Dobbyn v De Francesco
[2015] VCC 1400
•13 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for publication |
SERIOUS INJURY LIST
Case No. CI-14-01598
| PAUL DOBBYN | Plaintiff |
| v | |
| PHILIP PAUL DE FRANCESCO (trading as De Francesco Bricklaying) (ABN 5175 080 4757) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 & 21 August 2015 | |
DATE OF JUDGMENT: | 13 October 2015 | |
CASE MAY BE CITED AS: | Dobbyn v De Francesco & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1400 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left lower limb, being left ankle – pre-existing condition of right hip – disentanglement – whether consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b); s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the work accident suffered by the plaintiff on 12 May 2010 during the course of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Andrew Ingram | Slater & Gordon |
| For the Defendants | Mr Clyde Miles | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant on 12 May 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the left lower limb being a left ankle injury.
6
The plaintiff relied upon three affidavits; two were sworn by the plaintiff on
29 January 2013 and 17 August 2015, and an additional affidavit was sworn by the plaintiff’s wife. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The founding principles of law regarding serious injury applications are discussed in the many well-known case authorities. I will refer to case authorities as needed, only to further clarify a particular finding.
The issues
8 Counsel for the defendants informed the Court that there were two issues:
(a) First, this is a “range case”, that is, the consequences of the left foot injury do not meet the test for seriousness for pain and suffering, in that the consequences could not be considered “as being more than significant or marked” and as being “at least very considerable” when compared to other cases in the range.
(b) Second, there was an issue of disentanglement: namely the plaintiff suffered a pre-existing right hip condition and the consequences of that hip injury must be disentangled from the consequences of the left foot injury.
Credit of the Plaintiff
9 There was no challenge to the plaintiff’s credit. The plaintiff was forthright and frank in giving evidence, and he made concessions.
10 There was no challenge to the affidavit of the plaintiff’s wife. She referred to the effects of the plaintiff’s injury upon his lifestyle as she had observed the plaintiff. Her evidence was closely aligned to the plaintiffs, although independent.
11 The defendants included video surveillance of the plaintiff in the index to his Court Book. No video surveillance was shown. Nor was its absence explained. I infer that the surveillance did not assist the defendants’ case.
12 Given the above, I accept the plaintiff was a credible witness.
Analysis of the evidence
13 It was not in issue that the plaintiff suffered an injury at work on or about 12 May 2010. All of the medical witnesses accepted that the plaintiff suffered a left ankle/foot injury at work.
14 Mr Benjamin Miller, treating orthopaedic surgeon, confirmed that as a result of the plaintiff’s work injury, he suffered a dislocation of the peroneal tendons of the left ankle with a longitudinal split in the tendon of the peroneus brevis.
15 Mr B Miller last reviewed the plaintiff in March 2011. His prognosis was that there would be slow improvement in pain, but the plaintiff would suffer some ongoing pain and limitation. He was unable to say whether the plaintiff would be able to return to manual work.
16 In June 2015, Dr David Allen, general practitioner, reported that he treated the plaintiff. Although Dr Allen provided a medical report, I place less weight upon it as the general practitioner records show the plaintiff only referred to his left ankle injury on two occasions in 2015. The plaintiff’s evidence was that he primarily consulted his general practitioner to obtain heart medication.
17
The most up-to-date medical evidence was that of orthopaedic surgeons,
Mr Russell Miller[1] and Mr Ian Jones,[2] both medico-legal surgeons.
[1]10 August 2015
[2]16 July 2015
18 Mr Miller said the plaintiff had significant ongoing symptoms in the hindfoot which are likely due to chondropathology and low-grade tenosynovitis. He said the prognosis for the left ankle and hindfoot is only fair.
19 Mr Jones said the plaintiff had been left with a stiff, painful left ankle and subtalar joint, with paraesthesia involving the skin of the outer side of his ankle.
20 Accordingly, I accept that as a result of the work injury, the plaintiff suffered an injury to his left ankle and foot which is supported by the current medical evidence.
Pre-existing condition – the right hip
21 The plaintiff’s evidence was that in 2005 he consulted Mr Russell Miller in respect to his right hip. At that time he walked with an intermittent limp, due to ache and discomfort in the right buttock, groin and thigh.
