Anthony v Spotless Management Services Pty Ltd
[2019] VCC 1886
•20 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-04148
| JANET LEE ANTHONY | Plaintiff |
| v | |
| SPOTLESS MANAGEMENT SERVICES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 July 2019 | |
DATE OF JUDGMENT: | 20 November 2019 | |
CASE MAY BE CITED AS: | Anthony v Spotless Management Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1886 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering – whether injury is organic in nature – whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authority v Nguyen [2016] VSCA 284; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260;
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Hill | Slater and Gordon Ltd |
| For the Defendant | Mr R Stanley | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff while employed by Spotless Management Services Pty Ltd (“the employer”), specifically in the course of a fire drill which took place on 20 March 2012 at the employer’s premises (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to s(a) of the definition of “serious injury” as defined in s134AB(37) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .”
… .”
4 The impairment of body function relied upon is function of the right foot.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s134AB(1) of the Act, the relevant physical or psychological injury must have arisen out of or due to the nature of the plaintiff’s employment with the defendant on or after 20 October 1999.[1] As set out in s134AB(37), the impairment of the body function must be permanent.[2]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[2]Barwon Spinners Pty Ltd & Ors v Podolak (ibid) at paragraph [33]
6 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) and (c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative” test.
8 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[3] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[4]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[5]
[3]Section 134AB(38)(j) of the Act
[4]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[5]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9 Section 134AB(38)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 In determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury.
11 The plaintiff relied upon two affidavits and was cross-examined at length. The plaintiff also relied upon an affidavit from her daughter, Melanie Jane Anthony, sworn on 23 April 2018.
12 In addition, both parties relied upon medical reports and other materials which were contained within court books tendered in evidence.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[6]The Plaintiff’s Court Book (“PCB”) was marked as exhibit P1; the Defendant’s Court Book (“DCB”) was marked as exhibit D1
The Plaintiff’s background
13 The plaintiff was born in October 1953. She is now aged 66. She completed Year 10 at Brunswick High School.[7]
[7]Exhibit (“Ex”) P1, p19
14 After the plaintiff left school, she worked for five years, doing accounts and data entry. She worked for Schweppes doing coding and data entry for four years and after this, worked at Australian Army Airforce Canteen Services for sixteen years as a supervisor. She has also worked at two RSL clubs as a supervisor.[8]
[8]Ex P1, p19
15 She began working at Clean Event in about August 2005 as an accounts payable supervisor. When Clean Event was taken over by Spotless, her role changed and she was made a finance officer.[9]
[9]Ex P1, p19
The accident
16 The plaintiff described the accident in the following way:[10]
“… On 20 March 2012 I was injured during a fire drill at work. We had to evacuate via a fire escape from the third floor down to the carpark on the ground floor. When we exited into the carpark, I took a few steps before I fell in a water trench. I did not see the water trench because there were around 200 people in the carpark.
After the incident I was in a lot of pain in my foot and ankle and I went to the sick bay and iced my right foot before taking off my shoe and elevating my foot. I could not walk on it.
Before the incident … my health was good. I had some cholesterol issues but I do not recall taking medication for this. I have had operations to remove gallstones and to remove my tonsils. I had also been treated with blood pressure medication from time to time. I saw doctors for various minor illnesses and issues but I do not recall ever having any broken bones or significant orthopaedic issues.
The day after the incident I could not put any weight on my right foot so I went to the doctor and had an x-ray. I was told that the x-ray showed that I had fractures in my right foot. I went back to work on crutches in the second week of April with my foot bandaged. It was very difficult for me … .”
[10]Ex P1, p20
17 The plaintiff had a further x-ray on 2 May 2012. This x-ray showed her foot was not healing properly. Her general practitioner, Dr John Tang, referred her to Mr Otis Wang. Mr Wang put the plaintiff in a CAM boot and operated on her foot at the end of August 2012. A screw was inserted and bone graft performed on her foot. This required her to have more time off work.[11]
[11]Ex P1, p20
18 Following the operation, the plaintiff had about ten weeks of intensive physiotherapy. She was in a boot and CAM-walker throughout this time. Her foot was swollen and she was in constant pain.[12]
[12]Ex P1, p21
19 Initially, when the plaintiff went back to work, she was largely working from home. When she returned to work, she was given a new portfolio and moved to a different section of the building. She felt that she was not given support and felt pressured and stressed at work. She had to rest her foot up on a drawer. She was given a new workload, which she said was more than before she was injured. She found that to be a very difficult time.[13]
[13]Ex P1, p21
20 After she went back to work in mid January 2013, the plaintiff was not able to keep up and had more time off. She was getting very stressed and anxious about work. Her doctor referred her to a psychologist and prescribed her Lexapro. She remembers that on Friday, 1 February 2013, she woke up with anxiety that was so severe she felt like vomiting. Thinking about going to work caused her to feel stressed. She went to the doctor that day and was given a medical certificate. She has continued to see her general practitioner, Dr Tang, about these issues.[14]
