Delacour v Australia Meat Holdings Pty Ltd [2005] QDC 109

CITATION: Delacour - v – Australia Meat Holdings Pty Ltd [2005] QDC 109 PARTIES: DELACOUR, John Raymond Plaintiff Against AUSTRALIA MEAT HOLDINGS PTY LTD Defendant FILE NO: 344/02 PROCEEDINGS: Claim for damages for personal injury suffered in the workplace. DELIVERED ON: 11 May 2005 DELIVERED AT: Townsville HEARING DATES: 4 – 8 October 2004, 29 March – 1 April 2005 JUDGE: C.F Wall Q.C ORDERS: Judgment for the plt against the def for $250,000.00. Within 14 days each party file and serve written submissions in relation to costs and that within 28 days of today the parties file and serve any submissions in reply. CATCHWORDS: PERSONAL INJURIES – Quantum - Damages – knee injury – wh caused in fall at work or due to pre-existing degenerative condition – age to which plt would have worked – capacity for employment since accident – various heads of damages COUNSEL: Mr M. Drew for the Plaintiff Dr G. Cross for the Defendant SOLICITORS: Ms L. Leong (McDonald Leong) for the Plaintiff Ms A. Karpeles (Abbott Tout Lawyers) for the Defendant -- 1 of 32 -- HIS HONOUR: The plaintiff claims damages for personal injuries suffered by him on the 29th September 2000 when he slipped and fell during the course of his employment by the defendant at its Townsville meatworks. The defendant admitted liability at 2.30 p.m. on the ninth and last day of the trial. Damages need now be assessed. The plaintiff was born on the 9th of January 1938 and at the date of the accident he was aged 62. He was employed as a chiller labourer. He commenced employment with the defendant on or about the 13th of February 1990 and worked on a seasonal basis from then until he was injured. He has not been able to work since then. His educational and employment history up to the 13th of February 1990 is set out in his quantum statement and I accept what he says. The first issue to determine is to what age the plaintiff would have worked for the defendant had the accident not happened. The plaintiff and his wife have the custody and care of their two grandchildren, Tyson and Shae, aged nine and 10 years respectively, and have done so for the last eight years or more as their parents are incapable of caring for them. Their father is in gaol and has another five years to serve, and they have only seen their mother twice in eight years. Both parents were involved with drugs. The plaintiff has to pay all costs associated with raising two young children. The plaintiff and his wife own their home but have a mortgage of some $58,000 to repay. Since the accident they have been able to make only interest payments. Because of these responsibilities the plaintiff intended to work until age 70. His general health was excellent. The defendant does not have a policy requiring employees such as the plaintiff to retire at 65. There are some employees at the Townsville meatworks aged more -- 2 of 32 -- than 65. The plaintiff enjoyed his work, appears to have been well regarded by the defendant, was able to work hard and worked overtime when available. He intended to work up to six days a week during the season. He had another incentive to work until age 70. The Commonwealth Pension Bonus Scheme commenced on the 1st of July 1998 and provides a tax-free lump-sum payment to employees who defer retirement at age 65 (and, thus, the aged pension) and remain working until age 70 of $23,682. The plaintiff's wife would apparently also qualify for a like amount. The plaintiff also intended to increase his work superannuation by working until age 70. He thought he would then have paid or been able to pay off the home mortgage. The defendant's occupational health and safety manager, Michael Corstiaans, spoke to the plaintiff, who he knew from work, at the Thuringowa Anzac Day parade on 25th of April 2001. Accounts of the conversation differ. Mr Corstiaans gave the following account (T540): "I was attending the Anzac Day parade with my family and I ran into John. I saw John there and I went over there and had a talk with him. I asked him how his leg was, how he was going and he told me that he'd just had an operation on his leg which didn't go well and there was nothing else they could do by way of further operations because there was quite a bit of arthritis that had set into the knee and John was concerned because he told me - he said it was a shame because he only had 18 months left before he retired and he just hoped that it got well enough for him to be able to at least be mobile again." Mr Corstiaans made a note of the conversation later in the day, either when he got home or later in the afternoon, he cannot recall when. He does not know what he did between the conversation and making the note or whether he had anything to drink in the interim. His note (Exhibit 27) is as follows: -- 3 of 32 -- "Spoke with John D at Anzac parade and asked him how his knee was. He replied 'no good'. He said the operation was not successful and his doctor told him he would not carry out any further operations as the knee joint was full of arthritis. He said his doctor told him he would probably not be able to work again. John told me that this was a shame as he only had 18 months to retirement. He said he only hoped that he wouldn't be handicapped as he is now for the rest of time." In cross-examination he said (T545, 546): "What I suggest to you is that you approached the plaintiff and you said to him, 'How are you going, John?', and you made a comment about his knee, about how it was going?-- That's right. And I suggest to you he replied it was buggered?-- That's right. That's the sort of expression that the plaintiff, John Delacour uses, isn't it?-- That's right, yep. And you said to him, 'Well, you might be able to get a job somewhere.' Recall saying that to him?-- No, I don't recall saying that. All right?-- I may have. You said to him, 'Well, you know, some sitting job or something like that.'?-- Yeah. I don't recall - I don't recall. All right. I suggest to you, well, you did say that - made a suggestion he might be able to get a sedentary job somewhere and that John Delacour said that, 'I don't know how I'm going to get another job sitting down because I'll be 65. I'll be reaching the retirement age of 65 soon and who's going to give me a job when I'm coming up to that age.'?-- Mmm. Yeah. No, I don't recall that as part of our conversation at all. Yes. And I suggest to you that's exactly what was said by John Delacour to you. Not the way you've remembered it. Some indeterminate number of hours later when you jotted it down?-- Well - like, all I can say is I don't recall that being in the conversation. Well, you see, there was a reference of retirement age, wasn't there?-- Yeah, that John - John said to me, he said that it was a shame that this had happened because he'd only had 18 months to retirement. Yes. And I'm - suggest to you that what he was saying was that in the context of not being able to get another job because he was reaching age 65, who was going to give him a job in those circumstances. That's possible, isn't it?-- Well, yeah, that's possible. Yes. -- 4 of 32 -- HIS HONOUR: You - and from your point of view, you're unable to say whether the 18 months was meant as 18 months from the date of the accident or from Anzac Day?-- I'm not sure, your Honour. It was just - my interpretation was that----- Well, no-----?-- -----John had----- You don't - you don't know?-- No, no. MR DREW: So, you've done a bit of interpreting here of what John had to say, had you?-- Well, when John told me he had 18 months to retirement date----- Yes?-- -----then I - I believe that to be he had 18 months left before he retired. Yes. See, what I'm - you've just - you've just said that it's possible that what he said was that he'll be reaching the retirement age of 65 soon and who's going to give him a job at that age?