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

Case No. CI-20-00925 

DANIELLA PETROVSKA	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE CARMODY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	23 June 2021	
DATE OF JUDGMENT:	23 March 2022	
CASE MAY BE CITED AS:	Petrovska v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2022] VCC 339		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury – physical injury – injury to right knee – pain and suffering damages – whether plaintiff satisfied the threshold test for serious injury in respect of pain and suffering damages – credit of the plaintiff – whether chronic spontaneous urticaria is a consequence of the injury 
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:	Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566 
Judgment:	Leave granted to the plaintiff to bring proceedings to recover pain and suffering damages from the defendant arising from the injury to her right knee at her place of employment on 11 April 2016. 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Fitzpatrick	Slater and Gordon Ltd Lawyers	
			
For the Defendant	Mr B McKenzie	MinterEllison	

HIS HONOUR:

1	The plaintiff brings an application by way of Originating Motion dated 4 March 2020.  The plaintiff applies for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) in respect to an injury to her right knee which occurred on 11 April 2016.  The plaintiff was employed as a service adviser with the defendant employer, Alan Mance Footscray Pty Ltd.  
2	This application requires the plaintiff to satisfy the test set out s325 of the WIRC Act.
3	The plaintiff seeks leave to bring proceedings for pain and suffering damages in respect of the injury to her right knee.  The Court is required to determine the consequences of the injury to the plaintiff’s right knee before leave can be granted.  In this case, one of the issues is whether or not the consequence of the development of hives after ingesting medication for pain arising from the right knee injury is a consequence in this case. 
4	Mr Fitzpatrick, counsel for the plaintiff, formally abandoned the paragraph (c) application on the day of hearing. 
5	The following evidence was adduced in the course of the hearing:
•	The plaintiff gave evidence and was cross-examined.
•	The plaintiff tendered the following documents:
•	Plaintiff’s Court Book (“PCB”) pages 5 to 24; 30 and 31 and 32 to 88 (including 73A to 73F) inclusive.
•	The defendant tendered the following documents:
•	Exhibit 1, DVD of surveillance film for the dates of 22 November 2020 and 15 December 2020.
•	Exhibit 2, Defendant’s Court Book (“DCB”) pages 3 to 29; 64 to 105 and 143 to 144 inclusive.
6	Mr McKenzie, counsel for the defendant, identified the following issues in this application:
(a)	in respect of the pain and suffering claim, the case was a “range case”, in the sense that the plaintiff has to establish that the consequences are “at least very considerable”;
(b)	the plaintiff’s credit; and
(c)	the defendant accepts the plaintiff did injure her right knee on 11 April 2016.
7	The plaintiff’s credibility was challenged in the course of the hearing.  The plaintiff impressed me as a person who was frank, realistic and a sensible witness.  There were times during the course of her evidence when she became emotional.  This occurred in circumstances where the plaintiff was being questioned about the connection between her medication, gabapentin, and the consequences flowing from that to her.  It is clear from the history given by the plaintiff that she has returned to work and maintained employment, both before and after the injury to her right knee.  I accept she is a genuine and forthright witness.
The Statutory Scheme
8	The application is brought under the definition of “serious injury” contained in s325(1) of the WIRC Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of body function”.
9	The relevant considerations which apply to such an application are as follows:
(a)	the plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 1 July 2014;
(b)	the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;
(c)	the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d)	subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e)	subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise; 
(f)	in conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c).  I have applied the principles set forth therein in reaching my conclusions in this application.
10	I am required to give detailed reasons which are as extensive and complete as the Court would give in the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
11	The plaintiff was born in 1989 and at the time of the hearing was thirty-two years of age.  The plaintiff is a married woman and lives with her husband.  Her husband works as a motor mechanic.  They do not have any children.
12	The plaintiff was educated at school until she was aged seventeen.  She then left school and completed a three-year Diploma of Fashion.
13	The plaintiff commenced work in the fashion industry at Tent.  The plaintiff remained in the fashion industry until July 2014.  
