District Court New South Wales Medium Neutral Citation: Phillips v Commissioner of Police [2014] NSWDC 95 Hearing dates: 10 and 11 June 2014 Decision date: 25 June 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The decision of the Defendant's Delegate dated 2 August 2012 pursuant to section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 ("the Act") that the infirmity of 'osteoarthritis of the right hip', as specified in the Certificate of the Police Superannuation Advisory Committee dated 28 June 2012, was not caused by the Plaintiff being hurt on duty, be set aside, pursuant to section 21 of the Act. (2) The suffering by the Plaintiff of the infirmity of 'osteoarthritis of the right hip', as specified in the Certificate of the Police Superannuation Advisory Committee dated 28 June 2012 was caused by the Plaintiff being hurt on duty on 29 March 2011 (notional). (3) The decision of the Defendant's Delegate dated 29 November 2012 pursuant to section 12D(4)(a) of the Act, that the 'right hip injury' was not caused by the Plaintiff being hurt on duty be set aside, pursuant to section 21 of the Act. (4) The suffering by the Plaintiff of the 'right hip injury' was caused by the Plaintiff being hurt on duty. (5) The Defendant pay the Plaintiff's costs as agreed or assessed. Catchwords: WORKERS COMPENSATION - police officer - Police Regulation (Superannuation) Act 1906 (NSW) - injury resulting in left hip replacement resulting from being hurt on duty - subsequent replacement of right hip - whether right hip deterioration resulted from being hurt on duty Legislation Cited: Police Regulation (Superannuation) Act 1906 (NSW), ss 10B and 12D Cases Cited: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Murray v Commissioner of Police (2004) 2 DDCR 31 R v Turner (1975) QB 834 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Michael Scott Phillips Defendant: Commissioner of Police Representation: Plaintiff: Mr T Ower Defendant: Mr T Rowles Plaintiff: Walter Madden Jenkins Defendant: Vandervords Solicitors File Number(s): RJ00034/13 Publication restriction: None Judgment 1The plaintiff, by statement of claim filed on 31 March 2013, seeks orders as follows: (1)The decision of the Defendant's Delegate dated 2 August 2012 pursuant to section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 ("the Act") that the infirmity of 'osteoarthritis of the right hip', as specified in the Certificate of the Police Superannuation Advisory Committee dated 28 June 2012, was not caused by the Plaintiff being hurt on duty, be set aside, pursuant to section 21 of the Act. (2)The suffering by the Plaintiff of the infirmity of 'osteoarthritis of the right hip', as specified in the Certificate of the Police Superannuation Advisory Committee dated 28 June 2012 was caused by the Plaintiff being hurt on duty on 29 March 2011 (notional). (3)The decision of the Defendant's Delegate dated 29 November 2012 pursuant to section 12D(4)(a) of the Act, that the 'right hip injury' was not caused by the Plaintiff being hurt on duty be set aside, pursuant to section 21 of the Act. (4)The suffering by the Plaintiff of the 'right hip injury' was caused by the Plaintiff being hurt on duty. (5)The Defendant pay the Plaintiff's costs as agreed or assessed. 2The circumstances giving rise to the plaintiff's claim may be summarised as follows. The plaintiff, who was born in 1966 and was attested as a Constable of Police at the age of 20 in November 1986, achieved the rank of Sergeant in the New South Wales Police Force in 2005, commencing with general duties until 1993, at which time he was transferred to the Video Operations Unit. In 2003 he sought a transfer to the Police Academy at Goulburn, by reason of his medical condition. 3It is not in dispute that the plaintiff, in the course of making an arrest in 1989, suffered injuries, and that his physical condition in relation to his left hip has gradually deteriorated, resulting in a left hip replacement in 2006. 4On 22 December 2011, the plaintiff applied to be certified unfit due, inter alia, to the condition the subject of these proceedings, namely osteoarthritis of the right hip requiring a hip replacement. On 13 March 2012 the plaintiff applied to Allianz Australia Insurance Limited as the Delegate of the SAS Trustee Corporation to approve the payment of a gratuity pursuant to s 12D(1) of the Act for, inter alia, the infirmity. On 28 June 2012, the plaintiff was certified unfit for duties due to the infirmities of "Chronic Post Traumatic Stress Disorder, Osteoarthritis of the right hip and a replacement of the left hip". 5However, on 2 August 2012 the Delegate for the defendant certified, in terms of s 10B(3)(a) of the Act, that the condition the subject of these proceedings, namely osteoarthritis of the right hip (which has required a replacement of the right hip as well as the left hip) was not caused by the plaintiff being hurt on duty. This is the first decision appealed from. 6On 29 November 2012, the Delegate for the defendant certified in terms of s 12D(4)(a) of the Act, that the plaintiff's right hip injury was not caused by the plaintiff being hurt on duty. This is the second decision appealed from. The Plaintiff's Evidence 7The plaintiff was in excellent health at the time he entered the Police Service and throughout his Police career maintained his fitness by regular sporting activity. It is common ground between the plaintiff's and defendant's medical experts (see the reports of Dr Dixon of 30 August 2006 and Dr O'Keefe dated 15 May 2006) that there is no prior family history of osteoarthritis. There is also agreement amongst the medical practitioners that, while osteoarthritis is what they have all referred to as a "constitutional" condition (in that it is a pre-existing medical problem which is inherited) and commonly suffered by persons in their 60s and 70s, its onset can be triggered by trauma; the plaintiff is agreed to have suffered this disease at a particularly young age and in circumstances where there is no relevant family history. 8As to the age at which the plaintiff first displayed symptoms, Dr Bodel, who provided two reports and was cross-examined, stated that the age at which such a diagnosis was made was generally when a person was in his or her 60s or 70s. The plaintiff showed symptoms in his left hip in or about 1997 and was diagnosed in 2000, at the age of only 34, as suffering from osteoarthritis in his left hip, with early degenerative osteophytic spurring on the right hip (Exhibit B, reports of Dr Mcguigan, 23 March 2000; Dr G. Schaffer, 16 February 2000). 