22 In 2008, the plaintiff was referred to Mr Robert Wood, orthopaedic surgeon, who performed an arthroscopic debridement on his right hip. In December 2008, the plaintiff reported to Mr Wood significant improvement as a result of the surgery. Mr Wood advised the plaintiff that it takes time to recover from a hip arthroscopic debridement.
23 The plaintiff agreed that at the time of, and subsequent to, the hip surgery, he could only take one stair at a time. He had difficulty standing on the right leg for dressing, had difficulty getting out of a chair and a car and had problems sleeping.
24 The plaintiff received occasional physiotherapy with Mr Peter Biskup between May 2009 and February 2010.
25 Mr Biskup noted that by October 2009, the plaintiff reported considerable improvement of the right hip condition, although he had recently taken up farm labouring work which had exacerbated the right hip region. The physiotherapist’s records confirm the plaintiff had ceased physiotherapy treatment at the time he reported and received treatment for his left ankle. When the plaintiff commenced work with the first defendant, he considered himself to be in good health.[3]
[3]PCB 16 at paragraph [24]
26 The plaintiff’s evidence is that currently, he had some symptoms in his right hip from time to time, but his right hip does not affect him in the same way as his ankle. He said, of the right hip, “basically it’s an ongoing, small problem, compared to my left ankle”.[4] The plaintiff reported to a number of medical witnesses that he had a pre-existing right hip condition which was not work related.
[4]T18, L13-14
27 It was accepted that the consequences of the right hip must be disentangled from the consequences of the left ankle.
28 The medical evidence relating to the right hip was expressed by Mr Miller and Mr Jones. Mr Brearley was aware of the right hip but expressed no view.
29 In August 2015, Mr Miller said the plaintiff’s major problem is his left ankle. He was aware that the plaintiff’s complaint of right hip symptoms (namely ache, discomfort and intermittent pain) pre-dated the ankle injury. Mr Miller said the right hip symptoms are relatively stable, but his prognosis for the hip is only fair. In his view, the right hip symptoms are, to a minor extent, influenced by the plaintiff’s chronic limping, which relates to the left hindfoot symptoms.
30 Mr Jones said the right hip condition did not bear any relationship to the plaintiff’s left ankle injury. Mr Jones did not believe the limp in the plaintiff’s left leg has caused or aggravated his markedly arthritic right hip. The plaintiff reported minimal symptoms of hip discomfort. Mr Jones said that clinically, the plaintiff had a mild restriction of hip movement.
31 The plaintiff’s evidence was that until 2015 he had not mentioned to his general practitioner hip or ankle pain. Rather, he attended his general practitioner for other conditions. The plaintiff sought medical advice from his general practitioner in respect to his right hip as it became symptomatic, since he favours his left ankle and is placing more weight on his right side.
32 Counsel for the defendants submitted that the plaintiff had limped all his life. The plaintiff’s evidence was that as a child, he had a funny gait, which meant he did not lift his feet. The plaintiff said the gait he had as a child is quite different to the limp he has now. He agreed that he limped intermittently prior to the right hip surgery.
33 The plaintiff’s evidence was that he was pleased that he had the hip surgery. After the hip procedure, the plaintiff’s evidence was that he was able to resume walking distances. He was unrestricted in performing any activity he was required to perform on his 10-acre property. He had no difficulty mowing lawns on the property. After the recovery period, he no longer required Endone medication. His sleep improved and he was no longer interrupted by hip pain. He has not needed to use Nurofen gel on his hip.
34 The plaintiff resumed playing golf, every couple of months or six weeks, depending on the season or time of year. He recalled playing one or two games of cricket,[5] with a view to eventually returning to regular competition cricket. He returned to fishing in the King Valley and camping.
[5]T60, L16
35 The plaintiff’s evidence is that after the ankle injury, he is restricted in performing activities on his 10-acre property. He cannot mow the lawn without frequent breaks, and this now takes several hours. He has not been able to play golf following his ankle injury. He played cricket on one occasion, but said he made a poor effort due to his ankle, and he cannot continue to play cricket due to his ankle. Cricket is a sport he loves, it was intended to be a way he could become involved with the local community. He had been unable to pursue fishing and camping.
