Cummings v Melsteel Pty Ltd
[2012] VCC 1051
•10 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05182
| DARON CUMMINGS | Plaintiff |
| v | |
| MELSTEEL PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2012 | |
DATE OF JUDGMENT: | 10 August 2012 | |
CASE MAY BE CITED AS: | Cummings v Melsteel Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1051 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the right leg – pain and suffering only – whether consequences to the plaintiff are “serious”
LEGISLATION CITED – Accident Compensation Act 1985, ss134AB(16)(b), 134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti (1994) 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Hill | Slater & Gordon Ltd |
| For the Defendant | Mr N Rattray | Thomsons Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages 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 the defendant on 2 September 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on was the right leg.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By subsection (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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I 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.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Petkovski v Galletti (1994) 1 VR 436.
10 The plaintiff relied upon three affidavits and was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is presently aged thirty eight, having been born on 12 January 1974.
12 After finishing Year 11, the plaintiff worked as a machine operator from 1991 to 1996. He suffered an injury to his right leg in 1994 when the tine of a forklift went through his leg (“the 1994 incident”).
13 The plaintiff required surgery thereafter when a skin graft was taken from the front part of his thigh. He had four weeks off work and his right leg then healed quite well.
14 In 1996, whilst working at ACI Petalific, the plaintiff was involved in a serious motorcycle accident (“the transport accident”) after which he was hospitalised at the Victorian Rehabilitation Centre for about a year. His injuries included a shattered left arm, fractured ribs, a fractured right femur and head injuries.
15 As a consequence of his transport accident injuries, the plaintiff did not work until about 2001 when he commenced work as a storeman. In cross examination, he described a return to work after a long period but not to the same capacity. He was still quite weak in terms of his ability to lift because he could not straighten his left arm.
16 At that time, the plaintiff was able to resume vigorous sporting activities such as playing football, rock climbing, cycling and snowboarding.
17 The plaintiff deposed that notwithstanding his injuries prior to the said date, he managed to overcome hurdles and remained fairly active. He played senior football for Cranbourne until the transport accident. Following a break from football due to the injuries suffered in that accident, the plaintiff resumed playing for Murrumbeena, and in 2001, he began playing for Caulfield.
18 From October 2003 to February 2005, the plaintiff worked as a storeman and warehouse supervisor for Orrcon Steel. In 2006, whilst working Southern Cross Logistics, the plaintiff injured his right knee whilst lifting a spa (“the 2006 injury”).
19 The plaintiff deposed that following the 2006 injury, he had a right knee arthroscopy (“the first arthroscopy”) and in about 2007, he underwent two further operations including a right knee reconstruction. In examination-in-chief, the plaintiff explained he had two strains of his right knee in 2007 which did not require surgery and he in fact had knee surgery in 2006 and in 2008 (“the 2008 knee surgery”), a procedure which he thought was a reconstruction.
20 In cross examination, the plaintiff said that following the first arthroscopy he got the all clear from his surgeon. The plaintiff returned to competitive football and his usual active outdoor life. He went snowboarding and surfing regularly, ran to keep fit and also returned to rock climbing.
21 Following the first arthroscopy, the plaintiff’s right knee improved rapidly and he returned to full time work within a week or so and also returned to his previous hobbies and recreations. He was back running five kilometres a day and also going to the gym every day and training for football with Narre Warren.
22 Following the first arthroscopy, the plaintiff’s weight dropped to about ninety kilograms, but since that time, due to inactivity as a result of his incident injuries, the plaintiff’s weight had increased to one hundred and five kilograms.
23 The plaintiff agreed in cross examination that at the start of 2008, his right knee was still painful. However, when he started work with the defendant in April, his knee was fine for him to work in a steel work job which involved picking and cutting orders and crane work, as well as lifting and carrying heavy stores.
24 The plaintiff was cross examined about an attendance with Mr Hooper in January 2008. He agreed that when he saw Mr Hooper he was unable to squat, he could not fully extend his knee and he was wearing a knee brace.
25 Although he is now able to squat much more freely, the plaintiff still has difficulty squatting, not because of any knee problem but because of shin pain.
26 In cross examination, the plaintiff denied having any further flare ups of his knee pain after the 2008 knee surgery. He could not recall on 15 August of that year, complaining of the onset of acute knee pain, but did not dispute he had made this complaint if the clinical notes were to this effect. However, he went snowboarding a couple of weeks later so there could not have been much wrong with his knee at that time.
27 Whilst he had had the previous injuries, the plaintiff’s right leg was very good before the said date.
28 On that date, the plaintiff was standing on a pack of steel when three large packs of steel beside him fell and crushed his right leg (“the incident”).
29 Following the incident, the plaintiff was taken by ambulance to The Alfred Hospital, where a metal rod and screws were inserted into the fractures in his lower right leg (“the leg surgery”).
30 Following the leg surgery, the plaintiff required quite heavy painkilling medication, including Oxycontin, but was not keen to continue taking it as he was scared of becoming addicted.
Return to Work
31 Two or three months after the incident, the plaintiff returned to work on light duties, mainly seated, operating a cropper machine.
32 In December 2008, the plaintiff had four days off work following an increase in right leg pain when he slipped on some stones walking at the beach.
33 In February 2009, the plaintiff’s employment with the defendant was terminated as there was not enough work available.
34 Since ceasing work with the defendant, the plaintiff has engaged in storeman and forklift driving duties through various labour hire agencies.
