Laird v Baby Mode Pty Ltd [2018] VCC 71 (19 March 2018)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised

(Not) Restricted

Suitable for Publication

SHERRYL LAIRD	Plaintiff

v

BABY MODE PTY LTD	Defendant

JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2018
DATE OF JUDGMENT:	19 March 2018
CASE MAY BE CITED AS:	Laird v Baby Mode Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 71

Catchwords: Serious injury – injury to the right knee – causation – whether consequences “very considerable”

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr J Fitzpatrick	Slater & Gordon

For the Defendant	Mr D Myers	Russell Kennedy Lawyers

1 Mrs Laird is a 63-year-old lady who claims to have suffered an injury to her right knee in approximately May 2012 whilst working as a sales assistant at the defendant’s baby goods store. Mrs Laird claimed that she was standing on a ladder to remove a large box from an upper shelf in the storeroom, when she missed a step on the ladder, and stumbled, twisting her right knee. Mrs Laird claims that she then reported the injury on the defendant’s timesheet, before leaving work early for the day.

2 Mrs Laird claims that initially she did not think much of the incident, but that over time her right knee pain worsened, such that she ultimately ceased work in October 2012. She subsequently underwent right knee surgery in November 2012 and again in October 2013.

3 Mrs Laird did not lodge a claim for compensation until February 2014. The defendant disputes that Mrs Laird suffered the work injury and further disputes that any such incident is a cause of her ongoing right knee injury and impairment.

4 Mrs Laird claims to have suffered serious pain and suffering consequences as a result of her right knee impairment. In order for Mrs Laird to be entitled to claim common law damages she must satisfy me that the work incident occurred, that it is a cause of her right knee injury and ongoing impairment, and that such impairment satisfies paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).

5 Only Mrs Laird was called to give evidence and she was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.

6 For the reasons which follow, I am satisfied that Mrs Laird was injured in the workplace incident in the way that she claims, that the incident is a cause of her ongoing right knee injury, and that the consequences of her right knee impairment can be described as at least very considerable.

7 Mrs Laird was born in Melbourne and completed Year 10 at high school. After leaving school Mrs Laird worked for various employers, predominantly in sales positions.

8 In approximately mid-2005, Mrs Laird suffered an injury to her right knee whilst working as a sales assistant for Babyco. On this occasion, she said that she had been squatting on the ground and had stood up quickly, causing her to twist her knee and suffer injury.

9 On 5 July 2005, an x-ray and ultrasound were taken of Mrs Laird’s right knee. The x-ray was reported as demonstrating slight medial tibiofemoral degenerative joint disease. The ultrasound was reported as normal.

10 Mrs Laird said that she recovered from this injury within approximately two weeks and did not thereafter experience any ongoing problems in her right knee.

11 Mrs Laird said that she had experienced other health problems over the years and had undergone a number of surgical procedures, including the removal of a cancerous tumour from her breast, a hysterectomy, and lap-band surgery.

12 Mrs Laird also suffered some psychiatric upset following the Black Saturday bushfires, in which some of her friends had died. At around that time, Mrs Laird said that she was also declared bankrupt, as her husband’s trucking business had failed, and she had been made redundant upon Babyco having ceased trading. Mrs Laird said that at that time she was prescribed Pristiq medication, which helped her to feel better, to the extent that she felt able to properly function.

13 At a similar time, Mrs Laird was diagnosed as suffering plantar fasciitis. She said she was given exercises to perform, and that over a few months the symptoms in her feet resolved.

14 In about 2011, Mrs Laird travelled to Bali and Phuket for a one-month holiday. Whilst in Phuket, Mrs Laird said that she injured her toe, but denied injuring her right knee at that time.

15 Mrs Laird said that prior to suffering the injury the subject of this claim she enjoyed gardening, playing with her grandchildren, shopping with friends, travelling overseas to places such as Bali, going dancing, spending time at the beach, and going body surfing. Mrs Laird also said that she walked her dog for approximately 30 minutes each day.

