Blanc v Country Road Clothing Pty Ltd
[2010] VCC 1313
•1 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05325
| LOUISE BLANC | Plaintiff |
| v | |
| COUNTRY ROAD CLOTHING PTY LTD | Defendant |
| (ACN 005 419 447) |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 August 2010 |
| DATE OF JUDGMENT: | 1 September 2010 |
| CASE MAY BE CITED AS: | Blanc v Country Road Clothing Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1313 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation – serious injury – permanent loss of function of right foot – Whether partial amputation of right second toe constitutes permanent serious disfigurement.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Zaparas Lawyers |
| For the Defendant | Mr D Myers | Wisewould Mahony |
| HIS HONOUR: |
1 This is an application which relies on parts (a) and (b) of the definition of “serious injury” in subsection (37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is “permanent serious impairment or loss of a body function” (part (a)); and “permanent serious disfigurement” (part (b)). The body function relied upon is the right foot. The permanent serious disfigurement relied upon is partial amputation of the second toe of the right foot at the first distal margin.
2 The claim by the plaintiff instituted by Originating Motion dated 11 November 2009 seeks leave from the Court pursuant to subsection (16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering. The particulars of injury pleaded in the Draft Statement of Claim appended as an exhibit to the plaintiff’s affidavit material are as follows:
(a) injury to the right foot; (b) crush and fracture injury to the second toe of the right foot requiring surgical terminalisation/partial amputation; (c) fractures to the third, fourth and fifth toes of the right foot and or soft- tissue injuries to the third, fourth and fifth toes of the right foot; (d) anxiety and upset.
3 Mr S Smith of counsel appeared on behalf of the plaintiff. Mr D Myers of counsel appeared on behalf of the defendant.
4 The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave sworn evidence and was cross-examined. The plaintiff’s first affidavit was sworn on or about 10 August 2009.[1] The plaintiff’s second affidavit was sworn on or about 7 August 2010.[2]
• The plaintiff tendered the following evidence: [1] PCB 6
[2] PCB 25
ƒ the plaintiff’s Court Book (“PCB”) pages 6 to 29 inclusive and 45 to
59 inclusive;
• The defendant tendered the following evidence:
ƒ the defendant’s Court Book (“DCB”) pages 1 to 10 inclusive.
5 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
6 The plaintiff is twenty-six years of age. She was born on 9 August 1984. She completed her secondary schooling, taking her VCE Certificate in 2002 and later completed a Bachelor of Science degree at Monash University. In 2003 and 2004, she spent some time travelling overseas and completed her studies in 2005. In 2006, she undertook further studies and completed a Bachelor of Business and Commerce/Communications at Monash University. She majored in Marketing/Media Studies and now has employment in marketing.
7 The plaintiff was injured during the course of part-time employment with the defendant on the afternoon of 19 February 2008. During the course of her work, a large and heavy roll of paper fell onto her right foot causing a crushing-type injury to the toes on the right foot. She was taken from the place of employment to The Alfred Hospital by ambulance. On arrival at the Hospital, her foot was x-rayed and the plaintiff was advised she had crushed and fractured the second toe on her right foot and may have also fractured bones in her third, fourth and fifth toes. She was advised she needed surgery urgently in the form of a partial amputation of the second toe on her right foot and this was undertaken later in the evening. During this time, and the immediate post-recovery period, she suffered a great deal of pain. The wound to her second toe on her right foot consequent upon the amputation later became infected but this was treated satisfactorily.
8 On 25 April 2008, the plaintiff attempted to return to work on a four-hour shift but she was still limping and struggling to walk around. It became apparent her wound had again infected.
9 The plaintiff was treated from time to time by her general practitioner, Dr Fowler. She complained to him of tingling and swelling and tightness around the toes in her right foot. Dr Fowler advised the plaintiff she had symptoms consistent with Reflex Sympathetic Dystrophy.[3]
[3] PCB 14, at paragraph 31
10 By May of 2008, the plaintiff again attempted to return to work but felt very uncomfortable in the store and became distressed. She was worried she would re-injure her foot and did not feel safe.[4]
[4] PCB 14, at paragraph 32
11 By August of 2008, the plaintiff continued to experience pain, swelling and tingling in the toes on her right foot. Because of the amputation, she began to walk on the outside of her right foot in order to protect her injured second toe and it became difficult for her to walk normally.
