Daniels v Knoxbrooke Incorporated
[2014] VCC 1715
•23 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04216
| DIANNE DANIELS | Plaintiff |
| v | |
| KNOXBROOKE INCORPORATED | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 October 2014 | |
DATE OF JUDGMENT: | 23 October 2014 | |
CASE MAY BE CITED AS: | Daniels v Knoxbrooke Incorporated | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1715 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left foot and ankle – pain and suffering consequences only – intervention and disentanglement of other injuries and disorders – whether consequences related to compensable injury “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave to the plaintiff to bring proceedings for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Adviceline Injury Lawyers |
| For the Defendant | Mr S Smith | IDP Lawyers Pty Ltd |
HIS HONOUR:
Preliminary
1 Over the years leading up to 2009, the plaintiff suffered problems, including pain, to her left forefoot[1] and attended her doctor on a number of occasions. On 9 June 2009, she tripped over a brick paver on a pathway at her work premises, rolled her left ankle inwards and fell to the ground (“the subject incident”). As a result of that injury, she underwent significant surgery to the left foot and ankle and suffered a range of consequences as a result. Subsequently, in December 2010, she suffered further injury to the left foot when a person fell backwards onto that foot (“the 2010 incident”). This caused further symptoms, including to the area of the forefoot. The plaintiff claims a range of consequences, including ongoing pain in the ankle and foot, and restriction of a range of employment, recreational, social, sporting and domestic activities.
[1][1] By use of the word “forefoot”, I refer to that area towards the top part of the foot, including the toes and the ball of the foot, the distal, middle and proximal phalanges, and the metatarsal areas, but not including the side or mid part of the foot, nor arch area.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 9 June 2009. The body function said to be lost or impaired is the left lower limb. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff, and her treating orthopaedic surgeon, Mr Otis Wang, were the only witnesses called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, various medical and radiological reports and clinical notes were tendered into evidence. I shall not refer to all of that material in the course of this judgment but, rather, those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act, which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
4 The plaintiff is now sixty-seven years of age, is married with two adult children and four grandchildren. She completed Year 10 at secondary school and then undertook a range of employment including clerical, retail and as a teacher at a TAFE college. She commenced work with the defendant in 1997 and became a permanent employee in 2000. Her work involved looking after clients of the defendant with special needs, and included cooking and cleaning for those clients, and caring for them overnight at the defendant’s premises.
5 The plaintiff has a significant medical history, including various strain injuries to her back and knees. In 2002, she was referred to an orthopaedic surgeon, Mr Paul Burns, after an incident where a client stood on the second toe of her left forefoot. She had surgery to the toe in April 2003. An x-ray taken at the time[2] showed a hallux valgus (bunion) formation on the great toe of the left foot with mild degenerative disease at the first metatarsal phalangeal (“MTP”) joint. After the surgery, the plaintiff returned to her full-time work. According to her affidavit, she made no WorkCover claim in relation to this incident.
[2]Defendant’s Court Book (“DCB”) 25
6 According to the clinical notes of her general practitioner, in February 2004, the plaintiff said that since the operation to her foot, her eating had increased and she was concerned about her diet and exercise.
7 The plaintiff suffered ongoing problems with her left foot and a further x-ray of 16 April 2005[3] showed mild degenerative changes at the same joint and the second MTP joint.
[3]DCB 26
8 In February 2007, the plaintiff complained of a painful left forefoot over several months and her general practitioner injected the region with steroid. This provided short-term relief, but the pain recurred in May 2007 and she was treated with anti-inflammatory medication.[4]
[4]Report of Dr Bluff, Plaintiff’s Court Book (“PCB”) 68–69
9 On 29 May 2008, the plaintiff tripped at work, injuring her left foot and ankle. The injury was diagnosed as a sprain and on this occasion, according to the report of her general practitioner, Dr Bluff,[5] she also complained of a history of problems with the left foot as a result of various sporting injuries.
[5]PCB 69
10 Shortly prior to this, in November 2007, the plaintiff injured her left hip in the course of her employment. She was referred to an orthopaedic hip surgeon, Mr Sam Patten, who performed a right hip arthroscopy. Following this surgery, the plaintiff complained of ongoing mild symptoms in the left hip which, by February 2010, Mr Patten described as “clearly defined features of displaced dysfunction”.