[14]Ex P1, p21
The Plaintiff’s evidence
21 The plaintiff swore two affidavits, the first on 11 December 2017 and the second on 19 June 2019.
22 In summary, her evidence as to the pain and suffering consequences which she presently experiences, is as follows:
Experience of pain, and treatment
(a)she experiences continuous pain in her right foot and the side of her right ankle;[15]
[15]Ex P1, p28
(b)the extent of her pain depends on how much she tries to do and for how long she is on her feet;[16]
[16]Ex P1, p28
(c)if she walks any great distance beyond about 500 metres, she gets increased pain to the point where she needs to take the weight off and to sit and rest.[17] Before the accident, the plaintiff enjoyed walking and would walk up to four times per week for up to 6 kilometres at a time. She can no longer walk long distances;[18]
[17]Ex P1, p28
[18]Ex P1, p22
(d)if she is standing for any period of time, she starts to get “warning signs”, with increased pain and swelling in her foot. Her right foot starts to feel tight in the shoe. This is when she sits down and rests as she knows she has “pushed it”;[19]
[19]Ex P1, p29
(e)when the pain increases, the plaintiff needs to sit down and elevates her foot. It is not always the same level of pain, but when it is bad it takes over and she cannot think about anything else. She describes herself as suffering from two different types of pain in the right foot and ankle. One is “an ache” that is virtually always present under the arch and the underside of her foot, and the other pain is like a “hot stabbing pain”;[20]
[20]Ex P1, p29
(f) the plaintiff walks with a limp which in turn has caused pain in the right side of her lower back. She has had to buy special shoes that give her arch support so that she can walk more easily;[21]
[21]Ex P1, p22
(g) walking up and down stairs is a big problem for the plaintiff. Walking up stairs causes her considerable pain in her right foot and ankle. In the house that she lived in before the accident, there were eighteen stairs leading up to the upper level of the house. She could no longer walk up these stairs after the accident, and so the plaintiff has had to move house;[22]
[22]Ex P1, p22
(h)her ankle and foot has “a click” and the ankle feels weak. The plaintiff has fallen a couple of times when her ankle has given way;[23]
[23]Ex P1, p29
Medication
(i)the plaintiff, on average, takes between eight and twelve pain tablets per week, according to how active she is. On average, she takes two tablets every four hours, two to three times per week. That is normally after she has been out and walking or on her feet for extended periods of time. If she rests at home, watching television, she does not need to take the pain tablets;[24]
(j)she rarely sees doctors now about her foot and ankle as “they have said there was not much they could do for me”. There is a metal screw in her foot. She does reflexology, which is like massage, to work the muscles in her foot. She sees her general practitioner, Dr Tang, irregularly. He has advised the plaintiff to continue taking Panadol Max and to continue with the reflexology and massage; [25]
Sleep
(k)the pain wakes the plaintiff on at least two nights per week. This normally occurs if she has been out shopping or tried to be more active;[26]
[24]Ex P1, p30
[25]Ex P1, p30
[26]Ex P1, p29
Activities of daily living
(l)the plaintiff’s life has changed a great deal because of her right foot and ankle injury;[27]
[27]Ex P1, p31
(m)the plaintiff is unable to run anymore. Even walking on uneven ground is a significant problem for her. Her ankle and foot “feel weak” and like they will collapse. She does not wear high-heeled shoes anymore, as her ankle is too unstable and she gets an immediate increase in right-foot pain;’[28]
[28]Ex P1, p29
(n)the plaintiff limits the shopping that she does. She has to plan what she is doing. If she tries to walk beyond a kilometre, the pain is such that she cannot go on. When shopping, she regularly sits and takes breaks for her foot. She cannot spend more than about half-an-hour on her feet without a break, or the pain increases to the point where she has to sit down;[29]
[29]Ex P1, p29
(o)the plaintiff previously played tennis socially and played at least every fortnight on the weekend. The plaintiff and her friends would hire the Rowville Tennis Courts or a tennis court on Ferntree Gully Road. She loved playing tennis with her friends. Her inability to play tennis has affected her a lot socially;[30]
(p)she previously played tenpin bowling once per week on a Thursday night. This was also a great social outlet and she loved it. She can no longer go to tenpin bowling or play tennis, as she cannot move quickly on her foot and cannot run;[31]
(q)she has put on around 10 kilograms since her injury due to her inactivity and inability to walk the distances that she once did;[32]
(r)she has great difficulty with squatting, so getting things from down low is “a real problem for me”. Any activity that puts pressure on the plaintiff’s foot increases her pain;[33]
(s)her daughter now does many of the heavier home duties. The plaintiff used to mow the lawns, but now cannot do it because of pain in her right foot and ankle. She is unable to mop the floors as she cannot use the squeeze bucket.[34] Her daughter also helps the plaintiff with other domestic tasks, like taking her to the shops and helping with big grocery shops;[35]
(t)the plaintiff is far less social than she used to be. She gets depressed. She is very bored at home just sitting and watching television. She has lost a lot of friends because she cannot get out and do the things she previously did. She gets anxious easily. She cries uncontrollably sometimes;[36]
(u)the plaintiff previously loved her work, and loved her social interactions with the ladies at tennis and bowling. She had a generally positive outlook on life;[37]
(v)the plaintiff has not worked since she was retrenched.[38] She remains on the disability pension for her right foot and ankle problem, and depression;[39]
(w)before the accident, the plaintiff used to go on yearly holidays. She used to go on cruises or to Queensland. Her last trip before the accident was to the Gold Coast in December 2011. She has only been on one holiday since the accident.[40]
[30]Ex P1, p30
[31]Ex P1, p30
[32]Ex P1, p30
[33]Ex P1, p30
[34]Ex P1, pp22-23
[35]Ex P1, p31
[36]Ex P1, p31
[37]Ex P1, p31
[38]Ex P1, p23
[39]Ex P1, p31
[40]Ex P1, p23
23 Under cross-examination, the plaintiff gave the following evidence:
(a)in 2014, she told her general practitioner, Dr Tang, that she experiences pain after “two to three days of walking”;[41]
[41]Transcript (“T”) 16-17
(b)at the end of her time working for the defendant, she was performing her normal duties;[42]
[42]T17, Lines (“L”) 10-13
(c)she was given orthotics to change the way that she walked on her foot;[43]
[43]T18, L1-15
(d)she was told by Dr Wang, the orthopaedic surgeon, that if she experienced any further problems with her foot she could come back and see him. She agreed that she has not been back to see Mr Wang in the last four-and-a-half years;[44]
[44]T20, L3-14
(e)she denied that the absence of references to her pain in the general practitioner’s clinical notes for the last three years, is because she had not spoken to Dr Tang about foot pain during that time: “probably not, no, I gave up.”[45] The plaintiff continued:
[45]T21, L4-15
“… I don’t agree with that, I have had pain and I am suffering pain. The only thing the doctors could offer me was physiotherapy which, I’m sorry, I think it’s a waste of time, it didn’t do anything for me, and it probably was the wrong thing to say ‘giving up’, but … I was on a holiday and found reflexology, and I have had more out of reflexology than anything the doctors have sent me to.”[46]
[46]T22, L12-19
(f)there is a particular reflexologist at Waverley Gardens Shopping Centre that has been able to give her “relief from pain and just loosen up the muscles which helps a lot”;[47]
[47]T22, L24-27
