Boschetti v IMP Group Australia Pty Ltd
[2010] VCC 87
•25 February 2010 (with oral reasons)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-02263
| Donna Maree Boschetti | Plaintiff |
| v | |
| IMP Group Australia Pty Ltd | Defendant |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 & 25 February 2010 |
| DATE OF JUDGMENT: | 25 February 2010 (with oral reasons) |
| CASE MAY BE CITED AS: | Boschetti v IMP Group Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0087 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious Injury Application – Accident Compensation Act 1985 – s134AB(16)(b) –– pain and suffering – injury to the ankle and foot
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie SC | Robinson Gill |
| with Mr B. Hutchinson | ||
| For the Defendant | Mr T. Ryan | Lander & Rogers |
| HER HONOUR: |
1 This is an application under s.134AB (16) of the Accident Compensation Act 1985 (“the Act”) for leave to issue proceedings for damages pain and suffering only in respect of an injury to the right ankle and foot sustained by the 39 year old plaintiff on 8 May 2003 when she was struck from behind in the right leg by a moving forklift while working as a casual fruit packer. The parties agree that the injuries to the right foot consisted of a lateral ligament rupture, an undisplaced fracture of the mid cuneiform bone and a closed injury to the right sural nerve. However, the defendant does not agree that there was also an injury to the great toe of the right foot. I return to that matter below.
2 The parties also agree that this was essentially a “range” case. The defendant concedes that the plaintiff suffered an injury to the ankle and foot in the incident on 8 May 2003 and that she has suffered long-term sequelae of that injury in terms of ongoing pain requiring non-prescription medication and some limitation on her social activities insofar as being unable to walk long distances. However, the defendant says that the consequences of the permanent impairment are not more than considerable when compared with other cases in the range of permanent impairments.
3 The defendant relies on the fact that, whereas before her injury the plaintiff was working part-time fruit packing earning less than $10,000 per year, since recovering from surgery she has been working full-time, on her feet most of the day, as an instrument technician in a private hospital earning in the region of $30,000 per year. In addition, the defendant relies on the fact that the plaintiff still goes camping with her family, never really played sport, does not require orthotics or special shoes, and does not appear to be restricted in her movements. The defendant submitted that over the years since her ankle injury she has had other medical and health problems which have preoccupied her and that there have been few presentations to her longstanding treating doctor, Dr Russell, in respect of ongoing ankle symptoms. It was also submitted that on the evidence it was impossible to link the recently diagnosed arthritis in the right big toe to the incident. He relied on the recent medico-legal opinion of Mr Dooley[1] that the ankle surgery was successful in stabilising the ankle but that she would be left permanently with ongoing aching of the ankle and intermittent swelling for which no treatment was required.
[1] See Defendant’s Court Book pages 18-20
4 At the time of the accident, the plaintiff fell to the ground, hit her head and was stunned. She suffered injuries to the right foot including a lateral ligament rupture, an undisplaced fracture of the mid cuneiform bone and a closed injury to the right sural nerve. Unfortunately, the fracture was not identified for some time. After CT scan identified the fracture, her ankle was placed in plaster for eight weeks. After removal of the plaster, she had ongoing pain and the ankle kept giving way. She returned to her part-time work briefly but found that she could not manage the standing and packing work, and then commenced work full-time in late 2003 as an instrument technician in a private hospital.
5 She continued to suffer pain and swelling in the right foot. She saw Mr Beischer in August 2005 and after MRI investigation he performed a lateral ligament reconstruction and neurolysis of the sural nerve on 9 November 2005. She then had some physiotherapy.
6 According to her affidavit sworn on 29 December 2008, she continues to experience right ankle stiffness and instability, a decreased range of movement in the right foot, pain, burning, cramps and swelling and aching in the right foot, especially in cold weather. She takes up to 12 Panadol or Nurofen daily but does not find them of much assistance. She also takes Panadeine from time to time but finds it makes her tired. She has intermittent chiropractic treatment. She has three children aged 12,16 and 17.
7 Prior to her injury she used to run, go trail bike riding, play sport and walk up to 10 kilometres at a time with friends. Since her injury, she is restricted in any activity that requires her to spend prolonged periods on her feet. She can no longer run at all. She has given up regular walking and stays at base camp when the family goes camping. She has not worn high heels since her injury. She cannot do as much trail bike riding as before the injury. She works full time as an instrument technician and is on her feet for much of the day. She is usually in pain by the time she gets home and needs to rest her right foot and take Panadol.
