equipment and prolonged weight bearing. He considered the

plaintiff had the capacity to engage in alternative work that is not heavy and

manual, noting he was currently managing well as a self-employed locksmith,

and was managing working full time.

92 Mr Kossmann thought the plaintiff may be developing post-traumatic

degenerative osteoarthritis of the right knee, and noted that his prognosis will

be better determined after a definitive diagnosis following an MRI scan of the

knee.

93 In the event the plaintiff was developing post-traumatic degenerative

osteoarthritis of the right knee joint, the chance of this occurring, of which he

was not able to quantify, Mr Kossmann noted the condition was often

progressive in nature, and if it did progress, the plaintiff may become a

candidate for consideration of a right total knee joint replacement.

94 Mr Kossmann thought the plaintiff's prognosis may improve with ongoing

analgesia and physiotherapy, targeting VMO strengthening exercises, and

hydrotherapy may be beneficial.

95 Mr Kenneth Brearley, general surgeon, examined the plaintiff in June 2017.

VCC:LIVI/LW/AS 13 JUDGMENT Naftali v Australian Even Pressure Co Pty Ltd

96 The plaintiff then advised he had right knee pain if he over exercised the knee

and leg. He was comfortable when resting, but did have some discomfort in

cold and changing weather. He did not have any locking or crepitus, or other

symptoms.

97 The plaintiff advised he was inhibited somewhat in his job as a locksmith and

he is not able, in fact, to do routine work for more than three hours at night, and

he has to then send the work to another subcontractor.

98 On examination, there was no deformity of the right knee. There was slight

tenderness over the medial joint line and there was no effusion. Movements of

the knee were full and the joint was stable, and there was no crepitus on

movements. There was slight wasting of the thigh musculature, with 48.5

centimetres in circumference on the right patella, compared to 49.5 centimetres

on the left.

99 Mr Brearley thought the plaintiff sustained a tear of the posterior horn of the

medial meniscus of the right knee in the incident. He considered the plaintiff

was restricted to a moderate extent with regard to a range of physical tasks,

including bending, lifting, twisting, stooping, pushing, pulling, kneeling,

prolonged postures, use of stairs, and fine and manipulative movements of the

right knee, and that such incapacity would continue for the foreseeable future.

100 Mr Brearley noted, basically, the plaintiff can manage his current work but at

times he has to use a subcontractor, for after three hours or so, he has problems

with the knee and prefers not to do any work.

101 Mr Brearley noted the plaintiff is no longer able to drive for long periods, nor is

he able to go surfing or bicycling, or walk for more than an hour or so, and he

cannot run.

102 Mr Brearley thought there was a slightly increased risk of developing arthritis

because of the meniscal injury, although he thought this would be unlikely. He



considered there was no indication for intervention or operative treatment, now,

or in the foreseeable future.

103 Mr Brearley noted the 7 November 2013 surveillance DVD basically showed

the plaintiff walking to a medical centre and getting in and out of a car and

driving. He had a slight limp. In further film, later that month, the plaintiff

collected his child from a childcare centre and was later seen to be walking and

standing in a shopping centre.

The Defendant's medico-legal evidence

104 Dr John Nash examined the plaintiff at the defendant's request in September

2015 for the purposes of an AMA assessment.

105 The plaintiff then advised his right knee was pain free at rest and painful with

weight bearing, kneeling and squatting. He was no longer able to perform pre-

injury activities such as surfing, cycling and jogging. AD L's were not a problem.

Standing tolerance was about an hour. He drove an automatic car, but required

rest breaks every thirty minutes. Sleep was interrupted by pain, waking

approximately twice each night.

106 On examination, there was no swelling of the right knee, no tenderness, no

significant varus, valgus or other deformity, no crepitus and no abnormal skin

temperature or colouration. The knee was able to fully extend. There was no

weakness, and ligaments and menisci were clinically intact. Quadricep

circumferences were 51.5 centimetres on the right and 52 centimetres on the

left, and calf circumferences were equal. There was mild pain at the end range

of squats, and the plaintiff was able to fully stand on the right leg alone.

107 Based on the history, examination and imaging, Dr Nash thought the plaintiff

sustained an injury, namely a medial meniscus tear, during the course of his

employment. The injury had stabilised and there was no total loss component.

108 Dr George Wilson, occupational physician, first examined the plaintiff on 7

November 2013.



109 The plaintiff then told Dr Wilson his right knee felt tight and he experienced

sharp pain on the inside thereof when he bent. His sleep remained disturbed

by pain and his knee felt stiff and sore in the morning. He said the pain had

been improving progressively since the surgery.

o The plaintiff advised, as yet, he was not driving. His sitting, standing and

walking tolerances were around ten minutes. He was not squatting or kneeling.

111 At that stage, the plaintiff had had contact with Nabenet, and a return to work

program had been provided.

