Borg v Victorian WorkCover Authority
[2012] VCC 563
•11 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT BENDIGO
CIVIL DIVISION
Case No. CI-11-03481
| LAWRENCE GABRIEL BORG | Plaintiff |
| v | |
| VICTORIAN WORK COVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 13 April 2012 | |
DATE OF JUDGMENT: | 11 May 2012 | |
CASE MAY BE CITED AS: | Borg v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 563 | |
REASONS FOR JUDGMENT
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Catchwords: Section 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) – Pain and suffering only – Right ankle injury – Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 – Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin S.C. with Mr D. Purcell | Arnold, Dallas & McPherson |
| For the Defendant | Mr A. Moulds S.C. with Ms S. Manova | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
1 This is an application by the plaintiff pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) to commence proceedings for the recovery of pain and suffering damages for an injury to his right ankle sustained in the course of his employment with the defendant in or around January 2003.
2 To make out a ‘serious injury’ within the meaning of s. 134AB(37)(a), the plaintiff must establish that he suffered a permanent, serious impairment or loss of body function. The determination of whether an injury is serious is assessed solely by reference to the consequence to the particular plaintiff of the relevant impairment or loss.
3 An impairment is not serious unless the pain and suffering consequences 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.
4 The issue in this case is whether the plaintiff’s impairment can be fairly described as being more than significant or marked and as being at least very considerable.
5 The parties provided documentary material in their respective court books. A number of extra documents were tendered. The only person to give evidence was the plaintiff.
Background
6 The plaintiff was born on 1 July 1967 in Parramatta, New South Wales and he is now 44 years of age. He grew up in Sydney for the first five years of his life and then moved to Leeton, in the Riverina, until 1994. From 1994 to 2006 he lived mainly in and around Griffith. He has three boys from a de facto relationship.
7 He was educated at Leeton Primary School and later at Leeton High School, where he completed Year 10. When he left school, he began a TAFE course to qualify as a fitter and turner. It was a 12 month course but he only finished six months and then he left.
Employment prior to the injury
8 The plaintiff has predominantly done physical labouring type work since leaving school. He has an extensive work history, which includes fruit picking, general farming work, factory work, cleaning work, drilling water bores and installing deep water pumps. In addition, work as a loader operator, chemical mixer for crop dusters, as a bottling line attendant and as a fork lift driver in a Winery.
The accident
9 The plaintiff began working for AG Airwork Pty Ltd in Warrnambool in early January 2003 as a chemical mixer for crop dusters and driving loaders. Most of the work was done on farm airstrips at various places. On 6 February 2003, he was working on an airstrip near Warrnambool which was dirt and grass with a lot of rocks. Many of the rocks were hidden in the grass. During the morning, he was parked in a loader with fertiliser proceeding to go from one end of the airstrip to the other. As he climbed down, his foot slipped, landing on a rock about the size of a tennis ball hidden in the grass. He distinctly heard two cracking sounds. Both feet came down and as the rock was right underneath the ball of his heel his foot rolled both ways.
10 The plaintiff’s fellow workers helped him into a ute. His foot became dark and bruised almost right away. He had to wait for his fellow workers to finish before he went home. One of them took him to Warrnambool Hospital. At the time, Warrnambool Hospital could not x-ray his foot, so a back cast was put on his foot and it was x-rayed the following day through the back cast. At this time, a fracture was not identified and the doctor thought it was a bad sprain. By this time, the plaintiff’s right foot was badly bruised and swollen and had turned a blue-black colour.
Employment after the injury
11 The plaintiff claims that this injury to his right ankle affected all of his subsequent employment and that there were some jobs he had to stop because of pain and discomfort, due to his ankle injury. He also claims that he was cautious working because he was concerned that he might injure his ankle again.
12 The plaintiff’s employment after the injury was similar to that he had performed before the injury. Until the end of 2003, he did cleaning work. This was followed, in 2004, by forklift driving at Castella Wines and Yellowtail Estate, and loading and chemical mixing at Thomson Aviation.
