Brankovic, Zoran v Transport Accident Commission

[2012] VCC 1553

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-11-04546

ZORAN BRANKOVIC	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE KINGS
WHERE HELD:	Melbourne
DATE OF HEARING:	5 and 8 October 2012
DATE OF JUDGMENT:	18 October 2012
CASE MAY BE CITED AS:	Brankovic, Zoran v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2012] VCC 1553

REASONS FOR JUDGMENT

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SUBJECT – TRANSPORT ACCIDENT – damages
CATCHWORDS – Serious injury – injury to the right ankle
LEGISLATION CITED – Transport Accident Act 1986, s93 – serious injury – paragraph (a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis [2000] VSCA 26

JUDGMENT – leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P O’Dwyer SC with Mr N Griffin	Maurice Blackburn Pty Ltd
For the Defendant	Mr G Lewis SC with Ms B Myers	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 19 November 2004 (“the accident”).

2 Section 93(6) of the Act provides:

“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”

3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found s93(17) of the Act.  There –

“serious injury means—

(a)     serious long-term impairment or loss of a body function.”

4       The loss of body function relied upon in this application is right ankle. 

5       The plaintiff seeks leave to issue proceedings at common law.

6       The plaintiff relied upon six affidavits: two sworn by him on 17 August 2011 and 25 September 2012; one sworn by his de facto wife, Suzana Salapura, on 5 September 2012; and affidavits of Milivoje Bajagic, sworn on 19 December 2011; John Okovic, sworn on 4 February 2012; and Bojan Kostic, sworn on 9 February 2012.

7       The plaintiff was cross-examined.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

Relevant Legal Principles

8       The Court must not give leave unless it is satisfied, on the balance of probabilities:

(a)that the injury suffered by the plaintiff was as a result of the transport accidents;

(b)that the injury is a serious injury within the meaning of the definition of “serious injury” contained in s93(17);

9       The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.  The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:

“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences.  The former fall under paragraph (a) and the latter under paragraph (c).  It would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c).  A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.

Now in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms:  he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury.  To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term.  We think ‘long term’ is not an expression likely to give rise to difficulty.  To be ‘serious’ the consequences of the injury must be serious to the particular applicant.  Those consequences will relate to pecuniary disadvantage and/or pain and suffering.  In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is:  can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]

[1][1992] 2 VR 129

[2]          Humphries & Anor v Poljak (supra) at [140]

10      The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function.[3]

[3]Richards v Wylie (2000) 1 VR 79

11      The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[4]

[4](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29

The Issues

12      Counsel for the defendant informed the Court that the consequences do not satisfy the narrative test and this is a “range” case.

The Plaintiff’s Evidence

13   In his affidavits sworn on 17 August 2011 and 25 September 2012, the plaintiff deposed that:

·        On or about 19 November 2004, he was pushing his trail bike across the street when he was struck by a motor vehicle.  The collision crushed his legs between the front of the vehicle and the trail bike.

·        As a result of the collision, he suffered fractures to the lower part of his right tibia and fibula, as well as injuries to his right ankle and left knee.

·        He was taken to hospital by ambulance, and Mr Byrne, orthopaedic surgeon, performed surgery on his right leg.  On 1 December 2004, Mr Byrne performed further surgery, including inserting two plates and twenty-two screws into his leg.  The metal work is still in his leg.

·        In early 2005, he began physiotherapy.  He subsequently undertook a gymnasium program.  He continued with rehabilitation throughout 2005.

·        As a result of his injuries, he was off work until the latter part of 2007, when he returned to light duties as a painter with his employer.  However, he still requires days off work from time to time, and sometimes has to leave work early.  He tries to do more organisational work.  He can no longer work as fast and can not lift as much as he could before the collision.  He has to rest frequently.

·        He continues to suffer constant pain and stiffness in and round the lower part of his right leg and right ankle.  The pain is constant, but varies in intensity.  He experiences periods of numbness and some tingling sensations. 

·        The pain is aggravated by standing too long or walking too far.  Stairs, inclines and ladders are also difficult.  The right ankle joint is unstable and he has to be careful on uneven ground.  Squatting and crouching movements also increase the pain.  The pain is worse during the colder months.  The scarring on the lower part of his leg is still tender to touch and is painful if knocked or bumped.