(g)she said that any time she goes to the doctors:
“… they look at it, they tell me that, yes, it looks great on x-ray, there’s no reason why you’ve got pain, it looks perfect. I don’t dispute that, but at the end of the day I’m in pain.”[48]
[48]T22, L28-31
(h)she has effectively started treating herself by seeking out reflexology;[49]
[49]T23, L2-4
(i)she takes painkillers as she needs them;[50]
[50]T25, L1-15
(j)she takes medication when “it gets very painful”.[51] She agreed that the medication she takes is over-the-counter medication. She said that she takes eight to twelve tablets per week “depending on how much I have been on my foot, yes”;[52]
[51]T26, L1-2
[52]T26, L3-7
(k)it was put to her that “if you have a good week, you could avoid taking any medication?” She replied: “I haven’t had a week like that so …;”[53]
[53]T26, L8-9
(l)she said that “sometimes I get a bit carried away and I’ll go shopping for three or four hours – it’s too much … I just get so bored”;[54]
[54]T26, L10-16
(m)she agreed that she can feel her foot starting to swell:
“I do know the signs now … And I’ll sit down and go and have a coffee – sit down, and think all right, I’ve done it. I go home, and as soon as I go home I elevate my foot. If I don’t do that, then the swelling starts up again around the ankle … Once it’s happening I sometimes put an ice pack on it. I always elevate my foot, because it seems to help – and I’ll take painkillers.”[55]
[55]T26, L18-31
(n)when this happens she probably needs to take “two lots of Panadol in that day. Depending on how bad it is though.”[56]
[56]T27, L2-6
(o)she said that she can start off walking:
“… quite normally … and to tell you – I don’t even know that I limp – I don’t – it’s only sometimes, someone will say to me and then my daughter will say ‘what have you been up to, did you walk too far today, mum?’ And I’ll think, why? And she’ll say because you’re limping, and I thought, am I?.”[57]
[57]T27, L8-21
(p)she does the reflexology:
“… when I’ve got the money – it’s not cheap … and you can’t claim it back anywhere. So I [go] … if it gets really, really sore … I haven’t been for about six months … I find that better than any physio I’ve ever been to.”[58]
[58]T23, L26-31
(q)when she returned to work in January 2013, it was “… pretty awful …”.[59] She agreed that she went to see a psychiatrist by the name of Wendy Triggs, who she told that she “fell apart” when she returned to work. To this she said “yeah, with good reason, I think”;[60]
[59]T28, L22-25
[60]T28-29
(r)she felt bullied by her employer at this time. She agreed that she sought emotional assistance from a psychologist, Dr Mary Samuhel, and that she commenced taking antidepressant medication, Lexapro, at this time;[61]
[61]T29, L5-23
(s)she said that she may have seen a psychologist by the name of Chris Grant at the Millswyn Clinic in June 2013. She agreed that at this time she described her symptoms as including a loss of motivation for social activities and relationships, and that she felt tearful and easily upset. She agreed that it is possible that she had described herself as feeling “crappy and sick and shaky”;[62]
[62]T30, L12-24
(t)she saw Dr Samuhel for four sessions between August 2013 and October 2013. She agreed that she was referred to this psychologist by her general practitioner. She agreed with Dr Samuhel’s assessment that her current mental state appeared to be affected by the difficulties that she had with her foot pain. She acknowledged that at that time, she was also experiencing anxiety and depressive symptoms as a result of the difficulties that she had had with the return to work: “Yes, probably the two of them together;”[63]
[63]T32, L3-10
(u)at this time she reported to the psychologist “difficulty sleeping, memory and concentration difficulties, low mood and considerable anxiety, including panic attacks”. Also at about this time, her second youngest daughter died in sudden and unexpected circumstances;[64]
[64]T32, L11-22
(v)by June 2014, she had transitioned back to part-time work, but that her return to work was “hampered by depression, anxiety and then grief over her daughter’s death”;[65]
[65]T33, L12-16
(w)she agreed that by 2018 there had been more losses in her life, with the death of her ex-husband, for whom she had been a carer for “a little while”;[66]
[66]T33, L21-30
(x)she agreed that the certificates that were being provided by her general practitioner in 2016 and 2017 were in respect of a disability support pension for her psychiatric state, including depression and anxiety.[67] The symptoms that were identified as part of the depressive condition included depressed mood, sleeping problems, anxiety and decreased function.[68] In response to this line of questioning, the plaintiff said the following:
[67]T34, L6-30
[68]T35, L1-3
“The reason I went to the disability pension was because the payment I was getting was about $90 a fortnight, and you can’t live on that … The only pension I could get at that time was the disability, but I needed a letter, so I got one. But I was under the impression it was because of the pain and everything … so I don’t really remember the prognosis … .”[69]
[69]T35, L5-13
(y)she said that it would “probably not” surprise her that her general practitioner was of the opinion at that time that the plaintiff was worthy of a pension because of her depressive condition;[70]
[70]T35, L18-21
(z)on each of the certificates contained with the Court Book, the condition was noted as “temporary”;[71]
[71]T36, L1-22
(aa)it was put to the plaintiff that what was precluding her from working from 2013, up until and including the period of time when she was receiving the disability support pension, was not in fact her foot but her depressive condition. In response to this proposition, the plaintiff replied “I was still in a lot of pain”;[72]
[72]T37, L23-29
(bb)the plaintiff was pressed and it was put to her that she could not work because of depression, to which she responded “it was part of it, yes”. She agreed that she continues to experience depression as at the date of the hearing. She agreed that she had deposed to the fact that she cries on a regular basis and becomes anxious very easily. In response to questioning about her reluctance to socialise, she said “… a lot of it is to do with my foot because I’m sick of telling people I’m in pain and no one can do anything, it frustrates me”. She said that “in the past” she has “sometimes” been unable to leave the house because of her depression. When it was put to her that she does not like being around people because of how it makes her feel, she replied “it’s because I can’t join in and do the things I used to do with them, that’s why”. She agreed that “to a certain degree” she did not enjoy socialising because of her anxiety and sadness;[73]
[73]T38-39
(cc)she said that she believes her depression is:
“… much better than what it used to be … being around people now is actually good for me, and I know that. Because the time alone just makes you worse … and…I used to go to bed because I didn’t know what else to do, and I thought, ‘I’ll sleep the day away’. Well I’m not like that anymore…I want to go out and do things and I do go out socially and have meals. But I can’t go and – I can’t walk. I used to walk three, four times a week. I miss it terribly … .”[74]
[74]T39, L16-31
(dd)in response to questioning about what was in her daughter’s affidavit, namely “Since the accident, my mum has become depressed and spends most of her time at home”, she said “Yes, but that was a while ago” – that being a reference to the date on which her daughter swore the affidavit, namely April 2018;[75]
[75]T40, L18-24
(ee)when asked about a report from forensic psychiatrist, Dr Alan Jager, dated 11 July 2018, in which he recounted her anxiety, lack of confidence, depression, anger, poor concentration and fuzziness in the head, she said that at that time she had gone off her anti-depressant medication and “I went downhill a little bit with it, yeah”;[76]
[76]T41-42
