El-Tarraf v Linknarf Ltd

Supreme Court of NSW|2003-10-29|Before: Studdert J

CITATION : El-Tarraf v Linknarf Ltd [2003] NSWSC 1144 HEARING DATE(S) : 10, 11, 12, 14 February, 27, 29 October 2003 JUDGMENT DATE : 8 December 2003 JURISDICTION: Common Law Division JUDGMENT OF : Studdert J DECISION : I assess damages in the sum of $203,272.79. To afford the parties an opportunity to consider this judgment, the matter is to be relisted on 19 December 2003 to address the issues of interest, judgment and costs.

CATCHWORDS : Industrial accident - liability admitted - for assessment of damages only. LEGISLATION CITED : Workers' Compensation Act, Pt 5, s 151G, 151L, 151M PARTIES : Joe El-Tarraf (Plaintiff) Linknarf Limited (Defendant) FILE NUMBER(S) : SC 20162/99 COUNSEL : A.J. Bartley SC/C. Thompson (Plaintiff) P.J. Deakin QC/P.J. Nolan (Defendant) SOLICITORS : Carroll & O'Dea (Plaintiff) Sparke Helmore (Sydney) (Defendant)

JUDGMENT 1 HIS HONOUR: The plaintiff, Joe El-Tarraf, claims damages from the defendant, Linknarf Limited (in liquidation), for injury allegedly sustained in the course of his employment with Franklins Limited on 4 April 1996. When the proceedings were commenced Franklins Limited was named as defendant, but there was a change of name and the company went into liquidation in May 2002. There being no objection by the liquidator, leave was granted by a registrar of the court for the plaintiff to proceed against Linknarf Limited (in liquidation). 2 As at 4 April 1996 the plaintiff was employed by Franklins as an assembler and picker. He claims to have injured his right knee when working at a loading dock in the country loading area. Because the trays of some of the trucks using the loading dock differed in height from the loading surface of the dock, metal plates called levellers were used to provide ramp access between the back of trucks to be loaded and the level of the dock when required. On 4 April 1996 there was difficulty with the truck the plaintiff was assisting to load in forcing the leveller employed down to the tray of the truck, and the plaintiff had to jump on it. His efforts were unsuccessful. Unbeknown to him, a truck driver jumped on the leveller behind him. The leveller went down and impacted with the tray of the truck, striking it very hard so that it went up and down twice. The plaintiff claimed that immediately he felt something wrong with his knee. 3 The plaintiff's description of that event has not really been the subject of challenge and is to be accepted. The plaintiff's claim against the defendant is in negligence and at the outset the Court was informed that the matter was for assessment of damages only. 4 The nature of the injury which the plaintiff claims to have suffered is a torn lateral meniscus in the right knee. I shall shortly review the medical evidence in this case, but the plaintiff's treating surgeon when cross examined agreed that a tear of the lateral meniscus is ordinarily occasioned in some twisting or torsion movement. The plaintiff here described no such movement. However, as Dr Rowden opined, patients are often unaware of any torsion or twisting injury at the time of the jarring, and that, in any event, such movement is not always present. The fact that the plaintiff described no twisting activity when the knee was injured does not cause me to find that he did not suffer injury as claimed. On the balance of probabilities, I am indeed satisfied that the plaintiff did sustain a torn lateral meniscus in the incident described above. 5 The real issue in this case has been how serious have the consequences of that injury been. What is the nature and extent of any ongoing disability and what, if any, has been the resultant loss of earning capacity? 6 The plaintiff presents a very substantial claim for damages indeed. Apart from a substantial claim for the non economic aspects of general damages, the plaintiff claims wage loss calculated in excess of $230,000 to date and an allowance for future loss of earning capacity in excess of $220,000. The defendant, on the other hand, submits that the plaintiff has not proved an entitlement to damages having regard to the fact that assessment is governed by Pt 5 of the Workers' Compensation Act 1987. 7 There was an earlier trial in these proceedings but the Court of Appeal allowed the appeal which followed and ordered a new trial to proceed on the basis that breach of duty had been established. Hence the present trial. Whilst Mr Deakin invited me to consider a review of the medical evidence given at the earlier trial as contained in the judgment of the former trial judge, I do not consider that I would be assisted by that exercise. The evidence given at the first trial was not as such tendered at the second trial. It is my task to determine the issues between the parties based upon my assessment of the evidence that has been introduced before me. 8 The assessment of the credibility and the reliability of the plaintiff's evidence is of the utmost importance in this case. I propose to review the plaintiff's evidence and then the medical evidence before expressing my relevant findings.