16 In approximately May 2011, Mrs Laird commenced employment with the defendant as a part-time sales assistant. She said that whilst she initially worked four days a week, she subsequently reduced her shifts to approximately two days per week, so as to care for her elderly mother.

17 Mrs Laird claimed that she injured her right knee during the course of her employment with the defendant in approximately early to mid-2012, whilst collecting a car seat from the storeroom. Mrs Laird said that the car seat was located in a box on the top shelf, such that she was required to use an A-frame ladder to access it. Mrs Laird said that she climbed up the ladder and reached for the box, and that, whilst climbing down with the box, she struck her right wrist on the second shelf. She then subsequently missed the bottom step of the ladder, causing her to land heavily on the floor, twisting her right knee in the process.

18 Mrs Laird said that nobody witnessed the accident, after which she said that she went to the tearoom to ice her knee, before subsequently reporting her injury to her manager, Nilufer. Mrs Laird said that the pain in her right knee was then too intense, so she left work early, signing off on the defendant’s timesheet. Mrs Laird said that she noted both her injury and the reason for which she was leaving work early on the timesheet.

19 Mrs Laird said that she might have taken one day off work due to her knee pain, but that she did not obtain a medical certificate. She said that she was not required to provide a medical certificate in circumstances where she was only a casual employee.

20 Mrs Laird said that she continued to work in the coming weeks, but that her right knee worsened the more she walked. Mrs Laird said that as she only worked two days a week, she was able to rest and recover on the remaining five days, thus allowing her to continue working.

21 On 27 June 2012 Mrs Laird consulted her general practitioner, Dr Soma Herath. Dr Herath’s typed clinical note of that attendance referred to Mrs Laird having complained of a nocturnal cough for three days, associated with asthma. Dr Herath prescribed an asthma inhaler and a further script for Pristiq medication.

22 In cross-examination, Mrs Laird was adamant that she had told Dr Herath of her right knee pain at this attendance. Further, Mrs Laird stated that at that time Dr Herath took handwritten notes during the consultation, which were subsequently transcribed onto a computerised version of the clinical records.

23 On 25 July 2012, Mrs Laird travelled with family to Kuala Lumpur, Malaysia. Mrs Laird said that she did not do much walking during the five-day visit, and that she found it quite restful.

24 On 28 August 2012, Mrs Laird then flew to Bali with her husband and friends for two and a half weeks on a pre-arranged trip. Whilst in Bali, she said that she walked enough that she noticed a further increase in her right knee pain.

25 On 2 October 2012, Mrs Laird consulted Dr Herath, who noted that she complained of right knee pain, with a tendency to give way on walking.

26 On 4 October 2012, Dr Herath made arrangements for medical imaging to be taken of Mrs Laird’s right knee. It was reported as demonstrating “No evidence of arthritis, bony or joint abnormalities”.

27 On 15 October 2012, Mrs Laird again consulted Dr Herath. At this attendance, Dr Herath obtained a history that Mrs Laird had a tendency to limp on walking due to pain in her right knee. The note stated that there was no history of trauma and that the knee pain had been gradually worsening over the last six months. Dr Herath referred Mrs Laird to orthopaedic surgeon Mr Rod Cunningham.

28 On 22 October 2012, Mrs Laird consulted orthopaedic surgeon Mr Cunningham in relation to her right knee pain. At this time, Mr Cunningham noted that Mrs Laird had experienced increasing pain over a 12month period, and that she had ceased work two weeks previously. Mr Cunningham’s handwritten notes also referred to Mrs Laird having originally twisted her knee at work five years earlier. His notes, which in parts are difficult to decipher, also appear to refer to “baby shop” and “moving house.”

29 In cross-examination, Mrs Laird was adamant that she had told Mr Cunningham that she had hurt herself whilst coming down a ladder at work. She said that she had been moving house at the time she consulted Mr Cunningham, and produced a copy of a real estate agent inspection report as a means of corroborating her recollection of events.