(ff)she said she is now back on her anti-depressant medication. She agreed that she still sometimes gets “really depressed” and that she cries “uncontrollably sometimes”. She said in relation to the content of her affidavit where she set out that she continues to be “far less social”, “Yes, because I’m not doing my social activities”;[77]
[77]T42, L14-26
(gg)it was put to her that she has interrupted sleep because of her stress levels and psychological state. She replied “It’s more the pain, I think, that … wakes me up. Once I’m asleep, I sleep quite well.”[78] It was suggested to the plaintiff that her psychological state is such that she overthinks things “at night”, to which she replied “I wouldn’t say so, no”;[79]
[78]T43, L16-20
[79]T43, L21-22
(hh)it was put to the plaintiff that she had become more introspective and less social because of the sadness that she is experiencing. To this proposition she replied “I am social as in I go out with friends for a meal, but I really miss … doing the activities I used to do socially. I mean, I’ll go and play the pokies now whereas before, I might have been out playing tennis or bowling. It’s like, boring …”;[80]
[80]T43, L23-29
(ii)the content of her daughter’s affidavit where she said that her mother rarely socialises now and that if she is invited out somewhere by a friend she will say “I’ll see how I feel on the day”, was put to the plaintiff. In response she replied “Not at the moment, no. In the past, yes, sometimes.” When pressed on this point, namely that the reason she was prevented from socialising is her sadness rather than any problems with her foot, the plaintiff replied “Not necessarily because a lot of times we used to go out dancing … and what’s the point of going if you can’t get up and have a dance”;[81]
[81]T44, L21-29
(jj)she agreed that if she had not been retrenched from her job, she would have had no problem continuing to do that job: “Yes, I would have stayed there until I retired”;[82]
[82]T49, L10-14
(kk)she denied that her pain is intermittent in the sense of being “on and off”. She said “It’s painful all of the time, but sometimes it’s more manageable. It just … depends on what activities I do”;[83]
[83]T49-50
(ll)she said that the pain in her foot is always there “but I think over the years I’ve learned … I just deal with it. You can’t do anything about it, you know”;[84]
[84]T50, L11-17
(mm)she said that there is always a degree of pain there: “Always. Always”;[85]
(nn)she agreed that she had never requested that her general practitioner prescribe her prescription pain medication: “No, I try to take as little medication as I possibly can”;[86]
(oo)she maintained that she is not woken at night by her pain: “I do wake up sometimes with pain … it depends on how much activity I’ve done, it makes a huge difference”;[87]
(pp)she continues to try to walk three or four times per week. She agreed that she is able to drive a car. She agreed that she is able to manage the vacuuming and to do the washing and engage in food preparation;[88]
(qq)she agreed that when she was staying at her daughter’s house she was looking after her granddaughter and enjoyed that activity but said: “Yeah … my daughter was there, I wasn’t on my own;” [89]
(rr)she agreed that the tennis that she used to play was a social game of tennis rather than being a member of a club. Similarly, the bowling was social, she was not a member of a club or league: “No, but I enjoyed them nonetheless, very much so”;[90]
(ss)she agreed that when the claim was first brought, it included a psychiatric component and that a portion of her affidavit material was directed to proving a psychiatric injury. She was unable to explain why she had omitted from the affidavit material the unfortunate death of her daughter or the death of her ex-husband but did say: “It has nothing to do with the injury”;[91]
(tt)she said that she did not deliberately leave that material out: “It has nothing to do with the foot … I lost my daughter 18 months after the accident … and I was already seeing a psychologist prior to that”;[92]
(uu)she said “it certainly was not my intention” to mislead the reader of her affidavit as to the importance of the death of her daughter;[93]
(vv)she agreed that it may be the case that she had in fact lost weight since the accident rather than gained weight.[94]
[85]T50, L24-25
[86]T51, L2-7
[87]T51, L18-25
[88]T52-53
[89]T53, L9-20
[90]T53, L9-20
[91]T54-55
[92]T56, L4-14
[93]T56, L15-24
[94]T60, L6-15
Evidence of Melanie Anthony
24 Ms Melanie Anthony, the plaintiff’s daughter, deposed to the following matters in her affidavit sworn 23 April 2018:
(a)she is aware that her mother was injured at work when she fell in a “dip in a carpark” during a fire drill. She is aware that her mother hurt her foot and ankle in that fall at work;[95]
[95]Ex P1, p25
(b)before the accident, she saw her mother between three and four times per week. They went for regular walks and went shopping or for coffee, and regularly had lunch together. They would go walking, on average, two to three times per week, four to five kilometres each time, around the local area. They often took Ms Anthony’s dogs for a walk;[96]
[96]Ex P1, p25
(c)before she was injured, her mother liked to go to markets on the weekend. They often went together to the South Melbourne market to go shopping;[97]
[97]Ex P1, p25
(d)before the accident, her mother was happy and outgoing. She would often go out with her friends and she was a very social person. Her mother was regularly going out to dinner with friends. Before the injury, her mother also enjoyed ten pin bowling and she played that sport regularly. Sometimes Ms Anthony went bowling with her mother and her mother’s friends;[98]
(e)her mother often drove up to Broadford and visited one of her closest friends. She did this about twice per month. Sometimes Ms Anthony went with her on these trips;[99]
(f)her mother was always committed to working her entire life and she always supported Ms Anthony and her three siblings. Her mother always worked before she was injured. She has not worked since the accident;[100]
(g)her mother was always very active with her grandchildren before the injury. She often went to Ms Anthony’s son’s basketball training and basketball games;[101]
(h)after the accident, her mother became depressed, and as at 2018, spent most of her time at home. At that time, she hardly went out to social functions, stopped playing ten pin bowls and rarely socialised. At that time, Ms Anthony deposed that if her mother was invited out somewhere by a friend she would see how she felt on the day. More often than not, she would decide not to go because she was feeling down;[102]
(i)Ms Anthony has seen her mother limping, rubbing her foot, crying and using a heat pack on her ankle. Every now and then, when her mother feels up to it, they still go for a walk down the street. On these occasions, their walks are no more than 1 kilometre, because her mother cannot walk further. She has spent time with her mother trying to find shoes that she is comfortable in. Her mother now wears special shoes with an arch support;[103]
(k)the furthest her mother will now travel is to the local shops or to the Knox City Shopping Centre, which is approximately fifteen minutes away from Ms Anthony’s home. When they go shopping, it is always Ms Anthony’s daughter who drives;[104]
(l)her mother does not see her grandchildren as much anymore. Her son used to stay with his grandmother for a few days at a time on the school holidays. He no longer stays overnight;[105]
(m)as far as Ms Anthony is aware, her mother no longer goes bowling with friends. She hardly ever socialises or goes out to dinner or lunch with her friends and she cannot remember the last time her mother drove up to see her closest friend in Broadford. These things all changed after the injury at work;[106]
(n)she tries as much as she can to get her mother out of the house and keep her active. She wants to see her smile again. Her mum has changed enormously since she hurt herself and became depressed.[107]