The evidence of the plaintiff 9 The plaintiff was born in Lebanon on 5 May 1952, so that when the accident happened he was forty-three years of age and he is presently fifty-one years old. After schooling to the equivalent of year ten or year eleven in the New South Wales' system, the plaintiff worked on his father's farm and he then did unskilled work in a resort hotel before following his brother to Australia in 1977. He immediately found employment with his brother at Huttons Smallgoods factory, where the plaintiff worked as a cleaner. In the following year he obtained work in a printing factory and in 1979 moved to another factory. Later the same year he and his brother acquired a fruit shop and conducted a business there for four years. Thereafter he returned to visit his parents in Lebanon and came back to Australia late in 1983 where he took up employment as a machine operator in a factory. When that business closed down he found work in the building industry, in which he was employed for some eight months, before he was engaged by Franklins on 16 November 1987. His employment was interrupted in 1990 when he went to Lebanon to be married. After an interruption approaching six months, the plaintiff returned to Franklins on Christmas Eve 1990 and continued to work there up to the date of the accident and beyond. By the date of trial the plaintiff and his wife had five children. 10 I have described the circumstances of and the nature of the injury I find the plaintiff suffered on 4 April 1996. The plaintiff attended the first aid room at Franklins immediately but thereafter he remained at work. He saw Dr Jamieson at Franklins within two or three days and thereafter continued to see a doctor at Franklins over the next three or four months whilst he kept on working. He said the pain in the knee was worsening. He had physiotherapy which did not help. He said that on 20 September 1996 he was referred to Dr Rowden who subsequently operated on him on 23 October 1996. 11 The plaintiff said that following that surgery he was off work for four weeks and he was then sent back to work on light duties at the end of November 1996. The plaintiff did work on a wrapping machine and he continued in that work until he was made redundant in August 1997. In about April or May 1997 the plaintiff started forklift driving again, doing a few hours per day. The balance of his work time thereafter was on the wrapping machine. At no time then before his redundancy did the plaintiff resume his normal duties, and at no time after the surgery did the plaintiff work any overtime. 12 Following his surgery the plaintiff had physiotherapy and hydrotherapy but he said that pain in the knee came back. He said that not only did the pain return in the right knee but he also experienced pain in his low back, his neck and between his shoulders. He consulted Dr Patapanian, a rheumatologist. I shall review Dr Patapanian's evidence shortly. 13 After his redundancy the plaintiff said he was sent to the Commonwealth Rehabilitation Service and assessed. He said that by the end of 1997 he still had pain in the knee which was becoming worse and there was pain in the neck and the back as well. Following assessment, the plaintiff was sent to a motor garage on 29 June 1998 to trial as a console operator. He worked only three days a week for five weeks. When that trial ended the plaintiff said he did further physiotherapy. His last contact with the Commonwealth Rehabilitation Service was in February or March 1999, and his compensation payments ceased about that time. 14 Subsequently he went to Work Solutions to see if work could be found for him. Indeed he was required to do so before qualifying to receive payments of benefits which currently continue at $338 per fortnight. The plaintiff's wife also receives a like allowance and in addition the plaintiff receives $60 per week rental allowance. 15 After Work Solutions, the plaintiff was later required to go to another employment agency known as AIMS. Through AIMS in December 2002 the plaintiff obtained a cleaning position, working at a school. This involved him in working at two levels and he was required to take a cleaning machine upstairs. This part of the work was too hard for him and he ceased work after about four weeks. 16 The only other work that the plaintiff has done since he left Franklins was work for his brother. The plaintiff's brother had a cement rendering company and he engaged the plaintiff to clean some windows and doors which needed cleaning after rendering of the building had been done. The plaintiff worked there for two or three days. He said he could not continue because "My knee was killing me at that time". 17 When the plaintiff was made redundant from Franklins he used payments he then received to purchase a home. He said he was forced to sell that home in 2001 because he could not keep up the mortgage payments. He also said that whilst he had that home he was unable to attend to the garden. Since selling that home the plaintiff has been living in a rented home, and he said he relies on neighbours to mow the lawns there. However, no claim for the cost of maintaining a garden has been pursued. 18 The plaintiff said that his right knee has continued to get worse. He said the knee is weak and quite a few times he has nearly gone down on it, although he has never fallen over. He said he avoids lifting heavy things because of his knee and he takes painkillers for the knee. He said he has to be very careful with stairs. 19 The plaintiff said that he had been looking forward to working hard for his family. He said he is sad and bored being out of work and he has arguments with his wife about shortage of money. 20 The plaintiff, then, presented in his evidence in chief above reviewed as a person with a serious disability in the right knee whose lifestyle had been very significantly disrupted.

The medical evidence 21 Mr Bartley relied principally upon the evidence of Dr Rowden, an orthopaedic surgeon, in presenting the plaintiff's case. 22 Dr Rowden diagnosed a torn medial meniscus at his first consultation on 20 September 1996 but, as earlier recorded, when he carried out the arthroscopy he found that there was a radial tear in the plaintiff's lateral meniscus. That torn portion he removed without difficulty, and Dr Rowden expected an uneventful recovery. Dr Rowden reviewed the plaintiff following surgery, approximately at monthly intervals, but, in March 1997, he recorded that the plaintiff was still complaining of pain and the doctor felt that he had ongoing problems due to poor rehabilitation. 23 In August 1997 Dr Rowden recorded that the plaintiff complained of ongoing discomfort. He noted that the plaintiff complained that he continued to have trouble with stairs, and with squatting, and the doctor considered that the plaintiff might deteriorate in the future because he was at greater risk of degenerative changes in the lateral compartment of his knee. Dr Rowden then opined that the plaintiff "may never be capable of prolonged squatting or heavy lifting activities." 24 Dr Rowden saw the plaintiff again in February this year. That consultation was doubtless prompted by the fact that this trial was to begin on 10 February 2003. The plaintiff presented to Dr Rowden this time with persisting right knee pain and weakness in the knee as well as night pain. He complained his mobility was significantly restricted. The doctor found on examination slight reduction in quadriceps strength bilaterally. There was right lateral joint line tenderness and bilateral increased varus/valgus laxity. 25 Dr Rowden arranged for further x-ray studies on 6 February 2003, with the x-ray view being from posterior to anterior, aimed at highlighting any loss of joint space. These x-rays demonstrated a thirty percent loss of lateral joint space in the knee. In essence, this meant that the right knee in the lateral joint space has lost thirty percent of its cushion and this could account, in the doctor's opinion, for pain and disability in that knee. 26 The report of the radiologist does not specifically advert to this loss of joint space but Dr Rowden said that he did not agree with the report. He interpreted the x-rays for himself. 27 In cross examination Dr Rowden said that he found no effusion in the knee and the plaintiff gave him no history of instability or of locking or collapsing in the knee. He did not note muscle wasting in the quadriceps of the right leg, although he said the absence of such wasting could be explained if the plaintiff was performing quadriceps strengthening exercises on a regular basis. I observe that the plaintiff gave no evidence that he undertook any such exercises. 28 Dr Rowden did not opine that the loss of joint space was necessarily productive of pain but rather that it could account for pain because the underlying bone had less protection than where there was no such space. The doctor said this in answer to a question (at T 229): "Q. You were asked whether the loss of joint space in itself, is necessarily productive of symptoms. You agreed that in itself it need not be. Dealing first simply with the loss of joint space, is it capable of producing symptoms? A. Yes, I think so, in the sense that the underlying bone is less protected and a lot of pain - it's believed to be that a lot of the pain associated with loss of joint space is bone pain, hence you get pain at night time. That's why I think the reference by Mr El-Tarraf about the pain at night time seemed to gel a reasonably consistent pattern in my mind with what was going on." 29 Earlier, Dr Rowden agreed that the assessment of the plaintiff's disability depended upon the extent to which his complaints were accepted (T 227). Agreeing with that, Dr Rowden said: "I think that's always the case for a doctor/patient type of assessment." 30 I record at this point that I was impressed by Dr Rowden as a witness and, indeed, I did not perceive that his evidence differed much from the evidence of Dr Millons, upon whom the defendant relied in part and to which evidence I shall presently refer. I express this qualification however concerning the evidence of Dr Rowden, and that is that I must make my assessment of the plaintiff's evidence and of the severity of his complaints. 31 In February 2003 Dr Rowden wrote: "Mr El Tarraf is advised to avoid activities such as bending, lifting, squatting, frequent use of stairs, prolonged walking/standing. To this extent his lifestyle and working choice and ability has been compromised. I consider him fit for sedentary type work." 32 In cross examination, Dr Rowden was asked these questions and gave these answers (T 228): "Q. He could do a driving job could he? A. I would have thought so.

