Beresford v Transport Accident Commission

[2023] VCC 604

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-03007

JOEL BERESFORD	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE ENGLISH
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2023
DATE OF JUDGMENT:	1 May 2023
CASE MAY BE CITED AS:	Beresford v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2023] VCC 604

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Damages – serious injury – serious long-term impairment or loss of a body function – right foot and ankle – pain and suffering

Legislation Cited:      Transport Accident Act 1986, s93(4)(d), s93(17)(a)

Cases Cited:              Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Davidson v Transport Accident Commission [2015] VSCA 12

Judgment:                  Leave granted to the plaintiff to bring a proceeding at common law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Dimsey	Arnold Thomas & Becker Lawyers
For the Defendant	Mr P Elliot KC with Ms E Golshtein	Solicitor to the Transport Accident Commission

HER HONOUR:

Introduction

1This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) by the plaintiff, Joel Beresford, in respect of injuries sustained in a transport accident on 21 September 2018.

2The plaintiff alleges he has a “serious injury” as defined by s93(17)(a) of the Act. He claims he has a serious long-term impairment or loss of a body function being injury to the right foot or ankle, including fracture of the anterior process and distal body of the calcaneum and additional bone contusions.

3The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[1] the question whether an injury is a “serious injury”, considers, when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as “at least very considerable” and certainly more than “significant” or “marked”?

[1][1992] 2 VR 129 at 140

4The issue in dispute is whether the plaintiff can satisfy the serious test, namely are the consequences at least very considerable and certainly more than significant or marked. The main consequences argued on the plaintiff’s behalf, bearing in mind his relatively young age, relate to his limitations participating in recreational pursuits and physical activities, the reduction of his employment options,[2] his aching pain and swelling in the foot and the osteoarthritic change.[3]

[2]        Transcript (“T”) 2

[3]        T 32

5The application proceeded in the usual manner. The plaintiff gave evidence and was cross-examined. He provided two affidavits in support of his application, dated 12 October 2020 and 2 March 2023.

6By way of background, the plaintiff is forty-two years old. He left school during year 10 and then completed a butchery apprenticeship and worked as a butcher for 17 years. He then left this occupation and worked in various labouring jobs.[4]

[4]        Plaintiff’s Court Book (“PCB”) 10-11

7On 21 September 2018, he was working as a labourer installing new drainage under a kerb. His right ankle was crushed when a DPU compacting machine which weighed some 600 kilograms was being manoeuvred into the bucket of a bobcat and tipped and fell towards him.[5] 

[5]        PCB 11

8He attended the Emergency Department of Maroondah Hospital the next day. An MRI on 1 October 2018 revealed a fracture of the anterior process and distal body of the calcaneum and additional bone contusions.

9Following the injury, the plaintiff wore a CAM boot for two months.[6] He had physiotherapy at the Mooroolbark Super Clinic but found it exacerbated his pain.

[6]        PCB 12

10In November 2018, he was assessed by Mr Wei-Han Tay, orthopaedic surgeon, who did not recommend surgery.

Employment

11The plaintiff returned to work a few weeks after the injury on light duties. He resigned on 16 January 2019.[7]

[7]        PCB 12

12He attempted to return to paving work with a previous employer, however the work was too difficult.

13In December 2020, he commenced work with Commercial Tippers where he is currently working, operating a sweeper truck at their recycle centre. He can manage this work as it is mainly seated and there is less pressure on his ankle.[8]

[8]        PCB 12

14He operates an excavator to handle the building waste and labourers, who are on foot, sort out recyclable materials. As he is mostly in the cabin, this is “pretty easy” on his right ankle as he can use hand controls, not just foot controls.[9]

[9]        PCB 14

15In terms of accessing the excavator, he has difficulty climbing in and out, and if he does it too often his ankle aches. He has also rolled his ankle whilst walking on building debris.[10]

[10]        PCB 14

16He is concerned about what he would do if he lost his current job because he can work largely in a seated position and could not manage returning to work as a butcher or labourer or in any job where he is on his feet for extended periods.[11]

