IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No.  CI-21-03533

Andrew DAVID Cribb	Plaintiff	
		
v		
		
Albury Wodonga Health	Defendant	

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JUDGE:	His Honour Judge Misso	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21, 22 and 23 March 2022	
DATE OF JUDGMENT:	6 April 2022	
CASE MAY BE CITED AS:	Cribb v Albury Wodonga Health	
MEDIUM NEUTRAL CITATION:	[2022] VCC 407		

REASONS FOR JUDGMENT
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Subject:	Accident Compensation
Catchwords: 	Serious injury – pre-existing degenerative changes in the right knee –  aggravation of the pre-existing degenerative changes – comparison between the consequences which pre-existed and the consequences resulting from the aggravation – inevitable need for a total knee replacement due to pre-existing and progressive degenerative changes in the right knee – whether the need for the total knee replacement was brought forward by any measure – whether the pain and suffering consequences of the aggravation injury are “serious”
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:	Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Bezzina v Phi [2012] VSCA 161; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88; Petkovski v Galletti [1994] 1 VR 436; Richards & Anor v Wylie [2000] VSCA 50; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment:	The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr R W McGarvie QC with
Ms A Tate	Slater and Gordon Ltd Lawyers	
			
For the Defendant	Mr R H Stanley	IDP Lawyers	

HIS HONOUR:
Introduction
1	The plaintiff commenced employment with the defendant in 2005.  He was employed as a hospital orderly.  On 23 November 2017, he entered a storage area, intending to obtain a mattress.  In an attempt to remove a mattress from on top of a pile of mattresses, he twisted and turned his body in such a way that he suffered a severe twisting injury to his right knee.
2	The severe twisting of his right knee aggravated pre-existing significant degenerative changes in his right knee.  The defendant conceded that the aggravation constituted a compensable injury, however, for the reasons I will set out below, it submitted that the plaintiff could not demonstrate that he suffered serious permanent impairment or loss of the function of his right knee or right lower limb.  The plaintiff’s application for serious injury was limited to pain and suffering.  
3	Mr R W McGarvie QC appeared with Ms A Tate of counsel for the plaintiff.  Mr R H Stanley of counsel appeared for the defendant.
The 2007 right knee injury
4	In November 2007, the plaintiff suffered an injury to his right knee pushing a trolley.  He came under the care of Dr Elie Khoury, orthopaedic surgeon.  The plaintiff saw him in December 2007.  In a courtesy letter to a general practitioner, Dr Khoury described finding a large effusion over the plaintiff’s right knee, and noted that an MRI scan demonstrated an acute chondral loss over the medial femoral condyle with subchondral bone marrow oedema and also corresponding bone marrow oedema over the medial tibia. 
5	Dr Khoury performed a right knee arthroscopic partial meniscectomy on the plaintiff on 7 February 2008.  In a courtesy letter to a general practitioner, he noted that the arthroscope disclosed a grade 2 to 3 medial femoral condylar articular cartilage lesion.  He prescribed the plaintiff anti-inflammatory medication and referred him for physiotherapy. He reviewed the plaintiff on a number of occasions, but subsequently concluded that the lesion was progressing, and he recommended that the plaintiff undergo a further arthroscope. 
6	Dr Khoury performed a second right knee arthroscopic medial meniscectomy on 4 September 2008.  In a courtesy letter to a general practitioner, he noted that the arthroscope disclosed that the plaintiff had a moderately severe medial femoral condylar articular cartilage defect which he considered was going to cause him long-term trouble.  He considered that if the plaintiff did not recover adequately, that he might require a high tibial osteotomy.  He again prescribed him anti-inflammatories.
7	The plaintiff returned to see Dr Khoury in March 2009.  By that stage, he had physiotherapy, and was using anti-inflammatories.  In a courtesy letter to a general practitioner, he noted that the plaintiff’s right knee was becoming intermittently worse.  He was complaining of medial joint line pain, and that the chondral deficit  on the inside of his knee was causing most of his symptoms.  He referred the plaintiff to have x-rays and booked him into have a high tibial osteotomy.  In a later courtesy letter to a general practitioner, he also considered whether cartilage could be harvested to undertake a graft. That was not considered by him to be the optimal treatment. 