DEAKIN: Q. A console operator in a service station, even if that did require some assistance in stocking shelves with grocery items, couldn't he? A. I would have thought so.

Q. If you were to assume that he actually performed cleaning working for a period of some weeks at a school, including carrying a portable vacuum cleaner on his back and that the only difficulty he had in the performance of that work what there was rather a lot of stairs that he had to mount. Taking the stairs out of it, he would be able to do that sort of work wouldn't he? A. I would have thought so, yeah." 33 As I see it, the restrictions considered desirable by Dr Rowden, as defined in the extract from his report above set out, are warranted by reason of the changes that had taken place in the knee following the injury and the surgery. 34 Dr Patapanian first saw the plaintiff as a specialist rheumatologist on 27 April 1997. At that time the plaintiff complained of knee pain but also of increasing pain in the ankles, the hips, the left knee, the shoulder and the cervical spine. Dr Patapanian prescribed medication, opining that there was no relationship between the plaintiff's generalised symptoms and the work injury the subject of this claim. Through the period during which he saw the plaintiff it remained his opinion that the condition of the right knee was unconnected with the plaintiff's other complaints. By December 1997 when Dr Patapanian ceased to treat the plaintiff, he did not consider, the right knee apart, that the plaintiff's other complaints would have stopped him from doing "a normal physical day's work" (T 133). 35 Dr Patapanian was guarded about the prognosis for the right knee because of the plaintiff's persisting complaints. Dr Patapanian did not see the plaintiff again after December 1997. 36 Reports were tendered in the plaintiff's case from Dr Martin Flood, a consultant surgeon. Dr Flood saw the plaintiff on 1 May 1997, at which time, of course, the plaintiff was still working with Franklins. The plaintiff complained to that doctor of persisting pain in the knee joint, worse after a day's work. Dr Flood thought that the complaints were genuine. 37 Dr Flood saw the plaintiff again on 21 August 1997. He reported at that time that the plaintiff had persisting symptoms and was still only fit for restricted duties. 38 Dr Lewington is a rehabilitation physician and he first saw the plaintiff on referral from Dr Rowden on 8 May 1997. He arranged for the plaintiff to have physiotherapy. Dr Lewington last saw the plaintiff in August 1997 when the plaintiff was complaining of increasing musculoskeletal symptoms involving the neck, the back, the shoulders, the elbows and the knees. Those symptoms he did not regard as attributable to injury to the right knee. 39 Dr Seaton was qualified for medico-legal purposes and gave several reports to the plaintiff's solicitors in 1997. I note that Dr Seaton was at a loss to explain the plaintiff's aches and pains involving the neck, the shoulders, the back and the hips. I also note that in his report of 9 October 1997, Dr Seaton assessed the plaintiff's outlook for work as being bleak. However, Dr Seaton did regard the plaintiff as being fit to drive a forklift. 40 A report was tendered in the plaintiff's case from the psychiatrist, Dr Shand. In his assessment of the plaintiff, whom he saw on 4 February 2003, there was no psychiatric disability, and the plaintiff's ability to work was dependent upon orthopaedic assessment. 41 From the above review of the medical evidence in the plaintiff's case, I pass to the evidence introduced in the case for the defendant. 42 Dr Millons, orthopaedic specialist, first saw the plaintiff on 21 July 1999. He found no wasting of the right quadriceps muscle and no effusion into the right knee joint. When he examined it, the knee appeared stable with a good range of movement. At that time, of course, the plaintiff was not working, but in the opinion of Dr Millons the knee seemed to be "in remarkably good order". The plaintiff, however, had "a plethora of symptoms and really a paucity of signs." The plaintiff's complaints at that time were not limited to the right knee, but included complaints in relation to the neck, the shoulders, the back and the hips. 43 When he saw the plaintiff on 5 April 2000, Dr Millons reported that the plaintiff continued to have a plethora of symptoms and a paucity of signs. There was complaint of pain in the right knee but on examination there was no wasting of the right quadriceps muscle, no effusion into the right knee joint, and a good range of movements, the same as in the left knee. The knee appeared to be stable. Dr Millons considered the plaintiff fit to return to work, and eventually to his pre-injury duties. 44 Dr Millons has not seen the plaintiff since 5 April 2000, but he has considered the x-rays taken on 6 February 2003 and Dr Rowden's opinion expressed having regard to those x-rays. Dr Millons agreed that the x-rays show some narrowing in the lateral compartment of the right knee on weight-bearing views and that that indicates degenerative change within the lateral compartment. He accepts, as I understand his report of 25 February 2003, that the degenerative changes are secondary to the surgical procedure in October 1996. Dr Millons reported: "Dr Rowden opines that there is significant pain and disability which is not reflected in the x-rays findings. That would suggest perhaps a degree of exaggeration and introspection in Mr El-Tarraf's presentation. Not having seen him for three years, it is not particularly easy to assess the total situation from here. Dr Rowden opines that long term Mr El-Tarraf may require a right total knee replacement. His costing in regard to that is all quite reasonable." 45 I see no fundamental disagreement between Dr Rowden and Dr Millons. What the evidence of these two specialists underlined is the importance of the assessment of the plaintiff's evidence, and of the making of a finding as to the genuineness or otherwise of his complaints. 46 Dr Bornstein first saw the plaintiff in October 1997. He could find no objective evidence of disability in the right knee on that date. He considered that the plaintiff was exaggerating his complaints about the knee and that he was fit for what he understood to be the plaintiff's pre-injury work as a storeman/packer. 47 Dr Bornstein saw the plaintiff again on 18 February 1998 when the plaintiff complained he was unable to find work because of his knee. Dr Bornstein opined that there was no residual disability in the knee and that the plaintiff was fit for his normal work. 48 Dr Bornstein has not seen the plaintiff since February 1998 but, like Dr Millons, he was asked to comment on the x-ray studies carried out in February this year. He considered that the plaintiff appeared to have lost two millimetres of articular surface on the lateral aspect of the right knee compared with the left, although he acknowledged that the measurement was inaccurate and of little clinical consequence "other than to suggest that there has been some wear changes consistent with early osteoarthritis." In itself the x-ray did not, in the opinion of Dr Bornstein, prove anything, but the plaintiff may require surgery through the progression of changes in the knee in the next ten to twenty years. 49 Dr Carr is a specialist rheumatologist who first examined the plaintiff in April 2000. The plaintiff gave him a history of aches and pains in the neck and shoulder girdles and in the low back which commenced some eleven months after the knee injury. Dr Carr regarded the plaintiff's symptoms on that examination as "bizarre", with "global knee pain both medially and laterally". However, Dr Carr regarded the plaintiff as fit for his pre-injury work. 50 When Dr Carr saw the plaintiff again on 13 May 2002, the plaintiff complained of right knee pain most of the time, which he described as sharp and aggravated by walking and occurring sometimes at night time. He also complained of pain in the left knee which first occurred about three months prior to this examination. The plaintiff's examination findings were unremarkable, including the findings in relation to the right knee. Once again, Dr Carr regarded the plaintiff as fit for full duties, opining that he "has minor nuisance pain in the right knee. He has episodic diffuse aches and pains in his body, none of which relate to his work with Franklins Limited or to specific injury with Franklins in my opinion (excepting for his right knee)." 51 Dr Raftery, a sports physician, reported in November 1997 that he considered the plaintiff's problems to be of a psychological nature and that he had no ongoing musculoskeletal problems. 52 A number of reports were furnished by Dr Kirsch, an orthopaedic surgeon, relating to assessments carried out between November 1997 and August 1998. I note that in the earliest of the reports from Dr Kirsch dated 17 November 1997 he found that the plaintiff then had a full range of movement in the right knee but that there was tenderness on the medial and lateral joint lines. The last report from Dr Kirsch is dated 28 August 1998 but the doctor at that time expressed no diagnosis. 53 Dr Rosenberg is an orthopaedic specialist who provided a report to the plaintiff's local doctor in February 1999. A reading of that report suggests that Dr Rosenberg saw the plaintiff but once and the plaintiff's complaints were not then limited to his knee, although Dr Rosenberg noted this to be the major problem. Dr Rosenberg wrote: "This man does not strike me as a surgical candidate at all. He has pain that seemingly is out of all proportion to any hard objective findings. His pains are not activity related as well. I do not believe that this man should be seeing surgeons and feel that he would best be suited to coming under the care of a rehabilitation physician, possibly a pain management service as well." 54 Dr Terenty assessed the plaintiff in August 1999. The plaintiff appears to have been complaining to Dr Terenty of pain in both knees. Dr Terenty regarded the plaintiff as fit to work in any capacity other than such as required him to be on his feet for long periods, to climb stairs or to negotiate uneven surfaces. Dr Terenty considered forklift driving to be within his capacity. 55 I do not propose to review in any further detail the medical evidence in this case. I accept, consistently with the opinions of Dr Rowden and Dr Millons, that there is loss of joint space in the right knee in consequence of the surgery necessitated to address the tear. I accept further that that loss of joint space, because of the diminished cushion, could account for ongoing pain and disability. This brings me back to the evaluation of the plaintiff's evidence. 56 Mr Deakin has submitted that there are a number of features of the plaintiff's evidence which are unsatisfactory:

(i) contrary to the plaintiff's assertion that he was unable to squat on both knees, film showed otherwise;

(ii) film also showed the plaintiff sitting on a bar stool without apparent discomfort and other movements inconsistent with the level of disability the plaintiff claimed;