[11]        PCB 15

17In cross-examination, the plaintiff stated he works six days a week, between 50 and 60 hours a week. His hours are nine and a half hours a day, from 7am to 4.30pm, he works most Saturdays however the hours vary from 7am to 12pm, or 7am to 3pm and said, “I’m there till what needs to be done is done.”[12] He lives in the Yarra Valley and leaves at 5.30am to go to work.[13]

[12]        T 6

[13]        T 11

18Other than excavating, he intermittently performs “sweeping, some digging…manual sorting without the machine”.[14]

[14]        T 9

19In re-examination, he also agreed he chips in with some labouring. With respect to physical on the ground work, he stated it would be:

“Maybe a couple of hours out of the ten. On and off though. It wouldn’t be like a couple of hours in a go.”[15]

[15]        T 20

Evidence of the consequences of injury

Pain

20In his first affidavit dated 12 October 2020, the plaintiff refers to suffering from pain and stiffness in his ankle in the mornings, which improves slightly throughout the day. He suffers from a general aching in his right foot and ankle, which is aggravated by twisting or walking on uneven surfaces.[16]

[16]PCB 12

21He finds standing still for any significant period difficult and is always shuffling and shifting his weight. He is unable to run, and because of pain and instability in his ankle and foot his walking is limited to about one hour.[17]

[17]PCB 12

22In his second affidavit dated 2 March 2023, he refers to the ache increasing if he is on his feet a lot and he develops a hobble by the afternoon. In warmer weather his ankle will swell and he “…can’t wait to get home and get my boots off and raise the ankle. I often use a walking stick around the house as this feels like it helps a bit.”[18] In cross-examination, he agreed he did not get a hobble all of the time but said he walks with the pain, “…it would hurt or would be uncomfortable but, yeah I can still walk.”[19]

[18]        PCB 15

[19]        T 10

23In cross-examination, he agreed the pain in his ankle plays up after being at work and is worse at the end of the working week, and he stated by the time he gets home on Saturday “…it’s at its worst for the week.”[20]

[20]        T 15

24In re-examination, when asked how he copes with his ankle he stated:

“Depending what I’m walking over. If I’m on flat concrete I’m generally all right. If I’m having to walk over bricks, concrete, you know, piles of stuff then it can aggravate it.”[21]

[21]T 20

25He was asked what happens when he has weight on his right foot, he described “Just aggravation, uncomfortable. Painful if it’s the higher end.”[22]

[22]        T 21

Other consequences

26The plaintiff lives in Warburton with his grandmother. He does the shopping.[23] He can drive a car.[24]

[23]T 14

[24]T 19

27He socialises most days by speaking to his friends, either online or on the phone.[25]

[25]T 14

28He finds mowing the lawn causes increased ankle pain. He finds it hard to walk up and down stairs and this causes ankle and foot pain.[26]

[26]        PCB 12

29In his second affidavit, he notes he continues to manage his garden, but it is hard because the backyard is on an incline. His ankle aches after pushing the mower on the incline.[27]

[27]        PCB 15

30Prior to his injury, he was very active and enjoyed sports such as martial arts and boxing.[28] In cross-examination, he stated it was a couple of years  before the injury that he had done boxing or martial arts.[29]

[28]        PCB 13

[29]        T 12

31He also played local football and had signed up to play with the Yarra Junction Eagles.[30]

[30]        PCB 13

32He can no longer go to the gym or play football.

33He used to walk his two dogs daily. Now he can only throw a ball to them to play fetch, from the end of the driveway. He now sits in the backyard and throws the ball for them.[31]

[31]        T 11

34In his second affidavit the plaintiff stated he has been unable to return to active sports such as football or the gym.[32] He unsuccessfully tried to play a round of golf but the pain in his ankle prevented him getting past the sixth hole.

