Carter v Victorian WorkCover Authority
[2024] VCC 363
•16 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-03086
| HAYDEN CARTER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2024 | |
DATE OF JUDGMENT: | 16 April 2024 | |
CASE MAY BE CITED AS: | Carter v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 363 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to right leg
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s323, s335
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Barwon Spinners Pty Ltd & Ors v Polodak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave granted to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Shine Lawyers |
| For the Defendant | Ms C Kusiak | MinterEllison |
HER HONOUR:
Introduction
1Mr Carter is a thirty-one-year-old man who worked as a production worker prior to his injury. He loved motocross riding, BMX riding and Muay Thai (martial arts) and the friendships and socialising that came with them. He harboured a dream that he would one day ride in the United States, as a result of a conversation he had with a prominent motocross rider when he was thirteen or fourteen years old. As a result of his injury, he has not only lost his ability to engage in motocross riding, BMX riding and Muay Thai, he has lost a major part of his social life and his dream of one day riding in the United States.
2Mr Carter makes his application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that his pain and suffering consequences are “at least very considerable” and “more than significant or marked”.[1]
[1]Section 323(2) of the Act; Humphries & Anor v Poljak [1992] 2 VR 129 at 140 (“Humphries”)
3The issues to be decided in this case were:
(a) credit: that is, was Mr Carter’s credit damaged by:
(i)the video surveillance;
(ii)the inconsistencies between his complaints and the medical opinions; and
(iii)the inconsistencies between his evidence regarding his restrictions and his work capacity.
(b) range: that is, could the consequences from his right leg impairment be fairly described as being “very considerable”.
4The diagnosis and cause of the injury, that it was permanent, and that it arose in compensable circumstances were not in dispute.
5For the reasons set out below, I have found that Mr Carter was a reliable witness who is entitled to a determination that he has suffered a “serious injury” arising from his workplace injury.
Mr Carter’s background and the injury
6Mr Carter was born in January 1993. He lives with his father, Mr Lee Fredrick Carter. He is the third of four children.
7He left school after completing Year 9 in about 2008. He then worked in various casual roles, including as a produce worker at Coles Supermarkets Australia Pty Ltd and as a roof tiling apprentice. He also experienced periods of unemployment during this time. He has no relevant pre-injury medical history.
8He commenced work with ACOL Skylights and Roof Windows Pty Ltd (“the employer”) as a production worker on 19 December 2019.
9On 3 January 2020, Mr Carter was walking around a corner at work, when his right leg struck a sharp metal sheet hanging off the side of a pallet, causing a severe laceration injury to his right calf. The wound was also contaminated by metal fragments.[2] He was referred to Frankston Hospital for treatment, which involved suturing the laceration “in 2 layers”.[3]
[2]Plaintiff’s Court Book (“PCB”) 35 and 39
[3]PCB 33 and 65
10Once he returned home, the wound opened, and he had to return to the hospital the following day to re-dress the wound. On 18 January 2020, most of the sutures were removed by his general practitioner.[4]
[4]PCB 8
11On or around late January 2020, Mr Carter returned to work, however his employment was terminated shortly after returning.
12On 4 February 2020, he returned to Frankston Hospital for further treatment of dressings, as the wound had re-opened. This treatment continued for approximately five to six months after the initial injury.[5]
[5]PCB 39
13He remained off work for approximately twelve months following the termination of his employment from the employer. He then obtained employment as a delivery driver for E&S Trading, where he delivered large white goods.[6] Mr Carter remained in this position until early 2022,. He then commenced work with Rylock Windows & Doors (“Rylock”) as a truck jockey until mid-2022. Since this time he has been unemployed.[7]
[6]Ibid
[7]PCB 8; Transcript (“T”) 14, Lines (“L”) 1-5
What is the injury?
14Medical reports were tendered in the case from Mr Carter’s treating practitioners and medico-legal experts.
15Mr Damon Thomas, plastic and reconstructive surgeon, who examined Mr Carter at the request of his solicitors on 13 November 2023, diagnosed Mr Carter as having sustained a right lateral leg laceration with a post-traumatic wound complication with dehiscence[8] and delayed healing by secondary intension.[9]
[8]Surgical incision re-opens, indicative of poor wound healing.