(iii) the plaintiff's evidence about pre-injury problems is unsatisfactory. 57 In cross examination the plaintiff said that he was unable to squat on both heels although he could do a limited amount of bending. A video was introduced into evidence which showed the plaintiff squatting for two significant periods in a supermarket on 23 June 1999. The video also showed the plaintiff was able to stand up without assistance. 58 Dr Rowden was shown that same film and indicated that he would not have expected the plaintiff to be able to squat when he saw him. Of course, Dr Rowden saw the plaintiff more than three years after the film was taken. 59 Whilst the film has demonstrated that the plaintiff's evidence to the effect that since the accident he has never been able to squat is not to be accepted, I do not conclude that the evidence he gave about that matter was deliberately false. Certainly it has been demonstrated to be unacceptable, but I note that when the plaintiff saw Dr Millons in 1999 he did not say that he was unable to squat, but rather that he unable to squat "for long". 60 Further film taken in November 1999 showed the plaintiff sitting for a lengthy period on a bar stool playing poker machines. The film showed him sitting on a stool with his right knee flexed. The plaintiff agreed that in 1999 he went to the hotel to play the poker machines nearly every day for some four to five months. The plaintiff agreed he may have been observed on 18 November 1999 playing machines for a period of two and one half hours. 61 There was other film that showed the plaintiff in a number of activities. He was seen in his garden, he was seen driving the children to school, he was seen on an occasion crossing a busy road holding the hand of one of his small children, and he was seen carrying a child. None of this film was dramatic but the plaintiff was seen on a number of occasions to bend and, as Mr Deakin pointed out in written submissions, the plaintiff was shown bending only days before Dr Millons reported the complaint made by the plaintiff of pain in the low back and an assertion that the plaintiff "avoids bending". I observe also that the filmed activity of the plaintiff crossing the busy road holding the hand of the child does not suggest a concern entertained by the plaintiff as to instability in the affected knee, although weakness in the knee was a complaint the plaintiff made in the witness box. The film also showed the plaintiff entering his car to occupy the driver's seat, a manoeuvre, as was submitted, involving some stress on the knee. 62 The plaintiff told Dr Millons when first he saw him in July 1999 that he had had no injuries prior to 4 April 1996. 63 As to the plaintiff's condition pre-injury, it emerged in evidence that the plaintiff had had trouble with his right knee in 1991 for which he was prescribed Naprosyn and given physiotherapy. The plaintiff said he could not remember that incident to which the documentation in Exhibit 20 relates. 64 In addition to the right knee problem in 1991, the plaintiff experienced some difficulty with his back in 1992. The records of Dr Boulis, the plaintiff's general practitioner at the relevant times, indicate that the plaintiff presented complaining about his back pain in 1992 and again in 1995. The plaintiff did not remember seeing Dr Boulis about his low back in 1992 and denied seeing Dr Boulis about his back in 1995. 65 The plaintiff did acknowledge though that if he told Dr Millons he had had no problems with his back before the accident, that was not true, and he did concede that he had seen company doctors, mainly about his back, prior to April 1996. 66 The plaintiff's responses in cross examination when asked about problems involving his right knee and his low back prior to April 1996 were not satisfactory. The evidence that emerged demonstrates the unreliability of histories given, not only to Dr Millons, but also to Dr Bornstein, to Dr Carr and to Dr Shand. Dr Carr recorded in his report of 3 April 2000 that the plaintiff denied any previous back problems or knee complaints. Dr Bornstein recorded in his report of 16 October 1997 following an examination of the plaintiff on 7 October 1997 that the plaintiff had had no prior injury to his knee or any other problem with the knee joint. In Dr Shand's report of 6 February 2003, that doctor recorded that the plaintiff denied any previous trouble with his knees before the accident. 67 Apart from the complaints that the plaintiff has made about his right knee since 4 April 1996, there have been the other complaints involving the neck, the shoulders, the hips and the left leg. Indeed, in the statement of claim the plaintiff sought to relate the symptoms in those areas to the effects of the right knee injury. That claim was not pursued at this hearing, and, as I assess the evidence, was unsustainable. However, it does not follow that the evidence of those complaints becomes irrelevant. If the plaintiff was disabled by symptoms in those areas, that could bear upon the claim now made for economic loss, or if the symptoms in those areas were unfounded or exaggerated then that too may bear upon the evaluation of the reliability of the plaintiff's evidence concerning the right knee. 68 Dr Rowden was concerned of course to treat only the condition of the right knee. Dr Flood also concerned himself with that knee. Dr Lewington noted widespread musculoskeletal pain in June 1997 and recommended a report from a rheumatologist. I referred earlier to Dr Patapanian treating the plaintiff and that the plaintiff came under his care in April 1997. Dr Patapanian reported in June 1997 that he could not explain the plaintiff's generalised symptoms "on the basis of anything other than mild generalised degenerative disease and fibro myalgia syndrome". In his later more comprehensive report of 1 December 1997 the doctor diagnosed mild generalised degenerative arthritis and fibro myalgia, conditions not referable in the view of this specialist rheumatologist to the incident at work on 4 April 1996. In the opinion of Dr Patapanian, out of whose care the plaintiff passed in December 1997, by that time, apart from the knee, there was nothing to prevent the plaintiff from doing a normal day's work. 69 To Dr Seaton, in October 1997, the plaintiff was complaining only of his right knee, but in September 1998 Dr Seaton noted that generalised aches and pains came on at a later stage than the knee complaints and that these added complaints related to the neck, both shoulders, both arms, both hips, the right ankle and the low back. Dr Seaton recorded: "I am at a loss to explain why this man has aches and pains involving his neck, both shoulders, his back and both hips." He further recorded that there was no evidence of neck or back injury on clinical examination or on the investigations. 