Cornish v A & F Val Pty Ltd
[2024] VCC 2064
•20 December 2024
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST Case No. CI-22-05191
WAYNE DAVID CORNISH Plaintiff v A & F VAL PTY LTD Defendant ---
JUDGE:
HER HONOUR JUDGE HINCHEY
WHERE HELD:
Melbourne
DATE OF HEARING:
28 November 2024
DATE OF JUDGMENT:
20 December 2024
CASE MAY BE CITED AS:
Cornish v A & F Val Pty Ltd
MEDIUM NEUTRAL CITATION:
[2024] VCC 2064
REASONS FOR JUDGMENT
---Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left lower limb – paragraph (a) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pt Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application granted.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr B Johnson Slater and Gordon Lawyers For the Defendant Ms V C McLeod MinterEllison HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with A & F Val Pty Ltd (“the employer”), between November 2016 and in or about June 2019.
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to part (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
(a)permanent serious impairment or loss of a body function; …
… .”
4The impairment of body function relied upon is dysfunction of the left lower limb.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014. As set out in s325(1), the physical impairment must be permanent.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity” (as the case may be) which must be “serious” – that is, if the plaintiff is to succeed in his claim, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are, “when judged by comparison with other cases, in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[2] and
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to physical impairment.
10By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder (as the case may be) arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
11In reaching my conclusion in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
12The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
13The plaintiff was born in November 1965. He is presently fifty-nine years of age.[7]
[7]Ex P1, p12
14He completed his schooling to Year 10 at Coburg Technical School. After leaving school, he completed an apprenticeship over a period of four years at two different industrial or engineering firms. Over the years thereafter, he worked on and off as a boilermaker. He also worked as a bus driver and truck driver for a variety of firms.[8]
[8]Ex P1, p12
15He commenced employment with the employer as a truck driver on 7 November 2016 and continued in employment with that company until he was made redundant in September 2019. As part of his role, he used to load foam pods which were used in concrete slab construction, onto trucks. When loading, there was a good deal of stepping into and out of the truck, which did not have a hydraulic lift at the back. The plaintiff wore runners to do this task, as no safety boots were provided.[9]
[9]Ex P1, pp12-13
16After the pods had been loaded onto the truck, the plaintiff would then undertake deliveries of the pods to five or six building sites per day. On many of those sites he was required to walk over uneven ground, often in dark conditions or inclement weather, and often in the presence of debris, which made traversing the area difficult and in some respects dangerous.
Pre-existing injury
17Over the years, the plaintiff has suffered a number of other, but unrelated injuries, viz:
(a)bilateral carpal tunnel syndrome, which required surgical release many years ago;
(b)a right knee injury playing basketball, requiring a right knee reconstruction many years ago;
(c)arthroscopies on both knees some years ago;
(d)plantar fasciitis in his right foot some years ago.[10]
[10] Ex P1, p12
The circumstances in which the left ankle injury was sustained
18On 31 October 2017, the plaintiff slipped on uneven dirt ground on a site and landed heavily on his left shoulder. He also found that over time, he was beginning to suffer increasing problems with his left ankle which, after an event in May 2019, resulted in him returning to his general practitioner at Wandong Medical Centre on 3 June 2019. He was initially referred for an x‑ray of his left ankle, which was performed on 4 June 2019. He was referred for physiotherapy treatment at Kilmore Physiotherapy Centre. In October 2019, he was referred for an ultrasound and was prescribed anti-inflammatory medication, Mobic. He had an MRI scan in September 2019, which he understands demonstrated a longitudinal split in the peroneus brevis, mild to moderate peroneus tenosynovitis, and mild to moderate plantar fasciitis, with a suggestion of a partial thickness tearing in the deep fibres.[11]
[11]Ex P1, pp13-14
19He was made redundant in September 2019. His left ankle symptoms persisted and he was referred to an orthopaedic surgeon, Mr Andrei Corniou, who diagnosed a tear of the peroneus brevis, and instability of his left ankle joint. Mr Corniou recommended surgery, which took place on 24 January 2020 at the Epworth Hospital.[12]
[12]Ex P1, p14
20The surgery that was performed involved a left ankle arthroscopic debridement, ligament reconstruction involving a ligament transfer from elsewhere in the ankle, sural neurolysis and calcaneal ostectomy.[13]
[13]Ex P1, p14
21Post-operatively, he wore a CAM boot for about six weeks. He noticed that there was numbness and tingling in his left foot, particularly on the outside of the foot and extending into the ankle. Those symptoms of numbness and tingling have continued to the present time. The numbness, tingling and ongoing pain and aching in his left ankle, extend into the foot and toes intermittently, as well as into his calf and heel regions. He suffers flare-ups in his symptoms if he is on his feet for any lengthy period of time.[14]
[14]Ex P1, p14
Evidence concerning the consequences of the Plaintiff’s injury
22As set out above, the plaintiff relied upon three affidavits: the first affirmed on 29 July 2022, the second sworn on 9 August 2023, and the third sworn on 31 October 2024.
