Litchfield v WTH [2025] VCC 1581

1. The plaintiff relies on the following injuries:

Right knee injury and/or aggravation of right knee condition, with meniscal pathology requiring 2 arthroscopic operations and with ongoing pain and restriction.

2. The Plaintiff relies on the definition of serious injury in subparagraphs (a) of section 134AB(37) of the Accident Compensation Act 1985 (Vic) (as amended).

3. As a result of her injuries the plaintiff claims to have suffered serious impairment and loss of body function to her right knee.

1. The Particulars of Injury filed in support of the Second Originating Motion for the July 2018 injury are expressed as follows:[2]

1. The Plaintiff relies on the following injuries:

Injury to the right knee, including patellofemoral joint crepitus;

2. The Plaintiff relies on the definition of serious injury in subparagraphs (a) and (c) of section 325 of the Workplace Injury and Rehabilitation and Compensation Act 2013.

3. As a result of her injuries the plaintiff claims to have suffered serious impairment and loss of body function to her right knee and mind.[3]

1. The plaintiff's Court Book included an Affidavit she affirmed on 25 January 2018 (First Injury Affidavit)[4] in support of the First Originating Motion for the 2012 injuries to the right knee. It related the plaintiff's personal and work history, the happening of the right knee injury and the course it took up to the date the First Injury Affidavit was sworn.
2. The plaintiff made a number of additional affidavits in support of the Second Originating Motion for the July 2018 injury. These are:

(a) Affidavit affirmed on 26 May 2023 (First Aggravation Injury Affidavit);[5]

(b) Affidavit affirmed on 18 April 2024 (Second Aggravation Injury Affidavit);[6]

(c) Affidavit affirmed on 29 August 2025 (Third Aggravation Injury Affidavit).[7]

1. In the First Injury Affidavit, the plaintiff deposed to being born in Melbourne in 1965. She left school at 16 years of age and commenced working work full time at a supermarket where she remained until 1988.[8] She married, but is no longer, however is the mother to two adult children.
2. In about 1990 the plaintiff and her former husband established a concreting business. She performed the book keeping and paperwork for the business in addition to rearing her two children.[9] In early 2010, she worked at a courier company for a short time.[10]
3. In August 2010 the plaintiff commenced work with the defendant who then conducted its operations under the name "Avis". She worked at Tullamarine Airport. She was employed full-time and worked various shifts day and night. Her title was service agent and her duties included driving rental cars between the airport and the Avis yard and cleaning the interior of the cars and putting them through the car wash. It was a large operation with about 15 drivers working at a time. Avis merged with another car rental company known as "Budget" following which the plaintiff's role was mainly confined to driving. She drove to and from the airport and the depot car park and was involved in moving cars in the depot car park.

1. On 12 February 2012, the plaintiff suffered a work injury to her right knee. In the First Injury Affidavit the plaintiff deposed that she was parking a car in the Avis yard in order for it to be cleaned and a car pulled up close next to her. When she tried to get out of the car there was very little room between the vehicles so she opened the door as far as possible and tried to squeeze out. As she was getting out of the car she twisted her right knee and immediately felt very strong pain in her right knee.
2. She attended her GP the next day and was given a certificate for one week off work after which she returned to work on modified duties.
3. On 20 February 2012, she lodged a WorkCover Claim.

1. On 18 March 2012, the plaintiff twisted her right knee getting out of a work vehicle. She attended her GP who arranged an ultrasound of the right knee. Her GP also organised an MRI of the right knee on 4 April 2012.

Relevant history of the right knee prior to the claimed aggravation injury in July 2018

1. The plaintiff was referred to Mr Russell Miller whom she saw on 22 May 2012.
2. On 9 July 2012, Mr Miller performed surgery on the plaintiff's right knee, which consisted of an arthroscopic synovectomy, debridement of the condo pathology and a partial meniscectomy (First Surgery).
3. Between July and September 2012 the plaintiff was off work. She returned to work on modified duties.
4. On 13 November 2012, the plaintiff's GP requested an MRI of the right knee.
5. On 29 December 2012, in a medico-legal report prepared by Mr Miller for the purposes of the First Proceeding, and having been asked to comment on the plaintiff's requirement for further treatment, he wrote:

"She will have an ongoing requirement for further treatment with analgesics, anti-inflammatory agents, physiotherapy and Glucosamines. It is possible, but unlikely she will require further surgical intervention of an arthroscopy and it is possible, but unlikely that she will come to more major interventions such as a joint replacement...".[11]

1. The plaintiff suffered ongoing pain and restriction and was referred back to Mr Miller. He performed surgery (Second Surgery) on 4 March 2013 comprising an arthroscopic synovectomy to the right knee along with Synvisc injection. A period off work followed the Second Surgery. In April 2013, the plaintiff returned to work once again on modified duties and hours.
2. The plaintiff said in her First Injury Affidavit that she continued to experience constant pain in her right knee after the Second Surgery, although she said that the intensity of the pain was "somewhat reduced".[12] She deposed that she was told by doctors that there was no further treatment possible and that her right knee was essentially as good as it was going to get.
3. The plaintiff's First Injury Affidavit deposed to a litany of pain and suffering, and functional and recreational pursuits, she suffered from the 2012 injuries.