8	Dr Khoury performed a high tibial osteotomy in June 2009.  In courtesy letters to general practitioners between July 2009 and November 2010, he noted the plaintiff’s recovery to the point where, in November 2010, the plaintiff was not experiencing any pain in the right knee joint and had confidence in his reliance on his right knee.  Dr Khoury noted that there was some bursal swelling which he associated with the orthopaedic plates inserted into the plaintiff’s right knee as part of the high tibial osteotomy.  He planned to remove the plates in the following year.  The plates were removed on 17 December 2010. 
The intervening left knee injury
9	In October 2011, the plaintiff suffered an injury to his left knee when he was moving a patient who was situated on a transfer chair onto a set of scales.  He was referred back to Dr Khoury.  The plaintiff saw him in October 2011.  In a courtesy letter to a general practitioner, Dr Khoury noted that the high tibial osteotomy was moderately successful.  He also noted that the plaintiff had a number of problems with his left knee including significant long-standing arthritis and a medial meniscal tear demonstrated on an MRI scan.  When the plaintiff next saw Dr Khoury in December 2011, he was limping severely and in a lot of pain, which led Dr Khoury to advise the plaintiff to undergo a left total knee replacement, which he performed on 9 May 2012. 
2011 to 23 November 2017
10	In his first affidavit sworn 15 April 2021, the plaintiff described the aftermath of the high tibial osteotomy of his right knee.  He made a slow but good recovery and was able to return to work as an orderly.  He did not say when he returned to work, but I infer that it was before he suffered the injury to his left knee because, quite obviously, he was working when the injury to the left knee occurred.  He suffered a setback as a result of the injury to his left knee.  He made a good recovery from the left knee surgery, and was able to return to work in early 2013.  The plaintiff  worked around 25 hours per week, and it would appear that after the bouts of surgery I have just described, that he continued working those hours.
11	In the same affidavit, he described that by 2015 he was experiencing niggles and soreness in his left knee, and was not having any problems with his right knee.  He described his recovery from the high tibial osteotomy as being excellent.  Under cross-examination, the plaintiff said that he performed a lot of strengthening exercises of his right knee.  He said that it was initially weak and then improved as a result of the exercises.  He said that he suffered some niggling pain in his right knee which he described as slight pain, and on particularly busy days at work, he suffered some swelling.
12	Under cross-examination, the plaintiff was taken to an affidavit he swore on 16 April 2010 (“the 2010 affidavit”) in support of an application for serious injury relevant to the incident of 25 November 2007 when he suffered injury to his right knee.  In particular, he was taken to paragraphs 5, 7, 8 and 9.  In paragraphs 5, 7 and 8, the plaintiff described ongoing quite severe symptoms of pain, swelling and interference with the movements of his right knee, and the need to use anti-inflammatories and up to six Panadeine Forte per day for pain relief.  In paragraph 9, the plaintiff set out the “myriad of other domestic, social and recreational activities which have been interfered with because of my injury and impairment”. He referred to being unable to  socially play cricket, flyfish, camp, socially play golf, garden, engage in house maintenance repairs and renovations, to complete the building of a veranda and carport, walk his dog, use a boat and van, lawnmow, and otherwise he referred to the circumstances in which he suffered pain when engaging in other activities.  The particular passages of the affidavit which he was taken to are reasonably extensive, but what I have summarised is sufficient to demonstrate the point which the defendant then desired to make by referring the plaintiff to the affidavit.
13	Essentially, the defendant then cross-examined the plaintiff on the basis that within thirteen months or so after undergoing the high tibial osteotomy, he was complaining of significant problems with his right knee.  The defendant suggested that the very consequences which the plaintiff complains about now relevant to his right knee are the same, or at least similar to, those referred to in that affidavit. The plaintiff accepted that the content of that affidavit reflected his circumstances at the time he swore it, however, he said that he improved, which he explained in significant detail under re-examination.  He said that after about eighteen months, he used a bike to improve flexibility in the right knee joint and engaged in exercises.  He said that about eighteen months to two years or maybe a bit longer “it started to slowly come good” and that he experienced a continual improvement in it until he injured it again on 23 November 2017. 