[98]Ex P1, p26
[99]Ex P1, p26
[100]Ex P1, p26
[101]Ex P1, p26
[102]Ex P1, p26
[103]Ex P1, pp26-27
[104]Ex P1, p27
[105]Ex P1, p27
[106]Ex P1, p27
[107]Ex P1, p27
Medical evidence
25 There were numerous medical reports contained in the tendered material.
26 Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
27 Dr John Tang, the plaintiff’s general practitioner, provided a report dated 28 June 2013.[108] In that report, Dr Tang observed that the plaintiff:
“… had [a] work related right foot injury on 20/03/2012. The injury resulted [in] a base of 5th metatarsal fracture to the right foot. She had [a] repeated x-ray on 02/05/2013 and found the fracture was non-union. She was then referred to orthopaedic surgeon Mr. Otis Wong. She received operation to fix her non-union fracture on 29/08/2012. She had time off after the operation. (sic)
…
Ms. Janet Anthony has been [an] honest woman with good character. She insisted [on] going back to work after the injury saying her boss promised he would provide convenient work environment for her. She tried to reduce the burden to her employer …. .”[109]
(sic)
[108]Ex P1, p47
[109]EX P1, p47
28 As to the plaintiff’s symptoms of depression, Dr Tang observed:
“According to our record…she first presented to me with symptom of depressed mood on 4th of May 2012. She expressed workplace did not provide a proper environment for her. She complained [of] symptoms of feeling sad, tension, very tired, lost appetite and slept unusual length hours. Her depression and anxiety [became] worse as her payment was cut off from her employer. As her condition got worse, she was put on anti-depressant by me and [referred] to psychologist Mr. Ronald Johtof-Hutter… I believe that both her physical and psychiatric conditions are work related.”[110]
(sic)
[110]Ex P1, p47
29 Mr Raymond Lee, physiotherapist, provided two reports in respect of the plaintiff, the most recent of which was dated 18 January 2014. At that time, he was of the view that:
“Ms Anthony has regained pain free and full range of right ankle and toe movements. She can walk full weight bearing without [a] walking aid. Subjectively, she still complained of occasional dull ache across the forefoot over 2nd – 4th intermetatarsal joints after prolonged walking.”[111]
[111]Ex P1, p46
30 At that time, Mr Lee considered the plaintiff’s prognosis was good. He has not assessed her since that time.
31 Mr Otis Wang, orthopaedic surgeon, saw the plaintiff in August 2012 and again during 2013. In August 2012, Mr Wang reviewed the plaintiff’s CT scan, in which he noted “clear non union of the right base fifth metatarsal, avulsion fracture with sclerosis and a gap”.[112] In a report, dated 2 September 2013, Mr Wang recorded that he had performed the repair of fracture and bone graft to the plaintiff’s right fifth metatarsal bone. In light of the symptoms from which she was then suffering, he commented “I think she is overloading the lateral border of her foot and would do well with an offloading orthotic that is custom made by a Podiatrist”.[113] Mr Wang requested that the WorkCover Authority arranged to have this orthotic fitted for the plaintiff. He recommended that she should “see how she goes” with the orthotic.[114]
[112]Ex P1, p50
[113]EX P1, p49
[114]Ex P1, p49
32 In a report dated 28 October 2013, Mr Jason Agosta, podiatrist, observed that:
“On examination, Janet is quite asymmetrical with her walking. She is stiff through her joints although she has no swelling. Janet is laterally weight bearing and then pronating and flattening with her right foot considerably. There's no doubt this will be due to a lack of control over [the] period of time she has had her injury … .”[115]
[115]Ex P1, p48
33 Mr William Edwards, orthopaedic surgeon specialising in the foot and ankle, examined the plaintiff for medico-legal purposes in March 2019. He expressed the following opinion in relation to the plaintiff:
“Janet Anthony tells me she lives in a town house which she changed because her bedroom used to be upstairs and she had difficulty dealing with the stairs because of her foot. She no longer lives with her daughters. She says she is able to perform activities of daily living. She finds it hard to do the housework, she gives examples of finding it hard to wipe the cupboards because she has to stand on steps which gives her problems. She says she cannot push the mop bucket and squeeze it because of her foot and, therefore, her daughters help her with this … She says she still does the shopping but has changed the way she does it and limits her shopping. She says she is no longer able to do the garden.
…
… [She] tells me she walks for half or one kilometre one or two times a week. She says her recreation is now to read and watch TV. She denies tennis, ten pin bowling, gym and swimming.
…
… [She] says she has pain in her right ankle, lateral midfoot and forefoot. She says the pain is moderate to severe. She rates the pain using visual analogue pain scales as between 82 and 90/100. She describes the pain as aching. She says in the past it has been shooting. She feels it is tiring. She says it is always present but fluctuates. She says it wakes her two nights a week particularly after activity. She says she can stand for ten or fifteen minutes. She can sit for any time. She says her maximum walking time is half an hour. She says the foot is sensitive and it hurts [if] she twists it. … she does have to be careful with shoes. In particular she cannot wear shoes with heels and has to wear loose shoes. She says she has particular trouble walking on rough ground, going up hills and with stairs. She can manage going up stairs to some degree but has more trouble going down. She says she tends to go down in a crab wise manner and hang on to the bannister. She says he is unable to use ladders. … She says the foot last gave way two years ago but having said that it still feels weak. She denies numbness now … She says she is unable to run. She has difficulty squatting and kneeling. She says she can carry and lift up to five kilograms. She says she can drive ok. She is not sure about swimming.
…
… [She] tells me she takes Panadol Max once a week. She has tablets for hypertension. She tells me she has in the past used podiatry and she intermittently uses insoles … .”[116]
[116]Ex P1, pp55-56
34 In Mr Edwards’ view, the plaintiff’s restriction, disability and incapacity will remain for the foreseeable future.[117]
[117]Ex P1, p56
The Defendant’s medical evidence
35 Dr Chris Grant, consultant psychiatrist, provided a report dated 4 June 2013 in relation to the plaintiff’s psychiatric state. Having set out a detailed analysis of the plaintiff’s psychiatric state and medical history, Dr Grant noted the following:
“Thought content revolved around her frustration at her slow recovery from the original foot problem, and her new and additional reaction when she returned to work in January this year to find changes had occurred without consultation. She spoke about feeling unsupported and unwanted at work. She was not hopeless or suicidal. She did not appear paranoid or deluded.”[118]
[118]Ex D1, p31
36 Earlier in his report, Dr Grant specifically noted that the plaintiff “appeared to give a genuine and unembellished history”.[119]
[119]Ex D1, p31
37 Dr Grant diagnosed the plaintiff as suffering from an Adjustment Disorder with Depressed and Anxious Mood, moderately severe in intensity. He thought that her depression was work related, both to the foot injury of 2012 but, more significantly, to the changes at work in January 2013. At that time, he thought that because of her depression, she was unfit to return to her pre-injury duties.[120]
[120]Ex D1, p31
38 Dr Wendy Triggs, consultant psychiatrist, provided a medico-legal report on behalf of the defendant, dated 9 August 2013. Dr Triggs recounted that the plaintiff told her “she has pain in her foot every day in her right foot and also in her left leg and her back”.[121] At that time, Dr Triggs noted that:
“[The plaintiff’s] … affect … was irritable and [that the plaintiff was] mildly melodramatic, and she was slightly tearful at one stage in the interview. She had a normal rate of thought.
