Dorgan v CP Action Workforce Pty Ltd
[2013] VCC 1489
•7 October 2013
| 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-11-04119
| JAMES DORGAN | Plaintiff |
| v | |
| CP ACTION WORKFORCE PTY LTD | First-named Defendant |
| and | |
| WORKSAFE VICTORIA | Second-named Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3 and 7 October 2013 | |
DATE OF JUDGMENT: | 7 October 2013 | |
CASE MAY BE CITED AS: | Dorgan v CP Action Workforce Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1489 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – crush fracture injury to the right foot – injury to the right, second, third, fourth and big toe
Legislation Cited: Accident Compensation Act 1985, s134AB(a); WorkCover (Litigated Claims) Legal Costs Order 2010
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries & Anor v Poljak [1992] 2 VR 129; Barlow v Hollis [2000] VSCA 26; Richards v Wylie (2000) 1 VR 79; Hunter v Transport Accident Commission [2005] VSCA 1; Swannell & Anor v Farmer [1999] 1 VR 299; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; A Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment: Leave granted to the plaintiff to bring a proceeding at common law pursuant to s134AB of the Accident Compensation Act 1985 to recover pain and suffering damages for injuries arising out of the workplace accident on 24 September 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Nowicki Carbone |
| For the Defendant | Mr D Churilov | Lander & Rogers |
HER HONOUR:
1 On 24 September 2007, the plaintiff, James Dorgan, was injured at work. He was employed by a labour-hire agency (the first defendant) as a forklift driver. He was working inside a shipping container, kneeling down to secure some crates with a length of chain. There were five crates, two of which had already been removed. As he went to pull the chain from underneath the remaining three crates, a forklift driver lifted the end of a crate, causing it to tilt and topple. Although he took evasive action, the plaintiff was not quick enough to escape the falling crates. The top crate landed on his right foot, crushing at least three of his toes. The plaintiff was pinned to the ground by the crate. Eventually, the forklift driver was able to lift the crate and free the plaintiff’s foot. By then the plaintiff was in such pain that he was unable to speak coherently.
2 The plaintiff was taken to a medical clinic where x-rays taken revealed three fractures in the plaintiff’s right toes. His foot was immobilised in plaster and the plaintiff was referred to an orthopaedic surgeon, Mr Beischer, who later removed the plaster and refitted a more secure one.
3 On or about 15 October 2007, after the swelling in the plaintiff’s foot had subsided, he underwent surgery to internally fix the fractures with “K” wires. The surgery was undertaken at the Epworth Hospital and involved an open reduction and internal fixation of the metatarsal fractures which had been displaced.
4 Approximately five weeks after surgery, the wires were removed and the plaintiff was able to partially weight bear using a CAM walker. In about late January 2008, the CAM walker was removed. During this time the plaintiff continued to experience intermittent pain over the dorsal aspect of the right forefoot, precipitated by weight-bearing activity.
5 The plaintiff was later referred for psychological treatment; however, as he makes no claim in respect of any mental or behavioural disturbance or disorder in this application, little more needs to be said about this aspect of his injury, except to note that in assessing his claim, I put aside any such consequences.
6 By Originating Motion dated 26 August 2011, the plaintiff seeks leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to commence common law proceedings against the first-named defendant.
7 In the Particulars of Injury dated 27 June 2013, reference is made of the intention to rely upon ss(a) and (c) of the definition of “serious injury” in s134AB of the Act; however the claim under subparagraph (c) was not pressed at the hearing. In regards to subparagraph (a), the plaintiff relies upon the following particulars of injury suffered by him as constituting serious injury:
(a) injury to the right foot;
(b) injury to the right second, third, fourth and big toe.
8 The hearing commenced before me on 2 October 2013 and continued on 3 and 7 October 2013. Mr M J Ruddle appeared on behalf of the plaintiff. Mr D Churilov appeared on behalf of the first defendant.
9 At the outset, Mr Churilov properly conceded that the circumstances of the plaintiff’s injury were not in dispute. Nor is it disputed that the plaintiff sustained the crushing fractures mentioned and underwent the surgery identified. There is much common ground in the medical evidence. Sensibly, Mr Churilov identified this as a single issue case – “range”.
10 The applicable legal principles are not in dispute.
Statutory framework
11 The statutory scheme entitles a person injured arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 to compensation.[1] It is not disputed that the prerequisites referred to in that section are met in the present case.[2]
[1]See s134AB(1) of the Act
[2]The plaintiff was injured during the relevant period in the course of his employment with the first defendant
12 Section 134AB(1) notwithstanding, a person shall not recover any damages in any proceedings in respect of such an injury except in accordance with the remaining provisions of s134AB. This application is brought under ss(16)(b).
13 Section 134AB(19) prohibits the Court from granting leave under ss(16)(b) –
“… unless it is satisfied on the balance of probabilities that the injury is a serious injury.”
14 For the purposes of this application “serious injury” is defined in ss(37) to mean:
“(a) permanent serious impairment or loss of a body function.”
15 In order to succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that the injury of which he complains is a “serious injury” as defined in s134 AB(19) of the Act.
16 As mentioned earlier, the body function the subject of this claim is the right foot, the right second, third, fourth and big toes.
17 The term “permanent” for present purposes means “likely to persist in the foreseeable future”.[3]
[3]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]
18 The term “serious” is to be satisfied by reference to the consequences to the plaintiff of any impairment or loss of a body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.[4]
[4]Section 134AB(38)(b); Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraph 15; Humphries v Poljak [1992] 2 VR 129 at 140-1; not necessarily in the same category: Barlow v Hollis [2000] VSCA 26 at paragraph [29]
19 The Act provides that an impairment or loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, fairly described as being “more than significant or marked, and as being at least very considerable”.[5]
[5]Section 134AB(38)(c)
20 For a body function, it is the “impairment” which must be serious. The evaluative task is addressed to the impairment, not to the injury which causes the impairment.[6]
[6]Humphries v Poljak (supra) at 134; Richards v Wylie (2000) 1 VR 79 at paragraph [16]
21 Assessment of consequences requires a comparison of the plaintiff’s before and after position.[7]
[7]Humphries v Poljak (supra) at 136; Hunter v Transport Accident Commission [2005] VSCA 1 at paragraph [34]
22 The time for assessing whether an injury is “serious” is the date at which leave is decided.[8]
[8]Swannell & Anor v Farmer [1999] 1 VR 299 at paragraph [36]
23 “The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”[9]
[9]Section 134AB(38(h)
24 A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[10]
[10]ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [70]; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (17 December 2008) at paragraph [3]
25 The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[11]
[11]ACN 005 565 926 Pty Ltd v Snibson (supra) at paragraph [71]; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 (28 November 2007) [199]
26 As to pain and suffering consequences, the parties agree that the principles enunciated in cases such as Haden Engineering Pty Ltd v McKinnon[12] are of relevance.
