with - workcover.vic.gov.au · VCC:LP/LWAS. 8 underly¡ng osteoarthritis of the left knee. The...
Transcript of 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
1
2
3
5
6
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
I
10
VCC:LP/LWAS2
2
3
4
5
6
7
I9
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
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover Authority
3VCC:LP/LWAS
14 lf the answer to both questions is "Yes", the issues between the parties are as
follows:
10
11
12
(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)
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthoritY
4VCC:LP/LWAS
17
1B
19
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
13
14
5 JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthoritYVCC:LP/LWAS
20
21
22
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
'16
17
18
19
b JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthorityVCC:LP/LWAS
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
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover Authority
3.
2
20
21
22
23
7VCC:LP/LWAS
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.
26
27
a
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.
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthoritY
IVCC:LP/LWAS
28
29
30
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
25
26
27
28
29
I JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthorityVCC:LP/LWAS
30
31
32
33
34
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
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthorityVCC:LP/LWAS
10
35
36
37
38
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
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkOover Authority
35
36
37
VCC:LP/LWAS
11
42
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:
38
39
40
41
42
43
44
Exhibit 3, Defendants' Court Book ("DCB") 20Exhibit 3, DCB 18Exhibit 2Exhibit 1
Exhibit 1, DCB 7(2005) 14 VR 622 at paragraphs [33]-t341
JUDGMENTHofen v Berry Street Victoria & Victorian
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
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthorityVCC:LP/LWAS
13
44
45
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
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthorityVCC:LP/LWAS
14
s1 I will hear the parties as to any consequential orders.
JUDGMENTHofen v Berry Street Victoria & Victorian
WorkCover AuthorityVCC:LP/LWAS
15