9In appealing the determinations of the defendant's Delegate that the infirmity "osteoarthritis of the right hip" the plaintiff puts two alternative arguments before me: (a)whether the plaintiff contracted the infirmity of osteoarthritis of the right hip in circumstances in which his employment was a substantial contributing factor, and which eventually rendered him unfit for full operational duties; or (b)in the alternative, whether the plaintiff's operational duties substantially contributed to the aggravation, acceleration, exacerbation or deterioration of a pre-existing or constitutional disease from which he suffered (see paragraphs 4 and 5 of the statement of claim). The circumstances of the plaintiff's injury in 1989 10In July 1989, while the plaintiff was performing general duties at Miranda Police Station, he attended a crime scene with another officer which involved pursuit of an offending vehicle which collided with the kerb. The driver got out of the vehicle and attempted to run away. As the plaintiff attempted to intercept him the offender knocked him over, causing him to twist to his left and fall to the ground underneath the offender, striking the guttering kerb with his left thigh, hip and knee. The plaintiff was in intense discomfort and at the first opportunity, attended his general practitioner obtaining a medical certificate for an absence of 2 days. He later lodged a claim for hurt on duty, as a result of the injuries he sustained. This was approved. 11The plaintiff continued his duties and thought little more of the matter until approximately three years later, when he began regularly experiencing discomfort, particularly after any strenuous sporting activity such as jogging or skiing. 12In October 1993 the plaintiff commenced duties at the Video Operations Section - Forensic Services Group. His duties including video recording crime scenes, which required him to keep on his shoulder a professional broadcast camera weighing approximately 13 kilograms, which he was not able to put down, as this would contaminate the crime scene. Approximately 30% of his crime scene recording activities took place in the bush, where he was obliged to walk over uneven and at times dangerous terrain. 13The remaining 70% of his work included video recording crime scenes in houses or other premises where he was again unable to put down the camera; on occasion he was called upon to video scenes in confined spaces, such as trap doors or roofs. He was also required to record walk-through interviews with witnesses, victims or offenders and record search warrant searches. He routinely had the camera on his shoulder for around 3 hours as continuity was an essential part of the process. On some occasions, where a search warrant required a room-to-room search, he could have had his camera on his shoulder for up to 14 hours. 14In addition to carrying the camera, the plaintiff was obliged to carry at least three 1kg batteries in the belt on his uniform. When he ceased recording, he would have to announce this and immediately change the battery so that he could continue filming. Towards the end of his 10-year period with the Video Surveillance Section, a different battery system was used, but the plaintiff's evidence was that this simply made the camera heavier. 15The combined weight of the battery packs, lighting and audio equipment and the camera subjected the plaintiff's body to periods of stress. He frequently experienced aches in his left hip that led to his consulting his general practitioner in October 1997, when he reported off sick due to pain in his hip. He had just turned 31 years of age. The plaintiff's general practitioner's notes are difficult to read, but it would appear that the plaintiff's osteoarthritic condition was merely suspected at this stage. 16The plaintiff's condition continued to worsen. On 20 August 1999 he again reported off sick due to hip pain. The plaintiff was reluctant to complain because he feared it would be the end of his Police career if he did so. When he was examined by Medical Officers for his employer, he kept his condition to himself. 17By 2002 his problems in completing his obligations for the Video Operations Section were such that he started to look towards Forensic Service training and other areas. After a period of time, he discovered that positions were possibly available at the New South Wales Police College, Goulburn, and subsequently made enquiries. He was transferred to Education Innovation and Quality, New South Wales Police College, Goulburn, on 30 March 2003. This was a job which largely involved teaching and education, and sitting at a desk rather than standing or walking for long hours carrying heavy equipment. 18The plaintiff found the workload at the Police Academy considerably lighter, but he continued to suffer from pain in the hip and groin, as well as sleeping problems, and he continued to rely more heavily on his right leg and to favour his left leg, in order to minimise this pain. 19He was made a Sergeant in 2005, but his pain continued to worsen. The pain in his hip intensified to the level where he began to suffer not only lack of sleep and constant pain but headaches. He reported off sick on 17 and 18 January 2006 because of these headaches. He consulted his superiors and disclosed the extent of his injury. 20On 3 February 2006 he was referred to Dr Michael Dixon and he reported off sick again on 6 February 2006. He attended Dr Dixon on 21 February 2006, who recommended immediate surgery to be performed on 17 March 2006. It was at this meeting that Dr Dixon stated he believed the condition had originated from the earlier impact injury to his hip in 1989. The plaintiff stated, in his claim for hurt on duty benefits letter (Exhibit C) that Dr Dixon considered firstly that 39 years of age was very young to require a hip resurfacing procedure, and that the many years of carrying a 13kg camera for extended periods would have exacerbated the injury. 21The plaintiff underwent hip surgery in March 2006. There is some dispute as to when he recovered from the surgery, the plaintiff's evidence being that it took him approximately 8 months and the defendant's submissions being that, given the treating surgeon's report of success of the operation five years later in 2011. I am satisfied that it was 8 months before the plaintiff was able to walk normally on his left leg, and that during this period, he was favouring the left leg and relying heavily on the right leg, which raises the question as to whether this also exacerbated the infirmity to his right hip. 22The plaintiff had engaged in sporting activities from the beginning of his career. He also worked as a fitness instructor from 1990 to 1998. However, this did not involve any strenuous activity, such as conducting classes, but merely coaching new gymnasium members in the correct use of equipment and designing fitness programs for new members. He was also interested in bushwalking/photography, but ceased this activity early in 2001, as was the case with doing work on the 5 acre property on which he lived, as he had difficulty performing the heavier tasks (see Exhibit E). 23He had ceased skiing and basketball in the late 1980s or early 1990s. He nevertheless considered himself to be quite an active, fit person, but it is clear from Dr Dixon's report that his disabilities were impacting in a fundamental way in his daily life. In his report of 23 March 2000 he described the plaintiff's condition as follows: "... he has had further discomfort in the hip and he now finds that sleeping is sometimes quite difficult because of pain in the left groin and thigh. The pain does not disturb his walking, in that he can walk as far as he wants, even up and down steps, but he does not run any more and does not swim very much. He has a slight limp when he walks." 