[12](2012) 31 VR 1
27 In Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria,[13] Maxwell P and Tate JA observed:
[13][2013] VSCA 46
“[10]As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[14] it is of assistance in reviewing a body of evidence like this — for the purpose of evaluating the ‘pain and suffering consequence’ of an injury — to distinguish between:
[14](supra)
● the plaintiff’s experience of pain as such; and
● the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[15]
[15]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [9]
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[16] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.
[16]See for example Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraphs [46]–[47]
The experience of pain as such
[11]We deal first with Mr Aburrow’s experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[17] was as follows:
[17](2012) 31 VR 100
The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.[18]
[18]Haden Engineering Pty Ltd v McKinnon (supra) 109-10 at paragraphs [46]–[48]
…
The disabling effect of the pain
[19]As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (Ashley JA) said in Dwyer v Calco [Timbers] Pty Ltd (No 2):[19]
[19]supra
‘[I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[20]
[20]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]. See also Haden Engineering Pty Ltd v McKinnon (supra) 4–5 at paragraphs [9]–[14]
[20]As suggested in Haden (and endorsed in Sutton),[21] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker’s capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:
[21] Sutton v Laminex Group Pty Ltd (supra), 110–11 at paragraphs [49]–[50]
‘As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
•sleep;
•mobility;
•cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
•capacity for self-care and self-management;
•performance of household and family duties;
•recreational activities;
•social activities;
•sexual life; and
•enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[22]
[22]Haden Engineering Pty Ltd v McKinnon (supra) 5–6 at paragraphs [15]–[16]
The issues
28 As I stated earlier, the first defendant admits that the plaintiff suffered the compensable injury, but denies that the consequence for him of that injury is at least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function. Counsel have described this as a “range” case.
The Plaintiff’s case
29 Only one witness gave viva voce evidence – the plaintiff.
30 In his evidence-in-chief, the plaintiff adopted his three affidavits which were tendered respectively as exhibits:
A: The plaintiff’s affidavit sworn 28 March 2011 (Plaintiff’s Court Book (“PCB”) 15-20
B: The plaintiff’s second affidavits sworn 30 August 2012 (PCB 21-24)
C: The plaintiff’s third affidavit sworn 1 October 2013 (PCB 34A-F.
31 I shall refer to the plaintiff’s evidence in more detail later. However it is worth noting here that the plaintiff’s credit was not challenged. Rather, the cross-examination was designed to accredit him as a truthful, accurate and trustworthy witness. It is the first defendant’s case that if the plaintiff’s viva voce evidence is to be accepted, the consequence of his injury falls outside the “range”. The oral testimony, it is said, shows the true extent of impairment to be somewhat less than portrayed in the plaintiff’s affidavits.
32 In addition to the sworn testimony, a number of exhibits were tendered on the plaintiff’s behalf:
Exhibits tendered on behalf of the Plaintiff
D
MRI scan right mid foot and ankle dated 1 October 2007 (PCB 43)
E
X-ray of the plaintiff’s right foot dated 4 March 2013 (Defendant’s Court Book (“DCB”) 36A
F Report of Dr Oi dated 29 March 2013 (PCB 45-48) G Patient/clinical note of Mr Beischer dated 11 September 2012 (DCB 36C) H Letter of Mr Beischer to Dr Akhter dated 11 September 2012 (DCB 36D) J Report of Professor Myers dated 4 March 2013 (PCB 49-51) K Report of Professor Myers dated 4 June 2012 (PCB 52-59) L Clinical notes of Dr Oi including entries for 28 February 2013 and 29 March 2013 M Letter from Dr Akhter to Mr Beischer dated 6 September 2012 N Report of Mr Beischer dated 18 October 2007 (DCB 2-4) O Report of Mr Beischer dated 19 May 2010 (DCB 26-30) P Plaintiff’s submissions
The First Defendant’s case
33 No viva voce evidence was called by the first defendant. However, several exhibits were tendered:
Exhibits tendered on behalf of the First Defendant
One Surveillance footage of the plaintiff taken 24 August 2011 2 Surveillance footage of the plaintiff taken 16 May 2012 and 19 May 2012 3 Surveillance footage of the plaintiff taken 12 December 2012 4 Surveillance footage of the plaintiff taken 9 September 2013 5 CT scan of the right ankle and foot dated 1 October 2007 (DCB 1) 6 X-ray of the right foot dated 26 November 2007 (DCB 5) 7 Report of Mr O’Brien dated 10 June 2008 (DCB 6-9) 8 Report of Mr O’Brien dated 12 December 2012 (DCB 10-13) 9 Report of Mr B Dooley dated 24 May 2010 (DCB 31-35) 10 Certificate of Capacity dated 28 February 2013 (DCB 51-52) 11 Certificate of Capacity dated 22 January 2008 (DCB 53) 12 Defendants’ submissions
34 I have read all of the exhibits and take them into account. I will not summarise all of them. The parties have referred to them in their respective submissions, which are set out verbatim in this judgment.
The Plaintiff’s evidence
35 The plaintiff was born in December 1981, and as at the date of the hearing was aged 31 years.
36 He completed VCE, and in about 2000, he commenced tertiary studies, although he withdrew from his Bachelor of Biological Science course after one semester. He worked for a large supermarket for approximately one year. He then commenced employment in a manufacturing firm, where he remained for some three-and-a-half years. He left that employment in approximately 2004 and then travelled overseas.
37 In approximately 2005, the plaintiff enrolled at La Trobe University in a Bachelor of Chemical Science course, although he did not complete it. Thereafter, he commenced casual work with the first defendant as a labourer and forklift driver. He stayed there for approximately one year before moving to Canada, where he lived and worked for approximately another year.
38 In around 2007, the plaintiff returned to Melbourne and recommenced employment with the first defendant.
39 Following his injury, a graduated return to work program was undertaken, although the plaintiff never returned (and was never certified as being fit to return) to his pre-injury employment. Essentially, he was employed by the first defendant in a clerical capacity.