14	In July 2014, the plaintiff commenced work as service adviser with Alan Mance Footscray Pty Ltd.  She continued with her work up until date of injury, 11 April 2016.  The plaintiff had some time off work and then returned on light duties and subsequently worked full time between February 2017 and December 2018.  
15	The plaintiff then worked in an administrative position with Hempel Paints for twelve months.  The plaintiff changed her employment to Arbon Equipment, where she worked for one year as an administrative officer.  
16	In the early part of 2021, the plaintiff changed her employment to a customer service officer at Western Ford.  The plaintiff initially found that work difficult due to her right knee injury and sought to change her work to Coates Hire, where her role would be more sedentary.  The plaintiff gave evidence in this case that she did not proceed with changing her work to Coates Hire because she had a conversation with her boss at Western Ford.  Her work duties were adjusted to accommodate her limitations with her right leg, and she remains employed at Western Ford.
Injury with the Defendant employer
17	The plaintiff was employed by Alan Mance Footscray Pty Ltd as a service adviser within the service department of that business.
18	The plaintiff describes her injury as occurring in the following circumstances:
“On 11 April 2016 I was returning from the lunchroom to the service department.  This required me to walk across a concrete area where cars were parked and over a drain which was covered by a grate.  However, I fell into the drain through a gap in the grate and injured my right knee.  I screamed and others came to my aid … .”
19	The defendant accepts that the plaintiff was injured in the manner in which she describes and that the injury was to her right knee. 
Medical treatment
20	The plaintiff was initially driven to the Footscray Hospital by a fellow employee.  Her right knee was x-rayed and there was no fracture revealed.
21	The plaintiff’s right knee had swelling, and she was in significant pain.  She attended upon her general practitioner, Dr Hakan Baglar.  Dr Baglar prescribed the plaintiff Panadeine Forte and initially gave her three days off work. 
22	The plaintiff then attended physiotherapy twice a week for the next five months.
23	On 21 April 2016, the plaintiff underwent an MRI scan of her right knee.  The findings of the MRI scan are as follows:
“There is prominent anterior subcutaneous oedema especially at the level of the tibial tuberosity and this may reflect soft tissue contusion if there was a fall onto this aspect of the knee.
…
Conclusion
… subcutaneous oedema probably reflecting soft tissue contusion from direct blow.  Otherwise unremarkable with no meniscal or ligament tear or fracture seen.”
24	The plaintiff’s knee remained swollen and painful, and she remained off work until July of 2016.  After returning to work on modified hours, the plaintiff’s pain flared up further in October 2016.  
25	The plaintiff underwent a further MRI scan of her right knee on 14 October 2016.  The conclusion from that MRI scan was that there was no significant internal joint derangement.
26	The plaintiff was referred by her general practitioner, Dr Baglar, to Mr Sam Patten, orthopaedic surgeon.  Mr Patten, in his report dated 6 September 2016, noted that the MRI scan from the April 2016 examination demonstrated no appreciable interarticular pathology.  It did demonstrate significant subcutaneous oedema in keeping with her injury.  Mr Patten noted that the plaintiff walked with a grossly abnormal gait with antalgic gait pattern on the right leg and a reluctance to flex her right knee beyond 35 degrees.  He noted the plaintiff had minor loss of muscle tone in the quadricep above her right knee.  In Mr Patten’s opinion, he thought the plaintiff would benefit from a  referral to a chronic pain rehabilitation specialist.
27	After the MRI scan of 14 October 2016, the plaintiff attended upon Mr Ilan Freedman, orthopaedic surgeon.  The plaintiff was referred to Mr Freedman by her general practitioner, Dr Baglar.  Mr Freedman noted:
“… I do not think she has a meniscal injury or chondral injury and also the ligaments of her knee feel intact.  Therefore as a surgeon, I have not found any particular injury that I can surgically repair, however, I certainly feel that her knee is swollen and it certainly also has some altered colouration compared to the opposite side and I am concerned that she may have an element of CRPS (chronic regional pain syndrome) causing her pain ….” 