24Counsel for the defendant submitted that this was a very minor degree of physical infirmity. I do not agree. The plaintiff was fortunate to find Police activities which did not require him to run, and where his limp apparently went unnoticed. He was nevertheless in a considerable level of pain in 2000 as a result of his deteriorating left hip, which is six years before his hip replacement, in circumstances where over the whole of that period, as well as the previous decade, he had been increasingly favouring his left leg and relying upon his right leg to minimise hip pain. 25Deterioration appears to have been evident in his February 2000 X-rays, when compared to "the previous films", which I understand were taken in 1997, but which are no longer available. This is indicative of the fact that for at least three years, and possibly for 6 years, of the period that he was carrying heavy cameras while working in the video operations section, he already suffered from the condition of osteoarthritis of the left hip, and that for at least three of these years (namely from 2000) he had the beginnings of osteoarthritis in his right hip. 26The question is the degree to which this constitutional disease has been exacerbated, accelerated, aggravated or caused to deteriorate substantially by reason of his Police duties, or alternatively whether he contracted the infirmity in circumstances where his employment was a substantial contributing factor. 27This brings me to a consideration of the medical evidence. The defendant's principal submission is that the plaintiff has not clearly established sufficient evidence in order to discharge the burden of proof lying upon him. This means that I must carefully consider each of the medical reports which are relied upon. Medical Reports concerning the Plaintiff's health in 2000 28Dr McGuigan provided a report to the plaintiff's general practitioner, extracts from which have been set out above. After noting that the plaintiff was unable to run any more, and had a side limp, he went on to state: "He is working as a crime scene photographer and has to use a heavy camera, weighing up to 15kg. He finds that the camera is very heavy towards the end of the day and he fears that continued work of this nature will worsen his left hip pain." 29He went on to state that the plaintiff had osteoarthritis in the left hip, the cause of which was "not clear". He then stated that the plaintiff did not need surgical intervention at the age of only 33, but that "it is the only way to cure his problem". He recommended increasing the plaintiff's dosage of Celebrex and Panadol and that a local steroid injection into the left hip may help. He proposed to review the plaintiff in 12 months to see how he is going, or at any time "if things deteriorate". 30The X-ray provided by Dr Schaffer indicates not only degenerative change in the left hip but early degenerative change in the right hip: "16 February 2000 ... Thank you for referring this patient to me. The following is the report: BOTH HIPS There is degenerative change in the left hip with joint margin osteophytes. There is some joint space narrowing posteriorly and medially. There is subchondral cyst formation in the femoral head. There is no loss of rounded contour of the femoral head. On the right there is early degenerative osteophytic spurring at the joint margin of the femoral head. Acetabulum appear unremarkable. COMMENT Degenerative disease particularly involving the left hip Dr G. Schaffer." 31The reference to "particularly involving the left hip" is instructive. This report clearly indicates that the plaintiff suffers the disease in both hips. 32Dr Dixon's reports were relied upon by both parties. The defendant relies upon the reports of 21 February, 18 March, 20 April and 30 August 2006, all of which refer to the plaintiff's surgery for hip replacement. These are essentially of historical interest, in that they outline the degree of pain and difficulty in movement that the plaintiff is having, but say nothing about the plaintiff's right hip. 33Counsel for the defendant particularly referred me to the following reports of 2 June 2011 and 24 April 2012. In the first of these, Dr Dixon states: "He is now five years post hip resurfacing procedure. He is doing extremely well with regard to this and truly has no perception of even having a joint replacement in situ. He is aware that he is heading towards right hip replacement surgery. He came in just as a routine follow up but also because there has been a recent programme about metal on metal hip replacement. I have talked to him about this. His hip that had been utilized is not one that has been recalled nor has it any history of having any problems in that he has no pain and no functional limitations." 34In the report dated 27 April 2012, Dr Dixon stated: "I reviewed Michael Phillips today. He is at the stage where he wants to proceed with right hip surgery. His left hip resurfacing has done extremely well and he is now approximately six years post surgery. He has got absolutely no problems with it whatsoever. He is aiming to have this approved through an injury on duty application and we would need to seek approval for this." 35Counsel for the defendant submitted that the glowing terms used by Dr Dixon, five and six years after the operation, indicate that the plaintiff must have made an immediate recovery after his 2006 surgery, which would mean that his left leg was completely recovered within a matter of a few months of his March 2006 surgery, so there could have been no pressure on the right hip as a result. 36Leaving aside the degree of assistance that glowing reports of the success of an operation five or six years later may have in relation to an indication of the plaintiff's condition five or six years beforehand, Dr Dixon's report of 30 August 2006 gives a better contemporaneous view of the length of time that the plaintiff was in pain, and his condition as at August 2006. He describes the incident where the plaintiff tackled an offender and states that: "Since this time he has progressively had increasing pain in his left hip. He now does desk work still with the Police Force". He noted that the plaintiff's left hip osteoarthritis had resulted "in continual pain, and abnormal gait pattern and significant stiffness within the left hip". He had required regular medication, could only walk for approximately 15 minutes or 500 metres without stopping, had difficulty climbing stairs without use of a handrail and difficulty putting on his shoes and socks. 37Dr Dixon went on to note that the plaintiff's delayed development of these symptoms was "consistent with Post Traumatic Osteoarthritis and the interval between injury and symptoms can obviously be delayed". In particular, he noted: "At his age, with no definitive family history of osteoarthritis, his condition could be explained by his reported injury." 