40 In approximately February 2009, the plaintiff commenced horticultural studies at North Melbourne Institute of Technology, a two-year diploma course, which he successfully completed.
41 Apart from longstanding obesity issues, the plaintiff enjoyed relatively good health and fitness prior to sustaining the workplace injury. He had no prior injuries to his right foot, and no question of aggravation arises in this case.
42 I have already mentioned the circumstances of injury and their immediate aftermath.
43 Regarding pain and suffering and loss of enjoyment of life, the plaintiff has a permanent scar on his right foot as a result of the surgery (not relied upon in these proceedings). He does not make much of this fact; however, he complains of continuous pain in his right foot, the intensity of which varies. He also claims that his movement is restricted as a direct consequence of his injury, and it is clear that as a consequence of the incident, he has lost full range of movement in his right foot.[23]
[23]See exhibit K, range of movements right ankle – dorsiflexion loss of 10 degrees, plantar flexion loss of 10 degrees, inversion loss of 15 degrees, eversion loss of 10 degrees. See also exhibit 9, Mr Dooley’s findings as to loss of range of movement.
Walking
44 The plaintiff finds it difficult to stand and walk for extended periods of time. Ever since the injury he has required special orthotics and modification of his shoes.
45 Before the incident, the plaintiff had no difficulty in walking. In fact he walked approximately 7 or 8 kilometres per day. He testified:
“The peak of my walking abilities was … my second trip overseas when I participated in a pilgrimage in Spain and that was roughly 30 days of trekking. It was between 17 to 27 kilometres a day.”[24]
[24]Transcript (“T”) 67
46 Since the incident, the plaintiff finds walking a challenge and he requires constant breaks and rests. He continues to experience stiffness in the right forefoot joints and has difficulty extending his second, third, fourth and big toes.[25] This has altered his gait. At times he limps and at times compensates for his impairments. Whilst the orthotic and altered right shoe protect his toes, they also restrict movement. This has added to his walking difficulties. Rather than move naturally from heel to ball of foot to toe, his foot is kept in a rigid position. He finds the plate uncomfortable. Because he is required to use orthotics and have a modified right shoe, the selection of shoes available to him is limited. He is forced to buy shoes with a thick sole which are capable of modification. Generally, he is unable, for example, to wear runners or slippers because they are not suitable for modification.
[25]The first defendant notes that on examination, Professor Myers found no such difficulty (exhibit K).
Work
47 Following the incident, the plaintiff returned to work, as I have already stated. He was on light duties, on limited hours.
48 All of the medical evidence establishes that the plaintiff has lost his pre-injury capacity for work. However, he is not unemployable. Indeed, he has qualified as an horticulturist and works full time in a large hardware/nursery chain. His duties however include menial tasks such as moving stock around the store, and helping customers to their cars with their purchases.
49 It is to the plaintiff’s credit that he has persisted with his employment notwithstanding his physical limitations.
Sleep
50 Before the incident, the plaintiff had no difficulty sleeping. However, as a consequence of the injury he finds it difficult to get to sleep and often wakes due to pain.[26] He has not sought medication for this problem.
[26]T33, T69
Physical problems
51 Leaving aside the scarring, the plaintiff complains of restricted movement of the toes, he is concerned about the development of osteoarthritis and he is conscious that his gait has altered. Sometimes his co-workers ask him why he is limping.
Capacity for work
52 The plaintiff is no longer able to perform his pre-injury employment, a fact the first defendant admits. As I stated before however, the plaintiff has obtained new qualifications that would enable him to work as an horticulturist. Although the plaintiff is confident he could do the design work involved in such a job, he could not open his own business because of the physical demands involved. He has not investigated or pursued such a venture to date.
Medical treatment
53 The plaintiff has not had much medical treatment in recent years. There was a period where he saw a psychologist, but that is not relevant to the present application. He is due to see his surgeon, Mr Beischer, for review later this year, although he has not as yet made an appointment.
Weight
54 Obesity has been a longstanding issue for the plaintiff. However, following the incident, he gained a considerable amount of weight, approximately 30 plus kilograms. In the past he used walking to assist in weight management and reduction. As a consequence of his reduced capacity to walk following the incident, this is no longer a part of his weightloss program. To his great credit, the plaintiff was able to lose the majority of the weight he gained following the incident; however, he subsequently gained almost all of it back. He is still some 5 kilograms heavier than before the injury.
55 The cross-examination is more fully set out in the written submissions below.
The medical evidence
Treating Doctors
Dr Oi
56 Dr Oi, the plaintiff’s treating doctor states:[27]
“With regards to the injury to his right foot this will restrict his capacity to perform fulltime restricted manual or pre-injury employment. He is managing at work at the moment where the heaviest lifting is that of pot plants, but he is unable to perform heavier tasks such as landscaping, which he had hopes of doing in the past.
…
Directly after the accident and for 2 years after, [the plaintiff] was severely restricted both physically and mentally in relation to social, domestic, recreational or employment activities. However, since then [the plaintiff] seems to have recovered, and is in stable satisfying employment, and is in a new stable relationship. His injuries may restrict all those areas in the future, but it is difficult to predict in what degree. The osteoarthritis in [his] right foot may worsen in coming years, but that is difficult to predict.”
[27]Exhibit F
Mr Beischer
57 In September 2012, Mr Beischer’s brief notes[28] refer to the plaintiff’s report of some issues of mid foot pain, particularly at the end of the day.
[28]Exhibit G
“He has been using his carbon fibre orthotic and insoles, which he has been maintaining. He does not appear to be significantly incapacitated by pain.
…
Examination findings
The patient had good alignment of his foot. He had symmetrical weightbearing pattern bilaterally and had not developed significant midfoot collapse, although he had bilateral mild pes planus. He had some irritability of his mid tarsal joints. He did not have significant swelling.
…
Assessment
Likely early post-traumatic osteoarthritis right mid foot.”
58 On the question of osteoarthritis, Mr Beischer worded his diagnosis in a letter to the plaintiff’s general practitioner slightly differently than in the clinical notes. In exhibit H he wrote:
“Clinically [the plaintiff] is reporting some mild symptoms of midfoot pain, which I suspect is due to the development of some early midfoot osteoarthritis, most likely related to his previous injury.”