30 On 7 November 2012, Mr Cunningham performed a right knee arthroscopy, medial meniscectomy, and medial femoral chondroplasty.

31 On 15 April 2013, Mrs Laird attended Whittlesea Osteopathy, where she consulted an osteopath named “Matthew”. The handwritten clinical notes of this attendance include reference to the following matters:

32 Mrs Laird was cross-examined regarding this attendance note. She said that the only reference she had made to any incident in Phuket was that she had badly bruised her toe, and had wondered if it related to the pain she was then suffering in her foot. Mrs Laird was adamant that she did not tell Matthew that she had fallen in Phuket and suffered a fresh tear to her knee. Mrs Laird disputed the accuracy of Matthew’s clinical notes and said that she was predominantly on the examination table throughout the course of the examination.

33 Mrs Laird said that she had subsequently sought to contact Matthew in relation to these clinical records, in order to enquire as to the basis of their contents. However, Mrs Laird said that Matthew was no longer working at Whittlesea Osteopathy and that she had no further details of him.

34 On 20 June 2013, Mrs Laird again consulted Mr Cunningham. His handwritten attendance notes refer to Mrs Laird not working, and to an incident in May 2012 in which she suffered injury whilst backing down a ladder and missing a step.

35 In a report dated 2 June 2017, Mr Cunningham stated that it was his understanding that Mrs Laird had injured her knee in May 2012, whilst moving house, and backing down a ladder with a box in her hands. When cross-examined about this aspect of his report, Mrs Laird again stated that she had moved house in October 2012. It was then submitted on her behalf that Mr Cunningham had simply confused aspects of his notes.

36 On or about 23 August 2013, Mrs Laird said, she had been visiting a friend’s home when she was physically attacked by a person whom she had removed as a “friend” on Facebook. Mrs Laird said that the woman had punched her in the side of her head and dragged her by her jacket around the kitchen. Mrs Laird said that she had not fallen to the ground, and that she had guarded her right knee.

37 On 26 August 2013, Mrs Laird consulted Dr Herath in relation to this incident, who noted that she had experienced an aggravation of her right knee pain following the incident. Immediately thereafter Mrs Laird attended the Austin Hospital, where it was noted that she had experienced insomnia, difficulty concentrating, and blurred vision since the incident. The hospital record made no reference to any right knee pain. Mrs Laird said that she did not aggravate her right knee in this incident, and disputed the entry in Dr Herath’s clinical records.

38 On 2 October 2013, Mr Cunningham, assisted by Dr Jeffrey Dahms, performed a further right knee arthroscopy on Mrs Laird. Mrs Laird said that just prior to this surgery being performed, Dr Dahms had asked her whether or not she had pursued a WorkCover claim. Upon responding that she had not, Mrs Laird claimed that Mr Dahms then encouraged her to do so.

39 On 6 February 2014, Mrs Laird completed a worker’s injury claim form with the assistance of her solicitor. The claim form referred to the fall from the ladder, but provided no date of injury, no date as to when the injury was reported to her employer, and no date as to when she first noted her symptoms. Mrs Laird said that she read the claim form after it had been completed by her solicitor, but could not recall having seen those questions.

40 On 12 May 2014, Mrs Laird attended her first medico-legal appointment in relation to this claim. The orthopaedic surgeon, Mr McCubbery, obtained the following history from Mrs Laird:

41 Since undergoing the second surgery, Mrs Laird said that she has continued to experience constant pain in her right knee, which at times is a throbbing pain. She said that her knee continues to swell on a daily basis, and that she tries to ease such pain by elevating her leg in a recliner chair at home.

42 Mrs Laird said that her right knee gives way at times, causing her to stumble. She said that she sometimes wears a knee brace, but has been told by doctors not to become dependent upon it.