38In his report of 23 May 2012, Dr Dixon described the plaintiff's recovery following the first hip replacement as "unremarkable" and noted that when he next saw the plaintiff in 2011 he was: "... doing extremely well with regard to his left hip and he reported that he really had no perception that there was an artificial joint in place. He was aware at the time that he was heading towards right hip replacement surgery or resurfacing. At this stage, he was having some pain in the right hip but was not ready to proceed with further intervention." 39The plaintiff said he had no recollection of making such a statement to Dr Dixon. His evidence was that although his left hip was much better after the surgery, he still occasionally suffered from pain, and it was not the case that he forgot he had had a hip replacement at all. 40I do not propose to place any particular weight upon reports by a treating doctor of successful surgery more than six years after the event. In practical terms, Dr Dixon's contemporaneous report of August 2006 indicates the nature and extent of the plaintiff's disabilities following the surgery. 41Dr Dixon sets out the following conclusions: "2. Mr Phillips' condition is bilaterally [sic] hip osteoarthritis of which his left hip has already bee [sic] operated on and the right hip is due for hip surgery, namely joint replacement surgery. 3. Mr Phillips does report a specific work related injury on 3 July 1989 but also attributes the need to carrying a 13kg video camera for work as being a contributing fact of both of his hips being symptomatic. 4. His injury in July 1989 would have the potential of resulting in trauma to both of his hips. I don't have the definitive information about the injury beyond what he has told me but there would be high probability that the work related injury would be a contributing factor. 5. I have no specific knowledge of any non-work related incidents or hobbies that would necessarily aggravate his condition. 6. It is hard to give a definite percentage of contribution to determining the cause of osteoarthritis. For someone of a young age, it would be abnormal to have this amount of osteoarthritis and therefore it would be in keeping with having a history of a traumatic episode rather than just general wear and tear of a joint of someone of his age without any genetic predisposition." [Emphasis added]. 42Dr Dixon's reports demonstrate that the plaintiff's right hip problems were visible on X-ray in 2000, whether they were symptomatic or not, and also that his injury in July 1989 "would have the potential of resulting in trauma to both of his hips". In addition, there would be exacerbation caused by carrying a 13kg video camera, which would be "a contributing factor to both of his hips being symptomatic". 43As the treating doctor who performed the surgery on the plaintiff, Dr Dixon's opinion as to the nature and extent of the condition is an opinion of considerable weight. Dr Dixon states that the 1989 injury resulted in trauma to both hips, not just the hip for which the plaintiff had surgery in 2006, and for which the defendant has accepted liability. 44It is unclear whether the medico legal experts retained by the defendant (or for that matter the plaintiff) have had the benefit of considering these opinions when determining whether the plaintiff's 1989 accident injured one or both hips. Although Dr Dixon states that he does not have information other than that provided by the plaintiff in forming this opinion, the same is the case for each of the other doctors expressing opinions, whether medico legal or otherwise, in that there is no objective or independent evidence beyond the plaintiff's description of the circumstances of his accident. 45The defendant's failure to answer these conclusions in the report from Dr Dixon, which forms part of Exhibit B, is a gap in the defendant's case, and not in the case of the plaintiff. Dr O'Keefe's Report of 15 May 2006 46Dr O'Keefe was in no doubt as to the relationship between the "original serious injury" and the development of a condition which was "certainly unusual in a man this young" in circumstances where there were no family related issues or family history of premature arthritis. The relevant portions of his report are as follows: "IN ANSWER TO YOUR SPECIFIC QUESTIONS: 1. The officer's history of the onset of symptoms and their cause. Sergeant Phillips' history and onset of symptoms are as above. I believe these are due to the original serious injury. He has developed central osteoarthritis of his hip which was certainly unusual in a man this young. 2. Whether the officer has been or is suffering from a left shoulder, right knee and right shoulder injury? If so, your diagnosis. Please state the correct date of injury in your opinion. Sergeant Phillips has no problems with his left shoulder. He did twist his right knee in the incident, but this has recovered without any ongoing problems. His right shoulder injury is an AC joint subluxation which was due to a football injury as a child. 3. Whether, on the available information, the officer's employment in the Police Service is considered by you to be a substantial contributing factor to each condition, taking into account the nature of the work performed, the particular tasks of that work, the duration of the employment, and the officer's preceding state of health and his lifestyle activities outside the workplace. I believe Sergeant Phillips' employment with the New South Wales Police Service is a substantial contributing factor to his left hip condition, but not to any of the other problems mentioned. 4. Whether there are, or have been, other competing factors that have caused or have contributed to his condition, e.g., non work related issues such as family genetics, lifestyle, etc. I do not believe there are any family related issues. There is certainly no family history of premature arthritis etc, and he did have a specific injury when he fell heavily on his left hip in 1989 and over the ensuing 15 years he has developed arthritis, necessitating hip replacement." 47It is important to note, in relation to the "other problems mentioned" in paragraph 3, that these did not include the plaintiff's right hip. This answer relates solely to the right shoulder injury the plaintiff suffered in other unrelated circumstances. He was not asked about the right hip, and his report is therefore of limited assistance to the defendant. Dr Chan 48Dr Chan's notes have been tendered but are difficult to read. He goes on to note a summary of his treatment of the plaintiff from 28 January 2000 as follows: "On review of the previous notes he was seen on 28th January 2000 complaining of left hip pain with sleep disturbances. Examination then showed reduced range of movement especially flexion and external rotation. There was no evidence of back or neurological deficit. He was prescribed Celebrex in symptomatic relief. Examination on 20th January 2006 reviewed similar physical findings with some local tenderness of the left hip. Similar but less prominent findings were detected in the right hip as well. A diagnosis of bilateral hip (left worse than right) osteoarthritis was made. X-ray performed by Southern Radiology on 3rd February 2006 confirmed the diagnosis of advanced OA (osteoarthritis) of the left hip with early OA of the right hip as well. As he had not responded to the conservative treatment, he was referred to see Dr Michael Dixon, orthopaedic surgeon, for further management. Dr Dixon recommended resurfacing procedure of his left hip. This was performed in March 2006." 