13 In 2006, he worked at Orlando Wyndham Estate Winery in Griffith, driving a fork lift at an abattoir in Echuca and, from about mid 2006 until mid 2007, for Weed Wizards driving a spray unit.
14 The plaintiff deposed in his affidavit of 7 April 2011 (see in particular paragraphs 15 – 18) and gave evidence of the difficulties he experienced in these jobs, due to the pain in his ankle, including that:
· after his injury, in 2003, he returned to cleaning work and suffered pain in his ankle and was worried about slipping over and falling;
· in 2004, when he worked for a winery driving forklifts, he managed by using his heel to drive; when the pain became too much, he stopped this work;
· after this, he worked at Thomson Aviation, loading and chemical mixing again, but struggled with the pain in his ankle and could not finish the season; he was doing heavy manual labour and had difficulty continuing;
· with the job from 2006 to mid 2007 with Weed Wizards driving a spray unit, he struggled because of his ankle injury as he was required to get in and out of the back of a ute to fill containers at times on uneven ground.
15 In early 2006 to 2007, the plaintiff applied for the Army Reserves but later withdrew his application because he did not think he could handle the physical aspect. In July 2008, he worked for Moama Garden Supplies until that business was sold.
16 With his right ankle, foot and leg symptoms developing over the years, late in 2008, he sought legal advice as to his potential Workcover entitlement. He pursued a Workcover claim for weekly payments of compensation and medical expenses and the claim was accepted.
Eventual treatment
17 In 2008, the plaintiff was sent to see Dr David Richards in Echuca by the Commonwealth Rehabilitation Service. Dr Richards first saw the plaintiff on 13 August 2008 and he arranged another x-ray, which identified an old fracture in the plaintiff’s right ankle. Dr Richards referred the plaintiff to an orthopaedic surgeon, Mr Milan Pavlovic.
18 On 17 October 2009, Mr Pavlovic performed surgery on the plaintiff’s ankle, being a right ankle arthroscopy and scar tissue debridement. However, there was little improvement in his symptoms after this procedure and Mr Pavlovic informed the plaintiff that he had post traumatic synovial scarring and osteoarthritis. In addition, the plaintiff was told that he may require further orthopaedic intervention.
19 The plaintiff had four sessions of physiotherapy through the Commonwealth Rehabilitation Service. When this ceased, he had physiotherapy once a week with a physiotherapist, Ms Kaye Knight, for some time. He has seen an orthopaedic appliances prosthetist, Mr Matt Fleming, who looked at his ankle and suggested he use an instep and brace for his ankle, to limit the range of movement in his ankle joint and provide support.
Most recent employment
20 After his Workcover weekly payments of compensation ceased, as from 22 January 2011, the plaintiff obtained a job as a cleaner on houseboats in Echuca. This was light cleaning work for 10 to 20 hours a week. In addition, he did some painting work.
21 In early February 2011, the plaintiff found employment with Mike Watson, trading as “A1 Cleaning,” doing contract cleaning around the Echuca district. Although he could cope with this work, he found it difficult to use the mop and buckets and he could only cope with restricted hours (Tuesdays to Fridays, 6:00pm until 9:00pm, with additional work on Fridays from 11:00am to 1:00pm).
22 The plaintiff currently works as a machine operator at Berri Fruit Juices in Leeton. He works 8 hour shifts, 5 days a week and in essence his job involves pushing buttons (transcript p. 35).
Medical reports relied on by the plaintiff
i) Southwest Health Care
23 The most contemporaneous record of the plaintiff’s injury was a letter (on the back of a Workcover Certificate of Capacity), dated 7 February 2003, from the Warrnambool Base Hospital to a physiotherapist, reporting inter alia that:
“Mr Borg presented on 6 /2/03 with an inversion roll of ankle ® off a rock and audible “crack”. This happened at his work at the Warrnambool Airport. He is a chemical, filler and will be unable to drive trucks unless they switch to automatics”.