43 Mrs Laird takes Endep medication each night, and two to four Nurofen each day. Mrs Laird said that the Endep helps her sleep, but that she still wakes from knee pain every second night.

44 Mrs Laird said that she has had physiotherapy and osteopathic treatment for her right knee, and that she also does water aerobics.

45 Mrs Laird said that she can no longer garden, save for watering her plants. She said that she no longer goes dancing with her husband, no longer walks her dog, and no longer goes body surfing.

46 Mrs Laird said that she has still travelled overseas since suffering her knee injury, but that she was not as active as she had been in the past.

47 In support of her claim, Mrs Laird relied upon affidavits from her close friend, Jeanette Shields; her sister-in-law and former workmate, Ms Astrid Bialas; her husband, Mr Frank Van-Gestel; and her former manager at Babyco, Ms Jacqueline Houlgrave.

48 Ms Shields said that she has been a friend of Mrs Laird for approximately nine years, and that in the last seven years they have seen each other approximately three to four times a week. Ms Shields said that before Mrs Laird suffered her right knee injury, she and Mrs Laird shared the pastime of shopping and would often go shopping for full days at local shopping centres. Ms Shields also said that they used to go swimming together, at either Rosebud or whilst travelling overseas together in Bali.

49 Ms Shields stated that she travelled with Mrs Laird on her trip to Bali in 2012, and recalled Mrs Laird having difficulties getting down the steps of the main pool. Upon witnessing her difficulty, Ms Shields said that she then arranged for Mrs Laird to be given assistance getting into and out of the pool. Ms Shields also recalled that Mrs Laird was unable to dance on this trip due to her knee pain.

50 Ms Shields stated that whilst they still go shopping together, they tend now to only go for an hour or so, during which Mrs Laird usually uses a trolley from the supermarket to help her walk.

51 Ms Bialas is married to Mrs Laird’s brother and has known Mrs Laird for approximately 15–20 years. She was also employed by the defendant at the same time as Mrs Laird. Ms Bialas stated that she can recall being asked to fill in for a shift in or around May 2012, on a day that Mrs Laird usually worked. Ms Bialas stated that she was told that Mrs Laird was not at the store as she “had hurt her knee the day before while climbing down a ladder”. Ms Bialas said that she was given this information by her supervisor, but cannot recall if it was Nilufer or Medka. Ms Bialas also recalled a comment that Nilufer had made to her, at a time when Mrs Laird was in Bali, prior to her resignation, to the effect that “Sherryl’s supposed to have such a sore knee yet she can still go to Bali.”

52 The defendant objected to the admissibility of such evidence on the basis that it was hearsay.

53 Mrs Laird’s husband, Mr Van-Gestel, stated that “some time shortly before we went to Bali in 2012” Mrs Laird came home from work and reported to him that she had hurt her right knee whilst carrying a box down a ladder. Mr Van-Gestel said that he recalled that his wife’s knee had looked very swollen, and that she had kept her leg elevated and taken some painkillers. Mr Van-Gestel said that whilst holidaying in Bali, Mrs Laird’s knee condition slowed her down; that she was hypervigilant when she was walking, and that she stumbled frequently. Mr Van-Gestel stated that Mrs Laird required assistance getting in and out of the steps of the hotel swimming pool.

54 Mr Van-Gestel said that he and Mrs Laird previously went dancing frequently, but that they no longer do so. Mr Van-Gestel also stated that due to her knee injury, Mrs Laird now rarely does any gardening, and is restricted in her ability to play with and care for her grandchildren. Mr Van-Gestel stated:

55 I consider this paragraph of Mr Van-Gestel’s affidavit to exaggerate the true extent of Mrs Laird’s incapacity. Mrs Laird said that although she stumbles often, she has not actually fallen because her knee has given way, save for one possible occasion. Given this clear overstatement by Mr Van-Gestel in this part of his affidavit, I give little weight to the balance of his affidavit.