28	Mr Freedman referred the plaintiff to Dr Nick Christelis, who is a pain specialist at Victoria Pain Specialists.  In Mr Freedman’s letter to Dr Christelis, he states:
“… She has not sustained any anatomical injury that I could find but she certainly has swelling and some discolouration over this knee and I am concerned that she has developed a generalised pain syndrome … .”
29	Mr Freedman went on to state that he did not think surgery was appropriate for the plaintiff’s knee.
30	The plaintiff attended upon Dr Christelis on 22 November 2016.  Dr Christelis diagnosed the plaintiff as suffering from:
“… [The plaintiff] has sustained a neuropathic pain following a work-related injury.  She has neuropathic pain inferior to her right knee over the medial aspect, a 10 x 10 cm area where she displays allodynia and hyperalgesia. She tells me that she does have some swelling and discolouration, although I could not discern any today so at least she has postinjury neuropathic pain and at worst she probably has an element of CRPS.”
31	Dr Christelis prescribed the plaintiff with gabapentin, 100 milligrams, increasing to 200 milligrams tds.  The plaintiff has not returned to Dr Christelis for further treatment.  The plaintiff developed hives as a result of taking the medication, gabapentin, otherwise known as Neurontin.  
32	In a letter dated 31 January 2017, Dr Christelis sought permission from the defendant employer’s insurer, Xchanging, for the injection of Botox to the plaintiff’s right knee.  This request was refused.  However, in his letter to the defendant’s insurer, Dr Christelis states as follows:
“She has developed an allergic-type reaction to the pain medication I have previously trialled her on.  It is unlikely that she will tolerate local anaesthetic applications of patches, which may further worsen her skin reaction.”
33	I clarify, at this point, that the medication Dr Christelis is referring to is gabapentin.  
34	The plaintiff was also referred to Mr Christos Kondogiannis, orthopaedic surgeon, by her general practitioner, Dr Baglar.  The plaintiff attended on Mr Kondogiannis on 25 May 2018.  In his report dated 10 July 2018, he noted that the MRI examination looked normal, with no meniscal and chondral pathology.  Mr Kondogiannis does not state which particular MRI examination performed in 2016 he was relying upon.
35	Mr Kondogiannis’ opinion was:
“… [The plaintiff’s] symptoms are almost certainly secondary to neural dysfunction secondary to her crush mechanism of injury.  There is no internal derangements of the knee and there is absolutely no indication for surgical intervention.  The focus of her management requires a pain specialist expertise including appropriate pharmacological, interventional and psychological modalities … .”
Medical opinions
Dr Hakan Baglar, general practitioner
36	Dr Baglar has been the plaintiff’s general practitioner since she was a little girl.  In a report dated 8 August 2017, Dr Baglar gives a history of the plaintiff attending upon him at the clinic, complaining of ongoing pain to her right knee and swelling around her right knee.  He noted that the plaintiff did not have any issues with her right knee prior to this incident in April 2016.  Dr Baglar set out the treatment regime for the plaintiff in that report.  He then stated:
“… [The plaintiff] ended up seeing Dr Nick Christelis, Pain Specialist and Anaesthetist.  She was prescribed with Gabapenthin (sic) for neuropathic pain. Daniela had [a] severe reaction to that medication, requiring hospitalization.  Her dermatological reaction to that medication still did not clear and from time to time, it gets aggravated for no reason … .”
37	Dr Baglar diagnosed the plaintiff as follows:
“Her diagnoses are right knee soft tissue injury, right knee chronic neuropathic pain, right lower leg grazing with loss of sensation around her right knee and dermatological impairment secondary to medication (Gabapenthin) (sic).”
38	There is no up-to-date medical report from Dr Baglar.  I do not draw any adverse inference against the plaintiff because of the lack of up-to-date reporting by her general practitioner.