24 An x-ray of the right ankle was done through a plaster of paris backslab. The plaintiff’s symptoms were described as including severe bruising medially and laterally, very painful medial and lateral malleoli, no pain in calf, generally pain on movements and very swollen and warm.
25 The plaintiff was given advice to elevate and ice his foot and it was strapped.
ii) Dr David Richards
26 In his report of 5 March 2009, Dr Richards diagnosed the plaintiff as having osteoarthritis of the right ankle with evidence of an old soft tissue injury (the talar beak and of a healed fracture of the medial malleolus). He also had a minor lower lumbar apophyseal joint degeneration.
27 Dr Richards reported that the plaintiff’s right ankle was unstable and, as a result, he was unable to move quickly, particularly on uneven ground. In addition, because of his back pain, he was unfit to lift heavy weights repeatedly or for task involving repeated bending, twisting, pulling or pushing.
28 In relation to causation, Dr Richards considered that it was “highly probable that the condition of the right ankle was a direct result of the inversion injury on 6 February 2003”. He was not aware of any history of injury to that joint prior to February 2003.
iii) Mr Milan Pavlovic
29 Mr Pavlovic is the consultant orthopaedic surgeon who carried out the plaintiffs right ankle arthroscopy on 7 October 2009. Mr Pavlovic reported that the right ankle arthroscopy revealed the “presence of post-traumatic scarring of synovium involving the anterolateral and anteromedial segments of the ankle joint”.
30 Mr Pavlovic concluded that the plaintiff had made a good post-operative recovery with no complications but he noted that the plaintiff continued to experience discomfort when walking, specifically involving the anterolateral corner of his ankle joint.
31 Mr Pavlovic advised the plaintiff that there was a tendency for this condition in some cases to aggravate slowly over time, manifesting as increased stiffness resulting from the onset of early arthritic change. The prognosis of the condition in the long-term was that depending on the level of the plaintiff’s activity it may gradually aggravate.
32 In his follow up report, dated 1 November 2009, Mr Pavlovic diagnosed post-traumatic synovial scarring and early onset of arthritis (his initial diagnosis was post-traumatic pain to the plaintiff’s right ankle joint). In his opinion, the plaintiff would not be able to return to activities which combined walking for long distances, standing for long periods of time, climbing stairs or performing similar activity. I addition it was likely in the future that he would need a brace which “might limit the painful range of movement to his ankle joints”.
33 In his report of 12 April 2010 Mr Pavlovic stated that the plaintiffs clinical examination “indicated pain projecting at the level of the anterior aspect of his ankle joint. with a degree of limitation of movement. His radiological examination and MIR showed no major pathology apart from the sharpening of the anterior lip of the tibia on the x-ray ,which ,by nature ,would cause a degree of soft tissue impingement.”
34 Despite the absence of major pathology on these radiological examinations Mr Paviovic maintained his opinion that that dependant on the level of the activity his condition may gradually aggravate.
iv) Dr Yong Ong
35 In a letter to the plaintiff’s solicitors, dated 9 June 2010, Dr Yong Ong from the Rich River Health Group confirmed that the plaintiff had suffered an injury to his right ankle while working as a loader operator in March 2003. He reported that the plaintiff had degenerative changes on an x-ray and that the arthroscopy finding was compatible with osteoarthritis of his right ankle.
36 Dr Ong thought it was possible that the plaintiff may have sustained a medial malleolar fracture at the time which may not have been treated optimally. Dr Ong also reported that the plaintiff had some chronic back pain which was due to lumbar spondylitis but that “his ankle injury probably aggravates this as much as his posture and walking are affected by his ankle pain and stiffness”.
37 The plaintiff’s prognosis was of “chronic right ankle pain and stiffness which may worsen in the future and require further orthopaedic intervention”. Dr Ong considered that he was capable of suitable duties which would have to be of sedentary nature because of the reduced ability to stand or walk without pain.
v) Dr David Murphy
38 Dr David Murphy, a consultant physician in rehabilitation medicine, examined the plaintiff on 13 July 2010 and on 7 February 2010.