-- No, I didn't hear that. I----- Mmm?-- I didn't hear that at all. Well, I suggest to you that it's possible that he said that and you agreed with him?-- Well, if - if you're telling me that he said that, I - I can't disagree with that. All I can say is that I'm not aware - that I don't remember that being said." The plaintiff's evidence was as follows (T293): "Anyhow, he said, 'Oh, how you going, John?' and just - and then made comment on me knee and all that sort of thing. I said, 'Yeah, it's buggered.' I said - and he said something about, 'Oh, you might be able to get another job somewhere.', you know, any - you know, some sitting job or something. I said, 'Well, I don't know how I'm going to get another job sitting down because I'll be 65 - I'll be reaching the retirement age at 65 soon, and who's going to give me a job when I'm coming up to that age?'" I prefer the plaintiff's account of the conversation to that of Mr Corstiaans. Mr Corstiaans was an honest witness but I think he was mistaken about some parts of the conversation and has wrongly interpreted some of the statements made by the plaintiff. The conversation occurred a little more than 18 months before the plaintiff's 65th birthday and that may be where the 18 months comes from. I accept that the plaintiff intended to work for the defendant until age 70 and he would have had no reason to say otherwise to Mr Corstiaans. Mr Corstiaans agreed that words were said or may have been said which he did not later record. I am not satisfied that his -- 5 of 32 -- note accurately records the conversation. I find that the plaintiff would, for the reasons he gave, have worked unrestrictedly until age 70 and that it is likely that he would have continued to be employed by the defendant until then. The next issue is what injury was caused to the plaintiff and what was the pre- existing condition of his right knee. When his left foot slipped on the chiller floor he fell heavily onto his right knee. Prior to the accident he had no problems with his right knee and was able to work without restriction. Any degeneration to the right knee was asymptomatic and, I find, would not have prevented him from working until age 70. He favours his right leg and walks with a slight limp. I could see the limp on the videos as could Dr Maguire, Dr Watson and Dr Toft. I do not accept those doctors who said, by reference to the videos, that he did not walk with a limp. Dr Bruce Low, an orthopaedic surgeon who gave evidence for the defendant, performed an arthroscope of the right knee which showed tears in both the medial and lateral menisci, which he trimmed. An ultrasound showed a popliteal or Baker's cyst which, according to Dr Low, is usually associated with degenerative changes in older people. There was, though, no arthritis in the knee "to speak of" (T583). He said the tears were degenerative. I do not accept that the plaintiff would inevitably have developed his present problems without the intervention of the fall. In his report dated 29th December 2000 Dr Low said he suffered an "aggravation of a pre-existing condition" and was fit to "participate in a graduated return to work program" but "he may not be suitable for his original duties". -- 6 of 32 -- In evidence, Dr Low conceded (T582, 583) that falling heavily on the knee "can certainly tear the meniscus" and "bring symptoms on". He also agreed (T583) that a fall such as the plaintiff suffered could have torn the menisci or "it could have been there before and made symptomatic by the fall". He said (T584, 585) that he "could not say for sure whether this was degenerative or a traumatic tear", "it can be trauma but it can also be degenerative." He said (T585), "Most of the time you see these things without any trauma and they're just degenerative. That's why we label them as degenerative tears." He seemed here to be talking more of older people. In my view, the defendant tended to emphasise isolated parts of the evidence of Dr Low to the effect that, because the fall did not cause a fracture or dislocation or ligament rupture, and because of the type of tears, his view was degeneration rather than trauma as the cause of the tears. Dr Low gave the following evidence (T586, 589): "I'm not saying that the meniscal tears are not due to the injury at all. I'm saying most of the time we see these tears in this age group, they're mainly, mostly degenerative in nature. MR DREW: Yes?-- Not always, but mostly. You're not - you're not ruling out that in this case the problems you saw were trauma-related?-- I would think there is an element of trauma superimposed upon degeneration. All right?-- I think that's probably why----- Yes?-- -----you get the appearance. HIS HONOUR: And the - the degeneration may have been asymptomatic?-- Yes, yes. Mmm?-- And even the degenerative tears may have been there beforehand and been totally asymptomatic. There's lots of people walking around with degenerative meniscal tears and don't have any symptoms. MR DREW: But on arthroscopy generally speaking, you - you saw no major degeneration, did you?-- No. Grade 2. -- 7 of 32 -- Yes?-- Grade 2 means early softening. I see these tears all the time and there's not necessarily any injury associated with the production of these tears. I think that the two pathologies are acting in unison. There's trauma and there's degeneration. Yes. Acting in unison?-- Well, there's trauma superimposed on degeneration. Yes. Right. I tender that-----?-- So we tend to call them degenerative tears. You - you tend to call them that. Yes?-- Well, then - in older people. In younger people we call them traumatic----- Yes?-- When someone's had a major injury such as a flexion rotation injury at rugby and they're 25 years of age, they have a - a tear of the meniscus and there's blood in the knee, it's clearly traumatic. When people are in their middle ages and they come in with clicky swollen knees, they - they're clearly degenerative. Well, what - what if that person has led a very active life and is quite fit-----?-- Yeah----- -----and is working in a meatworks, working very well, according to his-----?-- See, there wasn't - wasn't the sort of tear which is absolutely traumatic which is a bucket handle tear or some similar tear. No?-- The nature of the tears were of a degenerative nature but trauma can certainly be superimposed upon that." In my view, Dr Low's evidence supports traumatic tears to asymptomatic degenerative menisci rather than the spontaneous development of degenerative symptoms independently of the fall. When he fell, the plaintiff experienced severe pain in the right knee and the joint swelled up. He was examined by Dr W J Laister, another orthopaedic surgeon, for WorkCover Queensland, on the 29th of November 2000. Dr Laister reported on the 4th of December 2000 that the plaintiff limped badly on his right leg. There was some effusion or swelling in the right knee joint and there was terminal limitation of flexion in the joint. Dr Laister suspected the tears were degenerate but could not deny the fall as the cause and said, "I would regard this as a new injury." He said that with assistance from a physiotherapist "he may be able to resume work in about a month". -- 8 of 32 -- In a second report dated the 7th of February 2001 Dr Laister said: "I reviewed him at your request on the 7th February, 2001. He had an arthroscopy of his right knee carried out by Dr Low on the 14th November. I note he is still limping on the knee quite markedly and the knee is still swollen. He complains of locking and sudden unlocking with a clunking sensation in the knee joint. He indicates an area just distal to the patella and he said it is very painful. He tried