1. In her First Aggravation Injury Affidavit,[13] the plaintiff described that on 6 July 2018, she suffered an aggravation to her right knee. She was at work and was attempting to collect an infant seat from where they were stored in a shipping container in order to install it into a rental car when a collapse of seats occurred and her right knee was injured.
2. On 17 July 2018 the plaintiff lodged a WorkCover claim for injury.
3. In her First Aggravation Injury Affidavit of May 2023, the plaintiff referred back to her First Injury Affidavit of January 2018, and said that its contents provided an accurate account of her personal and employment history, as well as the medical treatment she received for the right knee up to that time.
4. In the First Aggravation Injury Affidavit the plaintiff said that she had not received any medical treatment for the first six months of 2018.
5. The plaintiff deposed that she did not think that the right knee had either improved or deteriorated substantially during the first six months of 2018.[14]
6. On 20 July 2018 the plaintiff had an ultrasound of the right knee.
7. On 20 August 2018 the plaintiff had an MRI of the right knee.
8. In September 2018 the plaintiff returned to work.
9. On 11 January 2019 the plaintiff was referred to Mr Hussaini. On 19 February 2019 Mr Hussaini recommended a cortisone injection and physiotherapy.
10. On 4 March 2019 the plaintiff had a cortisone injection.
11. On 16 August 2019 Mr Hussaini performed surgery (Third Surgery) consisting of an arthroscopy, chondroplasty of the patellofemoral joint, micro fracture of the trochlear and chondroplasty of the lateral tibial plateau.
12. On 4 September 2019, some two weeks post-surgery, the plaintiff was reviewed by Mr Hussaini. She was experiencing a dull aching pain in the right knee. Further physiotherapy and hydrotherapy was recommended. Modified work duties were also recommended along with certain restrictions. The plaintiff said that driving herself to work remained difficult and was accompanied by pain.
13. On 2 October 2019, the plaintiff saw Mr Hussaini for review. At this time she was receiving physiotherapy and performing modified duties. She said she continued to experience a constant dull ache in her right knee. The right knee also had some crunching and was painful and was also locking up from time to time. Mr Hussaini recommended strengthening exercises.
14. On 5 February 2020, the plaintiff saw Mr Hussaini again who recorded that she told him that she had been experiencing increased pain in the right knee joint with trouble going up and down stairs. The pain was located in the central part of the knee. She also had difficulty maintaining a straight leg.
15. In March 2020, Mr Hussaini administered a cortisone injection in response to the plaintiff's report of ongoing right knee pain that was impacting her activities.
16. In March 2020 the plaintiff was stood down from work due to Covid.
17. On 1 June 2020 the plaintiff had another cortisone injection.
18. In December 2020 the plaintiff was made redundant from her employment.
19. Between January 2021 and July 2022 the plaintiff worked in the Victorian Government hotel quarantine program. The contract was scheduled to end in June 2022. The plaintiff undertook necessary training from January 2021 to about July 2022. She commenced working in quarantine hotels, initially in Southbank and then at the Mantra Hotel in Collins Street. She was unable to cope at the Mantra Hotel because the use of lifts was prohibited and there were too many stairs for her to navigate with her knee pain.
20. On 16 August 2021 the plaintiff had an X-ray of her right knee.
21. In August 2022 the plaintiff commenced work as a retail merchandiser. Her work involved attending shops or supermarkets such as Woolworths, usually at night, and replacing price-tags on food and other items with updated electronic price-tags. She said she is fortunate because her employer knows about the condition of her knee and allows her to work around it. Also, other workers perform tasks that require kneeling and squatting. She said that if she must get down onto the floor, she goes down on her left knee and gets into a seated position on the floor. Sometimes she might need a hand getting up but she usually can manage.
22. The plaintiff expressed frustration because she believed she was at the end of the road as far as treatment of the knee is concerned and that her realistic trajectory was a total right knee replacement.
23. The plaintiff deposed that she continued to consult with her GP, maintained contact with Mr Hussaini, and continued with gym and swim programs.
24. The plaintiff deposed that she took Meloxicam and Panadol Osteo as required.
25. The plaintiff deposed that she continued to experience pain and discomfort in the right knee that varied in its intensity depending on activity undertaken. She said that since the Third Surgery in 2019, her pain had improved slightly.
26. The plaintiff said that her knee continued to interfere with all aspects of her daily life in the same manner she had deposed to in her First Injury Affidavit.
27. In the plaintiff's First Injury Aggravation Affidavit she said that she continued to labour from the physical limitations involving activities such as bending, and prolonged sitting and driving such as she had deposed to in the First Injury Affidavit as having been caused by the 2012 injuries. She said she continued to experience sleep disturbance, which impacted her ability to concentrate, although she said she thought her sleep had slightly improved since swearing the First Injury Affidavit.
28. The plaintiff deposed that she continued to experience similar impacts on her hobbies and pastimes including camping, hiking, dancing, and interacting with young children as she had deposed to in the First Injury Affidavit as due to the 2012 injuries.
29. The plaintiff deposed that a grandson was born in 2020. She related that she had previously experienced difficulties playing with friends' children and grandchildren, and it made her very sad that she could not play with her grandson.
30. A difference the plaintiff relied on as being caused by the July 2018 injury is that her knee locks-up and she thinks it clicks more regularly than it did beforehand. She believed that the kneecap was broken and had been repaired by Mr Hussaini although she feels that with some movements, the knee cap gets stuck in the knee joint and this can be painful if she puts too much weight on it, or simply from overuse.