8 At the hearing before me, the plaintiff said that prior to her injury she would go on camping trips with her family on long weekends, free weekends, Easter and Christmas, at least 10 times a year. They would usually go to hilly spots and walk on creek beds and in the bush. She still attends the camping trips but stays at base camp and no longer goes on any of the walks. She still occasionally rides a trail bike, but rides more cautiously. She has had problems with the knees and hips because when the right foot aches it affects the way she walks. She sees a chiropractor every 3 months for the problem in the hips and knees. She also has foot massages done by a friend who is a qualified masseuse. She said that she takes 9 to 10 Panadol per day, and takes a few more on bad nights. She still drives. She can wear normal shoes but says she usually wears thongs or low shoes and cannot wear heels. She agreed that she has had a number of other medical problems over the years unrelated to the ankle injury.
9 She agreed that she did not see Dr Russell until August 2004 in relation to her right ankle injury, although she was treated at the same clinic on the day of the incident. She said that the burning sensation she reported in both feet to Dr Russell in June 2009 was related to her hormone replacement therapy. She insisted that her right big toe was injured in the accident and that she has always had trouble with stiffness in that toe since then, as well as numbness and tingling in the top of the toe. She said that Dr Russell knew about the injury to her right big toe from the start.
10 She said that she worked part-time until after the injury because her three children were in primary school and she had no child care. She used to play football and cricket with them and with other parents at school functions. She can no longer kick a football or play cricket because she can no longer run at all. She agreed that in the video surveillance material shown she could walk without apparent limitation. She said the part-time work as a fruit packer was relaxed and not stressful, and she would have kept doing that work if not injured. Her current position is more stressful and she enjoys it less. She has pain in the right foot all the time, and experiences a continuous burning sensation in it. She feels her right big toe is stiff and this is why she has rolled her foot occasionally and recently stubbed her toe. She has had no similar problems with the left foot. She said that by the end of the working day she is a lot more sore than at the start. She takes three Panadol in the morning, three more at lunch time and another three at home time. She takes more if she has cramps at night. She takes that amount of medication every working day, and only goes without medication on some days she is not working.
Medical evidence
11 In light of the concessions made by the defendant, it is not necessary to canvas the medical material in detail. I have read and considered all the radiological reports[2] and medical reports relied on by the parties. I do not propose to recite the radiological findings in detail. I note in relation to the right great toe, the x-ray taken on 30 September 2008 revealed no bony injury but a bone scan on 3 December 2008 was reported as revealing mild arthritic changes in the right first metatarsophalangeal joint.
Evidence of treating doctors
[2] The parties referred to the following investigations: CT scans of the right foot on 16 May and 19 May 2003, 23 August 2004 and 3 December 2008; bone scans of the ankles and feet on 15 May 2003; bone scan of the right foot on 23 August 2004; x-rays of the right ankle on 8 May 2003; x-ray of the right great toe on 30 September 2008; bone scan and x-ray of the right foot on 3 December 2008.
12 Dr Russell provided three reports. In her first report dated 16 September 2004, she noted that the plaintiff sustained a crush injury to the right foot and a fracture of the cuneiform bone and that in August 2004 her foot was extremely swollen and tender in the midfoot.
13 In her second report dated 25 May 2005, Dr Russell reported that the plaintiff was seen by other doctors at the surgery on 8 May 2003 and x-rays were taken which showed no fractures. A bone scan taken on 15 May showed a possible stress fracture and CT scan confirmed a cuneiform fracture. She was treated conservatively but did not progress and then was put in plaster and a walking boot which was removed in July. She had residual symptoms including pain and burning sensation and frequent rolling of the right foot which Dr Russell attributed to her accident in May 2003.
14 On 15 Feb 2010, Dr Russell updated her previous report, noting that surgery had been undergone and the history over the past two years of gradual deterioration in the pain in the right foot with radiation to the Achilles tendon and her great toe. She noted that the plaintiff’s complaint of problems with her knees and hip because her gait had altered as she could not walk on her right foot properly and limps to get the weight off the right foot. She noted the plaintiff’s report that she was using the maximum dose of Panadol but did not find this very helpful. She also used Panadeine from time to time but it made her quite tired.