[9]PCB 40
16The injury was described in similar terms by Dr Benadict Chen, Mr Carter’s general practitioner and Professor Vernon Marshall, who examined Mr Carter at the request of the Victorian Workcover Authority’s (“VWA”) WorkCover insurer, Gallagher Bassett.
17Given the diagnosis of injury was not in dispute in this case, and the descriptions are similar, I find that Mr Carter has sustained an injury in the terms described by Mr Thomas above.
Has a body function been impaired or lost?
18As outlined above, it was agreed that Mr Carter had sustained a permanent impairment of the right lower limb.
19The histories taken and the opinions provided by the medical practitioners are relevant because the VWA submitted that Mr Carter’s complaints about his impairment consequences were inconsistent with the medical reports and the surveillance film taken of him gardening, and his pain and suffering consequences did not meet the “very considerable” threshold.
Dr Benadict Chen, general practitioner
20Dr Chen has had the benefit of knowing Mr Carter for a long time. He wrote his report almost four years after the initial injury.
21He said that:
“[Mr Carter] has some residual pains when doing the [following] activities:
a) pushing, pulling, and lifting
b) twisting, swuatting, (sic) and kneeling
c) prolonged standing and sitting.
and that this is unlikely to change for the foreseeable future. The extent should be mild, in that he should still be able to do the aforementioned activities, but may experience a bit of pain when doing so, and therefore may not be able to perform to his optimum.
…
I believe he will for the foreseeable future experience some pain in the wound when doing certain activities, but it should not be severe enough to stop him doing daily activities.”[10]
[10]PCB 37
Mr Damon Thomas, plastic and reconstructive surgeon
22Mr Thomas said that Mr Carter’s scar presented as a:
“… Right lateral leg transverse orientated scar measuring 80 mm in length, 22 mm in width. The scar is concave. It is tethered to the underlying deep fascia and musculature and there is movement and animation with the scar with any leg muscle contraction. Alopecia is present. There is hypopigmentation present. There is some intrinsic discomfort and pain within the scar itself which in my opinion relates to the scar directly.”[11]
[11]PCB 39
23Mr Thomas also referred to the complications with the wound healing:
“… He sustained a laceration to the lateral aspect of the right calf which was a contaminated wound … He has had the wound cleaned and sutured. He had some post operative issues with some wound discharge and some minor dehiscence … the wound opened up further and required healing with dressings over the next five to six months.”[12]
[12]Ibid
24With respect to physical restrictions, Mr Thomas said Mr Carter would have significant difficulty with activities involving pushing, pulling or lifting, and that standing was restricted, but that twisting, squatting, kneeling and sitting was unrestricted.[13]
[13]PCB 40
25Mr Thomas said that Mr Carter will have issues with long-term pain and discomfort.[14]
[14]PCB 41
Professor Vernon Marshall, general surgeon
26Professor Marshall examined Mr Carter for the purpose of an assessment pursuant to the American Medical Association Guides (4th edition).
27On physical examination, Professor Marshall noted that:
“… Gait was somewhat antalgic, favouring the right leg. He could stand on one leg after the other and stand on toes and heels and squat and rise from a squatting position. Movements of the thoracolumbar spine through extension, flexion, lateral bend and rotation were reasonably full. There was no abnormality in range of motion of joints of the lower limbs through hips, knees, ankles and feet. He had an obliquely sloping healed and widely spread scar on the lateral aspect of his right lower leg, 10 cm, which was markedly spread at the bottom with healing by scarring of granulation tissue giving a teardrop appearance with attachment of the lower two thirds of the scar to the underlying muscle with sensory blunting. There was no muscle wasting in thigh and calf compared to the other side. Reflexes at knee and ankle were symmetrical and active.”[15]
[15]PCB 60
Opinion of the Medical Panel, dated 25 October 2022
28The Medical Panel examined Mr Carter on 18 October 2022 and published their reasons and opinion on 25 October 2022.
