Alexander v ISS Marketing Pty Ltd
[2014] VCC 948
•12 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-00389
| GINETTE NIKKY ALEXANDER | Plaintiff |
| v | |
| ISS MARKETING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March, 31 March, 3 April 2014 and 30 May 2014 | |
DATE OF JUDGMENT: | 12 June 2014 | |
CASE MAY BE CITED AS: | Alexander v ISS Marketing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 948 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – Application for leave to commence a proceeding in respect of pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB(4) and (16)(b)
Cases cited: Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B J McCullagh | LFS Legal |
| For the Defendant | Ms B Myers | Hall & Wilcox |
1 In this proceeding, the plaintiff seeks to leave to commence a proceeding claiming general damages to compensate her for the pain and suffering consequences associated with an injury sustained in the course of her employment with the defendant on 17 July 2007.
2 On that day, the plaintiff was involved in a go-kart accident in which she suffered a number of fractures to the joints in each of her feet.
3 The relevant impairment of body function in this application is that of the feet and for the purposes of assessing the consequences to the plaintiff of her injuries, I am satisfied that the plaintiff’s feet are appropriately categorised as involving a single body function. No issue is taken as to this point on behalf of the defendant.
4 In the proceeding, the plaintiff relies upon a number of affidavits sworn by her. In addition, the plaintiff attended the proceeding and gave viva voce evidence and was cross-examined. Otherwise the parties rely on medical reports and like records tendered by them.
The affidavit evidence
5 The plaintiff was born in 1982 and is currently aged thirty two.
6 In her first affidavit, the plaintiff deposes that following the injuries occasioned in the July 2007 incident:
· After recovering from the surgery required to both her feet, her further recovery was undertaken with the assistance of massage therapy and physiotherapy.
· She had been advised that she would continue to require ongoing treatment of this nature, the frequency of which depended upon the level of symptoms she experienced in her feet and that generally treatment of this type provided her only with temporary relief from the aches and pains which she experienced in her feet.
· She continued to suffer, at a minimum, a constant ache in each foot which never abated but increased with activities such as standing on her feet for too long, walking on uneven surfaces or wearing shoes that have slightly elevated heels.
· The symptoms in her feet were exacerbated by dancing, engaging in sporting activities such as tennis, snowboarding, skiing or running.
· Her level of pain impacted upon her ability to sleep and socialise.
· She woke with an ache in at least one foot each morning and sometimes in both feet.
· Her work required her to stand on her feet for significant parts of the day and that this aggravated her symptoms.
· She used to enjoy running and snowboarding but that she was now unable to play most sports which she took part in prior to the accident, including touch rugby, soccer and snowboarding, which sports she had engaged in prior to her accident on a weekly basis.
· Prior to the accident, she ran between seven and ten kilometres several times a week and that she loved running.
· She was, before the accident, a keen snowboarder and that she practiced that sport at an advanced level possessing an ambition to become a professional snowboard instructor. She said that the effect of the accident upon her ability to snowboard had been such that she could participate now only in snowboarding for short periods of time and, accordingly, that she had been unable to undertake the necessary training to become an instructor.
· In her work environment, many female staff –
“… wear at least a small heeled shoe. This I cannot do now. I used to love wearing heels. Now I find that wearing even the most modest of heels causes me significant pain in my feet. I cannot and do not wear heels to work. Instead, I wear flat shoes and as a consequence my physical appearance is different.”
· She was unable to work in the hospitality industry due to pain in her feet which limited her employment prospects, and her social life had been adversely affected by reason of the fact that even standing in one position for –
“… 2 minutes my feet become uncomfortable and begin to become painful. Once painful, it can take about 15 minutes for the pain to start to abate. I cannot go dancing with my friends as before, which I used to do quite often.”
· She often had difficulty sleeping after a day that involved her walking or standing because of the pain in her feet, and that she sometimes woke in the middle of the night because of foot pain.
7 In her second affidavit, the plaintiff deposed that:
· Since 2008 she had undergone treatment on average approximately once every couple of months.