35 The plaintiff is no longer able to do heavy lifting and carrying work because of his right leg injury and he is now much slower in his work tasks.
36 The plaintiff deposed in June 2010 that he was coping with full time work with Apex Steel but he still got right leg pain and was careful to avoid knocking his leg, as doing so resulted in sharp pain. He often had an ache in his right lower leg, mainly in the shin and calf, and a throbbing feeling in the lower right leg. His pain was aggravated by going up and down stairs or being on his feet too long. He could not run properly or put too much pressure on his leg and he often got lower right leg pain if he turned when sleeping. Squatting was also painful.
37 Whilst he was able to get on with his work, the plaintiff’s lower right leg often got sore but he put up with it as he wanted to try and get on with his life.
38 In cross examination, the plaintiff confirmed that before the incident he was engaged in general labouring and factory work. Since then, he has continued these types of duties, but was unable to do as much heavy lifting because of leg pain.
39 The plaintiff deposed in July 2012 that he tried to get on with his life and found a new job as a loader operator, a position he carried out seated. From time to time in that job he was required to help sort wood for making pallets while standing. His right leg ached badly at the end of a day’s work standing. That employment ceased in July 2012 when the plaintiff was advised that he was no longer needed at work.
40 In cross examination, the plaintiff agreed he had some pain whilst doing his work but he had enough function in his leg to do his usual work. In re-examination, the plaintiff described pain in his right leg lifting and carrying heavy items at work.
41 In cross examination, the plaintiff agreed he found it difficult to hold work for reasons unrelated to his incident injuries but then said some employers had not been happy with his performance at work as he required too much time off for treatment of his incident injuries. The plaintiff agreed the fact he had lost his licence affected him greatly in getting work and his lack of transport had meant he missed out on a lot of work. He does not wish to be unemployed any longer.
Progress
42 The plaintiff’s right leg has not been the same since the incident when three tons of steel were crushed down on it.
43 As of mid 2010, the plaintiff was taking Panadol or Nurofen when his right lower leg pain got bad, as he wanted to try and avoid taking stronger painkilling medication. He was doing a lot of gym work to try and strengthen his right leg.
44 For a time in early 2009, the plaintiff was prescribed antidepressants as he was struggling with the effects of his injury and its affect on his sporting activities. He had also been drinking a bit too much for a while because of his pain and frustration at his restrictions, but that situation was then under control.
45 In June 2011, the plaintiff had further right leg surgery when the metalware was removed. His right leg symptoms have remained the same since that surgery, with no improvement.
46 As of October 2011, the plaintiff deposed that he tried to do what he could. He still rode his bike, as doing so did not put pressure on the fracture site. He was then riding two or three times a week to keep fit and was doing low impact spin classes at the gym.
47 Climbing a flight of stairs caused the plaintiff a jolting pain in the middle of the shin. He got a similar pain when trying to squat or get up from a squat. He favoured his left leg when getting up from a squatted position. He also had problems going up and down stairs or up hills.
48 Dr Jihong Ouyang at the Thompson Road Medical Clinic in Cranbourne was then prescribing Panadeine Forte and Fenac. The plaintiff took that medication from time to time only when absolutely necessary. On average, he took two or three Panadeine Forte a week, mainly at night, and also four or five other pain relief tablets.
49 The plaintiff’s sleep continued to be affected by his right leg pain. He had a particular problem getting to sleep after a long day when his right leg was painful.
50 The plaintiff recently deposed that his symptoms are no better and if anything, slightly worse. He continues to have significant pain over the fracture site, together with a feeling of swelling in his leg and there has been no improvement since the removal of the metalware. Three months after that surgery, the plaintiff tried running again but just could not do so. He managed to slow jog for about one hundred metres or so but the pain was so severe he had to cease running, as the jolting and pressure caused a sudden sharp pain in his shin.
51 In cross examination, the plaintiff described shin pain, mainly in the area of the fracture. After walking for about five or ten minutes, he starts getting a throbbing or aching in his leg.
52 The plaintiff tries to keep fit even though he cannot do his pre-incident sporting activities. He attends the gym normally twice a week, using the exercise bike and doing upper body workouts which help him. The exercise is very low impact and does not significantly aggravate his right leg condition.
53 The plaintiff continues under the care of his general practitioner whom he attends from time to time for treatment. His doctor has increased the amount of his medication to between two and four Panadeine Forte each day because of increased pain.
54 The plaintiff takes Panadeine Forte before he goes to sleep to help him sleep. He still has problems sleeping throughout the course of the night, especially when the tablets wear off and his leg aches and he wakes up in pain.
55 In cross examination, the plaintiff agreed that he had problems with sleep and depression before the incident following his transport accident. He saw a psychiatrist once since the incident on referral from his doctor and he was prescribed Xanax for a little while but it made him feel very light headed so he stopped taking it.
56 The plaintiff confirmed he constantly takes tablets at night to help him sleep. He does not take them during the day as they make him drowsy and he is required to operate machinery. He has claimed the cost of medication from WorkCover but it recently refused to reimburse him.
57 The plaintiff presently takes medication for cholesterol. In the past he has been counselled by his doctor as to his alcohol intake and undergone liver function tests but alcohol is no longer such an issue for him.
58 The plaintiff has scars on his right leg where the nail was inserted and then removed. The scars are tender, red and unsightly. In cross examination, the plaintiff showed his right lower leg and pointed out a bump in the fracture site.