70 Turning to the evidence introduced in the defendant's case, when Dr Carr first saw the plaintiff he assessed the plaintiff's generalised symptoms as "bizarre" and as suggesting somatoform disorder rather than any specific injury. Then, when Dr Carr reassessed the plaintiff in May 2002, he recorded ongoing diffuse aches and pains affecting the hips, the ankles, the upper arms, the neck, the shoulder girdles and the low back. These general aches and pains were described as tending to come and go. On examination in May 2002, Dr Carr noted that the plaintiff had a full range of neck movement and there was no restriction of shoulder, elbow, wrist, hip, knee or ankle movements. 71 Dr Bornstein noted in the report of 24 February 1998 that the plaintiff was then complaining of neck and shoulder pain, and pain in all his joints which commenced some eight months before the plaintiff left Franklins. Dr Bornstein could find no objective evidence that the plaintiff had any kind of discomfort in any joint in his body. 72 In July 1999 Dr Millons recorded the plaintiff's history of development of pain in all his joints, in his neck, his shoulders, his elbows and his back. Dr Millons noted that that "plethora of symptoms" did not appear to be related to the accident in April 1996 and he detected no abnormality in the neck or the upper limbs. He did conclude there was some minor irritability in the lumbar region. In April 2000 the plaintiff told Dr Millons his neck and his back were perhaps a little easier than they had been, but he had discomfort between the shoulder blades and occasional pain from there into the head. The hands also tended to become weak. Low back pain persisted, and he was unable to sit for as long as half an hour. However, again, Dr Millons noted a full range of movements in the neck and the back and this time there was "no evidence of anything untoward going on in either region." 73 I do not consider that the evidence would warrant a finding that the plaintiff's ability to work since he left Franklins has been compromised by the generalised aches and pains now being addressed. I do not find in the evidence a satisfactory explanation for such complaints as the plaintiff has made since the end of 1997 with reference to his neck, his shoulders, his arms, his hips and his back. 74 The plaintiff's efforts to return to gainful employment require consideration. 75 The plaintiff demonstrated a capacity for meaningful employment with Franklins up until the date that he took redundancy. The plaintiff did not suggest that he would have been unable to operate a forklift had he gone to Ingleburn, but he was not offered such a position. His evidence though was that he did not ask for such a position. Had he done so, I consider it unlikely that he would have been offered it. The evidence of Mr Easton was to the effect that the only positions open for pickers and assemblers who went across to Ingleburn were positions as pickers. I accept that evidence. 76 I find that the plaintiff has had an ability to work throughout the period since he left Franklins. Even if the plaintiff's ongoing complaints referable to the knee are to be accepted, then in the opinion of Dr Rowden the plaintiff is fit for sedentary type work and work avoiding bending, lifting, squatting, climbing and prolonged walking and standing. Dr Rowden said that the plaintiff would be able to do a driving job; and that he would be able to do the work of a console operator in a service station, even if that required involvement in stocking shelves with grocery items. 77 Unhappily, the plaintiff has done little work since the accident. His employment has been limited to the trial period as a console operator, the little time he spent with his brother attending the windows and door frames, and the period of about four weeks when he worked as a cleaner. 78 Mr Bartley submitted that the routine to which the plaintiff was subjected, involving assessment by the Commonwealth Employment Service and referrals to employment agencies, did not afford useful means of rehabilitation into the workforce. He submitted further that in times of less than full employment anyone who presents himself with a disability on the open labour market is under a particular handicap. 79 In October 1997 the plaintiff was sent to the Commonwealth Rehabilitation Service and he was then assessed. Records of that service referable to the plaintiff's association with it are contained in Exhibit O. Following assessment in October 1997, the evidence discloses that some consideration was given to seeking to put the plaintiff into employment, or at least to gain skills as a console operator. Eventually the position was found with Mr Nader in the garage at Granville. The plaintiff only worked on the console there and was not required, as regular employees would have been, to do the shop and cleaning work ordinarily involved in the position of a console operator. He only worked there four hours per day, and, as is recorded in Exhibit O in the progress report for August 1998, the plaintiff complained he was unable to work longer hours because of increased pain in his neck, his shoulders, and his back. I do not find such a complaint to be well founded, having regard to the evidence I reviewed earlier. 80 The last progress report in Exhibit O is for the period December to January 1999. The author of the report recorded at that time that the plaintiff "displayed minimal enthusiasm to job seek" and that "his level of commitment to job seeking and the rehabilitation programme is questionable." 81 The plaintiff's last contact with the Commonwealth Employment Service appears to have been in March 1999 and in June 1999 payments of workers' compensation benefits ceased. He was then placed on what has been described as "New Start" and was sent to Work Solutions and later to AIMS, two employment agencies. It was through AIMS that the cleaning position which the plaintiff followed for four weeks was obtained, as I recorded earlier. 82 Attendance at employment agents was essential to continue to qualify for benefits. 83 In July 2001 the plaintiff attended Work Solutions where he saw a Mr Haklany. Mr Haklany gave evidence. He said that the plaintiff presented himself as fit only for light duties. He was requested in July 2001 to come back with a suitable medical certificate, and in response, on 27 August 2001, presented with a medical certificate that he was unfit for work for the next three months. Thereafter further certificates to that effect were presented, and on 31 January 2002 the plaintiff presented with a report from Dr Mahony indicating he would not be likely to work for two years. That report identified a number of disabling conditions:

(i) cervical disc lesions at three levels with nerve root irritation affecting the upper limbs;

(v) lumbar disc lesions at L4-5 with spinal stenosis at this level;

(vi) chondromalacia of the right patella. 84 Since Dr Mahony was not called in this case, it is not clear upon what basis he prepared those certificates. Certainly the evidence before this Court would not support a finding that the plaintiff was totally unfit for employment at the time of the presentation of those certificates on any one of the bases specified, or, indeed, on any other basis. 85 It is hardly surprising that the plaintiff found no work through the agency to which those certificates were submitted. 86 In cross examination the plaintiff said that he made some inquiries for work as a console operator but he asked only for four hours a day three or four days per week. The last such inquiry was made, he thinks, in the year 2000. Apart from that he made two telephone calls about a cleaning position, and that was prior to the period of four weeks in which he worked as a cleaner. 87 Section 151L of the Workers' Compensation Act imposes an onus of proof upon a plaintiff to satisfy the Court that all reasonable steps to mitigate damages have been taken by him. However, the burden imposed by that section only arises where the plaintiff has been made aware by the employer or insurer that he is required to take the steps specified in the section. Mr Deakin conceded that the evidence did not support a finding that the worker was made aware by the defendant or its insurer that he was required to take the steps specified in the section, and it follows that for the purposes of this case the onus is on the defendant to prove that the plaintiff has failed to mitigate his damages. 88 In my opinion that burden has been discharged. I do not consider that the plaintiff has made reasonable efforts to find employment, and I specifically reject the plaintiff's evidence that he could only work for four hours at a time as a console operator, three to four days per week. 89 The plaintiff's wife was not called to give evidence in this matter, and no explanation has been offered for that. This is a case in which the plaintiff's wife might have been expected to be called, and it is appropriate to draw the inference that her evidence would not have advanced the plaintiff's case. 90 Having considered the plaintiff's evidence closely, I am not satisfied that the right knee has been troublesome to the extent that the plaintiff claims. I am influenced in coming to this conclusion by the various matters to which I have already referred and by the examination findings and the opinions of those specialists who have seen the plaintiff at relevant times:

(i) On 7 October 1997 Dr Bornstein on examination found no wasting in the quadriceps muscles, and a full range of movement in the knee. The plaintiff was able to squat fully and walk on heels and toes without difficulty.