36 Based on the evidence of the plaintiff and medical witnesses, I accept that the plaintiff had a right hip condition which was subject to surgery. As a result of the hip surgery, the plaintiff had a substantive improvement and was able to return to physical activities in respect to his domestic, leisure and work activities. Subsequently, the plaintiff injured his left ankle at work. I accept the current medical evidence is that the plaintiff’s major problem is his left ankle injury, whereas his right hip symptoms are minor and relatively stable. The plaintiff is now reporting right hip pain as a result of favouring his left ankle and placing more weight on his right side.
Consequences
37 I turn to consider the evidence as to the current consequences of the plaintiff’s left ankle/foot injury.
Pain
38 The plaintiff’s evidence is that he continues to experience constant pain, restriction and discomfort as a result of his left ankle injury. He gave evidence that every step on the left ankle is an experience like someone hitting him on the back of the head.[6] Generally, he avoids squatting and kneeling, because these activities aggravate the pain in his left ankle. Towards the end of the day, he experiences an increase in the level of pain and must rest his ankle at night. This was confirmed by the evidence of his wife.
[6]T63
39 The plaintiff gave evidence that he has had to change the way he stands, placing most of his weight on his right leg. Placing weight on his left side aggravates the pain in his ankle. In cold weather and in the mornings, his left ankle is stiff.
40 The plaintiff reported to medical witnesses the level of pain he suffers.
41 In August 2015, the plaintiff reported to Mr Russell Miller discomfort and pain in the left ankle and hindfoot which feels weak and insecure. If he fails to wear a brace, he reported episodes of inversion instability, causing him to walk with a limp. He reported difficulty with uneven ground and stairs, and significant discomfort with kneeling and squatting.
42 Mr Miller noted the plaintiff reported using a range of medications including Celebrex and Panadeine Forte. He takes sleeping tablets. He uses an ankle brace and wears soft shoe wear. At work, he wears work boots, which provide additional support.
43 Mr Miller said the plaintiff has significant ongoing symptoms in the hindfoot, and he remains of the view that the prognosis for the left ankle and hindfoot is only fair. He said the plaintiff will require ongoing conservative treatment. Ongoing rehabilitation and pain management as requested would be appropriate. He noted that the plaintiff had returned to less physical work, which he copes with, but with significant ongoing symptoms.
44 Mr Jones said, in respect to the plaintiff’s left ankle injury, the plaintiff complained of pain and stiffness with limitation of ankle movement, causing a slight to moderate left-sided limp. Mr Jones said the plaintiff was restricted to activities at ground level on flat and predictable surfaces.
45 Dr Allen reported that the plaintiff stated he had difficulty walking on uneven ground, walking up ladders and suffering pain at the end of each working day. The plaintiff had numbness over the outside of his ankle and across the top of his foot.
46 The plaintiff’s wife confirmed that the plaintiff suffered pain. On the mornings that he wakes up in severe pain, and when his ankle is stiff, she must assist him in putting on his socks and shoes. At times, it is difficult to put on his shoes due to the swelling of the left ankle.
47 I accept the plaintiff suffers constant pain and discomfort in the left ankle as a result of the work injury. I must consider the evidence as a whole, and will be influenced by the level of medication and the treatment the plaintiff currently has. I consider pain is a consequence which I can take into account, and I am particularly influenced by the fact that the pain is constant.
Pain in the right hip
48 The plaintiff’s evidence was that due to the pain, he favours his left ankle, placing more weight on his right side. As a result, he suffers intermittent pain in his right hip. The plaintiff reported this to Dr Allen, his general practitioner. The records of the general practitioner indicated that in 2015 he reported hip pain which resulted in an x-ray and ankle pain. Mr Miller said the right hip is, to a minor extent, influenced by the plaintiff’s chronic limping, which relates to the left hindfoot symptoms. This is a consequence which I can take into account.
49 The plaintiff said his hip “clicks out”. The plaintiff gave conflicting evidence regarding the right hip clicking out, specifically whether this was occurring before or after the ankle injury. Given the totality of the evidence, I find that not much turns upon this issue.