56 Ms Houlgrave provided an affidavit, which stated that Mrs Laird had worked for her at the Babyco store she managed from 2004 until 2010. Ms Houlgrave stated that she recalled Mrs Laird spraining her right knee in approximately 2005, after which she had taken about two weeks off work. Ms Houlgrave recalled that following her return to work Mrs Laird did not demonstrate any further signs of limping or pain in her right knee, and said that she continued in her normal duties until the store closed in 2010.

57 The defendant tendered affidavits from its owner, David Avola, and its managing director, Ray Pierotti.

58 Mr Avola stated that Mrs Laird had not reported sustaining a knee injury until she was due to return from annual leave in early October 2012. Mr Avola stated that on 3 October 2012 Mrs Laird had been rostered to return to work following her recent trip to Bali, at which time she had telephoned to inform him that she “had had a fall in Bali and had injured her knee”. Mr Avola said that Mrs Laird informed him that she was unable to return to work as she needed to undergo knee surgery. Mr Avola stated that he told Mrs Laird he was sorry to hear her news.

59 Mrs Laird recalls speaking to Mr Avola at that time, but denied having told him that she had fallen in Bali. She said that she simply told Mr Avola that she had been finding it increasingly difficult to perform her job prior to leaving for Bali, and that it had been agreed with Mr Avola that it would be best for her to finish up her employment with the defendant.

60 Mr Pierotti stated that the defendant only kept its timesheets for a 12-month period, and that 2012 records would have been destroyed in approximately 2014. Mr Pierotti said that the defendant had an incident report book in which they recorded staff injuries, and that there were posters informing staff of the book in the defendant’s tearoom. Mr Pierotti said the defendant’s incident report book had no reference to Mrs Laird’s fall.

61 In cross-examination, Mrs Laird said that she had had never seen the incident report book nor any poster in the tearoom. Mrs Laird maintained that she considered having orally reported the incident to her manager, together with having written it on her timesheet, to be sufficient notice of the incident to the defendant.

62 Mr Pierotti exhibited to his affidavit a signed statement from Ms Nilufer Kurtulgil, Mrs Laird’s manager on the day of the incident. In her statement, Ms Kurtulgil stated that Mrs Laird had not report any injury to her.

63 Mr Harrison submitted that minimal weight should be given to Ms Kurtulgil’s statement, in circumstances where she did not attest to it in an affidavit.

64 I consider Mrs Laird to be a creditworthy witness. She gave straightforward evidence, and I do not consider she attempted to embellish her answers or exaggerate her level of impairment in any way. For example, when asked if her knee injury caused her to fall to the ground (as her husband had attested to) she said no, save for one possible occasion.

65 Mrs Laird said that when she is out of her home she tries to walk with someone in the event that her knee gives way, and that in a shopping centre she tends to now use a shopping trolley. The defendant showed video surveillance of Mrs Laird taken on 4 April 2017, in which Mrs Laird can be seen putting petrol in her car, and shopping with an older lady. Mrs Laird is not seen to either lean on her companion or use a shopping trolley.

66 The video involved six minutes and five seconds of footage, but covered a greater period of two hours and five minutes. In cross-examination, Mrs Laird said that she could recall that particular day, as it was just prior to her daughter’s birthday, and she had gone shopping with her mother and friend Eileen. Mrs Laird said that she had used a trolley for part of that trip, however, this aspect was not demonstrated by the footage.

67 I note that Mrs Laird did not insist that she only ever walks with someone beside her, or that she always uses a trolley. In the video, Mrs Laird walked slowly and with a slight limp. In such circumstances, I do not consider the video surveillance to be inconsistent with her evidence.

68 Although I accepted Mrs Laird as a credible witness, I consider she proved somewhat unreliable in not being able to provide the precise date on which the fall occurred. I accept that she believed it was some time after Easter [1] but before June 2012. In circumstances where Mrs Laird did not believe the fall was going to cause her ongoing problems, and where she persisted working, it is understandable that she did not privately record the actual date of the fall.

