Conole v PGM Refiners Pty Limited
[2022] VCC 826
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-20-03048
| PETER CONOLE (a person under a disability who sues by his litigation guardian ZITA KEY) | Plaintiff | |
| v | ||
| PGM REFINERS PTY LIMITED (ABN 48 119 691 262) | First Defendant | |
| and | ||
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant | |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March and 7 June 2022 | |
DATE OF JUDGMENT: | 14 September 2022 | |
CASE MAY BE CITED AS: | Conole v PGM Refiners Pty Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 826 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right ankle – aggravation – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Bezzina v Phi [2012] VSCA 161; Dressing v Porter [2006] VSCA 214; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Ms Y Al-Azzawi | Robinson Gill |
| For the Defendants | Ms F Spencer | Wisewould Mahony |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with PGM Refiners Pty Limited (“the employer”) on 22 March 2012 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function said to be impaired is the right ankle.
5The impairment of the body function must be permanent.
6Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
9I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Petkovski v Galletti[2] and Peak Engineering Pty Ltd & Anor v McKenzie[3] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] [1994] 1 VR 436
[3] [2014] VSCA 67 (“Peak Engineering”)
11The plaintiff swore three affidavits. He was cross-examined. He also relied on an affidavit sworn by his NDIS worker, Zachariah Mattakad, on 18 May 2022. Also in evidence were medical reports and other material. I have read all the tendered material.
12The matter was previously before the Court on 23 March 2022. I granted an adjournment at the defendants’ request to enable Mr Doig to comment on the relationship, if any, between a recent fall in December 2021 and the plaintiff’s incident injury.
13From the defendants’ perspective, “of real relevance in the present application was a very significant pre-existing injury, which Dr Doig thought would have brought the plaintiff to the same situation he is now in, and where doctors fail to disentangle or identify the course of numerous ankle rolling events”.[4] Further, there was an issue of disentanglement of any consequences of the compensable injury from numerous other non-compensable conditions.[5]
[4] Transcript (“T”) 64
[5] T3
The Plaintiff’s evidence
14The plaintiff is presently aged thirty-nine, having been born in June 1983 in Samoa. He moved to Australia in 1999 with his two sisters.
15He now lives alone with assistance from an NDIS worker who helps him with some of his day-to-day activities. He is under a NDIS support plan because of his diagnosed schizophrenia.[6]
[6] Plaintiff’s March 2022 affidavit
16He attended school until Year 10, then worked in a metal factory for two to three years. He made car parts for the following seven years, then worked for Tandem Australia repairing pallets for about five years.
17In about April 2011, he commenced work with the employer as a forklift driver and belt operator. As at the said date, he was earning about $1,000 a week and was sometimes working overtime.
Foot/ankle
18The plaintiff’s viva voce and affidavit evidence of his right foot/ankle condition before the said date was confusing.
19In his first affidavit, he described injuring his right foot and ankle playing volleyball in about 2009 when he rolled it. He made a good recovery. In his second affidavit, he deposed his medical records showed that in around April 2009, he injured his right foot, and he rolled his right ankle playing volleyball on 22 October 2011.
20The plaintiff denied he had bilateral broken ankles as a child, as was noted in the Frankston Hospital Discharge Summary in July 2018. He could not explain that note. He broke his ankle when he was older.[7]
[7] T5
21He thought he hurt his left ankle when playing basketball when he was at Monash Health for psychiatric issues. He does not have any ongoing problems with it. Since he hurt his right ankle at work, it keeps rolling and he has been limping most of the time.[8]
[8] T9
22He initially agreed that when he hurt his right ankle in 2011, he was just standing on the volleyball court and a team member stepped on him accidently.[9] He was unsure how he hurt his ankle when told his GP noted, while playing basketball, the plaintiff jumped and landed on another player’s foot.[10]
[9] T10
[10] Attendance on 4 November 20111 with Dr Kabir
23He was not sure whether he was playing volleyball or basketball, because he was playing both sports around that time.[11] He knew someone stepped on him and his ankle came good. He had a scan afterwards but did not really remember what it showed.[12]
[11] T11
[12] T12
24While it was suggested to him his medical records in October 2011 indicated he then had limited weight bearing,[13] the plaintiff thought this was after the said date.[14] He only wore a CAM boot after the said date because he had to go back to work with the boot to do light duties.[15]
[13] Clinical notes to 26 October 2011 - right ankle ultrasound and x-ray
[14] T12
[15] T14
25After the sporting injury, his right ankle “came back good I think”.[16] After that injury, he agreed he was prescribed painkillers at Dandenong. He did not have pains “and stuff like constantly”. He could walk but could not run – he could not remember much.[17]
[16] T14
[17] T15
26He went back to work after the sporting injury – on normal duties. He then had a heart attack. He was then on normal duties when he hurt his ankle on the said date.
27He did not remember, as Mr Hooper reported in 2012, that his ankle continued to bother him somewhat after the sporting injury – “I mostly have heaps of problems after I had that incident. I thinks that [is] when everything really was not good for me [sic] my ankle. I got constant pain and I’ve been limping and stuff. But I couldn’t remember much of what been going on with all my history.”[18]
[18] T15
28He agreed he was having ongoing problems with his ankle and then had a heart attack.[19] He had been shown Monash Health records showing he was admitted with his heart attack on 21 November 2011, having deposed earlier it was September, and that he had made a full recovery.
[19] T15,16
29While he had said he had recovered from the heart attack, he agreed he still sees a cardiologist and takes medication for chest pain. He has been to hospital many times for chest pain and had lots of further investigations.[20] He agreed, as Dr Nair reported in 2015, that he suffered from severe cardiac disease and had to take time off quite regularly due to that since 2011.[21]
[20] Dr Nair’s 2015 report
[21] T18
30He agreed was a very serious situation, and he had major surgery. Given it was such a major heart attack, he was not sure and struggled to remember clearly how bad his ankle was before.[22]
[22] T16
31Before the heart attack, he had stopped all sports except ten-pin bowling, which he then did for a little while.[23]
[23] T17
32He returned to work soon after his heart attack to his normal job, full time, having had a couple of weeks off.[24]
[24] T18
The incident
33He was injured on the said date, going from one platform to another on a walkway when he slipped and fell on the back of a plastic TV screen on the walkway. His right leg twisted, and he landed heavily on his chest. He tried to get up but could not walk (“the incident”).
34When he stepped down the stairs, stepping off the platform, he twisted his ankle.[25] He agreed it was also twisted in October 2011, but someone stepped on it, he fell and twisted it.[26] It was probably the same side of his ankle, indicating with his hands rolling to the outside as opposed to the inside.[27]
[25] T19
[26] T19
[27] T20
35After the incident, the plaintiff saw Dr Vithura Jeyasingham at Casey Superclinic as his normal clinic was closed. She gave him pain relief and put him off work. She arranged x‑rays and a right ankle ultrasound which showed a number of problems including a fracture.
36The plaintiff first saw orthopaedic surgeon, Mr Gerard Bourke, in July 2012, who organised an MRI scan which showed the fracture. The plaintiff wore a boot for protection for a few months or so and was then referred by Mr Bourke for physiotherapy in Cranbourne.
37Mr Bourke possibly told him in July 2012 that his ankle went into inversion and that he had a possible hairline fracture. The plaintiff still had some pain with twisting on uneven ground and there were episodes of occasional instability, but he could walk on his ankle most of the day. Mr Bourke then sent him off for physiotherapy, where the plaintiff attended five times in August 2012.[28]
[28] T24
38The plaintiff thought, but was not sure, he was in Samoa for all of September 2012 for a holiday, and when he got back he saw Mr Bourke in October 2012.
39When it was suggested that Mr Bourke had reported the plaintiff was virtually back to his pre-injury condition, and he had made an excellent recovery with physiotherapy, the plaintiff said he went back to the doctor to see him because of the pain, so he did not know why Mr Bourke said something like he had fully recovered, when he still had pain running through his ankle at the time.[29]
[29] T25
40The plaintiff “remembered having physio, he did a good job, I walk a bit better than what I was”. He could not remember being virtually back to his pre-injury level of activity. He was not sure, but that could well be right.[30]
[30] T25
41The plaintiff was not sure, but thought, he did not actually go back to a doctor for two years after this appointment with Mr Bourke.[31]
[31] T25
42He could then have had some very mild symptoms, but he did not know. When asked whether he discussed the MRI scan findings with Mr Bourke, he simply said, “The last time they told me that I have arthritis in it [that could be much later]”.[32]
[32] T26
43Mr Bourke said, “if it it’s something – trouble again I can come back”. The plaintiff has not gone back to see him or any other specialists and had no more physiotherapy.[33]
[33] T26
44While Mr Bourke concluded there had been an excellent recovery, with the plaintiff being virtually back to pre-injury function and only very mild symptoms, the plaintiff responded – “I don’t know but I have really problems with my ankle … I’m in pain”.[34]
[34] T26
45When it was suggested that Mr Bourke’s description was the true situation over ten years ago, the plaintiff said “Well, I do have different thinking sometimes. Sometimes I think I’m better and I don’t want to show people that I’m weak or something so I tell them that I’m fine but I’m really not fine. … I think that’s what happens at the time. I want to keep the job and so I tell them that everything is all right with my ankle.” When it was suggested that was “nonsense”, he said he did not know. Most things he just did not remember.[35]
[35] T27
46The next attendance for right ankle pain was two years later, on 1 October 2014, when the plaintiff saw Dr Nair, who noted “Voltaren Rapid … twisted the right ankle had a fracture a while back swollen … and try not to walk a lot”.