23In summary, the plaintiff’s evidence as to the pain and suffering consequences which he presently experiences is as follows:
Experience of pain
(a) he continues to experience ongoing and daily pain in his left ankle, which does not go away;[15]
[15]Ex P1, p23
(b) he has learnt to manage the pain a little better through daily walking, self-guided physiotherapy exercises, and the use of heat packs to relieve the pain. He also uses breathing exercises and mental strategies to take his thoughts away from the pain that he experiences;[16]
[16]Ex P1, p23
(c) the pain continues to affect the outside of his ankle and underneath his left foot;[17]
[17]Ex P1, p23
(d) the flare-ups have recently been less frequent than previously;[18]
Treatment and medication
(e) he remains under the care of Dr Seyed Hossein Samaei, general practitioner at the Wandong Medical Centre. He attends Dr Samaei around every three months or so, or more frequently if required;[19]
(f) he takes Panadol Osteo – two tablets twice per day – to cope with the ongoing pain he experiences in his left ankle;[20]
(g) he has undergone a pain management program which involved input from a physiotherapist; a psychologist; and Dr Hamza, a pain specialist and rehabilitation physician. In the pain management program, he learnt techniques to cope with the pain he experiences in his left ankle, but the pain itself has not reduced;[21]
(h) he has undertaken physiotherapy exercises and strengthening of his left ankle, which has assisted in his mobility and walking capacity;[22]
(i) in May 2023, he underwent an ultrasound-guided cortisone injection. This assisted in relieving his pain for about a week, before the pain returned to its normal level;[23]
Sleep
(j) his sleep is disturbed by the pain he experiences in his left ankle and foot. Prior to the pain management program, he used to find that the contact with, and weight of, the bedding on his left foot, aggravated the pain he experienced. At that time, he was often woken up for around two to three hours at night, before he was able to return to sleep. He takes Maxigesic tablets when this occurs. He is often irritable in the morning and experiences a lack of concentration during the day, because of this loss of sleep;[24]
(k) since he completed the pain management program, his sleep has improved somewhat and he is now able to achieve some periods of unbroken sleep. Despite his improved sleep, the pain he experiences in his left ankle has not changed and he wakes up with pain in that area;[25]
[18]Ex P1, p23
[19]Ex P1, p23
[20]Ex P1, p23
[21]Ex P1, p23
[22]Ex P1, p23
[23]Ex P1, p24
[24]Ex P1, p18
[25]Ex P1, p24
Activities of daily living
(l) he finds that he is restricted in his mobility and walking on rough and uneven surfaces, since he injured his left ankle. He has to be careful not to lose his balance due to the pain in his left ankle. The two small toes in his left foot have become numb and tingly and this also affects his balance. Standing for long periods causes pain in his left ankle and foot. Previously, he was able to stand, walk and move around without restriction;[26]
[26]Ex P1, p18
(m) he now tries to navigate rough and uneven surfaces as best he can, and his stability has improved somewhat as a result of the physiotherapy and strengthening exercises undertaken through the pain management course;[27]
[27]Ex P1, p24
(n) he remains very careful about the type of physical exercise he undertakes involving his left ankle, due to ongoing pain. He continues to avoid forceful and twisting movements involving his left ankle, as well as standing for long periods of time. That is because these activities result in increased pain in his left ankle, along with swelling;[28]
[28]Ex P1, p24
(o) he is restricted in the domestic activities that he is able to perform, due to the pain in his left ankle;[29]
[29]Ex P1, p19
(p) after engaging in activities such as vacuuming, sweeping, mopping and cleaning for some time, he has to sit down and rest for around 15 to 20 minutes, before resuming. He still tries to do what he can to help around the home, but suffers from increased pain if he attempts too much. Previously, he was able to perform domestic tasks in an unrestricted manner;[30]
[30]Ex P1, p19
(q) he continues to try to perform gardening at home, however, he needs to rest when he does this activity, due to the increased pain in his left ankle. He also performs volunteer gardening duties at the Scout Hall, but is careful not to “overdo things”. He needs to rest if he does too much;[31]
[31]Ex P1, p19
(r) he tends to break up gardening tasks into smaller periods of time and come back to them after resting;[32]
(s) prior to sustaining the injury to his left ankle, he was a Venturer Leader with the Scouts for around fourteen years, before then becoming a Group Leader. This was a very significant part of his life, and something which he derived great pleasure from;[33]
(t) since sustaining the injury to his left ankle, he has been restricted in the activities and physical tasks that he can undertake with the Scouts, due to the pain and restriction in his left ankle. Whereas previously he would go on bushwalks, overnight hikes and participate in other activities, he now avoids strenuous activities like day hikes and overnight hikes;[34]
(u) his involvement in the Scouts is more limited as a result of this. He is now limited to assisting with setting up tents. He no longer attends overnight hikes. As part of his role as group leader, he supervises the volunteer market on a monthly basis. This requires him to coordinate with the people running the stalls. He finds that the increased walking involved in this, quickly causes his left ankle to become painful and swollen. When this happens, he has to rest. In order to mitigate the pain, he tends to use a scooter, instead of walking;[35]
(v) he also performs fundraising for the Variety Victoria Bash by coordinating the collection of aluminium cans and supervising a team to crush them at home. He is now more restricted in his ability to perform this activity due to the pain he experiences with prolonged standing. He had previously been performing this fundraising activity for many years;[36]
(w) by reason of the ongoing pain in his left ankle, he has now virtually retired from the Scouts and has retired as a Scout leader. His activities with the Scouts now involves his participation in the markets, around once per month, which continues to produce pain and swelling in his left ankle;[37]
(x) he used to enjoy going fishing on rivers, and would go around every two to three weeks on average, depending on the weather;[38]
(y) fishing is now too difficult for him because of the pain in his left ankle from walking on rough and uneven surfaces. He misses this experience;[39]
(z) he has managed to find alternative employment with Dysons Bus Services as a bus driver. He has continued to work in this role on a full-time basis. He has found that driving a bus is much easier than climbing in and out of trucks, as the pain, swelling and restriction from his left ankle is easier to manage in that role;[40] and
(aa) he expects to have to manage the ongoing pain and restriction arising from his left ankle injury, for the rest of his life. The thought of this upsets him greatly.[41]
[32]Ex P1, p25
[33]Ex P1, p19
[34]Ex P1, p19
[35]Ex P1, p19 and 25
[36]Ex P1, p19
[37]Ex P1, p25
[38]Ex P1, p20
[39]Ex P1, pp20 and 25
[40]Ex P1, pp25-26
[41]Ex P1, pp20 and 26
The plaintiff’s viva voce evidence
24Under cross-examination, the plaintiff gave the following relevant evidence:
(a) when he underwent ankle surgery in January 2020, his ankle became more stable and the pain improved significantly. At the end of this evidence, he added, “the pain never went away”;[42]
[42]Transcript (“T”) 16, Lines (“L”) 2-31
(b) he agreed that his ankle had been giving way often before the surgery, but stopped giving way after the surgery;[43]
[43]T17, L1-3
(c) post surgery, he regained a good range of movement in his ankle;[44]
[44]T17, L4-5
(d) he did not go back to see the surgeon, Mr Corniou, after the surgery until about January 2023. He said that when he had the surgery, Mr Corniou told him to expect pain for two to three years afterwards. He said that as part of the surgery, they had to pull the ankle apart including all of the nerves. He was told that the pain would hopefully dissipate in two to three years;[45]
[45]T17, L8-15
(e) he was taken to various medical records of the Wandong Medical Centre. He agreed that his first consultation with his general practitioner about his left ankle was on 3 September 2021. He agreed that at the same consultation, he had reported a complaint of left hip pain which had gotten worse in the “last couple of weeks”. He agreed that the focus of this attendance was on his hip pain;[46]
[46]TT17-18