·        When the pain is severe he limps.  He now has pain in his left knee caused by limping.  He also suffers pain in his lower back from time to time.

·        He no longer receives medical treatment on a regular basis.  His partner massages his leg once or twice a week, more in cold weather.  He uses a heat pack and Deep Heat or Voltaren gel on his leg.  After work, he rests his leg on a pillow to raise it and put it close to the heater, which helps with the swelling.  He takes Panadol and Nurofen.  He takes Panadeine Forte when the pain is bad, but not when he is working, as it affects his concentration.

·        His sleep is interrupted by pain, especially after a day at work or when the weather is cold.  Sometimes he rolls around in bed so much that his partner sleeps in the spare room or on the couch.

·        His injuries have affected his enjoyment of life.  He has been unable to return to the physical activities he enjoyed previously, including riding trail bikes, playing soccer and camping.  He has become limited in the work he can do around the house.  Previously he was very handy around the home and assisted his family renovate their homes.  He can not do as much gardening as he did previously.

·        His relationship with his partner and family has suffered.  The ongoing pain he suffers has affected the intimate aspects of his relationship with his partner. 

·        He is no longer able to play with his nieces and nephews, especially physical games and sports.

·        As a result of his injuries and the physical limitations, he has put on weight, which he finds difficult to lose.

·        He has become depressed since the collision, especially when he thinks about the degree of physical capacity he has lost because of his injuries.  He is anxious about his future prospects.

14   In his affidavit sworn on 19 December 2011, Mr Milivoje Bajagic deposed that:

·        He has known the plaintiff for fifteen years.

·        In approximately 2004, the plaintiff helped him renovate his house. 

·        The plaintiff used to visit at least twice a week, but now he barely sees him.

15   In his affidavit sworn on 4 February 2012, Mr John Okovic deposed that:

·        He is the plaintiff’s employer.

·        Prior to the accident, the plaintiff was a very good worker and tradesman.  He was able to undertake jobs on scaffolds and ladders.  He was very easygoing and reliable.

·        Since the accident, he has had to transfer the plaintiff to lighter duties because he can no longer stand all day or get up on ladders and scaffolds.  The plaintiff now divides his time between site and the factory and undertakes lighter tasks.

·        He has had to create a more flexible role for the plaintiff because sometimes he lasts all day and sometimes he had to leave early.  He gives the plaintiff breaks to sit down.  He understands the plaintiff cannot make it to work sometimes.  He keeps the plaintiff on because he is an excellent painter.

16   In his affidavit sworn on 9 February 2012, Mr Bojan Kostic deposed that:

·        He is the plaintiff’s brother-in-law.

·        In 2004, the plaintiff helped his to renovate his house by painting it.  He observed the plaintiff was unable to work for long periods of time and would often have to sit down and rest.

·        He has four children and the plaintiff now finds it hard to play with his nieces and nephews. 

17   In her affidavit sworn on 5 September 2012, Ms Suzana Salapura deposed that:

·        She is the de facto wife of the plaintiff.  She met the plaintiff in 1989 and they have lived together since 1992.

·        Before the collision, the plaintiff used to go camping a lot on the weekends and ride his motorbike off road.  He used to play indoor soccer about once a week and play social indoor soccer with his friends.

·        The plaintiff used to help do chores at their home and also help at his grandfather’s home by mowing the lawn and doing repairs.

·        They live in a two-storey house and the plaintiff has difficulty with the stairs. 

·        The plaintiff still tries to help with the chores.  He tries to help mow the lawns, but can only do the lower section of the lawn.  He does light work, such as using the Whipper Snipper.  He vacuums downstairs, but not upstairs.

·        The plaintiff sometimes complains that his ankle is really sore, especially in cold weather.

·        The plaintiff has put on weight since the collision.  This and his injury has affected their relationship.

·        The plaintiff’s sleep has been affected.  He tosses and turns and this interrupts her sleep.

·        The plaintiff has not ridden a motorbike since the collision.