59 In cross examination, initially the plaintiff said that very rarely he has days when he is pain free but then said he has pain every single day depending on what he had been doing. His pain is a mild irritation if he spends the whole day in bed but it becomes quite bad if he does a fair bit of walking or works a normal eight-hour day. His pain is probably moderate at best when he is at rest. The plaintiff experiences pain when driving a forklift but the pain is not as severe as when he is on his feet all day.
60 The plaintiff has not seen his surgeon since the one visit following removal of the metalware. The plaintiff then asked him if there was anything further that could be done and was told to rest and also strengthen his leg. His general practitioner has just recommended he continue to take painkillers.
61 The plaintiff limps on occasions but does not have a discernable limp. He cannot rum. He can hop a couple of times but not constantly.
62 The plaintiff wears a thermal sock, especially when it is cold, which gives him extra warmth in his right shin and seems to help decrease the pain which is certainly aggravated by cold weather.
63 At present, the plaintiff’s right knee is good. He does not get any pain and it does not affect him at all.
64 The plaintiff does upper body exercises at the gym three to four times a week and uses an exercise bike. He intends to continue this program. He does not engage in any weight bearing exercise. He is unable to jog as it causes too much pain in his shin and his leg swells up.
65 The plaintiff is able to ride a bike to get around. He is no longer able to ride a mountain bike over rough terrain and has not done so since 2009 as doing this activity puts too much pressure on his shin pedalling to get up a hill.
66 The plaintiff has tried to get on with life and find whatever work he can, but he struggles daily with pain and suffers increased pain if required to walk any distance, climb stairs or stand for any length of time in the workplace. He just puts up with his pain because he wants to and needs to work.
Football
67 The plaintiff deposed that in 2008, he played football for Caulfield and had arranged to play for Narre Warren the following year on a paid basis. However, in examination-in-chief, the plaintiff said that before the incident and after the March 2008 knee surgery, he had been given an offer to play football by Narre Warren and was to be paid $180 per game of senior football. He was not playing at the start of the 2008 season because of the problem with his knee from the December 2007 knee injury.
68 At the time the plaintiff commenced work with the defendant in April 2008, he had started training to resume playing football.
69 In cross examination, the plaintiff explained that he in fact played senior football for Narre Warren for the last quarter of the 2007 season and his knee was fine playing during that time. He played centre half forward in the winning premiership side and kicked four goals.
70 The plaintiff deposed that he planned to play senior football until he got older but had not been able to do so because of his incident injury. He confirmed he intended to play well into his forties. He is right footed and since the incident has tried to have a little kick of the football but experienced sharp pain in his right lower leg when doing so.
71 The plaintiff tried to train for the 2009 football season, but he could barely run more than one hundred metres. Having been unable to play football since the incident has really affected the plaintiff as it was his passion and love.
72 In cross examination, the plaintiff confirmed he intended to continue playing football despite the problems with his knee leading up to the 2008 surgery and disagreed he was really near the end of his football career at that time.
Other Sporting Activities
73 Prior to the incident, the plaintiff enjoyed snowboarding. He regarded himself as a good snowboarder and went numerous times every year. He was very fit and doing up to sixty or seventy runs on black diamond slopes a day.
74 The plaintiff went snowboarding in the days before the 2007 grand final, and also, the weekend before the incident, he had been snow boarding at Mt Buller.
75 Following the incident, the plaintiff went snowboarding in August 2009 at Mount Buller with friends. He tried one run down a mountain but just could not do it as he experienced too much pain. His boot put pressure on his leg just at the point of the fracture. The pain was too intense to continue and his leg also started to swell around the shin.
76 Before the incident, the plaintiff used to enjoy rock climbing at places such as the Grampians. He tried rock climbing a few times in 2009 but struggled with pushing and putting weight on his leg to climb and also his extra weight made it difficult for him to climb.
77 Ending up in pain, with swelling in his right leg for a couple of days and being unable to walk does not make snowboarding or rock climbing worth attempting.
78 Prior to the incident, the plaintiff also enjoyed watching football. Subsequent thereto, it is now even difficult attending the MCG because the plaintiff experiences pain walking up the stairs.
79 Since the incident, the plaintiff had also tried jogging but can only do so for one hundred metres or so before he experiences shooting pains up his right leg from the site of the fracture.
The Plaintiff’s Medical Evidence
80 The plaintiff attended The Alfred on the said date with a history of a crush injury to the right leg. His injuries were described as a displaced fracture of the right tibia and fibular and right leg abrasions.
81 On the following day, orthopaedic surgeon, Mr Tran, performed an open reduction and internal fixation of the tibial fracture (“the leg surgery”).
82 The plaintiff’s post operative progress was reported to be satisfactory and he commenced physiotherapy and occupational therapy. He was discharged on 5 September 2008 with arrangements made for him to be followed up in the orthopaedic outpatients, where he attended later in September 2008, and his sutures were removed. At that appointment, the plaintiff reported he felt fine.
83 The plaintiff was next seen on 27 November 2008, when clinically he was going well and the fracture felt solid and x‑rays showed it was uniting. He was instructed to increase activities as tolerated and to remain on light duties. Review was arranged in three months.
84 Dr Ouyang from the Thompson Road Clinic (“the clinic”) reported in July 2009 and September 2011.
85 The plaintiff first attended the clinic in relation to his right leg pain on 8 September 2008 when his dressings were changed.
86 Dr Ouyang noted the plaintiff did not work until 15 November 2008, when he resumed light duties. As of December 2008, the plaintiff reported he was coping well until he slipped on some cobblestones at the beach and experienced right leg pain.