(f) it was put to him that the reason he had not mentioned his ankle pain to the general practitioner before that time, was because he did not need to. In response to this he replied: “Well, I was told [the pain] was going to last two to three years”;[47]
[47]T18, L24-27
(g) it was suggested to him that he was progressing well post-surgery at this time. In response to this, he replied “the pain was still there”;[48]
[48]T18, L28-29
(h) he agreed that he had gone to the general practitioner on 6 December 2022, and had told the doctor that he had had surgery on his left ankle three years ago and “still has pain and would like to see the surgeon”;[49]
[49]T19, L19-25
(i) he went to see Mr Corniou after that appointment. That was also in December 2022;[50]
[50]T19, L26-29
(j) he was taken to an entry in the medical records dated 13 June 2023, which recorded that he had reported pain in both his hips and lower back. He agreed that he had not mentioned his left ankle at that attendance. In response to this he replied: “… ’Cause I was there about my back not my ankle”;[51]
[51]TT19-20
(k) his back pain persisted for about eight months at this time;[52]
[52]T20, L10-11
(l) he was taken to an attendance on 24 January 2024. He agreed that at this attendance, he had asked to be referred back to Mr Corniou;[53]
[53]T20, L20-23
(m) it was put to him that there were large gaps in his attendances at the doctor in relation to his left ankle pain over the years. It was suggested to him that the reason he had not been to see his general practitioner about his left ankle pain, was because he did not need to. In response to this, he replied: “Incorrect. I have ankle pain, and I just get on with the job, what I want to do, and I take the Panadol like I’ve been told to do. I was told to expect two to three years … with pain, … and that’s what happened, and it just hasn’t gone away”;[54]
[54]TT21-22
(n) more recently, he has undertaken a pain management program with Advance Healthcare. He agreed that the practitioners at Advance Healthcare have given him advice about how to manage his ankle pain, along with exercises for his left ankle;[55]
[55]T22, L2-13
(o) he said that he has been diligent in following this advice. He agreed that he had noticed some improvements in the functioning of his ankle since that time and that the pain in his ankle is “more manageable” now;[56]
[56]T22, L12-22
(p) it was suggested to him that the pain in his left ankle is “now intermittent”. In response to this, he replied: “I wouldn’t say it’s intermittent, it’s always there. The strength is intermittent. So at one point it might be a two, but then it comes to a three or a four … Out of ten”;[57]
[57]T23, L12-20
(q) he agreed that the observations made by Dr Olivia Ong under the heading “Current Status” on page 117 of Exhibit P1, are accurate;[58]
[58]TT23-24
(r) since his involvement in the pain management program, his sleep has also improved, insofar as that relates to his left ankle injury;[59]
[59]T24, L19-23
(s) it was suggested to him that pain from his left ankle no longer interrupts his sleep. In response to this, he replied: “It does interrupt my sleep at times. It all depends on how much activity I’ve done during the day”;[60]
[60]T25, L2-9
(t) he does have periods of unbroken sleep, meaning sleep that is not interrupted by his left ankle pain. He said that this happens “maybe twice a week”;[61]
[61]T25, L20-24
(u) the stamina in his left ankle has improved since completing the pain management program;[62]
[62]T25, L25-28
(v) he is still taking Maxigesic, which is a pain-relieving medication;[63]
[63]TT25-26
(w) he takes the Maxigesic instead of Panadol, when his pain gets “bad”;[64]
[64]T26, L3-6
(x) the Maxigesic tablets “get through to the pain a lot quicker”, because they have anti-inflammatories in them;[65]
[65]T26, L7-13
(y) he usually takes two Panadol first thing in the morning, which lasts about six to eight hours, depending on what he is doing for the day. If he then needs more pain relief, he takes another two Panadol and then possibly another two after that;[66]
[66]T26, L14-17
(z) he was asked numerous questions about a job he obtained with a firm called “George Sturtevant & Sons”, where he was employed as a truck driver, hauling loads of furniture between Victoria and New South Wales. It was put to him that he was working up to five days a week and up to 12 hours per day, in that job. In response to this, he replied that he did not think this description was accurate. He said that the fact that shifts lasted between six and twelve hours was because he went to his destination and then had to wait three hours because he was meeting another truck that was coming from either Newcastle or Sydney, to take his load. He said it looked like a long day, but while he was waiting for the other truck to arrive, “I’m not working, I’m sitting in the back of the truck … put the TV on”. He agreed he lies down, puts his feet up, whatever it might be. “Yep, have a sleep … you don’t actively work … you just wait.” He said that while this makes it a long day, “you’re not physically doing anything … That’s what the good thing about the job was … if I was getting too sore I could stop, put my leg up, half an hour, walk around the truck.” He said that he just had to ring up the truck driver who he was meeting to “make sure he was not too far away … it was very, very very flexible, and when I used to start the day of a morning, or in the afternoon, they’d tell me I’ve got to be in Albury by 4 o'clock, so I could start at any time”;[67]
[67]TT28-30
(aa) he agreed that it was in the course of this employment that he started to suffer left hip and back pain. He said that that was because the seat was a very hard pneumatic seat which bounced around while he was driving. He said he spoke to the boss about it, but they never repaired the seat;[68]
[68]T31, L3-10
(bb) he stopped working for Sturtevant & Sons because he was only getting two days a week of work and there was no furniture being sold anywhere. He said: “I had to make a decision between making a living, going and find somewhere where I was earning more money to survive” (sic). He obtained a job with the Dysons Bus Company at this time. He started that job in about September 2023;[69]
[69]T31, L14-26
(cc) he works with the Dysons Bus Services full time on a seven-day roster;[70]
[70]T31, L27-29
(dd) it was put to him that his bus driving shifts can be up to 12 hours per day. He did not agree with this proposition, he said: “When you’re driving a bus you’re not driving all day. You’re on time points, you might drive for 15 minutes and sit for 15 minutes, or five minutes or two minutes, whatever, it’s a public bus run. The maximum you can work is four hours with a bus run, then they give you a break sometimes in the hour, sometimes an hour and a half, sometimes … 20 minutes. Then if you do another four hours on the longer shifts, you get another half an hour break”;[71]
[71]T32, L9-20
(ee) he agreed that he can walk for longer than 20 minutes, but he said that the pain starts to build up after about 20 minutes on his feet. That was still the case as at the date of the hearing;[72]
[72]T33, L13-17
(ff) it was put to him that he had told Dr Slesenger in June 2023 that he could walk for 60 minutes. He agreed that he can walk for 60 minutes, but he said that the pain increases after about 20 minutes;[73]
[73]T34, L1-4
(gg) he said that after the surgery, he stayed away from a lot of the stuff that he used to do. He clarified that those activities included doing a lot of fishing and walking up rivers, hiking with kids, a lot of day hikes with little kids. He used to go to scouting events; he used to take kids away on major hikes, overnight hikes, two to three-day overnight hikes. He said that the market was a big part of his lifestyle because it was fund raising for the Scouts. He has run the market for the Scouts for the last fifteen years;[74]
[74]T35, L1-18
(hh) he used to also do a lot of gardening and maintenance at the Scout hall. He said that when he had the surgery, he consulted with the physiotherapist about what he was allowed to do and what he should stay away from. He said that the physiotherapist told him that he could do general gardening and maintenance around the Scout hall, but to keep his feet on even ground, and if he was having too many problems, to have a rest;[75]
[75]T35, L19-31
(ii) he tries to stay away from uneven ground, which he described as “where [there are] a lot of potholes as in building sites, you’d come through trenches, over building materials, … things like that”. He said “to walk in a normal park, the up and downs of the park, that’s fine, but it’s when you’re walking through and you can’t see the holes in the ground and things, like you’d fall, especially when you’re walking on creek beds and things like that, you can’t see, the undergrowth is quite high sometimes”;[76]