to work with it on the 30th January, 2001 but lasted only for three days. He could barely walk at the time and it was very swollen when he drove home. His doctor has made an appointment to see Dr Ness on the 28th February. Clinically, there is an effusion in his right knee joint. Ligaments are quite stable. Arthroscopy portals are well healed. Flexion is limited by the swelling. Dr Low agrees in his report that there were degenerative tears of the menisci. I think this man will require an MRI investigation of his right knee joint. I consider him still totally incapacitated for work." In his report dated the 26th of March 2001 Dr Laister said: "I reviewed him at your request on the 26th March, 2001. I note the MRI report. He states if he keeps his right knee flexed for any length of time and when he first starts to extend it, it will jump. It has given way on four occasions while stepping down from a gutter. It happened yesterday and was quite painful. I note Dr Ness's request for permission to perform a further arthroscopy. Clinically, he limps slightly on his right leg. There was a small effusion. He was tender over both medial and lateral joint lines. Cruciate ligaments were intact. I agree with Dr Ness he should have a further arthroscopy carried out. I believe that this man has had degenerative changes in his menisci which subsequently tore in the incident he described. I do not think he has yet recovered from that aggravation of the degenerative condition in his menisci and a further arthroscopy is necessary. He could be left with some permanent impairment of function." -- 9 of 32 -- Dr Laister reviewed him again on the 21st of May 2001 and in his report dated the 22nd of May 2001 said: "Dr Ness performed a further arthroscopy on the 3rd April 2001, that is approximately seven weeks ago. No further meniscal lesion was seen. There was some partial thickness loss of the chondral surface of the patella and there was some early degenerative change in the medial compartment of the knee and no further procedure was carried out. He is still using a walking stick and limping on his right leg. He still complains of a throbbing pain in the right knee, presumably arising from the medial side of the patella. Clinically, there is some effusion in his right knee joint. He limps quite a lot. There's limitation of flexion by the effusion. He is carrying out exercises on instruction from a physiotherapist and he is still totally incapacitated for work. The aggravation of this degenerative change in his knee has not yet ceased. No sedentary work is available at the meatworks. There will be a gradual improvement. He could be off work a further four to six weeks yet. Rest is the mainstay of treatment." He reviewed him again on the 14th of August 2001 and in his report dated the same day said: "He was last reviewed by Dr Ness on the 18th July who considered Mr Delacour's knee was stable and stationary. He still complains of soreness in the medial side of his right knee. He uses a walking stick in his right hand. He says it feels more comfortable than using it in the left, in which case he could probably discard the walking stick altogether. He says it swells occasionally. Clinically, there's no evidence of effusion now - it has subsided. The knee has settled down. There's some loss of extension but there's a full range of flexion. He is still tender over the medial joint line. The condition should now be regarded as stable and stationary. The aggravation of the incident in question has ceased. He has been left with a 7% permanent impairment of function as a result of aggravation under Code No 2308." Dr Laister expressed similar views in a telephone interview with the defendant's legal representatives on the 15th of September 2004. -- 10 of 32 -- I am unable to accept the opinion of Dr Laister that the symptoms from which the plaintiff was still suffering on the 14th of August 2001, accepting that they had stabilised somewhat, were then due to pre-existing degeneration, only uninfluenced by the fall. In my view, the preponderance of evidence which I accept suggests that those symptoms are directly related to the trauma suffered in the fall. Likewise, I cannot accept the view Dr Laister expressed on the 15th of September 2004 that the plaintiff should then have been capable of working. He had not examined him since the 14th of August 2001. He conceded he would probably have difficulty in working if he had to climb or walk long distances. I am even more reluctant to accept Dr Laister's evidence where it differs from that of Dr Maguire, by reason of his refusal to accept that the videos show the plaintiff limping. In his evidence (T625) Dr Laister conceded that the plaintiff had suffered "significant trauma" to his knee. He thought that most of his symptoms were coming from his kneecap, which would be consistent with a blow to the kneecap. He said he had pre- existing degenerative change in the knee which was aggravated in the fall. I accept the plaintiff when he said he had no knee problems prior to the fall. The defendant also had the plaintiff examined by Dr Lloyd Toft, an orthopaedic surgeon. His diagnosis was: "Aggravation of pre-existing asymptomatic degenerative changes in the right knee with arthroscopies and trimming of degenerate menisci tears." His report dated the 23rd of August 2002 continued as follows: "Mr Delacour's X-rays at the time of the incident show some early degenerative changes which would be within the normal parameters for a man of his age. As well as the radiological changes, he would have had some degenerative changes in the menisci. The incident would possibly have caused some degree of tearing of the meniscal edges and some aggravation of the degenerative changes in the articular cartilage surfaces of the joint. -- 11 of 32 -- The symptoms of which Mr Delacour complained following the incident and subsequently would be consistent with the type of trauma he suffered in such a knee. At the initial arthroscopy, it would appear that some degenerative tears of the menisci were trimmed and degenerative changes in the articular surface were seen. Mr Delacour did not improve significantly following the arthroscopic procedure. A subsequent arthroscopic procedure confirmed degenerative changes but did not demonstrate any further meniscal tears. The MRI findings would be consistent with naturally occurring degenerative changes within the menisci. Mr Delacour currently complains of ongoing knee pain aggravated by various activities and also by maintaining the knee in a fixed position for a while. The current physical examination reveals a minor restriction to extension and some restriction of flexion in the knee due to pain. There is some pain on compression of the patello femoral joint which would be consistent with degenerative change and the ligamentous laxity would also be consistent with degenerative change. Current X-rays show degenerative changes in the knee affecting particularly the medial compartment. The current symptoms and physical and radiological findings would be consistent with early osteoarthritis of the knee. I would believe that the injury he suffered has caused the degenerative changes to become symptomatic. It is not possible to say whether the injury caused the tearing of the menisci which was found at the initial arthroscopic procedure as such tears are part of the naturally occurring process of degeneration in the knee. I would be of the view that the injury this man has suffered has accelerated the onset of symptoms in his knee by possibly five years. In other words, if he had not had the incident I believe his knee would have reached its current status within five years of the date of that incident. I do not believe that Mr Delacour is fit for normal work