Mr Iain McLean, orthopaedic surgeon
39	The plaintiff has been reviewed by Mr McLean for the purposes of medico-legal reporting in this application.  He has prepared two reports, dated 27 June 2019 and 15 October 2020.  In his first report, Mr McLean diagnosed the plaintiff as suffering from a contusional soft-tissue injury and superficial nerve injury, with altered sensation and hypersensitivity to the right knee.  He also diagnosed chondromalacia of the medial and patellofemoral compartments of the right knee.  He stated that the plaintiff suffered from ongoing complex pain and functional disability in her right knee.
40	Mr McLean, in his later report dated 15 October 2020, stated his diagnosis as contusional soft-tissue and superficial nerve injury with altered sensation and hypersensitivity to the right knee.  Mild traumatic chondromalacia of medial and patellofemoral compartments; underlying, but previously asymptomatic, constitutional/anatomical vulnerability and ongoing complex pain and functional disability.  In Mr McLean’s opinion, the plaintiff’s functional limitations and pain are ongoing and will persist into the foreseeable future.
Dr Richard Sullivan, pain specialist
41	The plaintiff was examined and reviewed by Dr Sullivan, pain specialist, for the purpose of this litigation.  His report dated 25 November 2020 is a medico-legal report.  On examination, Dr Sullivan noted there was a clear antalgic nature to the plaintiff’s gait.  In his view, there was no abnormal illness behaviour displayed by the plaintiff.  Dr Sullivan noted that on gentle palpation around the patella, significant pain was reproduced in the inferomedial aspect, the superomedial aspect and the inferolateral aspect on the right side of her right knee.
42	Dr Sullivan diagnosed the plaintiff as developing an area of altered sensation associated neuropathic pain to the right knee.  He notes that this mechanical and cutaneous hypersensitivity is consistent with an organic process of central sensitisation as a consequence of the traumatic injury to the plaintiff’s right knee.  Dr Sullivan stated as follows:
“… I believe that … [the plaintiff] should be considered for the following
 1	An assessment by a dermatologist as there appears to be a correlation with her dermatological condition (pruritic erythematous eruptions) and a prescription of the medication gabapentin.
 … .”
43	Dr Sullivan was not professing an expertise, but noted that the plaintiff’s taking of gabapentin has resulted in her hives’ condition.
44	I have previously dealt with the opinions of the treating orthopaedic surgeons and will not repeat them here.
The Defendant’s doctors
Dr Joseph Slesenger, specialist occupational physician
45	The plaintiff was examined on behalf of the defendant by Dr Slesenger on two occasions.  Dr Slesenger prepared two reports, dated 4 August 2016 and 31 March 2017.  Dr Slesenger was optimistic in his first report, noting that the plaintiff should see a resolution of her symptoms in the course of the next four to five months from August 2016.  In that report, Dr Slesenger noted evidence of:
•	A dermatological condition, possibly secondary to the plaintiff’s use of Neurontin.
•	Neuralgic pain around the right knee.
•	Evidence of right knee meniscal injury.
46	Dr Slesenger’s opinion was that the plaintiff should be further assessed by an orthopaedic surgeon, as he saw evidence of right-knee impairment which might require further treatment.  The plaintiff was not further examined by Dr Slesenger after March 2017.
Mr Michael Dooley, orthopaedic surgeon
47	The plaintiff was examined by Mr Dooley on behalf of the defendant for the purposes of this litigation.  Mr Dooley prepared two reports, dated 19 December 2019 and 15 January 2021.
48	In his first report, Mr Dooley notes the MRI examinations in the following terms:
“… MRI scanning of the right knee carried out on April 21, 2016 reports subcutaneous oedema especially at the level of the tibial tuberosity.  There is no abnormality in relation to ligaments, menisci etc.  MRI scanning on October 14, 2016 again notes no obvious internal joint derangement.”