29On physical examination, they noted that:
“… Mr Carter was able to walk normally, stand on his heels and toes, and stand independently on each leg. Examination of the right leg revealed an oblique scar on the antero-lateral aspect of the right calf, measuring 6 x 1.5 cm. The scar was hollowed, with some soft tissue separation, and was slightly tethered to the underlying muscle. Sensation was deceased over the scar itself and distally, approximately 1-2 cm below the scar. Range of motion of the right ankle and right hindfoot was within normal limits and there was no muscle wasting of the right calf.”[16]
[16]Defendant’s Court Book (“DCB”) 20
30Mr Thomas, Professor Marshall and the Medical Panel all noted the appearance of the scar, the healing complications, and that it was tethered or attached to the underlying muscle.[17]
[17] PCB 39 and PCB 60
31The tethering of the scar to the underlying deep fascia and musculature is important, as it explains the extent of the restrictions and pain that Mr Carter experiences. I accept the opinions of Mr Thomas, Professor Marshall and the Medical Panel on this point.
32Dr Chen and Mr Thomas agree that Mr Carter will have difficulty with activities involving pushing, pulling or lifting as a result of his injury. While I note that Dr Chen has described the impact as “mild”, I also note that Dr Chen did not refer to the scar having tethered to the underlying muscle.
33The movement restrictions described by Dr Chen, Mr Thomas and Professor Marshall are consistent with Mr Carter’s evidence that:
(a) movement of his leg created a pulling sensation on the scar, which felt as though it may tear it;
(b) any movement, including when he twists, squats, kneels, pushes, pulls or lifts, causes discomfort and pain.[18]
[18]Mr Carter’s second affidavit, sworn 5 February 2024, PCB 4 at paragraph [4]
34I therefore find that the right lower limb has been impaired as a result of the injury, and that Mr Carter is restricted in his ability to push, pull or lift with his right lower limb as a result.
Video surveillance
35At the hearing, Mr Carter was shown ten minutes of video surveillance which showed him using a whipper snipper, getting in and out of a car, and driving the car for a short distance between 10.24am and 11.25am on 19 February 2024.
36The VWA cross-examined him on whether the movements and restrictions were consistent with his affidavits and the histories he had provided to the medical practitioners.
37His evidence was that he:
(a) could not really mow, that he could do one to two lines, but then gave the lawn mower to his father because his leg hurts as he pushes it along;[19]
(b) could mow if the lawn mower was on a higher setting, but he could not manage it on the lower setting as it would get stuck on the grass and hurt his leg, causing it to burn and tingle on the side, with pain down to his foot;[20]
(c) could use a whipper snipper because he could turn it around and manoeuvre it;[21]
(d) could tell from the video when his leg was starting to hurt, as he was holding the whipper snipper in the left hand (without assistance from the right). While he could not explain why, he found that this reduced the pain in his right leg;[22]
(e) could pull a wheelie bin if it was light or empty.[23]
[19]T27, L19-21 and T28, L4-5
[20]T46, L8-17
[21]T27, L22-24
[22]T28, L28-31 and T29, L1-3 and 7-14
[23]T27, L25-30
38The surveillance was not shown to the medical practitioners, nor their opinion sought regarding the consistency of the video surveillance with his presentation.
39The VWA placed Mr Carter under surveillance on five different days for a total of close to thirty hours. Most of that was not shown. I consider that the short video played was a small snapshot of his level of true activity. Little reliance can be placed on it given that it is so unrepresentative.
40After considering all the evidence relating to the surveillance that was shown, I find that the video surveillance is consistent with the other evidence in this case, specifically that of Mr Carter, Dr Chen, Professor Marshall and the Medical Panel. I find that it has not impugned the credibility of Mr Carter.
What are the consequences?
Pain, medication and treatment
41In his first affidavit, sworn on 19 January 2023, and adopted by Mr Carter at the hearing, Mr Carter said:
“I continue to suffer pain and discomfort in the region of my scar, as well as from muscle twitches and cramping in the same area. The pain and discomfort is particularly bad at night time, and when I wake in the mornings.