11 Despite this, the plaintiff returned to full-time work, having had six weeks off following the hip surgery. She had further surgery to the hip in March 2013.
12 According to the plaintiff’s affidavit, symptoms as a result of the incident of May 2008, and her hip symptoms subsided and did not prevent her returning to her normal work duties and a range of recreational and sporting activities.
13 Prior to the subject incident, and according to her affidavit,[6] the plaintiff claims she was very active, in particular over the period from 2008 until June 2009. This included kicking a football around the park with her youngest grandson, dancing, including running a dance for the clients of her employer, and dancing at social functions. She wore short-heeled shoes after 2008 and was able to drive a manual car without difficulty. She was able to undertake all of her domestic duties and housework, mow the lawns and had planned to retire when she was sixty-six; that is in 2012.[7] The plaintiff said that it was her intention for herself and her husband to travel overseas and within Australia after their retirement.
[6]PCB 27–28
[7]See, however, the clinical notes of the general practitioner of 8 December 2011 – “planning to retire at 65 years – this month” – DCB 74
The subject incident and its consequences
14 On 9 June 2009, the plaintiff was walking around the outside of premises where the defendant conducted its business. She was pursuing a client and tripped over a brick paver, which she said had become loosened because of nearby tree roots. She rolled her left foot inwards and felt shooting pain up the leg to her knee.
15 She went to her local general practice and it was noted the ankle was tender and swollen.[8] An x-ray showed soft-tissue swelling around the ankle, together with tendonitis at the insertion of the tibialis posterior tendon.[9]
[8]PCB 68
[9]PCB 38
16 The plaintiff was referred by her general practitioner to Mr Paul Burns, orthopaedic surgeon, in July 2009, who noted on examination, both ankles to be thickened and swollen, with tenderness over the left ankle and middle part of the foot. He arranged an MRI scan,[10] which showed “high grade bony stress response or bone bruising in the navicular and inferior aspect of the talus”. There was further mild degeneration of the talonavicular joint and moderate arthritis at the base of the second toe. Mr Burns thought there was bone bruising and possible chondral damage to the ankle joint as a result of the subject incident. He referred the plaintiff for physiotherapy and recommended she wear a “CAM walker” (a supportive boot). He reviewed the plaintiff in October 2009 and she continued to complain of pain in the mid-foot and ankle. He recommended hydrotherapy, and noted the plaintiff at that point was working part-time. He said bone bruising, as disclosed in the MRI scan, was regularly associated with trauma.
[10]PCB 39
17 Subsequently, the pain in the plaintiff’s knee resolved, but the pain and swelling in her left ankle and mid-foot continued.
18 In February 2010, the plaintiff returned to see Mr Sam Patten, who had treated her for the problems with her hip. Her main problems were then with the left foot and, on examination, he determined the plaintiff was suffering from a tibialis posterior dysfunction. He arranged an MRI scan of her left ankle in February 2010,[11] which concluded:
“… insufficiency of the spring ligament and tibialis posterior tendon changes consistent with old partial tears at the insertion, associated with what appears to be secondary oedema through the neck and head of the talus. The findings are very similar to those demonstrated on the MRI of 07/09.”
[11]PCB 41
19 Mr Patten referred the plaintiff to an orthopaedic surgeon specialising in foot injuries, Mr Otis Wang, whom she saw in February or March 2010. Mr Wang examined the plaintiff, and recommended surgery, which took place on 24 March 2010. The surgery, although described as “soft-tissue” surgery, was complex, and involved a significant operative procedure. Mr Wang transposed the tibialis posterior tendon because of the collapse of the arch of the left foot. Further, Mr Wang undertook a realignment of the plaintiff’s left heel which involved the insertion of a stabilising screw.[12] The operative procedure is described in detail in Mr Wang’s operation record.[13]
[12]See Exhibit B – x-ray
[13]PCB 49
20 Mr Patten continued to consult and treat the plaintiff until October 2011, although there was no further operative intervention. His treatment is reflected in various reports to the general practitioner.[14] In July 2010, he noted the plaintiff was progressing steadily with physiotherapy and had an excellent range of movement of the ankle. At that time, he was happy for her to return to work on a graduated basis.