Medication and treatment
50 The plaintiff’s evidence was that he wears a left ankle brace for stability, which eases the pain he suffers. He takes medication daily of Celebrex, 200 milligrams, to assist with the pain. He uses Panadeine Forte on occasions and Panadol particularly in the mornings as his ankle feels stiff. He reported to Mr Jones he was taking Tramadol, one tablet twice daily. In Court, the plaintiff gave evidence that he takes Tramadol every day since late 2014.[7] The plaintiff reported his medication levels to the medical witnesses. No medical witness suggested the level of medication the plaintiff takes is unreasonable.
[7]T31
51 Mr Miller said the plaintiff’s current conservative treatment is appropriate, and will need to continue indefinitely. Ongoing rehabilitation and pain management as requested would be appropriate.
52 The plaintiff reported to Mr Jones and the Court that he undertakes his own exercise program in the form of walking, stretching and strengthening exercises prescribed by the physiotherapist.
53 The plaintiff told the Court that he is reluctant to take medication because he will become dependent upon it. Currently he uses medication as needed, either over-the-counter Panadol Osteo, or from the medication supplied at the time of his ankle injury and subsequent surgery. He agreed that recently he received a prescription for Celebrex for his complaint of hip pain, and uses the Celebrex for ankle pain as well. I take this into account. I accept the medication he takes for his ankle pain is necessary and ongoing.
54 The plaintiff’s evidence was that he did not get treatment from his general practitioner for his ankle. He said he attended his general practitioner only to obtain his heart medication.[8]
[8]T27
55 I accept the level of medication the plaintiff takes is a consequence I can take into account. I accept the plaintiff’s current conservative treatment is likely to continue indefinitely. No medical witness suggested improvement. That is a consequence I can take into account.
Sleep
56 The plaintiff reported that his sleep is affected because of the pain from his hip and ankle, but mainly his ankle. There have been nights when he has been woken by the throbbing pain in his left ankle. He is reluctant to take medication but takes sleeping tablets every ten days or so. He reported sleep difficulties and sleep medication to Mr Miller.
57 The evidence of the plaintiff’s wife is that the pain wakes him at night, and often he wakes her as a result. Prior to the injury, he was a good sleeper. Now he struggles to get comfortable and his sleep is interrupted most nights.
58 I accept the plaintiff’s sleep is in large part affected by his left ankle injury, which is a consequence I can take into account.
Work
59 The plaintiff’s evidence is that prior to the ankle injury, he performed administrative work. He ceased this work when he accepted a package. He then performed farm work for nine months, which ended when his employer retired. In 2010, he recommenced work for the first defendant in manual work. He intended to look for administrative work. He was injured while performing manual work.
60 At the beginning of 2013, the plaintiff obtained contract employment, which involved debt collection. That work ceased in October 2013.
61 In July-August 2014, the plaintiff obtained work in a chicken-rearing house, collecting eggs and manure.
62 The plaintiff wears an ankle brace at work, which helps to make his ankle feel stable and eases the pain. By the end of the day, he notices an increase in pain and he must rest his ankle. This was confirmed by his wife in her affidavit.
63 I accept that as a result of the plaintiff’s ankle injury, the range of manual employment is restricted to a greater extent than before, and that translates into a loss of enjoyment of life. I accept that is a pain and suffering consequence of the plaintiff’s left ankle injury.
Mobility
64 The plaintiff’s evidence is that his mobility is affected by his ankle injury. He has difficulty walking on uneven surfaces and up and down stairs. He avoids stairs and ladders. He recalled using a ladder, but found it difficult, as he had to place his weight on his right ankle and take the ladder rungs one at a time in order to avoid placing weight on the left ankle. He is able to squat, but must avoid putting pressure on his left ankle, placing most of the pressure on his right. He is able to kneel but must be careful not to place any stress on his left ankle. He has difficulty walking long distances. He intermittently walks with a limp. I observed this when he left the witness box.
65 The plaintiff reported these difficulties to the medical witnesses. Both
Mr Miller and Mr Jones accepted that the plaintiff’s mobility was affected by his left ankle injury. Mr Miller said the plaintiff will have reduced mobility as a result of his ankle injury. I accept this is a consequence at the high end of the range which I can take into account.