Second Aggravation Injury Affidavit dated 18 April 2024

1. In a Second Aggravation Injury Affidavit, the plaintiff said that she has not had significant treatment and was continuing to consult with her GP, Dr Naidu, once a month, and was undertaking physiotherapy exercises at home.
2. The plaintiff said she continued to take Meloxicam which was helping with day-to-day movement in the joint, as well as Panadol Osteo for pain and she was taking every second day.[15]
3. The plaintiff said she continued to experience pain in the right knee. The pain remained intermittent, however, the more she moved around and placed weight on it the worse the pain became. She said she experienced numbness into the lower leg and foot from the knee down. She deposed that "these days the knee is really sensitive to the touch. If I knock it or someone walk into me, it is quite painful".[16]
4. The plaintiff said she experienced knee dropping two or three times a week and this was very painful and in the past it occurred "every now and then".[17]
5. The plaintiff deposed that Mr Hussaini has told her that she requires a full knee replacement.
6. The plaintiff deposed that she remained employed as a merchandiser but was struggling more with work. She has been required to travel interstate and that navigating flights is difficult and the experience is very unpleasant.

Third Aggravation Injury Affidavit dated 29 August 2025

1. The plaintiff deposed in her Third Aggravation Injury Affidavit that the pain in the right knee has worsened and the pain is "constant and the intensity of the pain varies".[18] Her right knee gives out under her and she loses balance and she has fallen to the ground "more than a couple of times".[19] The plaintiff said that in the middle of 2023, she stepped down on her right leg and her right knee gave out. She fell and broke her small toe. At hospital it was proposed to put her foot in plaster, however, due to her right knee problem she declined the plaster as being too heavy, and instead wore a moon boot for 6 weeks. The plaintiff feels as if her pain has become sharper and more frequent and it feels "uncomfortably tight".[20]
2. The plaintiff said she continues to see her GP every one to two months and performs physiotherapy exercises daily. She continues to take Meloxicam and Panadol Osteo. She tries to the take Meloxicam on work days to manage the pain of the right knee (one tablet).
3. The plaintiff remains employed in retail merchandising on a casual basis. Her shifts are 7-8 hours long and she tends to work between 20-35 hours a week on average. She said that she is in receipt of a disability support pension.
4. The plaintiff deposed that she remains unable to play with her grandchildren as she would wish to. She said she no longer can perform any gardening because it has become too difficult, whereas beforehand she was able to tinker in her garden.

1. Mr McWilliams submitted that the medical evidence relied on by the defendant belies a finding that the plaintiff was adversely affected to any great degree after the 2012 injuries. Mr McWilliams pointed out that the plaintiff continued to work for Avis, and in the six months prior to July 2018, she had not undergone treatment, however, this altered after the July 2018 injury, when she came to an additional arthroscopic procedure and other modalities of treatment.
2. Mr McWilliams relied on the report of Mr Asaid dated 16 January 2024, whose opinion is that not only did the July 2018 injury bring about the need for a further arthroscopic intervention, which Mr McWilliams submitted Mr Miller in 2012 said was unlikely to occur, but that the July 2018 injury had at the very least hastened the need for a knee replacement procedure.
3. Mr McWilliams also relied on the plaintiff undergoing "not only a further x-ray, ultrasound, MRI and cortisone injection on 4 March 2019, but a third procedure performed by Mr Hussaini on 16 August 2019 which includes arthroscopy chondroplasty of the patellofemoral joint, a microfracture of the trochlear and chondroplasty of the lateral tibial plateau".[21] Mr McWilliams also referred to the plaintiff having had two further cortisone injections in March 2020 and June 2020.
4. Mr McWilliams referred to what he characterised as some evidence of a possible fracture of the patella from the July 2018 injury. He referred to the observations by Dr Poppenbeek in his report to the defendant dated 5 June 2020, on addressing diagnosis, who said that:[22]

"This is rather complex. I believe the diagnosis pertaining to the injury of 2018 was probably an aggravation of pre-existing chondromalacia of the right knee. That Ms Litchfield understands from her surgeon there was also a fracture of the patella which would probably have occurred in that injury. It would be fair to describe this condition as internal derangement via aggravation of pre-existing degenerative change".

1. Mr McWilliams referred to the opinion of Mr Asaid dated 3 September 2025, who when asked, "Is any damage to the right knee sustained on 6 July 2018 greater because of the 12 February 2012 injury", said:[23]

"The main difference in the findings between the surgical procedures performed is the subsequent development of Grade III chondral changes of both of trochlear and lateral tibial plateau which developed at some stage between the surgery on 9 July 2012 and the surgery on 6 July 2018".