112 Dr Wilson thought the plaintiff sustained a medial meniscal tear during the

incident. He expected the plaintiff would need at least another four to six weeks

of physiotherapy to improve his capacity for flexion and extension. At that

stage, he did not think the plaintiff had the capacity to work in pre-injury duties

and hours, but had the work capacity for office and administrative duties, noting

the issue for him was he could not drive, so he could not do his usual job.

113 Dr Wilson was subsequently sent the surveillance DVD of 7 November 2013,

which indicated the plaintiff drove to and from the appointment, although the

plaintiff had told him he was, at that stage, unable to drive.

114 Having seen the film, and the plaintiff having denied driving, Dr Wilson was

unable to, then, rely on the veracity of the statements the plaintiff made about

his tolerances. On that basis, he believed the plaintiff does have the capacity

to undertake pre-injury duties and hours, and had the capacity to commence

the return to work program, which involved two four-hour shifts, increasing to

normal hours over four weeks.

115 Dr Wilson re-examined the plaintiff in July 2017.

116 The plaintiff then advised he had occasional ache in the right knee relating to

increased activity and also cold weather. There was no locking or jamming of

the knee, and no giving way. The plaintiff could manage stairs and uneven



ground within reason.

117 The plaintiff advised he no longer surfs or rides a bike, and cannot run. His

sitting tolerance is around thirty to forty-five minutes, his walking tolerance is

around forty-five to sixty minutes, and his driving tolerance is around sixty

minutes. Kneeling is difficult, and he cannot squat. He manages all activities

of daily living. The plaintiff advised that his knee had plateaued for some time.

118 The plaintiff told Dr Wilson he has a 24/7 locksmith business in which he uses

subcontractors. He might work two or three hours a night. He takes phone

calls and distributes work to the subcontractors.

119 On examination, the plaintiff walked without a limp. He could weight bear on

his right leg. There was no swelling of the right knee or wasting of the right

thigh. There was some minimal tenderness along the medial joint line. The

plaintiff could flex the right knee to 90 degrees and fully extend. He could flex

the left knee to 140 degrees and fully extend.

120 Dr Wilson noted, as the Medical Panel also found, there was no evidence of

gait derangement, limb length discrepancy, muscle wasting or weakness, joint

ankylosis or arthritis, joint instability or neurovascular injury resulting from the

right knee injury. Essentially, there was no difference between his examination

and that of the Medical Panel, and Dr Wilson had no reason to disagree with its

assessment.

121 Dr Wilson concluded medical constraints specifically impact on the plaintiff's

right knee function, such that he has a reasonable driving tolerance, it would

seem of an hour, with no capacity to squat and an incapacity for kneeling. He

would also expect the plaintiff would have limited capacity for going up and

down ladders.

122 Dr Wilson thought treatment was not required and that the plaintiff did not

require surgery. He had residual restriction of right knee function, which


appears to be indefinite, in which case the effects of the work-related injury will

be indefinite.

123 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in June 2017.

124 The plaintiff then told Mr Jones his knee continued to be painful, but there were

no mechanical symptoms such as locking up or giving way. The plaintiff found

it difficult to kneel on his right knee and he could not drive a car for long periods

or carry his toolbox around for too long, as that made his knee ache.

Occasionally, there was pain at night.

125 The plaintiff advised that since the injury, activities had been substantially

curtailed. Prior thereto, he was a keen surfer and bike rider, but was no longer

confident to undertake those activities.

126 On examination, knee flexion was limited to about 90 degrees by patellofemoral

pain, whereas the opposite left knee flexed and extended normally. Pressure

on the patellofemoral joint caused the plaintiff discomfort. Thigh circumferences

appeared to be roughly equal at 46 centimetres.

127 Although the examination was somewhat limited, Mr Jones thought there was

no sign of residual internal derangement in the right knee and the cause of the

ongoing symptoms, at least from a clinical point of view, was not obvious.

128 Mr Jones concluded the source of the plaintiff's ongoing knee pain was not

obvious, either clinically or radiologically. He noted Mr Esser's operation note

described a very limited meniscal resection and no major meniscal injury.

Further, the Medical Panel was equally puzzled as to the cause of the ongoing

dysfunction.

129 Mr Jones noted the plaintiff was no longer employed by the defendant, but was

operating his own mobile locksmith business and could put in variable hours,

with some symptoms, making kneeling, squatting and engagement in sporting

activities difficult.

VCCIM/LW/AS 18 JUDGMENT


130 Mr Jones was not able to provide a diagnosis in concrete terms, but believed

the plaintiff's condition was stable and deterioration seemed unlikely.

131 Mr Jones did not believe the plaintiff could work in his pre-injury employment

noting, however, a current capacity for work, and that the plaintiff continued to

work in his own business as a mobile locksmith.