12 In August 2008, the plaintiff attended physiotherapy with Ms Michelle Pardy, who gave her exercises to complete. She found the exercises difficult and painful.[5] In her first affidavit, the plaintiff deposes that she –
“… felt exhausted from being in frequent pain and from worrying about protecting my foot and the risk of infection or re-injuring my toes. I was conscious of my foot whenever I went outside the house and extremely nervous about being stepped on or stubbing my foot. I was regularly bandaging my toes to place a barrier between them and the end of my shoe and for added support. I also became anxious which was unlike me. When the accident happened it was a big shock and I did struggle to get over the fright of seeing my toe crushed and others damaged and requiring a partial amputation. I went overseas in December 2008 and returned in February 2009. Being away helped improve my confidence and I felt emotionally stronger when I returned. Although, when I got back from overseas I did not feel that I could return to Country Road.
I continue to have a strange sensation in my toes, particularly in my second toe. It is very sensitive and it can be uncomfortable even when my doona is resting on my right foot. I have a feeling like there is a space between my first and third toes, particularly as the second toe is now shorter and does not touch the ground. This feels very unusual.
Often when I am walking the second toe moves over to the first or third toe and feels loose and unstable. I try not to place any pressure on the toes by avoiding standing on my toes to reach something, lunging or resting on my right foot which can jar the second toe. The colour in my toes has returned although at times my second toe can become quite red and mottled. It is often colder than the other toes and in winter it can appear bluish. On days when I am on my feet for long periods of time the second toe can swell.
As a result of the accident and the surgery, I cannot wear high-heels any more because heels push my toe into the front of the shoe and this is painful. Even though I am relatively tall, I have always enjoyed wearing fashionable clothing and particularly high-heels. I miss that I cannot dress up like my friends and that I have to wear flat shoes. I also find this embarrassing. I am currently working in a marketing department and appearance is very important. I have always taken pride in my appearance and feel like I cannot dress the way I would like to.
Sometimes even wearing flat shoes will cause a blister to break out on the top of my second toe because the skin is quite fragile. In the past I tended to wear open-toe shoes as they were easier to find in my size than closed-toe shoes. I am extremely wary about wearing open-toed shoes now.
I have been able to gradually return to the gym and jog occasionally – this is when my toes feel most unstable and can jar. I have occasionally played netball but not as much as I used to. I found that the sudden stopping and starting caused pain in my second toe.
Most of all I find the sight of my second toe quite distressing. I am embarrassed by the appearance of my foot and tend to keep my feet covered most of the time. I do not like wearing open-toed shoes in public even though this was all I could wear for some time after the surgery and when examined by doctors because it was too painful and sensitive to put a closed shoe on. When I was overseas I did try to expose my feet where I could because I had been told that the air would help with the healing and I felt okay doing that as I did not know anyone and was not in a social or professional situation like I am at home in Melbourne. Now that I am home I feel self-conscious about my foot and would rather hide it.
I continue to walk with the weight placed on the lateral side of my right foot and have been told that this may result in problems with my knees and hips as it is an altered way of walking. I also believe that my ankle has become unstable because I have changed the position of my foot when I walk.”
[5] PCB 14, at paragraph 34
13 In her second affidavit, the plaintiff said she continues to experience discomfort and altered sensation in the toes of her right foot. She deposed that when she walks, the toes on her right foot feel unstable and uncomfortable, particularly the second toe. She said:
“I continue to feel as if my second toe is floating in my shoe when I am
walking. This toe can ache.”[6]
[6] PCB 26, at paragraph 4
14 The plaintiff further deposes in her second affidavit that when she commenced her work after graduation she experienced long periods of soreness and increased instability in the toes of her right foot, and walking is difficult.[7]
[7] PCB 26, at paragraph 5
15 In her second affidavit, the plaintiff says she continues to suffer from discomfort and altered sensation in the toes on her right foot and continues to walk with the weight placed on the lateral side of her right foot.[8] She says, in her second affidavit, she has developed a “clawing” of the toes in the right foot which gives her added discomfort and causes her ongoing pain.[9]
[8] PCB 26, at paragraph 6
[9] PCB 26, at paragraph 7
16 The plaintiff deposes in her second affidavit that she finds it difficult to find appropriate shoes to wear to work. She now cannot wear high-heeled shoes and the shoes she does wear must be flat and enclosed. From a fashion point of view this causes her considerable embarrassment. I am mindful of the fact that the plaintiff is a twenty-six-year-old attractive, single woman.