[76]T36, L2-19
(jj) it was put to him that his ankle pain no longer affects his walking ability. He disagreed with this proposition. He said: “It starts to build after about 20 minutes, without the Panadol I wouldn’t be able to do it”;[77]
[77]T37, L2-6
(kk) it was suggested to him that he had told Dr Ong that pain no longer limits his walking. He agreed that this was what she had written in her report but said, “but that’s not the truth … that’s not the fact … the pain builds after about 20 minutes”. He said that he did not agree that Dr Ong’s report was accurate;[78]
[78]T37, L7-20
(ll) it was suggested to him that Dr Ong had recorded that his left ankle pain had stabilised and his strength and stamina had improved on uneven ground and steps. He said that his ankle had improved on steps but he would not agree with that proposition as it related to uneven ground. He said that his stability on steps has improved by reason of the physiotherapy work he has done over the last three to four months;[79]
[79]T37, L21-28
(mm)it was suggested to him that his ankle pain does not restrict his ability to sit. He said that it does, because the foot aches when he sits;[80]
[80]TT37-38
(nn) the longest he sits in the bus when he is driving is about an hour-and-a-half;[81]
[81]T38, L2-6
(oo) he could not recall left hip pain ever interrupting his sleep;[82]
[82]T38, L15-16
(pp) he could not recall the pain in his left hip and lower back being worse when he was sitting, in June 2023;[83]
[83]T39, L2-11
(qq) he agreed that his back pain has not resolved, but said that, “it comes and goes”;[84]
[84]T39, L14-18
(rr) he said that his left hip pain has now gone away;[85]
[85]T39, L21-22
(ss) he is cautious about managing his back pain, in the sense that he is careful to lift things correctly and to set the seat on his bus correctly, and be careful when he gets in and gets out of the bus. His back pain does not affect his ability to bend;[86]
[86]TT39-40
(tt) sometimes he gets a sore back during the day. He said that it is not enough to stop him from keeping on going;[87]
[87]T40, L6-21
(uu) he never takes painkillers just for his back pain. He takes painkillers first thing in the morning, two tablets for his left ankle, every morning;[88]
[88]T40, L28-30
(vv) since the surgery in January 2020, he has attempted a couple of short walks, probably about two to four hours. He said that he completed these walks “but it took a long time”;[89]
[89]T41, L9-14
(ww) the last time he went on a hike or a bushwalk would have been four to five years ago;[90]
[90]T41, L22-31
(xx) he agreed that he has not gone on a hike or a bushwalk since the ankle surgery. He said: “To carry a 27 kilogram pack, I don’t think I’d be able to do that”;[91]
[91]T42, L3-5
(yy) he did not agree that carrying a 27-kilogram pack would also be prevented by his back condition;[92]
[92]T42, L6-12
(zz) he said that he is aware of seventy-year-olds that still go on hikes with kids in the Scouts and “do it really well”;[93]
[93]T42, L23-26
(aaa)he was shown a lengthy piece of surveillance footage[94] and asked questions about it. The surveillance footage showed him driving a ride-on mower which was towing a trailer, to a park, then unloading a pump, laying out hoses and doing the things required to start the pump to drain the park of water. He said that this was in preparation for a big fundraiser that was happening in the days following the date when the surveillance footage was taken. He did not agree that the park had uneven ground. He said that the park is level but that the water congregates in one area at the back of the park. From this point of view, he agreed that the entire park was not level and that there are changes in the ground level. He agreed that the footage showed him walking through puddles unimpeded, while wearing gumboots. He agreed that at times in the footage, he was shown putting his body weight onto his left ankle. He agreed that on one occasion, he kicked part of the pump with his left foot. He explained that he was trying to get “a little flap” to lock in “so it’s not … like you’re kicking a brick wall or something … It’s just … Tapping it … the hose on to the head, so it doesn’t spread water everywhere”;[95]
[94] Ex D2
[95]TT43-47
(bbb)he was shown a clip of surveillance footage which depicted him walking to and from a petrol station. He estimated that the distance was about 100 metres each way;[96]
[96]T49, L27-30
(ccc)he agreed that at one stage in the surveillance footage, he was depicted standing on a shovel which was lying on the ground. He explained that this was because the ground was wet and he wanted to keep his feet, that were then in sneakers, as dry as possible;[97]
[97]T50, L17-24
(ddd)he agreed that the surveillance footage depicted him dragging the pump along the ground at one stage. It was put to him that the pump is very heavy and weighs about 15 kilograms. He replied: “… it’s got a slide plate underneath it, so it’s quite easy to pull”;[98]
[98]T54, L13-21
(eee)it was suggested to him that in doing the work that was depicted in the surveillance footage, he looked very steady on his feet, for instance when he was pulling the pump along. In response to this, he replied: “I am steady on my feet. … my ankle is secure, the surgery was successful, but the pain just won’t go away, so with the activity I’m doing, yes, I’m stable on my feet, but by the end of the day, I’m really sore, I’ve got to go home, put my leg up, heat packs, to reduce that pain”;[99]
[99]T55, L2-8
(fff) he agreed that the surveillance footage showed him struggling to drag hoses along the ground. He said that he had a friend who had arrived to help him do it. He said that prior to his injury, “I would have just picked it up and dragged it by hand … ’Cause we do this every year for many years when the park gets flooded. So previous to the injury I would have been able to just not have anybody help, I would have picked the hose up, dragged the hose on and reconnect it. But now with the injury, I’ve got to get help to do that, because the pain just – I can do it for a few hours, then the pain rises, then pain killers, and home in bed at night, that’s when you suffer”;[100]
(ggg)he said that the physiotherapist had told him that doing these types of activities was part of his rehabilitation. He said that these activities put strain on his body “and I did suffer for … the next 24 hours”;[101]
(hhh)he explained that undertaking these activities is “not an everyday thing, it might happen once or twice a year, … we had a large storm come through, I think it dropped 30 ml of rain, we had a major fundraiser happening at the park, I had 170 stall holders coming for a fundraiser for Variety Victoria, and sometimes you’ve just got to suck it up, take the pain killers and do it”;[102]
(iii) it was suggested to him that in the surveillance footage he spent long periods of time on his feet. In response to this, he replied: “… yes, I do, sometimes, some days you’ve got to do that, other days, I’m lucky to get down the backyard and back and [then it’s into bed] for three, four hours, the pain rises the pain disappears”;[103]
(jjj) it was put to him that this surveillance footage specifically showed him to be very active. In response to this, he replied: “I was very active, but that night I was very sore”;[104]
(kkk)he denied again that the park had uneven ground in it, which he was traversing easily. He said that just because the ground was wet, it did not mean that it had been uneven;[105]
(lll) he agreed that the ground may have been slippery because it was wet, but he described it as “stable”;[106]
(mmm)it was suggested to him that the surveillance footage constituted an accurate window into the kind of activities that he was capable of doing in November 2022. In response to this, he replied: “On that day, but not every day, I’m not capable every day of doing that”;[107]
(nnn)it was suggested to him that the surveillance footage is an accurate representation of activities that he is capable of undertaking now. In response to this, he replied: “…that’s not correct”;[108] and
(ooo)it was suggested to him that as at the date of the hearing, his major problem in relation to his ankle is pain. He agreed with this proposition. It was put to him that he does not have issues with stability in his ankle. In response to this, he replied: “Well, the stability’s good, it’s the pain that they keep telling me the arthritis will come, kick in later in life, so it’s only going to get worse.”[109]
[100]TT55-56
[101]TT56-57
[102]T57, L11-18
[103]TT57-58
[104]T58, L2-3
[105]T58, L12-18
[106]T58, L27-29
[107]T59, L5-9
[108]T59, L10-12
[109]T60, L13-19
25Under re-examination, the plaintiff gave the following relevant evidence:
(a) he was asked what he meant by having to “suck it up and take pain killers”. In response to this, he replied: “… the market is a big thing in our community. … I run the market as part of my role in scouting. Well, I’ve got a lot of people coming that rely on the market to make a living. Sometimes, you’ve just got to get on and do the job regardless of the pain. You know the pain’s coming, you prepare for it. I know … the night when I get home, it’s normally into bed, foot up, heat packs on, and I try and take it easy for the next 24 hours”;[110]
(b) he described the day depicted in the surveillance footage as “pretty bad”. He said that it was like most market days when he is on his feet most of the day. He takes Panadol tablets every four hours until the eight tablets are taken and then that it is it. He said then normally after doing that “it’s … rest”. He said after a market, “it’s normally in bed by 5 o’clock, and just had it. Prior to the injury, I could go do markets the next day, go out and do activities with the kids, but now it’s to the point where I do the market, I come home, I go to bed, ’cause normally working now I’ve got to work on the Sunday. And hopefully I’ve got an afternoon, late afternoon shift”;[111]
(c) he was asked whether or not he could observe himself limping in the surveillance footage. In response to this, he replied: “My normal walk has been pretty good straight, but as I said, the pain builds, then the limp will come in … I can see by that that I was starting to get tired and sore.” He explained “I normally don’t limp”;[112]
(d) he was asked why he does not engage in any of the more adventurous Scout activities any more. He explained that a lot of those activities included “a lot of extreme activities from scuba diving to hiking, and we’ve always done the hiking or the scuba diving or the snorkel[l]ing activities, with a bit more physicality as well as cycling and things like that, but now just non-existent”. He was asked why he could not participate any more. In response to this he replied: “Just incapable … Because the pain just rises … and if I’m away for three or four days, by the end of it you can hardly … the limp, the pain killers, you can’t, you can only take so many pain killers a day”;[113]
(e) he said that the pain he is describing is the pain in his left foot on the outside. He said that it has been “constant” since the surgery. He has tried to find ways to relieve the pain and that the pain management course has “been a really good thing for me, it has taught me a lot of stuff about pain, and when I first went into the course they told me that they’re not here to fix my pain, they were there to help me manage my pain”;[114] and
(f) when he is driving the bus for Dysons Bus Services, he tries to avoid morning shifts because the morning shifts start at four or five in the morning. He said that “I can’t go out and drive the public around in a bus if I haven’t had a good, decent sleep”.[115]
[110]TT60-61
[111]T61, L17-29
[112]TT62-63
[113]T64, L1-12
[114]T64, L13-20
[115]T64, L21-30
The medical evidence
26There were numerous medical reports contained in the tendered material. Both parties relied upon reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
27The plaintiff relied upon two reports from his general practitioner, Dr Seyed Hossein Samaei, the first dated 10 August 2023 and the second dated 27 September 2024. In the second report, Dr Samaei noted the plaintiff’s history of injury and set out the fact that an MRI scan and specialist opinion dated 2019 provided a diagnosis of peroneus brevis longitudinal split tear and instability of the left ankle joint. He reported that orthopaedic surgery was performed in 2020 with an arthroscopic debridement and ligament reconstruction. He recorded that the plaintiff reported pain, numbness and tingling of the left ankle post-surgery. He noted that in 2022, an orthopaedic review was provided and no further surgical intervention was required. In 2023, the plaintiff received a guided ultrasound steroid injection which rendered him pain-free for a period. He noted that the plaintiff now reports that the pain has since returned. He diagnosed the plaintiff as suffering from “nociceptive”[116] post-surgical left ankle and foot pain. He thought that the plaintiff’s condition was stable but likely to be at risk of osteoarthritic degeneration.[117]
[116]“Nociceptive pain” is defined as a type of pain caused by damage to body tissue
[117]Ex P1, p45
28The plaintiff relied upon one report from Mr Corniou, orthopaedic surgeon, dated 10 February 2024. In that report, Mr Corniou noted that the plaintiff had experienced instability in the left ankle for many years prior to his injury, due to recurrent sprains. He said however, that the plaintiff had sustained “a severe inversion injury to the same ankle in May 2019, while at work, which has caused a significant deterioration of the left ankle symptoms”.[118] Since the surgery, the plaintiff noted significant improved stability of his left ankle, however, continued to experience some lateral hind foot pain. So far, identifying the specific source of the pain has been elusive.[119]
[118]Ex P1, p62
[119]Ex P1, p64
29Mr Corniou noted that factors for the ongoing pain can be separated into what he described as “local causes, proximal causes and distal causes”. He said that in relation to local causes, the plaintiff may be developing “some early degenerative changes or worsening pre-existing degenerative changes due to his injury”. He noted that radiologically, the plaintiff has not yet developed significant degenerative changes. He noted that the plaintiff did respond briefly to a corticosteroid injection in his lateral subtalar joint and sinus tarsi, suggesting that there may be some underlying inflammation or early degeneration which is not yet evident on imaging. He also noted that the plaintiff had undergone a tendon repair which generally has a fifty per cent success in healing, although he noted that the plaintiff did not have pain over the perineal tendons. Lastly, he noted that the plaintiff’s pain could be referred pain from adjacent or distal areas like the spine or back; however, he said that based on the assessment made by Dr Philip Sheard in his report dated 17 October 2023, he would be happy to accept that spinal issues are not a major contributing factor to the plaintiff’s ongoing left ankle pain.[120]
[120]Ex P1, p65
30On the balance of probabilities, Mr Corniou considered that the plaintiff had sustained a significant injury in May 2019 during the course of his employment, which has led to a “cascade of issues, including recurrent instability, tendinopathy and now, ongoing left ankle pain”. He noted that surgery had only been successful in addressing the instability and tendinopathy concerns. He did not believe that the plaintiff would benefit from further surgery. He noted that the plaintiff’s condition may progress to degenerative changes in the future, at which time, further surgery could be considered. He said that the plaintiff would continue to benefit from intermittent rehabilitation to maintain strength and range of motion. He also thought that the plaintiff would benefit from intermittent use of an ankle brace in situations that place added stress on his ankle. He thought that management of the plaintiff’s ongoing pain could be optimised by him consulting a pain specialist.[121]
[121]Ex P1, pp66-67
31The plaintiff relied upon a single report from Dr Marg Perrott, physiotherapist, dated 20 May 2022. In that report, Dr Perrott set out the history of the plaintiff’s injury and his treatment up until that time. She thought that the injuries were consistent with the stated cause. She noted the potential for the plaintiff’s ankle condition to deteriorate in the future. She noted that the ankle injury had impacted on the plaintiff's recreational activities, in particular, he had enjoyed gardening in the past and had to limit this activity. She was unable to say whether or not this limitation was continuing at that time.[122]
[122]Ex P1, p70
32The plaintiff relied upon reports and other documentation from Advance Healthcare in relation to the pain management program he had participated in. In an initial report dated 21 March 2024 authored by Dr Safa Hamza, specialist pain medicine and rehabilitation physician, that doctor reported that the plaintiff had described his pain as “a constant aching pain on the lateral aspect of the left ankle, which is present around 90% of the time. … The pain intensity ranges between 4‑7/10 on the numerical rating scale, and increases with prolonged standing, prolonged walking and other activities. The pain reduces with rest and raising the leg. He sometimes wakes at night due to pain, particularly when there is pressure over the ankle … He reported that at times he can feel mild swelling, and the ankle becomes warm. This is mostly when he walks for prolonged periods.”[123]
[123]Ex P1, p72