I was previously taking analgesic medication to manage the symptoms. I have recently started taking medical cannabis in a TGA approved vaporiser however, which has helped with the discomfort at night time and in the morning.”[24]
[24]Mr Carter’s first affidavit, sworn 19 January 2023, PCB 9 at paragraphs [10]-[11]
42In a subsequent affidavit, sworn on 5 February 2024, and adopted by Mr Carter at the hearing, he said that:
“I continue to suffer discomfort and pain in my leg, over the region of my scar. The pain and discomfort is worse at night time. I continue to use a TGA approved vaporiser with medical cannabis.”[25]
[25]PCB 4 at paragraph [2]
43Mr Thomas said that Mr Carter has:
“… post-traumatic pain in the right leg as the scar is uncomfortable. He gets pain with walking and at nighttime. … .”[26]
[26]PCB 41
44He went on to say that the permanent scarring of the right leg will cause long-term pain and discomfort.
45Professor Marshall notes that his current status and symptoms were:
“….persisting discomfort and loss of feeling in the scar itself and pain especially at night. … .”[27]
[27]PCB 59
46At the hearing, Mr Carter said he continued to use Panadol to manage his pain. The amount he takes varies according to his symptoms, which are a product of how much activity he has undertaken during the day.
47When he was working, he took the maximum amount of Panadol he was allowed to take a day, that being eight per day, four to five days a week.[28] Now that he is not working, he normally takes four to six Panadol a day, four to five days a week. Sometimes he will take eight a day if he has undertaken more vigorous activity, such as when he helped his father repair their boat. Activities which might lead to him needing to take Panadol include walking the dog and using a whipper snipper.
[28]T43, L14-27
48This was supported by his father and Mr Carter’s friend and future brother-in-law, Mr Douglas Nener.
49Mr Nener said that they would sometimes try and walk their dogs together, but Mr Carter would not get very far before stopping as a result of his leg.[29] His father notices that when Mr Carter returns from walking the dog, he will be grimacing in pain.[30]
[29]PCB 14
[30]PCB 12
50Mr Carter does not take Nurofen, as it interferes with his antidepressant medication.[31]
[31]T44, L1-4
51He said that he knew his general practitioner would not prescribe anything stronger than Panadol because of his pre-existing opioid addiction. Thus, he had not attended him with complaints of leg pain once the wound had healed.
52He conceded to having made up experiences of back pain in the past to obtain prescriptions for painkillers from medical practitioners. He was taking Suboxone, a prescription medication, to treat his opioid addiction.[32]
[32]T39, L16-26
53Mr Carter uses medicinal cannabis to relieve the pain in his right leg. However, there was no evidence that it was prescribed to him for that purpose and thus no medical opinion on its effectiveness and suitability to treat his pain symptoms.
54Mr Carter’s evidence was that it relieved a variety of symptoms, including pain, anxiety and insomnia.[33]
[33]T39, L27-30
55Mr Carter’s evidence regarding the medication he was taking was consistent with the evidence of his general practitioner and the medico-legal experts.
56His evidence regarding his pain is consistent with the evidence of Mr Thomas, Professor Marshall and the Medical Panel regarding the tethering of the scar to the underlying musculature and their evidence regarding why that causes him pain. They did not question whether those experiences were unexpected given the injury.
57While it would have been preferable for Mr Carter to have referred to all of the reasons that he takes medicinal cannabis in his affidavits, and for medical evidence to have been produced regarding its utility in relieving his right leg pain, I do not draw any adverse inference from those omissions. I accept that it assists with his right leg discomfort at night and in the morning.
58I am therefore satisfied that Mr Carter’s reliability was not impugned by the issues raised by the VWA regarding his use of Panadol, the omissions in the affidavits regarding the opioid addiction, the reason for being prescribed medicinal cannabis and the severity of the pain.
59I find he has intermittent right lower leg pain that varies in severity depending on the activity he is undertaking. His back pain arose after the date of the injury, or about 2022. As a result of his right leg pain, he requires treatment in the form of Panadol. He takes four to six Panadol a day, four to five days a week, and eight (the maximum allowed) if he is working or undertaking more physical activity.
