with - workcover.vic.gov.au · vcc:lp/lwas. 8 underly¡ng osteoarthritis of the left knee. the...

E COUNry COURT OFAT LATROBE VALLEYCIVIL DIVISION

E AND COMPENSATIOSERIOUS INJURY DIVISION

VERONICA JEAN HOFEN

V

BERRY STREET VICTORIA

and

VI CTORIAN WORKCOVER AUTHORITY

RevisedNot Restricted

Suitable for Publication

Case No. Cl-12-02391

Plaintiff

First Defendant

Second Defendant

JUDGE:

WHERE HELD:

DATE OF HEARING

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

NEUTRAL CITATI

Subject:Catchwords:

Legislation CitedCases Cited:

Judgment:

APPEARANCES

For the Plaintiff

HIS HONOUR JUDGE BROOKES

Latrobe Valley

22 and 23 October 2014

18 December 2014

Hofen v Berry Street Victoria & Anor

l2014lvcc 2113

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONSerious Injury application - left and right knee injuries - meaning of"permanent"Accident Compensation Act 1985, s134ABPeak Engineering & Anor v McKenzie l2o14l VSCA 67; Larner vGeorge Weston Foods Ltd Í20141 VSCA 62; Jones v Dunkel (1959)101 CLR 298; Sfone v Jaruis; Humphries & Anor v Poliak [1992] 2 VR129; Barwon Sprnners Pty Ltd & Ors v Podolak (2005) 14 VR 622;Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605;Meadows v Lichmore Pty Ltd [2013]VSCA 201; Dahl v Grice [1981] VR513Leave granted to the plaintiff to issue proceedings at common law forpain and suffering and loss of earning capacity on account of a leftknee injury suffered on or about 13 July 2008.

Counsel Solicitors

Mr P F O'Dwyer SC with Maurice Blackburn LawyersMr G Wicks

Mr P A Jewel QC withMr A J Saunders

For the Defendants Minter Ellison

HIS HONOUR:

This matter is a serious injury application pursuant to s134AB(16) of the

Accident Compensation Act 1985 ("the Act"). The plaintiff seeks leave to

bring proceedings for personal injuries arising out of or in the course of, and

due to the nature of, her employment on or about 14 December 2007 and/or

13 July 2008, at or near Bairnsdale.

ln order to succeed, she must establish that she has suffered a "serious

injury" as that term is defined in s134AB(37) of the Act.

The plaintiff filed a Schedule of Particulars of lnjury in which she alleges she

has suffered permanent serious impairment or loss of function of her:

(a) Left knee; and/or

(b) Right knee; and/or

(c) Back; and/or

(d) Right foot; and/or

(e) Shoulders

4 ln addition, she claimed that she had a permanent severe mental or

permanent severe behavioural disturbance or disorder.

ln his opening, Senior Counsel for the plaintiff submitted, with respect to the

two injuries, that it was only impairment to the left knee pursuant to paragraph

(a) of the definition of "serious injury" which was being pursued.

It was also submitted by both parties that the two injuries were to be

considered separately in order to assess whether either one, or both, satisfied

the statutory definition.

z Senior Counsel for the plaintiff identified the first injury as being aggravation of

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1 JUDGMENTHofen v Berry Street Victoria & Victorian

WorkCover AuthorityVCC:LP/LWAS

8

underly¡ng osteoarthritis of the left knee. The consequences of the injury were

said to be rendering symptomatic previously asymptomatic degenerative

change which, although enabling the plaintiff to continue workíng, raised the

risk of future knee replacement surgery on account of the discrete injury.

The second discrete injury was said to be further aggravation of the

underlying left knee arthritic condition such that the plaintiff was compelled to

stop work because of the increasing symptoms and it was those symptoms

that ultimately led to her request for left knee replacement in September of

2010. lt is also alleged that the left knee symptoms after the second injury

altered the plaintiff's gait, placíng further stress on her right knee, which in turn

exacerbated symptoms of underlying osteoarthritis in that knee. lt is also

alleged that as well as the arthroscopy and the subsequent left knee

replacement representing consequences, degenerative changes in the

plaintiffs lumbar spine, as well as right knee, were worsened until there was

eventual right knee replacement leading to abatement of symptoms in those

areas of her body.