Cross-examination of the Plaintiff

18      The plaintiff gave the following pertinent evidence in cross-examination.

·He maintained his own business records.

·He agreed he swore in August 2011 he saw doctors at the Hallam Medical Centre when his ankle was really painful once or twice a month.

·He said after the accident, he took Panadeine Forte, but he now takes Panadol and Nurofen.  He agreed the reference in his second affidavit to pain medication would have been Panadeine Forte that he used to take, and ceased taking two or three years ago.  He agreed in September 2012, he was not taking Panadeine Forte. 

·He thought he might have told Mr Simm in April 2009 that he took Panadol infrequently once per month; he could not remember.  He was unable to recall whether he told Dr Horsley in November 2007 he had discomfort over the inside of his ankle.

·He said he works no more than thirty-five hours per week and sometimes less.

·He agreed he coped well with his return to work, but with mild residual pain in the right leg and foot.

·He said he did not tell Dr Horsley and Associate Professor Hart that there are days when he cannot work or needs to leave work early because they did not ask the question.

·He agreed he saw his general practitioner in May 2010 to organise a mental health care plan because he was having problems with his partner. 

·He agreed his work is dependent upon there being work available.

·He submitted two taxation returns in 2005, but did not know why and said he would have to ask his accountant.

·In 2010, he did not want to work because he was depressed.  He said there was no reason why it was not in his affidavit. 

·He has gone fishing from Frankston pier on approximately three occasions and he has been camping at Bright in a campervan for three days.  He went for another camping trip with his brother-in-law when they slept in their respective cars.  He did some trout fishing in the river. 

·He does not garden, but he does the mowing.  He suffers low-back pain occasionally.

·He agreed he had been told to lose weight. 

19      In re-examination, the plaintiff said:

·Before the accident, he went camping in a tent and fished from rivers regularly, and he was a keen trail bike rider.  He has not attempted either of those activities because he is scared.

·He used to play indoor soccer once a week and has not played since the accident. 

·Before the accident, he weighed approximately 90 kilograms.  His weight has increased to 132 kilograms.  He tries to lose weight, which he finds difficult.  He lost approximately 10 kilograms and then put it back on.  He agreed that the extra weight is not good for his ankle.

·He said he could be on his feet for three to four hours before the pain kicks in.  He said he needs to be on his feet for the whole day and sometimes that is a problem. 

·He said he needs to employ people to help him with his work.  He sits on his backside to paint when he has pain, and sometimes he has to go home and relax his foot and put heat packs on his foot. 

·He is reluctant to take medication when he is working.  He said the pain in his right ankle comes and goes.  Sometimes it lasts two days; sometimes half a day.  He said the pain is like a stabbing pain. 

·He does not see the doctors because he thinks they will tell him to put a heat pack on his ankle and massage it.  His partner watched how the physiotherapist treated him and she now rubs Deep Heat onto the ankle from which he gets relief.  He walks at a very slow pace.  He has not tried to run since the accident, which he did before the accident. 

Investigations

20      On 19 November 2004, plain x-rays of the plaintiff showed:

“… a comminuted displaced fracture of the distal tibia immediately above the ankle joint but not involving the ankle joint.  There was mildly comminuted angulated fracture of the distal fibula several centimetres above the ankle joint.”

21      On 2 December 2004, x-rays of the plaintiff showed:

“… the factures had been internally fixed with plates and screws.  There was a plate and six screws on the fibula and an L plate and multiple screws with interfragmentary screws on the tibia.  The fractures had been reduced and held in excellent position.”

22      On 30 May 2006, serial x-rays showed:

“… the fracture united in essentially anatomical position.  There were no radiological signs of secondary osteoarthritis of the ankle joint.”

23      On 16 November 2010, x-rays of the plaintiff’s right tibia, fibula and ankle showed:

“… the fractures of the distal right tibia and fibula have been internally fixed with a plate on each one and multiple screws.  There are no radiological signs of post-traumatic osteoarthritis of the ankle.”

24      On 29 August 2012, x-rays of the plaintiff’s right tibia, fibula and ankle concluded:

“No previous films available for comparison.  There has been previous fixation of the distal fibula and tibia.  The ankle mortise is within normal limits.  There is some enthesopathy at the Achilles tendon and a small calcaneal spur noted.