· Generally, she experienced an ache in each of her feet each day, the symptoms of which depended upon the amount of walking or standing which she did but that an ache could turn into a sharp pain depending on the activity she undertook, for example walking on uneven ground.
· In or about September 2012, she was prescribed bilateral foot orthotics in the form of insoles, which she wore in her shoes every day for support, pain relief and in order to make walking more comfortable for her.
· Her symptoms consisted of at least an ache but generally pain in each foot towards the end of each day. She said that she generally woke with stiffness in her feet which resolved with movement but that her symptoms were exacerbated as the day progressed. The plaintiff deposed to the fact that it was her belief that her feet were getting worse because her pain materialised and worsened with less effort.
8 In her third affidavit, the plaintiff said that:
· She had been prescribed Mobic, an anti-inflammatory.
· That she had developed shooting pains in her feet which mainly occurred in the evening.
· That she managed her condition with physiotherapy treatment, which occurred approximately once every six weeks, and by undertaking exercises recommended by her physiotherapist.
The Plaintiff’s viva voce evidence
9 In the course of her evidence-in-chief, the plaintiff described the prescription by her general practitioner of Mobic in that it:
A:“… would help with, um, the pain in my feet and also in my back as well.
Q:Right. What’s wrong with your back?---
A:I have a scoliosis.”[1]
[1]Transcript (“T”) 14, L17-20
10 In cross-examination, it was put to the plaintiff that she had told Mr Brearley an orthopaedic surgeon, who had examined her, that she was a snowboard instructor.
11 In response, the plaintiff said that she had –
“… never been a snowboard – a paid snowboard instructor. I may have instructed friends, but that would be about it.”[2]
[2]T16, L24-26
12 When asked to elaborate, the plaintiff initially stated that she had instructed friends in snowboarding; however, when she was asked how often she instructed her friends in snowboarding, she responded:
“I wasn’t instructing them, I was showing them moves. So I wasn’t necessarily an instructor.”[3]
[3]T17, L18-20
13 My impression of the plaintiff’s evidence on this issue was that she was being slightly evasive.
14 The plaintiff readily admitted that:
· Whilst living in Canada she had travelled extensively both in Canada and around Europe.
· She had a group of friends with whom she socialised regularly.
15 The plaintiff took issue with the fact that she had told Dr Hooper in February 2013 that her left foot did not bother her and that she did not have pain every day, explaining that she always experienced an ache or pain in her feet but that it was the level of ache or pain which differed.
16 It was put to the plaintiff that she had told Dr Hooper that her feet were sore or tired occasionally, about which the plaintiff disagreed.
17 The plaintiff was questioned as to the prescription of her anti-inflammatory medication. It was put to her that the medication was prescribed for her back problem, which the plaintiff denied, asserting “I am suggesting it’s for both”. She explained that she consulted her general practitioner seeking medication for her back and that her general practitioner recommended that she employ Mobic, which would also be beneficial for her feet.
18 The plaintiff agreed that she had a severe spinal condition which interfered with her activities of daily living and her sleep; that she suffered from back spasms, which she had described to her general practitioner were getting progressively worse, and that on 22 February 2013, her general practitioner had referred her to an orthopaedic clinic for her back problems.
19 It was put to the plaintiff that the reason for the prescription of Mobic was for her back; however, the plaintiff maintained that the prescription was “for both my feet and back”.
20 Having been taken to the medical records of the plaintiff’s general practitioner which record only a complaint by the plaintiff as to the presence of spinal pain at the time at which Mobic was prescribed for her use; I am not satisfied that the plaintiff’s symptoms of foot pain were such that she was motivated to seek treatment in the form of a prescription of pain relief for those symptoms. Rather, I am satisfied that the primary motivation for the plaintiff’s attendance upon her general practitioner and the prescription of Mobic related to her back pain.