(ii) On 24 February 1998 Dr Bornstein detected no abnormality on examination of the knee. He found that there was a full range of movement and no wasting to measurement in the thigh. Again the plaintiff was able to squat and walk on the heels and toes without difficulty.

(iii) On 21 July 1999 when Dr Millons first examined the plaintiff there was no wasting of the right quadriceps muscle and there was no swelling into the right knee joint. There was a full range of movement and the knee appeared stable. Dr Millons made the same findings when he examined in the plaintiff again in April 2000.

(iv) In May 2000 Dr Carr found equal movement in both knees and he detected but half a centimetre difference in circumference of the thighs, which he regarded as of no significance.

(v) Then there was the most recent assessment by Dr Rowden. He measured only some slight reduction in quadriceps strength bilaterally and he recorded no muscle wasting in the quadriceps of the right leg. In cross examination (T 227), Dr Rowden was asked the following questions and gave the following answers: "Q. The absence of such a clinical finding is inconsistent with what you would expect to find if he was having continuing pain in the knee is it not? A. Not necessarily. I mean if he was performing quadriceps strengthening exercises regularly - I have a number of patients who don't have, much to my surprise, A significant pathology, but by exercising regularly they can overcome the quadriceps inhibition and the resultant wasting which is frequently present. So yes, it is no surprise it's not still inconsistent with the problem in the knee.