[14]PCB 50–58
21 The plaintiff remained under the care of her general practitioner, Dr Bluff, who prescribed various medications. By August 2010, according to his clinical notes, the ankle was “much better”, although there was still swelling. The clinical note of 5 August 2010 reads:
“Really, all is going well at last – rtw [return to work] plan signed off.”[15]
[15]DCB 81
22 On 3 November 2010, Dr Bluff’s clinical notes record:
“Re left ankle/foot – still swells every day. Wishes to try some vibratory device, continuing with physio and hydro. At work – doing SL reduced hours and not driving the bus.”[16]
[16]DCB 81
23 According to a physiotherapy report of Mr Purushothaman, said to have been written in 2010, he noted that with treatment, the plaintiff had:
·“minimum pain in foot during walking;
·able to return to work and work three full days and two half days;
·walk with no pain for one hour;
·decreased swelling;
·increased range of movement.”[17]
[17]PCB 66
24 Mr Purushothaman said that he considered the plaintiff’s symptoms had stabilised, although it would be difficult for her to cope with increased demands upon her body after working.[18]
[18]PCB 66
25 In evidence, Mr Wang confirmed that by the time he saw the plaintiff in July 2011, surgery had been relatively successful, although noted she still suffered “minimal pain” which was alleviated with ice and analgesia.
26 In December 2010 at Daylesford, the plaintiff suffered a further injury to her left foot. She was sitting at a restaurant on New Year’s Eve when a large gentleman fell backwards onto her foot.
27 As a result of this incident, there was a significant change to the plaintiff’s symptoms. According to the reports of Mr Wang, and his evidence, up to that point, the plaintiff had been making steady progress in recovering from the surgery of March 2010. She had not complained to him, nor, according to the clinical notes of Dr Bluff, to that practitioner of problems around the area of the left forefoot. From early 2011, she complained to Mr Wang:
“She has had quite a lot of pain in the mid-foot area along the balls of her foot. … Clinically, she is quite tender along the second and third MTPJ’s and along the balls of her foot corresponding metatarsal heads … I do think she does have an element of transferred metatarsalgia and synovitis in those joints and I have asked her to modify her orthotics with a metatarsal dome insole. In addition, she is to have an ultrasound and injection of the affected areas.”[19]
[19]PCB 54
28 Mr Wang referred the plaintiff for an ultrasound of the left ankle and foot which confirmed chronic degeneration “… of the second plantar plate results in a full thickness full width tear with instability and flexor tenosynovitis” in the forefoot area.[20] The report of the ankle also noted:
“Mild insertional tendinosis of tibialis posterior and flexor digitorum longus at the level of the insertion.”[21]
[20]PCB 44
[21]PCB 44
29 In his further reports of March through to October 2011, Mr Wang referred to chronic degeneration of the forefoot. He suggested that the ankle surgery of March 2010 had been largely successful, with some ongoing mild pain. He considered the plaintiff’s forefoot to be the main source of symptoms. He said:
“I think clinically, this is largely stable and functionally not the main problem. Her forefoot seems to be the issue and with all that has occurred from her injury that has exacerbated the transfer metatarsalgia with hallux valgus and second MTPJ pathology.”[22]
[22]PCB 55
30 The symptoms in her forefoot continued to deteriorate, despite injections and orthotics.
31 As well as treatment by Mr Wang, the plaintiff has remained under the care of Dr Bluff. According to his clinical notes,[23] there is reference to pain and limitation in her forefoot, but also to pain and swelling of the ankle.[24]
[23]Up until April 2013, DCB 68–80
[24]See entry in clinical notes: 18 August 2011, 15 September 2011, 8 December 2011, 19 March 2012, 21 May 2012, 23 October 2012, 13 November 2012, 13 December 2012, 7 January 2013 and 28 March 2013
32 In the plaintiff’s first affidavit, sworn 2 April 2013, she described the pain:
“The pain is mostly across the front of the foot and up the side of the foot.”[25]
[25]PCB 26
33 In the course of cross-examination, the plaintiff was questioned extensively about the site of the pain and when the pain in the forefoot came on. At the present time, she described the pain around the area of the ankle at the rear of the foot, and along the inside of the foot in the instep area.[26] She said that the main source of the pain over recent years had been around the ankle and the instep area.