21 Whilst I do not discount the fact that there may have been a discussion between the plaintiff and her general practitioner as to the effect with which the prescription of Mobic would have had upon the symptoms in her feet, I nevertheless find that the statement by the plaintiff in her affidavit in which she nominated the condition in her feet as being the primary and sole reason for the prescription of Mobic to be inaccurate.
22 The plaintiff said that since sustaining her injury her ability to snowboard had been reduced from her practice before her injury of snowboarding all day at a sophisticated and competent level to being able to snowboard only for a few hours and then having to rest.
23 I accept this evidence given by the plaintiff.
24 The plaintiff agreed that she currently played touch rugby twice a week on a Wednesday and a Thursday evening at Princes Park in two different leagues, and that she ran for exercise occasionally, on which occasions she ran “a couple of kilometres a week”.
25 When the plaintiff was questioned as to when she had discontinued playing soccer, she said that she had not played soccer since January or February 2012. She accepted that she had played throughout the 2011 year over the winter season.
26 It was put to the plaintiff that this was inconsistent with the affidavit which she swore in January 2012 in which she asserted she no longer played soccer, the plaintiff explained:
A:“I wasn’t on the field for the time that I used to be on the field.
Q:But the impression in the affidavit is - isn’t it, that you wanted to give - is that you weren’t playing soccer?---
A:I never said I was never playing soccer.
Q:Now you’ve dislocated both knees?---
A:Yes.
Q:Was that playing soccer?---
A:Yes.
Q:And the left knee has been dislocated twice?---
A:Yes.
Q:When did you dislocate the left knee?---
A:Playing soccer. It was around 1998, prior---
Q:So in the 1990s?---
A:Yeah.
Q:And what about the right knee?---
A:The right knee - I dislocated that – February 2012.
Q:So you were still playing soccer? When you swore this affidavit in January 2012, you were still playing soccer?---
A:I played – I played on a ---
Q:Weekly basis?---
A:Not for the full game, no.
Q:But on a weekly basis?---
A:I was in a team, and I would turn up, and I would play to the best of my ability. And I would sub off for a lot of the game.”[4]
[4]T27, L13 – T28, L1
27 I found the plaintiff’s affidavit evidence upon this issue, namely that she had given up playing soccer as at January 2012, to be marginally inaccurate and her explanation for that inaccuracy to be evasive.
28 The plaintiff was questioned as to whether she wore heels, and explained that she felt that she needed to wear heels when she had an important meeting at work but that in the last six months she had only worn high heels on a couple of occasions.
29 She said that she kept a couple of pairs of shoes in her drawer at work, that sometimes she would arrive at work in heels but that she would generally swap the heels to more comfortable shoes during the day.
30 She accepted that she would wear high-heeled shoes with two or three-inch heels occasionally but wore them for periods as short as possible, that she would wear them for meetings and take them off and put comfortable shoes on.
31 She said that she had a boot with a one-inch heel which she wore quite often, in which she fitted her orthotics, and that she would wear those boots to work a couple of times a week but that she always kept comfortable shoes in her drawer and could employ them if needed. The plaintiff was asked:
Q:“So why wear the boots with the heel at all then?---
A:Because I like to feel a bit taller and I like – I like the boots, I feel like that, you know, to be in a professional environment I need to have some kind of boot that makes me look professional. I can’t be wearing my comfortable shoes every day.”[5]
[5]T31, L23-28
32 It was put to the plaintiff that in her affidavit in January 2012 she said that she was unable to wear heels to work. The plaintiff said that she did not find her boots with a heel to be as painful, explaining:
“To work, like, physically getting to work, I choose not to, but when I’m at work and I have a meeting that’s when I wear the heels.”[6]
[6]T33, L10-13
33 The plaintiff said she attended Malvern Physiotherapy between 4 November 2013 and 12 March 2014 and that she had been treated at the Urban Chiropractic Clinic between 26 June 2009 and 19 December 2011 for problems with both her back and her feet.