Motocross riding, BMX bike riding and Muay Thai
60The biggest impact to Mr Carter of his right lower limb impairment is his inability to engage in motocross riding, BMX riding and Muay Thai.
61In his first affidavit, he said that:
“Before I was injured I used to be a passionate Motocross rider and would go riding every weekend either in competition or in training. Since suffering the laceration, I have had to give up Motocross because it is very uncomfortable when I ride. I experience discomfort and pulling in the region of my scar, and the scar feels that it is going to give way.
The loss of my Motocross is particularly significant as before I suffered the laceration I had the opportunity to pursue a professional Motocross riding career in the United States. As a result of my injury I have had to give up this opportunity as I am no longer able to ride comfortably.
Before I hurt my leg, I also used to go BMX riding every day in the local skate park. Since suffering my injury I have had to give this up. I still have a bike in the shed but I no longer go BMX riding for the same reasons that I have given up Motocross riding.
I used to undertake martial arts training two nights a week. This is no longer possible because of the condition of my scar. If I try and undertake the (sic) martial arts my scar becomes hot and it pulls and is very uncomfortable and as a result I have stopped doing this.”[34]
[34]PCB 9 at paragraphs [13]-[16]
62In his second affidavit, sworn on 5 February 2024, and adopted by him in evidence during the hearing, he said:
“… I continue to be unable to live the active and outdoorsy life that I used to be able to live, and the leisure activities which I used to enjoy are severely limited. I continue to be devastated about the loss of these things in my life, as I felt that they were what I lived for.
My socialising has been impacted by my injuries. I used to be very social through my BMX riding, as well as when I was doing Motorcross (sic). I had heaps of friends when I had an active lifestyle, but those friendships have largely fallen away since I was injured.
I used to enjoy Martial Arts, in particular Muay Thai which I would do twice a week. I stopped shortly before I started working for the [employer], but I had intended to go back to it. I have tried to do so since being injured but it was too painful on the area of my scar and I can no longer do it.”[35]
[35]PCB 5 at paragraphs [6]-[8]
63During cross-examination, Mr Carter said he last trained four to five months prior to the injury occurring. At about that time, he began a relationship with his then girlfriend, which has since ceased. Prior to that:
(a) he engaged in motocross riding in interclub competitions about once a month and trained most weekends;[36]
(b) he rode three weekends out of every four with Mr Nener in the bush or at a track.[37]
[36]T33, L3-7
[37]T34, L28-31
64Mr Carter’s father swore an affidavit on 5 February 2024. Mr Nener swore an affidavit on 5 February 2024. Both described the enjoyment that Mr Carter used to obtain from motocross and BMX riding, the fact that he no longer rides and their impressions of the impact that has on Mr Carter.
Is Mr Carter’s inability to engage in these activities supported by the medical evidence?
65As outlined at paragraph 32 above, Dr Chen and Mr Thomas agree that Mr Carter will have difficulty with activities involving pushing, pulling or lifting as a result of his injury.
66Dr Chen also stated that:
“As a consequence of this injury, he may be restricted in performing some social and recreational activities, including but not limited to motocross racing, BMX riding and martial arts training, due to the pain he will get in the wound area, and this should be mild in extent, but will be for the foreseeable future.”[38]
[38]PCB 37
67Mr Thomas stated that Mr Carter’s “recreational pursuits are heavily affected” and that his “social network has reduced due to the lack of these hobbies”.[39]
[39]PCB 40
68Professor Marshall noted that Mr Carter was “unable to ride his motorbike or pushbike because of the uncomfortable scar”.[40]
[40]PCB 59
69The opinions of Mr Thomas and Professor Marshall are consistent with Mr Carter’s evidence regarding his inability to engage in these pursuits. Their opinions follow from their findings that the scar has tethered to the muscle.
70I accept their opinions and therefore find that the tethering of the scar to the muscle explains the pain Mr Carter experiences when he pushes, pulls and lifts his legs while engaging in these activities.