14	I do not think there is much in the point raised by the defendant.  A summary of that affidavit was put to Mr Peter Charles Lugg, orthopaedic surgeon, who said that after a high tibial osteotomy, it is sometimes the case that a patient will take time to adjust to the plate, which can cause irritation.  He added that he understood from the history he took from the plaintiff, that after an initial period of pain following the high tibial osteotomy, that the pain settled down and that he was relatively pain-free for some years.  Mr Khoury gave similar evidence.  He said that it can take a long time for the high tibial osteotomy to settle down and that the plate tends to affect pain levels, and when removed, the pain improves.
Predicted course of the high tibial osteotomy
15	Dr Khoury told the plaintiff that at some point in the future after he had the high tibial osteotomy, he would need a total right knee replacement.  The plaintiff believed that he was told that he would not need the total right knee replacement for some twenty years.  The evidence of Mr Lugg and Dr Khoury is to the contrary, and whatever basis the plaintiff had to believe that, is without substance.
16	Both Mr Lugg and Dr Khoury were asked to give an estimate of when the plaintiff would have come to a total knee replacement.  Mr Lugg dealt with that in his reports dated 22 July 2021, and 10 March 2022, and in his oral evidence.  Dr Khoury dealt with that in his report dated 21 March 2022, and in his oral evidence.  In the course of giving their evidence, both doctors said that  understanding the predicted course of a high tibial osteotomy is important, because there is some inevitability that it will only buy a patient time before needing a total knee replacement, and that it serves no useful purpose to perform a high tibial osteotomy if a total knee replacement will be required in the short term.
17	Both Mr Lugg and Dr Khoury called upon their clinical experience and literature  relevant to the predicted course of a high tibial osteotomy.  Mr Lugg very kindly forwarded references to five papers which refer to the very issue of that predicted course.  The literature was not provided and neither Mr Lugg nor Dr Khoury undertook a literature review.  What I am left with is at least an accepted position amongst surgeons like Mr Lugg and Dr Khoury, that the predicted course might be as little as five years and might be as much as fifteen years.
18	Mr Lugg considered that the plaintiff would have come to a total knee replacement by now, and indeed, by about 2020.  Mr Khoury, on the other hand, was specifically asked, but for the incident of 23 November 2017 by what measure was the need for the total knee replacement brought forward.  He said he considered that to be about five to ten years.  However, it became obvious that fixing on a particular time is a difficult task, and that was acknowledged by Mr Lugg expressly, and I think Dr Khoury essentially agreed.  I asked Dr Khoury what he considered that timeframe to be based upon his clinical and anecdotal experience.  He said he would probably seize on the average quoted in the literature which would be about eight to nine years, and indeed, that is a timeframe he referred to in the course of his evidence. 
19	I prefer the evidence of Dr Khoury on this issue, although, there does not appear to me to be much difference between his opinion and that of Mr Lugg.  My preference is based upon the fact that Dr Khoury has performed about six high tibial osteotomy procedures each year, and is in a position where he has the clinical experience to provide the opinion of eight to nine years, and, of course, aided by his understanding of the literature.  That means that the plaintiff may have expected to continue to experience the good result of the high tibial osteotomy out to 2026 to 2027.  If it were five to ten years, then that would mean 2023 to 2028.
20	Considering my preference for the evidence of Dr Khoury, I accept that the incident of 23 November 2017 brought forward the need for the plaintiff to undergo a total knee replacement by probably eight to nine years.
The claimed consequences
21	The plaintiff recovered sufficiently from the effects of the high tibial osteotomy to be able to return to a number of activities.  He experienced the niggles and swelling which I referred to earlier, but otherwise he was able to function well, both in terms of his working life and his social, recreational and domestic life.  He was not in need of any medical treatment or painkilling medication.  In his second affidavit, he said he returned to flyfishing and rifle shooting, which are activities which he enjoyed.  He also returned to bushwalking.  His mobility was reasonably intact, and he was able to kneel, bend, squat and twist at the right knee.  He assumed responsibility for most of the household tasks, which included cooking, because his wife was working longer hours than he was.  He described the types of meals which he cooked, and which he enjoyed cooking, such as curries and risotto.  He and his wife planned to use their long service leave to undertake a tour of Australia by car with the intention to camp along the way. 
22	As a consequence of the incident of 23 November 2017, the plaintiff described a severe twisting of his right knee which resulted in swelling overnight, and then pain and further swelling which worsened to the point where he attended the emergency section of a hospital where he was referred to have an x-ray and was provided with painkilling medication.  He was then referred back to Dr Khoury.  