47The following day, the plaintiff saw his physiotherapist, who noted “slipped over at work a year ago sprained R ankle reaggravated a couple of days ago when twisted [right] ankle when walking”.
48The plaintiff agreed he attended having twisted his ankle when walking. He had a couple of sessions with his doctor and took a lot of painkillers and his ankle came good again. He had used a lot of painkillers – which he had been using for different things – and had pain.[36]
[36] T29
49He had a CT scan on 21 September 2015 because of his ongoing ankle problems. His ankle was then still tender and swollen and he was having a lot of pain.
50He agreed he saw Dr Nair at Casey Superclinic a couple of times in 2015 and maybe twice in 2016 for his ankle.[37] It sounded about right he saw him on 12 October 2016. The plaintiff did not see a doctor again for his ankle until 15 October 2018. He agreed, in the interim, he was going to both the Duff Street Medical Clinic or Casey Superclinic very regularly for a range of other problems. He agreed he did not talk about his ankle then, “Yeah, only that time that I go because I had a roll, my ankle rolled … and then I had to go back there … then have to tell them”.[38]
[37] T54
[38] T55
51He agreed that he would go alright with his ankle and then, from time, roll it. It would get worse for a little bit, settle down again, and then in another year or two it would roll again, settle down again, and he would go to the doctor. “Well, that’s what it is happening, yeah.”[39]
[39] T55
52He agreed, if he was having major, constant problems with his ankle, he would be going to the doctor all the time, like he does for his back, because he takes a lot of medication fixing his ankle problems not to flare up the pain. He then agreed he was taking lots of painkillers for his back.[40]
[40] T56
53He agreed, generally speaking, when he has rolled his ankle, he just takes a bit of Panadol or Nurofen. He sometimes wears an ankle sleeve, but not all the time. It depends if his ankle is really painful and looks swollen, he puts it on. That happens probably once every week just for a short period, and it settles down again, and he takes it off.[41]
[41] T56
54In April 2019, he had a further right ankle x‑ray because of ongoing pain, and was then told he now had arthritis.
55As at November 2019,[42] he was seeing his general practitioner, who prescribed Panadeine Forte, although the plaintiff tried to rely on Panadol and Nurofen. He had been wearing an ankle sleeve to help keep his ankle stable. The sleeve helped with the swelling and associated pain. He then needed to undergo further general practitioner review and physiotherapy, and may need to see a surgeon again, and also a psychologist.
[42] Plaintiff’s November 2019 affidavit
56The plaintiff was taken to his GP Management Plan of May 2020 in which his present complaints did not include his right ankle – mentioning heart disease, back pain with chronic disc prolapse, depression, previous history of schizophrenia and alcohol over use.[43] He explained that he was seeing different doctors at the clinic. He was not sure if they were the major problems that were listed. He had not seen his doctor about his ankle since his normal GP left. He was seeing Dr Nair with the ankle and “stuff”, and when she left in 2019 or 2020, he had not been to this doctor about the ankle problem. He talked to other doctors after she left a few times, but they left as well. He has a new clinic in Dandenong, and he has been once.[44]
[43] T43
[44] T46
57He agreed there was no reason, if he was having major ankle problems, why he would not have mentioned it to other doctors he saw at the clinic.[45]
[45] T46
58He returned to Duff Street Medical Clinic with right ankle pain in July 2020 and January 2021. He was prescribed pain medication and given a referral for an x‑ray in January 2021.
59He is looking for a new doctor closer to home. He has recently been to Dandenong Superclinic as well as Duff Street Medical Clinic. Dr Boctor is one of the doctors he sees, and Dr Isaac is the other.[46]
[46] T37
December 2021 fall
60In December 2021, his right ankle gave way, causing him to fall and break his left wrist. He then had another right ankle x‑ray. His left wrist is still painful at times.[47] He had an ultrasound after this recent fall, and he was told by his doctors nothing really had changed for his ankle. He is still taking medication.[48]
[47] T58
[48] T59
61In March 2022, he was hospitalised in Dandenong Hospital with a bowel infection, and was told he would need to return for a colonoscopy in six weeks.
62He was then taking Lyrica for back pain, prescribed by Duff Street Medical Clinic. When needed, he took Panadeine Forte, Panadol and Nurofen for additional pain relief for his back, ankle, and, more recently, wrist. He also used Voltaren and Deep Heat every morning and sometimes in the afternoon. On average, he took painkilling medication every day, and he continued to use his ankle sleeve when the ankle swelling was bad.
Mental health
63The plaintiff has been diagnosed with schizophrenia, controlled by medication. He has also suffered from depression and been hospitalised as a result.
64His incident injury had worsened his mental health. He had a breakdown in 2012 and had to be hospitalised. This resulted from him being sacked and losing his livelihood.[49]
[49] Plaintiff’s November 2019 affidavit
65His mental health deteriorated, and in 2016, he was admitted to hospital for three or so months to treat that condition. He was stressed and in pain and having problems working.
66He had had periods of involuntary treatment and was ultimately put on a disability support pension for his schizophrenia in 2016 and has been on it ever since.
67He used to enjoy going to friends’ places and “mucking around, playing ball games and having fun,” but now did not go out of the house much.[50]
[50] Plaintiff’s November 2019 affidavit
68When it was suggested he could not work because of his schizophrenia, he said his mental problem was sort of in control. He could sort of work, and he could go back to work if he had his medication and was in control of it.[51]
[51] T51
69He takes Abilify, Valproate and Latuda for his mental state. The medication makes him slow, and it makes him blank out a lot of stuff. It is hard to concentrate and understand conversations. Back when he was playing sport, he weighed 100 kilograms. He put on a lot of weight due to medications.[52]
[52] T53
Work after the incident injury
70The plaintiff’s affidavit evidence about his post-incident work history is confusing.
71After having a couple of days off, he was on light duties because of his ankle. He was limping and he was slow.[53]
[53] T18
72In around April 2012, he started having chest pains and went to hospital again. He lost his job when he was in hospital.[54] He believed he lost his job because of his ankle and his heart condition.[55]
[54] T21
[55] Plaintiff’s May 2022 affidavit; Dr Nair’s February 2013 report
73He found his next job very quickly, as a forklift driver, doing plastic bottles, working eight hours a day, four days a week with Visy; no overtime.[56] He found the job hard, involving lots of standing and walking, and he struggled with his injury, and stopped working.
[56] T22
74In August 2012, he obtained a job with his brother-in-law making pallets. It was physical work, and he coped with it; it was more using his hands. It was full-time casual. He was managing with his work, although he had some problems with his heart.[57]
[57] T29
75He agreed he had been having problems with his back from around 2010. He had lifted a heavy box at work but had been sort of managing at work but then in February 2013, his back “went completely”.[58]
[58] T30 – lifting at Tandem Australia
76He believed his ongoing back problems were because of an incident at work in February 2013 when the upender machine was broken and he was forced to manually move pallets. The next day, 8 February 2013, his back went as he bent to pick up a nail gun.[59]
[59] Plaintiff’s 31 May 2022 affidavit; Dr Nair’s February 2013 report
77He was taken by ambulance to Emergency. They thought he had likely a disc prolapse, and it put him out of work at the time. It caused him really serious ongoing problems with his back, for which he had some physiotherapy for quite a few years and was prescribed serious painkilling medication. He has been prescribed Panadeine Forte and Tramal on an ongoing basis for his back, and from time to time, has had continued referred pain down his legs, particularly the left.[60]
[60] T31
78He was referred for a CT scan because of pain down his legs in 2014, and there were later attendances on his doctor for his back.[61]
[61] T32
79He agreed, at September 2021, he told his physiotherapist of a long history of lower back pain – six or seven years – pain while sleeping, radicular pains in the leg, previously in a physical job but now doing IT because of his back, past history of heart attack and taking medication, which stayed pretty much the same.[62]
[62] T33
80It is still the case, as Dr Fish reported in July 2021, the plaintiff has had persistent back pain, referred pain, ongoing constant pain since 2013, radiating, and trouble sleeping because of backache.[63] He agreed that he had the same spasms in his back, as Dr Fish then found on examination.[64]
[63] T34
[64] T36
81The plaintiff is limited to sitting or standing for ten minutes and can walk for about fifteen minutes because of his back, and that has all stayed the same. He can drive for thirty minutes, wakes up with a painful, stiff back which lasts ten to fifteen minutes. Urinary problems have resolved.[65]
[65] T35
82He confirmed he has taken Lyrica, Panadeine Forte and Nurofen for back pain. He had trouble bending to do any house cleaning, because of his back and ankle.[66] He agreed he told another doctor in 2021 he did low level housework because of his back and also housework could hurt his arm.[67]
[66] T35
[67] T36
Right elbow
83He agreed, after a major back injury in 2013, he was off work and got back sometime in either around late 2014 or 2015.