Medico-legal Reports
Associate Professor Myers
59 Professor Myers answered specific questions in his reports.[29] He found restricted movements of the ankle and hindfoot, and that the plaintiff had a capacity for his present employment, but not for unrestricted pre-injury employment. He also considered that the plaintiff would have restriction of social, domestic, recreational and employment activities. He considered the restrictions to be permanent. He also considered “there is likely to be development of arthritis”.[30]
[29]Exhibits J and K
[30]Exhibit J
Mr J O’Brien
60 Mr O’Brien noted that the plaintiff presents with mild deformity in association with his residual right foot symptoms:
“I would suggest at present the patient is not physically capable of returning to his pre-injury occupation as a labourer. However, the physical situation would allow him to return to modified duties limiting weight bearing function.”
61 In his subsequent report however, he noted the plaintiff’s current history:
“[The plaintiff] now describes fluctuating pain localised to the dorsum of the right forefoot. In general the patient reports the pain to be quite mild however the patient states that on occasions for a few days the pain can become quite significant causing him to limp. The patient states that he usually controls the pain by resting and sitting down for 5 – 10 minutes and this seems to ease the pain. Occasionally the patient stated with excessive weight bearing the pain can become quite severe requiring prolonged rest. He also reported some pain the base of the right great toe with prolonged walking.
…
Signs certainly continue to demonstrate some restriction of dorsiflexion of the relevant toes and also evidence of hallux rigidus involving the first metatarsophalangeal joint. In addition there is restriction of movement in the interphalangeal joint of the right great toe.
… From a clinical perspective there does appear to be some degree of post-traumatic arthritis affecting the mid tarsometatarsal joints and also described affecting the metacarpophalangeal joints of the toes.
…
I would regard this patient as having sustained a moderately severe injury to his right forefoot. He has in fact recovered well from the injury and I would consider that his general domestic, social and recreational activities will be minimally if at all restricted by what now is very mild symptoms.”[31]
[31]Exhibit 8
Surveillance Film taken off the Plaintiff
62 Exhibits 1, 2, 3 and 4 were played during the hearing. In them, the plaintiff is seen at work, at a petrol station and at another location.
63 In regards to work, the plaintiff appears to perform his work with little difficulty although it appears to me that the plaintiff walks awkwardly at times and he takes the weight off his right foot and rests it at times. I do not agree that the plaintiff is seen to walk at a brisk pace. It appears to me that the plaintiff walks stiffly and flat footedly.
64 The plaintiff is not seen performing any activity that he has sworn he is incapable of. Mr Churilov submits, however, that the surveillance videos show the plaintiff performing physical activity to a greater degree than he deposes to be capable of in his affidavits.
Submissions
65 The parties tendered comprehensive submissions which they each augmented by oral submissions. I will set out in full the written submissions:
The Defendants’ submissions – Exhibit 12
“The Plaintiff makes no claim in respect to a permanent serious disfigurement (T1, lines 12-18) and as such the Court should disregard those paragraphs of his Affidavits referring to ‘severe disfigurement’ and ‘substantial scarring/discolouration’ (Exhibit A, paragraph 21 at PCB18; Exhibit B, paragraph 10 at PCB23).
Likewise, the Plaintiff makes no claim in respect to a permanent severe mental or behavioural disturbance or disorder (T1, lines 12-18) and to the extent that in his Affidavits the Plaintiff relies on psychological or psychiatric consequences of the right foot injury they must be disregarded by the Court in line with section 134AB(38)(h) of the Accident Compensation Act 1985 (see Exhibit A, paragraphs 25, 26, 28, 29 at PCB19-20; Exhibit B, paragraphs 6, 8, 9 at PCB22 and paragraphs 12-13 at PCB23; Exhibit C, paragraphs 17 and part of paragraph 18 at PCB34E-F).
The ultimate submission of the Defendant is that the Plaintiff has recovered very well from the initial fractures of the 2nd, 3rd and 4th metatarsals of his right foot sustained in the work incident on 24/9/07. To that extent any ongoing physical consequences that he experiences as at today’s date are not ‘at least very considerable’, in the sense of not being more than significant or marked.
The Defendant submits that in his 3 Affidavits (Exhibits A, B and C), including in the impugned passages above, the Plaintiff has painted a rather bleak picture as to the post injury impact of the claimed permanent serious impairment or loss of a body function of his right foot, in terms of both physical and psychological consequences, which is removed from reality.
To the extent that the Plaintiff’s Affidavit evidence differs or is inconsistent with his viva voce evidence, tested by cross-examination, and the histories given to various medical practitioners, the Defendant submits that the Court should prefer the latter form/s of evidence to the Affidavit evidence.
For some of the specific examples of the abovementioned difference/s or inconsistency/ies between the Plaintiff’s Affidavit evidence with the other form/s of evidence the Court is referred to the following Affidavit passages in respect of the deposed psychological consequences of the right foot injury (Exhibit A, paragraph 26 at PCB19; Exhibit C, paragraphs 6, 8-9 at PCB22; Exhibit C, paragraphs 12-13 at PCB23).
These passages differ markedly with the Plaintiff’s viva voce evidence in this respect, given during cross-examination (T26, lines 11-31; T27, lines 1-21; T30, lines 6-31; T31, lines 1-6 and 15-21; T32, lines 20-21; T41, lines 20-31; T42, line 1-3l; T44, lines 25-31; T45, line 1-2; T49, lines 22-31; T50, lines 1-3; T53, lines 20-21).
Physical consequences of the right foot injury/impairment
In his viva voce evidence the Plaintiff has identified 2 main physical consequences of the claimed right foot injury/impairment. These were in respect of walking and gardening, with the emphasis being on walking (T70, lines 7-19).
The import of the Plaintiff’s Affidavits as to the consequences of the claimed impairment of his right foot is as follows:
· He suffers from continuous pain in his right foot which makes it difficult to stand and walk for extended periods of time (Exhibit A, paragraph 21 at PCB18; Exhibit C, paragraph 10 at PCB34D);
· Walking is quite a challenge now and he finds that he needs constant breaks and rest while walking (Exhibit A, paragraph 22 at PCB18; Exhibit B, paragraph 4 at PCB21);
· He struggles to remain upright for prolonged periods let alone maintain his posture and uses his large leg muscles to move (Exhibit B, paragraph 4, PCB21-22)
· He continues to experience stiffness in the right forefoot and has difficulty extending his 2nd, 3rd, 4th and big toes (Exhibit A, paragraph 23 at PCB19);
· He has a changed walking manner such that he tends to walk with a limp at times and suffers from an altered gait which affects his spine (Exhibit A, paragraph 23 at PCB19);
· He is required to wear an uncomfortable plate in his right shoe when he goes out to restrict the movement of his toes and prevent an early onset of osteoarthritis in the large toe (Exhibit A, paragraph 24 at PCB19);
· He is required to wear orthotically-designed shoes and his right foot injury has had a big impact on the types and styles of shoes he is able to wear (Exhibit C, paragraph 12 at PCB34D).