69 Further, in circumstances where a solicitor assisted her to complete the WorkCover claim form, I do not criticise Mrs Laird for failing to record or estimate when she fell or when she first reported her injury.

70 In October 2012, Mr Cunningham obtained a history that Mrs Laird had suffered worsening pain over a 12-month period. In the same month, Dr Herath obtained a history of six months of worsening pain.

71 As at October 2012, based on Mrs Laird’s evidence that the fall occurred some time in April or May 2012, she had suffered her knee injury 6–7 months previously. The month estimate recorded by Dr Herath is therefore more consistent with Mrs Laird’s evidence. I consider the discrepancy in these estimates is understandable, on the basis that it is not unusual for a person to be imprecise in relation to the date of an injury, or the period of time in which they have endured pain. I do not consider this inconsistency to impact upon Mrs Laird’s credibility.

72 There were also some aspects of Mrs Laird’s history, as recorded by medicolegal doctors, which Mrs Laird disputed. In a report dated 5 May 2014, Dr Wendy Triggs reported that after the fall Mrs Laird “thinks she used crutches for a period of time”. Mrs Laird denied having ever stated that she used crutches, and said that she had only ever used crutches for a brief time after the initial right knee injury in 2005, and then for a brief time after both surgeries.

73 In a report dated 9 August 2016, Mr John O’Brien reported that soon after the fall Mrs Laird consulted her general practitioner and was given antiinflammatories. Mrs Laird stated that she could not recall being given antiinflammatories, and could not recall having said this to Mr O’Brien.

74 I do not consider these matters to be of any significance in this application, and consider them simply to be the result of a genuine error by Mrs Laird or the recording doctor or a combination of the two.

75 The nature of an application for leave under s134AB of the ACA is that, whilst the plaintiff gives evidence, a judge does not usually have the advantage of hearing evidence from other witnesses, or having the testimony of most of the witnesses cross-examined.[2] Such applications cannot proceed as a “fully-fledged trial.”[3] In this case, there are obvious and apparent conflicts in those aspects of the affidavit material pertaining to the time Mrs Laird first reported her knee injury to the defendant. However, I was not given the opportunity to hear oral evidence from any of Ms Bialas, Mr Pierotti or Mr Avola.

76 I further note that the defendant objected to aspects of Ms Bialas’ affidavit on the basis such aspects were hearsay, although only the briefest of submissions were made on this point. In such circumstances, however, I consider the admissibility or non-admissibility of such evidence to be a matter for the trial judge.

77 The defendant relied upon a letter from Ms Kurtulgil. Although this letter was tendered as evidence, I accept Mr Harrison’s submission that, as a piece of unsworn evidence, I attach very little weight.

78 Mrs Laird was consistent in her version of events as to the nature of the workplace accident. The brief summary on the claim form, and the description of the fall contained in the first medico-legal report by Mr McCubbery, accorded with her sworn testimony.

79 I note that Mrs Laird stated that she reported her injury on her timesheet. These timesheets were destroyed by the defendant, in accordance with its usual record-management process, in approximately 2014. I accept that a consequence of these records having been destroyed is that Mrs Laird has now lost her opportunity to verify her evidence that she reported the injury on the day of her fall.

80 I accept Mrs Laird’s evidence that she had never seen the defendant’s register of injury book. I also accept Mrs Laird’s evidence that she did not consider her knee injury to be serious, and thus was content that oral reporting of the incident to her manager, together with entry in her timesheet, was adequate notification to her employer.

81 In addition to my limited ability to assess the apparent conflicts in the affidavit material as to whether or not Mrs Laird reported the fall, I must also be cautious when assessing the treating practitioner’s clinical notes or clinical history. As Kaye AJA explained in Woolworths Ltd v Warfe [2013] VSCA 22, [112]:

82 Having accepted Mrs Laird as a creditworthy witness, I am satisfied by her explanation as to the apparent errors in the clinical records.