15 She noted the recent episode of the right ankle rolling on uneven ground; and further injury to the right great toe in December 2008. Dr Russell felt that in the absence of right foot or ankle problems prior to the accident, the incident of rolling her ankle and damaging her toe were likely to be a direct result of the current status of her foot. She also felt that the arthritis developing in the great right toe joint as shown in the bone scan of 2008 and the persistent retrocalcaneal bursitis is a direct result of the poor mechanics of her foot flowing from the injury in 2003.
16 She noted that the plaintiff was very determined and managed her full-time job with some difficulty, and adjusted her work breaks to rest her foot. She noted there had been a curtailment of physical activities outside the workplace and that she was a very keen walker but could not longer walk distances.
17 Dr Russell gave evidence by video-link. She acknowledged that over the years since the injury the plaintiff has made many presentations to the clinic for other conditions unrelated to her right foot, and that there have been very few consultations in which the plaintiff complained of her right foot symptoms. She agreed that in the three years before 2008 there were no entries relating to right toe problems. She agreed that the plaintiff had not reported taking time off work due to her right ankle symptoms. She agreed that the first mention of gait problems was in December 2008. She agreed that the plaintiff’s treating orthopaedic surgeon, Mr Andrew Beischer, wrote to her in January 2009 and suggested that that the plaintiff try anti-inflammatory medication, and she agreed that none had been prescribed for her.
18 Dr Russell said she had concerns about Mr Beischer’s recent opinion in relation to the great right toe because she had been treating the plaintiff since the accident and had seen her injury and noted that there was a great deal of swelling and bruising around the foot and the plaintiff had told her she had trouble with the big toe. Dr Russell felt that the toe symptoms, including the recently diagnosed mild arthritis, although recently exacerbated by stubbing in late 2008, were related to the injury of 2003.
19 Mr Beischer, provided a number of reports. On 15 November 2005, he reported the plaintiff’s complaint of problems with pain about the lateral aspect of the ankle and also a burning dysesthesia over the lateral aspect of the foot. He performed surgery on 11 November 2005 and diagnosed sural neurotis secondary to a specific injury to the sural nerve at the back of the right leg.
20 On 12 January 2006, he noted the surgical treatment and the referral to physiotherapy after surgery. He concluded that the plaintiff’s prognosis was good in terms of ligament reconstruction but was not able to give a prognosis for the sural neuritis. On 9 May 2006, he noted that she complained again about a burning sensation in the right ankle. At that time he advised her to wait twelve months before any further surgery and to return if that symptom bothered her. He felt her ankle was stable, and she was having trouble with neuritis, particularly of the sural nerve.
21 On 2 September 2009, he noted a history of ongoing pain around the lateral aspect of the ankle and a burning dysesthesia over the lateral aspect of the dorsum of the foot. He noted that when he last saw her in January 2009 her major problem was pain in her right great toe after a hyper-flexion injury a year earlier at home. He noted slight irritability of the 1st great toe joint and good range of motion. He noted that x-ray of the toe at that time was normal but that the bone scan showed mildly increased uptake in the 1st great toe joint. He advised her to try anti-inflammatory medication.
22 Mr Beischer opined on 18 February 2010 that it was unlikely that the incident of 2003 caused an injury to the great toe because the bone scan report suggested no increased uptake in the region of the great toe, which would have been expected had there been a significant injury. He suggested that this issue could be clarified by viewing the bone scan from that time, which he did not do. I note, however, that Mr Beischer did not examine the toe.
Medico-legal examiners
23 Mr Rodney Simm, orthopaedic surgeon, reported on 23 November 2009 that the plaintiff complained of constant aching and a burning sensation in the right foot, which increased at the end of the day and swelled after prolonged standing. She also complained of some pain around the base of the right toe. He found her gait was normal. There was minor restriction of right ankle movement and changes to pin prick sensation along the lateral side of the right foot consistent with mild residual sensory dysfunction in the distribution of the sural nerve, and some mild sensory changes over the dorsum of the right big toe which did not follow a particular anatomical distribution. He felt that the sural nerve symptoms indicated only partial resolution of the sural nerve injury following surgery. He felt that the lateral ligament reconstruction surgery was successful in improving symptoms of instability in the ankle. He felt the radiology showed healing of the fracture. He concluded that her physical injuries had reduced her mobility and led to chronic symptoms which do impinge on her ability to enjoy physical activities, as she could not walk for exercise, and has pain each day when standing at work. He felt the symptoms would be permanent.