17 The plaintiff deposed in her second affidavit that attempts at jogging have been difficult, causing her pain, and her second toe would become swollen and the skin at the tip of it would become very tight, which she says could also be painful. She has not returned to playing netball or basketball, activities which she enjoyed on a regular basis prior to the accident. Indeed, the plaintiff gave evidence of a very active sporting career whilst a young woman at school. She was head of rowing at Lauriston.
18 The issue in this proceeding between the plaintiff and the defendant is whether or not the plaintiff has suffered a “serious injury” within the meaning of that expression as contained in s.134AB(37) of the Act. The defendant’s contention is that whilst the plaintiff may have suffered the injuries, those injuries should not be regarded by me as being “very considerable” or “marked” when judged by comparison with other cases in the range of possible impairments or losses of a body function or disfigurement. The defendant’s case, in a nutshell, is that whilst the initial injury was painful and the recovery from the surgery prolonged and painful, the plaintiff has made a good recovery with few, if any, consequences and her life is relatively unaffected.
19 The plaintiff gave evidence in the hearing of the application and I had the opportunity to observe her at close-range. There is no issue of credit in the case and the defendant does not argue that the plaintiff is given to exaggeration. I observed the plaintiff and formed the view she is a wholly truthful witness who was not exaggerating and, if anything, she played down her symptoms. I accept the evidence she gave and I accept the evidence as she has stated it in both of her affidavits.
20 The application is brought pursuant to s.134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in subsections (37)(a) and (37)(b) of s.134AB which requires the plaintiff to prove she has suffered a “permanent serious impairment or loss of a body function” and/or “permanent serious disfigurement”.
21 In the course of the hearing, I was able to leave the bench and view the second toe on the right foot of the plaintiff and observed that it has been partially amputated. There is no question of there being a permanent disfigurement. The question is whether the permanent disfigurement is “serious” within sub-section 37(b) of the Act.
22 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[10]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[11]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a) and subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to any claim for loss of earning capacity. I note that there is no such claim being made here.
(d)
Subsection (38)(c) provides that the impairment or loss of a body function or disfigurement must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible impairments or losses of a body function of disfigurements may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Where there is a claim for a serious injury certificate relying upon the definition contained in subsection (37)(b), that is “permanent serious disfigurement”, it is permissible for me to take into consideration the plaintiff’s subjective views about her disfigurement.[12]
(g)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of the hearing and permanently. I note there is no claim for loss of earning capacity here.
(h)
Subsection (38)(j) provides that the assessment of “serious injury” is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[13]
[10] S.134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11.
[11] Barwon Spinners (supra) at paragraph 33
[12] Ingram v Ingram & Anor (1996) 2 VR 435
[13] [1994] 1 VR 436
23 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
24 That brings me to the medical evidence which needs some explanation.
25 The plaintiff’s general practitioner, Dr Fowler, provided a very brief medical report dated 8 October 2008. After reciting the history, Dr Fowler opined the plaintiff was fit to return to work and her prognosis was “excellent” except for “some ankle instability due to changing position of her foot to avoid pain to the toe”.[14] I note that report was given in relatively early days as the plaintiff, in the report, is said to be “still recovering from her injuries”.