49Dr Chan concluded that the plaintiff's history and signs were "consistent with work-related injury and prolonged aggravation resulting in OA of the left hip". He went on to note that further procedures for the right hip "may be needed in future" but that Dr Dixon was the more appropriate person to give such an opinion. In those circumstances, Dr Chan's views should be read as being subject to the opinion of Dr Dixon, who is categorical on the issue of both hips suffering trauma from the 1989 incident. Dr Scougall 50Dr Scougall provided three medico legal reports. In his report of 21 November 2011 he states: "PRESENT SYMPTOMS When seen on the day mentioned 21 November 2011 he said he was complaining still of symptoms that he relates to the original injury 3 July 1989 which is 22 years ago. These symptoms are in his left hip and his right hip. He is no longer troubled by symptoms in his left knee or ankle which had been hurt in the original incident but which had settled not long after. As noted he is also still receiving treatment for the non physical side of the clinical picture, not in my field. With respect to his left hip he had activity related pain in that hip on its outer side and in the groin on average every second day. The pain when present lasts for the rest of that day and troubles him that night. The pain that he has in his left hip however is much less than the pain that he had had before the surgery for that hip. The pain in his right hip is in the groin and is present constantly but is not always distracting. The intensity of the pain varies. Aggravations are normally activity related. He will always have aggravation of his right hip pain when he walks. He walks with a limp protecting his right hip. His standing tolerance before he has to change his posture is often only about 10 minutes. His sitting tolerance is about half an hour at which point he gets some relief by changing his posture. He will always have aggravation of his right hip pain first thing in the morning and on resuming activity after sitting during the day. He can manage stairs when going up, one step at a time leading with his left leg. He will use a handrail for support although he is able to manage a few steps without a handrail. Although he can kneel and squat he avoids both of those postures as they aggravate his hip pain and he has difficulty standing again. He has not tried to run for a long time and is confident he would not be able to. The intensity of pain in his right hip varies from moderate to severe. He has severe pain at some time every day in his right hip and it wakes him regularly on most nights. Regarding progress his right hip symptoms are becoming increasingly painful. His left hip symptoms have stabilised." 51Dr Scougall opines: "3. Is one or more of the medical conditions referred to in your answer to Question 2 causing or contributing to our client's infirmity? If so, please identify which ones and explain how. Each of the medical conditions referred to in my answer to Question 2 causes his infirmity. The reasons for his infirmity are the significant impairments of function that he has due to a need to protect his left hip associated with pain and the severe pain that he has in his right hip. Those impairments of function are outlined in this report in the history, his present symptoms and the physical findings. The extent of his very significant stated impairments of function is consistent with the objective physical findings and the special investigations. Even simple activities of daily living are significantly impaired as outlined in this report. 4. Please identify the injury or illness that caused each of the medical conditions identified in your answer to Question 3. The injury at work on 3 July 1989 is a substantial contributing factor for the development of osteoarthritic changes in his left hip and his subsequent need to have a resurfacing replacement procedure. I believe the findings indicate that his need to protect his left hip is a substantial contributing factor for the development of osteoarthritic changes in his opposite right hip. 5. What is your prognosis for each medical condition identified in your answer to question 3? With respect to his left hip the implant components in his left hip replacement will probably eventually loosen and cause increasing pain and impairments of function for which he will need to consider having a revision total hip replacement procedure. With respect to his right hip he is a candidate for a hip replacement procedure in the future." 52In Dr Scougall's report of 11 November 2013, he states: "You requested I supply a supplementary report providing my opinion as to the cause of Mr Phillips' right hip infirmity. In my report 21 November 2011, page 6, I state: "I believe the findings indicate that his need to protect his left hip is a substantial contributing factor for the development of osteoarthritic changes in his opposite right hip". With respect to the cause for the osteoarthritic changes in his right hip I confirm my opinion as given in my previous report. In support of that opinion I note that the impairment in his left hip was based on the original frank injury on 3 July 1989 and on the subsequent nature and conditions of his work. Leading up to the original frank injury to his left hip load bearing on his hips would have been shared equally. As from the date of that frank injury on 3 July 1989, and increasingly over the following years as pain in his left hip became severe, he would have had to protect his left hip as much as he was able. His need to protect his left hip would inevitably have increased load bearing on his right hip. The nature and conditions of his work over the years contributed to aggravation of his left hip symptoms such that pain became severe and he had required a left total hip replacement in March 2006. The development of osteoarthritic changes in his right hip is I believe also causally related to the same nature and conditions of his work that had aggravated the osteoarthritic changes in his left hip following the frank injury on 3 July 1989." 