In the region of the proximal fibular diaphysis there is a bony projection suggestive of an osteochondroma.  Correlation with previous films is recommended.  If there is any tenderness or if this is thought to be increasing in size then an MRI is recommended.”

The Plaintiff’s Medical Evidence

Dr Wang

25      Dr Wang, general practitioner, provided reports of 7 November 2005 and 25 November 2009.  Dr Wang said the plaintiff first visited him two months post-operation (16 February 2005).  He was reviewed at three-monthly intervals until November 2005.  In 2009, Dr Wang said the plaintiff had received physiotherapy and attended rehabilitation programs.  The ankle and low leg pain had gradually improved and ankle stiffness was improving with time.  The plaintiff was walking with a slight limp, but without assistance.  He was not seeking special analgesia.  The plaintiff returned to part-time duties in late 2006 and early 2007.

Mr Scott Harrop

26      Mr Harrop, physiotherapist, reported in July 2007 that he had provided physiotherapy treatment to the plaintiff from January 2005 until May 2006 as a result of a fractured right ankle he suffered in the transport accident.  He also treated the plaintiff for left knee pain which he thought was caused from excessive and prolonged limping following the right ankle fracture.  He said that in May 2006, the right ankle was 75 per cent normal/good and he thought there was a potential for further improvement with continued exercise, somewhere between 80 to 90 per cent. 

Mr Patrick Byrne

27      In February 2008, Mr Byrne, orthopaedic surgeon, reported that he treated the plaintiff when he suffered a fracture of his distal right tibia and fibula where an external fixator was applied to his right leg to bridge the fracture.  In December 2004, the plaintiff underwent internal fixation of the fracture of his right tibia and fibula.  He was subsequently mobilised, non weight bearing, on crutches and discharged from hospital.  He was reviewed in the outpatients' clinic until 2005, when he was discharged to the care of his general practitioner.  In April 2005, Mr Byrne said the plaintiff still limped, there was some restriction in the range of movement of his right ankle and subtalar joint but this was continuing to improve.  X-rays showed the fracture of the tibia and fibula to have united in a satisfactory position.  Mr Byrne thought he had made a good recovery but noted he still had some residual stiffness of the right ankle, which he thought would improve with time. 

28      In May 2006, the plaintiff returned, complaining of pain in his right ankle.  He complained of persistent pain over the medial and lateral aspects of the ankle and said he had not been able to return to work as a painter and decorator.  On review in June 2006, the plaintiff said he was able to cope with symptoms in his right ankle and that the right ankle was not troubling him greatly.  He did not wish to proceed with removal of the metalwork.  At that stage, he was complaining of left knee pain and decided not to proceed with an arthroscopy of his left knee. 

Mr Murray Stapleton

29      On 22 October 2007, Mr Stapleton, plastic and hand surgeon, examined the plaintiff at the request of the plaintiff’s solicitor and said the plaintiff suffered a fracture of his right leg consistent with being involved in an accident.  He said the scar did not interfere with the plaintiff’s capacity for work.  He noted that the plaintiff was back working in an unrestricted capacity as a painter and decorator which required him to stand for most of the day.

Dr Robyn Horsley

30      On 7 November 2007, Dr Horsley, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitors.  The plaintiff reported low grade, very intermittent back pain which occurred for a short period of time every couple of months.  She said the plaintiff had sustained a significant injury to the right lower limb with a severe comminuted fracture of the tibia and fibula.  He had ongoing sequelae and a mild and intermittent mechanical back pain.  She said, given the length of time since the injury and the ongoing nature of the symptoms, she believed that the symptoms are likely to persist. 

31      She noted the plaintiff had returned to work on a return to work plan and had been working for four months.  She accepted that the transport accident had been the significant contributing factor in terms of his right lower leg.  She imposed work restrictions of: 

§avoidance of static standing, prolonged walking and prolonged driving for greater than thirty minutes without changing posture or rest breaks; and

§avoidance of repetitive stair and ladder climbing.  She limited periods of time working on a ladder to ten to fifteen minutes.