71While Mr Carter suffered a back injury in 2022 while working at E&S Trading, and this may also have had an impact on his ability to engage in motocross or BMX riding, it is not something that I need to decide in this case as I am satisfied on the evidence that he is no longer able to engage in motocross and BMX riding as a result of his right lower limb injury.
72I thus accept Mr Carter’s evidence that he cannot go motocross or BMX riding as he did prior to his injury. I find that these are significant impairment consequences for a young man with a passionate interest in motocross and BMX riding.
Would Mr Carter have ridden in the United States?
73Mr Carter gave evidence that he had been told by Mr Cheyne Boyd, an accomplished motocross rider, that he had what it took to ride competitively in the United States when he was thirteen or fourteen years old. This conversation and exchange had a powerful impact on him. As a result of that conversation, he believed he had what it took to ride competitively in the United States and that it was a realistic ambition that he would one day ride in competitions there.
74He said his father knew about this conversation. However, his father did not refer to this in his affidavit.
75I do not need to make any findings about whether this was a realistic dream for Mr Carter to hold.
76I do find, however, that this was a dream that Mr Carter held, and that because of his injury, he no longer holds it.
77This further supports my earlier finding that the loss of motocross was a substantial blow for a young man who had hopes and aspirations of realising his dream in the future.
Muay Thai
78Mr Carter said that, prior to his injury, he did Muay Thai (sometimes referred to in the material as martial arts) two nights a week up until about five months before starting work with the employer. He took a break from Muay Thai and other recreational activities around that time because he had started a new relationship.[41]
[41]T36, L26-28
79He said that, had the injury to his right leg not occurred, he would have liked to have returned to Muay Thai.
80Mr Carter agreed it would be difficult to engage in Muay Thai as a result of his back pain. However, for the purpose of this application, I must decide what consequences flow from the right leg injury, as distinct from other unrelated injuries or impairments.[42]
[42]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [24]-[25]
81His history of engaging in Muay Thai prior to his right leg injury was consistent with the history he provided Dr Chen and Mr Thomas. The fact he is prevented from engaging in it now is supported by the restrictions they found he had, given the movements required.
82I therefore find that Mr Carter is no longer able to engage in Muay Thai as a result of his right leg injury. This is a significant impairment consequence for Mr Carter, given his young age and his passion for Muay Thai.
Social life
83Mr Carter said that his social life and relationships with friends had been adversely affected because of his inability to engage in his pre-injury recreational activities.
84This was supported by his father and Mr Nener in their affidavits.
85Mr Carter agreed he told Dr Mathew Staios, clinical neuropsychologist, in 2018, that:
(a) he spent a large amount of time by himself;
(b) his father was his main source of social support;
(c) he had very few friends;
(d) he engaged with a number of people on the internet; and
(e) he spent time playing on his Xbox.[43]
[43]Report of Dr Mathew Staios, dated 24 October 2018, at PCB 70
86However, he also said he had tried to change his life in 2019 and the evidence that was happening was that he:
(a) had obtained a job;
(b) had started a relationship with a new girlfriend, and
(c) was not sitting around playing Xbox or spending time on the computer.[44]
[44]T42, L31 and T43, L1-2
87I accept Mr Carter’s evidence on this point.
88On the basis of Mr Carter’s evidence, the evidence of his father and the evidence of Mr Nener, I find his inability to engage in his pre-injury recreational activities has had an adverse impact on his social life.
Employment
89Mr Carter has not made an application for a determination for loss of earning capacity and thus I am not required to consider whether Mr Carter has a loss of earning capacity of 40 per cent or more resulting from his right lower limb injury.
90However, it is appropriate to consider the impact of his right lower limb injury on his ability to work when assessing his pain and suffering consequences.