53In a third report dated 17 February 2014, Dr Scougall comments on a report from Dr Gray which was not served. No objection was taken to Dr Scougall's report in answer being tendered. It helpfully outlines a number of matters about which Dr Bodel was also cross-examined. Dr Scougall states: "Further to my reply to your letter 31 October 2013 I note that I had omitted to comment on the opinion of Dr Gray with respect to the osteoarthritic changes that Mr Phillips had developed in his right hip. Dr Gray states "His condition is essentially constitutional degenerative change in the right hip of a long standing nature". I agree that Mr Phillips had a constitutional tendency to develop osteoarthritis in his right hip. Dr Gray also states "In my opinion, the condition in both left and right hip would have happened anyway at about the same time and at the same stage, had he not worked as a police officer". And then he adds "However in my assessment there has probably been some acceleration for requirement of left hip replacement by the work injury in 1989. I would not otherwise consider his work to be materially implicated in causing bilateral hip arthritis apart from the current exacerbation of symptoms from the underlying arthritis". I believe that the "acceleration for requirement of left hip replacement by the work injury in 1989" is causally related to that injury and to the nature and conditions of Mr Phillips is work [sic] as a police officer for 25 years. I also believe that acceleration of the development of osteoarthritic changes in his right hip is causally related to his need to protect his injured left hip, due to the amount pain [sic] that he was having in that hip, and to the nature and conditions of his work over the years. I do not agree that the condition in each hip would have happened anyway at about the same time had he not worked as a police officer. Mr Phillips had worked as a police officer employed by New South Wales Police from 1986 to 2011 which is for 25 years and many of those years were in full operational duties. I confirm my opinion as given in paragraph one on page 6 of my report 21 November 2011 that "I believe the findings indicate that his need to protect his left hip is a substantial contributing factor for the development of osteoarthritic changes in his opposite right hip." 54This report supports both the plaintiff's first and alternate submissions. Dr Kalnins 55The defendant relied upon two reports of Dr Kalnins dated 23 April 2012 and 20 December 2013. I shall deal first with the report of 23 April 2012. 56Dr Kalnins was asked how each medical condition (namely, the right and the left hip) was caused or contributed to by the plaintiff's employment, as follows: "... (b) Describe how each medical condition is causing or contributing to the applicant's incapacity to exercise the functions of a police officer. As noted in the previous answers, Mr Phillips has limited walking, sitting and standing capacity and there is no way that he would be able to function as a serving police officer with these symptoms. Please identify the injury or illness that caused each of the medical conditions identified in your answer to question 3. (a) A description of the injury or illness that caused or contributed to each medical condition of the applicant. I believe that Mr Phillips' fall on duty on 3 July 1989 has contributed to his left hip osteoarthritis and the necessity for a left hip replacement. With regard to the right hip, there is no history of injury. (b) The approximately [sic] date on which you think the injury or disease might have occurred. As noted above, it was 3 July 1999 [sic]. Whether the injury has been exacerbated and, if so, when such exacerbation may have occurred. I believe there has been exacerbation during the course of Mr Phillips' normal duties working as a police officer, which did involve prolonged periods on his feet and carrying objects such as video cameras and basic police equipment. In what way and to what extent did the injury cause or contribute to the medical condition? The trauma of the fall contributed to the medical condition." 57Dr Kalnins' report is, at best, ambiguous. He states that there is no history of injury for the right hip, but he considers that the exacerbation during the course of the plaintiff's normal duties, which involved prolonged periods on his feet carrying heavy items, amounted to exacerbation incurred during the course of the plaintiff's normal duties as a police officer. It would appear that he is speaking about both hips in this regard. 58Whether he intended to do so is clarified by Dr Kalnins' apparent resiling from this view in relation to the left hip, in his subsequent report of 20 December 2013 as follows: "1. Whether an injury has been sustained to the plaintiff's right hip as a result of policing duty? No. I note that, in 2006, Mr Phillips had minor changes of arthritis in his right hip. His right hip was never injured. Prior to this, while working as an instructor, skiing and working on his 5-acre property, he would have had more stress applied to both hips than in his policing duties in the video section. 2. Whether the certified infirmity (which is now a binding diagnosis on the parties) can be said to be duty related or due to alternate factors, such as age and natural degeneration. I believe Mr Phillips has never injured his right hip and he actually had pre-existing degenerate changes noted in the right hip at the time of advanced osteoarthritis in his left hip. I do not believe his arthritis is related to his age, as he is quite young to develop arthritis, and I would not call it a natural degeneration either. I note that, in the x-rays performed on 3 February 2006, "There is advanced osteoarthritis involving the left hip with significant joint space narrowing, juxta-articular sorosis and marginal osteophytosis. Early osteoarthritis is also present in the superior compartment of the right hip. There is no convincing evidence of avascular necrosis on either side. I understand that Mr Phillips did seek attention for his left hip symptoms in 2001, but there is no report of x-rays taken at that time and certainly no report of his right hip x-rays. 3. Doctors' [sic] opinion on the plaintiff's treating medical evidence in terms of causation. I note that one of the medical reports on Mr Phillips states that Mr Phillips had to carry a 13kg video camera for work and that this contributed to both of his hips being symptomatic. I do not believe that a 13kg video camera being carried would contribute as much to the development and aggravation of his arthritis as working on his 5-acre property and working as a fitness instructor from 1990 to 1998. The reason for given [sic] in another report is, "The reasons for his infirmity are the significant impairments of function that he has due to need to protect his left hip associated with pain and the severe pain that he has in his right hip". I understand that he had his left hip replaced in 2006 and, at this stage, he would not have to protect his left hip whatsoever, as he has had a good response to the left hip replacement." 59Dr Kalnins went on to note that he had "no idea as to what was the trauma that occurred to his left hip" in that it was not fractured or dislocated and he was back at work within a few days. He went on to add that: "Once a patient develops osteoarthritis in one hip, it does not necessarily mean that he develops osteoarthritis in the other hip in trying to protect himself doing normal daily activities." 