87 An x‑ray was ordered which showed the fractures were healing and no new fracture was detected. The plaintiff was given four days off work. As of July 2009, he was performing light duties.
88 The plaintiff’s work hours and weight lifting limits were subsequently increased and Dr Ouyang noted the plaintiff was reluctant to go back to his pre-injury duties. She thought he needed to be reviewed at The Alfred before he could resume his old job. She noted the plaintiff’s employment was terminated in the middle of February 2009 and since that time he had not seen her for his right leg injury.
89 In her most recent report in September 2011, Dr Ouyang noted that the plaintiff last consulted her regarding right lower leg pain on 14 July 2011 when he requested analgesics.
90 In her view, it was very hard to predict the plaintiff’s prognosis because she had, as of September 2011, not assessed him for two months. She noted the x‑ray of March 2011 showed there was complete bone union of the lower tibia and fibular fractures with solid periosteal bone union. Bone and joint alignment were anatomic. Based on that image, she thought the plaintiff should be able to regain his full right leg function. However, she considered it was possible he could have pain now and then due to scar tissues following two operations.
91 Dr Ouyang referred the plaintiff to Mr Tran in March 2011. In her letter of referral, she reminded Mr Tran he had operated on the plaintiff in September 2008 and requested he assess him again regarding removal of the metalware because the plaintiff had constant lower leg pain since the leg surgery. At that time, Dr Ouyang was prescribing Voltaren.
92 Mr Tran wrote to Dr Ouyang in April 2011 thanking her for the referral. Mr Tran noted the fracture had united well but the plaintiff still had pain over the middle of his tibia and also some discomfort over the cross bolt site.
93 Mr Tran advised that the plaintiff was keen to have the metal removed and he was happy to do so and had discussed with the plaintiff the vast complications of him not finding relief from the discomfort and the risk of re-fracture. In these circumstances, the plaintiff was keen to proceed and Mr Tran advised that he intended seeking funding from WorkCover for that procedure.
94 On 29 June 2011, Mr Tran, having diagnosed a united tibial fracture, removed the tibial nail and carried out a tibial ostectomy.
95 Following removal of the metalware on 29 June 2011, the plaintiff attended Dr Ouyang on 30 June and 14 July 2011 when Panadeine Forte and Voltaren were prescribed, and on 20 and 24 October, 9 November and 2 December 2011 in relation to his right leg pain. On 5 April, 4 May and 3 July 2012, the plaintiff attended complaining of ongoing right leg pain and requesting further analgesics.
Medico-Legal Evidence
96 Mr Michael Flaim, general surgeon, examined the plaintiff in September 2011.
97 The plaintiff gave a history of a previous serious motorcycle accident and an earlier penetrating injury to the right thigh. He also told Mr Flaim of the 2006 right knee injury leading to arthroscopies and reconstruction. Mr Flaim noted, despite those injuries, the plaintiff was able to return to work continuing as a storeman.
98 Mr Flaim noted the incident and the injury suffered therein and the plaintiff’s ability to resume light duties two months thereafter and the termination of his employment in February 2009.
99 The plaintiff told Mr Flaim he continued to have symptoms and required medication for pain control. The plaintiff was then taking Panadeine Forte, Panamax or Nurofen as required by his pain levels, on average two Panadeine Forte per week and four or six Panamax.
100 The plaintiff complained to Mr Flaim of pain at the fracture site principally at night or with high impact, pain with walking up hills, aggravation of symptoms by cold weather, improvement of symptoms when he had warmed up and moved about for some time, difficulty with rising from a squatting position and disability for sport.
101 On examination, Mr Flaim found the plaintiff to be completely forthright with no tendency to exaggerate. The plaintiff walked with a discernable limp. Mr Flaim noted the scars relating to the 1996 accident were well healed and the intramedullary nail had recently been removed.
102 Mr Flaim found no deformity of the right leg or malrotation of the right foot. The plaintiff’s right leg was one centimetre shorter than the left and there was equal girth on both calves. The knee jerks were absent and both ankle jerks were present but suppressed and there was normal circulation in the foot.
103 Mr Flaim noted the plaintiff presented with a history of previous injuries to his right knee and leg and with incident injuries to his right tibia and fibula. He noted, in the long term, the plaintiff suffered pain affecting the calf and mid tibial level as well as restricted activity, particularly in high impact activities.
104 Mr Flaim noted clinically the fractures had long since healed without malrotation or malalignment but with minor shortening.
105 Mr Flaim thought the only requirement for ongoing treatment was that of occasional analgesia. He considered the plaintiff’s condition had long since stabilised and he was left with restriction for rigorous function such as running or heavy lifting. He thought the plaintiff was clearly capable of working, noting he had been employed full time in the despatch of air conditioning components.
106 Although clinically the physical examination of the right knee was within normal limits, Mr Flaim thought the plaintiff may well be at increased risk of degenerative change because of his previous history. In his view, the plaintiff’s current symptoms and limitations, however, appeared related to the incident fracture rather than to his previous knee injury.
107 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in June 2012.
108 The plaintiff told him of his prior right knee problems. The plaintiff described his current complaint as being pain extending down the length of the right shin to just below the knee to the ankle, fluctuating between three and six out of ten and aggravated by any excessive activity.
109 The plaintiff also advised of problems kneeling and squatting, problems with stairs and his sleep was disturbed. The plaintiff described intermittent pain which he localised to the posterior aspect of the right calf which could occur at any time and felt like a knife stabbing him in the calf. The plaintiff told Mr O’Brien of some aggravation of his pain, particularly if on his feet for a long time at work.