39 In his opinion, it appeared that the plaintiff had sustained a severe sprain to the left ankle in 2003, which had “”likely resulted in a medial ligament strain and internal joint injury which may not have been identified early on”. Subsequently, he had developed “a significant osteoarthritis” of the right ankle and now he had developed some secondary mechanical pain involving his right knee and lumbar spine.
40 In Dr Murphy’s opinion, it “was fairly clear that the accident in February 2003 set off a train of events causing development of arthritis of the ankle and then secondary gait problems which have resulted in knee and back pain”. He thought that, although the plaintiff’s ankle was relatively stable at present, it was likely to deteriorate in the future.
41 With respect to the plaintiff’s capacity for employment, Dr Murphy was of the opinion that it was limited. ( see report dated 13 July 2010).
42 The plaintiff’s prognosis was fair, however it was reasonably likely that he would develop further problems in the future and that he may require surgery in the form of an ankle fusion.
vi) Dr Thomas Kossmann
43 In his report, dated 16 February 2010, Dr Kossmann diagnosed the plaintiff as having advanced osteoarthritis in the right ankle after a conservatively treated right ankle injury. In Dr Kossman’s opinion, the right ankle condition is related to the accident on 6 February 2003.
44 Dr Kossmann was of the opinion that the plaintiff would suffer from his right ankle injury for the rest of his life. His prognosis was that the plaintiff may:
· have to undergo further treatment, either conservatively or operatively;
· have to undergo further arthroscopy of his right ankle; and
· in the worst case scenario, a total replacement of his right ankle joint or fusion.
45 With respect to his work capacity, the injury impacted on his capacity to work and he has left several employments due to his right ankle injury.
Medical reports relied on by the defendants
i) Dr Michael Long
46 There were two reports from Mr Michael Long, dated 8 December 2008 and 18 December 2008. In his first report, Mr Long expressed the opinion that there was sufficient evidence that the plaintiff had suffered a “very significant sprain to his right ankle in a probable work related injury on 6 February 2003”.
47 In the absence of other subsequent evidence for injury, Mr Long was of the opinion that the osteoarthritis that had developed in the plaintiff’s right ankle was directly related to the injury sustained at work on 6 February 2003 (report 18 December 2008).
48 However, in his later report, Mr Long’s clinical diagnosis was that:
“It is probable that Mr Borg sustained an undisplaced fracture of the medial malleolus of the right ankle, together with a severe sprain with an inversion injury which occurred at work on 6 February 2003. He has ongoing pain and restriction of movement and there are degenerative changes evident about the right ankle as depicted in the latest plan x-ray of 15 August 2008”.
49 As to the plaintiff’s work capacity, Dr Long was of the opinion that he was no longer fit to undertake labouring duties and he should undertake sedentary work. With respect to the plaintiff’s low back symptoms, in Mr Long’s opinion, they were not related to injury to ankle on 6 February 2003.
ii) Mr Clive Jones
50 Mr Clive Jones, an orthopaedic surgeon, provided the defendant with two reports, dated 12 April 2010 and 13 August 2010. In his second report, Mr Jones described the plaintiff’s disability as “minor rather than major”. In his opinion, the plaintiff’s employment options included work as a security officer, a seated factory worker, a dispatch officer or as a counter salesperson in agriculture.
51 In his report of 12 April 2010, Dr Jones found on examination of the plaintiff’s right ankle that it:
“showed minimal swelling and two arthroscopic portals, which were well healed. The ankle was surprisingly stiff, with zero dorsi flexion range (15 on the left) and a plantar flexion range of only 10 (40 on the left). Inversion of left heel was about one third the normal rate and was painful. Calf circumference was 36 centimetres. There was some posterior tenderness. The legs were neurologically normal”.