60He concludes with a reference to Dr O'Keefe's report, describing the plaintiff's injury as an "unusual type of arthritis" but without explaining how it is that this impacts upon his opinion. 61Dr Kalnins may have been misled, as I initially was, by the reference to the plaintiff working as a fitness instructor between 1990 and 1998. The plaintiff's description in the witness box, which I note was similar to that given in his Police statement, was that he gave advice and demonstrated equipment, not that he engaged in heavy physical activity. 62Similarly, his skiing was an activity of a limited nature which he ceased some time in the early 1990s and he had stopped carrying out major work on his 5 acre property at about the time that he consulted Dr Dixon in 2000. It was at this stage that he was reporting a slight limp and being unable to run. He continued to carry a heavy camera and batteries for another three years after this period. 63In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at paragraph [69] Heydon JA refers to the statement by Lawton LJ in R v Turner (1975) QB 834 at 840, that if an expert has been "misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless". 64The fitness instruction work that the plaintiff carried out involved very little physical activity and consisted of diet and exercise charts, demonstrating gym equipment and the like. The other activities referred to are activities that the plaintiff had not engaged in for some years. 65In addition, Dr Kalnins says he has "no idea as to what was the trauma that occurred to his left hip". However, Dr Dixon, who operated on both hips, has opined that both hips could well have been damaged in the course of the incident described by the plaintiff. Dr Kalnins should have addressed these opinions in his report. As the treating surgeon, Dr Dixon's views as to the 1989 incident causing the trauma to both hips is not a view to be ignored. Dr Kalnins must have been provided with these reports, and his failure to answer them is unexplained. 66Accordingly, the value of Dr Kalnins' report is limited. Report of Dr Smith 67Dr Smith's report of 13 February 2014 states: "His bilateral hip arthritis is a constitutional malady. One inherits osteoarthritis of the hips." 68This was not the question which Dr Smith was asked. Dr Smith's finding that the history of injury to the left hip would not have caused his hip arthritis is not a finding upon which any reliance may be based, as the defendant has already accepted that there is a connection in relation to one of those hips: see Murray v Commissioner of Police (2004) 2 DDCR 31. Dr Smith was being asked about his osteoarthritis in the other hip. 69Secondly, the specific issue which Dr Smith needed to address was whether this inherited condition had been not only contracted in circumstances where his employment was a substantial contributing factor, but alternatively whether the constitutional condition had been aggravated, accelerated, exacerbated or caused to deteriorate by reason of a traumatic injury and/or subsequent aggravation to both hips caused by carrying heavy equipment and wearing a heavy belt containing 1kg batteries. This would require an examination of the very young age at which the plaintiff contracted this condition in circumstances where there was no family history, as well as the exacerbating factors discussed in other reports, is to provide a bare ipse dixit in circumstances where such an opinion can carry no weight (Makita (Australia) Pty Ltd v Sprowles, supra, at [86]). 70Rather than deal with these issues, Dr Smith has gone on to set out an account of "a study published out of the United States", "papers out of China, Japan and Korea", a paper concerning knee arthritis in the Pacific Islands, a reference to an article by Wigley et al in 1987 about the Tokelau Islands and "papers in the literature" suggesting that "gene locations" may be likely to be related to the finding of arthritic changes in certain racial groups. While counsel for the defendant said he would not rely upon this portion of Dr Smith's report, I consider the fact that it was included tells against the reliability of his general opinions generally, for the reasons explained in Makita (Australia) v Sprowles, supra, at [90], [95] and [96]-[97]. 71Rather than describing this research in such generalised and unhelpful terms, Dr Smith should have answered the opinion expressed by the plaintiff's treating surgeon, Dr Dixon, and addressed himself to the issues in the legislation. His report is of no assistance. Dr Bodel 72Dr Bodel provided reports dated 24 July 2012 and 29 August 2013 as well as being cross-examined. He described the plaintiff as suffering, as a result of the original injury, post-traumatic osteoarthritis in the left hip and "a consequential development of post traumatic osteoarthritis in the right hip" (report of 29 August 2013, page 5). 73Dr Bodel frankly acknowledged that osteoarthritis is constitutional in nature, but explained that trauma plays a role, and that the plaintiff had post-traumatic development in both hips. He considered the plaintiff's development of this condition at what he called a "very early age" resulted following the traumatic events of 1989, in that he "never completely resolved and he steadily deteriorated over time" (report of 29 August 2013, page 3). He particularly noted Dr Dixon's letter of 30 August 2006 referring to the abnormal gait pattern and has carefully considered the reports of both Dr Scougall and Dr Kalnins. 74I note his conclusion that Dr Kalnins observes the plaintiff has osteoarthritic changes in both hips and that Dr Scougall's letter states that the hip pathology in both hips "has arisen as a consequence of the original injury in the left hip". 75He concluded, at page 6 of this report: "This gentleman's injury to the left hip has arisen as a consequence of the accident on 3 July 1989 ... The injury to the right hip in my view is a consequential injury and also totals a 35% permanent loss of efficient use of the right leg at or above the knee." 76He went on to state that there was evidence of pre-existing pathology in both hips and that he estimated one-seventh of the total in the left hip was due to constitutional factors and a similar one-seventh in the right hip was due to pre-existing pathology in the right hip. He concluded: "The injury to the right hip is an aggravation, acceleration, exacerbation and deterioration of the disease process of gradual onset caused by the nature and conditions of work after the injury to the left hip." 77A further report of 3 September 2013 allowed for the "constitutional factors". 78In cross-examination, Dr Bodel repeated that, while constitutional factors were significant, the frank injury 25 years beforehand was a "significant" contributory factor. The nature and condition of the plaintiff's work had contributed, although he must have had a pre-disposition to develop osteoarthritis in both hips for it to have occurred at this early age. The injury to the left hip was significant enough to require a very early hip replacement, which indicated a significant ongoing lack of mobility, not simply in the months following the hip replacement, but also in what Dr Bodel called the "gap of 14 years" between the plaintiff's hip replacement in 2006 and the date of the traumatic injury (1989). 