32      She said the plaintiff could undertake a full squat.  She thought he should only lift 15 kilograms, and noted that the plaintiff had accommodated his disability in the workforce by modifying tasks.  She noted he worked in a team of four to five painters.  She said his injury impacts upon his capacity to work as a painter and decorator.  He is coping well with his return to work. 

33      She said his options outside his chosen work are limited in view of his lack of transferrable skills, his educational background, his lack of other qualifications and his manual work history. 

34      She said the restrictions she imposed upon work applied to his domestic, recreational and social life.  She said over the next ten years, the plaintiff is likely to experience increasing disability as the degenerative process accelerates, which will result in a reduced capacity to undertake manual work.  She said he would benefit from referral back to his physiotherapist for a home program.

Mr Rodney J Simm

35      The plaintiff was examined by Mr Simm, orthopaedic surgeon, at the request of the plaintiff’s solicitors in April 2009 and September 2012.  In 2009, Mr Simm diagnosed a commuted fracture of the distal right tibia and fibula.  Mr Simm said the plaintiff’s complaints of intermittent pain and stiffness which impinge on his physical activities were consistent with his injury.  He said the plaintiff avoided ladder climbing, which he expected would increase his pain.  He said the plaintiff avoided squatting because of limited dorsiflexion in the ankle.  He did not expect any significant improvement.  It was his view that the plaintiff’s injury impacted on his social, domestic and recreational activities.  He can no longer run, and walking distance is limited.  His limitations would prevent the plaintiff from returning to his pre-injury activities, particularly soccer.

36      In 2012, Mr Simm reviewed recent x-rays of the right tibia, fibula and ankle joint.  He said the injury had increased the risk for development of post-traumatic osteoarthritis in later life.  He said the severe fracture to the distal tibia immediately above the ankle joint would be associated with significant soft-tissue trauma to the ankle joint which could include the articular cartilage and capsuloligamentous structures of the joint.

37      He said that as it was eight years since the injury, there are no radiological signs of post-traumatic osteoarthritis.  The risk for this complication has been increased but it seems unlikely he will develop disabling degenerative changes in the right ankle in the next ten to fifteen years.

The Defendant’s Medical Evidence

Mr Robert Marshall

38      In September 2005 and March 2006, Mr Marshall, surgeon, examined the plaintiff at the request of the defendant.  Mr Marshall described the plaintiff’s symptoms as genuine.  He said there were no pre-existing or unrelated factors and he was unaware of any psychosocial issues that would be impacting on his presentation.  He doubted that physiotherapy could achieve anything at that stage.  He thought, in March 2006, that the plaintiff should consider returning to work on reduced hours and modified duties in a seated position as much as possible for at least two to three months.  He said the plaintiff’s prognosis was excellent and expected that the plaintiff would regain complete normal use of his limb within the next six months. 

Dr Bruce Hocking

39      In January 2007, Dr Hocking, occupational physician, examined the plaintiff at the request of the defendant.  It was his view that the plaintiff’s prognosis for recovering was fair and that his weight was compounding the strain on his fracture and the left knee.  He said his prognosis for employment was moderately good and he noted the plaintiff was reasonably motivated and the plaintiff was willing to try a graded return to work.  He suggested the plaintiff commence work four days a week, three days for the first week and then every day for another week in the factory.  He suggested physiotherapy.

Mr Michael Dooley

40      In February 2012, Mr Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendant.  Mr Dooley noted that prior to the injury, the plaintiff was active, playing soccer and jet skiing.  The plaintiff complained of aching in the right lower leg and ankle region with prolonged standing activity, difficulty using ladders with work, and prolonged walking leads to some right ankle pain.  Mr Dooley said the post-traumatic symptoms of the right ankle were consistent with his injury.  The plaintiff complained of intermittent pain in his left knee.  Mr Dooley was of the view that the risk of the plaintiff developing post traumatic osteoarthritis of the ankle joint in time is low.