33In a document entitled Multidisciplinary Pain Management Assessment dated 18 April 2024, the observations concerning the plaintiff’s pain as set out in the report from Dr Hamza were repeated and the following additional information was also recorded, namely: The plaintiff experiences constant pins and needles and numbness in his left fourth and fifth toes, although over the last twelve months that has not been as intense as it was. The plaintiff reported the following symptoms which were indicative of pain hypersensitivity, namely, sensitivity to light touch or pin prick and sensitivity to deep pressure. It was noted that on some days, the plaintiff needs to take his shoe off as the pain “comes up”.[124]
[124]Ex P1, p74
34In that document, it was noted that the plaintiff had a “weighted score based on clinical significance on the following features for nociceptive dominant pain … of 10/15 indicating a moderate likelihood of nociceptive input from tissue as a significant barrier to recovery”.[125] This was said to be evidenced by the following findings:
[125]Ex P1, p78
“Subjective examination
· Localised distribution of pain
· Proportional and direct relationship with aggravating factors
· Pain provocation by specific postures and/or movements consistent with a nociceptive clinical pattern
· Generally responsive to anti-inflammatory drugs
· Findings from imaging of body regions of potential relevance to the pain experience
Physical examination ± subjective examination
· Proportional and direct relationship of pain response with physical examination
· Pain provocation by testing of specific postures and/or movements consistent with a nociceptive clinical pattern including symptom modification
· Pain provocation by special tests consistent with a nociceptive clinical pattern
· No generalised hypersensitivity
· Absence of autonomic symptoms and/or signs.”[126]
[126]Ex P1, p78
35The plaintiff relied upon two medico-legal reports from Dr Philip Sheard, orthopaedic surgeon, the first dated 19 October 2023 and the second dated 27 October 2024. In the first report, Mr Sheard said that the plaintiff was involved in injury on 1 May 2019 in which he sustained an inversion injury to his left ankle. He said that this had confirmed a C-shaped tear of his peroneus brevis and peroneus longus, mild-to-moderate tenositis and mild-to-moderate plantar fasciitis. He noted that the plaintiff had ongoing instability and was treated with a left ankle arthroscopy and lateral ligament reconstruction. He thought that the injury sustained was consistent with the accident that was described. He noted that following surgery, the ankle was now stable, with no further giving way, although the plaintiff continues to have pain, particularly on the lateral aspect and also on the sole of the left foot. Dr Sheard confirmed that the ankle symptoms do not emanate from the plaintiff’s back issues.[127]
[127]Ex P1, p97
36Dr Sheard thought that the plaintiff’s condition was stable, although he was likely to experience worsening of his ankle pain over a period of time over many years. In particular, he said that the plaintiff was at risk of developing arthritis and deterioration of his left ankle. He had a left ankle injury with recurrent instability. This is likely to have led to recurrent damage to the chondral surface at each episode of instability. Dr Sheard believed that the plaintiff’s pain was coming from his ankle, since, on examination, moving his ankle reproduced the pain. He also noted that an injection of local anaesthetic and steroid into the sinus tarsi/ankle had relieved the plaintiff’s pain for a number of weeks. He noted that there was evidence of mild osteoarthritis on the ankle x-ray.[128]
[128]Ex P1, pp97-98
37In terms of the plaintiff’s prognosis, he thought that over a number of years, the plaintiff would be likely to experience worsening pain and swelling of his left ankle which would be likely to reduce his walking distance and standing time. He also thought that the plaintiff’s range of movement in the left ankle would be likely to decrease slowly over a period of time over a number of years. He thought the plaintiff’s pain would be likely to increase over a number of years. He thought that there was a chance, if the plaintiff experienced the progression of osteoarthritis as predicted, he would be likely to benefit either from arthroscopic surgery with debridement of osteophytes or an ankle fusion.[129]
[129]Ex P1, p98
38In his second report, Dr Sheard addressed the matters that had been raised by Dr Menz in the report provided for in the defendant. In response to these matters, Dr Sheard clarified that he had suggested that no surgery was required for the foreseeable future, but that the plaintiff may require arthroscopic or fusion-type surgery in the future. He clarified that the damage was to the ankle joint, namely the tibiotalar joint, which is likely to have resulted in chondral damage due to the instability, in turn increasing the risk of degenerative changes at the subtalar joint. In his review of the file material, he noted that the plaintiff’s first consultation with Mr Corniou was on 30 October 2019, “with substantial issue in his left ankle, predominantly … [stemming] from an injury in May 2019” and had “experienced instability of the left ankle for many years due to recurrent sprains”. It was also noted that the plaintiff had “sustained a severe inversion injury of the same ankle in May 2019 while at work. Noted pain [was] due to peroneal tendinopathy and examination findings of instability were due to lateral ligament complex injury …”[130]
[130] Ex P1, p101
39Dr Sheard noted that Dr Menz had said that the MRI scan and ultrasound showed that ligaments were intact in the plaintiff’s left ankle joint and that there was no evidence of instability on the MRI scan or ultrasound. Dr Sheard commented that “MRI scans and ultrasounds are performed without stressing the ligaments”. He noted that it “happens quite often that the ligaments are intact, but have been stretched and are non-functioning, causing instability”.[131]
[131]Ex P1, p102
40The plaintiff relied upon one report from Dr Olivia Ong, specialist pain medicine physician, dated 25 October 2024. In that report, Dr Ong set out many of the findings that have been referred to above in the Advance Healthcare pain management documentation. She noted that upon her examination of the plaintiff, “There were signs of inflammation with tenderness and swelling in the lateral aspect of his left ankle and left foot. Pain was provoked on weight bearing on his left ankle, which was consistent with a nociceptive clinical pattern including symptom modification. … There was no generalised hypersensitivity and autonomic symptoms and signs were absent.”[132]
[132]Ex P1, p118
41In Dr Ong’s opinion, the plaintiff’s diagnosis was “dominant nociceptive pain in his left ankle and left foot following left ankle surgery in January 2020 and the likely diagnosis is persistent post-surgical pain with [a] strong nociceptive component.”[133] Dr Ong said that this is based on subjective examination findings of:
(a)localised distribution of pain, which is generally responsive to tissue-based treatments such as manual therapy and physiotherapy;
(b)proportional and direct relationship with aggravating factors (weight bearing); and
(c)pain provocation by specific postures and movements, consistent with a nociceptive clinical pattern and generally responsive to anti-inflammatory drugs (Maxigesic).[134]
[133]Ex P1, p123
[134]Ex P1, p123
42Dr Ong reported that the plaintiff’s current condition is that he continues to complain of pain on the lateral side of his ankle, which is constantly present, but that he is experiencing less frequent severe pain flare ups. She reported the pain no longer limits his walking, and pain does not interrupt his sleep. She thought that the plaintiff had a good prognosis, as his left ankle pain condition had stabilised and his strength and stamina had improved on uneven ground and steps.[135]
[135]Ex P1, p123 – as to this, I note that the plaintiff did not agree with Dr Ong’s assessment of his walking limitations, interrupted sleep and ability to walk on uneven ground: See excerpts from T37 set out above at sub-paragraphs [24](kk) and (ll)
The Defendant’s medical evidence
43The defendant relied upon two reports from Dr Joseph Slesenger, occupational physician, the first dated 28 April 2023 and the second dated 6 June 2023. In both reports, Dr Slesenger set out his opinion that the plaintiff had suffered the following injuries as a result of his employment:
“Left ankle:
o Recurrent soft tissue injuries resulting in lateral ligament and peroneal tendon tear and instability for which he had undergone a left arthroscopic debridement, lateral ligament reconstruction, peroneus brevis reconstruction with peroneus longus and calcaneal ostectomy.