[32]        PCB 15

35He described himself pre-injury as:

“…a “fitness head” who visited the gym a few times a week, jogged a few times a week and planned to return to playing football. My life now doesn’t involve much physical activity at all and I greatly miss that outlet.”[33]

[33]        PCB 15

36In cross-examination, regarding football he stated “I grew up playing for Warburton but I probably had a ten year gap when playing.”[34] He was asked about this gap and stated “One of the guys I worked with was the vice president of the club…he’d been badgering me to come and have a run with the guys.”[35] He had been hoping to “…just have a bit of a kick again and get out with the boys.”[36]

[34]        T 12

[35]        T 20-21

[36]        T 21

37Although he no longer goes to the gym, he does mostly upper body exercises at home regularly a couple of times each week.[37] He stated he did not see the point going to the gym “to be only able to do a handful of things.”[38] He agreed he could go to the gym if he did not put a strain on his ankle.

[37]        T 13

[38]        T 12

38He currently does his best to adjust his life and work to accommodate his ankle injury to avoid aggravating it. He stated, “anything that I know is going to hurt the ankle I’ll try and avoid.”[39]

[39]        T 14

Treatment

39In his first affidavit, to treat his pain the plaintiff stated he takes Norgesic medication on occasion when the pain is at its worst.[40]

[40]PCB 12

40In his second affidavit, he stated his ankle is generally sore and tired after a day of work and he takes Panadol to ease the discomfort.[41]

[41]PCB 14

41His level of activity increases his pain levels, usually a few times a month. On these occasions he takes Celexi or Norgesic instead of Panadol.[42]

[42]PCB 14

42In cross-examination, the plaintiff said he takes Panadol and Nurofen “most nights”.[43] He does not take Norgesic medication anymore as it leaves him “a little drowsy in the morning”.[44] He continues taking Celexi “for when it it’s particularly bad” but agreed he does not take this regularly.[45]

[43]        T 9

[44]T 10

[45]        T 19

Medical evidence

Radiology reports

43The MRI report dated 1 October 2018 refers to findings of “an undisplaced fracture of the anterior process of the calcaneum” and “a further fracture involving the distal body of the calcaneum” as well as “additional bone contusions…within the proximal and distal aspects of the cuboid bone and within the inferior aspect of the head of the talus and the medical aspect of the navicular bone.”[46]

[46]        PCB 24

44A further MRI report dated 4 December 2018 concludes:

“The anterior calcaneal process fracture line is still visible. However, there is significant decrease in the amount of marrow oedema. Normal alignment. No other finding of note.”[47]

[47]        PCB 26

45The MRI and X-ray report dated 9 January 2020 concludes:

“Past fracture of the anterior process of the calcaneum. Minor degenerative change at the ankle.”[48]

[48]        PCB 27

46A further MRI report dated 4 January 2022 compared the MRI scan dated 9 January 2020. The comment section of the report noted:

“Two areas of fibrocystic change. The Achilles is consistent with chronic enthesopathy. No acute tear. The anterior process of the calcaneum has an area of subchondral bone oedema and cystic change consistent with prior injury and/or local osteoarthritis. No other bone oedema or contusion evident. Ligaments and tendons are within normal limits.”[49]

[49]        PCB 28

Treating doctors

47The plaintiff has attended his general practitioner, Dr Rany Rizk and had two referrals to Mr Wei-Han Tay, orthopaedic surgeon.

48Mr Tay prepared two reports. In his first report dated 13 November 2018, which was less than two months after the injury, he recommended a continuation of symptomatic management of the crush injury.[50]

[50]PCB 37

49The plaintiff was referred back to Mr Tay and in his referral letter dated 7 January 2020, Dr Rizk refers to the plaintiff ““managing” up until November last year when the pain in his foot worsened and became constant.”[51] Mr Tay also refers to his examination whereby the plaintiff was:

“…exquisitely tender under his lateral malleolus and over the anterolateral gutter of his ankle joint. His ankle active range of motion was stiff and guarded and especially irritable on inversion. I was unable to access his subtalar joint or ankle/hindfoot stability due to pain and guarding.”[52]

[51]        PCB 45

[52]PCB 45

50Mr Tay gave a differential diagnosis including “subtalar joint degeneration, peroneal tenosynovitis and or lateral ligament instability.”[53] He referred the plaintiff for further X-rays and an MRI scan to clarify his diagnosis. This appears to have occurred in the X-ray and MRI report sent to Mr Tay on 9 January 2020.