Associate Professor John A L Hart

41      In August 2012, Associate Professor Hart, orthopaedic surgeon, examined the plaintiff at the request of the defendant.  He said the plaintiff complained of intermittent medial pain in the right leg proximal to the ankle.  The pain is a sharp pain, which can come and go at any time.  The plaintiff reported that he was able to stand for three to four hours on good days and could walk for 2 kilometers, and does so daily to walk his dog.  The plaintiff avoids running, is able to drive a motor vehicle and uses stairs and public transport normally.  The plaintiff reported he was able to perform all inside and outside duties at home which he shared with his partner.  Initially he found some of his work jobs more difficult, but now is able to cope with most of his work.  He reported that prior to the injury, he played outdoor and indoor soccer, rode motorbikes and jet skied.  He has not returned to those leisure activities since the injury.

42      Associate Professor Hart said the plaintiff had returned to full-time work as a painter and decorator and was coping well with only mild residual pain in his right leg and hind foot and no symptoms in the left knee.  He said the plaintiff had achieved an excellent result from what was a severe injury.  He did not detect any functional component or psychological reaction to the plaintiff’s physical condition, other than his concern about his morbid obesity and his fear of re‑fracturing his leg with vigorous activity.

43      He reviewed the x‑rays of 29 August 2012 and was of the view there was no evidence of degenerative change.  He said that the plaintiff had limited movement in the ankle and foot and this may predispose him to degenerative change in the long term, but that is not evident at this time.  He thought his limited movement was due to associated soft tissue damage.

Credit of the Plaintiff

44      The plaintiff had very limited education, having left school at the conclusion of Year 9.  He answered questions directly and if he did not remember matters, he said so.  He did not volunteer information.  He was a man of few words and on occasions struggled to express himself.  He did not exaggerate or embellish his condition.  Mr Marshall, surgeon, described him as “completely genuine” and Dr Hocking said his injury to the right lower leg is consistent with the accident.  Dr Horsley, Mr Simm and Mr Dooley made similar comments.  Associate Professor Hart accepted there was no functional component or psychological reaction. 

45      I formed the view the plaintiff was genuine and honest and, if anything, understated the consequences he suffered.  Any inconsistencies in his evidence were attributable to his limited education, limited intelligence, and unfamiliarity with the Court process.  He struck me as a man who did not initiate providing information and when he gave answers to questions as to why he had not told treaters or doctors about certain things, he replied he was not asked the question.  I accept that for this plaintiff that was a valid response.

46      It follows that I do not accept the submission of counsel for the defendant that the reliability of the plaintiff’s evidence affected his credit in any way.  This relates to the following matters:

·        In his second affidavit, he said he was reluctant to take medication for safety reasons, as he needs a clear head at work.  He takes Panadol and Nurofen and when the pain is bad, Panadeine Forte.  In cross-examination, he said he took Panadeine Forte after the accident but not recently. 

·        In his first affidavit, he referred to his marital separation in 2004 but did not refer to his second separation in 2010.  The plaintiff referred to this in Court.  I did not conclude that the plaintiff was trying to hide this fact from the Court. 

·        The plaintiff told the Court he went fishing off Frankston pier.  He conceded he went fishing six months ago on a camping trip.  Again, I did not conclude that the plaintiff was hiding this fact from the Court.  This was explained by the plaintiff’s limited education and unfamiliarity with the Court process.

Analysis of the Evidence

47      It was not in issue that the plaintiff suffered a compensable injury arising out of the transport accident.  All of the medical witnesses accepted the plaintiff suffered a fracture of the tibia and fibula and underwent internal fixation.  In the latter part of 2007, the plaintiff returned to work doing light duties. 

48      I must consider the plaintiff’s injury at the time of the hearing of the application.  Accordingly, I place greater weight upon the more up-to-date evidence of Mr Simm, who saw the plaintiff in September 2012 for the purpose of reviewing up-to-date x‑rays, Mr Dooley and Associate Professor Hart. 

49      The chances of the plaintiff developing degenerative changes in the right ankle joint was described by Mr Simm as unlikely, and by Mr Dooley as low.  Associate Professor Hart said the plaintiff may be predisposed to degenerative changes in the long term, but that is not evident at this time.