[14] PCB 45
26 In a subsequent report dated 3 August 2010, Dr Fowler reported as follows:
“The ongoing problems are as follows:
(1) Persistent discomfort of the second toe. She is unable to wear any shoes (except open-toe shoes) without aggravating the discomfort. She is unable to wear open-toe high-heel shoes as they aggravate the discomfort due to a postural effect. (2) Louise has had to assume an altered posture to her foot to ease pressure on the second toe and to support herself as the second toe no longer performs a supportive function. Louise therefore walks with a slight inversion posture to her right foot. This results in:
(a) pain on the lateral side of the foot constantly after 200 metres and pain in the right ankle intermittently; (b) pain in the third toe on the right foot due to extra pressure placed on this toe as the second toe is not supportive (doesn’t touch the ground). The third toe is clawing; (c) pain and clawing of the fourth toe and associated calluses. (3) Apart from normal work activities which may cause discomfort, Louise suffers pain with various sporting and social activities. Her prognosis now is more guarded. Louise’s pain has reduced since the original injury but she still has ongoing discomfort which is aggravated by a number of activities of normal day living along with other complications mentioned above.”
27 I find that the report of Dr Fowler, insofar as it refers to ongoing pain and difficulties which the plaintiff is having, to be consistent with her affidavit and viva voce evidence before me, which I accept. I accept and act upon the evidence of Dr Fowler.
28 The plaintiff was referred by Dr Nicholas Houseman to a podiatrist, Jason Agosta. Dr Houseman had initially seen the plaintiff about two-and-a-half months after the initial injury and he felt that there was nothing that he as a plastic and reconstructive surgeon could do to assist her. Hence, he referred her to Jason Agosta, the podiatrist.
29 Jason Agosta provided a report dated 16 December 2009. The plaintiff presented with pain at the apices of both the second and third toes on her right foot:
“Her toes are now fixed in a clawed position and this is obviously creating
her discomfort.”
30 He prescribed a silicone toe prop to alleviate pressure on the toes and a cover for the amputated toe. I accept and act upon the evidence of Jason Agosta.
31 The plaintiff was referred for medico-legal purposes to Mr Justin Hunt, an orthopaedic and spinal surgeon, who saw her on 2 June 2010.[15] Dr Hunt diagnosed the plaintiff had suffered a traumatic amputation at the tip of the right second toe, managed operatively, with terminalisation of the right second digit. He thought she had developed Complex Regional Pain Syndrome Type II with nerve damage involving the right foot, with evidence of hyperaesthesia and stiffness (fixed clawing) of the second to fourth toes.[16] In his “Prognosis”, Dr Hunt opined as follows:
“Ms Blanc’s prognosis for recovery from her symptoms is poor. It is likely that she will have ongoing sensitivity to her left second toe which will continue to trouble her on a daily basis and she will be aware of the changing symptoms that she has when changing footwear or with the degree of walking that she does. She will remain conscious of the deformity that she has. The fixed clawing that she has of her lesser toes may progress over time but it is difficult to know with certainty whether this will be the case.”
[15] PCB 53
[16] PCB 57
32 Dr Hunt noted the plaintiff still walks with a persistent limp and a number of aspects of her everyday life have been affected by her injuries.
33 Under the heading of “Necessity for Further Treatment”, Mr Hunt opines:
“Ms Blanc has residual features of Complex Regional Pain Syndrome Type II. She has persistent pain in the tip of her left great toe. It is possible that she may have developed a cutaneous neuroma along the margin of the wound at the collection of the nerve endings which are very sensitive. The problem, however, is very difficult to manage and there is no specific treatment that would necessarily be helpful. Further surgical intervention may not solve the problem and so the treatment should be conservative. Ms Blanc has already tried several orthotic devices to help the symptoms. I do not think she could tolerate these devices and therefore I do not think there is anything further that can be done with regard to sensitivity. She has a problem with clawing of the lesser toes of her left foot. It is possible that the deformity may increase over time and as I have mentioned in my examination, the deformities of the second, third and fourth toe appear to be fixed. It is possible these deformities may progress over time and operative management in the form of corrective surgery to her toes may be an option. Options include soft-tissue or bony surgery. This is obviously a last resort. It is possible also that Ms Blanc will develop further problems associated with her abnormal gait pattern. She tends to walk on the outer border of her left foot. She has had gait retraining in an attempt to reduce this problem, however it is possible that Ms Blanc may continue to walk with an abnormal gait pattern. An abnormal gait pattern may result in secondary pain and inflammation in the foot, particularly on the lateral border of the foot where she is placing her weight and she also may develop trouble with trochanteric bursitis in the hip or aching in the knee and ankle as a result of the abnormal gait pattern.”