Plaintiff’s medico-legal report

[53]PCB 45

Dr Julia Kirby

51Dr Kirby, orthopaedic surgeon, assessed the plaintiff and prepared a report dated 28 February 2023.

52Dr Kirby diagnosed the plaintiff with a right calcaneal fracture which appears to have adequately healed, and likely post-traumatic osteoarthritis of the right calcaneocuboid joint. In her assessment, based on clinical examination and the imaging reports, she suspected the plaintiff had developed degenerative changes in the calcaneocuboid joint of the right foot.[54]

[54]PCB 20

53In her prognosis, the plaintiff is likely to continue to experience some limitation due to pain in his right ankle or foot. Although his symptoms are stable and unlikely to deteriorate short to mid-term, in the long term, there is a risk of osteoarthritis progression, which may result in functional decline.[55]

Defendant’s medico-legal report

[55]        PCB 20

Dr Anthony Menz

54In his report dated 21 December 2022, Dr Anthony Menz, consultant orthopaedic surgeon, diagnosed a fracture of the anterior process of the right calcaneus. This was caused by the crushing injury. The fracture has healed, and his prognosis is excellent.[56]

[56]        Defendant’s Court Book (“DCB”) 10

55Whilst he agreed with most of Dr Kirby’s report, Dr Menz disagreed that the MRI scan dated 4 January 2022 indicated any degenerative change in the calcaneocuboid joint. He stated:

“At no stage anywhere in either of the MRI scans have they stated that there is calcaneocuboid joint degeneration and I think that aspect of Dr Kirby’s report needs to be ignored…”.[57]

[57]        DCB 17

Video surveillance

56The plaintiff’s credit was not in issue. He was straightforward in his evidence.

57Video surveillance of the plaintiff totalling 17 minutes and 54 seconds was played in court. The footage was taken on Wednesday 22 February 2023, Saturday 25 February 2023 and Friday 3 March 2023. The entirety of the footage was played. It showed the plaintiff attending the supermarket, waiting to be served and collecting items to purchase from the shelves.

58The surveillance footage shows the plaintiff at the supermarket whilst he was waiting to be served at the deli or waiting at the checkout. On 23 February 2023, he is seen crossing his right leg over his left, resting his foot whilst waiting to be served at the deli. On 25 February 2023, he is seen lifting the heel of his right leg slightly whilst grabbing an item. He was also seen crossing his right leg over his left leg, shaking his right foot and then returning it to the resting position for some 47 seconds whilst waiting at the checkout. On 3 March 2023, he was shown crossing his right leg over his left and resting the tip of his right foot on the ground whilst waiting.

59The video footage confirms the plaintiff on each occasion assumes positions whereby he appears to guard or rest his right foot whilst standing and waiting.

Serious injury

60The plaintiff has sustained an injury as a result of the transport accident on 21 September 2018. This is not in dispute. 

61Whether the plaintiff’s injury is “serious” depends upon the consequences of the injury in respect of pain and suffering  and whether the consequences are at least “very considerable” and certainly more than “significant” or “marked”.

62The four matters commonly considered when assessing pain and suffering are referred to in Haden Engineering Pty Ltd v McKinnon[58] are what the plaintiff says about the pain, what he does about the pain, what the doctors say about the pain and what the objective evidence shows about the disabling effect of the pain.

[58] [2010] VSCA 69 at [11]

63I have considered what the plaintiff says about the pain. I turn to consider the plaintiff’s return to work, the issue in dispute regarding whether his condition will deteriorate, and his medical regime.

Work

64There are two aspects to consider regarding the plaintiff’s employment. Firstly, he has successfully returned to work and works overtime regularly.