110 On examination, the plaintiff appeared to have a normal gait and was able to perform a squat, which he stated did cause aggravation of his anterior right shin pain. Scars were noted in relation to previous surgery and there was some altered sensation in the site of the right knee surgery.
111 There was no effusion within the right knee. Flexion was from zero to one hundred and ten degrees which was in fact accompanied by some crepitus, particularly in the patellofemoral compartment. There was some mild laxity in the medial compartment with no anterior posterior cruciate instability.
112 Tenderness was described along the subcutaneous border of the right tibia. Ankle dorsiflexion was ten degrees with forty degrees of plantar flexion. Subtalar movement appeared intact. There was no wasting noted at the right calf and power and reflexes in both lower limbs were normal.
113 Mr O’Brien noted the x‑rays of the right foot and leg of November 2008, the fibula and tibia in March 2011 and the right leg and knee x‑ray of October 2011.
114 Mr O’Brien noted the plaintiff described significant previous injury to the right leg and knee prior to the incident. He noted that the fracture had been treated by internal fixation with sound union but with residual pain over the anterior aspect of the tibia which had not been resolved by the recent removal of the hardware.
115 In Mr O’Brien’s view, physical signs clearly demonstrated some restriction of flexion of the right knee with some signs suggestive of mild post traumatic arthritis within that joint. Further, there was continuing tenderness along the tibia.
116 Given the sound fracture union shown on x‑ray, Mr O’Brien thought it appeared the residual symptoms and signs appeared predominantly to be related to residual accompanying soft tissue injury, probably related to the crushing nature of the incident injury.
117 Mr O’Brien considered the plaintiff’s clinical condition now appeared stable. He noted the nature of the plaintiff’s pain now appeared chronic related to soft tissue trauma and he considered the plaintiff would require some ongoing pain management predominant with analgesic medication. Mr O’Brien thought the plaintiff’s chronic lower leg pain indicated a poor prognosis.
118 Mr O’Brien noted the plaintiff told him of having regained good weight bearing function following his knee injury and in Mr O’Brien’s view, the plaintiff’s current problem appeared now to relate directly to the incident injury which obviously had an affect on the plaintiff’s employment prospects.
119 Mr O’Brien reported the plaintiff obviously struggled with unrestricted weight bearing function and he suggested the plaintiff may well require some modification of duties if he was to obtain permanent full time employment, noting that at the present time the plaintiff reported casual employment caused aggravation of his symptoms.
120 Mr O’Brien also considered the plaintiff was now restricted in relation to general social, domestic and recreational activities on a permanent basis.
Investigations
121 Dr Ouyang organised an x‑ray of the plaintiff’s right leg and foot in December 2008.
122 It was reported that the nail in the right tibial shaft was fixed by a single transverse cannulated screw proximally and a single transverse cannulated screw distally. There were residual fracture lucencies in the mid to distal tibial and fibular shafts where there was callous formation and periosteal reaction due to healing. Alignment through the right foot was normal.
123 In October 2011, Dr Ouyang organised a right knee, leg and ankle x‑ray. The clinical notes set out the plaintiff had a fractured tibia and fibular three years ago and still had pain.
124 It was reported there was an old healed fracture at the distal shaft of the right tibia and fibular. There was also an old nail track in the right fibular. There was no active bone lesion in the right tibia and fibular. The right ankle joint was normal with normal joint spaces. There was a mild irregularity of the medial aspect of the right patella, probably a small accessory ossicle. No articular bone lesion was seen in the right knee and the joint spaces were preserved and there were no loose bodies or joint effusion noted.
Other Documents
125 Narre Warren Football Club wrote to the plaintiff, inviting him to attend training with the Club in 2009.
The Defendant’s Evidence
Previous Claims
126 On 29 November 1994, the plaintiff signed a claim form relating to an injury to the right thigh when penetrated by a forklift. On that form, the plaintiff noted previously having broken his right leg.
127 The plaintiff completed a Claim for Compensation in February 1997 in relation to a transport accident in which he suffered injuries including - broken right hand, thigh, broken left hand, elbow, wrist and thumb, cuts and bruises to body and badly cut left knee.
128 The plaintiff completed a Claim for Compensation on 6 July 2004 in relation to an incident at work on 15 June 2004 when he strained his left knee.
129 On 9 July 2005, the plaintiff signed a Claim Form in which he described falling and hurting his back whilst at a work function at Crown Casino.
130 On 10 August 2006, the plaintiff signed a Claim for Compensation relating to a right knee injury on 7 August 2006 whilst lifting a spa at work.
131 The plaintiff submitted a claim on 16 November 2007 setting out he twisted his right knee when he jumped out of the way of a pack of steel on 9 November 2007.
Medico-Legal Evidence
132 The plaintiff saw Mr Kendall Francis in December 1997 in relation to his transport accident injuries.
133 At that stage, the plaintiff continued to have metalware in his right femur, left elbow and wrist. Mr Francis thought the plaintiff’s fractured right femur had united in good position and that the plaintiff’s left elbow was his main problem.
134 In Mr Francis’ view, all the injuries described by the plaintiff related to the transport accident. He noted the fracture of the right femur sustained six years earlier and the second quite severe injury to the plaintiff’s right thigh with the forklift did not play a role in the plaintiff’s current symptomatology.
135 Mr Francis considered the plaintiff was fit to return to pre-accident employment and certainly fit to do light work not involving any heavy lifting with the left arm.