23	In his second affidavit, the plaintiff then described the consequences of the injury to his right knee.  He described having a lot of pain and feeling instability in the knee.  He experienced pain on a daily basis in his right knee and leg.  It worsened on the increased use of his right leg.  The movements of his right knee joint were reduced.  His right foot sits out on an angle.  He has difficulty walking over uneven surfaces, up and down stairs, and he experiences a jarring pain through his right knee when stepping down stairs.  He has a sensation of tightness and pressure in his right knee joint.  He suffers swelling in the right knee joint.  He has lost strength and movement in his right knee joint and is no longer able to kneel, bend, squat and twist at the right knee.  His sleep is disturbed by pain.  He is no longer able to engage in flyfishing, shooting, bushwalking or camping, and he is now restricted to walking short distances and walking on even ground.  He has returned to work for 24 hours per week which were the hours he previously worked.  He struggles to do his work because he is on his feet for most of his shift.  He uses Naproxen, which is an anti-inflammatory, and Panadol Osteo for pain relief.
24	The plaintiff’s wife, Jacqueline Cribb, swore an affidavit on 18 February 2022, in which she confirms the extent to which the plaintiff is in pain and has had his capacity to engage in social, domestic and recreational activities reduced very significantly.
25	Under cross-examination, the plaintiff was challenged on whether he continues to suffer the consequences that he deposed to, and to the extent described by him.  Part of the platform upon which some of that cross-examination was undertaken was the opinion expressed by Dr Khoury of the success of the total knee replacement, and a similar opinion expressed by Dr Michael Stone, general practitioner.  Additionally, the plaintiff was challenged about whether he in fact had returned to the activities he described that he was accustomed to engaging in between 2015 and the incident of 23 November 2017.
26	In particular, the plaintiff was taken to a report of Dr Khoury dated 18 May 2020 in which he described the outcome of the total knee replacement.  He prefaced the answer to questions he was asked by the plaintiff’s solicitors by noting that he last saw the plaintiff for a review on 15 January 2019.  He considered, at that time, that  the plaintiff’s overall condition had improved significantly, and that his pain has settled  completely.  He noted that the plaintiff was walking normally.  He cleared the plaintiff to return to full duties, noting that it would take the plaintiff six to eight weeks to gradually return to those full duties.  He noted that the plaintiff was weaning himself off Endone.  Lastly, he assumed that the total knee replacement had stabilised because it has been more than a year since that surgery had been undertaken.
27	The defendant also cross-examined the plaintiff on observations made by Dr Michael Stone, general practitioner, in his report dated 9 June 2020.  He considered that the plaintiff’s prognosis was excellent, however, the context in which that was said needs to be noted.  Dr Stone noted that the plaintiff had no treatment requirements.  He recorded that the plaintiff told him that he has occasional ongoing anterior knee pain provoked after walking or standing for long periods of time, and difficulty with ladders and going down stairs.  He advised the plaintiff to avoid kneeling and squatting at all times; avoid repetitive movements like twisting and bending, and exercise vigilance when lifting heavy objects.  He then referred to the plaintiff needing to also exercise vigilance when pushing, pulling and undertaking overhead activities, and I assume that was more directed to the difficulties he perceived the plaintiff would have with those activities with his right shoulder.
28	The fact that Dr Khoury was optimistic does create a basis upon which the consequences contended for by the plaintiff need to be critically assessed because they are, to some extent, contrary to what I have summarised from his report; however, I have the sworn evidence of the plaintiff on which he was cross-examined, which is to the contrary.  I will say more about the creditworthiness and reliability of the plaintiff later in these reasons.  Despite Dr Khoury’s optimism,  the  observations of Dr Stone demonstrate less optimism.  I think it is tolerably clear  that he considered that the plaintiff was restricted in many ways in what stresses and strains his right knee could tolerate.