24 Mr Peter Battlay, surgeon, reported on 28 July 2003 that the plaintiff gave a history which included the following:
She said the machine made contact with her back, shoulders and mainly the right heel which was caught under the machine somehow. As she fell, the shoe was pulled off her foot and she thinks most probably she sustained a hyper flexion injury to her foot with perhaps a twisting component. She also concludes that the edge of the steel cap of the shoe actually cut into the dorsum of her big toe, where she subsequently developed a large haematoma and sensory loss of the dorsum of the great toe. Most of the damage was to the back of her calf and to her heel.
25 He noted on examination there was normal mobility of the great toe joints without pain. However, he found there was a sensory loss over the dorsomedial aspect of the great toe and a tender area over the cutaneous nerve just proximal to the metatarsophalangeal joint. He felt that she had suffered a complex injury to the right foot and a direct impact injury to the lower calf, as well as an injury to the great toe involving localised nerve damage. He felt that the damage to the toe would eventually recover.
26 Mr Michael Shannon, surgeon, reported on 16 August 2005 that the plaintiff had an undisplaced fracture of the intermediate cuneiform bone and residual pain in the mid foot. Her major problem at the time was lateral ligament laxity and Mr Shannon felt she may need surgery.
27 Mr Michael Dooley, orthopaedic surgeon, reported on 16 November 2009 that after the ankle reconstruction the plaintiff continued to experience ongoing pain and a tendency for the ankle to feel week, with intermittent swelling and pain sometimes radiating up the leg. She told him her ankle aches with standing. He concluded that her symptoms are likely to be permanent and reflect the trauma sustained. He felt that no ongoing specific treatment is required for the “permanent intermittent aching and swelling of the right ankle region”.
Legal principles
28 I turn briefly to the legal principles applicable in this case. In order to make out a serious injury within paragraph (a) of the definition in s.134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function and that the consequences to her in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[3] The court must consider the impairment of body function suffered by this plaintiff, but must also make an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[4]
[3] See section 134AB(38)(c) of the Act
[4] See Sabo v George Weston Foods [2009] VSCA 242 at [66]; Stijepic v. One Force Group Australia Pty Ltd &
29 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[5] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[6] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the very considerable level in terms of pain and suffering. [7]
[5] Fleming v Hutchinson (1991) 66 ALJR 211[6] See Grech v Orica Australia Pty Ltd [2006] 14 VR 602 at [58][7]30 Some weight must be given, in considering whether the pain and suffering consequences of the plaintiff’s impairment are “at least very considerable” to the adverb “very”.[8]
[8] See Grech v Orica Australia Pty Ltd [2006] 14 VR 602 at [80] See TAC v Dennis, [1998] 1 VR 702 at 703 per Callaway JA
31 Each case needs to be determined in light of its own facts[9] and in determining the application, the whole of the evidence is to be considered. A successful return to work by a worker is not determinative against a worker on the issue of pain and suffering[10] and a stoic plaintiff who has been prepared to put up with her pain and suffering and get on with business as best she can should not be treated less favourably than another who, being of less strength of character, simply resigns herself to his injury.[11]
[9] Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
[10] Dwyer v. Calco Timbers (No.2) [2008] VSCA 60; Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
[11] See Dwyer v Calco v Timbers (No. 2) [2008] VSCA 260, per Nettle JA at [3]
32 In addition to considering the limitations imposed on a worker as a consequence of injury, it is also relevant to consider what activities the worker is still able to engage in after injury. As Ashley observed in Dwyer v Calco Timbers Pty Ltd (No 2)[12] :
….in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. 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.
[12] At [2008] VSCA 260, [27]
33 I am entitled to take into account that the plaintiff is 39 years old and that, compared with other persons with impairments of the foot and ankle, she will experience these pain and suffering consequences for a longer period of time.[13]
[13] See Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at [44]34 The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of very serious consequence.[14]
Findings and reasons
[14] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 26735 In the light of the defendant’s concessions, I find that the plaintiff suffered an injury to the right ankle and foot (including the right big toe) in compensable circumstances on 8 May 2003 and that in spite of surgery which successful reconstructed her lateral ligament and the healing of the fracture of the cuneiform bone, she has suffered a permanent impairment to the function of the right foot. I find on the medical evidence particularly the report of Mr Beischer, Mr Simm and Dr Russell’s evidence she suffers ongoing sural neuritis symptoms consistent with only partial resolution of the sural neuritis in surgery. In addition, she has been left with sensory disturbance around parts of the ankle, some mild restriction of movement in the right ankle and with persistent pain in the ankle, and some stiffness and sensory loss in the right big toe. The medical evidence is to the effect that her symptoms will be permanent, that surgical treatment is not required and that medication is sufficient treatment.