50      Both Mr Dooley and Associate Professor Hart obtained a history of pain in the right lower leg and ankle joint.  Mr Dooley was told that aching occurred with prolonged standing and activity.  Associate Professor Hart obtained a history of intermittent pain which is sharp and can come and go at any time.  The plaintiff reported he was able to stand for three to four hours on good days and could walk for 2 kilometres.  Mr Dooley was told the plaintiff had difficulty using ladders with work and that prolonged walking resulted in right ankle pain.  The plaintiff told Associate Professor Hart he was able to cope with most of his work and that prior to the injury he played indoor and outdoor soccer, rode motorbikes and jet skied, activities which he has not returned to since the injury. 

51      Current medical evidence relating to the plaintiff’s ability to work was limited.  Mr Dooley noted the plaintiff had difficulty using ladders with his work and complained of aching with prolonged standing activity.  Associate Professor Hart said the plaintiff had returned to full-time work as a painter and decorator and was coping well with only mild residual pain in his right leg and hind foot.  In 2009, Mr Simm noted that the plaintiff avoided ladder climbing and squatting positions and said he did not expect there to be any significant improvement.  He also noted that the plaintiff had a sympathetic employer.

52      The evidence of his employer, John Okovic, in February 2012 was that the plaintiff returned to light duties.  He no longer had the capacity to stand all day and cannot get up onto ladders and scaffolding.  He had to divide the plaintiff’s time between site and factory work which involved performing light work tasks of masking and spraying.  He had noticed that the plaintiff had a greater need for flexibility in that the pain caused him to leave work early, to take breaks during the day, and on occasions prevented him from attending work.  This was consistent with what the plaintiff told the Court.  I accept that he did not tell doctors about his need for flexibility because he was not asked about this by the doctors who examined him.

53      The evidence of the plaintiff’s partner was that the plaintiff cannot use ladders for long periods.  Since he has been doing jobs on his own, she has assisted him with work at weekends and has noticed him sitting down resting.  She helps him with “cutting in”, which is painting the top or bottom of walls.  The area in between is usually done with a roller, which is something the plaintiff can do.  She said the plaintiff had problems crouching because of his ankle injury, so she has to cut in at the bottom of the walls and scrape paint off floor surfaces.  She confirmed that the plaintiff needs to rely on sub-contractors because he does not have the mobility to do more work with the restriction of his ankle injury.  The evidence was this reduced his profit on jobs.

54      I accept that work causes the plaintiff pain, that he has difficulty using ladders, and has an additional need for some sub-contractors.  I note that in the 2011/2012 financial year, his taxable income was $43,841 from his painting activities.  His expenses included sub-contracting of $15,239 and his net taxable income was $843.10 a week.  In 2012, his expenses were similar and he had a net taxable income of $39,551 with a weekly average of $686.98.

55      In 2007, Dr Horsley, the occupation physician, said that it was commendable that the plaintiff had returned to the workforce and that his working options outside of painting and decorating were limited.  He lacked transferrable skills.  He lacked other qualifications.  His educational background was limited and he only had a manual work history.  I accept that in the long term, the work options for the plaintiff are very limited, particularly given the fact he is thirty-eight years of age.

56      I accept that the plaintiff has continued to work but has had to adopt a more flexible approach to his work, which has had consequences to him.  Given his age, the limitations imposed upon his work, and the possibility of deterioration in the future, I accept that the plaintiff has pursued his work at a cost to him in terms of pain as he has little alternative given his level of education and work history.

57      The plaintiff’s evidence in his most recent affidavit was that he has good days and bad days with his ankle pain.  On bad days, he suffers a stabbing and a throbbing type of pain, especially if he has to use ladders at work and when the weather is cold.  In cross-examination, the plaintiff said the pain comes and goes.  Sometimes it lasts a day, sometimes two days and sometimes half a day.  He thought it was related to the sort of work he did.  He described it as a stabbing pain.[5]

[5]T 40

58      The plaintiff’s evidence is corroborated by his partner, Suzana Salapura.  She deposed that in cold weather the plaintiff complains of stiffness, soreness and throbbing in the ankle, which she massages with Deep Heat and other creams, and applies a heat pack. 

59      I accept that the plaintiff suffers pain, particularly as a consequence of activity and arising from his work.  The plaintiff takes over-the-counter medication.  He is concerned about taking medication generally and does not seek medical treatment as he believes there is nothing more that can be done, other than the massage treatment which his partner provides. 