She was resentful about her work and she was injury-focussed.
She gave the impression of seeing herself as permanently incapacitated … .”[122]
[121]Ex D1, p35
[122]Ex D1, p37
39 Dr Triggs diagnosed the plaintiff as suffering from an Adjustment Disorder in partial remission and a persistent Pain Syndrome.[123]
[123]Ex D1, p38
40 Dr Shashjit Varma, consultant psychiatrist, provided three reports in relation to his medico-legal assessment of the plaintiff on behalf of the defendant. The most recent of these reports was dated 3 October 2014. At that time, Dr Varma recounted the following matters in relation to the plaintiff:
“She said she still has occasional bad days but overall she is happy. Her doctor is also weaning her off Lexapro and has already cut it down from 20 mg to 10 mg … .
She is seeing a psychologist but under a mental health plan for a non-work related issue which relates mostly to her daughters. Apart from that, from a WorkCover point of view she has no issues.
MENTAL STATE EXAMINATION
Mental state examination today revealed her to be a middle-aged lady who gave a good account of her problem. She was in a good mood. She was cooperative and communicative. Her mood was neutral to good. I could not elicit any thought disorder or perceptual anomaly and her insight and judgment were intact.
OPINION
According to DSM-5 diagnostic criteria Ms Anthony suffered from an adjustment disorder with anxiety and depression but which is now in complete remission.
She does not have any symptoms of the condition now.”[124]
[124]Ex D1, p57
41 Dr Susanne Homolka, occupational physician, assessed the plaintiff for medico-legal purposes on behalf of the defendant on 24 March 2015. She noted that the plaintiff was then:
“… more than two and a half years post operative, [and] currently complains of intermittent pain affecting the dorso-lateral aspect of her right foot and the lateral aspect of her right ankle, and she said that at times she also has pain in the sole of her right foot … .
Ms. Anthony stated that her walking tolerance is limited to 20 minutes on level ground and her standing tolerance to about 10 - 20 minutes, and she said that she is unable to run or wear high heeled shoes and that squatting is difficult for her. She stated that she also has difficulty with negotiating multiple stairs, particularly when descending, and she said that she now plans her activities so that she only needs to climb the 18 steps in her home once or twice each day … .”[125]
[125]Ex D1, p65
42 In Dr Homolka’s opinion, at that time the plaintiff suffered from surgical scarring of the right foot following a surgically-treated healed fracture of the right fifth metatarsal and from a minor residual dysfunction of the right ankle following a soft-tissue inversion injury. Dr Homolka thought that the plaintiff’s condition was permanent.[126] Dr Homolka noted that the plaintiff described ongoing symptoms, including intermittent pain and swelling, which have persisted to the present time. Dr Homolka’s opinion was that the mechanism of injury was consistent with a soft-tissue injury to the lateral ligament complex of the right ankle arising from the incident that occurred on 20 March 2012, the effects of which persisted to the date of her examination.[127]
[126]Ex D1, p67
[127]Ex D1, p68
43 The plaintiff was also examined by Dr Alan Jager, psychiatrist, for medico-legal purposes, on behalf of the defendant. Dr Jager has provided three reports, the most recent of which is dated 20 August 2018. In Dr Jager’s opinion expressed in his report dated 11 July 2018, as a result of the injuries which the plaintiff suffered at her workplace and her distressing return to work, the plaintiff had developed a Chronic Major Depressive Disorder with Anxiety, which was then in partial remission. Dr Jager thought that the current psychiatric symptoms were in part due to the ongoing pain from her right ankle and foot, but predominantly due to her strong sense of perceived injustice over which she broods, as she feels that she was wrongly treated by the company that she used to work for. Notably, Dr Jager did not think that the psychiatric condition from which the plaintiff then suffered interfered with her domestic or leisure activities.[128]
[128]Ex D1, pp81-82
44 Dr Jager was asked to review the plaintiff’s medical records which disclosed additional potential psychiatric stressors, including the death of her daughter and the death of her ex-husband. Apart from noting that the new information indicates that bereavement has been a major component of her emotional distress and, at times, other psychosocial stressors have contributed to her psychiatric condition, Dr Jager did not change his previously expressed opinion that the plaintiff developed an Adjustment Disorder with Anxiety following the injury to her foot and ankle. The new information which he received did not alter his diagnosis that in July 2018, that she was suffering from a Chronic Major Depressive Disorder with Anxiety, which was then in partial remission.[129]
[129]Ex D1, pp84-85
45 Mr Ian Jones, orthopaedic surgeon, provided a medico-legal assessment of the plaintiff in a report dated 12 July 2018. In that report, Mr Jones provided the following conclusions:[130]
[130]Ex D1, pp92-93
“1.Currently this patient describes aching symptoms in the region of the fourth and fifth metatarsals of her right forefoot. The latter is consistent with a surgically treated fracture involving the base of the right fifth metatarsal, which has been subjected to bone grafting and single screw fixation. The patient has no pathology in relation to her right ankle joint.
2.… In relation to the fracture involving her fifth metatarsal, it is likely the patient will continue to experience minor symptoms as described in her history.
3.(a) Prior to the reported injury of 20 March 2012, Ms Anthony had no symptoms in relation to her right ankle or forefoot.
(b)As a consequence of the injury suffered on 20 March 2012, the patient has been left with some residual aching symptoms in her right forefoot, particularly over the fifth metatarsal bone, with some mild compromise of her capacity to walk and stand on tip toes.
.4There are no functional symptoms or signs in this patient’s presentation. I am unable to comment on the report of depression suffered by the patient.
…
6.From a recreational perspective Ms Anthony has been forced to give up social tennis and ten pin bowling and prolonged regular walking as a consequence of her right forefoot injury.