84He injured his right elbow on 27 August 2015 working for Randstad Pty Ltd, (Loscam) as a result of repetitive work. His elbow continued to hurt when he overused it.[68]
[68] Plaintiff’s first affidavit
85He had worked at Loscam for seven months or so, repairing pallets on a full-time casual basis.[69]
[69] T32
86His right elbow injury in 2015 stopped him working. It is “sort of alright now”. The problem was with repetitive work, which he has not done for some time. It is okay, not really a fuss about it. It is getting better. He is not getting pain in it anymore.[70]
[70] T40
87In the last two years he has not had a problem with his right elbow. It has been good.[71]
[71] T40
88He agreed that when he saw Dr Littlejohn in 2020 for his elbow, he told him that pain had continued to come and go over time, although he could not remember a lot of what that doctor reported.[72] He agreed he still had problems, even though he was not doing repetitive work and his elbow pain gets worse the more he does.[73]
[72] T41
[73] T42
Hip
89He also has a right hip problem and limps when he walks. It feels like it is dislocated “or something”.[74]
[74] T36
90His hip problem probably came on about 2016 or 2017. It is just because, when he walks, he limps on one side, and it feels the hip is not straight. He has had no right hip investigations.
Visy 2016
91The plaintiff went back to forklift driving in February 2016 with Visy.
92As his GP recorded in February 2016, the plaintiff suffered injury pulling pallets at work and pain in his right shoulder and right neck.[75] After this incident, they never called him back.[76] Ultimately, he agreed, after some uncertainty, that this February 2016 incident was at Visy, which was the last time he worked.[77]
[75] T47
[76] T48
[77] T49
93He seemed to say, at Visy, he was a bit slow and limping, and had problems there with that. He remembered because people were complaining about how he acted at work. When it was suggested that he left Visy after this shoulder injury, he did not remember. He agreed if he was having big problems with his ankle he would be going to his doctor.[78]
Consequences
[78] T50
Pain
94As at November 2019, he had constant right ankle pain, and it hurt a lot when he walked around, and always hurt more when it was cold. He was taking regular pain medication to cope with the pain.
95He could not walk around for more than 20 minutes without severe pain, and his right ankle sometimes gave way. He could not wear safety boots for work because of the pain. He could stand for about 10 minutes and then his ankle would really start to hurt.
96He had difficulty walking around to do the shopping and carrying out usual activities. He had significant difficulty walking on uneven ground. He also got pain in the top of his foot. He now limped when he walked, because of his right ankle.
97Having initially deposed he could no longer do sports which he previously loved – rugby union as a hooker, basketball and volleyball, because he got severe pain and his ankle was unstable – in his second affidavit, he deposed he stopped playing basketball, rugby and volleyball, prior to the incident.
98While he was in Monash Health for psychiatric issues, he participated in some low-level activities like backyard cricket, walking, and trying basketball with another patient. At that time, he turned his left ankle trying basketball.
99He used to love ten-pin bowling, playing in a league every Friday night, but had to stop because of his ankle injury.
100He agreed, before his heart attack he had stopped all his sports, and he did not go back to running or anything after the heart attack. Ten-pin bowling stopped after the 2012 incident.[79] He could still do ten-pin bowling after the sporting injury, but nothing else. Then he had his heart attack. He had already stopped sport by then.[80]
[79] T16
[80] T17
101He had also put on significant weight because he was not very active any more. He could not run anymore. Bending down on his ankle was a problem for him.
102In 2019, living with his sister was then difficult, as he felt like she had to look after him in addition to her children. She did the cooking and cleaning, and he did light cleaning to help. Other family members did the heavier domestic tasks.
103His driving was limited and affected, and if he drove for too long the top of his foot started hurting.
104His sleep was affected, and he felt pain at night, and he took medication to settle it down. He also woke up at night in pain. When he got out of bed in the morning he could hardly walk on his ankle.
105He suffers from sleep apnoea.[81] He has problems sleeping because of pain in his back, neck and elbow. When he was asked to slice the pie and say what contributed most to his sleep issues, he agreed the pain was everywhere, but his ankle was the worst, because when he rested it, that is when the pain comes on. When he starts to move around, everything starts hurting.[82]
[81] T37
[82] T38
106He still has issues with his ankle giving way and twisting, and the pain is worse for a while after that happens. The distance he can walk, his ability to wear heavy boots, and how long he can stand, varies depending on how recently his ankle has given way. It gave way a couple of weeks ago. Recently he went for a walk and had to call someone to pick him up after 15 minutes. Walking on uneven surfaces remains difficult.
107He has learnt how to balance on his right ankle so that the pain is manageable when he bends down.
108He does more cooking and cleaning now that he lives alone. Standing to do those things for long periods makes his ankle and back hurt. As a result he sometimes gets takeaway food. He often does the housework in sections, and rests in between. His NDIS worker helps from time to time with housecleaning and takes him shopping.
109His NDIS worker got him a swimming pass, and he has been to the pool a few times. The hydro pool is warm and helps his pain, and he sleeps better after he has been to the pool.
110He started in the NDIS Scheme in about 2018. He has a support worker who does cleaning for him, and he has reference to multiple services helping him, including MIND and EACH,[83] who were service providers and coordinated services.[84] Usually he has three days’ support from his worker a week, and it can be more if he needs it, up to seven days. It is generally about four to six hours a day, and he has help with housework and driving, and the worker encourages him to get out and do things. He does not feel like doing things. Sometimes he feels like cleaning, but he has been in a lot of pain, and he has had aching in his back and ankle if he stands and walks around doing the pushing and vacuuming. He agreed “everything” affected his ability to do housework.[85]
[83] T51
[84] T52
[85] T53
111He agreed that now, with his NDIS worker, he does not have to do a lot of the domestic things he did before. The worker gives him a lot of help.[86]
[86] T57
112The plaintiff does some DJing at home sometimes, and some computer work. He has to stand up and move around because of his back, and that is the only problem with those activities.[87]
[87] T58
113He walks to the shops a couple of times a week, and even though it hurts, he keeps walking because his cardiologist has told him to lose weight.
114His back pain, ankle pain, and wrist pain, affect his life in distinct ways. His wrist pain is slowly improving as it heals. His back pain is aggravated by unwise movements. He is a big person, and currently weighs about 107 kilograms. His ankle pain cannot be avoided once he starts walking.
115There is some overlap between the consequences of his back and ankle pain:
(a) he gets pain in the ankle and back when standing for long periods, with the pain starting in his ankle. He tends to put more weight on his left foot to take the pressure off his right ankle, which makes his back pain worse;
(b) his ankle aches in bed, and the pain sometimes wakes him during the night. He still finds it difficult to walk on his ankle after he wakes up in the morning;
(c) the top of his foot still hurts when he drives, and his NDIS worker sometimes drives him to appointments;
(d) bending and lifting makes his back pain worse;
(e) his back pain also impacts on his ability to cook and clean. He finds it difficult to bend and push the vacuum and make the bed. His ankle pain also restricts these activities;
(f) his back pain also affects his sleep, and he finds it difficult to lie on his back;
(g) he takes medication for his back pain which helps for his right ankle.
116His ankle pain continues to have a major effect on his life.
The assault
117A few weeks before the hearing, the plaintiff was assaulted at the community hall. His face swelled up, his thumb hurt, and his right knee was sprained. He had some problems walking on his right knee at first, but it is getting better now.
118At the time of the recent assault, the plaintiff was intoxicated, and three guys came up to him and started bashing him. He woke up on the ground unconscious. Mostly his head and face were hit, and they kicked his knee. It is getting better. He is not taking medications and he was told that was just a strain. His knee is alright; it is not too bad when walking.[88]
Lay evidence
[88] T9
Zachariah Mattakad, disability support worker
119The plaintiff’s NDIS worker, Zachariah Mattakad, swore an affidavit on 18 May 2022.