83 I consider that, with the passage of time, Mrs Laird may have been genuinely confused as to when she first reported right knee pain to her general practitioner. Notwithstanding such confusion, and whether the first attendance was in June or October 2012, I accept Mrs Laird’s evidence that after the fall her knee continued to worsen, especially following prolonged standing at work, and then extended walking whilst on holiday in Bali.

84 As stated above, I accept that when Mrs Laird consulted Mr Cunningham she most probably reported 12 months of pain. I consider that she was innocently mistaken in detailing the period in which she suffered such symptoms. I note that Mr Cunningham obtained a history of the ladder incident, but that he mistakenly recorded that the incident occurred at home. I accept that when Mrs Laird consulted Mr Cunningham she was in the process of moving house, and that Mr Cunningham most probably confused this aspect of her history.

85 The reference in the Whittlesea Osteopathy records to Mrs Laird suffering a tear in the knee whilst in Phuket is difficult to reconcile with Mrs Laird’s evidence. It is also demonstrative of the difficulties and dangers faced by judges in assessing a claim without the benefit of hearing from the author of clinical records.

86 Having considered the whole of the evidence in the form in which it was tendered, I am satisfied, on balance, that Mrs Laird suffered a right knee injury in a fall in the circumstances in which she described. I accept that her symptoms worsened over time. Having accepted that history, I will now consider the medico-legal evidence in respect of the cause of her current impairment.

87 Mrs Laird’s solicitors arranged for her to be examined by orthopaedic surgeon Mr John O’Brien in August 2016 and May 2017. In his first report, dated 9 August 2016, Mr O’Brien detailed the history he had obtained from Mrs Laird regarding the workplace incident, the medical treatment she had subsequently received, and his findings on examination. Mr O’Brien noted that Mrs Laird reported being unable to squat, as it caused her significant medial-side right knee pain. When this was put to Mrs Laird in cross-examination, she maintained that she has trouble squatting.

88 Mr O’Brien then stated that he considered the twisting-type injury Mrs Laird suffered in the course of her employment in approximately May 2012 to have resulted in a work-related meniscal injury, with aggravation of osteoarthritis of the knee joint, which remained a significant symptomatic problem. Mr O’Brien stated that he remained guarded as to her prognosis, and considered it quite likely that Mrs Laird would require a total knee replacement in the foreseeable future.

89 In his subsequent report, dated 8 May 2017, Mr O’Brien noted that Mrs Laird demonstrated a very slight right-sided antalgic limp, and that an attempt to squat precipitated a complaint of quite severe right knee pain. Mr O’Brien noted one centimetre wasting of her right thigh in comparison to that of her left. He also noted there was a small fusion within the right knee and marked tenderness along the medial joint line. Mr O’Brien also noted some mild laxity in the medial compartment.

90 Mr O’Brien concluded that there was a presence of medial compartment arthritis in Mrs Laird’s right knee, and considered that employment remained a significant contributing factor to her ongoing symptomatic knee pathology. Mr O’Brien was of the opinion that Mrs Laird was not capable of undertaking her pre-injury occupation, as it would involve prolonged standing and walking.

91 The defendant arranged for Mrs Laird to be examined by orthopaedic surgeon Mr Michael Dooley in October 2016 and January 2018. In his first report, dated 25 October 2016, Mr Dooley obtained a history as to the workplace incident and the treatment Mrs Laird had subsequently received. Mr Dooley noted that Mrs Laird reported to him that she had a slow recovery after the first knee arthroscopy and that she suffered ongoing pain. However, he noted that the second arthroscopy had helped her pain, notwithstanding that she continued to experience ongoing pain in her knee.

92 Mr Dooley examined Mrs Laird’s right knee, and noted that her knee could move with full extension and that there was no effusion. He did note some tenderness over the medial aspect of the knee.