65In Stijepic v One Force Group Aust Pty Ltd & Anor,[59] the Court of Appeal stated:

“… if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”

[59] [2009] VSCA 181 at paragraph [47] (Ashley JA and Beach AJA)

66The fact the plaintiff is able to work full time is relevant to the question whether the pain and suffering consequence of the injury is ‘serious’, but it is not determinative, and it is necessary to consider the evidence as a whole.[60] 

[60]        Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26] (Ross AJA)

67In Haden Engineering Pty Ltd v McKinnon,[61] the President of the Court of Appeal noted “the cases recognise that some plaintiffs may be more ‘stoical’ than others,” and that the injury is not to be viewed as any less serious merely because he or she manages to remain more active than might have been expected given the level of pain. It could be said, in effect, as Justice Nettle stated in Dwyer v Calco Timbers Pty Ltd (No 2),[62] a plaintiff has been “prepared to put up with his pain and suffering and get on with his business as best he can”.[63]

[61]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [13] (Maxwell P)

[62] [2008] VSCA 260 at paragraph [3] (Nettle JA)

[63]        Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3] (Nettle JA)

68I accept the plaintiff is stoic and hardworking. He regularly works on Saturdays. I also note the work he is doing accommodates his injury as it is largely a seated role in the cabin of an excavator enabling him to keep weight off his right foot. Getting in and out of his excavator causes him pain. When he has to work out of his excavator on the ground, this causes pain particularly walking on debris or uneven surfaces. By the end of his shift on Saturday he states the pain in his foot is at its worst. He has made adjustments to accommodate his foot so he can work. In respect of that accommodation, he stated, “I know what I can do and what I need to avoid. I do my best to avoid aggravating the ankle.”[64]

[64]        PCB 15

69The second consideration regarding his employment is that the plaintiff no longer has broader options regarding work such as labouring, which he has tried to return to and was unable to continue with. This limits his future employment options. He stated, “I don’t think I’d last a day in a job where I was on my feet for extended periods.”[65] The loss of opportunity to return to other employment such as either butchering, labouring or any job which involves standing is a component of the plaintiff’s pain and suffering. I give less weight to the lost prospect of him returning to butchering as an occupation. The plaintiff has a prior work history as a labourer. He has lost future work options which require weight bearing on his feet.

[65]        PCB 15

Osteoarthritic change

70It was submitted on behalf of the plaintiff there was a likelihood he would develop osteoarthritic change in his right foot calcaneocuboid joint.

71The defendant disputed this aspect of Dr Kirby’s report on the basis of Dr Menz’s report.

72I turn to consider the evidence.

73Dr Kirby physically examined the plaintiff and reviewed the reports of the imaging without seeing the images themselves. She stated:

“I suspect, based on my clinical examination and the imaging reports provided, that Mr Beresford has now developed degenerative changes in the calcaneocuboid joint of the right foot.”[66]

[66]        PCB 20

74In her examination she noted the plaintiff struggled to do a single leg heel raise bilaterally, “right more than left with the right causing pain.”[67] In a table documenting the plaintiff’s right and left active foot and ankle range of movement, aside from dorsiflexion (the results for which were equal), the results for the right foot were between 5-10 degrees less than the left foot. She also noted he had reduced power of the peroneus longus and brevis on the right compared to the left, and his calf circumference was one centimetre less on the right side. She also noted “mild calf atrophy on the right compared with the left.”[68]

[67]PCB 19

[68]        PCB 19

75In terms of prognosis, she noted his symptoms are stable and are unlikely to deteriorate short to mid-term, and “In the long term, there is risk of osteoarthritis progression, which may result in functional decline.”[69]

[69]        PCB 20

76I note the conclusion of the MRI report dated 9 January 2020 states:

“Past fracture of the anterior process of the calcaneum. Minor degenerative change at the ankle.”[70]

[70]        PCB 27

77The MRI report dated 4 January 2022 comments:

“There is also a small area of cystic change and subtle oedema in the anterior process of the calcaneum at the level of the calcaneocuboid joint …The anterior process of the calcaneum has an area of subchondral bone oedema and cystic change consistent with prior injury and/or local osteoarthritis. No other bone oedema or contusion evident. Ligaments and tendons are within normal limits.”[71]

[71]        PCB 28

78Dr Menz’s second report refers to Dr Kirby’s report and the MRI report dated 4 January 2022.