29	The only other recent medical examination of the plaintiff was by Mr Thomas Kossmann, orthopaedic surgeon, who examined the plaintiff on 27 January 2022 and provided a report bearing the same date.  He understood the plaintiff’s medical history going back to 2007, and all of the treatment that he has had for his right knee since.  Mr Kossmann’s opinion is in stark contrast to the optimism expressed by Dr Khoury.  He spent the majority of his examination and analysis directed to the plaintiff’s right knee.  He considered that the prognosis for the plaintiff’s right knee was guarded.  He noted that he continued to suffer pain and restriction of movement.  He recommended that he continue with conservative treatment using pain medication and anti-inflammatories, and he might benefit from self exercise and supervision by a physiotherapist.  In answer to a series of questions, he considered that the plaintiff did not have a capacity to return to his pre-injury duties without restrictions being imposed, although he noted, that the plaintiff was working 24 hours per week and appeared to be coping with that work.
30	A major consequence relied upon by the plaintiff occurred on 11 February 2018 when he suffered instability in his right knee to the extent that it gave way from under him.  He was walking down the front steps of his home.  He fell and landed on his right shoulder.  He was treated at the hospital, where x-rays were performed.  The x-rays demonstrated that he had suffered an acromial fracture.  He was referred to Mr Lyons, orthopaedic surgeon, who referred the plaintiff to have an MRI scan, and concluded that the plaintiff had an extensive retracted tear of the supraspinatus, probably some involvement of the infraspinatus, and that the long head of the biceps was close to rupture as well.  Mr Lyons recommended that the plaintiff undergo surgery. 
31	Mr Lyons performed a right shoulder acromioplasty, subacromial bursectomy and a rotator cuff repair on 17 May 2018.  The surgery demonstrated that the plaintiff had suffered a massive rotator cuff tear involving his entire supraspinatus, the upper portion of both the subscapularis and infraspinatus and a rupture of the long head of the biceps tendon. 
32	In a report dated 18 May 2021, Mr Lyons directly addressed the question of causation.  Based upon the history he obtained from the plaintiff and reading the plaintiff’s affidavit (presumably his first affidavit), he was of the opinion that the plaintiff’s right shoulder injury was a consequence of the instability in the plaintiff’s right knee which resulted in his right knee giving way from under him.
33	The plaintiff was referred to have physiotherapy.  He says very little in his affidavits about any further treatment he has for his right shoulder, and I assume that after he left the care of Mr Lyons and the physiotherapist, that treatment for his right shoulder ceased.  In his second affidavit, he described having pain on a daily basis, and reduced strength and movement in his right shoulder.  He avoids activities which require him to elevate his right arm above shoulder level.  He has modified tasks which he performs at his workplace, and he tends to use his left arm more than his right arm.  His sleep is disturbed by the problems he has with his right shoulder.  The plaintiff’s wife describes the difficulty the plaintiff has elevating his right arm to perform domestic tasks, such as hanging out washing and changing a lightbulb, which he tends to undertake using his left arm.
34	Mr Kossmann did not obtain a history of any present complaints from the plaintiff relevant to his right shoulder, and that would appear to be so because he largely concentrated on the plaintiff’s right knee.  He examined the plaintiff’s right shoulder and commented that the plaintiff had an excellent range of motion in both shoulders and that the prognosis regarding his right shoulder was good, although, he considered that he would be restricted in relation to employment activities and manual dexterity.  He also commented that the plaintiff did not appear to be suffering from any pain or movement restrictions in his right shoulder joint.  He did not believe the plaintiff required any further treatment for his left shoulder.
Findings 
35	Firstly, I accept the plaintiff’s evidence that he returned to a good level of functioning with his right knee by 2015, and returned to work and engaging in the social, recreational and domestic pursuits which I have summarised above.  I accept that he had little more than niggles of pain and some swelling, but nothing more serious than that.
36	Secondly, I accept the plaintiff’s evidence that the incident of 23 November 2017 was a major incident resulting in the plaintiff suffering a significant aggravation of the pre-existing degenerative changes in his right knee.  To determine whether an aggravation injury is a “serious injury”, it is necessary to be satisfied of the following:
(a)	the injury must be identified;
(b)	next, it is necessary to identify and separate the impairment consequences of each injury; and 
(c)	next, it is necessary to identify whether the impairment caused by the aggravation injury qualifies as a “serious injury”. 
37	The actual injury suffered by the plaintiff is not controversial.  The evidence demonstrates that he suffered an aggravation of pre-existing degenerative changes in his right knee.  I have identified and separated the impairment consequences of the plaintiff’s right knee before the incident of 23 November 2017, and the impairment consequences of the aggravation in the summary I have undertaken of the plaintiff’s evidence and the medical evidence.  I am satisfied that, when a comparison is made of the impairment caused by the aggravation injury, the aggravation injury is a “serious injury,” but I will say more about that shortly.