52 In his opinion, from a clinical point of view, the plaintiff had a “mildly arthritic ankle” and he thought that it was “unclear just why the joint is so stiff and the subtalar joint beneath it so irritable”.
53 Mr Jones considered that “for the time being” surgery, such as ankle fusion or ankle replacement, did not appear appropriate. Further suitable employment options identified included a forklift driver, light courier driver and factory process worker.
iii) Mr Rodney Simm
54 Mr Rodney Simm, orthopaedic surgeon, was of the opinion that the plaintiff had post-traumatic early osteoarthritis of the right ankle and that “he could be regarded as having a mild to moderate impairment and loss of function of the ankle which impairment was likely to persist for the foreseeable future”.
55 The prognosis for the plaintiff was for persistent symptoms in the right ankle with a tendency to gradually deteriorate over a period of years. In addition, if he had progressive degenerative changes in his right ankle, at some stage in “the distant future,” he may require ankle surgery.
56 With respect to the plaintiff’s low back pain and referred pain into his right leg, Mr Simm was of the opinion that the most likely cause for this pain and referred pain was constitutionally based lumbar disc degeneration, which would not be evident on plain x-rays or a CT scan.
57 As to the plaintiff’s work capacity, Mr Simm considered that he was incapacitated for unrestricted physically demanding employment. He would have difficulty working on rough terrain and performing heavy manual work. However, he had a physical capacity to undertake work as a cleaner and could work full-time if the work was available.
iv) Mr Brendan Dooley
58 Mr Dooley’s diagnosis from a clinical point of view was that the plaintiff probably had early osteoarthritis of his right ankle joint with recurrent synovitis, which limited him. He also had atrophy of his right thigh and right calf musculature secondary to the painful ankle and evidence of mild retropatellar chondromalacia affecting his right knee joint.
59 With respect to his work capacity, Mr Dooley was of the opinion that the plaintiff was fit for light sedentary type work. No further clinical treatment was likely to help him and surgery was not indicated (report of 19 November 2010).
v) MIR 10 June 2009
60 The defendant also relies on the MIR undertaken by Mr Pavlovic on 10 June 2009, where the conclusion was:
“No significant ligament disruption, medially or laterally. A significant osteo-chondral defect, bone marrow oedema, joint effusion or loose bodies not revealed. Small planter ganglion as described”.
Finding in relation to injury and causation
61 I accept on the balance of probabilities that on 6 February 2003 the plaintiff suffered a fracture injury of the medial malleolus to his right ankle with post traumatic scarring involving the anterolateral and anteromedial segments of the ankle joint.
62 This conclusion is supported by:
· The findings of Mr Pavlovic, when he performed the right ankle arthroscopy on 7 October 2009.
· The x-ray, performed in August 2008, which noted evidence of an old healed fracture of the medial malleolus and the presence of a tarlar beak.
· The report from South West Health Care, which referred to the plaintiff hearing an “audible crack” at the time of the injury.
· The reports of Dr Richards, Dr Ong, Mr Kossman and Mr Simm; in that, although Mr Simm thought that the history was suggestive of a severe ankle sprain, he considered that it was equally consistent with an undisplaced fracture.
63 While Mr Dooley and Mr Murphy both thought that the injury was more in the nature of a strain (Mr Murphy; “a severe strain”), the real issue in this case is with respect to the consequences of the injury.
64 I accept that one of the consequences of plaintiffs ankle injury has been to aggravate his lumbar spondylosis. In this respect I accept the opinions of Dr Ong , Dr Murphy and Dr Richards. I accept their opinion on this issue rather than that of Mr Simms as I consider that on the balance of probabilities the abnormal gait resulting from the ankle injury would impact on the back.