· He is concerned about the prospect of an early onset of arthritis in his right foot and the affect of his altered gait on his spine (Exhibit A, paragraph 20 at PCB20; Exhibit C, paragraph 10 at PCB34D);
· He has gained approximately 40kg since the injury (Exhibit B, paragraph 7 at PCB22) such that at one stage he weighed approximately 170kg. In early 2013 he had lost about 30kg but he has since regained most of that weight (Exhibit C, paragraph 5 at PCB34C)
· He takes non-prescription medication including Nurofen, Panadol and when the pain is severe Panadol Osteo. On average he takes painkilling medication about once a week (Exhibit C, paragraph 8 at PCB34C);
· Since the injury his right foot condition has become worse (Exhibit C, paragraph 11 at PCB34D);
· He believes his days of working in his chosen profession (horticulture) are limited. He is not sure if he will be capable of performing his work duties in the future (Exhibit C, paragraph 13 at PCB34D-E);
· He wakes up regularly throughout the night as a result of his foot pain (Exhibit C, paragraph 13, PCB34E).
Weight
The import of the Plaintiff’s evidence in respect to the weight gained post his right foot injury, as discussed above, is that at one stage he weighed approximately 170kg and despite losing about 30kg in early 2013 he has regained most of that weight (as deposed in Exhibit C, sworn 1 day prior to the commencement of the Serious Injury hearing).
Prior to his right foot injury the Plaintiff’s last recorded weight would have been 142kg. If the Plaintiff’s assertion of regaining most of the additional 30kg was accurate, he would weigh close 170kg as of today’s date. However, the Plaintiff gave evidence in Court that his current weight is 147kg (a difference of only 5kg with the pre-injury weight and a far cry from the additional 30kg which he deposes to have gained) (T14, lines 30-34; T15, lines 1-19).
The Defendant submits that a variance of 5kg is insignificant. There is no evidence attributing such weight to the right foot injury/impairment and such variance is consistent with the fact that the Plaintiff’s weight fluctuated pre-injury (T14, lines 33-34; T15, line 1).
Improvement of the right foot condition post injury[32]
[32]what the doctors say about the extent and intensity of the Plaintiff’s pain; what the objective evidence shows about the disabling effect of the pain (per Maxwell P at [11] in Haden Engineering Pty Ltd v McKinnon (supra).
The Plaintiff’s assertions that since the work incident on 24/9/07 his right foot condition has become worse (Exhibit C, paragraph 11 at PCB34D) and there has been a lack of progress made (Exhibit B, paragraph 13 at PCB23) are unsustainable.
The x-ray of right foot dated 26/11/07 (Exhibit 6 at DCB5) (on referral from Mr Andrew Beischer, Orthopaedic Surgeon) confirmed anatomical alignment and mild degenerative changes in the 1st metatarsophalangeal joint.
On 11/12/07 the K wires were removed (Exhibit O at DCB27). Mr Beischer told the Plaintiff that he could commence partial weight bearing and progress to full weight bearing 2 weeks following the review on 11/12/07 (Exhibit O at DCB28).
An x-ray of the right foot dated 21/1/08 demonstrated united fractures of 2nd and 3rd metatarsal shaft in good alignment with sound union of the fractured 4th metatarsal shaft (Exhibit 7 at DCB8).
Upon review on 22/1/08 Mr Beischer noted that at that stage the metatarsal fractures have united. He advised the Plaintiff that he could be weaned from his CAM walker and progress to a stiff soled shoe with a custom insole (Exhibit O at DCB28).
The Plaintiff was issued with a Certificate of Capacity dated 22/1/08 certifying him fit for modified duties for the period from 22/1/08 to 22/2/08 with the listed work restrictions (Exhibit 11).
Dr Dawn Oi, treating General Practitioner at Medical One Moonee Ponds, noted that on 23/1/08 the pain in the foot had improved (Exhibit F at PCB45). The Plaintiff confirmed that as at 23/1/08 the pain in his right foot had improved a lot (T19, lines 2-4).
Prior to returning to work with the Defendant on modified duties he did a 2 week full-time course in Permaculture Design in about January 2008 at the Melbourne University. The course was 8 hours per day not including lunch breaks. Whatever pain symptoms he felt in his right foot did not restrict him from successfully completing this course (T17, lines 9-22; T18, lines 2-6).
He commenced fully weight bearing on his right foot sometime in February 2008. The Plaintiff was performing modified duties at the time and gradually increased his hours up to the pre-injury level of about 27/28 hours per week (T17, lines 4-8).
The Plaintiff’s right foot continued to improve over the course of 2008 during the period when he worked modified duties, and certainly from April 2008 onwards into the second part of 2008. The improvement was in terms of walking and standing ability such that he was able to walk and stand in one position for longer periods of time (T20, lines 22-31; T21, line 1; T22, lines 7-16).
The pain in his right foot which he was feeling when he saw Mr O’Brien on 10/6/08 (Exhibit 7) was intermittent pain. His gait was normal although he walked a little bit strangely because of the carbon plate in his right shoe (T28, lines 3-21).
At the time he was reporting fairly minimal symptoms to do with his right foot and these fairly minimal symptoms continued into the latter half of 2008 and onwards to today (T28, lines 26-31; T29, line 1-3).
On examination on 10/6/08, Mr O’Brien found that the Plaintiff moved well and demonstrated a normal gait. He was able to stand on his toes and heels. There was no obvious swelling of the right foot nor any deformity…some mild tenderness was described in this area (3rd metatarsal). There was some mild restriction of dorsi-flexion of 2nd, 3rd and 4th toes with full passive movement without apparent pain. There was no tenderness under the metatarsal heads, which appeared to be reasonably aligned (Exhibit 7 at DCB8).
There was noted to be some restriction of dorsfi-flexion (sic) of the right great toe, suggesting the presence of some mild hallux rigidus. There was some suggestion of hallux rigidus in the left great toe.