60      In his first affidavit, the plaintiff said he became somewhat depressed when he thought about the degree of physical capacity he has lost as a result of being injured.  Before the transport accident, he enjoyed riding trail bikes and kept busy at home.  His injuries have reduced his ability to get out and do many things he enjoyed before the transport accident and he has told various doctors that he no longer participates in trail bike riding, soccer and jet skiing.  I accept that the injury has restricted the plaintiff’s physical activities, which has caused him frustration and depression.   I am permitted to take into account these expected mental consequences when considering the seriousness of the plaintiff’s physical impairment.[6]  

[6]See Winneke P in Richards v Wylie (supra)

61      Both the plaintiff and his partner confirmed that the plaintiff’s sleep has been affected since the accident.  He tosses and turns, which interrupts his partner’s sleep. 

62      The plaintiff’s evidence was that his injuries affect his domestic activities.  Prior to the transport accident, he maintained his grandfather’s garden.  Currently he lives with his partner in her mother’s house which has a garden.  He finds gardening difficult because of his ankle.  He can mow part of the lawn but his partner generally finishes the lawn mowing.  The plaintiff said he has difficulty using the stairs at his mother-in-law’s house.  Previously, he could use the stairs without assistance.  Now he has to hold onto both rails because of his ankle.  This was confirmed by his partner.  The plaintiff’s partner confirmed that the plaintiff is restricted in the domestic activities he can perform, including housework.  She said he was restricted in gardening activities.  Whilst he attempts many of the activities, she is required to complete those activities because of the pain in his leg.  He said the sexual relationship between he and his partner has been affected by the ongoing pain that he suffers.  This was confirmed by his partner.  I accept the evidence of the plaintiff and his partner that the plaintiff is restricted in the domestic activities he can now do.

63      The plaintiff’s evidence was that prior to the injury he enjoyed trail bike riding, which he did regularly.  He played soccer weekly and went camping on a regular basis.  He was also a keen river fisherman.  This was supported by the evidence of his partner and what he told the doctors whom he saw.  I accept that the plaintiff, at the age of thirty, was cut off from a significant range of activities such as trail bike riding, camping, soccer, fishing, running and jet skiing. 

64      The plaintiff’s evidence was that he assisted family and friends to renovate their homes.  This he can no longer do.  This evidence was confirmed by the plaintiff’s partner, his brother-in-law and Milivoje Bajagic, a friend.

65      The plaintiff’s evidence was that prior to the injury he weighed 90 kilograms.  The plaintiff’s medical records confirm that over the period he had gained weight and currently weighs 132 kilograms.  The plaintiff told the Court that he has great difficulty in attempting to lose weight.  I accept that he probably gained the weight because he is less active, which I am entitled to infer from the medical report of Dr Wang. 

66      I accept the plaintiff has suffered the abovementioned consequences.  Those consequences are supported by the evidence of the plaintiff, his family members, friends and employer, and the medical evidence.  I also accept that he suffers pain which affects his activities of daily living and at work.  His sleep is affected.  He has difficulty performing domestic tasks and, to his credit, he attempts tasks but inevitably his partner is left to complete those tasks.  The plaintiff had many outdoor interests which he is no longer able to perform.  I accept that for a man aged thirty-eight, with limited education and no other work experience, the work and daily living consequences are significant. 

67      I am persuaded on the balance of probabilities and in the light of the evidence as a whole, that the consequences the plaintiff suffers satisfy the test.  I accept the pain and suffering consequences to this particular plaintiff are “serious”.  I accept that when judged by comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being at least “very considerable” and certainly more than “significant or marked”.

68      As the plaintiff’s consequences have persisted for almost eight years and there is no evidence to suggest improvement in the future, in my view his impairment is long term. 

69      Taking all the evidence into account, I am satisfied that the plaintiff has a long-term serious impairment of his right ankle.  I have considered the psychiatric sequelae as I am permitted to do so in accordance with Richards v Wylie.[7] 

[7]supra

70      Accordingly I grant leave to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident on 19 November 2004.

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