34 When cross-examined as to this evidence:
· It was put to the plaintiff that whilst in her affidavit evidence she described attending the Urban Chiropractic Centre for treatment for her feet, she had made no mention of also receiving treatment for her back. The plaintiff accepted this position, explaining that she considered the treatment to her feet to be the only treatment relevant at that time.
· The plaintiff was taken to the records completed by her upon her first attendance at the Urban Chiropractic Clinic, which she accepted contained no statement by her that she was attending the clinic for problems with her feet and in which she had described her goal in seeking treatment as being to strengthen her back and neck.
35 Given the failure by the plaintiff to mention any problem with her feet at the time at which she attended for treatment at the Urban Chiropractic Clinic, I am not satisfied that the plaintiff has established that the condition in her feet was a primary reason for her attending that clinic for treatment. Whilst I do not discount the plaintiff’s evidence that she received treatment from the clinic for her feet during the period in which she was a patient at the clinic, I am not satisfied that the plaintiff has established that any problems she was experiencing with her feet at that time were such that they were of sufficient severity to cause her to attend the Urban Chiropractic Clinic for treatment primarily to manage those symptoms.
36 I accept the plaintiff’s evidence that the plaintiff is currently consulting Mr Chris Neason, an exercise physiologist, for treatment of her feet and ankles and in that sense, her symptoms are such that they continue to warrant treatment. Equally however, the medical report of Mr Neason, the content of which I will refer to specifically in due course, makes it clear that it was Mr Neason’s expectation that his treatment would have the effect of reducing the current symptoms associated with plaintiff’s bilateral foot condition.
37 Surveillance evidence was shown which depicted the plaintiff wearing shoes with heels approximately one-and-a-half inches high on the morning upon which she attended a medical examination with Mr Hooper and then went to work.
38 It was put on behalf of the defendant that this surveillance evidence was inconsistent with the plaintiff’s evidence that her condition was such in 2012, when she swore her first affidavit, that she was precluded from wearing shoes of this type, and inconsistent with the plaintiff’s evidence that her symptoms had increased since 2012. I am not satisfied however that the plaintiff’s evidence on this issue was clearly inaccurate, or that the video evidence was telling against the plaintiff in any significant way.
39 For the reasons that I have indicated, I formed the impression that the plaintiff had a tendency towards presenting a number of the consequences associated with the injuries the subject of this application in a light most advantageous to her. Whilst this finding does not lead me to the conclusion that the plaintiff was dishonest, I did form the impression that the plaintiff had a tendency towards overstatement and of being an advocate for her cause when describing the impact of her symptoms upon her life.
40 Whilst this may be understandable given the artificial and intimidating environment of a court room, I am nevertheless satisfied that I should view the plaintiff’s evidence as to the ongoing consequences to her of the condition in her feet:
· With some caution, in that I am satisfied that the plaintiff had a tendency to focus upon that condition, to the exclusion of the condition in her spine, as being the primary influence upon her decision to seek treatment when it was probably not, and that the plaintiff had absolutely no tendency towards understating the effect of the condition of her feet upon her life;[7] and
· With reservation as to her description of her need to employ prescription medication to control the symptoms she suffers in her feet.
[7]The evidence given by the plaintiff as to the reason for her attendance at the Urban Chiropractic Clinic and to have Mobic prescribed for the management of her foot pain being examples of this tendency
The medical evidence
41 Chris Neason, an exercise physiologist, reported that the plaintiff consulted him in November 2013 with bilateral foot pain. He opined that the plaintiff presented at that time with a significant deficit in her gluteal strength and reported that:
“Over the next 4 sessions I will continue to work with Miss Alexander to further develop her strength and mobility with the overall goal of minimising painful symptoms.”
42 Mr Kenneth Myers, a consultant general surgeon, has authored a number of reports upon the plaintiff’s presentation between January 2009 and August 2013. Given my obligation to assess the consequences to the plaintiff of her injuries at the present date, the most recent reports of Mr Myers are those of most relevance.