136 On re-examination in July 1998, Mr Francis confirmed an excellent recovery from the right femur fracture. He considered that the plaintiff would probably improve further once he had had the various metalware insertions removed from the previous fracture.
137 Mr Peter Scott, orthopaedic surgeon, examined the plaintiff in June 2007 in relation to the back injury suffered by the plaintiff at his work Christmas party. Following examination, he thought the plaintiff had made a reasonable recovery but had some ongoing inconvenience with back ache and discomfort.
138 Mr Scott noted that to direct questioning, the plaintiff had no problems with his lower limbs and there was a full range of movements to both lower limbs.
139 Mr Jonathon Hooper, orthopaedic surgeon, examined the plaintiff in January 2008.
140 Mr Hooper thought the mechanism of twisting to get out of the way of the falling steel was very credible for the explanation of a bucket handle tear of the medial meniscus.
141 The plaintiff told Mr Hooper he had played football until two years ago and he surfed, went snowboarding, attended the gym and ran every day.
142 Mr Hooper noted that the plaintiff could not squat and he was unable to fully extend his knee. The plaintiff was tender over the medial joint line and there was no effusion in the joint.
143 Mr Hooper thought the plaintiff’s condition had not resolved and considered he required an arthroscopy. In Mr Hooper’s view, the plaintiff could do light work, although he would be incapable of heavier work involving lifting and squatting.
The Current Claim
144 The plaintiff signed a Worker’s Injury Claim Form on 10 September 2008 in relation to the incident in which he injured his right leg.
Medico-Legal Evidence
145 Mr Peter Mangos, general surgeon, examined the plaintiff for the purposes of an AMA assessment in November 2009.
146 The plaintiff gave a history of knee and leg injuries prior to the incident.
147 At the time of examination, the plaintiff’s main complaints were aching pain in the middle of the right lower leg in the fracture site and sometimes there was slight swelling of the right foot but normally that did not occur. The plaintiff still had swelling at the fracture site which was visible and slightly tender. His main complaint was that he had difficulty hurrying, particularly in running. He could walk fast, squat, kneel and climb reasonably well. Because of his difficulty running, he had been unable to return to sport.
148 On examination, Mr Mangos noted the plaintiff was very fit and strong looking. There was no obvious limp and no wasting or deformity on general examination and the plaintiff’s leg lengths were equal.
149 Mr Mangos noted the plaintiff was not in any discomfort on examination and he was not wearing any form of support. There was no obvious wasting or deformity of the lower extremities, except for a small swelling in the mid tibia at the site of the fracture, which was only slightly tender. General alignment of the tibia was normal and leg lengths were equal. Movements of the hip, knee and ankle on both sides were normal. There was no obvious wasting of the thighs or calf. There was no loss of power of the musculature of the leg and sensation and circulation was within normal limits. The plaintiff toe walked and heel walked well and he could squat and kneel slowly, but well.
150 Mr Mangos concluded the plaintiff had suffered a nasty fracture of the right tibia and fibular and also bruising which had basically settled. He noted the fracture site was solidly healed and the plaintiff had returned to full time work, doing a lot of crane and forklift driving. The plaintiff’s main complaint was the inability to run and play sport, but Mr Mangos thought since it was only a year after the accident, that would improve with time.
151 Mr Mangos considered the plaintiff had done well to return to pre-injury work, noting he had returned to the gym to maintain strength and mobility of his lower leg. In such circumstances, Mr Mangos thought it may be worth considering funding the plaintiff’s gymnasium bill for six months, as that would stand him in good stead for future employment.
152 Mr Francis re-examined the plaintiff after the incident, in April 2009, March 2011 and July 2012.
153 On the most recent examination, the plaintiff walked quite freely with no suggestion of any limp. Mr Francis noted the plaintiff could in fact hop and run quite freely although the plaintiff told him he was unable to run. The plaintiff could squat to three quarters full range with the limiting factor seeming to be his right knee, but he complained of pain over the former fracture site.
154 Both lower limbs were of equal length. There was no evidence of any swelling and musculature of both thigh and calf on both sides was equal and powerful. There was no deformity evident, nor was there any significant bossing or prominence of callus over the former fracture site.
155 The fracture was soundly united in perfect position. The surgery scars were well healed. There was slight adjacent difference in sensation related to the scars but of no real clinical significance. Otherwise, sensation testing of the lower limbs was quite normal, as was circulation.
156 There was full extension and flexion of the right knee with some slight anterior laxity of the tibiofemoral movement but otherwise the knee was quite stable. There was no tenderness around the knee joint.
157 Mr Francis noted that the latest x‑ray of October 2011 following the removal of the hardware, showed no significant abnormality and the old healed fracture was demonstrated fully united and in anatomical position.
158 Noting he had seen the plaintiff on three occasions dating back to April 2009 in relation to the fractured mid shaft of the right tibia and fibula, Mr Francis believed the plaintiff had recovered to such an extent that there were no significant problems relating to the fracture still evident and that the plaintiff was almost at that stage when seen for the second time in March 2011.
159 Mr Francis noted the plaintiff did quote some symptoms that appeared since the removal of the hardware but clinically he considered the plaintiff had now fully recovered, noting he was able to return to work of various physical natures and he could quite readily perform any of the driving occupations offered.
160 Mr Francis’ impression was that the plaintiff did not require further medication or medical management. He noted the plaintiff did mention the intermittent pain occurring seemingly in the region of his fracture site, but Mr Francis thought there was no clinical or radiological indication of any abnormality now that the fracture had soundly healed in perfect position with no clinical findings or any other abnormality related to that region.