120He provides care to the plaintiff and has been working with him for about two years. He usually sees him three times a week: Monday, Wednesday and Friday.
121Since he has known the plaintiff, the plaintiff has had problems with walking because of his ankle injury. He has seen that the plaintiff limps and often walks very slowly. He does his best to encourage the plaintiff to go for walks, but he is often reluctant to do so.
122He is also aware that the plaintiff has back pain, and he has recently assisted him with obtaining a supported chair. The plaintiff’s back pain is not as noticeable when he walks, due to his limp being so pronounced.
123He recently obtained a swimming pass for the plaintiff to improve his fitness. The plaintiff had tried this once, and complained about ankle pain after the session, and had not returned to the pool since.
124In more recent times, he had noticed that he had to help the plaintiff with a lot more of the cleaning around his house. The plaintiff seemed to be in a very bad state and was not taking good care of himself. The plaintiff complains of pain when trying to do chores.
Treating doctors
Dr Jeyasingham at Casey Superclinic
125The plaintiff presented on 22 March 2012 with injury to the right ankle that happened at work.
126Investigations were undertaken and he was referred to Mr Bourke. The plaintiff continued with rehabilitation and made good progress.
127He presented himself to the Casey Superclinic nearly three years later for right ankle pain. A CT scan of 21 September 2015 showed post-traumatic arthritic-type changes involving the ankle.
128Since the incident, over time the plaintiff had developed arthritic changes in his right ankle which may stabilise or deteriorate. After the incident, he returned to work on light duties.
129It was difficult to assess the symptoms and progression of the injury, as the plaintiff did not consult Casey Superclinic for his other comorbidities.
130The Casey Superclinic medical records commence in February 2003 and then jump to March 2012. There are then no attendances until July 2015, four attendances in 2015, three in 2016 and six in 2019.
Mr Gerard Bourke, orthopaedic surgeon
131The plaintiff was referred to Mr Bourke in July 2012.
132The history was that following the incident, the plaintiff’s ankle went into inversion and following the injury, he had marked swelling and bruising and was unable to walk on it. The plaintiff was told he had a possible hairline fracture, and rested for a couple of days, then started light work.
133By that stage, the plaintiff had obviously improved and was now on altered duties, but still had pain with twisting on uneven ground. There were episodes of occasional instability, but he could walk on it most of the day. He had not had physiotherapy or a brace. He had suffered some mild inversion injuries in the past, but nothing as bad as this. Otherwise, he was fit and well and did not play sport.
134On examination, the ankle had normal alignment and a full range of motion. There was tenderness associated with the anterolateral ankle and lateral ligament complex. The peroneal tendons were normal.
135X‑rays did not show any obvious fracture, and although there was report of widening in the medial side with possible deltoid ligament injury, Mr Bourke did not think this could be diagnosed on plain non-weightbearing films. He therefore organised an MRI scan in July 2012. That had shown no major talar dome injury but simply showed some synovitis consistent with the previous injury
136In October 2012, Mr Bourke reported that the plaintiff was making an excellent recovery with physiotherapy. He was virtually back to his pre-injury level of activity, and only had some very mild symptoms.
137He noted the plaintiff would continue with his rehabilitation, and he would review him only if he had any further problems. The plaintiff was going to get a brace for when he was working on uneven ground, and would continue with his exercises.
Sharadha Weerasinghe, physiotherapist
138The plaintiff originally attended Cranbourne Physiotherapy Clinic on 2 August 2012, five months after the incident. He was then weight bearing bilaterally, and ambulating without aid. The plaintiff received five physiotherapy treatments in August 2012, last attending on 30 August 2012.
Duff Street Medical Clinic
139Dr Boctor reported in May 2022.
140He saw the plaintiff on 24 December 2021. The plaintiff told him he rolled on his right ankle and fell on the left hand the previous day. He was complaining of right ankle and left wrist pain.
141The plaintiff had mentioned an old injury of the right ankle and was concerned about further damage to it. The right ankle was mildly swollen and tender over the lateral side. Movements were restricted, in part, because of pain.
142The plaintiff’s left wrist was moderately swollen and very tender, with maximum tenderness over the distal part of the radius and scaphoid bones.
143The plaintiff was referred for x-rays and re-attended with them. He was referred to the Emergency Department at Dandenong Hospital for urgent orthopaedic management.
144On 1 February 2022, the plaintiff advised by phone that he was experiencing more wrist pain and requested stronger analgesia, and Panadeine Forte was prescribed.
145On 18 March 2022, the plaintiff was complaining of aggravated back pain since the fall and requested a repeat prescription to his previously prescribed Lyrica, and more Panadeine Forte.
Investigations
146On 23 October 2011, there was a request for an ultrasound:
“Ultrasound – Lt. Ankle Joint. Twisted Ankle yesterday while played Volley ball. Pain & swelling ? Any ligamental impact or any other pathology.”
147A right ankle x‑ray and ultrasound was carried out on 26 October 2011.
148The x‑ray showed marked soft tissue swelling over the right lateral malleolus with an avulsion fracture of the tip of the lateral malleolus measuring 6 millimetres in length by 1 millimetre in width. The talocrural joint remained enlocated, as did the subtalar joint. A further 3.5 x 1.0-millimetre flake of bone was displaced several millimetres from the posterior malleolus. There were no other fractures or bony abnormalities.
149Ultrasound: clinical details “twisted ankle with limited weightbearing”. It was reported there were ruptures of the right anteroinferior tibiofibular, anterior talofibular, and probable calcaneofibular ligaments. There was a small longitudinal tear of the right peroneus longus tendon.
150There was an x‑ray and ultrasound of the right ankle on 23 March 2012.
151Following the x-ray, it was reported there was a lateral displacement at the talus and widening of the medial joint space, consistent with medial ligamentous disruption. A small bone fragment was noted adjacent to the medial aspect of the talus with a linear ossicle corticated adjacent to the medial malleolus. There was soft tissue swelling.
152The ultrasound demonstrated a complete tear at both the tibiofibular and talofibular ligaments. There was extensive fluid in the region. There was also fluid within the peroneus tendon sheath distally 23 x 7 x 10 millimetres. The tendon was normal. Orthopaedic referral was suggested.
153On 20 July 2012, Mr Bourke arranged a right ankle MRI scan. It was reported there was minimal bony irregularity on the anterior aspect of the tibial plafond with minor loss of articular cartilage. This could be due to anterior impingement. There was disruption to the anterior talofibular and tibiofibular ligaments as well as the calcaneofibular ligament. The structures were now difficult to visualise in continuity. Deep fibres of the deltoid ligament were intact, as was the spring ligament. There was a kidney-shaped enhancing mass on the posterior aspect of the ankle apparently arising from the posterior subtalar joint. It contained probable calcification. It could represent an area of pigmented villonodular synovitis. It caused minimal impingement on the posterior tendons.
154Following a CT scan of the right ankle on 20 September 2015, it was reported there were post-traumatic type changes involving the ankle
155There was a right ankle x-ray on 16 November 2018 – “fracture a few years ago - still painful and unable to walk more than 20 minutes because of pain.”
156It was reported the ankle joint space was widened medially consistent with ligamentous disruption. Soft tissue swelling.
157On 2 April 2019, there was a further x‑ray of the right ankle, the clinical notes to which set out “WorkCover injury in 2012, ongoing pain - comparison was made with last x‑ray of 15 November 2011”.
158It was reported there was mildly progressive ankle joint osteoarthropathy with dominant anteromedial ankle joint space narrowing. Asymmetrical ankle joint spaces and talar tilt were stable. Corticated ossicles and osteophytes along the tips of the medial, anterior and lateral malleoli were slightly enlarging. Subtalar, talonavicular and naviculocuneiform joints were not narrowed. There was stable mild Achilles insertional enthesopathy and prominent plantar calcaneal spurs. Stable thickening of the lower lateral distal tibial cortex was noted. No acute fractures identified.
159Dr Jeyasingham organised a further ankle x‑ray on 9 July 2019. The findings were most in keeping with likely post-traumatic osteoarthritis of the talocrural joint. Early osteoarthritis was also seen at the subtalar joint.
160There was a further right ankle x-ray on 15 January 2021. It was reported there was bony irregularities seen around the malleoli consistent with previous trauma. There was talar tilting with widening of the lateral tibiotalar joint space and bony impingement between the medial talus and the medial malleolus. A plantar spur was also noted.