49	Mr Dooley diagnosed the plaintiff as suffering a soft-tissue injury to the proximal tibia knee region that involves superficial abrasions and subcutaneous and periosteal bruising.  He noted there was no meniscal or ligamentous damage to the knee.  Mr Dooley’s opinion was that the plaintiff presents as a sensible and genuine historian and feels that “she would be best served by withdrawing from all so called medical treatment and self-managing her condition”.
50	In his final report prepared on 15 January 2021, Mr Dooley confirmed his opinion that the plaintiff should not engage in any further medical treatment.  He was of the opinion the plaintiff did not suffer from central sensitisation.  He noted that the plaintiff walked without a limp when he reviewed her.  He accepts that other medical practitioners have noted the plaintiff walked with a limp.  In Mr Dooley’s opinion, the plaintiff’s injury and consequences are now fluctuating pain in the knee, which does not require any further treatment, either pharmacological or physical.
The credit of the Plaintiff
51	In the course of cross-examination, Mr McKenzie attacked the plaintiff’s credit in relation to her symptoms and her description of the impact of the injury upon her.  In particular, he challenged the plaintiff about limping and, on occasion, limping at some doctors’ appointments and not at others.  The other area of challenge was relating to the plaintiff stating that, on occasion, her right knee would buckle on her.  The basis of cross-examination in respect of the buckling of the knee, Mr McKenzie said, was that it was not seen on the six minutes of video shown.  
52	The Court of Appeal in Church v Echuca Regional Health gave some guidance to trial judges about the manner in which video surveillance film is to be used or assessed when making decisions about the credibility of a plaintiff or the impact of injuries upon a plaintiff.  
53	In this case, there were four periods of surveillance of the plaintiff.  In September 2016, the plaintiff was surveilled on three days for a total of 12.5 hours.  In that period, a video film of 4.24 minutes was taken.  This video was not shown in Court due to technical issues.  
54	The second period was December 2019 to January 2020.  There were five days of surveillance; a total of 16.75 hours.  In the course of that five days of surveillance, the plaintiff was not sighted.  
55	The third period of surveillance was between November and December 2020.  A total of five days of surveillance for 17.75 hours was conducted.  As a result of that surveillance, a period of six minutes of surveillance was shown of the plaintiff in the course of this proceeding. 
56	The fourth period of surveillance was in June 2021.  There were four days upon which the plaintiff was surveilled.  
57	A total of fifteen hours of surveillance was conducted.  The plaintiff was not seen.  In total, seventeen days of surveillance, resulting in sixty-two hours of direct surveillance, was produced, in the course of this hearing, no more than six minutes of video.  
58	There were two days of surveillance shown in the Court.  The first day was 22 November 2020.  In that film, the plaintiff was seen engaging in the process of filling up petrol at a petrol station.  It was put to her that she did not limp when she was moving around the petrol station.  The plaintiff responded by saying: “I could show you”, meaning the cross-examiner.  I note, here, that, to my observation, the plaintiff, limped slightly as she went around the back of the car in order to fill up the petrol.  She is then observed standing with her weight only on her left, as in her “good” leg.  It was apparent to me the plaintiff was favouring her right leg.
59	The second date of film was 15 December 2020.  This was on an occasion when the plaintiff was going to a medical examination.  To my observation, there was a slight limp by the plaintiff as she walked down the street from the medical examination.  It was at this stage the plaintiff was challenged about her knee not buckling.  The response by the plaintiff was:
“So, at times my knee tends to like, buckle.  It decides to just like move it.  I don’t know how to explain [it] to you because it’s just like, when I’m walking or even standing or when I put my foot forward the knee just literally just gives and it’s like a release and it’s just like a - you can’t help it, you can’t even put it back in until you just like put your step-up kind of thing.”
60	The plaintiff went on to state that it does not happen all the time, it is not every day just at times.
61	I find that the small amount of surveillance film that was shown actually confirms the complaints made by the plaintiff that she does have a limp to her walking action.  Further, consciously or unconsciously, she favours her right leg by placing more weight on her left side when she is in a stationary position.