7.Ms Anthony reports some benefit from the massage and manipulation therapy achieved with two monthly reflexology treatment. She otherwise takes Panamax, depending on her pain level, totalling approximately four tablets per week.[131] The patient is otherwise on antidepressant medication and attends a psychologist monthly. An improvement in this patient’s right forefoot symptoms may result from the simple removal of the single screw utilised to fix her metatarsal fracture.”
[131]Note that earlier in his report, Mr Jones reported that the patient took up to eight tablets per week (see Ex D1, p90)
46 The defendant also put into evidence a number of letters from Ms Mary Samuhel, clinical psychologist, who had been treating the plaintiff for many years. The letters, which date from December 2013 through to September 2018,[132] confirm the following matters.
[132]Ex D1, pp122-132
(a) that the plaintiff had sustained an injury at work and has over the months developed depression and anxiety;[133]
[133]Ex D1, p123
(b) that the plaintiff was in 2014 slowly transitioning to work but found the anxiety associated with this “provoking.” She did not at that time feel that her foot was fully healed;[134]
[134]Ibid
(c) that in addition to her work issues, the plaintiff had experienced a lot of family trauma following the unexpected death of her daughter, which was adding to her sadness;[135]
[135] Ibid
(d) that in June 2014, her transition back to work part time had been hampered by depression, anxiety and then grief over her daughter’s death;[136]
[136]Ex D1, p124
(e) that in March 2016, she had tried to manage her work-related injury and did return to work, but was made redundant and again the depressive and anxiety symptoms returned;[137]
[137]Ex D1, p127
(f) despite there being no radiological evidence as to why her foot was still painful, the plaintiff was still “feeling it” and feels that these injuries impede her quality of life;[138]
[138]Ibid
(g) the plaintiff was in 2016 thinking of applying for the disability support pension as she does not feel she can work with how she feels;[139] and
(h) in September 2018, the plaintiff continued to feel anxiety and depression as there had been more losses in her life with the passing of her ex-husband and the ongoing stressors with her work-related court case.[140]
[139]Ibid
[140]Ex D1, p129
The issues
The Plaintiff’s credit
47 Attempts were made to discredit the plaintiff during cross-examination, largely by focussing on the fact that her case had begun with a distinct emphasis on the psychological and/or psychiatric consequences of her injury. The plaintiff was cross examined about the fact that this emphasis was abandoned at the commencement of the hearing, in favour of an analysis only of the pain and suffering consequences of the injury. It was suggested to the plaintiff that many of the difficulties with her life were actually psychological in nature, but that rather than being work-related, these difficulties in fact emanated from the numerous personal issues that she had suffered in her life. It was suggested that a consciousness of this fact was the reason for the change of emphasis in the conduct of her case.
48 It was also put to the plaintiff that she had been less than open in relation to the personal issues which had caused her psychological injury, failing to mention them in the affidavit material which was put before the Court.
49 In response to cross-examination in relation to these matters, the plaintiff denied that she had deliberately omitted the various personal stressors from her affidavit. Similarly, she denied that she had attempted to mislead the Court as to the cause of her psychological symptoms. While she was unable to explain why she had omitted these matters from her affidavits, she did provide answers in cross examination which made it clear that she perceived these matters as having “nothing to do with the injury”.[141] She said that it was certainly not her intention to mislead the reader of the affidavits as to the importance of the death of her daughter.[142]
[141]T54-55
[142]T56, L15-24
50 It was put to the plaintiff that her inability to work and also to engage in numerous activities, particularly social activities, was directly referable to her depressive condition. On each occasion that this suggestion was made to her, the plaintiff refuted the proposition and emphasised the extent to which pain was in fact a cause of her anxiety and depression and an operative factor in her inability to engage in many social and other activities. For instance, in response to questioning about her reluctance to socialise, she said: “… a lot of it is to do with my foot because I'm sick of telling people I am in pain and no one can do anything, it frustrates me”.[143]
[143]T38
51 In addition, she said that she believes her depression is much better than it used to be and that she now realises that being around people is good for her.[144] In response to the matters in her daughter’s affidavit which stated that she was depressed and spent most of her time at home, as set out above, she replied, “Yes, but that was a while ago”.[145]
[144]T39, L16-31
[145]T40, L18-24
52 In relation to interrupted sleep, it was suggested that this was because of her stress level and psychological state. She maintained that the sleep interruption that she experiences is due to pain.[146]
[146]T43, L16-20
53 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a cooperative witness who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment, albeit that at times she appeared quite frustrated and sometimes irritable. She did, however, make concessions where necessary. Her explanations were cogent and clear.
54 Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court. The content of many of the medico-legal reports corroborate the plaintiff’s account of events.
55 After a consideration of all of the evidence, particularly the evidence of the plaintiff, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or to exaggerate the consequences of her symptoms.
Stoic plaintiff
56 I also formed the view that the plaintiff is extremely stoic in relation to her condition. An analysis of the evidence demonstrates that she has suffered constant pain since 2012, and has endured extensive medical treatment which has caused her additional pain and disability. Despite this, I find that she made a concerted effort to return to work and would have continued to work even with the pain from which she suffered, if she had not experienced the unrelated difficulties at work which caused her eventually to take a redundancy. I also find that she has continued trying to socialise and to engage in personal activities such as walking, even though she is often unable to avoid pain when she does so.
Compensable injury
57 The details of the occurrence of the injury are not in dispute.
58 Apart from questioning the plaintiff’s credit, the defendant submitted that there is an issue as to whether and to what extent the pain and suffering consequences alleged by the plaintiff have a “substantial organic basis”.[147]
[147]Meadows v Lichmore [2013] VSCA 201 at paragraphs [21]-[24], per Maxwell ACJ; FokasvStaff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authority v Nguyen [2016] VSCA 284
59 In particular, the defendant asserted that the plaintiff’s “psychological make-up” might be a cause of her “catastrophising” her injury. It was also submitted that the principles enunciated in Meadows v Lichmore”[148] were applicable to this case, in that there was a need to “strip back exactly what it is that the physical injury is driving.” It was said that the “lack of candour, the lack of frankness about the psychological condition is perhaps impeding the doctor’s ability to ask whether or not there is an organic basis … .”[149] The defendant’s submission was that the plaintiff should be found to have been deliberately trying to play down the effect of her psychiatric condition on her presentation.[150]
[148]Supra
[149]T84, L1-15
[150]T84-85
60 The key to this analysis lies in the medical reports tendered into evidence.
61 It is well established that in serious injury applications where this issue is raised, a two-step process of analysis should be adopted.[151] As mentioned above, the first step is to ask whether there is a substantial organic basis for the relevant consequences relied upon. If the answer to that question is in the affirmative, and if the relevant consequences satisfy the statutory criterion, then the application will succeed without the need for any “disentangling” of the physical versus the psychological contributions to those consequences.[152]
[151]Meadows v Lichmore (ibid) at paragraph [21]
[152]Ibid
62 Having considered all of the medical evidence from the plaintiff’s treating doctors as well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffers from the consequences of an injury to her right foot. I am also satisfied that as a result of this injury, she underwent surgery in the form of an operation in August 2012, during which a screw was inserted into her foot and a bone graft was placed, in order to assist with the union of the fracture.
