Cook v Graham Campbell Ferrum International Pty Ltd
[2015] VCC 253
•17 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05683
| IVAN COOK | Plaintiff |
| v | |
| GRAHAM CAMPBELL FERRUM INTERNATIONAL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2015 | |
DATE OF JUDGMENT: | 17 March 2015 | |
CASE MAY BE CITED AS: | Cook v Graham Campbell Ferrum International Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 253 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Industrial accident – injury to the right little toe resulting in surgical amputation – whether the pain and suffering consequences were “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff has leave to bring a proceeding at common law
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Miles | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr I Gourlay | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 1 November 2013, the plaintiff seeks the leave of the Court, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding at common law to recover damages for the injuries he suffered during the course of his employment with the defendant on 16 December 2009.
2 The plaintiff claims that he suffered a serious permanent impairment or loss of the function of his right foot.
3 Mr C Miles of Counsel appeared for the plaintiff. Mr I Gourlay of Counsel appeared for the defendant.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 14 – 27: Exhibit A;
· The defendant tendered its Court Book (“DCB”) pages 1 – 2, and 33 – 46: Exhibit 1.
The Plaintiffs background
5 The plaintiff was born in January 1950. He is now sixty-five years of age. He is a single man. He is a man of modest education. He left school when he was fourteen years of age after completing what used to be called Form 1 (Year 9).
6 The plaintiff commenced employment with the defendant in July 1990 as a labourer. The defendant operated a foundry. It fabricated castings for machinery. The plaintiff was employed to undertake a variety of tasks which included operating an overhead crane.
7 On 16 December 2009, the plaintiff was operating an overhead crane using a remote control device. He was attempting to move a heavy steel beam. As he did so, the beam skidded and collided with his right foot.
The Plaintiff’s injury and treatment
8 The plaintiff was taken to the Western Hospital. He was diagnosed as having suffered a markedly comminuted and displaced fracture through the base of the proximal phalanx of the fifth toe, with 90 degrees of angulation across the fracture line.
9 On 16 December 2009, under general anaesthetic, the fracture was reduced and a K-wire was inserted to reduce the fracture. On 18 December 2009, under general anaesthetic, the toe was amputated. On 20 December 2009, under general anaesthetic, the wound was debrided, and lastly, on 8 January 2010, a split skin graft was applied to the wound. The plaintiff was then discharged from all treatment on 24 March 2010.
10 The plaintiff’s present regime of treatment is self treatment. He takes Dispirin for pain relief, and he applies vitamin E cream to the skin graft to keep it moist so that it does not dry out and crack.
The issues
11 The sole issue raised by this proceeding is whether the pain and suffering consequences, contended for by the plaintiff, are “serious”.
The Plaintiff’s evidence
12 I should start by dealing with the plaintiff’s credit. Mr Gourlay submitted that no question arose regarding the plaintiff’s credit, except that there were aspects of his evidence which required me to determine whether the consequences, contended for by the plaintiff, are as significant as he made out.
13 The plaintiff struck me as being a man of candour. He gave his evidence in a simple, straightforward and entirely believable fashion. Indeed, I have no hesitation in accepting his evidence in whole.
14 Next, I should deal with the actual injury. I was invited to view the plaintiff’s right foot. I did so at close range after the plaintiff removed his sock and shoe. Neither the plaintiff nor the defendant produced any photographs for my use as a permanent record of what I viewed. I invited the parties to permit me to take a photograph with my iPhone, in order to have something before me to remind me of the injury at the time I set about composing my reasons for judgment. The parties gave me that permission. I forwarded copies of three photographs to the parties so that there could be no doubt in anyone’s mind as to what I refer to below.
15 The whole of the plaintiff’s right fifth toe has been amputated. At the point of amputation, the outside of his foot is deeply indented over about 3 or 4 centimetres. Just below the deep indentation there is a bulging area of flesh. The right fourth toe has become hammered in shape. It appears to be elevated, particularly at the main joint which has a knobbly appearance about it.
16 Mr Miles and Mr Gourlay agreed that the medical evidence disclosed that the hammering of the right fourth toe has occurred as a secondary consequence of the injury to the right fifth toe and the surgery performed on it.
17 Before turning to the consequences contended for by the plaintiff, I should say that I do not propose to review any of the medical evidence because it is unnecessary. The medical evidence in the Plaintiff’s Court Book goes back to late 2010. The most recent medical evidence is in the defendant’s Court Book. It comprises a report of Mr Dooley, orthopaedic surgeon, dated 11 December 2014. The medical evidence describes the injury and the examiner’s view about what it has produced in terms of general disability. None of the medical evidence is in contradiction with any of the plaintiff’s evidence.