62	I also note that none of the medical examiners have found that the plaintiff has shown any illness behaviour.  Indeed, to the contrary, as I have noted in the medical examinations and their opinions, the doctors say that the plaintiff is a genuine historian.
63	I accept the plaintiff is a genuine and accurate historian.  The plaintiff, at all times, honestly answered questions and was not embellishing her situation for the purposes of this proceeding.
The consequences of the right knee injury to the Plaintiff
64	The plaintiff, in two affidavits dated 16 October 2019 and 28 May 2021, set out the consequences of her right knee injury.  The plaintiff was cross-examined about the contents of those affidavits and the additional evidence she gave at the commencement of this proceeding.
65	The plaintiff also relied upon an affidavit of her then fiancé, Steven Marjanovic, now husband, dated 28 May 2021. The plaintiff also relied on an affidavit of her friend, Jessica Ferro, sworn 16 June 2021.  Neither Mr Marjanovic nor Ms Ferro was cross-examined by the defendant.
Sleep
66	The plaintiff, in her first affidavit, stated that her sleep had been occasionally affected.  She noted that it would occur once a week that she woke due to pain.  In her later affidavit, the plaintiff deposed that if she had a bad day with her knee pain, which occurred several times a week, she would be waking during the night with knee pain.
67	In cross-examination, the plaintiff agreed with the proposition that her sleeping pattern is such that she takes approximately an hour to get to sleep and then is able to sleep for a period of some seven hours.
68	While I find that the plaintiff’s sleep patterns are interrupted by pain and, more particularly, acts as a delay before she can finally get to sleep, I do not assess this as a very considerable consequence.  Nevertheless, the plaintiff’s sleep is interrupted as a consequence of the injury to her right knee.
Pain
69	The plaintiff, in her first affidavit, states that the pain in her right knee is constant.  She noted that her right knee was swollen.  The plaintiff also set out that the level of pain is related to the amount of activity she performs during the day.  In her second affidavit, the plaintiff stated that she has constant pain in her right knee.  She noted that she is never pain free in her right knee.  On occasions, when the pain is at its worse and she has been working, she goes home and simply lies down.
70	The plaintiff was cross-examined about her pain, and she stated that she had fluctuations in the level of her pain, but it was always present in her right knee.  The plaintiff takes medication to ameliorate the pain symptoms.  The plaintiff takes Voltaren, 250 milligrams twice a day, two to three times a week.  The plaintiff has also been prescribed Panadeine Forte, when she suffers the worst of her pain.  The plaintiff gave evidence that she, on occasions, uses Voltaren cream to ameliorate her pain symptoms.
71	I accept that the plaintiff’s experience of pain and treatment for it, by taking medications, is a very considerable consequence for her.  The plaintiff has reduced her level of activity in order to ameliorate all this and the amount of pain she suffers on a constant basis.  This is a restrictive approach by her to deal with her pain levels.
Medications
72	I have previously dealt with the plaintiff’s use of medications for pain relief.  In November 2016, the plaintiff attended upon Dr Christelis, a pain specialist.  This was at the recommendation of her then treating orthopaedic surgeon.  Dr Christelis diagnosed the plaintiff as suffering from neuropathic pain and prescribed gabapentin (Neurontin) for her.  The plaintiff commenced a course of gabapentin and unfortunately suffered a reaction to it.  The plaintiff broke out in what she described as a rash.  Her general practitioner, Dr Baglar, told her to cease taking the gabapentin.  The rash described by the plaintiff has been diagnosed as a chronic spontaneous urticaria (hives).  The plaintiff has been treated at The Royal Melbourne Hospital Dermatology Unit for this condition since 2016.  At the time of the hearing, the plaintiff had an appointment to return to The Royal Melbourne Hospital Dermatology Unit in July 2021 for further ongoing treatment.
73	In this proceeding, the issue of the plaintiff suffering from hives as a consequence of the knee injury became a focal point.