[26]See answers to questions in re-examination, T55
34 Up until September 2011, the plaintiff had remained in employment with the defendant on modified duties. According to a letter of 29 July 2011,[27] as the plaintiff was unable to perform her normal duties, there was no employment available to her. She was terminated from the defendant’s employment effective September 2011 and has not worked since.
[27]PCB 32
35 According to the plaintiff’s affidavits, she has suffered a range of consequences as a result of the left foot injury arising out of the subject incident. She claims to have pain all the time in the area of her left foot around the ankle and the instep. She has difficulty going up and down stairs, which causes her to limp from time to time. She has cramps in the ball of the foot at night. She can walk for 20 to 30 minutes on level ground without suffering too much pain, but struggles beyond that. She has had a number of cortisone injections to the foot which have not provided any extended relief. She regularly sits with her foot elevated, which was the position it was in when the person fell onto her foot in the 2010 incident. She is no longer able to kick a football around with her grandson (although she acknowledged it was unlikely she would still be doing that at the present time). She has been unable to return to dancing and has put on weight since the incident.[28] She is unable to wear the same shoes as before and generally wears orthotic shoes. She cannot drive a manual car. One of her duties in her work with the defendant was to drive a manual bus. Despite attempting to continue to drive the bus, she was unable to do so, although is able to drive an automatic bus, and has an automatic private vehicle. She is no longer able to mow the lawns and is restricted in her domestic duties. She says that in 2012, she and her husband bought a smaller house, in part because, with her foot problems, she found it difficult to maintain the bigger house. However, according to the notes of her general practitioner, the reason for this was, in part, because of her husband’s cardiac condition. She says that she is unable to travel, as she and her husband had planned, and was distressed at being terminated, rather than retiring from her employment in the usual way.
[28]It is noted in the general practitioner’s notes that the plaintiff had difficulties with weight and lack of exercise in approximately 2003
36 The plaintiff currently takes over-the-counter medication on a regular basis and has self-funded physiotherapy each month. She has purchased a TENS machine, which she says she uses most days. Generally, she is far less active now than before and has been unable to play sport or participate in sport with her grandchildren.
The credibility of the Plaintiff
37 I did not find the plaintiff a particularly satisfactory witness. Her evidence as to when the pain in her forefoot came on was quite contradictory.[29] I did not take her to be untruthful in that regard, but rather found her evidence unreliable.
[29]See T20, T22, T30
38 I was unimpressed with other aspects of the plaintiff’s evidence in the course of cross-examination. Despite the reports of Mr Wang, and the clinical notes of the general practitioner, it was clear that the 2010 incident created significant and new symptoms in her forefoot. She denied this in cross-examination.[30] Further, her evidence about pre‑existing problems with her weight[31] was unimpressive and the evidence that she was playing netball in the period before 2009,[32] despite telling Mr Schutz, the defendant’s consulting surgeon, that she had not played competitive sport since 2006.[33]
[30]T30
[31]T40–41
[32]T38–39
[33]DCB 2
39 In the course of her cross-examination, the plaintiff was not particularly responsive to questions put to her, and I formed the view that her answers were directed to emphasise the subject incident, without concessions about the other problems with her foot which had arisen from the 2010 incident.
40 Despite these reservations, I did not consider the plaintiff as being so untruthful that I reject the substance of her evidence as to the consequences of the subject incident. Rather, I should, where possible, seek confirmation from objective sources such as the clinical notes, or reports of practitioners, as to her complaints of pain and restriction.