91In his first affidavit he said:
“After stopping work for [the employer], I remained off work for about 12 months before obtaining alternative employment doing deliveries for a large white goods retailer, E&S Trading, where I remained until early 2022. I then started working at a company called Rylock Windows as a truck jockey. I remained at Rylock for a short period of time, but stopped as I was redirected to work on the factory floor, and not in a truck jockey capacity. ….”[45]
[45]PCB 8 at paragraph [9]
92He said he started at 6.00am every morning and worked until they finished the job. He delivered and installed white goods, such as washing machines, dryers and bar fridges.[46] He worked as a truck jockey alongside another worker. This required:
(a) pushing and pulling trolleys from time to time that were loaded with white goods;[47]
(b) some bending;[48]
(c) lifting items as directed, squatting or bending to pick them up and then standing up with the items in his hands before carrying it somewhere;[49]
(d) some kneeling;[50]
(e) probably some twisting, although he could not remember an occasion where he had twisted;[51]
(f) walking and standing before getting straight back into the truck.[52]
[46]T10, L26-31 and T11, L1
[47]T12, L5-8
[48]T12, L9
[49]T12, L10-17
[50]T12, L22-24
[51]T12, L25-31
[52]T13, L2-4
93Mr Carter was also cross-examined about his work at Rylock. He said that, while he had been employed as a truck jockey, he was mostly placed in the warehouse pushing and stacking windows.[53] He started work at 6:00am and worked until 2:30pm. He quit this job after about a month, as he had pain down his right leg a lot of the time. He said that if he had been mostly working as a truck jockey, he would have been able to cope because that role would have mainly required him to use his upper body, placing less strain and discomfort on his right leg. He was also able to manage his leg pain through regular sitting breaks in the truck.[54]
[53]T13, L15-18
[54]T15, L10-16
94In his second affidavit, Mr Carter said he was still in the process of applying for jobs but was not currently working.[55] He had been applying for jobs since his last affidavit was sworn, but was struggling with his confidence, in part, as a result of his injured leg.
[55]PCB 5 at paragraph [9]
95The VWA submitted that the physical restrictions Mr Carter said he was subject to were inconsistent with the work he did for E&S Trading and Rylock.[56]
[56]T52, L23-25
96However, as a truck jockey, he had periods of sitting in the truck and thus his right lower leg would get a rest. He placed emphasis on the fact that he was able to get back in the truck after sitting or standing when at E&S Trading, and he emphasised that he would have been able to perform the truck jockey role at Rylock because of the rest break he would get from sitting in the truck.[57]
[57]T14, L30-31 and T15, L1-5 and 12-14
97Mr Carter said his right lower leg injury did not stop him from working, but when he did work, he took the maximum amount of Panadol he was permitted to take, that being eight Panadol a day. This contrasted with the usual four to five a day when he was not working.
98The restrictions Mr Carter described himself as having were consistent with the findings of Dr Chen and Mr Thomas.
99I am therefore satisfied I can rely on his evidence on this point.
100I therefore find that while he can work, he is subject to restrictions for employment as a result of his right lower limb injury, and that he needs to manage the increase in pain with Panadol and rest. Given he left school in Year 9 and is a manual worker, these occupational restrictions are significant for him.
Various treating mental health reports
101The VWA relied on reports from both its own Court Book and that of Mr Carter.
102The VWA tendered the following medical documents contained in the Plaintiff’s Court Book:
(a) Dr Geeta Rudra, dated 23 August 2017;[58]
(b) Screening Register Detail Peninsula Health, dated 21 February 2012;[59]
(c) Mental Health Intake Assessment, dated 30 January 2020.[60]
[58]PCB 19
[59]PCB 22
[60]PCB 25
103The VWA also tendered the following medical documents that were contained in its Court Book:
(a) GP Mental Health Care Plan, dated 20 July 2022;[61]
(b) Report of Dr Chen, dated 20 July 2022.[62]
[61]DCB 12
[62]DCB 15
104The VWA did not make submissions about these documents and reports, nor question Mr Carter about them in cross-examination, other than to ask Mr Carter about a reference to playing Xbox and giving up boxing, as reported in Dr Rudra’s report.
105I have reviewed these reports.
106I find that they have not impeached the credit of Mr Carter, nor do they detract from the conclusions I have reached in this case.
Are the consequences permanent?
107It has now been four years post the injury occurring and Mr Carter continues to suffer from the consequences outlined above.