79Dr Bodel stated that the plaintiff was limping and in pain in 2000, and the fact that he was sitting at a desk in a Police Academy from 2003 could not alter or reverse the process; the damage had already been done. No matter how quickly the plaintiff recovered from his hip replacement, it was the previous work history of the plaintiff, including the period following the traumatic injury, the decade he spent carrying heavy video equipment and the limp he developed some time prior to 2000, which placed extra weight on his right hip which had resulted in this condition. 80While Dr Bodel conceded in cross-examination, properly in my view, that constitutional factors were important, he did not resile from the opinions he expressed in his report or agree that these were overstated, misleading or inaccurate. Conclusions concerning Medical Evidence 81The plaintiff's case is that his injuries occurred while on duty shortly before and during his work in the video operations unit between 1993 and 2003 which exacerbated his pre-existing condition. The alternative argument is that his right hip condition was caused by the left hip condition having worsened over this period because the plaintiff favours his right hip, which led to the replacement of both hips. In relation to this alternative argument, the plaintiff does not need to prove substantial contributing factors, but merely prove causation. 82The evidence establishes that the plaintiff was slightly limping from the time of the 1989 incident, although he appears to have told Dr O'Keefe (Exhibit A, p 2) that the pain in his left groin started about three years after 1989, which would mean that it may have pre-dated, to a small degree, the start of his work in the video operations unit. The evidence of his increasing problems can be seen from his first referral to Dr McGuigan in 1987 (although the evidence for this consists of Dr McGuigan's notes, it is clear that Dr McGuigan was alerted to the possibility of osteoarthritis prior to 23 March 2000 visit). The 23 March 2000 visit and subsequent x-rays of both hips reveals the pathology, worse on the right side, but nevertheless present in both hips (see the report of Dr Chan, Exhibit A, p 9). The onerous physical requirements of the plaintiff's duties, which involved carrying heavy weights on his shoulder and further weights in the form of batteries around his hips, over many hours, in my view resulted in his favouring the less painful hip. 83The challenge to this evidence is that the medical evidence is "not clear" and "falls short" of establishing that there was either causation or exacerbation, as opposed to a submission that I should prefer the reports of the defendant over the reports of the plaintiff. The unsatisfactory nature of the defendant's medical evidence has been set out above. 84In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 458-459 Kirby P noted the onus of proof was borne by the applicant, in circumstances where the claim was solely defended on the basis of attacks on the applicant's medical evidence, as opposed to the tender of medical reports by the respondent. In the present case, the defendant has tendered medical evidence, but the flaws in that evidence pointed out by Mr Ower in his submissions are significant. While the defendant in these proceedings is in a far stronger position than the respondent in Kooragang Cement Pty Ltd v Bates, the principal difficulty is that none of the medical practitioners retained for the defendant confront the statement made by Dr Dixon that for the plaintiff to develop this condition at such a young age, with no definitive family history of osteoarthritis "his condition could be explained by his reported injury". He went on to diagnose the condition as being bilateral osteoarthritis and to state that he was unaware of any non-work related incidents that would aggravate that condition. In other words, while osteoarthritis is constitutional in nature (in the sense that it is inherited), and some allowance must be made for its constitutional nature (for the reasons explained by Dr Bodel), the plaintiff developed bilateral hip osteoarthritis in circumstances which relate to his 1989 injury. On this basis, what Mr Ower submitted to me was "common sense" causation links the plaintiff's injury directly to trauma to both hips in the first accident. If it occurred as a result of that accident, then the plaintiff's work was the substantial contributing factor, given the plaintiff's age and lack of family history. 85The plaintiff would be entitled to compensation under this first limb. Alternatively, he would be entitled to claim that the consequential injury resulting from favouring his less injured hip over a 10-year period while the other hip was more painful. It is not necessary to establish that it is a substantial contributing factor, merely that it is causative, for the reasons explained by Kirby P in Kooragang Cement Pty Ltd v Bates, supra, at 463G as follows: "The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase "results from", is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death"results from" a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death "results from" the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death "resulted from" the work injury which is impugned." 86It reaching this conclusion, I have given greater weight to the opinion of Dr Dixon as the treating doctor, as well as because his reports have so clearly exposed their reasoning. 87The appeal should be allowed and orders made as sought by the plaintiff, including an order for costs. Orders 88I make the following orders: (1)The decision of the Defendant's Delegate dated 2 August 2012 pursuant to section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 ("the Act") that the infirmity of 'osteoarthritis of the right hip', as specified in the Certificate of the Police Superannuation Advisory Committee dated 28 June 2012, was not caused by the Plaintiff being hurt on duty, be set aside, pursuant to section 21 of the Act. (2)The suffering by the Plaintiff of the infirmity of 'osteoarthritis of the right hip', as specified in the Certificate of the Police Superannuation Advisory Committee dated 28 June 2012 was caused by the Plaintiff being hurt on duty on 29 March 2011 (notional). (3)The decision of the Defendant's Delegate dated 29 November 2012 pursuant to section 12D(4)(a) of the Act, that the 'right hip injury' was not caused by the Plaintiff being hurt on duty be set aside, pursuant to section 21 of the Act. (4)The suffering by the Plaintiff of the 'right hip injury' was caused by the Plaintiff being hurt on duty. (5)The Defendant pay the Plaintiff's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2014