The Defendant alerts the Court to the fact that the hallux rigidus condition (Latin for ‘stiff great toe’), of which the Plaintiff continues to complain in respect to his right big toe, was likewise suggested to be present in his left big toe (which was completely unaffected by the subject work incident) at the time of this examination.
Mr O’Brien opined that surgery has resulted in sound union of the fractures in good alignment with now restoration of good right foot function and minimal residual symptoms.
The Plaintiff reported fairly minimal symptoms and Mr O’Brien anticipated that the residual symptoms would further improve as both soft tissue and bone healing was completed (Exhibit 7 at DCB8).
The Plaintiff continued performing modified duties for the Defendant at the rate of 28 hours per week until February 2009 when he resigned partly because he wanted to pursue a more meaningful line of work such as horticulture. He resigned to enrol in the Diploma of Horticulture full-time course which he commenced in February 2009 and successfully completed in February 2011 (T19, lines 5-18; T20, lines 14-15).
The course involved his attendance for about 6-8 hours per day over roughly 4 to 5 days per week for 2 years. He drove to the Greensborough campus from his house which took about 35-40 minutes. At times it was difficult to drive there, but he still did it (T19, lines 16-31; T20, lines 1-3).
The Plaintiff had no difficulty sitting during the course. He was able to do a bit of walking when required and standing when necessitated despite any problems in his right foot (T20, lines 4-13). Any right foot pain he had at the time did not stop him from doing well in the course (T31, lines 22-29).
Contrary to the Plaintiff’s assertion that he experiences stiffness in the right forefoot and has difficulty extending his 2nd, 3rd, 4th and big toes (Exhibit A, paragraph 23 at PCB19) Professor Kenneth Myers found on examination on 30/5/12 that the Plaintiff had minor/slight restrictions in the range of movements of the right ankle and hindfoot and unrestricted movement of the toes (Exhibit K at PCB54-55).
Furthermore, contrary to the Plaintiff’s assertion that he suffers from continuous pain in his right foot (Exhibit A, paragraph 21 at PCB18) Professor Myers recorded that the Plaintiff told him of intermittent pain in the right foot (Exhibit K at PCB55).
On review on 11 September 2012 Mr Beischer noted that clinically the Plaintiff was reporting some mild symptoms of mid foot pain (Exhibit H at DCB36d). He also noted that the Plaintiff did not appear to be significantly incapacitated by pain. The Plaintiff had a good alignment of his foot and a symmetrical weight bearing pattern bilaterally. He had not developed a significant midfoot collapse, although he had bilateral mild pes planus. He had some irritability of his mid tarsal joints but he did not have significant swelling (Exhibit G at DCB36c).
On 12 December 2012 Mr John O’Brien recorded that the Plaintiff now described fluctuating pain localised to the dorsum of the right forefoot. In general, the Plaintiff reported the pain to be quite mild, however, stated that on occasions for a few days the pain can become quite significant causing him to limp (Exhibit 8 at DCB11).
In cross-examination, the Plaintiff gave evidence that in December 2012 the pain in his right foot was mild at times and at times it was severe about 5-6 times per month depending on the weather and his workload. He would have an aggravation such that he would limp but he would not be limping every day (T37, lines 12-30).
Mr O’Brien again noted that the Plaintiff demonstrated a normal gait (Exhibit 8 at DCB11). He further opined that the Plaintiff described minimal disability associated with weight bearing function (Exhibit 8 at DCB11).
According to Mr O’Brien the Plaintiff has in fact recovered well from the injury and his general domestic, social, recreational activities would be minimally if at all restricted by what now were very mild symptoms (Exhibit 8 at DCB12).
Following her examination of the Plaintiff on 28/2/13 Dr Oi issued a Certificate of Capacity, referring to the right foot injury, which stated that he was expected to be fit for normal duties from 28/2/13 (Exhibit 10).
Dr Oi opined in her report dated 29/3/13 that (after the expiry of a 2 year period post the work accident) the Plaintiff seemed to have recovered and was in stable satisfying employment and in a new stable relationship. His general prognosis at that moment was good, but he would require further monitoring at intervals … (Exhibit F at PCB48).
She further noted an improvement in his physical and mental state which had a flow on effect on improving his eating habits and reducing his obesity (Exhibit F at PCB47).
What the Plaintiff did/does about the Pain (eg. medication, rest, seeking medical treatment)[33]
[33]Per Maxwell P at [11] in Haden Engineering Pty Ltd v McKinnon (supra).
The Defendant submits that it is important to consider whether the pain or restrictions claimed are continuous or substantial (by looking at, amongst other factors, the Plaintiff’s treatment, including any possibility of surgery, and medication including dosage and frequency)[34].
[34]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 per Ashley JA and Beach AJA at [48]; Sabo v George Weston Foods [2009] VSCA 242 per Neave and Mandie JJA at [72].
In the period from February 2009 to February 2013 the Plaintiff has attended once on 2 General Practitioners at Medical One, Taylors Lakes in respect to right foot problems (T35, lines 16-26).
One of those General Practitioners suggested for him to take some light anti-inflammatories and painkiller over the counter, such as Panadol. He or she prescribed Celebrex about 1.5 years ago but the Plaintiff did not obtain it and did not start using it. He has not used Celebrex to date nor any prescription medication. He does not take medication every day and takes it infrequently and he is able to perform his full duties on the days that he does not take that medication (T35, lines 30-31, T36, lines 1-24).
The Plaintiff is not having any active treatment for his right foot at this stage (T38, lines 19-20).
The Plaintiff was reviewed in April 2008 by Mr Beischer and he was told that his fractures have healed. He was further advised to continue wearing his stiff solid shoe with an insole. The Plaintiff was also told by Mr Beischer that he would be reviewed on an as needs basis (T22, lines 17-27).
The Plaintiff understood that if he had problems he could have made an appointment to see Mr Beischer, yet he has not done so in the period from 22/4/08 to 11/9/12 (T24, lines 26-31; T25, lines 1-5).
Following his appointment with Mr Beischer on 11/9/12 to date the Plaintiff has not made an appointment to see him again. It is his intention to see him at the end of 2013. In February 2013 Dr Oi has suggested for him to see Mr Beischer again, but to date the Plaintiff still has not got an appointment to see him because he has been unmotivated, lazy and forgetful (T22, lines 29-31; T23, lines 1-29; T24, lines 6-7).