The defendants conceded that as a result of the left knee replacement, the

plaintiff is left with consequences that are serious for the plaintiff in terms of

pain and suffering and loss of earning capacity as per the Act. However, the

defendants submit that the plaintiff would have come to left knee replacement

surgery on account of the underlying condition, without the work-related

aggravations, such that the proper assessment of the plaintiff's impairment

could not be said to be "permanent" in accordance with the jurisprudence

which has developed around that definition.l

Further, defence counsel submits that the ultimate onus of proof is on the

plaintiff to show that the consequences of the impairment are "permanent" in

terms of the jurisprudence, given that the defence has introduced evidence

The defendants rely on Peak Engineering Pty Ltd & Anor v McKenzie 120141VSCA 67

JUDGMENTHofen v Berry Street Victoria & Victorian

WorkCover Authority

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VCC:LP/LWAS2

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that the left knee replacement would have been required, ín any event,

because of the underlying condition.2

11 The plaintiff relied on three affidavits sworn 6 June 2O11,27 March2014 and

7 October 2014.3 She also relied on a number of medical reports from

treating medical practitioners and medico-legal experts. Also tendered in

evidence were, a Certificate of Capacity dated 17 July 2008,4 an AccÍdent

Report Form dated 24 July 2008,5 a Worker's Claim Form dated 22 July 20086

and an Employer's lnjury Claim Report dated 30 July 2008.7

12 The defendants tendered in evidence a number of medical reports including

thirteen such reports from the treating orthopaedic surgeon, Mr M Thomas.s

No witnesses were required for cross-examination and it was agreed that the

matter was to be decided on the documentary evidence.

Preliminary questions

13 lt appears to me that in terms of the issues identified by the parties, two

preliminary questions arise as follows:

(1) ls the left knee replacement surgery, itself, a consequence of the first

and/or the second injury?

(2) Secondly, if "Yes", to either, given that it is conceded that the

consequences are at least very considerable and more than significant or

marked, are they nonetheless "permanent" in terms of the evidence

adduced in the case and in terms of the criteria laid down in Peak

Engineering?e

Exhibit 5, Letter of Mr M Thomas dated 2ô July 2010Exhibit A, Plaintiffs Court Book ("PCB") 12-25Exhibit M, PCB 123Exhibit N, PCB 124-126Exhibit O, PCB 127-128Exhibit P, PCB 129-131Exhibit 4Supra


WorkCover Authority

3VCC:LP/LWAS

14 lf the answer to both questions is "Yes", the issues between the parties are as

follows:

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(a) Would the left knee replacement surgery have been necessary in any

event, without the occurrence of either the first and/or the second injury?

(b) lf "Yes", is the measure of "serious consequence", following the left knee

replacement surgery, limited in time to when the underlying progressive

disease would have led to left knee replacement surgery?

(c) lf "Yes", has the plaintiff proved permanent consequences?

15 Defence counsel submits that the plaintiff has failed to discharge the onus of

proof. ln particular, Senior Counsel submits that the plaintiff's main witness,

Mr Kudelka, does not address the question as to if, and when, the plaintiff

would have required the left knee surgery, absent the occurrence of injury one

or injury two, or both. Accordingly, he submits that the principle of Jones v

Dunkeito should apply in a situation where a party fails to examine a witness

in-chief on some topic indicates "as the most natural inference that the party

fears to do so".11 He then submits that this fear is then "some evidence" that

such examination-in-chief "would have exposed facts unfavourable to the

parly".12 Accordingly, counsel submits that according to the ordinary

principles of Jones v Dunkel, the Court can more readily accept the evidence

of Mr Thomas, who it is said, does give an opinion on this subject.

The evidence

The first incident

16 On 14 December 2007, the plaintiff was descending a ladder after changing a

smoke detector in a bedroom when she fell from the ladder on her left side,

landing awkwardly and "doing the splits" such that her left leg was pinned to

(1e5e) 101 CLR 298Larner v George Weston Foods Ltd 120141VSCA 62 al paragraph [190]Larner v George Weston Foods Ltd (ib¡d)


WorkCover AuthoritY

4VCC:LP/LWAS

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1B

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Exhibit A, Plaintiffs affidavit sworn 6 June 2011, paragraph 6

Exhibit B, PCB 35

the floor. She felt immediate pain in the area of her left knee and there was

bruising to an undefined area of the left leg. The plaintiff suffered pain in both

knees but it was more severe in the left knee. She swore that the knee pain

gradually subsided and she did not seek medical treatment at that time.