18 I have read the plaintiff’s affidavits, the transcript of his cross-examination and re-examination, and the medical reports carefully. The following represent the plaintiff’s pain and suffering consequences which I accept have arisen as a result of the impairment of the function of his right foot:
· He experiences an aching in his right foot which is more evident when he places pressure on his right foot.
· He is unable to walk the distances he was previously able to. He is unable to stand for as long as he was previously able to. Both of those functional activities are impaired by the onset of more aching and pain. When he gets up from a chair, he places weight on his heel first to avoid placing pressure and strain at the front of his foot. He experiences unsteadiness on his feet. There have been occasions when he has stumbled when negotiating the steps at his home.
· Even when he is lying down on a couch with his leg up he can still feel a sensation of pain in his right foot. He experiences a similar sensation when he sits comfortably in a chair. He described it as an aching pain but not a sharp pain.
· He suffers interference with his balance, giving examples that his balance is a problem for him when getting out of bed and in and out of a shower or bath.
· The area in and around the amputation and the skin graft is sensitive to touch. He makes efforts to protect those areas because interference with those areas will produce pain. He gave the example of avoiding crowds because of the risk of his foot being trodden on.
· He can use a ladder and walk up and down stairs, however, placing his toes on the step of a ladder or on the edge of a step, causes pain at the front of his foot.
· He is unable to mow the lawns where he lives, presumably because of the effort involved in walking behind a mower.
· He does not go to the local football any longer to watch a game. He cannot stand for lengthy periods of time as he was previously able to.
· He enjoyed social games of kicking a football and engaging in general play with his nephews and nieces. It is not something that he can do any more. His preferred foot for kicking a football is his right foot.
· He used to go shooting. He went about twice a month with his nephews. He is unable to walk on uneven ground on shooting trips. Similarly, his access to inland rivers, where he went fishing, is likewise affected by his inability to walk on uneven ground. He has now lost interest in attempting to engage in either of those outdoor pursuits.
· His sleep is interrupted by the pressure of a doona on his right foot. He is wakened from his sleep after about four or five hours by pain. He is able to doze off and go back to sleep.
· He has resorted to wearing sheepskin boots which he calls “Indian boots”. He wore them to Court. The boots are soft and pliable. He wears one size bigger than his foot size, presumably because it is easier to put the sheepskin boots on, and he has more room within the sheepskin boot to accommodate his right foot more comfortably. He slides the sheepskin boots on, which I understood to mean that he takes care when introducing his foot into the sheepskin boots, to avoid producing pain. He has not worn ordinary shoes for about two years because doing so causes an aching pain in his right foot.
· The graft site requires the use of a vitamin E cream to keep the skin graft moist. If he does not use it there is a risk that it will dry out and crack. He now takes Dispirin for pain relief. He took one Dispirin the day before the hearing. In the week before the hearing, he took Dispirin on three separate days.
19 As against the consequences summarised above, the plaintiff was off work from 16 December 2009 until he was able to return to work on light duties in late March 2010. He was cleared to perform normal duties on 27 April 2010, but he ceased working with the defendant not long after that. He took a package offered to him by the defendant. He conceded that he took the package because he was concerned about the viability of the defendant. He did not take it because he was unable to undertake the tasks demanded of him in his work with the defendant.
20 The plaintiff next worked with Apex Waste (“Apex”) driving an excavator and a truck. He then worked with Bunting Labour Services Pty Ltd (“Bunting”) driving a dump truck, and later as a plant operator at a tip. He ceased working altogether on 24 February 2015. He is awaiting the assistance of one of his nieces to complete the documents necessary to obtain an aged pension. He has no interest in returning to any gainful employment.
21 The plaintiff drove an excavator and a truck in his employment with Apex. He was unable to recollect how long he worked with Apex. The best he could do was to guess that he worked with it for perhaps 12 months was much is 15 months. It would appear that he operated the excavator most of the time, and drove the truck two or three times a week at a tip. The excavator had both hand and foot controls. The plaintiff mostly used the hand controls. It would appear that he was able to cope with the demands of that work.
22 The plaintiff drove a dump truck in his employment with Bunting. He estimated that he worked for Bunting for about 12 months. He drove the dump truck nearly all day in a quarry. He would carry aggregate from the quarry to a crusher. He had a little bit of trouble with his right foot when applied to the accelerator of the dump truck. He also drove a vehicle known as a scraper. He estimated that he drove the scraper for perhaps the last 3-4 months of his employment with Bunting. The scraper was operated by hand controls.