duties although could do light or medium manual work such as a convenience store owner or a service station proprietor or a fruit packer." In his statement dated the 1st of April 2004 Dr Toft said: "10. I believe that he may have had symptoms of the condition prior to the incident, which is the subject of the workers' compensation claim against Australia Meat Holding. However the injury may have brought to light the underlying degenerative changes, which were present before the incident. -- 12 of 32 -- 11. Overall I believe that Mr Delacour suffers overall a level of impairment, which is equal to 7% of the right lower limb. From that assessment I would say that 40% of the impairment is attributable to the work related incident, and 60% to the natural progression of the degenerative change." In a telephone interview with the defendant's legal advisers on the 15th of September 2004 he said: "AK: So doctor in relation to your general diagnosis, you say that there is underlying degenerative changes in the knee and that that has been perhaps aggravated by a fall. Dr T: Yes. AK: Do you believe that his condition, if not already symptomatic, may have become symptomatic. Dr T: Yes. AK: Without the fall. Dr T: Yes. AK: What sort of time frame do you think. Dr T: I thought I'd put that somewhere - five years. It could have happened tomorrow. It could have happened at any time. It could have happened without any trauma at all. GJC: The Baker's cyst and the degeneration found in the operative findings - do they go together. Is a Baker's cyst something that is more likely to be found in a degenerative knee. Dr T: Yes. It only occurs generally speaking in a degenerative knee. AK: With his right knee condition, do you believe he is capable of working. Dr T: I think you've got to be aware he has some degenerative change in his knee - prolonged standing, kneeling, heavier activities are more likely to make it symptomatic." Dr Toft agreed that from the videos the plaintiff walked with a mild limp. -- 13 of 32 -- In evidence (T666) he conceded that the arthroscopy "where fluid is pumped into the knee could increase the tension in the Baker's cyst" and "may well have caused it to become symptomatic". He also agreed in cross-examination (T667) that he did not understand that the accident involved the plaintiff's knee striking a concrete floor with some considerable force. He conceded (T670) that Dr Low, being the surgeon who actually viewed the tears, would be the one to say whether there "was any acute element", that is, whether they were traumatic rather than degenerative. He further conceded (T671, 672) that he could not rule out that the tears could have been trauma-related as a result of the plaintiff's fall. He said the trauma "may have caused part of the tearing. I can't rule that out." He also agreed in cross-examination (T672) that the plaintiff "could have gone right through his working life, even if he did have some degenerative problems in the menisci, without them becoming symptomatic" and that "the estimate of when a person might get symptoms from degeneration is, to be honest, unscientific". He said (T673) "he might have got symptoms the next day and he may never have got symptoms". He agreed it was not possible to predict with any reasonable measure of precision as to whether or when the knee would have come to its present position. He also agreed (T674, 675) that his percentage right leg impairment is a measure of impairment - a measurement of loss of range of movement - and not a measure of disability or impairment of whole body function. He conceded (T676) that his estimate of five years within which the plaintiff's knee would have reached its current status is "more of an average than the norm". -- 14 of 32 -- The final doctor to examine the plaintiff for the defendant was Dr Terence Saxby, an orthopaedic surgeon "specialising in disorders of the foot and ankle". He said he only operated on feet and ankles but had been trained in knees. In his report dated the 6th of May 2004 he said: "1. With regards to the injuries sustained in the accident as stated by the worker. It would appear that he sustained a direct injury to his right knee. He had surgery for medial and lateral meniscal tears which may or may not be related to the injury but certainly there must be an element of degeneration in the meniscal problems. 12. With regards to this gentleman's suitable employment. I believe he would be suitable to carry out employment that would not require him to stand for prolonged periods or require him to have excessive use of his right knee." Of the videos he thought that only in one did he think the plaintiff had a very slight limp. In cross-examination (T719) he conceded there could have been a very slight limp in the other video. He also agreed (T723) that the nature of the "extreme flexion injury" suffered by the plaintiff "may cause some tearing of the menisci", "usually it's a twisting injury but it's very hard to be absolutely dogmatic". He said (T724) that one cannot be precise about when the plaintiff's knee would have reached its present condition absent the fall. "It could be five, 10 or 15 years, I don't know. I don’t think you can be precise when or whether it would have reached its present condition without a trauma." He agreed (T726) that the Baker's cyst could have been rendered symptomatic "by being filled up as a result of the arthroscopy process". Dr David Ness, an orthopaedic surgeon, was the doctor who, for WorkCover Queensland, referred the plaintiff for the MRI. As a result he considers (report dated 15th of March 2001) that -- 15 of 32 -- "part of his problem is an extension of the tear in the degenerate medial meniscus." He carried out the second arthroscopy. He believes (report dated 17th of April 2001) that he has suffered a moderate aggravation of his pre-existing degenerative arthritis which is "likely to persist indefinitely". He says he has a permanent impairment of his right leg of seven per cent. The plaintiff led evidence from Dr John Maguire, an orthopaedic surgeon specialising in knees (see T393 and T460). I prefer his evidence to that of the other orthopaedic surgeons. I considered him the best qualified to speak about a knee injury and what he said was, in my view, clearly open, having regard to the concessions made by the other doctors. I thought his evidence was more specific to the particular condition of the plaintiff, having regard to his history and the nature of his fall, and he spoke less in terms of generalities related to age and more about the mechanics of the plaintiff's particular injury and fall. The defendant submitted that because he performed the arthroscope and saw the tears Dr Low was better placed than Dr Maguire to say what may have caused the tears. I have already mentioned, though, the evidence of Dr Low to the effect that a fall such as the plaintiff had "can certainly tear the meniscus" and could have done so on this occasion. I find that it did. In his report dated 10th of January 2003 Dr Maguire said: "It is of note that your client states adamantly that he had no problems with his right knee prior to the accident. He had only missed three days of work in eleven years at the meatworks. There is no past history of any injury to the knee and he has not required treatment for any knee pathology in the past. Your client presently complains of knee pain, both anteriorly and medially. He also describes a click which he feels in the medial compartment. -- 16 of 32 -- On examination your client walks with a markedly antalgic gait. There is a significant short stance and he walks with a flexed right knee. Examination shows that there is marked asymmetry of thigh circumference measuring 48cm on the right versus 51cm on the left. The calf