Apparently some several months later, she had a recurrence of her left knee

pain and as a result, she consulted her general practitioner, Dr Daryl Smith in

Bairnsdale, on at least two occasions in June 2008, and he arranged for an

x-ray of the left knee.13

The plaintiff does not attest to continuing to suffer left knee pain until suffering

a "recurrence" in June 2008. The treating general practitioner, Dr D R Smith,

reported that he had been the treating doctor for the plaintiff since June 2008

when she first presented regarding her "work-related" knee injury. The

plaintiff gave him a history that she first injured her left knee in December

2OO7 when she fell off a small ladder at work and then aggravated it further in

June 2008 when she tripped over some leads at work.la He did not take a

history that there had been ongoing symptoms between December 2007 and

June 2008 and there is no evidence that the underlying condition progressed

in this period or that it was in any way affected other than the production of

symptoms on an ill-defined temporary basis in December 2007.

Given that the plaintiff's case is placed firmly on the production of symptoms

superimposed upon a pre-existing osteoarthritic condition, I am not satisfied

that there has been the permanent production of symptoms between

December 2007 and the occurrence of the second incident in July 2008.

The second incident

On 13 July 2008, the plaintiff tripped over some electrical leads at work which

had been taped onto a carpet with gaffer tape. As a result of this trip, she fell

to the floor, jarring both knees, but again, feeling particularly severe pain in

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5 JUDGMENTHofen v Berry Street Victoria & Victorian

WorkCover AuthoritYVCC:LP/LWAS

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Exhibit A, Plaintiffs affidavit sworn 6 June 2011, PCB 14, paragraph 6

Exhibit 4Exhibit 4, report of Mr Thomas dated 5 August 2008Exhibit A, Plaintiffs affidavit sworn 6 June 2011, PCB 14, paragraph 8

Exhibit B, PCB 35-36

her left knee. She stated her left foot had become tangled in the tape which

had become twisted on the floor. She again consulted Dr Smith.l5

Thereafter, the plaintiff continued to suffer from severe pain in her left knee

and Dr Smith referred her to orthopaedic surgeon, Mr Malcolm Thomas, who

first saw her on 5 August 2008.16 On this occasion, the plaintiff gave a

retrospective history that her left knee had deteriorated since the first incident

with medial knee pain, a tight feeling and restriction. She said that it was

getting worse. However, she did not give a history on that occasion of the

second incídent. ln any event, he thought, at that time, that she had "a

component of arthritis and may have a degenerative medial meniscus tear".

He thought it reasonable to proceed to an arthroscopy.lT

The plaintiff subsequently underwent an arthroscopy on 9 November 2008.

Thereafter, She said she felt better for a few weeks, but as time went by her

left knee began to swell and the pain became more severe and she felt that

the knee was about to collapse at various times. She underwent

physiotherapy and continued to take paínkilling medication and anti-

inflammatories, which had been earlier prescribed.ls

After the arthroscopy, she used crutches for support and occasionally a

walking stick. Over a period of time, she commenced to develop pain in her

lower back and in her right knee. She had previously sustained a lower back

injury in 2003. Dr Smith considered that walking with a limp due to the left

knee injury would have been a minor aggravating factor for the symptoms in

her low back and her right knee.le

At arthroscopy, Mr Thomas found that she had quite significant arthritis in the

knee with Grade 4 changes on her patella and Grade 2 and 3 in the medial

.15

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b JUDGMENTHofen v Berry Street Victoria & Victorian


compartment. He explained to the plaintiff that she was likely to remain

symptomatic in the future and that she may require knee replacement

surgery.20

23 ln his report dated 15 January 2009, Mr Thomas opined that the arthritis in the

left knee was undoubtedly pre-existing but had only become symptomatic

after the two incidents at work and therefore "work was an important cause for

her knee pain".21 Because of the ongoing symptoms, he considered that the

next step was knee replacement which was "obviously a significant

undertaking for a woman of fifty-four".22

24 Thereafter, Mr Thomas made a request of the WorkCover insurer for funding

for the left knee reconstruction. The insurer wrote to him on 24 June 2010

with a number of questions; viz:

"1 ls there a difference in the severity of the osteoarthritis in the rightand left knees?

2. The worker was diagnosed as suffering a tear to the medialmeniscus in the left knee as a result of a fall at work. ls there arelationship beh¡veen this injury and your request for surgery?

The worker currently has an accepted claim for her left knee only.Given you are proposing surgery to both knees is it reasonable tostate that knee replacement surgery would be required regardlessof any work related injury/aggravation? lf not, can you pleaseoutline the reasons why?"23

2s Mr Thomas replied on 26 July 2010 and answered the questions seriafi'm:

u1. Both knees have advanced osteoarthritis, although it is the leftknee which is troubling her and more disabling than the right knee.