23 The plaintiff has otherwise been able to drive a car, but with some difficulty. He drove to his sister’s home in Wodonga. It is a drive of some hours. Obviously, he was able to drive the plant operated by the employers with whom he worked after he left his employment with the defendant.
24 Mr Gourlay cross-examined the plaintiff to test his evidence that he suffers the consequences which he referred to his affidavits, and whether he suffers the same, to the extent contended for.
25 I have already dealt with the question of the plaintiff’s credit. He struck me as being very much the stoic. I gained the impression that he tended to make less of some aspects of the interference caused by the impairment of function of his left foot than was probably the case.
26 In summary, the cross-examination was directed to the plaintiff’s functional capacity, and in particular, whether he is really troubled by walking, standing, traversing steps, using ladders and being unable to get to places to shoot and fish. Inherent in that cross-examination was a testing of the extent of the aching and pain experienced by the plaintiff.
27 I am not convinced that the cross-examination demonstrated any material change in the plaintiff’s evidence regarding when, and in what circumstances, he experienced interference with vocational, domestic, social and recreational activities.
28 In summary, Mr Gourlay submitted that whilst the plaintiff has an undoubted interference with some of his vocational, domestic, social and recreational activities, when looked at individually, there is nothing which the plaintiff cannot do. Mr Miles submitted that when one takes a global view of the extent of the activities which are interfered with, there is little in the plaintiff’s life which remains unaffected. Furthermore, he submitted that I should conclude that the plaintiff undertook other work after leaving the defendant which was different in its physical demands, and saw the plaintiff earning a reduced income.
Disposition
29 I have no doubt, after taking a view of the plaintiff’s right foot, that he has suffered a nasty and disabling injury to his right foot. It is the sort of injury which would interfere with the plaintiff’s general mobility. The difficulties which he has with his foot are compounded by the secondary consequence of the hammering of the fourth toe on his right foot.
30 Some of the interference suffered by the plaintiff could be described as marginal. I accept that he has difficulty climbing ladders, but I gathered that he uses ladders infrequently. He has difficulty traversing steps, but he is able to do so. He could drive to places to go shooting and fishing, but it was my understanding from the flavour of the plaintiff’s evidence, that part of shooting and fishing involved arriving at a destination, walking over rough ground to run down quarry and to find fishing spots by accessing inland waterways.
31 Otherwise, it was my understanding that there was no challenge to the plaintiff’s evidence regarding the circumstances in which he experiences aching and pain in his right foot. Even if it could be said that there was a challenge, the challenge was unsuccessful. His inability to walk, stand, get up out of a chair, traverse steps, and sleep without interruption, are telling levels of interference. It is not lost on me that reasonable mobility commences with the feet. The fact that the plaintiff has a significantly damaged right foot is a demonstration to me that the evidence he gave of interference with his mobility is reasonable and acceptable.
32 Furthermore, it is understandable that the plaintiff cannot engage in the level of shooting, fishing, attending football games, going into crowded places, and engaging in social games with his nieces and nephews. All of those activities require sound and certain support provided by his feet, and in this case, his right foot.
33 It occurs to me that nearly every aspect of the plaintiff’s need to be mobile is the subject of interference because of the impairment of the function of his right foot. However, in making the value judgment that I am called upon to make, it is important to determine what the plaintiff has lost, and to be informed of what he has lost by having regard to what he has retained.
34 In undertaking that balancing exercise, it occurs to me that since 16 December 2009, and to date, the plaintiff has suffered significant loss of function of his right foot. I have no doubt at all that the level of interference he suffers is permanent, and that he will continue to suffer that level of interference for the balance of his life. No doubt as he grows older it will be more telling. I do not accept that the plaintiff’s ability to continue working is something he has retained which would operate to swing the balance against a conclusion that the impairment of function he has suffered is serious. It would appear that was different work with different physical demands.
35 For all the foregoing reasons, I find that the plaintiff suffered a nasty and disabling injury to his right foot which has permanently impaired its function and has produced consequences which affect nearly every aspect of his need and desire to be mobile. I consider those pain and suffering consequences meet the statutory test. I have reached that conclusion after having made the relevant comparison, which I am called upon to make with other like impairments.
Orders
36 I order that the plaintiff be given leave to bring a proceeding at common law to recover damages for the injuries he suffered to his right foot on 16 December 2009.
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