79He states Dr Kirby has misinterpreted the MRI scan of 4 January 2022 as there is no reference to “any degenerative change in the calcaneocuboid joint.” The reference to “subtle oedema” occurs at the level of the calcaneocuboid joint and that “at no stage anywhere in either of the MRI scans have they stated there is calcaneocuboid joint degeneration and as such I think that aspect of Dr Kirby’s report needs to be ignored as Mr Beresford has not developed calcaneocuboid joint arthritis and this should not be an ongoing feature going into the future.”[72]

[72]        DCB 17

80I note there has a been an apparent deterioration in the plaintiff’s condition with increased pain in his right foot as he reported to his general practitioner Dr Rizk, Mr Tay and the necessitated investigations in 2020. He has a wasting in his right calf and weakness as noted in Dr Kirby’s report. The MRI dated 4 January 2022 notes “the anterior process of the calcaneum has an area of subchondral bone oedema and cystic change consistent with prior injury and/or local osteoarthritis”.[73] Whilst Dr Kirby states the plaintiff is stable in the short to medium term, she suspects long term there is a risk of osteoarthritis progression.

[73]PCB 28

81Dr Menz refers to the subtle oedema but does not refer to the MRI reference to cystic change consistent with prior injury and/or local osteoarthritis.

82In my view, this reference supports Dr Kirby’s conclusion regarding the risk of osteoarthritis progression. There is medical evidence of the plaintiff’s deterioration, the physical examination results regarding the left versus right foot and leg and the MRI report findings. I prefer Dr Kirby’s assessment regarding the plaintiff’s longer-term prognosis.

Medication regime

83Although the plaintiff describes his pain and discomfort, he does not take much in the way of medication to manage the pain.

84A consideration in this case is the plaintiff’s stoicism. He takes over the counter medication and “one prescribed medication when it’s particularly bad”.[74] He stated he takes  Panadol and Nurofen, two of each, “most nights”.[75] He sees his general practitioner when he needs a script.

[74]        T 19

[75]T 9 - T 10

85When the ankle is ‘playing up’ he takes Celexi instead of Panadol.[76]

[76]        T 10

86Dr Kirby’s report dated 28 February 2023 refers to the plaintiff taking two Paracetamol and two Ibuprofen tablets in the evening after work. He does not take any other medication or have any other treatment for his right foot or ankle.[77]

[77]        PCB 18

Disabling effect of pain

87I refer to Maxwell P in Haden Engineering Pty Ltd v McKinnon,[78] at paragraph [16] regarding the relevant factors when considering the extent to which pain interferes with the ordinary activities of life.

[78] [2010] VSCA 69

88The plaintiff is no longer as active as he was. He does not go to the gym, nor is he able to pursue boxing, martial arts, or football. I give less weight to the loss of football as a pursuit given his evidence, he has not played for ten years prior to the injury. I note he had not done martial arts or boxing for a couple of years prior to his injury. He used to attend the gym a few times a week and now no longer does so, and he does a limited exercise regime from home.

89The evidence about his performance of household duties is limited to the difficulty the plaintiff has mowing the lawn on an uphill incline. There is no evidence as to other household activities being curtailed. Dr Menz refers to him as reporting “he can do the cooking, cleaning and washing his clothes. He can mow the lawns and can drive his car.”[79]

[79]        DCB 8

90With respect to recreational activities, the plaintiff can no longer walk his dogs which he used to do daily, instead he throws the ball for them to fetch.[80] In cross-examination, he confirmed he no longer takes the dogs for a walk and when he gets home at 5pm his by then foot is “quite uncomfortable and sore.”[81] I accept the plaintiff’s evidence about this.

[80]        PCB 13

[81]        T 11

91He is able to drive and do the shopping, as evidenced by the video surveillance.

92In terms of social activities, the plaintiff did not give any evidence that this has been adversely impacted and stated he socialised either online or by phone.

Analysis and conclusion

93Overall, in terms of consequences, there does not appear to be one major impact, however there are several impacts.

94Although he works full time and long hours, the work is adjusted for the fact he can remain seated. He experiences pain getting in and out of his cabin and pain working ‘on the ground’ for a couple of hours each day. By the end of his Saturday shift the pain is at its worst. Further, his employment prospects are limited as he can no longer be on his feet for any length of time, which is most manual work.