1. Mr McWilliams submitted that Mr Asaid's opinion should be regarded as identifying a difference in the pathology of the right knee. Also, in answer to being asked, "Did any injury suffered by reason of the 6 July 2018 incident change the clinical path to a total knee reconstruction and if so, in what way", Mr Asaid wrote:[24]

"Whilst it is possible Ms Litchfield may have required a total knee replacement at some stage in the future following the incident on 12 February 2012, it's reasonable to consider that the incident on 6 July 2018 may have brought forward the need for this procedure. As outlined in my response to question 2, that the intraoperative findings from the surgical procedure performed following the incident in 2018 demonstrated Grade III changes".

1. Mr McWilliams in advancing his submission that the medical evidence is supportive of a finding that the consequences of the 2012 injuries were of a lesser order than has come to be the case as a result of July 2018 injury, relied on the opinion expressed by Dr Barton in August 2012, subsequent to the First Surgery, who said that the defendant insurer could regard the plaintiff as able to return to work.
2. Mr McWilliams also referred to Dr Barton's second report dated 29 October 2012, in which he wrote:[25]

"When I saw the worker I felt that her physical problem was relatively minor and there was no particular reason why she could not return to work, undertake the activities reviewed and in time return to normal duties".

1. Mr McWilliams referred to Dr Barton's third report dated 31 October 2012 in which he said:[26]

"As I indicated previously, I believe once the worker has moved back to normal hours, which I believe she can do now, she should be able to do normal hours and duties within the two-week period. I believe that she will be fit for her pre-injury role within two weeks from the commencement of the return to work program".

1. Mr McWilliams addressed the report of Mr Simm dated 3 October 2018. Mr McWilliams noted that Mr Simm was asked, "Whether you consider the worker's current level of impairment will continue into the foreseeable future",[27] to which he said:

"I consider that her current level of impairment is probably slightly greater than it will be when the recent exacerbation of her right knee pain settles further".[28]

1. Thus Mr McWilliams argued, although Mr Simm had diluted the extent of exacerbation, he nonetheless, identified that the July 2018 injury had caused an exacerbation of the plaintiff's pre-existing injury.

1. Ms Clark commenced the defence to the application by submitting that prior to July 2018 the plaintiff suffered from long standing degenerative changes in her right knee that had been rendered symptomatic in 2012 when she suffered injury.
2. Ms Clark submitted that in order to make a proper evaluation of the aggravation to the right knee caused by the July 2018 injury, it is necessary to have regard to the condition of the plaintiff's knee prior to the July 2018 injury.
3. In addressing the course of history and treatment the plaintiff has undergone for the right knee prior to July 2018, Ms Clark noted that on 4 April 2012 the plaintiff underwent an MRI of her right knee that revealed a Grade C3/4 patellar chondromalacia.
4. Ms Clark noted out that Mr Miller performed a First Surgery on the plaintiff on 9 July 2012 comprising an arthroscopic debridement and synovectomy of the right knee. Ms Clark referred to Mr Miller's operation findings of extensive and severe patellar chondromalacia involving the median ridge and almost entire lateral facet, with unstable chondral tissue. Mr Miller described very slight patella tracking and with the trochlear being normal, and a small tear in the anterior portion of the medial meniscus. As to the future, Ms Clark submitted, Mr Miller considered that the plaintiff should benefit from the debridement he performed, together with the ongoing use of analgesics, anti-inflammatories and glucosamines. He said there was quite significant disease particularly on the retro-patellar surface, and ongoing symptoms were anticipated.
5. Ms Clark next referred to Mr Miller's medico legal report dated 12 December 2012 in which he addressed diagnosis and prognosis for the plaintiff's right knee. He said that the plaintiff suffered an aggravation of patellofemoral disease and the development of meniscal pathology. He said that the plaintiff had only experienced a moderate response to the First Surgery and that ongoing symptoms were anticipated. He assessed her prognosis as only "fair".
6. Ms Clark submitted that only a short period of time later in March 2013, Mr Miller performed a Second Surgery that consisted of another arthroscopic synovectomy of the right knee. In his operation report, Mr Miller said that having examined the plaintiff under anaesthesia, some patellofemoral joint crepitus was found, and he said there was extensive chondromalacia patella noted on the retro patellar surface involving the median ridge, most of all the lateral patella facet part of the medial patellar facet. The chondral tissue was highly unstable. Again Mr Miller identified slight patellar tracking. There was no corresponding trochlear disease, but he did observe a small tear in the medial meniscus but on a different part that had been detected by MRI. Mr Miller said that the prognosis for the plaintiff's right knee was still only fair and that significant ongoing symptoms were likely to occur because of the retro-patellar pathology.
7. In the short period between the first and second surgeries performed by Mr Miller, the plaintiff was assessed by Mr Davison, an orthopaedic surgeon. On 10 January 2013, Mr Davison set out the plaintiff's status in the following terms:

"Ms Litchfield reported the presence of chronic persistent pain around the right knee. The pain is said to be ache-like in nature. She said at times the right knee feels hot and 'it gets tight'. There is intermittent cramping in the right calf. Ms Litchfield said that she is unable to squat, kneel or negotiate stairs. If she does not wear the knee brace, it tends to give way.