108Each of Dr Chen, Mr Thomas and Professor Vernon addressed the question of the permanency of the consequences for Mr Carter. Each found the restrictions he would be subject to would continue into the foreseeable future and there would be no significant improvement over time.[63]
[63]Barwon Spinners Pty Ltd & Ors v Polodak (2005) 14 VR 622 at paragraph [33] (“Barwon Spinners”)
109While Mr Thomas thought he could undergo scar revision surgery, he did not believe it was likely this would change his pain issue.
110On the other hand, Professor Vernon thought that scar revision surgery was unlikely to be required, and he would, instead, need to use emollients on the scar as required.
111Whatever the future treatment might be, it will not alter the pain, restrictions and impairments that Mr Carter presently suffers from, and they will persist over time.[64]
[64] Ibid
112I thus find that the consequences for Mr Carter are permanent.
What is Mr Carter’s retained capacity?
113In considering that which has been lost, I also need to consider what has been retained.[65]
[65] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27] (“Dwyer”)
114I have previously found that Mr Carter can work, and a position such as a truck jockey is suitable for him if he can have sufficient rest breaks.
115I also find he can undertake domestic chores and activities of daily living. He can walk his dog, go fishing, help his father in the garden and drive a car. His cognitive functioning has not been affected by the injury. The pain from his right leg injury does not prevent him from sleeping. He manages any increase in pain at night time and in the morning with medicinal cannabis. He can socialise, although his social life has been adversely impacted by the loss of motocross, BMX racing, and Muay Thai. Some of these activities require greater modification than others, some require him to take more Panadol than others, and some require greater rest breaks during and/or rest afterwards. However, he can undertake all of these activities.
Conclusion
116While Mr Carter has many pain and suffering consequences arising from his right lower limb injury, I must decide whether, considered together, they can fairly be described as being “at least very considerable” and “more than significant or marked”.[66]
[66]See s325(2) of the Act; Humphries at 140
117Mr Carter was only twenty-seven years old at the time of the injury. He is now thirty-one. He is still subject to the same restrictions some four years after the injury and these restrictions will be with him for the rest of his life. His young age makes the impact of the injuries more profound.[67]
[67] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]
118He manages his intermittent pain with Panadol. While he is pain free on occasion, he has pain on activity, worsening with vigorous activity, such as the movements required when he is working or walking the dog.
119He is unable to obtain stronger painkillers as a result of his unrelated opioid addiction. He manages this by increasing the amount of Panadol he takes (up to the maximum) when undertaking more vigorous activity and resting as required. While he uses medical cannabis to treat unrelated symptoms, it also assists him with managing the pain arising from this injury.
120The main consequence that Mr Carter relies on in this application is the loss of his ability to engage in motocross and BMX riding, and Muay Thai.
121I am satisfied, on the evidence that, as a result of his right lower limb injury, he is permanently subject to restrictions which prevent him from engaging in these recreational activities and that this causes a great deal of pain and suffering to him.
122This is really summed up by this comment in his second affidavit:
“… I continue to be devastated about the loss of these things in my life, as I felt that they were what I lived for.”[68]
[68]PCB 5 at paragraph [6]
123He has also lost the social life and social engagement he had as a result of the loss of his ability to engage in these activities.
124His inability to engage in these activities has also deprived him of his dream to one day compete at a higher level in the United States.
125While he can work, he needs a job that will allow him to have sufficient rest breaks for his leg. For a young man who left school at Year 9, his future employment options will be more limited than they were before.[69]
[69]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [15]
126While there are other consequences to him that have flowed from the injury, these ones are by far the most important. The restrictions described for the other consequences have, however, assisted me in arriving at my decision in this matter.
127I consider, in all the circumstances of this case, that the consequences of his right lower limb injury are fairly described as being “at least very considerable” when compared with other cases in the range of impairments of the right lower limb.
128Leave is therefore granted to Mr Carter to bring proceedings for the recovery of damages for pain and suffering resulting from the injury to his right lower limb sustained while working for the employer.
129I will hear the parties on the form of final orders.
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