Recent fall
161An x-ray of the left wrist on 24 December 2021 was reported to show a comminuted fracture of the distal end shaft of radius with mild displacement. CT study recommended. Distorted 1st metacarpal bone, which was in keeping with an old, untied fracture.
162An x-ray of the right ankle at that time was reported to show bony irregularities and few corticated osseous shadows demonstrated around the ankle mortise in keeping with old rather than recent fractures. Ankle mortise was subluxed. CT study was recommended.
163A right ankle x-ray five days later was reported to show osteoarthritic changes in the ankle joint. There were no features to suggest an acute fracture, but overall radiographic assessment was limited with obliquity with a background of osteoarthritic changes noted.
Medico-legal evidence
William Edwards, foot and ankle surgeon/orthopaedic surgeon
164Mr Edwards examined the plaintiff on Telehealth in August 2020.
165The history included schizophrenia, a lower back injury in November 2010 and 2013, an injury to the right ankle on 23 October 2011, a heart attack on 23 November 2011 and a right elbow injury in August 2014.
166The GP records indicated on 1 April 2009, a request for an x‑ray regarding painful right foot which had been swelling for two weeks. The plaintiff had been running but could not recall any trauma. There was swelling over the third and fourth metatarsals.
167On 23 October 2011, there was a record of a right ankle injury the preceding day while playing volleyball. The ankle was swollen and there was pain on pressure, and the plaintiff limped. Three days later, there was a record of right ankle swelling much improved. There was use of Voltaren and Tramal.
168On 27 October 2011, it was noted there was a right ankle injury a few days ago with x‑ray and ultrasound done. On 30 October 2011, there was a record of a recent ultrasound confirming the rupture of the lateral ligaments, a tear in the peroneus longus tendon on the right. There was a referral to Dandenong Hospital orthopaedic team recorded, and the use of Panadeine Forte.
169On 4 November 2011, there was a record of an injury sustained while playing basketball two weeks earlier. On x‑ray, there was a small avulsion fracture at the top of the lateral malleolus. The plaintiff was referred to Dandenong Hospital fracture clinic. There was swelling with improvement particularly with regard to pain. Tramal was being used.
170On 22 March 2012, there was a note of a right ankle sprain at work presenting with pain and swelling. There was an ultrasound and x‑ray and use of Panadol noted. The ankle was swollen, red, tender, with restricted movement, and there was an effusion.
171Mr Edwards then detailed further attendances during 2012 for the ankle, on 8 February 2013 a record of a problematic back, 2 October 2014 a problematic right ankle after an injury a year beforehand, swollen for a few days, tender and slightly swollen.
172On 14 November 2014, there was a record of left midfoot pain without direct injury. On 7 July 2015, sciatic pain was noted. On 24 July 2015, there was a record of a motor vehicle accident with whiplash.
173On 20 September 2015, the notes set out persistent right ankle pain with the plaintiff working full-time as a forklift driver. Tenderness and swelling. Troubles had persisted since injury three years earlier.
174On 2 November 2015, there was a record of use of Voltaren and Panadeine Forte with a number of other records for similar medication.
175On 6 November 2015, there was a management plan regarding low-back pain, ischaemic heart disease, atrial fibrillation, gastro-oesophageal reflux and weight issues, not discussing ankle problems at length.
176On 17 May 2016, a letter by the GP that the plaintiff presented on 22 March 2016 with an injured right ankle, and further details of that report.
177On 28 November 2018, discussion of lower back pain and its management.
178Mr Edwards was provided with Mr Doig’s March 2019 report, notes from the Casey Hospital, correspondence from Mr Bourke, and radiology reports which he summarised.
179The plaintiff gave a history of being unfettered in activities of daily living and housekeeping before the incident. He said he used to play rugby, social games of basketball and volleyball, and enjoyed going go‑carting. He could walk any distance at all.
180On examination, the plaintiff described pain in the right ankle bone which was constant but fluctuating. It felt as though there was glass in his ankle. He recorded pain between 20 to 27/100, and also 90. He described the pain as aching, tight, shooting, stabbing and sharp. He was taking Lyrica and Panadeine Forte and Tramadol daily.
181The plaintiff told him that post-incident, he could walk for twenty minutes, routinely walk for ten or fifteen minutes to the local park. He no longer engaged in sport.
182Mr Edwards thought the plaintiff had an arthritic ankle as a consequence of injuries to the lateral collateral ligaments, syndesmotic ligaments, and peroneal tendons. In his view, the plaintiff’s condition was likely to become worse. His provisional opinion – not having been able to physically examine the plaintiff – was that it was likely in the future he would require surgery with salvage of his ankle, most probably an arthrodesis.
183The injury stopped him from being able to perform standing work, and it was likely that he was suitable for sedentary work at normal hours. He was not able to enjoy the sports he had previously participated in.
184On re‑examination in August 2021, the plaintiff described moderate to severe pain, throbbing, shooting, sharp and stabbing – rating it at between 96 and 98/100. He was taking Lyrica daily, and Panadeine Forte, and sometimes Voltaren.
185Following physical examination and review of the July 2019 x‑rays, the diagnosis was similar, except Mr Edwards was somewhat dubious of a syndesmotic ligament injury still being extant. The condition had largely stabilised. There was already evidence of degenerative change. He confirmed his view as to the plaintiff’s capacity for various activities.
186Mr Edwards provided a further report in March 2022 following receipt of Dr Doig’s September 2020 report and ultrasound photographs, which he confessed he was unable to interpret. Mr Edwards was asked whether the lateral collateral ligaments injury was caused or aggravated by the incident.
187He noted the plaintiff told him he had had a previous injury and that the right ankle was 95 per cent better following that injury. He told him at the first appointment that he had no limitation of function. He said he had had significant and worsening symptoms since the incident.
188Mr Edwards noted the pre-existing injury was a lateral ligament and/or syndesmosis injury.
189If it was accepted that the plaintiff was 95 per cent better, and given things had significantly progressed since the incident, it was reasonable to consider the injury that occurred at work was a significant aggravation of an ankle which had previously suffered an injury but was not problematic, and one that would not have necessarily become problematic without a second injury.
190If it was accepted the ankle was 95 per cent better and stable, it would have stayed so, absent the incident. It was unlikely without the incident that the ankle would have progressed to degenerative change currently experienced, or at least not by this time.
191Mr Edwards reported again in May 2022, having been provided with radiology from 20 September 2015 to 29 December 2021 which was reported to show osteoarthritic changes in the right ankle joint, reports from Dr Doig and Dr Baynes. This material did not change any of his opinions.
192He thought the plaintiff continued to suffer persistent effects, the consequences as a result of the incident. He did not consider it likely that the plaintiff’s more recent fall was as a result of ongoing ankle instability related to the incident.
193The plaintiff described a twisting injury with a two foot step, and then a twist, because of poor footing – slipping on plastic. That was enough injury, enough force to rupture the ligaments of any ankle, and not just one that had been previously damaged. Having said that, the first injury may have made the plaintiff at greater risk of re-injuring the joint.
194Mr Edwards thought Dr Doig was wrong in his contention that once an ankle ligament was injured, the ankle will inevitably progress and become degenerate. In his view, between 60 and 80 per cent of inversion injuries had managed without surgery, would settle and be stable. They were prone to recurrent injury, and it was important to intervene if there was recurrent injury, as they may well degenerate. There were a significant percentage which, after the initial injury, are persistent and of significant instability, and these are those in which reconstruction is typically performed: Not every inversion sprain has surgery to mitigate the progression of the disease, only those which fail to stabilise or settle with a reasonable time.
195If a single injury, or even a recurrent injury, inevitably doom an ankle to arthritis, then foot and ankle surgeons would be immensely busy at surgery, even with fusion surgeries or reconstruction, as this is a very common scenario and represents, in some studies, the second most common cause of a patient presenting to an emergency department. Not nearly this number of patients progressed to severe degenerative change and arthritis; that is to say, many ankles continue to function, despite having a ligament rupture.
196The plaintiff had told Mr Edwards that the ankle was in essence asymptomatic after the 2011 sporting injury but had had significant symptoms ever since the incident. In view of this, he still thought the incident was a significant contributor to the plaintiff’s pathology. It may well be that the ankle had been previously injured, but that does not of necessity doom it: The first injury may well be a contributing factor and, indeed, make the ankle more prone to injury, but the injury in the incident was important for the progression of disease.
The Defendants’ medical evidence
Hospital records
197The plaintiff was admitted to Southern Health Mental Service on 11 October 2010, the principal diagnosis being schizophrenia.
198The Dandenong Hospital Emergency Department discharge summary of 31 October 2011 set out the plaintiff presented to Emergency on 31 October 2011 with a presenting problem of injured right ankle post volleyball last Saturday, nine days ago. He jumped and landed onto another player’s foot, right ankle twisted, inverted inwardly. The diagnosis was a sprain strain of ankle.