Ms Litchfield estimated she had the following physical capacities:

Ms Litchfield undertakes a limited range of household chores, including sweeping, mopping and dusting, in a self-paced manner. Her son maintains the lawns and gardens. Her son's de facto and the claimant's housemate also assist with household chores".[29]

1. As Ms Clark commented, Mr Davison said he had no cause to disagree with Mr Miller's opinion that there had been an aggravation of what was probably pre-existing but asymptomatic retro-patellar pathology. Mr Davison also thought the plaintiff had developed a chronic regional pain syndrome.
2. Ms Clark next referred to the opinion of Mr Simm who saw the plaintiff on behalf of the defendant in October 2018, that is to say, after the July 2018 injury but before the Third Surgery performed by Mr Hussaini in August 2019. Mr Simm diagnosed advanced degenerative chondropathology in the patellofemoral joint of the right knee and which pathology he described as "constitutional".
3. Ms Clark submitted that in light of Mr Simm's diagnosis, the plaintiff may have been predisposed to progressive chondropathology from mild patellar tracking as Mr Miller had identified in both surgical arthroscopies he performed and that was already of a Grade 3-4 level prior to the first of the 2012 injuries suffered to the right knee. Ms Clark also pointed out that Mr Simm said the symptoms that the plaintiff was experiencing when he assessed her were consistent with his diagnosis of degenerative chondropathology in the patellofemoral joint of the right knee and he also noted the possibility of some pain amplification due to anxiety.
4. Ms Clark referred to Mr Simm's reporting that the plaintiff presented with chronic established symptoms that had been worsened due to an "exacerbation" in July 2018. However, Mr Simm said he anticipated that the plaintiff's knee would gradually settle and she would have ongoing chronic pain similar to that she had experienced in the first six months of 2018, that is to say, before the July 2018 injury. Mr Simm said that the plaintiff's current level of impairment was "probably slightly greater than it would have been once the exacerbation settled further".[30] He said that the MRI the plaintiff had undergone shortly before he conducted his examination of her was consistent with the advanced degenerative pathology in the patellofemoral joint.
5. Ms Clark submitted that although subsequent to Mr Simm's examination of the plaintiff, she came to further surgery by Mr Hussaini, nonetheless, well before the July 2018 injury, very significant pre-existing pathology of a degenerative nature existed.
6. Ms Clark proceeded to undertake a thorough examination of the consequences to the plaintiff from the 2012 injuries by reference to the plaintiff's First Injury Affidavit affirmed in January 2018 and approximately six months before the July 2018 injury.
7. In the First Injury Affidavit, the plaintiff deposed to pain and discomfort in her right knee that remained constant. She subsequently deposed to the pain not being constant but intermittent, however, in her Third Aggravation Injury Affidavit, the plaintiff said the pain in the right knee was constant but that its intensity varied.
8. In her First Injury Affidavit in support of a serious injury from the 2012 injuries, the plaintiff described her right knee pain being of such a calibre that on arriving home from work on occasions she would have tears in her eyes. She said she was taking Panadeine Forte on bad days and that it helped dull the pain but that she was never free of pain. At that time she likened the constant pain in her right knee as akin to someone sticking a knife in it, and that the pain also shot down the right shin from the knee. She described pins and needles and numbness in the right foot from time to time. She described the pain and discomfort in the right knee as interfering with all aspects of daily living. She described an inability to run. She said she avoided bending her right knee which meant avoiding stairs if at all possible. She described avoiding sitting for long periods with a bent leg thereby limiting her from driving long distances without regular breaks. She described difficulty in sleeping which included trouble getting comfortable in bed. She was waking 2 to 3 times a night with pain in the right knee with the result that during the course of the day it proved difficult for her to concentrate. She described an inability to go camping and of avoiding hiking because she knew the restrictions in her knee would aggravate her pain. She described an inability to go dancing with friends. She described the difficulty she experienced when trying to babysit one of her friend's grandchildren and her upset at realising she would likely encounter similar difficulties when, as she anticipated, she became a grandmother.
9. Ms Clark submitted that I should be cautious in accepting that the plaintiff's limitations as a grandmother that she has encountered have only presented because of and since the July 2018 injury. Indeed, Ms Clark submitted that the pre-existing state of the right knee and difficulties with bending, driving and running that the plaintiff deposed to prior to July 2018 would have impeded her in the same way from involving herself in the care and play with her grandchildren.