34 Where Dr Hunt refers to the injury to the left foot, I have read his report as an injury to the right foot as he has obviously made this error in dictating his report. I accept and act upon the evidence of Mr Hunt.
35 The defendant had the plaintiff medically examined by Mr Owen Deacon, orthopaedic surgeon, who saw her on 17 April 2009. Many of the concerns raised by the medical report of Dr Hunt are confirmed by the report of Dr Owen Deacon.[17] In his responses to specific questions, Dr Deacon opines, inter alia, as follows:
“Examination of this worker standing shows her to have a short right second toe following the terminalisation amputation of the tip. I am sending her off for x-rays which haven’t been ordered post-operatively of both feet so that the extent of the amputation can be seen more clearly but I think it is through the distal interphalangeal joint of the right second toe. When she stands it does not touch the ground but with an active effort she can make the tip of it touch the ground. She tends to stand with her right foot supinated, that is with more weight through the lateral side of the foot than medial but she can correct this to a degree by rotating her knees inwards which flattens the inner longitudinal arch which on the other foot seems to be average, neither high nor low. She is able to balance on her toes with her hands holding the edge of the table and she can balance on the points of her heels and also balance easily with both feet supinated but so easily with the right foot pronated although she can with the left. She is able to walk on the spot, run on the spot, repetitively mini jump but not hop on the right as this jars the toe which does not seem to have the same control as the other toes, that is there is quite a gap between the big toe and the third toe for the second toe to lie, and I did wonder whether she might be better off having the second toe fused (syndactylysed) to the third toe to give it stability. The tip of the toe is hypersensitive, and it does have full active flexion and extension at the MTP and the PIP but this injury has resulted in a total loss of the second toe indicated in Attachment A of s.98(e).”
[17] DCB 5
36 In cross-examination, the plaintiff was asked about the prospect of having the second and third toes of her right foot fused to give a webbing effect. Needless to say, she was not at all enthusiastic about this prospect.
37 As I said earlier, during the course of the hearing I had the opportunity to view the plaintiff’s partially amputated second toe on her right foot. There is no doubt that the partial amputation has left the appearance of her right foot as a whole disfigured. The amputation makes the right foot alone appear abnormal and I can imagine this would cause embarrassment to a young woman of twenty-six-years-of-age who I accept prides herself on her appearance. However, after giving the matter careful consideration, I am of the opinion that when compared with other cases of disfigurement, the permanent disfigurement suffered by the plaintiff here cannot be regarded as “serious” in the sense of being more than “significant” or “marked”.
38 I have given a lot of consideration to the application based upon sub- paragraph (a) of the definition of “serious injury” in subsection (37) of s.134AB. The pain and suffering consequences for the plaintiff have been considerable. I accept that her everyday activities are affected in some way by the injury she has sustained. I accept that she has ongoing pain and discomfort in the right foot and I accept that there is the prospect of further operative intervention in the future. I accept the evidence of Mr Hunt that the plaintiff suffers from features of Complex Regional Pain Syndrome Type 2. I accept that the plaintiff has suffered injuries which could be regarded as being more than “significant” or “marked” and as being at least “very considerable”. I accept the plaintiff’s injuries have lead to a permanent loss of body function of the right foot.
39 The defendant also relied upon evidence in the form of a report from Dr Michael Baynes who saw the plaintiff for medico-legal purposes on 25 September 2008. At that time he found there was no evidence of “Reflex Sympathetic Dystrophy”. That may have been the situation at that time but I find the plaintiff has the features consistent with this condition at this time. Accordingly, I do not act upon the evidence of Dr Bayne.
40 Accordingly, I am satisfied that the plaintiff has discharged the burden which she bears of proving that she has suffered a “serious injury” within s.134AB(37)(a) of the Act.
41 Accordingly, the formal order of the Court will be that the plaintiff have leave pursuant to s.134AB(16)(b) of the Act to commence a proceeding claiming damages for pain and suffering.
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