132 Mr Jones was not able to recommend any medical constraints at this time. He

thought treatment was currently not required and he did not believe surgery was

required, noting the plaintiff, himself, was far from keen on surgery.

133 Mr Jones concluded the effects of the work-related injury had ceased.

134 Mr Jones was subsequently provided with the surveillance DVD of 28

November 2013.

135 From viewing that film, Mr Jones thought there was no restriction of activity or

a gait aid of any kind, with the plaintiff bending his knee normally. He noted that

one would have to conclude, after examining the DVD, that the plaintiff had no

detectable knee disability whatsoever.

136 The Medical Panel provided an Opinion on 20 December 2015 that the plaintiff

had a 4 per cent whole person impairment resulting from the accepted right

knee injury.

Surveillance

137 Film was shown of the plaintiff on 7 November 2013.18

138 On that date, in the month after the operation, the plaintiff was shown attending

Dr Wilson's surgery. It was apparent from the film that the plaintiff drove to and

from that appointment. He was shown limping, walking to and from his car.

139 There was also a short film of the plaintiff taken on 28 November 2013,19 which

showed him moving slowly, dropping his child off at kindergarten and attending

18 Exhibit 1 19 Exhibit 2


a shop.

140 The first film was relied on by counsel for the defendant as to the plaintiff's credit

having told Dr Wilson, he was not driving at the time of the first examination.

However, it was not said that the plaintiff was showing a level of activity

inconsistent with his evidence, as he was showing limping in what was only a

month after the surgery.2°

Business records

141 The business was registered from 27 September 2012. The plaintiff also

registered the business name "Raphael Medical" on 26 April 2013 and

"Clickworxs Online Marketing" on 18 December 2012. Those two business

names were current until November 2015.

142 On 11 September 2013, a company, Naftali Group Pty Ltd, commenced trading,

the director and secretary of which was the plaintiff.

The Plaintiff's taxation returns

143 The plaintiff's individual taxation return of 2014-2015 set out a taxable income

of $90,123 from the business, with business income of $245,155 and total

expenses of $155,038. There were subcontractor commission expenses of

$32,143 and a claim for motor vehicle business use of 75,000 kilometres.

144 The plaintiff's individual taxation return of 2015-2016 showed a taxable income

of $75,222 from the business, with business income of $256,530 and total

expenses of $181,308. There were subcontractor commission expenses of

$37,038 in that year, and a claim for business motor vehicle expenses involving

driving of 75,000 kilometres.

Overview

145 There is no dispute the plaintiff suffered a compensable injury to his right knee

in the incident — namely a partial tear of the meniscus, treated surgically by

20 T13



arthroscopy.21

146 There is no suggestion of any pre-existing knee problems, or that the plaintiff's

current knee condition has anything other than an organic basis.

147 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:22

"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."

148 While the plaintiff misled Dr Wilson as to his driving capacity, in my view, this

was not really a credit case. I do not believe that the plaintiff has significantly

overstated his level of pain and restriction, and the film was of limited value, as

counsel for the defendant conceded.23

149 I accept that there was no great attack on the plaintiff's affidavit.24 However, it

was submitted by counsel for the defendant that the plaintiff's account of his

residual symptoms should be taken somewhat cautiously, given his misleading

history to Dr Wilson about driving.25

150 Essentially, the issue in this case is one of range.26

Pain

151 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:27

"... the evidentiary basis of the pain assessment will ordinarily comprise the following:

(a) what the plaintiff says about the pain (both in court and to doctors);

(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);

(c) what the doctors say about the extent and intensity of the plaintiff's pain; and

21 T28 22 (2010) 31 VR 1 at paragraph [12] 23 T17 24 136 25 T35 26 T28 27 (Supra) at paragraph [11]


(d) what the objective evidence shows about the disabling effect of the pain."

152 The plaintiff does not describe a high level of ongoing knee pain, having recently

deposed the pain is an ache, which increases on activity, especially on bending

his knee and in the cold weather. There is some sleep disturbance associated

with pain. He has some difficulty standing for extended periods and also

walking on uneven surfaces. Squatting, bending and kneeling are now more

difficult.

153 The plaintiff does not complain of his knee clicking, swelling, locking or a

sensation of it giving way.

154 On recent examination, there have not been significant findings of wasting,

tenderness, significant restriction of movement, crepitus or instability.28

155 I do not accept, as was submitted by counsel for the plaintiff, that there was "a

fair bit going on", as indicated by the operation report, particularly in light of Mr

Jones' comment that in the operation note, Mr Esser described a very limited

meniscal resection and no major meniscal injury.29

Treatment

156 The plaintiff has not had any "hands on" treatment for nearly four years, when

he appears to have self-discharged from Mr Esser and also his physiotherapist,

who both had made arrangements to see him further later that year.3° When

last seen by both practitioners, the plaintiff was noted to then be progressing

well.