1. Ms Clark addressed the plaintiff's Third Aggravation Injury Affidavit and the distinguishing consequences referred to in it but that the plaintiff said did not exist before July 2018 and that are relied on as amounting to a serious aggravation of her pre-existing injury. The plaintiff deposed that, "I continue to experience similar impacts to my hobbies and pastimes including camping, hiking, dancing and interacting with young children in my life".[31] Ms Clark submitted, however, that these are the same consequences that the plaintiff deposed in the First Injury Affidavit when she addressed the consequences from the 2012 injuries.
2. Ms Clark next dealt with the plaintiff's evidence that her right knee locks up and that it clicks more regularly. The plaintiff deposed to a belief that the kneecap was broken but Ms Clark contended that neither radiology nor medical opinions support a finding that the plaintiff sustained a fracture to the right kneecap.
3. Ms Clark referred to the report from Mr Hussaini dated 26 July 2021, in which he described Grade 3 type changes in the trochlea and that required microfracture by way of surgical technique but had not referred to a fracture.[32] Ms Clark submitted that Mr Asaid who assessed the plaintiff at the request of her solicitors related the differences between the findings in the surgical procedures that had been performed, with the main difference being that the plaintiff had developed Grade 3 chondral changes in trochlear and a lateral tibial plateau which had developed at some stage between 9 July 2012 and 6 July 2018.[33] Ms Clark submitted that having undertaken that comparison between what was found on the surgeries, there is no evidence to indicate a fracture as a result of the July 2018 injury.
4. As to the reference to a fracture by Dr Poppenbeek in his report dated 5 June 2020,[34] Ms Clark submitted that Dr Poppenbeek had referred to what he had been told by the plaintiff as opposed to him having identified a fracture.
5. Ms Clark referred to the plaintiff's affidavit that she was on modified duties following the July 2018 injury although Ms Clark submitted that it is unclear from the affidavit material the nature of the duties that the plaintiff was performing prior to then. However, Ms Clark noted that the plaintiff's evidence was that she required assistance from co-workers prior to the July 2018 injury and, indeed, Mr Asaid had noted that, "Despite returning to work she attempted to manage her right knee pain as best she could and she relied on assistance from her colleagues with more strenuous tasks".[35]
6. As to the constancy of the plaintiff's pain, Ms Clark referred to the First Injury Affidavit and the reliance by her at that time to constant pain. At paragraph 11 of the First Injury Affidavit, the plaintiff said:

"The pain and discomfort in my right knee remains constant and it varies in intensity from moderate to strong pain".[36]

1. Ms Clark submitted that when the plaintiff affirmed her First Aggravation Injury Affidavit her description was of constant pain. By the time of her Second Aggravation Injury Affidavit, the description applied by the plaintiff was of "intermittent" pain, and by 2025, she described "constant pain".
2. Ms Clark referred to a history recorded by a Flexi Personnel assessor on 15 April 2024. Ms Clark noted that the account recorded by the assessor is expressed in similar terms as the plaintiff had related in her First Injury Affidavit and for the purposes of the 2012 injuries. The Flexi Personnel assessor related that the plaintiff said she had difficulty providing exact timelines and dates but that between April 2013 and July 2018 she said that "I think I was on WorkCover for about two years doing light duties. Then I went back to normal duties, mainly driving. I had a colleague that I worked well with who would do the work that would require me to bend, squat - anything that was putting pressure on my knee. I limped around a lot. My limping got so bad I didn't notice but my colleagues would notice it. During these five years the pain was always there 24/7. It never went away. I thought it would be better off if it was amputated. I would have to raise and elevate my leg and knee after work. I hated taking painkillers because they knocked me out. If I moved the wrong way I would be sitting up in a lot of pain".[37] The assessor recorded that the plaintiff said she tried to work and deal with the pain and she needed to work to pay her bills.[38]
3. It was shortly prior to the Flexi Personnel report, that the plaintiff affirmed her Second Aggravation Injury Affidavit in which at paragraph 3, she said that she continued to take Meloxicam, an anti-inflammatory and Panadol Osteo for pain, although she tries to restrict their usage as she does not like tablets.[39] Ms Clark said the plaintiff had previously deposed to taking Panadeine Forte and that in 2013, Mr Miller had thought it was likely that anti-inflammatories would be an ongoing requirement.
4. Ms Clark submitted that at paragraph 4 of the Second Aggravation Injury Affidavit, the plaintiff deposed that the pain in her right knee is still intermittent, and is present most days but comes and goes. The plaintiff described experiencing some numbness down to the lower leg and foot, and more locking and dropping of the knee.[40] Ms Clark identified that the plaintiff's account of the impacts on her day-to-day life are those she described in her First Aggravation Injury Affidavit, and apart from the increase in the locking, is otherwise the same as the plaintiff described in that affidavit as the consequences of the 2012 injuries.
5. Ms Clark referred to the plaintiff's Third Aggravation Injury Affidavit where at paragraph 5, the plaintiff described a worsening of symptoms.[41] Ms Clark pointed out that the plaintiff was assessed by Mr Asaid in January 2024 and, therefore, prior to the making of the Third Aggravation Injury Affidavit. Mr Asaid said at that the plaintiff had reported that her overall condition had remained largely unchanged and that she continued to experience persistent knee pain and that her symptoms were similar to when she was last reviewed by him on 16 January 2024.
6. Although the plaintiff deposes in that affidavit to having previously been able to "tinker" in the garden and no longer being able to do so. Ms Clark contended that the account given was expressed at a very general level.
7. Ms Clark submitted that although the plaintiff has needed injections, she has not had any interventional treatment, since about 2020, and while a potential total knee replacement is mooted, I should be satisfied that it is uncertain the extent to which the July 2018 injury contributed to the increased likelihood for it, or of the extent of hastening of the possibility of that procedure.
8. Ms Clark submitted that despite a request having been made of Mr Hussaini to provide an updated report, he had replied to the plaintiff's solicitors that he did not consider there was utility in doing so because there had been no change or need for further treatment since his earlier report.[42]
9. Ms Clark addressed the reports provided by Mr Asaid. In his report of assessment dated 17 June 2025,[43] Mr Asaid described the consequences from the third incident, that is, the July 2018 injury, in terms that the plaintiff experienced some additional pain but that she continued to experience improvement following surgery.[44] He described the plaintiff's current symptoms and complaints.[45] Having been asked how the plaintiff's everyday activities were impacted by the first of the 2012 injuries, he referred to the plaintiff's current symptoms and complaints. In answer to a similar question in respect of the July 2018 injury, Ms Clark submitted that despite Mr Asaid providing a more detailed account, the substance of his reporting married up with the description given by him from the first of the 2012 injuries. As to diagnosis, Mr Asaid described the first of the 2012 injuries as an aggravation of the right knee patellofemoral joint, chondromalacia and medial meniscus tear. He described the July 2018 injury as a further aggravation of the right knee patellar joint chondromalacia requiring further surgery. The treatment that Mr Asaid outlined for both "injuries" in his first report is the same; that at some stage in the future the plaintiff will require a total knee replacement as a definitive treatment for her right knee condition.
10. Ms Clark described what she characterised as an attempt on the plaintiff's part to obtain a supplementary report from Mr Asaid in order to better delineate matters but that she submitted was unsatisfactory. In it, Mr Asaid compared the surgeries performed by Mr Miller and the surgery performed by Mr Hussaini, and then described some chondral changes of both the trochlea and the lateral tibial plateau which he said had developed at some stage between the surgery on 9 July 2012 and the surgery of 6 July 2018.[46] Mr Asaid said, "While it's possible that these changes represent the natural history of the disease and further degeneration of the knee joint it is also possible that the further trauma to the right knee as a result of the incident on 6 July 2018 has caused further injury to the trochlear and the lateral tibial plateau and necessitated the further surgical treatment".[47]
11. Ms Clark submitted that the reporting by Mr Asaid is best understood as an inability by him to distinguish between a natural history of degenerative disease that has brought about the changes or the July 2018 injury. Ms Clark noted that in response to being asked whether the injury suffered by the plaintiff in July 2018 changed the clinical pathway to a total knee reconstruction, and if so, in what way, Mr Asaid couched his opinion in very equivocal language and he said:

"While it's possible that Ms Litchfield may have required a knee replacement at some stage in the future following the incident on 12 February 2012, it is reasonable to consider that the incident on 6 July 2018 may have brought forward the need for this procedure".[48]

1. Ms Clark submitted that Mr Hussaini provided no path of reasoning for arriving at his opinion for the hastened need for the procedure and he failed to have regard to the very significant degenerative changes that were previously in play.
2. Ms Clark referred to Seckold v Transport Accident Commission ("Seckold"),[49] a decision that involved an aggravation of pre-existing degenerative changes to a plaintiff's wrist and which had been asymptomatic before a transport accident. The Court said:[50]

"So here, where the injury was an aggravation of a pre-existing condition, and where there had been very little by way of any symptoms requiring medical treatment for a significant period of time following the accident, it was incumbent upon the applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident. Notwithstanding the need for the applicant to undertake this exercise, the applicant adduced no evidence which sought to deal with this issue.

Specifically, there was no evidence as to the extent of the aggravation, or the likely duration of the effects of the aggravation. These were matters of evidence which the applicant was required to address as part of his case in endeavouring to establish that the consequences of the injury caused by the accident".

1. First, the plaintiff's application was pursued on the basis that the July 2018 injury amounted to an aggravation injury that was serious. Therefore, the outcome of the application depends on whether the correct characterisation of the consequences from the July 2018 Injury to the plaintiff's right knee is an aggravation injury that itself alone is serious and excluding the previous insults the plaintiff suffered to her right knee in 2012, their consequences from it, and its likely trajectory.
2. Second, because the plaintiff has been injured on several discrete occasions to the same body function of the right knee, the general rule of application at law is that in deciding if the July 2018 injury constitutes a serious aggravation injury, I must separate out the components of the July 2018 injury from each other occasion of injury from 2012, and that I cannot aggregate the injuries despite them being occasioned to the one body part, although across several incidents.
3. Third, the plaintiff's First Injury Affidavit staked out the myriad aspects in which the condition of the right knee plagued her by way of pain and limitations and consequences in her everyday activities and enjoyment of life. Those consequences have resulted in the grant of a serious injury certificate. The fact of the already seriously injured knee cannot be added to the consequences that arise separately from the subsequent July 2018 injury to found the relief sought by the plaintiff in her Second Originating Motion for a serious injury certificate. The aggravation must be assessed on its own terms after identifying each injury, and identifying and then separating the impairment consequences of each injury in order to determine if the additional impairment caused by the aggravation of the July 2018 injury is serious.