74	Dr Sullivan, Dr Slesenger and Dr Baglar each accepted a connection between the ingestion of gabapentin (Neurontin) by the plaintiff and the resulting hives within the week of the commencement of the medication.  In the course of the plaintiff’s evidence, she stated she had been treated by Dr Baglar since she was a seven-year-old child.  She stated she had never been treated for hives by Dr Baglar until after she had taken the gabapentin.
75	Dr Christelis also has drawn the connection between the prescription and taking of gabapentin and her allergic reaction (hives).  In his report dated 31 January 2017 to the defendant employer’s insurer, Xchanging, he stated as follows:
“She has developed an allergic-type reaction to the pain medication I previously trialled on her … .”
76	I accept that the treatment for her pain and prescription of gabapentin (Neurontin) by Dr Christelis has triggered the spontaneous reaction which has resulted in the plaintiff suffering a chronic hives’ condition.  The plaintiff, in her evidence, stated that she attends upon the Dermatology Department at The Royal Melbourne Hospital on a three-monthly basis.  The plaintiff also stated that she had been advised by the doctors at The Royal Melbourne Hospital that she was not to take the medication prescribed by them to deal with her hives for a period of six months prior to any attempts by her to become pregnant.  The plaintiff was not emphasising this, but it came out in the course of her cross-examination.  The plaintiff is prescribed 300 milligrams monthly by way of injection of Omalizumab since February 2018 to treat her hives. This treatment is ongoing.
77	I accept the evidence establishes, on the balance of probabilities, that the ingestion of gabapentin resulted in the plaintiff suffering from hives.  I find that the spontaneous and continuing chronic condition of the plaintiff suffering from hives and the need for her to take medication to ameliorate that condition, is a very considerable consequence for the plaintiff.
78	It was unfortunate in this case that the plaintiff’s solicitors did not obtain a full and direct medical report from The Royal Melbourne Hospital Dermatology Department to deal with this issue in the case.
Ongoing treatment
79	The plaintiff receives ongoing treatment from The Royal Melbourne Hospital for the hives’ condition that has resulted from the pain management treatment recommended to her by Dr Christelis.  The plaintiff also undergoes chiropractic treatment to try and manage her right knee pain.  I find that the necessity for the plaintiff to continue to see doctors on a regular basis and to receive physical therapy on a regular basis, to be a very considerable consequence for her.
Activities of daily living
80	The plaintiff gave evidence, and I accept, that a large part of the domestic activities are undertaken by her husband.  I accept that this is because she is unable to undertake these tasks due to the pain in her right knee.  The plaintiff is tired after a day’s work and, as she stated, she generally lies down.  The plaintiff did concede that she can do any of the activities of daily living, but can only do so for a short time in a domestic setting.
81	The plaintiff is of Macedonian heritage.  She gave evidence that dancing is a very intricate part of her culture and that she can only engage in one or two dances before she has to sit down.  The reason for her sitting down is the knee pain that results from the dancing.  I find that a person of young age to be restricted in the fun and engagement of dancing is a very significant consequence for the plaintiff.
82	The plaintiff also stated that she had been an elite athlete in her younger years.  There is no doubt that she was an elite runner.  Because of her knee injury, she cannot run or engage in gymnasium-type activities.  It is true that the plaintiff had ceased going to gym on a regular basis prior to her injury.  However, she is a young woman and the problem for her now is that she will not be able to return to running or going to a gym for a long period over the course of her life.  I accept that a person who is athletically inclined, as the plaintiff was, the inability to engage in physical activities to maintain fitness and her weight, is a very considerable consequence to her.
Conclusion
83	I find, based on the reasons set out in respect of the consequences of the right-knee injury to the plaintiff that, when taken together and individually, those consequences meet the statutory test of being “more than significant or marked, and as being at least very considerable”.  I find that the conditions and consequences complained of by the plaintiff are for the foreseeable future.
84	I grant leave for the plaintiff to bring proceedings to recover damages for injury to her right knee as a result of the accident which occurred on 11 April 2016 in the course of her employment with the defendant employer Alan Mance Footscray Pty Ltd.
85	I will hear the parties on costs.
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