63 It is not disputed that the ongoing injury to the right foot is organic in nature. No doctor suggests that the pain from which the plaintiff presently suffers in her right foot arises from any cause other than the effects of the injury and subsequent repair to the right foot. Mr Ian Jones, orthopaedic surgeon for the defendant, specifically found that there were no functional symptoms or signs in the patient’s presentation.[153]
[153]Ex D1, p92
64 Despite the defendant’s submission that there was a psychological aspect to the plaintiff’s experience of pain, this was not borne out by the weight of the medical evidence which was put before the Court.
65 In light of the fact that I have found that the plaintiff is a credible witness, I reject this submission. Further, the medical evidence, in combination with the plaintiff’s own evidence, is sufficiently detailed to allow me to assess what symptoms are being caused by the organic injury and what symptoms are being caused by the general anxiety and depression from which the plaintiff presently suffers. As such, I am satisfied that there is no further disentangling which needs to take place.
Is the compensable injury permanent for the purposes of the Act?
66 Having considered the relevant reports, in particular the reports from Mr Edwards,[154] Ms Homolka[155] and Mr Jones,[156] I find that the plaintiff is likely to suffer from the injury she sustained in the accident for the foreseeable future. Given this, I find that this injury is permanent for the purposes of the Act.
[154]Ex P1, p56
[155]Ex D1, p67
[156]Ex D1, p92
Are the consequences to the Plaintiff of the accident “serious”?
67 Having regard to all of the relevant evidence, I find that as a result of the injury to her right foot alone, the plaintiff suffers from the following consequences:
(a)the side effects of having a metal screw in her foot, as a result of the operation which was required to repair the broken metatarsal bones in her foot. The need for further operative treatment has been raised, but there is no guarantee that this will work to alleviate her pain;
(b)continuous pain in her right foot and the side of her right ankle. I accept that the extent of the plaintiff’s pain depends on how much she tries to do and for how long she is on her feet. I accept that the plaintiff does not always experience the same level of pain, but when it is bad it “takes over” and she cannot think about anything else. I accept that she suffers from two different types of pain in the right foot and ankle. One is “an ache” that is virtually always present under the arch and the underside of her foot, and the other pain is like a “hot stabbing pain”;
(c)increased pain from any activity that puts pressure on the plaintiff’s foot. When the pain increases, it causes the plaintiff to limp and she often needs to sit down and elevate her foot. I accept that the limping has caused pain in the right side of the plaintiff’s lower back. I accept that she has had to buy special shoes that give her arch support so that she can walk more easily;
(d)an inability to walk any great distance beyond about 500 metres. I accept that if she tries to do this, she experiences increased pain to the point where she needs to take the weight off and to sit and rest. Before the accident, the plaintiff was able to and enjoyed walking long distances with no problems or pain;
(e)an inability to stand for any period of time. I accept that if she stands for too long, the plaintiff experiences increased pain and swelling in her foot;
(f)“a click” in her ankle and foot and a feeling of weakness in her ankle. I accept that the plaintiff has fallen a couple of times when her ankle has given way;
(g)an inability to negotiate stairs. I accept that this problem is so bad for the plaintiff that she decided to move house;
(h)the need to take pain relieving medication regularly. I accept that on average, the plaintiff takes between eight and twelve pain tablets per week, according to how active she is. On average, she takes two tablets every four hours, two to three times per week. That is normally after she has been out and walking or on her feet for extended periods of time. If she rests at home, watching television, she does not need to take the pain tablets;
(i)the need to obtain relief from her pain by undertaking reflexology treatment, which is like massage, to work the muscles in her foot;
(j)interrupted sleep caused by the pain from which the plaintiff suffers. I accept that the pain wakes the plaintiff at night at least two nights per week. This normally occurs if she has been out shopping or has tried to be more active;
(k)an inability to run or to walk on uneven ground, as her ankle and foot “feel weak” and feel “like they will collapse”;
(l)an inability to wear high-heeled shoes, as her ankle is too unstable. I accept that if the plaintiff does try to wear high heels, she experiences an immediate increase in right-foot pain;
(m)the need to modify the way in which she does her shopping. In particular, I accept that when shopping, the plaintiff regularly sits and takes breaks for her foot;
(n)interference with her ability to attend to heavier home duties. I accept that the plaintiff used to mow the lawns, but now cannot do it because of pain in her right foot and ankle. I accept that she has difficulty squatting, which limits her ability to get things from low down in cupboards or to get down low to clean. I accept that she now relies on her daughter to do many of the heavier home duties;
(o)interference with her ability to interact as actively as she used to with her grandchildren;
(p)an inability to participate in the social activities which she used to enjoy, such as tennis and ten pin bowling. This is because she cannot move quickly on her foot and cannot run. I accept that the plaintiff loved participating in these activities with her friends. I accept that her inability to play tennis and go ten pin bowing has had a great effect on her a social life.
68 In Haden Engineering Pty Ltd v McKinnon,[157] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[158] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant rest under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[159] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness and especially where the plaintiff has been found to be stoic, there is no reason to reject her ongoing descriptions of the pain suffered by her.[160]
[157](2010) 31 VR 1
[158]Supra at paragraph [9]
[159](Supra) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[160]Ibid
69 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was both a witness of credit and also stoic in her presentation and attitude to managing her injury.
70 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injury to her right foot, which she suffered in the accident.
71 In particular, the plaintiff endures permanent, daily pain in her right foot, which causes significant discomfort and restrictions in various aspects of her life. This pain causes interrupted sleep and has impacted upon her ability to interact with her grandchildren and also on her ability to engage in the recreational activities which she used to enjoy. The level and nature of her pain is such that she is frequently required to take pain relieving medication.
72 The fact that after the accident, the plaintiff was prepared to keep working and perhaps could have kept working, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[161]
“… it would be unfortunate, and in … [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[161][2008] VSCA 260
73 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to her right foot alone are “very considerable” and certainly more than “significant” or “marked” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
74 For the reasons set out above, I am satisfied that as a consequence of the accident which occurred on 20 March 2012, the plaintiff has suffered a “serious injury” to her right foot, as that term is defined in the Act. The application is granted.
75 I will hear the parties on the question of costs.
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