Q. It would be surprising though, would it not, if he was in fact, not engaging in any quadriceps building up exercises? A. Yeah, that would surprise me." 91 As I observed earlier, there is no evidence that the plaintiff has engaged in exercises to build up the quadriceps muscles and, accepting what Dr Rowden said, I find the absence of wasting in the quadriceps of the right leg to be inconsistent with the plaintiff experiencing continuing pain in the right knee. 92 I conclude that the plaintiff has not proved on the balance of probabilities that he is having continuing pain in the right knee as claimed, or that he has been experiencing instability in the manner in which he claimed in his evidence. However, I do accept that because of the pathological changes in the knee, the plaintiff's lifestyle and working choices have been compromised as Dr Rowden has opined (paras 31-33 above). 93 How then are damages to be measured? 94 The assessment of damages for non economic loss is to be determined by reference to s 151G of the Workers' Compensation Act. Bearing in mind the date of the plaintiff's accident, the maximum amount that may be awarded for non economic loss is $220,100, but that maximum may be awarded "only in a most extreme case". My task is to determine "a proportion, determined according to the severity of the non economic loss, of the maximum amount which may be awarded" (s 151G(2)). 95 The plaintiff suffered a torn lateral meniscus which necessitated surgery for the removal of part of it. As time has gone by, degenerative changes have been progressing with narrowing of the lateral compartment in the knee. Those changes are in consequence of the injury and the surgery. At present the plaintiff has a joint space which is less protected by cartilage than it would have been had the accident not happened. The plaintiff has some restrictions on his physical and work capacity, and he will continue to have restrictions, with probable increase in pathology in the knee. I accept, as Dr Rowden has opined, that it is possible that the plaintiff may eventually require further surgery on the knee. The plaintiff is now fifty-one years of age. 96 Bringing the above matters into account, I assess the appropriate proportion of the maximum amount that may be awarded under s 151G as being twenty-five percent, namely the sum of $55,055. 97 The out of pocket expenses have been agreed at $18,956.73. That sum I include in my assessment. 98 The Fox v Wood adjustment is agreed at $13,895.06. 99 This brings me to the issue of economic loss. Having regard to the allowance for non economic loss, the plaintiff has passed through the threshold set by s 151H(2A). He is therefore entitled to an allowance for economic loss. 100 For the past, there was a period of some four weeks when the plaintiff was off work. The plaintiff's earnings at the time of injury have been agreed at $570 per week nett, so I allow for this period of total incapacity the sum of $2280. 101 Thereafter the plaintiff continued at work prior to redundancy for a further period of thirty-six weeks, and his evidence was that he was not allowed to do overtime in the duties he was given. The Court has been informed that the difference between what he would have been earning in his pre-injury position and what he did earn, bearing in mind the loss of overtime opportunities, was $226 per week. Accordingly I allow this difference to the date of his redundancy, 15 August 1997, and allow in respect of this post accident period of employment the sum of $8136. 102 It is agreed that by reference to comparable earnings, had the plaintiff remained in his pre-injury position for the year ended 30 June 1998 he would have earned $714 per week nett; for the year ended 30 June 1999 he would have earned $802 per week nett; and for the year ended 30 June 2000 he would have earned $882 per week nett. That, of course, is on the assumption that the plaintiff, had he not injured his leg, would have remained in employment with the defendant and that he would have followed Franklins to Ingleburn. I am not persuaded that I should make those assumptions. I do not overlook the plaintiff's pre-injury work history, which I reviewed earlier, but the plaintiff's failure to make reasonable efforts to find employment since he was made redundant is not to be ignored in determining whether or not the plaintiff would have taken up all the overtime opportunities that may have been available at Franklins had he continued to work there. Moreover, as previously observed, the plaintiff did not make any inquiries of Franklins as to whether it would be willing to allow him to work at Ingleburn as a forklift operator, and this failure casts real doubt in my mind as to whether the plaintiff would have chosen to go to Ingleburn had he not been injured. 103 I am mindful of Dr Rowden's assessment of the ongoing restrictions on the plaintiff's work capacity to which I referred when earlier reviewing the doctor's evidence (see paras 31-32). With the benefit of hindsight no doubt, the doctor would have found the plaintiff unsuited for heavy work during the time since the plaintiff was made redundant. In July 1999 Dr Millons, of course mindful as he was that the plaintiff had not worked then for nearly two years, considered that the plaintiff ought to have been doing at least light duties. However, in April 2000 Dr Millons thought the plaintiff should be able to return in a graded fashion to his pre-injury work. 104 According to Mr Easton, the defendant accepted no employee at Ingleburn who was under a disability and I consider it improbable had the plaintiff sought a position at Ingleburn that he would have been accepted there, having regard to the fact that the defendant had treated the plaintiff as restricted in his work capacity up until the time that he was made redundant. 105 An assessment of the fair allowance to compensate for loss of earning capacity between August 1997 and the present time is made the more difficult because the plaintiff has not used that work capacity I regard him as having had. He could have been doing full time work as a console operator or as a forklift driver. Psychological assessment was made by Mr Bass (Exhibit O). Following testing, the plaintiff was assessed as well suited to clerical training programmes and the employment opportunities that such training would open up. Figures provided by Mr Bass indicate that doing clerical work the plaintiff could earn $641 per week gross; as a forklift driver he could earn $562 per week gross; and as a console operator in a service station $642 per week gross. 106 Of course, some retraining period for clerical work would have been required and whatever work the plaintiff found had he used reasonable efforts to obtain employment would not have been found overnight. It was not unreasonable for him to go through the Commonwealth Rehabilitation Scheme on which he embarked in October 1997 and in which he remained until early 1999. However, at the very least by February 1999 the plaintiff, using reasonable endeavours, ought to have been in suitable employment of a type that he remains capable of doing at the present time. That employment includes the operation of a forklift, work as a driver, the operation of a console and associated duties in a service station, and the duties of a clerk. If one takes the mean figure in those positions, according to the figures provided by Mr Bass, this means that the plaintiff has been capable of earning $580 per week gross, without any adjustment for overtime opportunities. 107 Guided by, but discounting the comparable earnings figures set out in para 102 above, I propose to allow for the period from 16 August 1997 to 1 February 1999 the sum of $600 per week. Hence for this period I allow the sum of $45,600. For the period from the beginning of February 1999 until the present time, the plaintiff has had the capacity to work full time, availing himself of any reasonable overtime opportunities in one or other of the capacities I have defined, and the evidence does not persuade me that the pathology in the right knee has resulted in compensable loss in that time. So it is for the past that I allow altogether $56,016. 108 The plaintiff has some thirteen years six months before him to age sixty-five. I consider it more likely than not that the pathology in the knee will increase over that period. I accept that the plaintiff presently has the restrictions as to his work which Dr Rowden defined in February 2003. Those restrictions will be permanent and as the pathology increases the plaintiff's present capacity for work may well decrease. 109 It was submitted on behalf of the plaintiff that I should approach the future on the basis that had he not been injured the plaintiff would now be earning $780 per week nett. This is based upon the average between the earnings of a nominated comparable employee, Ian Andrew, and the earnings of one Amwah Feghali, a forklift driver employed by Franklins at Ingleburn, doing ten hours overtime per week Mondays to Fridays plus four hours overtime on Saturdays. For the same reasons as I declined to adopt the Andrew's earnings with the defendants as a guide to what the plaintiff would have earned but for his accident in the past, I consider it inappropriate to adopt the approach which the plaintiff invites for the future. There is, of course, the added consideration that Franklins business was wound up in August 2002. 110 Whilst I am not satisfied that the plaintiff has suffered compensable loss from February 1999 to date, I must take account of the likely increase in pathology in the knee in the future. It seems to me that some allowance should be made for loss of earning capacity in the future. There is, of course, no precise medical evidence to guide me, but doing the best I can, I propose to measure the loss at $150 per week, deferring its commencement until the plaintiff attains the age of fifty-five years. On this approach, using the deferred five percent tables and with a fifteen percent discount for the vicissitudes, I allow for future loss of earning capacity the sum of $44,500, rounding the calculation off. 111 There is a claim for lost superannuation benefits. I am invited to measure this claim by calculating the gross loss for the past and by allowing eight percent of that, with a fifteen percent discount. Adopting this approach, I allow for the past for loss of benefits the sum of $4500, in round figures. 112 Some modest allowance is required for future loss of superannuation benefits, bearing in mind, of course, that the commencement of that loss is deferred. The plaintiff submitted that the loss should be calculated by reference to nine percent of the gross loss and by resort to the five percent tables, with a discount for the vicissitudes. I broadly adopt that approach, and calculate the allowance for the future in the sum of $5350. 113 Finally, it is submitted that provision should be made for the cost of future surgery. Dr Rowden has expressed the opinion that in the long term it is possible that the plaintiff will require right knee joint replacement surgery, the current cost of which ranges from $10,000 to $18,000. Dr Millons does not challenge the reasonableness of the figures provided. It is proper that some provision should be made for the possibility of surgery as I assess that possibility. There is, of course, no suggestion that the plaintiff may require surgery in the immediate future. I propose to allow $5000 for the possibility of future surgery. 114 It is not possible for me to determine whether any interest is attracted under s 151M of the Workers' Compensation Act without evidence addressing the requirements of s 151M(4). I propose therefore to publish this assessment and to invite submissions on interest and costs.

Formal findings and orders 115 1. I summarise my assessment of damages as follows:

Damages - non economic loss $55,055.00 Out of pocket expenses 18,956.73 Fox v Wood adjustment 13,895.06 Economic loss: Past loss of earnings 56,016.00 Future loss of earning capacity 44,500.00 Loss of superannuation benefits: Past 4,500.00 Future 5,350.00 Provision for cost of surgery 5,000.00 $203,272.79

To afford the parties an opportunity to consider this judgment, the matter is to be relisted on 19 December 2003 to address the issues of interest, judgment and costs. **********

Last Modified: 12/09/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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