161 Mr Francis thought the symptom may be referred pain from the plaintiff’s previous knee problem, but he noted the plaintiff did not make any complaint of symptoms affecting his right knee specifically.
162 Mr Francis concluded the tibial fracture had united in perfect anatomical alignment and the fibula fracture almost likewise. In his view, there was no excessive bossing at the fracture site that would be causing any ongoing symptoms.
163 Mr Francis believed once the plaintiff returned to the workforce and in fact gained a more permanent working relationship, he would improve further. He could find no physical restrictions arising from the plaintiff’s right leg as being related to the fracture.
164 Mr Francis thought the plaintiff’s knee condition may well be contributing to the only symptoms the plaintiff described, but then noted in actual fact, examination of the knee showed an excellent range of movement, but with mild anterior laxity, possibly indicating anterior cruciate involvement. Mr Francis noted that condition in the past had not prevented the plaintiff playing various sports and in fact, he was currently riding bikes, swimming and attending the gym. Further, the plaintiff was playing football following a knee reconstruction.
165 Mr Francis thought the plaintiff required no specific restrictions and modifications in terms of work and that he could return to all pre-injury employment.
166 Mr Francis concluded there was no evidence of functional overlay or exaggeration and noted the plaintiff was no longer receiving any antidepressant medication. He noted the plaintiff did exhibit a degree of frustration at the prolonged periods he was unable to find work, plus the fact of the multiplicity of medical assessments and the like. He thought those factors would disappear once the plaintiff had gained a more permanent work status.
167 Notes from the Thompson Road Clinic were tendered.
168 Following the March 2008 knee surgery, the plaintiff attended on 10 April 2008 stating he felt better, he was able to walk normally and he claimed he was able to perform normal duties.
169 The next attendance in relation to the right knee was 15 August 2008. The plaintiff then complained of acute right knee pain that morning and did not go to work, but it was noted the plaintiff’s knee felt better. It was noted the plaintiff was able to squat and had a full range of movement. There was mild anterior knee joint tenderness and no laxity.
170 On 8 September 2008, the plaintiff first attended following the incident, attending for wound care. His injury was subsequently reviewed on 12 and 15 September 2008. On 19 September 2008, the plaintiff attended seeking more pain relief, and Panadeine Forte and Tramadol were prescribed.
171 On 17 October 2008, it was noted the plaintiff’s right knee and lower leg was better and he was going to see an orthopaedic surgeon.
172 On 27 October 2008, poor sleep and depressed mood were noted. The plaintiff’s right leg injury had made his depression flare up and he was worried about his future mobility.
173 On 10 November 2008, it was noted the plaintiff felt very sore in the right lower leg, and had problems standing up too long.
174 On 14 November 2008, the plaintiff reported right lower leg pain and it was noted he needed more analgesics.
175 On 28 November 2008, depression and sleep were noted to be better and the plaintiff had been helped by counselling. Abnormal liver function was noted. The plaintiff had been seen by an orthopaedic surgeon who was happy with progress.
176 On 8 December 2008, the plaintiff reported having slipped on ground at the beach and had right lower leg and foot pain and he was unable to weight bear.
177 On 10 December 2008, the plaintiff was able to walk without crutches.
178 On 15 December 2008, the plaintiff’s right leg was still painful and it was noted he was not yet ready for normal duties.
179 On 12 January 2009, it was noted the plaintiff’s right leg was better and he was going to start with light duties.
180 On 14 January 2009, the plaintiff reported he knocked his right lower leg. He was unable to work and was prescribed Tramadol.
181 On 4 February 2009, it was noted depression was unstable and the plaintiff had difficulty sleeping. He was prescribed Lexapro, Panadeine Forte and Tramadol.
182 On 3 March 2009, it was noted the plaintiff needed a repeat liver function test, his depression was stable and he was doing normal hours but in a different position from pre-injury duties. He was prescribed Lexapro, Panadeine Forte and Tramadol.
183 On 31 March 2009, it was noted the plaintiff had ongoing right lower leg pain and needed more analgesics.
184 On 8 July 2009, right lower leg pain was reported to be better. The plaintiff was able to walk as long as he wished. His right knee had gained full function and movement. There was no swelling or tenderness in the right lower leg.
185 On 8 July 2009, the plaintiff reported his right lower leg was better and he was able to walk as long as he wanted. His right knee had regained full function. There were complaints of neck pain in October 2009 and a CT scan undertaken that month was reported to be normal.
186 In May 2010, the plaintiff reported having been assaulted the previous week and aggravating his neck pain.
Overview
187 In these proceedings it is not disputed the plaintiff suffered a compensable injury in the incident, suffering a fracture of the right tibia and fibular.
188 I found the plaintiff to be an honest, truthful and credible witness who did not overstate the extent of his pain and disability and was prepared to acknowledge difficulties with his right leg prior to the incident.
189 In this case, where there is a pre-existing right leg condition, I must consider what the evidence discloses as to the plaintiff’s prior condition in this regard and determine whether the additional impairment resulting from the incident is serious and permanent.
190 In Petkovski v Galletti (supra) at 436, 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. … .”
191 The approach in Petkovski v Galletti was recently approved and followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60.
192 The plaintiff suffered a soft tissue injury to his right leg in the forklift incident in 1994 and a fracture of the right femur in the transport accident two years later.