Lifestyle and domestic activities
66 The plaintiff reported that his lifestyle and domestic activities are affected as a result of the ankle injury. He and his wife live on a 10-acre property. He tries to do what he can around the house and property. Prior to his ankle injury, he mowed the lawns in 45 minutes. Now it takes him 4 to 5 hours broken up over several days. After mowing a section of the lawn, he usually suffers severe pain afterwards. He can do most things on the property if he takes his time. However, he must be careful how he performs such activities, and is careful not to place weight on his left ankle. He has difficulty assisting his wife with heavy domestic work and is unable to perform much gardening. The plaintiff’s evidence was that he waters the vegetable garden.
67 The plaintiff derived pleasure and satisfaction from performing heavy physical work around his house and property. He felt diminished by not being able to perform these tasks.
68 The evidence of the plaintiff’s wife is that prior to the injury, they would attend shopping together. Now she does the shopping while he sits waiting for her. He tries to assist by doing some of the cooking and performing indoor chores rather than outdoor chores. Prior to the injury, he enjoyed working in the vegetable garden. He can no longer dig and use a shovel, as this aggravates the pain in his left ankle. They have raised the vegetable garden so that he can maintain it using a garden fork. The plaintiff reported to Mr Miller that he had difficulty with heavy domestic and gardening activities. His wife assists with the heavier activities. Mr Miller accepted that the plaintiff will have a reduced capacity for heavy domestic and gardening activities as a result of his ankle injury. I accept that these are consequences that I can take into account.
Social activities
69 The plaintiff’s evidence is that the pain in his ankle interferes with any activity that requires him to put weight on his left ankle. As a consequence, he is much less social than before the injury. It is simply too difficult to go to places. I accept this is a consequences which I can take into account.
Recreational activities
70 The plaintiff’s evidence is that he can no longer engage in activities such as cricket, golf or walk long distances. The plaintiff’s evidence was that he could no longer go fishing, as he could not walk to the river. The plaintiff’s evidence was that he can no longer go camping, as he could not erect a camping tent.
71 The evidence of the plaintiff’s wife confirmed that the plaintiff no longer went fishing, to avoid walking among rocks or on uneven surfaces. Further, her evidence was that she and her husband previously enjoyed camping in the bush or at a caravan park at the Grampians and King Valley. They also used to regularly go for drives along the Great Ocean Road. Following the ankle injury, they do not go camping or on scenic drives, because the plaintiff struggles with driving and walking long distances.
72 I accept that as a consequence of the plaintiff’s injury, his lifestyle and domestic activities have been affected.
Personal relationship
73 The plaintiff reported to Mr Miller and to the Court that there had been relationship difficulties with his wife following his injury. The plaintiff’s evidence was that his ankle injury has impacted upon his relationship with his wife, as he is unable to do as much around the house or on the property, and therefore he does not spend as much time with her. His wife’s evidence was that his mood has changed. He has become easily frustrated and irritated because of his pain. He struggles to accept his ongoing pain and limitations. I accept these are consequences which I can take into account.
Stoic
74 While neither Counsel addressed the issue of stoicism, it was my impression of the plaintiff that he was stoical. He was not given to exaggeration and he gave his evidence in an uncomplaining way. I took the view that he was prepared to endure a fair amount of pain as he went about his work and daily activities. I based my impression on his presentation in the witness box and his continued work in manual employment. The injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain he suffers.
Conclusion
75 Taking all the evidence into account, I am satisfied that the plaintiff suffered a work-related injury resulting in symptoms of a physical nature. The consequences of his left ankle injury have impacted upon his life as he knew it before the accident. He has suffered for five years and the medical evidence is guarded as to the future. I accept the plaintiff’s ankle injury is permanent. All medical witnesses accepted this.
76 I accept the left ankle injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as “at least very considerable and certainly more than significant or marked”.
77 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal but rather, attributed appropriate weight to each consequence in the light of the evidence.
78 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the work accident suffered by the plaintiff on 12 May 2010 during the course of his employment with the first defendant.
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