circumference is symmetrical between left and right. There is a significant effusion in the right knee which is not present in the left knee. There is marked medial joint line tenderness with no major patello-femoral crepitus but there is a catch noted in the patello-femoral joint. There is mild laxity of the medial collateral ligament but this is symmetrical with the left side and would be consistent with the mild varus attitude of both limbs. There is no major ligamentous laxity. The range of motion is markedly asymmetrical between left and right sides, measuring one hundred and fifteen degrees of flexion on the right compared to one hundred and thirty-five degrees on the left. Extension is to the neutral position. As previously noted your client walks with a marked limp. Your client has sustained tears of his medial and lateral menisci within the right knee. There is also a femoral trochlear lesion associated with direct impact from the mechanism that he described in the fall. There has been some aggravation of some minor degenerative change in the medial compartment. However X-rays showed that the knee is well preserved and that this degenerative change is very minimal. This has also been confirmed in the progression from the first operative procedure to the second with the difference in the descriptions by the two surgeons involved and also the mild progression in the X-ray changes from the first to the second X-rays post- injury. It is expected that your client will be unfit for manual work and this will be a permanent restriction for him. It is my opinion that your client's symptoms are consistent with the complaints and the mechanism of injury that he describes. It is my opinion that your client's injuries are predominantly associated with the accident that occurred. I therefore feel that you cannot predict the associated involvement of some underlying degenerative change which is minimal. There has been marked aggravation of this particular condition and therefore I find that your client's present symptoms are 100% attributable to the accident. The speculative assessment is noted in Dr Toft's notes. I disagree with his findings and I do not believe that you can make such predictions and there is no scientific basis to these predictions. This gentleman had a significant injury to his knee. It is not possible to state whether there was degenerative change or change within the medial or lateral meniscus prior to the injury. It is also not possible to describe whether there was any patello-femoral joint irritation. Your client has a long work history of manual work and would be expected to have some minor degenerative changes within the knee but it is important to note in his history that he had not complained of any knee pain and did not miss any days work associated with this and his work history is excellent. Therefore I do not agree with Dr Toft's findings. In summary I therefore feel that your client's injuries are attributable to the accident in particular the medial meniscal and lateral meniscal tears and the femoral trochlear lesion and also the aggravation of any minor degenerative change in the medial compartment. His present symptoms are associated -- 17 of 32 -- with this ongoing aggravation and also the fact that, as a result of the injury and subsequent effusion, he has lost marked muscle tone and bulk in his vastus medialis and therefore has poor patello-femoral control. It will not be possible to increase the bulk of the musculature until the effusion and pain is managed. I find your client to be 7% whole person impaired. This is in relation to some degenerative change within the knee and ongoing antalgic gait. I believe that your client would continue to benefit from ongoing hydrotherapy and physiotherapy. It may also be of benefit for him to use a walking stick permanently and to continue on anti-inflammatory medication. It is of note that your client's disability rating associated with his ability to work is far greater than this as he is unable to work in any manual capacity for which he is trained. Your client did have some mild medial joint degeneration but this was very minimal based on arthroscopic findings and X-ray changes. Your client has sustained an aggravation of this condition and it is expected, having sustained medial and lateral meniscal injury, that the progression of any pre- existing condition would be rapid. I however find that your client's ongoing symptoms are more related to the fact that he has an ongoing effusion associated with the meniscal injury and the femoral trochlear lesion sustained in the direct trauma to the patella. I therefore feel that the majority of his symptoms are, although related to the medial compartment pain, continuing to occur as a result of lack of musculature and ongoing effusion and it will not be possible to improve musculature until the effusion and pain is controlled. I award no degree of impairment attributable to a pre-existing condition. I believe that your client would have continued to work through to his retiring age, which was planned at seventy years of age, unless he had sustained this accident. Therefore I find that your client's ongoing problems are related to the accident and not necessarily related to the pre-existing condition. Your client is unable to return to this work and this is permanent. It is expected that your client's knee will continue to degenerate and that in time he may require further surgical intervention." I accept what he says. In his report dated 31st of March 2003 he said: "As previously stated in my report, it is felt that Mr Delacour is developing progressive degenerative change in the knee as a result of his injury. It is felt that in the future he may require one of two surgical procedures. He may require further arthroscopic debridement of the knee in an attempt to reduce his pain and maintain range of motion. The initial cost for this particular procedure would be in the order of $3,000-$4,000. However, with progression of time it is felt that if his condition continued to deteriorate, he may require a total knee replacement." -- 18 of 32 -- He estimated the costs of a total knee replacement at $19,200. In evidence, Dr Maguire said (T387): "What are the most salient features of your examination and report, Doctor?-- When I saw Mr Delacour the - the most important things were partly to do with his history from Dr Peterson where he's presented with an acute knee injury with marked swelling of the knee. When I saw him specifically in my rooms the most salient points were that he had marked wasting of his muscles around the knee suggesting a - an ongoing problem. He had a larger fusion of swelling within the knee. He had medial joint line tenderness suggesting a problem specifically on the inside of the knee, and he also had quite a marked limp when I saw him or an abnormal gait." He also demonstrated the position on a model of the knee, which I found to be of assistance. Dr Maguire said (T390) by reference to the plaintiff's description of how he fell (which I accept) that he is left in "no doubt that there was an acute injury". I accept that Dr Maguire is more qualified than Doctors Toft and Saxby in relation to knee injuries and their likely cause. In his telephone conference of the 24th of January 2005 Dr Toft took issue with Dr Maguire's expertise over his in relation to knees. I accept that Dr Toft has done many arthroscopies, but I still prefer the evidence of Dr Maguire. Dr Toft also said that the plaintiff "wouldn't be suitable for a job where he would have to be on his feet constantly for a few hours at a time; he needs to have some flexibility to be able to rest". The plaintiff's vocational future is clearly limited and restricted. Dr Maguire also supported the use by the plaintiff of shark cartilage tablets. See his evidence at T400-401. -- 19 of 32 -- In cross-examination Dr Maguire referred (T449, 450) to Dr Low's comments at arthroscopy that he felt the tears were acute tears which Dr Maguire said would be indicative of an injury rather than degenerative change. He disagreed with Dr Toft's opinion that the plaintiff's symptoms could have arisen at any time without trauma. He said (T450-451): "I disagree with it again from the arthroscopic findings of Dr Low he had very mild, if at all, almost minimal changes within the knee. He had acute injury to the knee. He had the menisci or the cartilages removed through surgery and that then causes the knee to wear out very quickly. So I don't think you can say that without mentioning the acute injury. And finally where Dr Toft indicates that 40 per cent of any impairment or the impairment that is assessed is related to work and 60 per cent to the natural progression?