Medical opinions
41 I did not find the reports of Mr Doig, Mr Schutz or Dr Bowles of any great assistance. None of those practitioners differentiated between the symptoms which arose in the subject incident with those of the 2010 incident. The clinical notes and reports of the treating general practitioner, Dr Bluff, are of assistance in mapping the plaintiff’s complaints and progress over the years, although it is no easy matter to determine the extent to which her current presenting symptoms were related to the subject incident.[34]
[34]PCB 71
42 I found the plaintiff’s treating orthopaedic surgeon, Mr Wang, an impressive witness. He gave a detailed description of the pathology which arose directly resulting from the subject incident, and described the significance of the surgery he carried out in March 2010. Initially, when he saw the plaintiff, she was complaining of pain around the medial (inside) part of the arch of the left foot, together with ankle pain. His description of the surgery performed clearly indicates that it was a very significant procedure involving not only the transposition of a tendon into the arch area of the foot, but major realignment of the heel. He confirmed that, generally speaking, the surgery was successful, although the plaintiff was left with persisting symptoms, in particular, in the ankle area. Various parts of his evidence is extracted as follows:
“… Everything is going to be in terms of relative improvement so – you know, when she first presented to me, severe symptoms. After surgery, reasonable recovery. You know reasonable equals much improvement but does not necessarily mean perfect foot … Reasonable function, walking a good distance, but not necessarily running around town. However she has had a subsequent injury and I think that is, you know, well documented and – you know, one could say that she’s had a major surgery to her ankle and, you know, this has been redamaged so to speak with this – subsequent injury but the effect of it is that, you know, she has had a recurrence of pain … What is attributable to this new injury versus what is pre-existing – and did that put her more at risk of re-injury because of this fall. In another way, if you don’t have the surgery and she had a fall – someone fell on her foot, how much is that attributable? I think that on balance of her symptoms and her surgery she’s had – it’s major surgery. Her foot is not a normal foot. Yes, she’s achieved some good function and improvement and a better quality of life, but I think her foot – if you asked me whether it was a normal foot compared to an unoperated foot – clearly it wouldn’t be, but I do also acknowledge that, you know, with the new injury this has exacerbated the previously operated area. … So we know that – you know, every operation also has a small failure rate but having said that, you know she – if you look at her imaging even prior to her operation, she does have some evidence of some degeneration in the mid-foot and with an altered biomechanics major surgery, this is one of the long-term risks, and one of the things we do when we consult patients is that you’ve had the surgery, you’ll get improvement, but there is always a risk of – even in the absence of injury – degeneration of the joints and the salvage operation would be, you know, fusions and that – in that setting.”[35]
[35]T71–74
43 Further:
“I think to define that variable was difficult but what we do know on the flip side is that injury was well documented to the forefoot, it was operated on and she had a re-injury and the mid-foot is now sore again. So whilst I cannot define which element is pre-existing from the surgery, the natural history of the surgery versus the re-injury, it is likely there is a combination of both.”[36]
[36]T75
44 Further:
“You know, all these – it’s true, she’s had a pre-existing forefoot problem. Someone has fallen on her foot, her forefoot problem has flared up. I suppose the – what needs to be ascertained is whether or not her mid-foot injury had anything to do with the exacerbation of her forefoot. Biomechanically is the – by doing the surgery does it change her biomechanics so that her forefoot loading is different? Often if you have that ankle hind foot problem – for instance, a stiffened ankle or a slightly tighter Achilles, it will increase loading in the forefoot. So, I mean, it is a complex relationship and it is somewhat inter-related. To try and compartmentalise and say, well, forefoot issue, injury to the forefoot, nothing to do with the mid-foot – I think that’s going to be difficult to, you know, separate. You know she’s had a mid-foot significant injury, she’s had surgery to the mid-foot, it does change the – you know, the whole anatomy is changed.”[37]
[37]T81–82
45 Further:
“Well, once again to be clear, I don’t think it can be completely attributed to that incident [the 2010 incident]. She’s had pre-existing forefoot problems. In the meantime she’s had mid-foot surgery, significant changes of alignment and then she’s had an exacerbation of the forefoot. That’s all I can comment on. Whether or not – I don’t think it’s purely because of the incident with the man falling on her foot that she has … what would be fair is if for instance you take the incident out of the equation where the man fell on her foot, I think it’s probably likely she’d still have fluctuations in her forefoot symptoms.”[38]
[38]T88
46 Further:
“I think what is fair is that with mid-foot insult, it would have put her more at risk of forefoot problems. So say her forefoot was normal and she had mid-foot surgery, I mean what it does is it supports the arch but it changes the biomechanics, naturally the suppleness of the mid-foot is not normal. Yes, there is improvement of symptoms but it’s not normal anatomy. So, in the absence of even pre-existing problems, someone who has a tib post reconstruction is more at risk of getting a forefoot problem. … Now, it is almost impossible to say, well, it was purely because of a gentleman falling on her foot that’s ignored the mid-foot surgery. I think they are all inter-related. But on the other side, you know, someone who has had that mid-foot surgery, taking everything else out of the equation, has changed biomechanics and therefore the loading patterns are different and so therefore, you know, in that situation, taking all the other layers out, just looking at the surgery itself – you know, one would expect changes of biomechanics and therefore more risk of abnormal loading patterns.”[39]
[39]T89–90
47 Mr Wang said there were a range of issues responsible for the problems in the plaintiff’s forefoot, including the pre-existing degeneration, the substantial surgery performed by him in March 2010, and the 2010 incident. He said it was very difficult to apportion responsibility for the forefoot problems to that condition, surgery and incident.[40]
[40]T92
48 In re-examination, Mr Wang was asked the following:
Q:“Would you consider, taking all of what you know into account, that this [the subject incident and consequent surgery] is still contributing to her current presentation?---
A:Oh, no doubt. I mean, you know, she still has a problem in the region that has been operated on and yes, she’s had a fall, but trying to delineate whether the fall is related or unrelated – but the truth of the matter is if she’s saying she still has symptoms in the mid part of her foot correlated to the surgery, unfortunately, she has persisting symptoms and that relates to her original insult injury at work.”[41]
[41]T101
Conclusions as to the consequences arising from the 2010 incident
49 I am satisfied that, at Daylesford in December 2010, the plaintiff suffered a further assault upon her left foot. It is difficult to be precise as to the nature of the damage suffered but I am satisfied the plaintiff suffered injury to the forefoot in the nature of an aggravation of underlying degenerative problems in the toe or ball of the forefoot. She had originally had problems in this area from 2002, including the diagnosis of a hallux valgus, or bunion, in her left big toe. She had not complained of symptoms in this area in the period between the subject incident and December 2010. I am satisfied that she has suffered symptoms in that area from December 2010 to the present time.
50 I am further satisfied from the evidence of Mr Wang that the subject incident and related surgery created an alteration of the biomechanics of the left foot, such as to make it more susceptible to damage in the forefoot area. I accept his assessment that the subject incident was a contributing factor, along with the pre-existing degenerative problem in the forefoot, and the 2010 incident, to the development of significant symptoms in the plaintiff’s left forefoot in early 2011.
51 The onus is upon the plaintiff to establish, on balance, that the subject incident was causative of serious consequences. I accept that the alteration in the biomechanics of the foot, predisposing it to further injury, is a consequence of itself. However, given the plaintiff had not been troubled by symptoms in the forefoot for a considerable period before the December 2010 incident, and that subsequently, those symptoms became a significant part of her presenting complaints to doctors, that the bulk of responsibility for those symptoms lies with the 2010 incident. In accordance with the principles established in Peak Engineering Pty Ltd v McKenzie,[42] specific consequences must be proven to be related to a compensable injury. In the scheme of the various incidents giving rise to pathology and symptoms throughout the plaintiff’s left foot, the symptoms to the plaintiff’s forefoot which can be attributed to the subject incident are not particularly significant.
[42][2014] VSCA 67
52 As a consequence, I should set aside from my assessment those symptoms from which the plaintiff has suffered to her forefoot, as are set forth in the clinical notes of the general practitioner, and the evidence of Mr Wang, which arose after the 2010 incident, save that I accept that as a result of the subject incident and related surgery, the plaintiff’s forefoot was left more vulnerable to further injury.
Conclusions as to the consequences arising from the subject incident
53 I am satisfied the plaintiff suffered a significant eversion injury to her left foot and ankle in the subject incident. She required immediate medical treatment, the prescription of medication, physiotherapy and hydrotherapy. The injury led to major surgery undertaken by Mr Wang which had two components. The first was a tendon transfer in the area of the plaintiff’s instep, or medial side of the foot, and the second was a heel realignment. The plaintiff had a considerable period away from work as a result of the injury and surgery, although resumed employment on modified duties until her termination in September 2011. The pathology caused by this injury was different to the various problems the plaintiff had, in particular with her forefoot, over the years from 2002. It represented a new and distinct injury.