The purpose of the x-rays performed earlier this year (Exhibit E at DCB36a) was for Mr Beischer to see if there were any arthritic changes in the Plaintiff’s right foot and for Mr Beischer to provide his opinion on these scans. Even though these scans were performed in March of 2013 this has not been done to date (T41, lines 5-19).
The Defendant submits that if the Plaintiff’s right foot pain was of sufficient severity and/or if his right foot was causing him significant discomfort and serious consequences, he would have done something about it, by way of attending his General Practitioner/s more frequently and Mr Beischer seeking further treatment. As well as, taking regular prescription medication.
If the Plaintiff was as concerned about the prospect of the early onset of arthritis in his right foot as he deposes to (Exhibit A, paragraph 20 at PCB20; Exhibit C, paragraph 10 at PCB34D), he would have had even more reason to attend Mr Beischer prior to today’s date seeking his opinion on precisely this issue and as to any further treatment.
Work Capacity/Retained Capacity
Exhibit 2 – Video Surveillance dated 16/5/12
The Plaintiff has demonstrated ability to:
● Stand in one spot without bending his right leg to rest the toes of his right foot (without any noticeable difficulty or restriction a number of times over the period of that day);
● Stand with 2 feet on the ground, legs apart (without any noticeable difficulty or restriction a number of times over the period of that day);
● Perform a lot of walking around within the nursery (without any noticeable pain when walking and without any noticeable restrictions)
TT49, lines 13-31; T50, lines 1-8, 13-14, 18-20
● Carry pot plants, move them around and walk for that purpose. He was putting pressure on his right leg and foot when bending down to grab various pot plants without any noticeable pain or restriction. He was able to kneel down low to the ground and get up in a relatively free manner without noticeable pain. He was getting up on his left leg but also used his right leg with some pressure on it when getting off the ground;
● Repetitively bend at the waist in an adequate manner;
● Repetitively squat and remain in that position for periods of time whilst putting pressure on his right foot without there being noticeable pain
T50, lines 21-31; T51, lines 1-19
Exhibit 2 – Video Surveillance dated 19/5/12
The Plaintiff has demonstrated ability to:
● Push a line of 6 empty trolleys at quite a brisk pace without any noticeable discomfort or difficulty;
● Lift and carry quite a number of large pot plants requiring bending, grabbing the pot plants and moving around with them and then putting them onto the ground without any noticeable discomfort or difficulty when doing this;
● Help a customer put bags of soil from a trolley into the back of a car in a quick/brisk manner without difficulty and without restrictions of movement
● The Plaintiff did not see himself in pain when doing a little jig/dance when talking to his co-worker;
● Perform manoeuvres such as turning to the side, stepping backwards/forwards, moving sideways without any noticeable difficulty
T53, lines 3-41; T54 lines 1-31; T55, lines 1-11
Exhibit 3 – Video Surveillance dated 12/12/12
The Plaintiff has demonstrated ability to:
● Stand in one spot with both of his feet spread apart on the ground without difficulty;
● Lean forward with his left leg being completely off the ground and all his weight resting on the right leg (T59, lines 18-28)
The Plaintiff accepted that the work activities shown in Exhibits 2 and 3 represent the regular type of activities in his day to day work (T60, lines 11-15).
In the period from mid 2007 onwards until the date of his injury he averaged 27 hours per week whilst working for the Defendant (T15, lines 25-31).
Whilst working for Masters he has continued full-time employment of 38 hours per week from the end of 2011 onwards to date. He is consistently able to perform 38 hours of work per week and to perform all the tasks required of him in that employment (T33, lines 23-31; T34, line 1).
On a regular day he will move about pot plants that he has to put away from a delivery. He waters the plants and discards dead ones. He moves pavers or assists customers in helping them into their car with their products. This requires a lot of walking, some periods of standing in one spot, talking to customers and co-workers on a regular basis; can require shifting quite heavy objects such as pot plants, shifting bags of soil, etc; bending down and squatting and putting pressure on his right foot when he does that. He is able to do all these tasks, with difficulty, but satisfactorily (T34, lines 2-26).
The Plaintiff gave evidence that he starts to feel a bit of pain in the foot after extended periods of doing it. He has difficulty at times especially with heavy products, etc. some days he has large deliveries consisting of maybe 6-8 pallets of plants or he will have to help a customer with say 50 pavers into their car and that will increase the difficulty. Other than that he is still able to perform the tasks and does do them (T34, lines 28-31; T35, lines 1-6).
He can weight bear and perform his duties (T40, lines 28-31; T41, line 1-4).
The Court is alerted to the history given by the Plaintiff to Professor Myers such that he found it difficult to stand for any length of time (Exhibit K at PCB54). Likewise, the Court is alerted to the Plaintiff’s Affidavit evidence that he finds it difficult to stand and walk for extended periods and struggles to remain upright for prolonged periods let alone maintain his posture (Exhibit A, paragraphs 21 and 22 at PCB18; Exhibit B, paragraph 4, PCB21-22; Exhibit C, paragraph 10 at PCB34D). Such evidence is clearly at odds with the abovementioned and must be rejected by the Court as not reflecting the true situation.
The Defendant submits that the Plaintiff’s belief as expressed in Exhibit A, paragraph 32 at PCB20 that his earning capacity has been severely diminished if not destroyed is at odds with reality. In fact, the Plaintiff is consistently working 11 more hours per week than he used to in his pre-injury employment with the Defendant.
The Plaintiff’s Affidavit evidence such that - he believes his days of working in the chosen profession (horticulture) are limited; he is not sure if he will be capable of performing his work duties into the future – is fanciful and is at odds with the weight of the evidence, and as such the Defendant submits that the Court should reject such evidence.
The Plaintiff is coping with all of his work duties at Masters in a satisfactory manner whilst working on a full-time basis and has done so for a period of close to 2 years.
Mr O’Brien opined that the Plaintiff has returned to the workforce on a full-time basis, with his duties in fact requiring a suitable amount of weight bearing function. This does not appear to have been a source of aggravation of symptoms. Mr O’Brien therefore considered that the Plaintiff remained capable of full-time employment and it would appear unlikely that his injury would significantly impact on future employment (Exhibit 8 at DCB12).
Professor Myers opined that the Plaintiff was able to cope with his present employment as a horticulturalist (Exhibit K at 55) and that he had capacity for his present employment (Exhibit J at PCB50).