43 In a report dated March 2013, Mr Myers –
· Recorded, on examination that the movements of the plaintiff’s ankle and hindfoot in her right foot were unrestricted and that her left foot was unable to dorsiflex more than 90 degrees and had lost some 20 degrees of inversion-eversion.
· Maintained the position earlier expressed in his reports that the plaintiff presented with limited movements of the toes and the forefoot; that her condition was stabilised; that he doubted there would be future deterioration in her condition commenting however that secondary arthritis may well develop in the left fifth toe and the right second toe.
44 In a further report dated August 2013, Mr Myers commented upon the report of Mr Jonathan Hooper dated 26 February 2013, in which Mr Hooper considered the plaintiff’s progress to be good but commented that there was reason for persisting symptoms in the right foot, Mr Myers opining:
“Although Mr Hooper is more optimistic as to the future than I am, essentially there is nothing in the future material provided that would alter the opinions expressed in my previous report.”
45 Mr Kenneth Brearley, a general surgeon, examined the plaintiff on 27 November 2013. On that occasion, Mr Brearley obtained a history that the plaintiff was presently playing touch rugby and soccer; that she was able to run but not for long distances; that she returned to snowboarding, instructing for shorter periods than before, and that she avoided dancing and also wearing high-heels where possible.
46 Mr Brearley expressed the opinion that the plaintiff’s injuries:
“… will become very gradually worse in the future with the development of joint problems at the MTP level. This will cause increasing pain and stiffness and could possibly require surgical intervention later.
In the meantime she is able to carry on with her previous sports but she is somewhat limited in their extent now. She is not able to run for long distances now nor can she snowboard for long periods. She has other difficulties also such as an inability to wear high heels.”
47 Mr Brearley agreed with the opinion expressed by Mr Myers that the plaintiff’s injuries “will possibly worsen in the future with the development of degenerative arthritis”. He also opined that the plaintiff may develop problems with her right second toe which may require surgery at some time in the future.
48 In a report dated 17 March 2014, Mr Brearley opined:
“I believe it more likely than not that she will develop degenerative arthritic change in the right foot and particularly at the right second metatarsophalangeal joint which was the subject of dislocation and this would apply probable significant damage to the articular surface of that joint. This would lay the basics for the subsequent development of early degenerative change.
She has also had K-wire fixation of other metatarsal fractures and again the disturbance of the articular surface would probably lead to some early arthritic change.
When this occurs she can expect to have gradually increasing discomfort and pain in the foot and she will require anti-inflammatories and analgesics and possibly physical treatment such as physiotherapy. There would be a significant chance that she will need to progress to further surgery, namely arthrodesis of all joints involved. Fusion would abolish movement and thereby pain and this would make it very difficult for her to be involved in much physical activity. She should be able to continue to work but not in a training or physical role.”
49 Mr Jonathan Hooper, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 26 February 2013. At that time, Mr Hooper:
· Recorded that he had obtained from the plaintiff a history that her feet were still uncomfortable and that they were sore/tight occasionally and that she took no medication; she attended physiotherapy once a week and exercised regularly.
· Expressed the opinion that the plaintiff presented with minor symptoms in both feet, together with early clawing of the second toe on the right. That this latter condition may cause her some trouble in the years to come and may need to be treated surgically.
· Opined that the sequelae of the plaintiff’s injuries had left her with some minor discomfort in her feet which precluded her from doing vigorous activity but that the plaintiff was capable of doing most things that a woman of thirty-one years would otherwise wish to do.
50 Mr Hooper concluded that the plaintiff’s prognosis was good but that if her symptoms in her second toe on the right caused her trouble in the future, she may require surgical management.
51 In a further report dated 26 March 2014, Mr Hooper opined:
“This woman will continue to have minor discomfort in her feet because of her injury. She may require further intervention, if her symptoms continue to bother her, but it is most unlikely she will develop degenerative arthritis in the joints, but the joints would have been transgressed by the K wires to fix the fractures and this may have damaged the articular surface.”