54 I am satisfied from the evidence of the plaintiff, and the evidence of the treating general practitioner and orthopaedic surgeon, that the plaintiff has suffered the following consequences as a result of the injury:
(1)I am satisfied that as a result of the subject incident and the consequent surgery, the plaintiff has suffered ongoing pain in the area of her heel and mid-foot or instep. I accept that the surgery of March 2010 was generally successful in that it enabled the plaintiff to recover, to some degree, her capacity to walk, although accept that she still suffers restrictions in that regard. After the incident of December 2010, the plaintiff suffered pain in the forefoot, and some pain in the centre of the foot which was related to that incident. Nonetheless, the pain that I am satisfied she has suffered arising from the 2009 incident, still, at the present time to the ankle and mid-foot, requires over-the-counter analgesia, regular attendance at her general practitioner, and self-funded physiotherapy sessions. I am satisfied that the ankle swells from time-to-time, as was noted in the clinical records of the general practitioner, and the pain has increased, in particular, in cold weather. The problems with her ankle have required the plaintiff to wear orthotic shoes, and I am satisfied she is not able to wear shoes with heels in the same manner as before the incident.
(2)I am satisfied the plaintiff still suffers difficulty walking on uneven or inclined surfaces and that, even on flat surfaces, she is restricted in the distance she is able to walk.
(3)As a result of the subject incident and surgery, her mid-foot and forefoot became more susceptible to the further injury as occurred to those areas in the 2010 incident.
(4)There has been a significant reduction in the plaintiff’s recreational activities. Whilst she was not involved in sporting activities on a regular basis, nonetheless I accept that she has been significantly restricted in dancing, which was a source of enjoyment, and is unable to involve herself playing with her grandchildren in the same unrestricted manner as before 2009.
(5)There is evidence of some degeneration in the nature of tendinosis of the tendons in the mid-foot area from the ultrasound of February 2011. This is at the operated site.
(6)I am satisfied that the plaintiff has had a significant reduction in her domestic and household duties, including mowing the lawn, driving a manual car and some of the heavier domestic duties.
(7)I am satisfied that the plaintiff was terminated from her employment, effective September 2011, as she was unable to undertake the various work duties as required. Although she was to retire in any event, either at sixty-six or sixty-seven years of age, I accept the loss of her employment, and the manner of its termination, was a matter of some consequence to her.
55 Mr Smith, for the defendant, argued that because of the problem in the forefoot, arising from the December 2010 incident, many if not all of these sporting, recreational and domestic activities would have been lost to her in any event. He argued that the situation was no different where, for example, a person was an active sportsman until a year or two before a compensable injury but was forced to retire from sport for reasons unrelated to that injury.
56 However, I respectfully disagree with this submission. In Dressing v Porter & Anor,[43] Ashley JA said:
“In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”[44]
[43][2006] VSCA 215
[44]Paragraph 47
57 In Acir v Frosster Pty Ltd,[45] Forrest J, in assessing the effect of earning capacity for the purposes of s134AB(38)(f), a supervening event, in that case, the plaintiff’s cirrhotic liver condition, ought not to be taken into account. His Honour set forth various reasons[46] for that conclusion. He considered it was a matter for the assessment of damages at trial to determine the extent to which a plaintiff ought to be compensated for loss of earning capacity where there was a supervening event. Although Acir was concerned with pecuniary loss damages and not “pain and suffering” as in the present case, in my view, the principles nonetheless apply. Once it is established that a compensable injury has certain consequences which meet the “very considerable” level, it is not to the point that there is a supervening event which would have, in any event, affected the plaintiff’s capacity to enjoy a range of domestic, recreational and social activities. It will be a matter, ultimately, for trial to determine the extent to which any damages to which the plaintiff is entitled, as a result of subject injury, ought to be reduced for the intervention of some other event.
[45][2009] VSC 454
[46]Paragraphs 170–179
58 Weighing on the one hand the various consequences of the subject injury referred to above, and considering the impact of those consequences upon the plaintiff’s life, I am satisfied the consequences achieve the “very considerable” level as the Act requires. In these circumstances, I shall grant leave to the plaintiff to bring proceedings, with consequent orders as to costs.
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