65 I accept that a further consequence of the plaintiff’s ankle injury is likely to be the development of osteoarthritis. There was a difference in the medical opinion as to the degree of osteoarthritis currently suffered by the plaintiff (e.g. Mr Kossman, “accelerated osteoarthritis”; Dr Murphy, “significant osteoarthritis”; Mr Dooley, “early inflammatory or osteoarthritic change”; Mr Long, “early degenerative changes evident in the ankle” as depicted in x-ray of 15 August 2008; Mr Simm, “none of the investigation reports refer to osteoarthritis of his ankle, the arthroscopic operation findings were of mild changes and the MIR of June 2009 showed no major pathology”).
66 However, irrespective of current degree of osteoarthritis, the majority medical long term prognosis is for the plaintiff to develop degenerative changes with the possibility of remedial surgery (as per Mr Long, Mr Simm, Mr Pavlovic, Mr Kossmann, Dr Ong, and Mr Murphy).
67 I am satisfied that despite the surgery on his ankle the plaintiff has suffered a permanent impairment to his right ankle.
Case for the plaintiff in relation to ‘serious injury’
68 The plaintiff claims that the consequences of the injury to his right ankle are such that it is a ‘serious injury’. They include that:
· He has developed early osteoarthritis in his ankle.
· He his incapacitated for heavy work.
· He had to undergo an operation and faces the possibility of further deterioration and the risk of further surgery including fusion or ankle replacement.
· He has to brace and elevate his ankle at night just about every day (transcript p. 12).
· He often walks with a limp because of the pain and tends to lean to his right side.
· He cannot walk long distances over heavy or rough ground and the longest he can walk is really just to get the groceries (transcript p. 12).
· Although he can drive, he cannot drive long distances.
· His right ankle is constantly aching and throbbing to some degree and when the weather is cold, his right ankle is particularly sore
· If he overdoes it, his right ankle swells up and he suffers pain.
· He takes medication daily, the amount varying although normally he takes two Panandol before he goes to bed or in the morning. He sometimes takes more if his ankle flares up (transcript p. 43).
69 The plaintiff’s evidence, with respect to his ankle pain, was that it varied from day to day. If he was standing for too long, “it would sort of swell up and swell and flare and throb and get hot and things like that.” Once he had a rest, it “would settle down but he could still feel it all the time” (transcript p. 11).
70 The plaintiff also claims that over the past few years he has suffered problems with his right knee, right hip and lower back. He often suffers from back pain. He has crepitus in both knee joints, particularly the right knee. He feels that these problems have developed because his body has had to compensate for his right ankle.
71 With respect to his recreational life before the plaintiff injured his ankle, he would go fishing, camping, bushwalking and gold prospecting regularly. He enjoyed venturing into old towns and walking around looking at old buildings and their surrounds. With the bushwalking prior to his injury, he “could go all day” and with the metal detecting, it used to last for eight hours and he would go until it ran out (transcript p. 44).
72 The plaintiff’s evidence was, in essence, that although he still goes fishing from time to time, it was is for shorter periods than he used to and, because of his ankle, he is restricted as to where he can go to fish (transcript pp. 36 – 37). Now he rarely goes camping and bushwalking or metal detecting because he finds it difficult and suffers pain and discomfort in his right ankle and right knee.
73 In addition, before the plaintiff injured his ankle, he enjoyed gardening and doing woodwork in his shed. However, the amount of woodwork he does now is reduced because he has difficulties standing for prolonged periods and going out to the forest to cut the wood (transcript p. 40). While he could still do light gardening, heavier gardening was difficult (transcript p. 41).
74 The injury to his right ankle has affected his intimacy with his partner. He sleeps poorly and his sleep is often disturbed. In winter, he particularly suffers from pain because the weight of the blankets put pressure on his right foot. He has to sleep on his side and keep his foot on that side (transcript p. 12). Since the accident, he has been depressed and anxious. He leads a more sedentary life and he is much less social.