93 Mr Dooley then stated that, in his opinion, the episode of mid-2012 had resulted in a soft tissue injury to Mrs Laird’s right knee, which involved aggravation of underlying naturally-occurring degenerative osteoarthritis of the medial compartment of the knee joint. Mr Dooley considered that the medial meniscal tearing was part of the evolving arthritic process. He did, however, accept that the tear of the medial meniscus could have occurred in the work-related episode.

94 Mr Dooley then commented that, in circumstances where Mrs Laird was overweight, “Being overweight has a direct causal relationship with osteoarthritis of the knee joint.” He recommended that following some weight loss, there might be an improvement in her knee pain. Mr Dooley also stated that he did not consider it inevitable that Mrs Laird would require knee replacement surgery.

95 In his further report, dated 12 January 2018, Mr Dooley obtained a history from Mrs Laird that her symptoms had remained. On examination, Mr Dooley again noted no effusion of the knee, and that Mrs Laird’s knee was able to be fully extended and flexed. He once again noted tenderness over the medial aspect of the knee, but otherwise considered the knee to be stable.

96 Mr Dooley then commented that, in circumstances where Mrs Laird had suffered a gradual onset of right knee pain, worsening over a six-month period, he would consider there to be no relationship between Mrs Laird’s right knee pain and her employment. However, in the event that Mrs Laird’s description of the workplace incident was accepted, Mr Dooley stated that he would then accept that that incident continues to materially contribute to her complaints of right knee pain. Mr Dooley stated that any aggravation of an underlying degenerative musculoskeletal condition can result in ongoing intermittent pain, even after cessation of the aggravating episode.

97 Having accepted Mrs Laird’s evidence regarding the fall, and having considered all of the medical evidence, I am satisfied that the fall resulted in an aggravation of degenerative changes in Mrs Laird’s right knee for which she required two surgical procedures. I am also satisfied that the fall continues to be a cause of Mrs Laird’s current right knee impairment.

98 In assessing Mrs Laird’s application in respect of her right knee impairment, pursuant to the well-known principles enunciated in Petkovski v Galletti,[4] I must consider only the consequences arising from the aggravation. However, I am satisfied that, save for a short period in 2005, Mrs Laird’s right knee condition was asymptomatic prior to the fall. Therefore, in assessing her claim, I can consider the totality of her right knee impairment.

What pain and suffering consequences does Mrs Laird suffer, and can they be described as at least very considerable?

99 To succeed in her case, Mrs Laird must satisfy me, on the balance of probabilities, that the consequences of her right knee impairment, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[5] The test is subjective, in that it is the effect on the individual plaintiff that must be considered. However, I must make that determination objectively, in considering the seriousness of the impairment.[6]

100 In assessing this claim, it is necessary for me to look at the impact the right knee impairment has had upon Mrs Laird. In doing so, I should consider what Mrs Laird says and does about the pain, what the doctors say about the extent and intensity of her pain, and what the objective evidence shows about the effect of her pain.[7]

101 Mrs Laird has undergone two surgical procedures to her right knee. Mr O’Brien foreshadowed that Mrs Laird is likely to require a knee replacement in the future, although I note that Mr Dooley did not think this surgery was inevitable.

102 I accept that Mrs Laird takes Endep and Nurofen on a daily basis, to help her with her pain and to assist her to sleep.

“...the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”^[8]

104 I also accept that due to the impairment of her right knee, Mrs Laird suffers the following consequences:

105 I am satisfied that the pain and suffering consequences to Mrs Laird from her right knee impairment, as detailed above, and when compared to other cases in the range of possible impairments or losses, are more than marked and significant, and can be described as at least very considerable.

106 In such circumstances, Mrs Laird is granted leave to commence a common law claim for pain and suffering damages.

County Court of Victoria

Laird v Baby Mode Pty Ltd [2018] VCC 71 (19 March 2018)