-- And again, I disagree with that. My opinion is if he hadn't have had the acute injury and undergone the tears in the menisci, I believe that if he did develop any changes consistent with his age with time then that wouldn't have occurred quickly. I don't think he can make the comment of 40 per cent. I believe it's close to a hundred per cent related to the injury, not natural progression." He also said at T454: "His knee has now changed because he's undergone an acute injury. He's had his menisci removed, so what happens now is that the knee as a result of his acute injury, is prone to wearing out, and that's the whole idea of, or the biggest problem with removing a meniscus, is what happens to the knee after that. So you lose the shock absorption in the knee and it changes the dynamics of the knee quite dramatically. So, to me, what's happened with this gentleman is, he's had an injury, he's had a tear of the meniscus, he's had the meniscus removed and it's caused his knee to - to wear as a result of the meniscus being removed. HIS HONOUR: And it is likely that someone like Dr Toft for example may have mistaken that wearing for pre-existing degenerative changes?-- That's correct. The biggest problem with seeing these patients a number of years following the injury in the surgery, is the knee has changed from what was originally there, and that's clearly stated in Dr Low's comments, that the knee was normal on X-ray and had very minimal changes if any at surgery." Dr Maguire also said (T457) that a Baker's cyst demonstrates that there is effusion or swelling within the knee which is "often associated with degeneration but which can -- 20 of 32 -- occur with an acute injury". It could also be that the arthroscopy filled up the popliteal cyst or it could have ruptured. See also Exhibit 22. He considers that the plaintiff suffered trauma to the meniscus which has then caused a rapid deterioration of the knee due to the loss of the menisci. See T459- 460. I accept this evidence. When Dr Laister observed no evidence of effusion (swelling) in August 2001 that may, in fact, have been the case because it can vary from day to day, depending on activity, medication, ice and compression. See T461. In expressing his view that Dr Low described the tears as acute or traumatic, Dr Maguire referred to Dr Low's operation notes (Exhibit 23) and the notes of a conference had between Dr Low and the plaintiff's legal advisers on the 29th of September 2004 (Exhibit 30). In the latter, which Dr Low signed as "all okay" he said the "tears were trauma related". A copy of Exhibit 30 was reviewed by him before he gave evidence and in relation to the sentence reading "He" - that is, Dr Low - "indicated those were trauma related tears" he wrote that he "could not be certain of this statement". See Exhibit 31. He said (T589) that what he meant was "that the two pathologies are acting in unison. There's trauma and there's degeneration". Even if Dr Maguire was wrong about the certainty of the opinion of Dr Low, I nevertheless prefer Dr Maguire's evidence (independent of what he thought was Dr Low's view) as to the likely cause of the tears. I find that the tears were caused in the fall to an asymptomatic slightly degenerative knee. -- 21 of 32 -- The plaintiff was examined by Dr Roger Watson, a specialist in rehabilitation medicine, on the 25th of September 2002. The following passages are taken from his report dated 30th of September 2002: "I have no reason to doubt that your client is severely handicapped due to a right knee pain and dysfunction consistent with the effects of the claimed accident in question. He is quite incapable of returning to any competitive employment consistent with his past education and work experience. I can see no evidence to suggest that without the accident in question he would not have been capable of continuing to work unrestrictedly in his previous role until elective retirement at the age of 70. It is likely that there were minor age related degenerative changes in the right knee joint prior to the accident but this is also totally consistent with his claim of a completely asymptomatic joint over years of heavy physical work. I note from the medical records of Health Link that from the time that he first consulted that practice in 1989 until the accident in question there was no suggestion of any knee pain problem. As it also seems that there was no plain X-ray evidence of significant degenerative change in his right knee at the time of the accident and his left knee is totally clinically normal, it is highly likely that the meniscal tears were caused by the accident in question as was much if not all the articular cartilage damage noting the mechanism of injury which would have inflicted extreme stress to the knee joint and patellotibial tendon apparatus. I can see no conservative measures likely to influence the natural history of his current painful invalidity which will I am confident progress with the passage of years accompanying accelerated degenerative change and he runs a real risk of needing a total knee replacement but the time frame involved in this is impossible to quantify as there are too many variables in the equation. I am confident that he will imminently be placed on the disability support pension due to his irremediable knee problem combined with his age. I must reiterate my opinion that I can see no evidence to suggest that his right knee would have spontaneously deteriorated to its current level of invalidity within five years of the accident i.e. at the age of 67. I have sent him for a plain X-ray examination of his asymptomatic left knee. If this is effectively normal then I can see no reason why his other knee would not have been in a similar degree of preservation as there is no suggestion of any predisposing factor to the unilateral degenerative change postulated to pre-exist the work related incident which I feel would have been sufficiently traumatic to induce major pathological change in its own right. I note that the plain X-rays ordered by Dr Toft and mentioned in his report were taken with ongoing invalidity at two years after the accident and I believe that the degenerative changes reported or at least their degree of abnormality would easily have developed over that time as a consequence of the accident in question." -- 22 of 32 -- The plain X-ray of his left knee showed no abnormality. Dr Toft said it was unscientific "rubbish" to use the left knee as an indicator of what the pre-accident condition of the right knee was likely to have been, but I think it does, as Dr Watson said (T222, 234) give some indication of whether the individual had a general propensity for degenerative change in the knee joint beyond the norm for his age. I accept what Dr Watson says; it is entirely consistent with the evidence of Dr Maguire. As to the plaintiff's capacity for employment, Dr Watson said (T226): "He's certainly not of below average intellect, but at the same time, with the degree of pain and the limited experience - and I still consider it limited in relation to employment as a 60 year old plus, that the chance of him gaining employment that is of meaningful type would be negligible, irrespective of how much work's put into him. The pain would be his predominant handicap." He also said at T239: "As regards employment, Dr Ness was of the view that Mr Delacour was capable of sedentary or light sedentary employment of a permanent nature?