199In the discharge summary from Monash Heart/Southern Health relating to an admission on 21 November 2011, the presenting complaint was chest pain and 2 x by conscious collapse. The patient had a successful and uncomplicated PCI and stenting of ninety-nine per cent stenosis in the proximal LAD.
200The plaintiff presented to the Emergency Department at Casey Hospital on 13 February 2013 with the presenting problem a likely prolapsed disc: Last night was lifting pallets and felt sudden onset of low back pain, able to ambulate but with pain. There was a diagnosis of sciatica.
Investigations
201Following a right foot x-ray on 2 April 2009, it was reported there was a comminuted fracture in the region of the neck and head of the third metatarsal. There was some impaction of the fracture fragments. The third metatarsophalangeal joint was enlocated and the fracture did not involve the articular surface. There were no other fractures or dislocations seen.
202Following a CT scan of the lumbar spine in August 2014, it was reported there was moderate to severe L4-5 thecal compression and severe right L4-5 neural exit foraminal narrowing, secondary to a large broad-based disc bulge.
Notes
203The Duff Street Medical Clinic notes commence on 5 October 2006, with the next visit in January 2008, a couple of visits in 2009, and then ongoing attendances from July 2011.
Duff Street Medical Clinic notes – 2022 attendances
204The plaintiff attended Dr Boctor on 1 February 2022 via telephone consultation, where it was noted the cast was removed at the clinic today and he needed painkillers for the left radius and was prescribed Panadeine Forte.
205On 18 March 2022, there was a telephone consultation about back pain. The plaintiff was running out of Lyrica and had Panadeine Forte for back pain.
206On 22 March 2022, the plaintiff presented for a prescription for Panadeine Forte, which he was currently taking for back pain. It was noted back pain after lifting some stuff. Naprosyn was prescribed.
207On 24 April 2022, the plaintiff advised he was assaulted the previous night. He was drunk and did not know much of what happened. He had multiple traumas; eye, knee and thumb, other abrasions. He was limping and had many contusions. He was given ice packs, told to have complete rest and given paracetamol/codeine.
Medico-legal
Mr Jonathan Hooper, orthopaedic surgeon
208The plaintiff was seen at the request of Allianz in August 2012.
209Mr Hooper reported that the plaintiff said his ankle was improving. He was not having any specific treatment, apart from his local doctor, and had seen Mr Bourke, who had ordered an MRI scan.
210The plaintiff said he had a previous injury to his ankle some two years ago and his ankle had bothered him somewhat in the intervening period.
211On examination, the plaintiff’s ankle was swollen, and he was tender laterally.
212Mr Hooper thought the plaintiff had sustained an inversion injury to his right ankle and this was a re-injury to the ankle, but his symptoms were improving. It was unlikely he would require any active intervention to the ankle. Some physiotherapy needed to be organised and maybe he should wear a lace-up ankle support.
213Mr Hooper thought the plaintiff was quite capable of returning to work as long as his ankle was adequately supported, and his overall prognosis was satisfactory. His ankle will never be as good as a normal one, and he will be prone to inversion injuries.
214Mr Hooper thought the plaintiff had had a chronic strain and damage to the lateral structure of his right ankle and re-injured it in the incident. His injury could be described as aggravation of pre-existing ankle problems.
215The plaintiff’s situation should resolve to the degree of function he had prior to the incident. His ankle would continue to be chronically unstable compared to the other one, and that may well be able to be contained by a self-exercise program and lace-up ankle support. He thought it unlikely the plaintiff would require any surgical intervention in terms of ankle reconstruction.
Dr Graeme Doig, orthopaedic surgeon
216Dr Doig saw the plaintiff in February 2019 for the purposes of an AMA assessment.
217Having noted the incident injury, the plaintiff mentioned an injury to the left ankle playing basketball two years previously, but that resolved.
218In terms of post-incident work, the plaintiff returned to work on light duties initially and upgraded to pre-injury status. Unfortunately, he suffered a myocardial infarction later that year and his position was terminated. He had been employed as a forklift driver on and off since he last worked in 2018.
219The plaintiff reported ongoing pain and swelling with activity in the right ankle and with giving way, particularly running and walking on uneven ground. He was using simple Panadol and Voltaren for ankle pain, and physiotherapy had finished.
220On examination, the plaintiff walked with a slight limp. He wore an elasticised support. There was just less than two centimetres of calf atrophy on the right and he stood with just over ten degrees of varus deformity at the ankle. He found it difficult to walk on his toes due to deformity and weakness. He had less than ten degrees of ankle extension to forty degrees of flexion, zero degrees of eversion and excessive inversion, most likely due to a lateral collateral ligament injury.
221Dr Doig diagnosed a lateral collateral ligament disruption at the right ankle treated non-operatively, with articular cartilage damage at the anterior tibial plafond, noting the plaintiff continued to suffer from pain, swelling and instability.
222The plaintiff’s condition would not return to normal. He had permanent restrictions and was unable to run and avoided uneven ground. He should also avoid working at heights. Dr Doig allowed an eight per cent impairment.
223Dr Doig provided a further report, having seen the November 2019 x-rays, and increased the whole person impairment from eight to eleven per cent.
224He again reported in June 2020, having been forwarded additional information relating the 2011 sporting injury.
225A plain x-ray in 2011 showed soft tissue swelling on the lateral aspect of the ankle consistent with an acute inversion type mechanism with an avulsion fracture of the tip of the lateral malleolus and a further flake fracture of the posterior malleolus of the distal tibia. An ultrasound following the injury also revealed a significant ligamentous disruption affecting the anteroinferior tibiofibular, anterior talofibular and calcaneofibular ligaments.
226He was also provided with the Duff Street Medical Clinic medical records from 23 October to 4 November 2011 and an ultrasound and x-ray of 26 October 2011.
227He concluded the plaintiff suffered a significant ligamentous disruption to his right ankle, particularly involving a lateral collateral ligament complex and an injury to the syndesmosis with associated avulsion fractures.
228Having suffered similar injuries to his own ankles playing sport, which had predisposed him to ongoing instability, Dr Doig thought there was a high probability the plaintiff would have been prone to further injury due to the significant soft tissue injury of October 2011. That had certainly been Dr Doig’s clinical experience looking after his own patients.
229There was a strong possibility the plaintiff would have experienced ongoing instability symptoms as a result of the sporting incident of October 2011 and the potential subsequent development of post-traumatic degeneration of the ankle joint without the incident.
230Dr Doig provided a further supplementary report in September 2020 addressing what, if any, of the condition was a progression of the pathology diagnosed in 2011.
231He noted the history of a prior injury in 2011 to the right ankle, with pathology identified on imaging at the time. The pathology would have been consistent with ongoing potential instability of the right ankle joint. This most likely would have rendered the ankle unstable when the plaintiff stepped off the platform at work.
232There was a possibility that the ankle would not have been re-injured during work had the initial incident of 2011 not happened. The current condition was a progression of the pathology diagnosed in 2011. The plaintiff had persistent instability of the right ankle joint with development of post-traumatic degeneration.
233There did not appear to be any presence of functional overlay.
234The plaintiff would be fit for alternative employment with those restrictions within a range of restrictions and would be more suited to a seated job. He should be able to return to forklift driving, taking care getting on and off the machine, otherwise retraining may be required.
235Medical imaging in 2011 was suggestive of significant ligamentous disruption to the lateral collateral ligament complex and syndesmosis with avulsion fractures. That had the potential to render the joint unstable and lead to post-traumatic degeneration, which is currently present in updated radiology.
236In the presence of ongoing instability, there is a strong possibility of developing post-traumatic degeneration with persistent pain, stiffness and swelling in the affected ankle joint. There is a high likelihood the plaintiff would have developed post-traumatic degeneration in the presence of the ongoing instability as a result of the 2011 incident.
237Ankle instability is not particularly common in the community in the absence of prior trauma. Patients with generalised increased ligamentous laxity, in particular connective tissue disorders, would be prone to ankle instability while performing normal physical activity. Otherwise, in the absence of any prior trauma, there is no increased incidence of ankle instability in the general population.
238Dr Doig re-examined the plaintiff in March 2022. He noted recently, the plaintiff had suffered a further instability episode of the right ankle in December 2021, resulting in a fracture of his left wrist, which was treated conservatively in a plaster cast.
239The plaintiff continued to complain of pain, swelling and instability of the right ankle. He was taking Panadeine Forte for his ankle pain.
240The plaintiff walked into the examination with a slight limp through the right leg. He was wearing no support or orthotic. He stood with a BRS attitude at the ankle, consistent with lateral instability, with 10 degrees of ankle extension to 30 degrees of plantar flexion.