Ms. Hofen was diagnosed with a tear to the medial meniscus in

her left as a result of a fall from work but she also hadosteoarthritis in that knee. The relationship between her injuryand her current symptoms is that she has become more disabledsince her workplace accident due to her left knee pathology.Request for surgery of a total knee replacement is to address herosteoarthritic knee.

Exhibit 4, report dated 26 September 2008Exhibit 4, report dated 15 January 2009Exhibit 4Exhibit 5


WorkCover Authority

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When I last saw Ms Hofen on 61412010l recommended to her thatwe proceed with a total left knee replacement as her left knee wasleading to her major disability. I do not propose that we proceedwith a right total knee replacement at this stage but expect that in

the fullness of time this may be an option for her.

I agreed with you that it is reasonable to state that knee replacementsrig"ry would be required regardless of any work related incident."2a

It is significant, in my view, that Mr Thomas does not state when the knee

replacement surgery would be required regardless of any work-related

incident. I do not accept the defendants' submission that it is implicit that the

operation would have been required at the same time as it was performed, in

any event. I consider that the answers to the three questions by Mr Thomas

lead to the following inferences:

First, her level of disability referred to in Answer (2) was a direct

consequence of the "current symptoms" which had been significantly

aggravated by the second incident and had continued unabated.

3.

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a Secondly, although one can accept that the total knee replacement was

"to address her osteoarthritic knee", I infer that it was her disability as a

result of the symptoms that led her to consent to such total knee

replacement at the time that it was performed.

24 Exhibit 5

Thirdly, in this sense, the aggravation of the symptoms was the

proximate cause for the performance of the total knee replacement at the

time it was performed. The "major disability" referred to in Answer (3)

subjectively experienced by the plaintiff was as a direct result of the level

of symptoms which had been aggravated by the second incident.

Proceeding on this basis, the question becomes, based on Mr Thomas' report,

when is it likely that the relevant knee replacement surgery would have been

required, "regardless of any work-related incident"? The defendants claim

that this is a gap in the plaintiff's evídence which has not been filled.


WorkCover AuthoritY

IVCC:LP/LWAS

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Exhibit 4, report dated 29 June 2011Exhibit 4, report dated 5 October 2012Exhibit 4, report dated 5 October 2012Exhibit 4, report dated 5 October 2012Exhibit 4, report dated 19 July 2013

Before addressing this question further, it should be noted, in terms of the

issues identified by both parties, that Mr Thomas reported on 29 June 2011

that the plaintiff had recovered well from the left knee replacement, "although

did have ongoing pain and swelling".2s He left her further care to the general

practitioner, DrSmith. On review on 15 January 2009, he noted the plaintiff

"remained miserable with her left knee due to pain". She therefore underwent

a left total knee replacement on 29 September 2010. On 5 October 2012,

Mr Thomas reported to the general practitioner that although she had had left

total knee replacement performed two years ago, she still reported posterior

knee discomfort and pain at times.26 Significantly, he also noted "her right

knee is also symptomatic with arthritis and she wonders whether because she

is favouring that side she is getting more symptoms on left total knee

replacement side".27 He reviewed some plain x-rays of the left knee and then

stated:

"My assessment is that Veronica's left knee is disappointing in that it stillleads to pain and unfortunately we do see a small percentage of patientsafter what otherwise appears to be successful knee replacements havepain. ... ."28

On 19 July 2013, MrThomas reported to the general practitioner that the

plaintiff had recovered well following right total knee replacement "over two

months ago".2e She also reported that she had no complications with the right

knee and says that it is much better than her left knee replacement.

DrSmith, the general practitioner, reported on 10 January 2010 that the

degenerative arthritis in the plaintiff's right knee had worsened considerably

over the last few months. He considered that -"This accelerated deterioration can be attributed to M/s Hofen having tocarry more bodyweight through the right leg, due to her left knee

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I JUDGMENTHofen v Berry Street Victoria & Victorian


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injury."30

31 Further, he reported on 28 January 2011 that the plaintiff was still troubled

with low back and bilateral shoulder pains which were a secondary

complication of her knee injuries. He did not expect these conditions to

stabilise until "she has recovered from her right total knee replacement".3l

32 Following the right total knee replacement surgery, Dr Smith noticed a

dramatic improvement in her physical health. There was a good result from

the right knee surgery and there had been an improvement in her back pain.