-- Given a completely benevolent employer or someone in a nepotistic situation. His brother-in-law might've given him employment provided he was on good terms with him, but no-one else would, I'm sure." Dr Watson gave the following evidence about the likely cause of the tears. He was referred to Dr Laister's opinion that they were indicative of degenerative change not traumatic change and said (T230): "Do you agree with that?-- I don't think one can be quite as adamant as that. After all there has been trauma to it in two situations; the trauma of the rather extreme fall on his knee, and also the trauma of the arthroscopy in which part of the meniscus was removed surgically." -- 23 of 32 -- He further said (T232, 233, 235, 237, 238): "Under the circumstances of - the nature of the - of the fall in which he put extreme stress on the knee joint in general I think it could be stated that there's a significant chance that both menisci would be damaged, particularly if either of them or both of them were slightly degenerate which I'm sure they were because of his age. Your view is that it was likely to have caused it?-- Caused trauma - additional trauma to a previously asymptomatic but degenerate meniscus consistent with his age. I think that the fact that he had no symptoms at all, that he had more than an average chance of going through - beyond his normal - his expected working life without any real trouble with his knees. HIS HONOUR: Well, that includes working into age 70?-- Yes. And - and - yes, and if - if the average person with a knee problem, it becomes progressively so, but to a variable degree of deterioration symptomatically. So, even if he had developed a pain in his knee it wouldn't necessarily have stopped him working, depending on the degree of pain. And I submit that following the trauma, which was significant, that he's had intense and crippling pain which would not - never have happened at any stage in his life let alone his working life. And do you agree that the trauma here is likely to have aggravated pre- existing-----?-- Yes. -----asymptomatic symptoms?-- Yes. Undoubtedly he had low-grade asymptomatic degenerative change in his knee which is consistent with his age. Do you leave it there or do you say that it is likely to have itself caused an injury as well or-----?-- The - the----- The fall?-- Oh, undoubtedly, yes. It was from the story of the fall, I mean, it was a major trauma to his knee----- Yes?-- -----which caused him to have been symptomatic ever since that. I think on principle that his current disability and degree of disability is due entirely to the trauma because I believe that on the grounds of probability at this stage in his life, four years later after the accident, he would not be significantly handicapped at all spontaneously. I believe that on the grounds of probability with completely an asymptomatic state before the major fall that he would not be crippled now and I - there's a very real chance he would have no pain at all. I think I can be adamant on saying that he was unlikely to have been unemployable and crippled by knee pain spontaneously, and that he has in fact been like that from the time of quantified severe traumatic episode with pathology in his knee demonstrable after it." -- 24 of 32 -- One of the videos was said to show the plaintiff mowing his back lawn with a motor mower on the 16th of March 2002. In my view it did not show this. In fact, it only showed the plaintiff pulling the mower from its shed. I accept him when he said there was swimming pool carpet where he was said to be mowing. The person who took the video, Darren Aiken, could not say the plaintiff, in fact, mowed his lawn. He did not hear the sound of a motor mower; he said it was extremely difficult to see through bushes and the fence from a distance of some 40 to 50 metres up the street, looking down the driveway. I do accept part of Mr Aiken's evidence. He said he observed the plaintiff overall for three or four days before the 16th of March over a period of about 20 hours, and saw him walking with a walking stick and a very apparent limp. I accept that the plaintiff is disabled and restricted to the extent he says in his quantum statement and that is due entirely to the fall and the injury he suffered in it. If some of his symptoms are due to degeneration the fall has caused a previously asymptomatic condition to become symptomatic. But for the fall, I find he would have been able to continue with his employment with the defendant, and would have done so until he chose to retire at age 70 without any adverse effects from what little pre- existing degeneration he suffered from. He was regarded by others employed by the defendant as a "very good worker". Raymond Murphy impressed me as a frank and truthful witness. He is a boner at the defendant's Townsville meatworks and has been for 28 years. He is the shed president of the Australasian Meat Industry Employees Union. He said the plaintiff was "more than reasonably handy" (T415) as an employee. He was reliable and had a responsible job. He said (T417) that if the plaintiff had not been injured "he'd definitely still have a job". He referred to Lewis Stanton, a slicer aged over 70 years, -- 25 of 32 -- who was still working. He could see no reason why the plaintiff could not have continued his employment until age 70, doing the same job "unless something unforeseen happened" (T419). Extra work is also available. "You" - including a labourer such as the plaintiff was - "can pick up up to two extra days a week without any trouble at all" (T443). He said (T422) the plaintiff "never took a lot of days off, and he was here all the time". In cross-examination he said (T441) that more opportunities for overtime are now available and the plaintiff "would have had a lot greater opportunity of getting all that". See also paragraphs 22 and 23 of the plaintiff's quantum statement, which I accept. I also find that as a result of his present condition, which is entirely due to the accident, he is and will remain effectively unemployable. He would be competing on the open labour market with younger applicants, not disabled, as a disabled person. Heather Dale, a rehabilitation consultant, considered (report 13th of August 2001) that his "level of education, limited skills, advanced years together with his knee condition would limit his employment opportunities significantly." She also agreed (T641) that there was a natural resistance by employers to employing injured persons but said she "didn't have a great deal of difficulty overcoming that". She also agreed that the fact that the applicant had sued a previous employer in a lengthy trial "would not be an advantage to the applicant". The employment opportunities she explored with him are not, in my view, realistic opportunities for him. A caretaker's job, for example, may require him to relocate to the country and, in any event, employment prospects are very limited. -- 26 of 32 -- Other jobs such as a front-of-house person for a car rental company would be a challenge for him and for management, and would be very difficult for him (T642- 