241Dr Doig noted the incident history and a left ankle injury two years previously playing basketball, which had fully resolved. The plaintiff, on direct questioning, had a poor recollection of any other injuries.
242Based on the documentation, the plaintiff appeared to suffer a comminuted fracture of the neck of the third metatarsal in April 2009, which is really a forefoot injury and unrelated to the right ankle area.
243Following an incident playing volleyball in October 2011, medical imaging confirmed damage to the lateral collateral ligament complex, with minor evulsion fractures of the posterior and lateral malleoli.
244Dr Doig noted the plaintiff was a poor historian, with limited recollection of any ankle injuries.
245The plaintiff suffered from chronic lateral collateral ligament instability at the right ankle, with subsequent development of post-traumatic degeneration.
246There was evidence on medical imaging in 2011 that the plaintiff had suffered a significant injury to his lateral collateral ligament complex in the past, which occurred before the incident. Dr Doig therefore thought there would have been pre-existing problems with ankle following a 2011 injury which predisposed the ankle giving way in the incident. Based on the findings on the 2011 medical imaging, he thought the plaintiff would have continued to experience instability symptoms, particularly on uneven ground.
247He thought the plaintiff suffered a pre-existing problem of the right ankle prior to the incident. In view of ongoing instability episodes with clinical evidence of lateral collateral ligament instability, the plaintiff had now developed post-traumatic degeneration which would simply deteriorate with time. That had developed as a result of the previous injuries and ongoing instability.
248He thought the plaintiff would have come to his current condition with or without the incident. The plaintiff suffered a further instability in the incident. Had the ankle not been unstable then, the ongoing effects and consequences would have been less debilitating. The incident had most likely rendered the ankle more unstable and predisposed to articular cartilage damage.
249Commenting on Mr Edwards’ opinion that it was likely the plaintiff would require an arthrodesis, the decision to do that was in the presence of advanced osteoarthritis of the talocrural articulation and only undertaken once a thorough explanation of the risk benefits and rehabilitation of the procedure has been undertaken by the surgeon and patient. It is a procedure normally undertaken for the symptom of pain, which was extremely subjective in nature and varied greatly between individuals, so it is impossible to put an accurate date on the timing.
250The plaintiff was suffering pre-existing pathology at the right ankle with damage to the ligament complex, which would have rendered the ankle unstable at the time of the incident. The need to proceed with arthrodesis is as a result of the combination of the pre-existing instability and the development of post-traumatic degeneration.
Dr Geoffrey Littlejohn, rheumatologist
251Dr Littlejohn examined the plaintiff for the purposes of an AMA assessment in January 2020 in regard to injuries related to the accepted injury detailed as right elbow upper limb, which occurred on 27 August 2015.
252In terms of general health, Dr Littlejohn noted the myocardial infarction, the right ankle fracture, low back pain and schizophrenia.
253The plaintiff was injured working for Loscam on a repair line, doing repetitive tasks, as a result of which he developed pain in his right upper lateral elbow region. He said the pain had continued to come and go over time.
254As time passed, he also developed pain in the lower forearm, towards the wrist, and in the upper arm, towards the shoulder girdle and also to the right side of the neck. Those areas remain somewhat tender and tight. His pain varied according to activity.
255The plaintiff was taking a variety of analgesic medications, principally for his back, which included Lyrica, Panadeine Forte and Panadol and/or Nurofen. He could do low level household activities, but other activities aggravated his back, and sometimes his arm would become symptomatic.
256Dr Littlejohn thought the plaintiff had clinical features consistent with largely resolved lateral epicondylitis of the right elbow. He also had features of an overriding right upper quadrant regional pain syndrome. He continued to suffer from these conditions relevant to the alleged injury. The prognosis for further improvement was good.
257Dr Littlejohn provided a supplementary report, having been told of a back injury in November 2010 and 12 February 2013, a lumbar CT scan in August 2014, a report from Dr Nair dated 12 November 2018 in relation to back pain, a Claim Form dated 4 November 2010, and a further document of 17 October 2010 indicating “can do full duties”, and also the Duff Street Medical Clinic notes in the several months prior to the incident of 12 February 2013, during which there was no mention of back pain.
258On 21 November 2012, Dr Nair had commented that the plaintiff was working now and was managing. As time passed, with the GP notes, there was increased mention of treatment for low-back pain.
259The plaintiff suffered an episode of low-back pain when lifting a box on 4 November 2010 and was certified by two doctors then. He was further certified fit for normal duties on 12 November 2010, and there was no further mention of back pain in any of the medical notes, which were quite extensive, until an episode that occurred at work on or around 12 February 2013 when he developed back pain.
260Dr Littlejohn concluded the episode of back pain on 4 November 2010 was soft tissue in nature and had resolved over a number of weeks. The episode of back pain in February 2013 was a new episode and that pain had persisted in various forms over time. He allowed a whole person impairment of five per cent for the back.
Dr David Fish, occupational physician
261Dr Fish examined the plaintiff on behalf of the insurer in July 2021 in relation to his February 2013 lower back injury.
262The plaintiff complained of persistent low-back pain which radiated to both buttocks and the posterior thighs. He was taking Lyrica twice daily, Panadeine Forte, Panadol and Nurofen.
263He had a past history of schizophrenia. In 2010, he suffered a previous episode of back pain. There was no mention of ankle injury.
264Dr Fish thought it was quite unclear from the plaintiff whether he had been able to differentiate between the reported incidents in 2010 and 2013, but accepting his history, it appeared that he suffered an aggravation of lumbar disc disease in the 2013 incident, coming to a similar conclusion to Dr Littlejohn about the whole person impairment.
Overview
265The plaintiff’s credit was not in issue. I found him to be a truthful man, who answered questions as best he could, in light of his significant mental health issues.[89]
[89] DCB 211 and DCB 256
266There is no dispute the plaintiff suffered a right ankle injury in the incident, diagnosed as a lateral collateral ligament disruption with articular cartilage damage.[90]
[90]Letter dated 20 November 2019, CGU accepted liability regarding a right ankle injury based on assessment by Dr Graeme Doig, orthopaedic surgeon
267However, medico-legal examiners, Dr Doig, orthopaedic surgeon, and Mr Edwards, ankle surgeon, differ in their view as to whether the plaintiff would have come to his current condition as a result of the 2011 sporting injury, absent the incident.
Pre-incident condition
268In this case, where there is a pre-existing condition, I must consider what the evidence discloses as to the condition of the plaintiff’s right ankle prior to the incident and determine whether the additional impairment resulting from the incident is serious and permanent.
269In Petkovski v Galletti,[91] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused … .”
[91] Supra
270In late October 2011, less than five months prior to the incident, the plaintiff injured his right ankle playing sport. The circumstances of this injury are unclear, with the plaintiff unsure what happened, his memory perhaps clouded by a serious heart attack he suffered in late November 2011.[92]
[92] T68
271In any event, investigations in late October 2011 indicated three ligament injuries and an avulsion fracture. Dr Doig described the injury as a significant ligamentous disruption to the right ankle, particularly involving the lateral collateral ligament complex and an injury to the syndesmosis with associated avulsion fracture. Mr Edwards described this as a lateral ligament and/or syndesmosis injury.
272The plaintiff saw his GP five times until 4 November 2011 and attended the Fracture Clinic at Dandenong on 14 November 2011. The plaintiff then had a heart attack the following week.
273While the plaintiff told Mr Edwards on re-examination that he thought he was 95 per cent recovered from the sporting injury at the time of the incident, this comment is of little assistance given the short timeframe between the sporting injury and the incident and the plaintiff’s heart attack in the intervening period. The significant findings on the October 2011 investigations are also relevant when considering this issue.
274I do not accept, as the plaintiff told Mr Edwards at the first appointment, that he had no limitation of ankle function at the time of the incident or that he had had significant and worsening symptoms since then. I do not accept that pre incident, the plaintiff was unfettered in activities of daily living and housekeeping. Clearly, he was not engaging in the sporting activities he described to Mr Edwards before the incident.
275While the plaintiff thought after the 2011 sporting injury, his right ankle “came back good,”[93] he was prescribed painkillers at Dandenong on 14 November 2011. He did not have pains “and stuff like constantly”. He could walk but could not run – he could not remember much.[94]
[93] T14
[94] T15
276He did not remember, as Mr Hooper reported in 2012, that his ankle continued to bother him somewhat after the sporting injury – “I mostly have heaps of problems after I had that incident. I thinks that [is] when everything really was not good for me [sic] my ankle. I got constant pain and I’ve been limping and stuff. But I couldn’t remember much of what been going on with all my history.”[95]
[95] T15
277He agreed he was having ongoing problems with his ankle and then had a heart attack on 21 November 2011 and a stent was inserted at Monash.[96]
[96] T16
278Further, before the heart attack, the plaintiff had stopped all sports except ten-pin bowling which he then did for a little while.[97]
[97] T17
279Clinical records indicate he was back at work by 23 December 2011 and had resumed normal duties – quite physical work – in January 2012 and was working those duties when the incident occurred.