36 In relation to the big right toe, I prefer the evidence of Mr Battlay, who examined the plaintiff’s great toe a few months after the accident and largely confirms the plaintiff’s insistence that she did suffer an injury to her toe as well as the evidence of Dr Russell to a similar effect.
37 I consider the weight of the evidence (taking the opinion of Mr Simm, Mr Battlay and Dr Russell) to be that the big right toe was injured in the accident and that the ongoing symptoms in that toe, including the pain, sensory symptoms and the mild arthritis recently diagnosed in it, have been caused or contributed to by the accident in may 2003.
38 I consider on all the evidence before me for the following reasons that the consequence of the plaintiff’s permanent impairment of the right ankle and foot are, when compared with other cases in the range of permanent impairments of the ankle and foot, fairly described as being more than significant or marked and as being at least very considerable.
39 I found the plaintiff to be a straightforward and understated witness and I accept her unchallenged evidence as to the long-term symptoms she has suffered since her injury, as well as her evidence concerning the impact of her injury on her daily life. I consider that she has been relatively stoic in relation to the sequelae of her ankle injury. In particular, I accept her evidence that she suffers pain in the right ankle all the time, that she struggles at work and that she is only able to manage at work by taking 10-12 Panadol per day. She was a relatively young woman when injured at the age of 33. She will suffer the pain and suffering consequences of her right foot injury indefinitely and for longer than a worker who was injured at a later age. She was a relatively fit person. She worked fruit grading and packing and had enjoyed that work since 1986 and intended to keep doing that kind of work. She had no previous problems with the right foot. She was able to play sport with her children, work unhindered, and walk daily up to 10 kms a day with her friends. She was able to go creek walking and bushwalking when camping with her friends at least 10 times a year. As a result of her right ankle injury, she can no longer run at all. She can no longer walk distances. She stays at base camp when the family goes camping. She can no longer walk daily with her friends for exercise. Most importantly and relevantly, she suffers continuous pain in the right foot for which she takes the maximum dose of Panadol which does not completely relieve her symptoms. She takes that medication consistently except when she is not working. Notwithstanding that medication, she still experiences pain. At night, when she experiences pain and cramps, she takes additional medication.
40 Counsel referred me to a number of authorities. As the authorities make it clear, each case is to be considered on its particular facts. There is little to be gained by attempting to precisely define in exactly which respects the facts of this case approximate or depart from other cases in which plaintiffs have failed or succeeded. However, having regard to the submissions made by the parties, I make the following observations.
41 The plaintiff’s return to work full time is not determinative against her because there is other relevant evidence concerning pain and suffering to be taken into account. In Stijepic[15], the episodes of pain experienced by the plaintiff were not continuous or substantial and were controlled by moderate strength non prescription medication taken only from time to time. In this case, of course, I have found that the plaintiff suffers continuous pain which requires a substantial amount of non-prescription medication which is taken daily, except perhaps when the plaintiff is not working. In Sabo[16], the plaintiff’s pain was described by doctors as mild and found by the court not to be unrelenting. In this case, I have found that that the plaintiff’s pain is constant. In Kelso[17], the plaintiff failed on appeal partly because he could work full time, play football, but also because he suffered only some mild pain, and only took Nurofen when the pain was more severe. Finally in Chadband v Catalyst Recruitment Systems Pty Ltd[18], the plaintiff failed because he had periods when he was pain free and only took medication intermittently. In this case, I have found that the plaintiff takes the maximum dose of Panadol for pain which is constant, and which interferes which her capacity to manage her work and her out of work activities.
Conclusion
[15] Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
[16] Sabo v George Weston Foods [2009] VSCA 242
[17] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267
[18] Chadband v Catalyst Recruitment Systems Pty Ltd (unreported, County Court of Victoria, Parrish J, 18 February 2010)
42 It follows that leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering only in respect of the injury to the right ankle and foot sustained on 8 May 2003 during the course of her employment. I will hear the parties on the question of costs.
Anor [2009] VSCA 181, per Ashley JA at [42]
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