643). Likewise, she did not think that he would be suited as a telemarketer. He has limited education and clerical skills. He would, she said (T653), be "best suited to jobs that don't require prolonged driving, frequent getting in and out of a vehicle, or prolonged standing, so he'd have to be selective". For pamphlet folding "he would have to sell himself as a reliable long-term person doing it " and I have my doubts that he could do that. Julia Bunn, an occupational therapist who gave evidence, said in her report dated 3rd of March 2004 that most pamphlet folding positions "require the person folding the pamphlets to also deliver them" and this the plaintiff could not do. Ticket collection is limited to seasonal activity and, as described by Ms Bunn, some aspects would be beyond the plaintiff. Ms Bunn thought his knee injury "would prohibit him from completing some duties" of animal breeder and animal attendant. The aspects of the work of a nightwatch person that the plaintiff could not do - run after or away from intruders/offenders; walk long distances to monitor building sites; climb multiple stairs; squat or kneel to inspect under equipment; and stand for prolonged periods - would effectively preclude him from that type of work. Ms Bunn did not consider work as a car park attendant to be a viable option for him. Ms Bunn's evidence was based on analysing the labour market only; she relied on Ms Dale's vocational assessment and, in my view, realistically, that assessment indicates extremely poor prospects for any employment for the plaintiff in the future. She said (T689) "employers are currently finding it difficult to find skilled workers...and we tend to find that employers are now more likely to be looking for -- 27 of 32 -- people who have transferable skills, an aptitude to learn the exact skills required for the job". In my view, the plaintiff does not have these skills. He was a meatworks labourer. He is, in my view, effectively unemployable as a result of his injury and will continue to remain so. I accept him when he said that generally over his working life he performed manual labouring work. He is also of limited education. I accept what he says in paragraph 20 of his quantum statement. I am not satisfied that the plaintiff has not mitigated his loss in the manner suggested by the defendant. Realistically, he is unable to work and obtain employment. Any suggestion that he lacks motivation is due, I find, to the persistent effects of his injury upon him. DAMAGES Past Economic Loss (a) Loss of Earnings But for the accident the plaintiff would have continued working up to now. I accept the plaintiff's calculations on the basis that they more accurately represent what I consider the plaintiff would have earned. The plaintiff's average net weekly income for the financial year ended 30th of June 2000 was $638.56. A net weekly income since the 29th of September 2000 of $668 has been calculated and I think that is a fair average. Mr Drew, for the plaintiff, calculated his net loss of wages to 1st April 2005 at $122,531.24. He earned $2,890 net between the date of the accident until his employment with the defendant was terminated in December 2001. The balance is $119,641.24. To this should be added approximately six weeks' net wages up to judgment today, namely $4,008. The total is $123,649.24. For interest purposes, from this must be deducted $21,282.94 WorkCover benefits received and $30,630.96 Centrelink benefits received, a total of -- 28 of 32 -- $51,913.90. The plaintiff is entitled to interest on $123,649.24 less $51,913.90, namely $71,727.34. Interest at five per cent for four years 32 weeks (240 weeks) amounts to $16,552.46. (b) Past Superannuation Loss Eight per cent of $123,649.24 is $9,895.53. Interest at five per cent amounts to $494.77. (c) Loss of Past Co-contribution by the Federal Government to Superannuation since 1st July 2003 The entitlement is only when the employee works beyond age 65. I allow the amount claimed of $175; no interest is claimed. Special Damages These are admitted as follows: (a) Medical expenses $ 330.86 (b) Medical, rehabilitation and hospital expenses paid by WorkCover and the defendant $7,484.64 (c) Pharmaceutical expenses $1,779.45 (d) Travelling expenses $ 247.50 TOTAL $9,842.45 The plaintiff is entitled to interest on the amounts in (a), (c) and (d), totalling $2,357.81 at five per cent for four years which is $471.56. Future Medical Expenses -- 29 of 32 -- (a) Dr Maguire estimated the costs of a further arthroscopy and a possible knee replacement at $3,000 to $4,000 and $19,200 respectively. He may require these. (b) Dr Maguire also supports hydrotherapy and physiotherapy. Such treatment on a regular basis may reduce the likelihood of him having to undergo the procedures in (a). His life expectancy is 12.55 years. The plaintiff incorrectly used the higher female figure. He claims one session a month at $40 per session, which amounts to $480 per year or about $9 per week. Nine dollars per week for 12 years discounted by five per cent amounts to $4,236. For both (a) and (b) I will allow $15,000.00 (c) Future pharmaceutical expenses. These are claimed in paragraph 37 of his quantum statement. The claim is calculated at $2 per week which I consider reasonable. Two dollars per week for 12 years discounted by five per cent amounts to $ 941.00 (d) Future travelling expenses. Two dollars per week is claimed. See paragraph 38 of his quantum statement. I allow $ 941.00 TOTAL FUTURE EXPENSES $16,882.00 Fox v. Wood Component $ 4,161.00 Future Economic Loss (a) Future Lost Income -- 30 of 32 -- The starting amount is $668 net per week. I have found that the plaintiff would, but for the accident, have worked until age 70 which is in two years and 35 weeks. I will, in due course, make an allowance for contingencies by discounting his damages. Between 2001 and 2004 the meatworks operated for an average of 41.25 weeks per year (see schedule F, quantum statement). $668 x 41.25 weeks = $27,555 per annum ÷ 52 weeks = about $530 per week $530 per week for 139 weeks discounted by five per cent amounts to about $70,000 (calculated as follows: $99.4 x 530 = $52,682 plus 145.6 ÷ 156 x 35 = $17,313). (b) Pension Bonus Scheme Loss of a Chance (see schedule F quantum statement). The plaintiff's entitlement at age 70 would, on current figures, be $23,682. He claims $15,000 for the loss of the chance to claim this amount and I do not think that is an unreasonable claim or amount. (c) Future Superannuation Loss $70,000 x nine per cent = $6,300 (d) Future Superannuation Co-contribution Loss About $19 per week is claimed. $19 x 139 weeks = $2,641 I consider the amounts in paragraphs (a), (c) and (d) should be reduced by 20 per cent for normal contingencies. The total of those amounts is $78,941. -- 31 of 32 -- Reduced by 20 per cent the net amount is $63,152.80 and that is the amount I award under those three headings. General Damages for Pain, Suffering and Loss of Amenities $35,000.00 The total of these various amounts is: Past loss of earnings $123,649.24 Interest 16,552.46 Past superannuation 9,895.53 Interest 494.77 Past superannuation co-contribution 175.00 Special damages 9,842.45 Interest 471.56 Future medical expenses 15,000.00 Future pharmaceutical and travel expenses 1,882.00 Fox v. Wood component 4,161.00 Future loss of income, superannuation and superannuation co-contribution 63,152.80 Pension bonus scheme loss 15,000.00 General damages for pain, suffering and loss of amenities 35,000.00 TOTAL 295,276.81 Less WorkCover refund 32,928.78 BALANCE $262,348.03 I give judgment for the plaintiff against the defendant for $250,000.00. I give the parties liberty to apply on seven days' notice to the other in respect of any of my calculations. ----- -- 32 of 32 --