Accordingly, the consequences relied on by the plaintiff relate solely to the left

knee replacement surgery and the consequential symptoms which will be

suffered for the foreseeable future. These consequences are agreed between

the parties to be serious, subject to the question of permanence referred to

above.

33 In terms of the consequences from the first incident being serious, the plaintiff

relies on the medico-legal opinion from orthopaedic surgeon, Mr

Peter Kudelka, dated 13 October 2014. ln this regard, he stated:

"The effects from the first incident, inasmuch as they were incompletelyrelieved by analgesics resulted in limited function and a fall after the firstincident, could have eventually resulted in a total knee replacement ofthe left knee."32

34 ln this regard, the plaintiff relies on the decision in Sfone v Jaruis whích was

one of the decisions contained in Humphries & Anor v Poljak.33 In that regard,

Crockett and Southwell JJ stated:

"lf the knee joint is now in such a condition that there is a real risk of thenecessity of total replacement, it can fairly be described as veryconsiderably damaged. ... [and] ... we have concluded that the longterm impairment of the applicant's knee function is properly to beregarded as'serious'."34

Exhibit B, report dated 10 January 2010, PCB 31

Exhibit B (infra) PCB 30Exhibit K, PCB 93-95

[1992] 2 VR 129 at14BHumphries & Anor v Poljak (supra) at 148



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ln that case, however, it would appear that there was no underlying arthritic

condition and that the symptoms had continued unabated since the motor

vehicle accident. Given the absence of a similar history in this regard, I do not

consider that this opinion of Mr Kudelka carries the day for the plaintiff with

respect to the first íncident.

Mr Kudelka, however, does lend support to the proposition that the second

incident produced persisting symptoms in the left knee and an uneven gait,

such that the opposite right knee was aggravated also to the point where a

total knee replacement was performed on the right knee. He considered that

the second incident was the final injury which led to a total knee replacement

and thereafter, the patient did not ever significantly recover.3s He also

considered that the right total knee replacement was also a consequence of

the left knee injury presumably because it was the exacerbation of symptoms

that led to the request for surgery. lt should be noted, however, that the

plaintiff concedes that there was a good result from the right knee

replacement, such that it is not submitted that that injury is a "serious injury" in

its own right.

I note that the plaintiff has support from occupational physician, Dr Helen

Sutcliffe, in the same regard.36

With respect to the second injury, the defendants rely on the opinion from

orthopaedic surgeon, Mr Jonathan Hooper.37

39 ln terms of the issues identified in the case, Mr Hooper stated

"lt would be my view that the aggravation of the fall aggravated andaccelerated this woman's problem, but did not cause the underlyingpathology and her continued troubles are due to the underlyingpathology. She would have required a knee replacement whether shefell or not in 2008.

The fall would have rendered her knee symptomatic, but it did not

Exhibit K, PCB 94Exhibit LExhibit 3


WorkOover Authority

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VCC:LP/LWAS

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change the underlying pathology u38

40 As to the timing of such operations, he stated:

... I believe that both knees would have required knee replacement atsome stage whether she had fallen or not." 3e

41 It would appear that the opinion of Mr Michael Polke dated I September

200940 does not advance the issues any further.

The three reports of Mr Michael Shannonal do not advance the issues any

further, other than hís opinion:

[]t is certainly possible that the aggravation contributed to a

meniscus tear and in my view, if there was a significant injury, it wouldhave resulted in permanent aggravation and acceleration ofdegenerative change."a2

Analysis: permanent

43 Having found, which I do, that the nature and extent of the injury caused by

the second incident includes the aggravation of the underlying osteoarthritis of

the left knee by the permanent worsening of symptoms referrable thereto, the

need to cease work, the symptoms producing the need for the arthroscopy

and then the Ieft knee replacement surgery, together with the other

consequences referred to above, it is agreed between the parties that those

consequences result in a "serious impairment" as defined.