o Chronic left ankle pain.
o Residual instability.”[136]
[136]Ex D1, p30
44In the first report, Dr Slesenger made the following observations about he plaintiff’s injuries:
“… he has returned to work, working for Sturtevant & Sons based in Campbellfield. He is driving trucks between Campbellfield and New South Wales, working between 2 and 5 days per week, working between 6 and 12 hours per shift. …
… He is not required to load or unload the trucks …[137]
…
[137] Ex D1, p18
… [The plaintiff] continues to present with residual left foot pain, sensory loss and associated functional limitations. In the interval since the last evaluation, he has undergone operative intervention under the care of Mr Cornoiu (sic) and advised that his symptoms have improved. In particular, his ankle has stabilised, and his pain has somewhat settled; nevertheless, he advised of residual pain, stiffness and some restriction to his range of movements. He continues to have difficulty walking over uneven ground, standing and walking for more than an hour and climbing more than one flight of stairs.”[138]
[138] Ex D1, p21
45The defendant relied upon one medico-legal report from Dr Anthony Menz, consultant orthopaedic surgeon, dated 13 October 2023. In that report, Dr Menz said that the diagnosis of the plaintiff was that he had degenerative tearing of the peroneus brevis tendon in his left ankle. He said there was no other significant pathology with regard to the left ankle joint and, in particular, there was no laxity or abnormality of the lateral ankle ligament. He recorded that “there was no history of trauma” to the plaintiff’s left ankle. In those circumstances, he concluded that the peroneus brevis tendon tearing is a “degenerative type-tearing and is not associated with any work injury”.[139] Dr Menz noted that the MRI scan of 4 September 2019 and the ultrasound of the left ankle conducted on 12 August 2019 did not, in his opinion, show any evidence of ankle instability. On this basis, he believed that there was a zero per cent contribution of the plaintiff’s employment to his injury. He restated that the plaintiff’s injury was “purely degenerative”.[140]
[139]Ex D1, p53
[140]Ex D1, p55
46The defendant relied upon one of the reports provided by Mr Corniou, dated 17 February 2023. In that report, Mr Corniou noted that at that time, the plaintiff’s left ankle pain had not stabilised. He thought that it was unclear, at that time, what was causing the plaintiff’s persistent left ankle pain, and hypothesised that the plaintiff’s back issues may be playing a part in that condition. On that basis, he thought that the plaintiff’s current prognosis was “unclear”. He also noted that, radiologically, the plaintiff did not show any significant progression to degenerative ankle disease (osteoarthritis) and while there were some minor changes, in his opinion, they would not be severe enough to explain the current clinical picture.[141] Mr Corniou concluded by noting that, “In time, and more importantly if the … [plaintiff’s] back issues improve or resolve, the underlying cause of his ankle condition (pain) may become clearer”.[142]
[141]Ex P1, pp54-55
[142]Ex P1, p55
47As referred to above, during cross-examination, the plaintiff was taken to numerous entries in the Wandong Medical Centre’s medical records. The plaintiff relied upon several pages of these medical records, the substance of which has been referred to above.[143]
[143]Ex D1, pp165-183
48Having considered the expert medical evidence in its entirety, I am unable to place any weight on the opinion expressed by Dr Menz, since it premised upon two incorrect conclusions:
(a) first, that the onset of left ankle symptoms was gradual and that the plaintiff had reported “no history of trauma” to his left ankle.[144] In fact, as set out by Dr Sheard and others, the evidence clearly demonstrates, and I find, that the plaintiff sprained his left ankle on numerous occasions while working with the employer, and ultimately, suffered what has been described as a “severe” inversion injury to that ankle in May 2019. I find that this led to his consultation with Mr Corniou and ultimately, to the assessment that there was a need for surgical intervention; and
(b) second, that either an MRI and/or an ultrasound scan would, prima facie, demonstrate evidence of “instability” in the plaintiff’s left ankle. This opinion was specifically considered by Dr Sheard, who, as set out above, commented that such scans are performed “without stressing the ligaments”. Dr Sheard noted that it “happens quite often that the ligaments are intact, but have been stretched and are non-functioning, causing instability”. In relation to this matter, I find that the evidence clearly demonstrates that the plaintiff’s left ankle was so unstable, that it resulted in the need for surgical intervention. I note the plaintiff’s evidence and find that following this surgery, his left ankle has become more stable, but the pain in that area persists. Taking into account the reasoning set out by Dr Sheard, I prefer the evidence given by him in relation to this matter.
[144] Ex D1, p49
49Lastly, I have considered the opinion provided by Mr Corniou dated 18 August 2023, which was relied upon by the defendant. As set out above, in that report, Mr Corniou said that the cause of the plaintiff’s ongoing pain was, at that time, “unclear”;[145] however, I note that he expressly qualified this conclusion by stating that “in time, and more importantly if the … [plaintiff’s] back issues improve or resolve, the underlying cause of his ankle condition (pain) may become clearer”.[146] It is against this background that Mr Corniou provided a further opinion dated 10 February 2024, where he concluded, on the balance of probabilities, that the plaintiff had sustained a significant injury in May 2019 during the course of his employment, which has led to a “cascade of issues, including recurrent instability, tendinopathy and now, ongoing left ankle pain.”
[145] Ex P1, p54
[146]Ex P1, p55
50It was submitted that these two opinions are contradictory of each other, and that I ought be persuaded on the basis of the conclusions set out in the report dated 18 August 2023, that the cause of the plaintiff’s left ankle injury is and remains “unclear”.
51I reject this submission. As often occurs, in this case, the assessment of the cause of the plaintiff’s injury has taken place over time, with a clearer picture of an organic injury to the left ankle caused by the plaintiff’s employment with the employer emerging following the outcome of particular treatment or the provision of additional expert evidence in relation to a particular matter.
52For instance, in the report dated 10 February 2024, Mr Corniou was of the opinion that the plaintiff’s response to the corticosteroid injection in his lateral subtalar joint and sinus tarsi, may be suggestive of “some underlying inflammation or early degeneration which is not yet evident on imaging”. Similarly, in the same report, Mr Corniou noted and accepted Dr Sheard’s opinion that spinal issues are not a major contributing factor to the plaintiff’s ongoing left ankle pain. It is precisely this type of additional information which makes it reasonable for Mr Corniou to reach the conclusion that he did in the report dated 10 February 2024. I accept that opinion.