157 There is no suggestion the plaintiff sees a general practitioner in Melbourne for

treatment of his knee , the most recent report from a general practitioner, being

the 2015 report from Dr Sinha at Rye, which was very brief.31

158 The plaintiff does not require ongoing painkilling medication for knee pain. He

28 T33-T34 29 T36 30 T29 31 T30



takes the occasional Panadol and sometimes uses an ice pack.32

159 Whilst Mr Kossman discussed the possibility of the plaintiff developing arthritis

in his knee, there is no evidence that the plaintiff is likely to suffer from this

condition in the future.

Work

160 There was no real suggestion that the plaintiff changed his job from sales and

marketing to the locksmith business as a result of his knee condition. Further,

there is no evidence that the plaintiff was upset about this change of career or

was disappointed that he could no longer work in sales. He seems to have

made a decision following his injury to become more involved in the business

and, accordingly, left work with the defendant to pursue this course.

161 The plaintiff has never given evidence that he misses working in his old job or

that he is unhappy with his work as a locksmith. Whilst he would not agree it

was part of a plan that he undertake this new career role, after the injury, the

plaintiff then registered the business name and also consulted an accountant,

who advised him to set up a corporate structure through which to operate the

business.33

162 I accept that the plaintiff's career choice was a credible one for a highly

intelligent and motivated immigrant, to establish his own business rather than

to work for someone else, as counsel for the defendant submitted. The plaintiff

was interested in pursuing careers in different disciplines, whether it be online

marketing or medical product distribution with Raphael Medical or lock-

smithing, as the registration of the other business names suggested.34

163

32 T30 33 T11 34 132 35 133

VCC:LM/LWAS

The plaintiff had been pursuing the business before the incident and has

continued to pursue it successfully afterwards.35

23 JUDGMENT Naftali v Australian Even Pressure Co Pty Ltd

164 It appears from the plaintiff's taxation records that he is running a profitable

business. The business has had significant income since it commenced in

2014, with business income in the range of $250,000 and a profit, after the

deduction of expenses, of around $80,000.

165 Whilst the plaintiff claims he can only work two or three hours a day because of

his knee, he has been able to run the business profitably with very limited

assistance from contractors. The plaintiff's taxation records indicate only about

$30,000 being spent on contractors in those two financial years.

166 The plaintiff's system for paying his sub-contractor is still unclear, despite his

explanation in this regard in cross-examination. As counsel for the defendant

submitted, whatever the arrangement, it seems to involve a fairly high mark-up

for the plaintiff and results in significant business income for him.36

167 Although the plaintiff claims to have problems with prolonged driving, he

claimed business use of 75,000 kilometres in both the 2014-2015 and 2015-

2016 financial years. Whilst he claims to be able to work only two to three hours

per day hands on in the business, I am not satisfied that there is any significant

restriction imposed by his knee pain on his ability to carry on the business as

he wishes.

168 In addressing consequences, counsel for the plaintiff focussed mainly on the

interference with the plaintiff's sporting activities as a result of his knee injury.

It was submitted the plaintiff, who is still a young man,37 cannot run or job, is

unable to surf or go cycling, and is unable to play freely with his young

children.38 Further, the plaintiff's attendance at the gym and upper body

exercises suggested exercise was important to him.39

169 Counsel for the plaintiff stressed the "simple" point that the knee is a weight-

36 131 37 Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 38 T36 39 136


bearing joint. There were the consequences deposed to which, it was

submitted, were virtually unchallenged. If it was accepted the plaintiff suffered

those problems, then for someone who liked keeping fit, it was submitted it was

a very considerable injury.40

170 While there is some interference with more rigorous physical activity as a result

of his knee injury, the plaintiff does not appear to have engaged in significant

sporting activities prior to the incident.

171 Counsel for the defendant submitted, relevant to the consideration of

seriousness was what had been retained as well as what had been lost.41

172 It was submitted the plaintiff continues to lead a relatively full life, running a

profitable business. There was no suggestion of any interference with social

activity and the plaintiff was still able to travel overseas regularly, attend the

gym three times a week when he wished and drive around 75,000 kilometres

for work each year. Whilst he might be restricted in activities like kicking a

soccer ball with his children, that loss should not be described as more than

significant or marked or very considerable.42

173 Although I accept the plaintiff continues to have some knee pain and restriction,

in my view, the consequences of his knee condition do not meet the high

statutory test of serious, as counsel for the defendant submitted.43

174 Accordingly, the plaintiff's application is dismissed.

40 137 41 Dwyer v Ca/co Timbers Pty Ltd (No 2) [2008] VSCA 260 42 T31; Dwyer v Ca/co Timbers Pty Ltd (No 2) (supra) 43 T35


in the county court of victoria at melbourne common … · 2017-08-18 · at melbourne common law...

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