The question of "permanence" was addressed by the Court of Appeal in

Barwon Sprnners Pty Ltd & Ors v Podolak; St Laurence Community Servrces

(Barwon) lnc & Ors v Gledhill;Sfo.¡'anovski v Bartter Enterprises Pty Ltd & Ors;

Pausak v Barwon Heatth & Ors,a3 wherein the Court of Appeal stated:

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Exhibit 3, Defendants' Court Book ("DCB") 20Exhibit 3, DCB 18Exhibit 2Exhibit 1

Exhibit 1, DCB 7(2005) 14 VR 622 at paragraphs [33]-t341


WorkOover AuthorityVCC:LP/LWAS

12

"ln practical terms, one can scarcely proceed to consider theconsequences to the plaintiff of either the injury or the impairment beforeone has identified precisely the nature and extent of the injury reliedupon and of the consequent impairment of a body function said to havebeen produced. A necessary part of that task of identification will be todetermine how far, if at all, the alleged impairment is permanent, in thesense of likely to last for the foreseeable future. Only then, it seems tous, can one proceed to the inquiry about the consequences for theplaintiff: are the consequences such that they satisfy the 'veryconsiderable' test set forth in paragraphs (b) and (c)? Thus, in order thequestions must be: first, what is the injury and what is the impairmentsaid to be produced in consequence; secondly, is the impairmentpermanent, i.e., likely to last for the foreseeable future; and thirdly, arethe consequences for the plaintiff such as to satisfy the 'veryconsiderable' test? lf the answer to the second or third of these is no,the injury is not a serious injury as defined by paragraph (a) of sub-s.(37). lf the answer to both is yes, it is a serious injury, but then onehas identified an impairment which is both permanent and serious (asdefined) and the fact that the impairment is permanent will obviouslyhave been a consideration when weighing the consequences; after all,they are the consequences of that impairmenf. lt is hardly likely, if theimpairment of the body function will probably last for the foreseeablefuture, that the consequences upon which the plaintiff relies to satisfythe 'very considerable' test will be othenruise.

Having given the matter much thought, we think it enough to say this:that the impairment of a body function will answer the description'permanent serious impairment' if it is an impairment which, withconsequences (as to economic loss or pain and suffering or both) thatmeet the 'very considerable' test, is permanent, in the sense of likely tolast for the foreseeable future. That sufficiently couples both adjectives

- permanent and serious (as defined) - and beyond that it seemsunnecessary to go. Certainly nothing in these four appeals raised anyproblem in that regard."

45 The answer, in this case, to the first question is the elevation (aggravation) of

symptoms to a level where the worker ceases work and ultimately requests a

total knee replacement, with the other consequences already defined.

46 lt is clear that the answer to the third question referred to above is "Yes".

47 With respect to the second question, the test of "permanent" would appear to

relate to the adjectival phrase "in the sense of likely to last for the foreseeable

future". Clearly, once the heightened symptoms have been produced by the

second incident, the consequences that flow are permanent in the sense that

there will be no recovery therefrom.

4g However, the issue remains that given there is no time stipulated, by any



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medical practitioner, as to when the unaggravated condition would have

produced the need for a knee replacement, is that a fatal flaw in the plaintiff's

proofs? The defendants submit that no practitioner has even descended to

state that that period is uncertain. Further, even if any practitioner had made

that statement, would the proofs have been sufficient? Senior Counsel for the

plaintiff submits that any such period is never able to be scientifically or

medically reduced to periods of weeks, months or even years. He submits

that the case turns on the production of symptoms by the second incident at

least. He submits that it is the symptoms and not the existence of the

underlying condition that leads the pfaintiff to give consent to the refevant

operation. A patient has no academic interest in an underlying condition

leading to an operation unless the symptoms thereby suffered compel such a

decision. I accept that this inference is open. Further, given that the

symptoms and the operative relief on the left knee exacerbated the symptoms

in the right knee to some extent, it was once again the production of

symptoms in the right knee that led to the operation in that knee. I accept that

on all the evidence, the period of the aggravation/acceleration of the condition

caused by the second incident is uncertain. However, I find that the inference

is open to me to find that the second incident did have a permanent effect "in

the sense that it was likely to last for the foreseeable future".aa

49 Insofar as it can be said that no medical practitioner gives the relevant opinion

that fits squarely with the finding referred to above, I rely on the line of

authorities which stipulate that it is the judicial decision rather than the medical

opinion which ultimately determines the issue.as

50 ln all the circumstances, leave will be granted to the plaintiff to issue

proceedings at common law for pain and suffering and loss of earning

capacity on account of a left knee injury suffered on or about 13 July 2008.

Barwon Sprnners (supra) paragraph [34]See Jayatilake v Toyota Motor Corporation Australia Lfd (2008) 20 VR 605; Meadows v Lichmore PtyLtdl2013lVSCA 201; Dahlv Grice [1981]VR 513



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s1 I will hear the parties as to any consequential orders.



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with - workcover.vic.gov.au · vcc:lp/lwas. 8 underly¡ng osteoarthritis of the left knee. the...

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