Findings as to the level of Impairment of function associated with the subject injury
52 The clear impression that I gained upon reading the plaintiff’s affidavit evidence was that the effect of her injuries upon her feet were such that:
· She had for some time been unable to play touch rugby and soccer;
· She had difficulty even wearing shoes with the most modest of heels;
· She had been prescribed Mobic, an anti-inflammatory, by reason of the condition of her feet.
53 The plaintiff’s cross-examination however led me to the view that the plaintiff had been inaccurate to some extent as to the period during which she had been able to tolerate playing soccer; whether she had discontinued playing touch rugby; the reason for the fact that she was prescribed Mobic and her ability to tolerate the wearing of shoes with modest heels.
54 I am cognisant of the care which should be taken in relying upon untested medical histories. The histories given by the plaintiff to Mr Hooper and Mr Brearley to which I have previously referred however, are in such stark contrast to the plaintiff’s statement made in her first affidavit that she could tolerate standing only for two minutes before her feet became uncomfortable and that it could take fifteen minutes for the resulting pain to commence to abate, that I find the latter position difficult to accept.
55 I am satisfied that the condition in the plaintiff’s feet is such that it restricts her and will continue to do so in her ability to engage in strenuous physical activity and I accept her evidence that the sport in which she engaged of snowboarding was, for her, a passion and that the ability to engage in that sport has been greatly diminished.
56 I am satisfied that the plaintiff’s ability to wear stylish high-heeled shoes is limited and that this is a factor which concerns her, having regard to my impression of her as a youthful, stylish woman.
57 With respect to the medical opinions which have been expressed as to the plaintiff’s prognosis, insofar as there is some disagreement as to the future course of the plaintiff’s condition, I prefer the opinion expressed on this issue by Mr Hooper who, in my opinion, as an orthopaedic surgeon, is better placed to comment upon the likely outcome of the plaintiff’s condition than Mr Brearley, a general surgeon, and Dr Myers, a vascular surgeon.
58 The medical evidence clearly establishes that the plaintiff has suffered significant initial injuries to each of her feet.
59 Whilst those injuries were clearly capable of causing range of outcomes, given my satisfaction that the plaintiff:
(i) retains the ability to engage in the rigorous running associated with touch rugby;
(ii) retains the ability to engage in jogging over short distances;
(iii) does not require anti-inflammatory medication or prescription-strength medication of any type to control her symptoms; and
(iv) Is able to maintain full-time employment in an occupation of her choosing;
I find the statements of:
· Mr Brearley in November 2013, namely:
“In the meantime she is able to carry on with her previous sports but she is somewhat limited in their extent now. She is unable to run for long distances nor can she snowboard for long periods. She has other difficulties such as an inability to wear high heels.”
· Mr Hooper, who opined that the plaintiff’s injury precluded her from vigorous activity but that the plaintiff remained capable of doing most things that a woman of thirty-one years would otherwise wish to do;
to provide realistic medical assessments of the impact of the plaintiff’s injuries upon her ability to engage in activity general.
Conclusion
60 In undertaking the value judgment required of me in this instance I am charged with assessing the consequences to the plaintiff of the impairment in the function of her feet arising from the 2007 accident, and determining where the facts of this case sit by comparison with other cases in the range of possible impairments or losses.[8]
[8] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
61 I am satisfied, when:
(i) Considering the consequences to the plaintiff both in terms of pain, inconvenience and loss of ability to engage in activity resulting by reason of the impairment to her feet;
(ii) Contrasting against those losses against the plaintiff’s retained abilities; and
(iii) Assessing the plaintiff’s position in the context of the range of impairments which arise in association with injuries of the nature of those suffered by the plaintiff:
that whilst it is appropriate to describe the plaintiff’s impairment as giving rise to consequences which are certainly significant and marked, it is not appropriate to describe those consequences as being more than significant or marked and being at least very considerable.
62 For these reasons I am not satisfied that the plaintiff is entitled to the leave which is sought in this proceeding.
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