95He is not a person with a wide variety of interests and described himself, pre-injury as a ‘fitness head’ as he would attend the gym a few times a week as well as jog a few times a week. He now does his upper body exercises at home. He can no longer go jogging.

96I note in measuring whether the injury is serious, Ashley JA in Dwyer v Calco Timber (No 2) [2008] VSCA 260 stated:

“It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.” [82]

[82]        Dwyer v Calco Timber (No 2) [2008] VSCA 260 at paragraph [27] (Ashley JA)

97The plaintiff is able to work, drive a car and do the shopping and his household activities are not limited.

98However, he suffers constant pain in his right foot, although the level of pain is variable, it is at his worst by the end of the working week.  He has pain and stiffness in the morning which improves slightly throughout the day. Most, if not all everyday activities, both in and out of the house require him to walk, stand or move, thus use his right foot. I am fortified in my view about his pain from the video footage which shows him nursing or guarding the right foot.

99His pain relief is two Panadol and two Nurofen at night. His credit is not in issue at all, and in my view this medication regime, like his work schedule, reflects his stoicism.

100Not being able to walk the dogs, a daily activity pre-injury, is in my view a significant consequence.

101I was referred to Davidson v Transport Accident Commission,[83] as in that case, it was held an 18-year-old would suffer consequences “over the whole of an adult lifetime” which led to the conclusion the impairment satisfied the ‘very considerable’ test.[84]

[83] [2015] VSCA 12

[84]        Davidson v Transport Accident Commission [2015] VSCA 12 at paragraph [51]

102In this case the plaintiff was a youngish man of 37 when he was injured and is now 42. It is a relevant consideration to take his age of ‘early-stage mid adulthood’ into account regarding the period for which the consequences will be experienced in increasing the seriousness of his injury.

103For a person who relies solely on his physical ability for employment as well as his out of work interests, these are significant consequences for him personally. I accept he was active prior to his injury so the loss of these recreational activities is serious for him. I note the level of his pre-injury activity is supported by Dr Menz’s report that the plaintiff had completed a Certificate III in fitness.[85]

[85]        DCB 8

104Dr Menz described the plaintiff’s prognosis as “excellent”, also noting the fracture has healed and he has very few ongoing problems.[86] Against this, I note Dr Kirby is of the opinion his condition is currently stable and foreshadows decline in the long term.[87] I note there has been no improvement in the five years since the injury. I am satisfied his condition is long-term for the foreseeable future. Further, I accept the evidence from Dr Kirby that his condition may deteriorate further.

[86]        DCB 10

[87]        PCB 20

105There is no single significant individual consequence for the plaintiff, rather a combination of consequences. Some of the consequences are significant, some are moderate, however taking the evidence as a whole I find the balance tips in favour of the plaintiff for the following reasons.

106Firstly, he is still a youngish man who has suffered a crush injury to his right foot. As standing and walking are such functional and utilitarian activities, it is an injury the pain consequences of which affects most aspects of daily living. He is a man whose physical ability to work is his premium. Secondly, his ankle is stiff, and he is in pain when he wakes up each day and he takes two types of over-the-counter medication daily. Thirdly, he is working more than full time hours in a role in which he can accommodate the pain in his foot and ankle, and he continues to work despite pain caused by aspects of the role. He is stoic. Dr Kirby notes the plaintiff has accommodated very well for his limitation in the right foot. She also notes a risk of osteoarthritis progression, which may result in a functional decline. Further, his employment options are now significantly reduced. His main activity is work. His difficulties with household activities are limited to problems mowing the lawn, no other consequences were detailed. Fourthly, he has both a narrow compass of interests and a narrow circle. I accept his physical activities are significantly curtailed, namely not being able to go jogging or walk his dogs. These are significant consequences for him.

107The plaintiff bears the burden of proof and the combination of consequences has tipped the scales in his favour. I am satisfied by the evidence, on the balance of probabilities, that the consequences, when judged by comparison with other cases in the range of possible impairments, can fairly be described as at least very considerable and certainly more than significant or marked.

108I grant leave to the plaintiff to commence proceedings at common law under sub-paragraph (a).

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