The issues
The Plaintiff’s credit
53The plaintiff’s credit was not seriously challenged during cross-examination; however, his account of the extent and consequences of the injuries which he says arose as a result of his employment with the employer, and the possibility of alternative explanations for these consequences, was explored in detail during cross-examination. The plaintiff’s evidence in this regard has been set out in detail above.
54Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest and cooperative witness who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. In addition, he made concessions where necessary, many of which were adverse to his own interests.
55Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
56After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the content of the medical reports, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms in any way.
Stoic Plaintiff
57Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff has been extremely stoic in relation to his condition and has taken numerous steps to try and continue working and living his life as best he can, despite the pain from which he constantly suffers.
58I find that despite the consequences of the injury to his left ankle, which he has suffered daily since the accident, he has continued to work both as a truck driver and more recently as a bus driver. I find that by reason of the more favourable conditions of being a bus driver, the plaintiff is able to continue working full time on a seven-day roster. Acknowledging the difficulty which he sometimes experiences with his sleep, the plaintiff prefers to take afternoon rosters as a bus driver, so that he will not be too tired to keep on driving. I accept the evidence that he gave to the Court that although there are some tasks which cause him pain, such as walking and being on his feet for a long time, on occasion he does them anyway, because “… sometimes you’ve just got to suck it up, take the pain killers and do it”.
Compensable injury
59The details of the occurrence of the accident are not in dispute.
60Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of his employment with the employer, the plaintiff initially suffered lateral ligament complex instability with tendinopathy of the peroneal brevis tendon and plantar fasciitis, resulting in instability of his left ankle. This led to left ankle surgery in January 2020. His present diagnosis is said by Dr Ong to be “persistent post-surgical pain with [a] strong nociceptive component”.[147]
[147] Ex P1, p112
Is the compensable injury permanent for the purposes of the Act?
61Having considered the relevant reports, and in particular the reports from Mr Corniou,[148] Dr Ong[149] and Mr Sheard,[150] I find that the plaintiff is likely to suffer from the consequences of his left ankle injury which he sustained while working for the employer, for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
[148] Ex P1, p66
[149] Ex P1, pp 112-113
[150] Ex P1, p102-103
Are the consequences to the Plaintiff of the left ankle injury “serious”?
62Having considered all of the evidence, I find that by reason of the plaintiff's left ankle injury alone, the plaintiff suffers from the following consequences:
(a) ongoing, constant, daily pain in his left ankle, which fluctuates in severity, but does not go away. He also experiences “flare ups” of pain, although these are less frequent now;
(b) restricted mobility and difficulty walking on rough and uneven surfaces. The need to take care not to lose his balance. The two small toes in his left foot have become numb and tingly and this also affects his balance;
(c) the need to be careful about the type of physical exercise he undertakes involving his left ankle. He continues to avoid forceful and twisting movements involving his left ankle, as well as standing for long periods of time. That is because these activities result in increased pain in his left ankle, along with swelling;
(d) a restriction in the domestic activities that he is able to perform. After engaging in activities such as vacuuming, sweeping, mopping and cleaning for some time, he has to sit down and rest for around 15 to 20 minutes, before resuming. He still tries to do what he can to help around the home, but suffers from increased pain if he attempts too much;
(e) the need to modify the way in which he performs gardening tasks, which he also used to perform for the Scouts;
(f) a diminution in the activities which he is able to participate in with the Scouts. Prior to suffering the injury to his left ankle, this was a significant part of his life which he derived great pleasure from. His ability to participate in Scouting activities is vastly diminished. There are some activities such as overnight hikes and more strenuous physical activities such as diving and snorkelling, in which he is simply unable to participate;
(g) the need to modify the way in which he supervises the volunteer market on a monthly basis. He finds that the increased walking involved in this activity quickly causes his left ankle to become painful and swollen. When this happens, he has to rest. In order to mitigate the pain, he tends to use a scooter instead of walking;
(h) an inability to go fishing, because it involves walking on rough and uneven surfaces. He misses this experience;
(i) interrupted sleep on occasion and waking in the morning with pain in his left ankle;
(j) irritability in the morning and a lack of concentration during the day if his sleep has been interrupted;
(k) the need to attend his general practitioner every three months or so, or more frequently if required;
(l) the need to take pain-relieving medication several times per day. If the pain is more severe, he also takes anti-inflammatory medication, so that it reduces the pain faster;
(m) the need to attend a pain management program which involved input from a physiotherapist, a psychologist, and a pain specialist and rehabilitation physician. In the pain management program, he learnt techniques to cope with the pain he experiences in his left ankle, but the pain itself has not reduced;
(n) the need to continue to undertake physiotherapy exercises and strengthening of his left ankle which has assisted in his mobility and walking capacity;
(o) the need to find alternative employment with Dysons Bus Services as a bus driver. He continues to work in this role on a full-time basis. He has found that driving a bus is much easier than climbing in and out of trucks, as the pain, swelling, and restriction from his left ankle is easier to manage in that role; and
(p) the need to have to “manage” the ongoing pain and restriction arising from his left ankle injury, for the rest of his life. The thought of this upsets him greatly.
63In Haden Engineering Pty Ltd v McKinnon,[151] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[152] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[153]
[151](2010) 31 VR 1
[152]ibid at paragraph [9]
[153]ibid at paragraph [12]
64I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in his approach to managing his injury, particularly in the form of his commitment to treatment, his attempts to return to his usual activities of daily living and his attitude to performing his work duties in a modified manner.
65The fact that the plaintiff has been prepared to keep working since the accident, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[154]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[154][2008] VSCA 260 at paragraph [3]
66As was observed in Hooley v Transport Accident Commission:[155]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[155][2019] VSCA 263 at paragraph [51]
67In Kelso v Tatiara Meat Co Pty Ltd,[156] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[156]Supra at paragraph [199]
68I have set out above the consequences which the plaintiff’s injury has had on his day-to-day life. I have made findings which support the conclusion that chronic pain in his left ankle is a prominent feature of the plaintiff’s life, which requires him to take medication on a frequent basis. Furthermore, I have found that his left ankle pain affects nearly every aspect of his day-to-day life. By reason of the plaintiff's age, I find that he will continue to suffer from each of the consequences set out above, for a lengthy period of time. This, in turn, means that these consequences are more significant for him than they might be for another, older plaintiff.
69Having regard to this, and by reason of the findings which I have made about the consequences from which the plaintiff suffers as a result of the injury to his left lower limb, in particular, his left ankle and foot, I am satisfied to the requisite standard, that those consequences are fairly described as being “very considerable”.
Conclusion
70In those circumstances, I am satisfied to the requisite standard, that as a consequence of the plaintiff's work with the employer, the plaintiff suffered a “serious injury”, as defined in the Act, in the form of an organic injury to his left lower limb, in particular, his left ankle and foot. The application is granted.
71I will hear the parties in relation to the question of costs.
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