193 There was no evidence of any ongoing problems relating to these injuries or the need for treatment after the plaintiff returned to work in 2001.
194 In 2006, the plaintiff experienced right knee pain for the first time, requiring arthroscopic surgery that year. His knee progressed quite well thereafter until further aggravations in late 2007, again leading to arthroscopic surgery, which took place in March 2008.
195 I accept that following this surgery, the plaintiff’s knee condition improved and that he no longer has significant problems. Save for an attendance in August 2008, the plaintiff did not require treatment for his knee after the post operative visit of March 2008.
196 Counsel for the defendant relied upon an examination by Mr Hooper in January 2008, eight months before the incident.
197 At that time, Mr Hooper noted the plaintiff could not squat or fully extend his right knee. He noted the plaintiff had not played football for two years, contrary to the plaintiff’s viva voce evidence, but did describe running every day and participating in a number of other physical pursuits.
198 Mr Hooper’s findings are of limited assistance as this examination pre-dates the March 2008 surgery. The plaintiff explained that the squatting problem then related to wearing a brace which he no longer wears, and the lesser problem squatting he now experiences relates to his shin injury from the incident.
199 The plaintiff was able to start a full time physical job with the defendant in April 2008 with no difficulty. By that time, he had resumed snowboarding, and significantly, he had commenced training for the 2008 season with Narre Warren. Also, as the plaintiff told Mr Hooper, he was running every day.
200 Accordingly, I accept that there was not an ongoing right knee disability of any significance at the time of the incident later that year.
201 Further, recent medico-legal examiners have found little in the way of ongoing right knee problems.
202 Whilst Mr Francis thought the plaintiff’s knee condition may well be contributing to the symptoms the plaintiff described, he noted in actual fact, examination of the knee showed an excellent range of movement, but with mild anterior laxity, possibly indicating anterior cruciate involvement. Mr Francis noted that condition in the past had not prevented the plaintiff playing various sports, including football.
203 Mr O’Brien noted the plaintiff told him of having regained good weight bearing function following his knee injury. In Mr O’Brien’s view, the plaintiff’s current problem appeared now to relate directly to the incident injury which obviously had an affect on the plaintiff’s employment prospects.
Consequences
204 In my view, the consequences of the plaintiff’s right leg injury suffered in the incident meet the statutory definition of seriousness and the impairment relating thereto is permanent, in the sense that it is likely to continue for the foreseeable future.
205 This is not a case where there is medical evidence that there are ongoing problems in terms of the fractures. Clearly, both fractures have united and are stable and there is little need for any further treatment, save for analgesia.
206 However, I accept that whilst there may have been satisfactory union, the plaintiff continues to suffer with pain and restriction in his right leg, of which he has regularly complained to his general practitioner and attended requesting analgesics.
207 Clearly, before the incident, the plaintiff was a man who loved playing Australian Rules football to a relatively high level in a district/country league. Despite problems with his knee in 2006, he was able to resume playing for Narre Warren in the last quarter of the 2007 season and played centre half forward in the premiership team. He was able to cope with playing football without any difficulty and in fact kicked four goals in the Grand Final.
208 I accept also that the plaintiff had been offered a further season with Narre Warren in 2008. His involvement in the club in that year was put off by the knee surgery in March but thereafter, I accept he had resumed training when he suffered injury in the incident.
209 I am satisfied that had the plaintiff not injured his right leg in the incident he would have resumed playing football, and continued to do so for a number of years.
210 Further, following the right arthroscopic surgery in 2006 and 2008, the plaintiff was able to resume vigorous activity such as snowboarding and had in fact gone snowboarding at Mount Buller with friends a couple of days before the incident. He had also resumed running daily in early 2008.
211 I accept that since the incident, the plaintiff’s ability to engage in a wide range of physical pursuits, particularly those of a strenuous nature, has been significantly impaired.
212 In addition to football, the plaintiff has been unable to engage in snowboarding since the incident and his ability to do any rock climbing is significantly limited.
213 The plaintiff’s level of pain and restriction is such that, whilst he might be able to participate in activities such as snowboarding on a very limited basis, it is not worth the pain and swelling that he experiences and the incapacity for the following days, to engage in such activities even on a limited basis.
214 Whilst the plaintiff had some restriction on his work capacity following the transport accident with the significant injury to his left elbow and consequences in relation to lifting, at the time of the incident he was able to perform unrestricted heavy manual work, which is no longer the case.
215 In particular, the plaintiff has problems with squatting, climbing up and down stairs and staying on his feet for a prolonged period. The latter problem was noted by his general practitioner in a note of 10 November 2008.
216 There are notes of numerous attendances on the general practitioner in relation to right leg pain following the incident and also after the removal of the metalware.
217 I accept that despite the metalware being removed last year, the plaintiff continues to suffer constant right leg pain of varying degrees, even at rest. His pain level is increased by any activity or impact.
218 Whilst his need for medication is not great, the plaintiff still requires Panadeine Forte, which is prescribed, and over-the-counter medication at other times. The plaintiff also has considerable problems getting to sleep because of difficulties getting comfortable due to his right leg pain.
219 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
220 I accept that the plaintiff has battled on to some extent with his employment following the incident and, as such, should not be regarded less favourably than someone who has not got on with his life.
221 As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260, at paragraph [4] that he suspected –
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
222 As the plaintiff’s symptoms have persisted for nearly four years since the incident and have not been significantly lessened by the removal of the metalware, I am satisfied that his right leg impairment is permanent.
223 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in relation to the injury to his right leg suffered in the incident.
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