280Counsel for the plaintiff submitted these clinical records supported the proposition the plaintiff had recovered by March 2012 and could be described as somewhere near 95 per cent recovered.
281I do not accept this submission.[98]
[98] T79
282While a return to normal duties is usually of some significance in an aggravation case, in this particular case, the plaintiff’s incident injury has never caused any interference in his ability to carry out his normal duties which were physical in nature. His working life was interrupted and later ceased because of other health problems – not his ankle – a situation which I accept is consistent with the clinical records of very infrequent attendances for ankle pain.
283As counsel for the defendants submitted, there were a litany of other injuries which the plaintiff accepted were the reasons he stopped work – “Unfortunately, he had a shocking run, then, had his mental health problems.”[99] Returning to full-time duties after the incident was not the plaintiff’s strongest point, because he returned to normal duties after 2012 anyway. There is no evidence his ankle was preventing him from work at any stage post 2012.[100]
[99] T70
[100] T74
Consequences
284Ultimately, it was submitted on the plaintiff’s behalf that the major consequence of the incident injury was the need for arthrodesis – a provisional opinion following the initial examination on Zoom by Mr Edwards – based on the plaintiff’s report that he had no limitation of ankle function at the time of the incident and was engaging in a range of sporting activities before then.
285Mr Edwards’ opinion was based on an acceptance of the plaintiff’s history of 95 per cent improvement and significant progress of his ankle condition, which I do not accept was the case.[101]
[101] T78
286Until asked to comment on this proposed surgical procedure, Dr Doig did not raise this issue. Initially, he thought the plaintiff would have come to his present position absent the incident injury. While in his most recent report he accepts an aggravation in the incident, he thought surgery was appropriate only in limited circumstances, where there was ongoing pain and continuing complaints and restrictions. I do not accept this is the situation in the present case.
287After being referred to Mr Bourke, orthopaedic surgeon, in the middle of 2012, the plaintiff was discharged from his care in September 2012, with Mr Bourke of the view the plaintiff had made an excellent recovery and he had no functional problems. While the plaintiff disagreed with this analysis, he really did not remember what was said at that time, and maintained he still had ongoing pain.
288It was not a situation of ongoing pain and regular attendances at the doctor for ankle pain. During the years after the incident, the plaintiff was able to do physical work without any problems with his ankle.
289The next attendance at a GP for an ankle complaint was not until 2014. That seems to have been the pattern over the ensuing years, until even as late as December last year, with periods of stability, rolling the ankle, seeing the doctor, having treatment for a limited period, it settles, and then two years later, the same thing happening again.
290It is not a downward spiral in the plaintiff’s ankle condition leading inevitably to surgery.
291The plaintiff last saw specialist Mr Bourke in 2012, who then discharged him from his care. The plaintiff has not sought further referral to Mr Bourke or any other specialist and there has been no suggestion of any ankle surgery by any treating GP. No updated report was provided by Mr Bourke.
292As counsel for the defendants submitted, there is not a situation where there is evidence of a person who is progressively deteriorated to a current point now where he needs surgery. No doctor is saying that. They are saying it could happen in the future, with Dr Doig saying it could come to that in the future, and Mr Edwards putting it a bit higher, likely in the future.[102]
[102] T91
293The plaintiff’s evidence is not of a deterioration or trajectory downwards. He has intermittent pain, intermittent swelling. He is still only taking over-the-counter medication and it is not a situation where he has ongoing problems.
294In any event, there is no medical evidence that any ongoing rolling of the ankle is in any way related to the incident. There is no disentanglement as to whether it is connected to the 2011 sporting injury or the incident.[103]
[103] T71
295Significantly, Mr Edwards did not consider it likely that the plaintiff’s more recent fall was as a result of ongoing ankle instability related to the incident.
296Taking into account all the evidence and my findings in relation thereto, I am not satisfied ankle surgery is required for any incident injury, if at all, in the foreseeable future. In those circumstances, it is not necessary to make a finding in relation to the opposing views of Dr Doig and Mr Edwards as to whether ankle surgery would be required, absent the incident injury.[104]
Range – other consequences
[104] Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
Pain
297As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[105]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[105] Supra
298Counsel for the defendants submitted the plaintiff just does not meet the statutory threshold. At the highest, there are irregular attendances with complaints of intermittent pain, a bit of over-the-counter treatment, large gaps in attendances, with the plaintiff agreeing he would have gone to the doctor if he had a major ankle problem.[106]
[106] T72
299The first affidavit set out a raft of consequences that had to be retracted in the second, leaving very little. The plaintiff’s sleep is affected by everything.[107]
[107] T76
300It was submitted isolating consequences related to the ankle is very difficult. The plaintiff accepted he finished sport, apart from ten-pin bowling before the incident.[108] He can no longer run. He accepted he was having problems with his ankle due to the sporting injury, walking in pain before the incident.[109]
[108] T73
[109] T74
301Further, there has been no specialist treatment since Mr Bourke – and no updated report from him or the GP – no physiotherapy, any treatment for ten years, and no suggestion of anything into the future.[110]
[110] T75
302There is no lay affidavit from the plaintiff’s sister, with whom he lived for a long time.
303It was submitted, at the highest, the plaintiff gets a bit of limp walking and standing, so, in total, the consequences fall far short of what is required.[111] There was also a clash between the plaintiff and his NDIS worker as to whether the plaintiff can swim at all.[112]
[111] T75
[112] T76
304In response, counsel for the plaintiff submitted while there are a significant number of comorbidities, nevertheless Dressing v Porter[113] has established you can have more than one serious injury.[114]
[113] [2006] VSCA 214
[114] T86
305I was addressed very briefly by counsel for the plaintiff as to any consequences of the incident injury, other than the need for arthrodesis.
306It was submitted the plaintiff was a man of simple pleasures who had been unable to return to sporting activities since the incident. He required help around the house because of his ankle condition.[115]
[115] T88
307Counsel submitted even with the ability to perform strenuous physical jobs full time after the incident, the plaintiff could have problems with domestic tasks because the ankle was on the progression towards the need for an arthrodesis. Obviously, the plaintiff’s weight had not helped, but the progression that started in 2011 and 2012 had moved inexorably downwards towards the need for surgery.[116]
[116] T88
308In my view, taking into account all the evidence, any claimed consequences of the plaintiff’s aggravation ankle injury are not serious.
309While the plaintiff continues to suffer episodes of ankle pain, and will continue to do so, he does not suffer a continuous substantial level of pain. This is not a situation of constant pain. Confirmatory of this, the plaintiff’s ankle pain appears to be controlled by intermittent over-the-counter medication.[117]
[117] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA at paragraph [48]
310The plaintiff was discharged from Mr Bourke’s care in September 2012, he has had no physiotherapy since then, and attendances on his general practitioner have been isolated and followed rollovers, not linked to the incident injury.
311The plaintiff had largely stopped sport after the 2011 sporting injury and despite attempts by counsel for the plaintiff to link giving up sport to the incident, there was no evidence in that regard.
312In terms of housework, the NDIS help is for his schizophrenia, not any physical problems.[118]
[118] T92
313There are also the issues raised by Peak Engineering,[119] namely the role of the plaintiff’s back, hip, right elbow and schizophrenia in his current condition and the consequences of those non-related issues.
[119] Supra
314In Peak Engineering,[120] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[120] Ibid
315In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[121]
[121] At 1
316The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of any non-compensable injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[122]
[122] At 2
317The plaintiff has problems walking due to his back and recent right hip complaint as well as his right ankle.[123]
[123] T76
318Dr Fish mentioned the plaintiff’s very significant back problems on examination in July 2021.[124] The plaintiff has problems with prolonged postures because of his back and difficulty sleeping and driving. He continues to require strong painkilling medication, including Lyrica, for his back.
[124] T72
319While he says his cardiac condition has resolved, there are ongoing problems in that regard.
320Right elbow problems continue, as reported to Dr Littlejohn, although they are not of great significance.
321Issues with the right shoulder and neck causing the plaintiff to leave work at Visy in 2016 have not been addressed in any detail in the medical evidence.
322Taking into account all of the evidence, I am not satisfied that the consequences of any right ankle impairment related to the incident are serious.
323Accordingly, the application is dismissed.
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