Case for the defendant in relation to ‘serious injury’
75 In his closing address, senior counsel for the defendant submitted that the plaintiff’s pain and suffering consequences “fall within a part of the spectrum that is below very considerable”. In support of this submission, the defendant relied, in particular, on the following matters:
· that the plaintiff’s pattern of employment before and after the injury was broadly similar, being employment for a period of time and then moving on;
· that if he had been forced by his injury to leave his various jobs he would have sought treatment;
· that in so far as his recreational activities were concerned he could still drive and get around in his immediate area;
· that there was no evidence that he had been forced to give up any particular sporting activity because of his injury;
· that he could still do some recreational fishing; and
· that that their was no evidence of the regularity of the plaintiff’s woodwork or of it being a particular passion of his.
76 With respect to the plaintiff having osteoarthritis and the possibility of surgery in the future, the defendant’s case is that there is nothing on the MIR or x-ray to suggest that the plaintiff has early osteoarthritis. Alternatively, if he has such a condition, then it was “mild osteoarthritis at best”. In this respect, the defendant relied, in particular, on the opinion of Mr Simm (transcript. p. 66).
Finding with respect to the plaintiff’s pain and suffering
77 In Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P set out the various considerations, which judges routinely have regard to when addressing pain and suffering issues. It is hardly surprising that one of these considerations is the plaintiff’s credit.
78 In his closing address, senior counsel for the plaintiff submitted that the plaintiff had given his evidence in a straight forward manner and that none of the medical experts had expressed any concern about his credibility. This assessment of the plaintiff is consistent with my own. I found the plaintiff to be an honest and frank witness, who made no attempt to exaggerate his injury.
79 An assessment of the plaintiff’s pain level and how it restricts him is also a relevant consideration. I accept the plaintiff’s evidence, that he suffers from daily pain and that his pain fluctuates depending on the activities he is doing. I consider it significant that he now has to elevate and brace his ankle just about every night. In addition, that at present he is taking medication (albeit over the counter medication) on a daily basis to help him cope with the pain.
80 Although I accept senior counsel for the defendant’s submission that the plaintiff’s “jobs before and after the injury were much the same”, I accept that after the injury to his ankle the plaintiff had problems performing the jobs that he had not encountered before suffering his injury. While this may not always have been his sole reason for leaving the various jobs after his injury, it was consistent with the histories he gave to the medical experts referred to earlier in this judgment (see, in particular, history outlined by Mr Simm and Mr Murphy).
81 It appears to me that the plaintiff fits into the category of the stoic plaintiff, who puts up with his pain and makes the best of his situation. A number of decisions of the Court of Appeal have made it clear that the injury suffered by the stoical plaintiff is not to be viewed as any less serious, merely because he manages to remain more active than might have been expected given the given the level of pain (Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260).
82 Most importantly, I must look at the plaintiff’s condition as at the date of the hearing. While in the past he may have been able to carry out these physical labouring jobs and put up with any pain and discomfort it caused him, I accept that he cannot perform these heavier jobs now.
83 This finding is consistent with the majority medical opinion, which was that the plaintiff was no longer fit for heavy labouring work, but that he could do work of a light sedentary nature (Mr Dooley, Dr Ong, Mr Jones and Mr Long) or work of lighter physical nature, such as cleaning (Mr Simm).
84 With respect to his recreational activities and enjoyment of life, I accept that the plaintiff can no longer go bushwalking and metal detecting and that his fishing is restricted, due to his inability to negotiate steep banks. Most importantly, given the paucity of other recreational activities (other than woodwork) and his enjoyment of the outdoors, I consider that this loss is significant to the plaintiff.
85 There was no evidence as the amount of woodwork he did before the injury or of it being “passion of his”. However, given his inability to stand for long periods and to collect wood from the forest, I accept that his enjoyment of this hobby is reduced. In addition, I accept that the plaintiff has suffered the consequences set out in paragraph 68 of this judgment.
86 I am satisfied that when judged by comparison with other cases in the range of possible impairments or losses of a body function the plaintiff pain and suffering may fairly be described as more than significant or marked and as being at least very considerable. Consequently, I grant leave for the plaintiff to bring proceedings at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injury for pain and suffering related to the injury to his right ankle sustained during the course of his employment with the defendant.
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