1. I am not satisfied that the plaintiff has proved that the July 2018 injury has caused an aggravation to the right knee that itself is a serious injury.
2. Although I am not satisfied that the plaintiff has proved a serious injury caused to her right knee from the July 2018 injury, this is not to decry the plaintiff's pain and suffering from her right knee generally, or to challenge the plaintiff's veracity. The plaintiff was not cross-examined. I accept the accounts she provided in her affidavits. However, the plaintiff has been unable to isolate and amplify the additional consequences to the right knee from the July 2018 injury as satisfying the threshold required to constitute a serious injury according to the two limb test. As Ms Clark amply and comprehensively identified, the very substantial interference and consequences from the plaintiff's right knee existed well prior to the July 2018 injury. The plaintiff's pre July 2018 pathology was such as to more than account for the present condition of the right knee irrespective of the July 2018 injury and for any future progression.
3. The plaintiff's emotional response to her limitations as they related to her own grandchildren as opposed to other people's children with whom she had encountered her restrictions before the July 2018 injury is understandable but I am not satisfied that she has established that this is as a result of a functional worsening of the right knee since and due to the July 2018 injury. I agree with the submissions made by Ms Clark on the point.
4. I do not accept that the evidence supports a fracture from the July 2018 injury. The plaintiff spoke in her evidence to a clicking and locking sensation as attributable to a fracture. That sensation and feeling assuming it is attributed to the July 2018 injury is not of such a further consequence to satisfy the test required to determine the July 2018 injury a serious injury.
5. I am not satisfied that the plaintiff has proved that the July 2018 injury has increased the likely need for a total knee replacement. Although because of the ordinary effluxion of time the plaintiff has now reached the age that she had previously been told she would need to obtain before considering such a procedure, that procedure has not occurred. I am unable to determine on the evidence that if and when it occurs, it is because of the July 2018 injury, as opposed to the ordinary pre-existing condition and changes and the effects and trajectory due to the 2012 injuries.
6. Although the plaintiff came to a surgical intervention following the July 2018 injury, the plaintiff's evidence is that the surgery alleviated the pain "slightly".
7. In a note of conference conducted with Mr Asaid on which the plaintiff relied, Mr Asaid said:

"What I can say is that the plaintiff went from being in a position where she was not needing any more surgery, save for the total knee replacement at a much later date, to needing more surgery. In essence, the 6 July 2018 necessitated the need for further surgical intervention".[51]

1. The fact that the plaintiff came to a third surgery from Mr Hussaini calls to be considered not only through the prism of the effect of the July 2018 injury but bearing in mind that well prior to July 2018 Mr Simm had described very significant pre-existing pathology of a degenerative nature that was in play well prior to the commencement of the increased pain and symptoms in February 2020.
2. I accept that Findlay v Transport Accident Commission,[52] to which Mr McWilliams relied, reinforces the need to be mindful that the refusal of a grant of relief for pain and suffering in a gateway proceeding is problematic if it is due to contested matters of causation because, apart from anything else, the limited nature of the inquiry that can be ordinarily undertaken in such a setting and that the grant of relief does no more than confer to an entitlement to a plaintiff proceed to law to seek damages by means of a fully contested trial.
3. I consider that the decision of Seckold,[53] relied on by the defendant, is less applicable on the facts of this case because here the plaintiff did adduce some evidence of a progression in pathology of the pre-existing right knee.
4. The question is whether the further surgery, and two additional cortisone injections together with the plaintiff's account of a sensation of locking in the knee that followed the July 2018 injury on an assumption they were caused by it, constitutes a serious long term aggravation injury to the right knee that should be assessed as very considerable?
5. I am satisfied that the consequences of pain and its variable intensity, the use of a knee brace lest the knee collapse, and the interference with previous activities and pursuits were well embedded as a result of the plaintiff's pre-existing knee pathology that the 2012 injuries caused.
6. The identified further consequences from the July 2018 injury, although of significance to the plaintiff, when objectively assessed, and excluding the suite of consequences that prevailed before the July 2018 injury as part of an assessment of the claimed aggravation, are not very considerable. In substance, the extent of the plaintiff's additional impairment to the function of the knee is not of such order as to satisfy the twin tests for the grant of a serious injury certificate.

1. For the reasons expressed the relief sought in the plaintiff's Originating Motion is refused. I will hear the parties on the form of final orders required.

[1] Exhibit P1, Plaintiff Court Book ("PCB") 9.

[3] No reliance was placed on paragraph (c) of the definition of serious injury.

[21] Transcript ("T") 7, Line ("L") 25-31.

[22] Exhibit D5, Defendant Court Book ("DCB") 57.

[49] [2025] VSCA 18.

[52] [2025] VSCA 126.

[53] [2025] VSCA 18.