38	Thirdly, I accept the plaintiff’s evidence that before he had the total knee replacement, the aggravation injury caused him significant pain, swelling, the need for relatively immediate medical treatment, and interference with the activities he had resumed from about 2015 including his capacity for work.
39	Fourthly, despite the total knee replacement, I accept the plaintiff’s evidence that the consequences of the aggravation injury evident before he had the total knee replacement have continued, and, to some extent, have increased.
40	Fifthly, I accept that the plaintiff suffered the fall, resulting in the injury to his right shoulder, as a result of the instability of his right knee which gave way from under him.  I accept that the right shoulder injury is a consequence of the aggravation injury.  It is impermissible to aggregate the aggravation injury with the right shoulder injury, but the seriousness of the right knee injury can be measured in part by the right shoulder injury and its consequences.  I think that is the approach that I can take based upon the observations Winneke P in Richards & Anor v Wylie which, I think, is analogous to what I am dealing with here.
41	Sixthly, I accept the evidence of Dr Khoury that the need for the plaintiff to undergo a total knee replacement was brought forward by eight to nine years.  What that meant for the plaintiff is that the good result he obtained from 2015 was lost.  Furthermore, his ability to engage in social, recreational and domestic pursuits was significantly reduced, and his capacity for work was reduced somewhat and for some periods of time.
42	Seventhly, I accept the plaintiff’s evidence that the reason why he has not returned to see Dr Khoury, nor sought any other particular medical treatment except for prescription of medication, is because he understands that there is nothing much else that can be done for him except for perhaps the need for revision of the total knee replacement at some point in the distant future.  That fact alone cannot stand against a conclusion that the impairment consequences contended for by the plaintiff are less significant.
43	Eighthly, although the defendant submitted that the plaintiff was neither creditworthy nor reliable, I disagree.  I have read the plaintiff’s affidavits, the transcript of his evidence and the medical evidence for the purpose of determining whether there is anything in the plaintiff’s evidence that is in such conflict with other evidence that I should call into question his creditworthiness and his reliability.  Inevitably, there are aspects of his evidence which do not marry up with the observations of some of the medical practitioners, for example the optimism of Dr Khoury, but overall, I consider that he gave his evidence reasonably and I see no serious element in his evidence which I think calls into question his creditworthiness and reliability to the extent contended for by the defendant.
44	Lastly, I accept that the plaintiff has retained some aspects of quality-of-life which he had prior to the incident of 23 November 2017, and principally, his capacity to return to work.  They are to be weighed in as part of the exercise of balancing the evidence in favour and against a finding that the plaintiff has suffered a serious injury.  I will deal with this in a bit more detail later in these reasons.
Conclusions
45	I consider that the pain and suffering consequences of the impairment of function of the plaintiff’s right knee and lower limb are permanent.  The evidence demonstrates to me that as a result of the infliction of the aggravation injury, the plaintiff essentially lost all of the social, recreational and domestic pursuits which he was accustomed to engage in, and his capacity to work was reduced somewhat and for some periods of time.  He would have continued to enjoy those activities for the additional period of time referred to by Dr Khoury – another eight or nine years.
46	I have made a comparison between the evidence of the plaintiff of his impairment consequences following the incident of 23 November 2017 with his current evidence. The extent of the complaints he makes of impairment are very similar, if not the same, in spite of the total knee replacement and the removal of the degenerative parts of his right knee.
47	The defendant submitted that I should pay regard to what the plaintiff has retained in determining whether the consequences of the impairment of the function of his right knee and lower limb are “serious”.  That is an observation which was made by Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2). As helpful as that statement is in demonstrating that there is a balance that needs to be struck in determining whether the impairment consequences meet the statutory test or not, the firm focus must be on whether the plaintiff’s consequences are “serious”, and I think that is why his Honour said that “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.  I kept that submission in mind when undertaking the exercise of balancing the evidence in favour and against the finding that the plaintiff has suffered a “serious injury”.
48	In the circumstances, I am satisfied that the consequences of the impairment of function of the plaintiff’s right knee and lower leg deserve a finding that they are “serious”, and I have reached that conclusion by making the comparison with like impairments, as I am obliged to do.
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