Whilst the Plaintiff cannot return to his pre-injury employment with the Defendant by virtue of his right foot injury there is no evidence before the Court that he enjoyed that work or that type of work. It is not a situation of a loss of vocation and, as such, any restriction for pre-injury type of employment must be disregarded by the Court, as it does not constitute a proper consequence for pain and suffering purposes[35].
[35]Haden Engineering v McKinnon (supra) per Maxwell P at [15]-[16].
The Defendant submits that the Plaintiff has successfully returned to full-time employment and is physically able to continue performing such work. There is no evidence of him experiencing significant pain or that he otherwise significantly suffers physically as a result of the claimed impairment. Analysis of the whole of the evidence in this case tends against a conclusion that the pain and suffering consequences claimed are serious[36].
[36]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at [24] per Chernov JA and Stijepic v One Force Group Aust Pty Ltd & Anor (supra) per Ashley JA and Beach AJA at [47].
Arthritis/Need for further surgery
The Defendant submits that the Plaintiff was referred for an x-ray of his right foot to confirm whether there was arthritis present.
Such x-ray, being the most recent radiological investigation of his right foot dated 4/3/13 (Exhibit E at DCB36a) does not confirm the presence of any arthritis. It shows moderate degenerative changes of particularly in the right first MTPJ; old fractures of the right 2nd, 3rd and 4th metatarsal bones and further degenerative changes of the right first metatarsotarsal joint.
To date the Plaintiff has chosen not to schedule a review with Mr Beischer to discuss the radiological findings of this x-ray and whether there was arthritis present, as well as future treatment options, despite admitting his knowledge that the purpose of this x-ray was for Mr Beischer to see if there were any arthritic changes in the Plaintiff’s right foot and for Mr Beischer to provide his opinion on the scans (T41, lines 5-19).
There is no medical report from Mr Beischer before the Court post dating his letter dated 11/9/12 (Exhibit H at 36d). As such, the Court is unaware of Mr Beischer’s opinion commenting on the radiological findings of the x-ray dated 4/3/13; the presence/absence of arthritis and future treatment options. The Defendant submits that the Court should draw an adverse inference in this respect pursuant to the principles of Jones v Dunkel, on the basis that such evidence would not have assisted the Plaintiff.
The Defendant submits that on the material to date Mr Beischer has merely expressed suspicions of the development of some early midfoot osteoarthritis, most likely related to the right foot injury (Exhibit H at PCB36d). However, he required x-ray results of the right foot to make a definitive diagnosis. This has not occurred. The Court, therefore, should view Mr Beischer’s expressed views to be no more than suspicions and attach little weight to them.
On 11/09/12 Mr Beischer recorded as part of the treatment plan for the Plaintiff to have x-rays and then to be reviewed in 2-3 weeks. This has not occurred to date. Mr Beischer further stated ‘probably for continued non-operative therapy at present’.
There is no evidence before the Court from Mr Beischer that, on the balance of probabilities, the Plaintiff requires or will require surgery in the future. At best, Mr Beischer expressed a conditional view that if the arthritis (which is yet to be confirmed to be present) was to become a problem in the future then potentially symptomatic arthritis could require surgery (Exhibit O at DCB 30).
The Court likewise cannot be satisfied, on the balance of probabilities, that even if there is arthritis in the Plaintiff’s right foot there will be a progression of it in the future.
Professor Myers stated in his report dated 4/6/12 that in respect of the long term prognosis there should be no future complications and no further treatment would be required in the future (Exhibit K at DCB55). However, in his report dated 4/3/13 Professor Myers opined that there was likely to be development of arthritis, without stating the basis for changing his opinion (Exhibit J at DCB50). The Defendant submits that the Court should reject this unexplained change of opinion.
Nonetheless, Professor Myers stated that he could not comment about future treatment until the Plaintiff has had x-rays of the foot and was reviewed by Mr Beischer (Exhibit J at DCB50).
Dr Oi stated that the osteoarthritis in the Plaintiff’s right foot may worsen in coming years, but that was difficult to predict (Exhibit F at PCB48).
Finally, Mr O’Brien stated that from the current symptoms as at 12/12/12 he considered that there was no indication for further surgery. He could not rule out the possibility of increasing symptoms if arthritic change in these joints did progress. Mr O’Brien further mentioned that it would be of interest to review x-rays which were about to be undertaken (Exhibit 8 at DCB11-12).
Sleep
Occasionally on particularly heavy days of workload the pain in the Plaintiff’s foot will prevent him from sleeping at the times that he would like to. He sleeps 5.5 to 6 hours per night on average and does not take any sleeping medication nor has he requested any such medication from Dr Oi. On weekends he sleeps possibly 7 hours a night and he is able to do that regardless of any problems with his right foot (T33, lines 7-22).
Just before the work injury to his right foot the Plaintiff got about 7-9 hours of sleep per night, especially on the weekends when he had time to relax. He finds himself waking up a bit more often now due to pain, worry and anxiety. When looking at the impact of pain only it prevents him from getting to sleep on time at least 4-6 times per month and wakes him up possibly about 2-3 times, depending on the work and the weather (T69, lines 13-31, T70, lines 1-6).
The Defendant submits that when a comparison is made between the Plaintiff’s ability to sleep prior to and following the right foot injury (focusing on the impact of pain alone) the difference is quite negligible. The Plaintiff still retains an adequate capacity to sleep and has not seen it fit to date to seek out and take sleeping medication to help his sleep.
Walking
The Plaintiff gave evidence that prior to his work injury he used to walk for probably 8km every night which took roughly 1 hour 45 minutes. He did not feel confident that he could do this now and definitely not every night (T67, lines 11-18).
The Plaintiff has not tried to do this kind of walking post injury. He has not tried any large hikes. He agreed that it was possible that he could do them, which he imagined with difficulty. However, it was a possibility that he would be able to complete the hike (T72, lines 20-31).
The Defendant submits that the Court should have confidence that the Plaintiff has retained this walking capacity in light of the demonstrated walking ability as shown in Exhibits 1-4 and based on his viva voce evidence given during cross-examination. The Defendant further submits that it cannot be concluded on the balance of probabilities that the Plaintiff can no longer perform recreational walking of the kind which he used to do pre-injury.
The Plaintiff gave viva voce evidence that the peak of his walking abilities was when he participated in a pilgrimage in Spain which was roughly 30 days of trekking between 17-27km per day. He did not feel confident that he could do this now (T67, lines 19-26). The Defendant submits, however, that the Plaintiff did not intend to do this type of walking on an ongoing basis (T72, lines 11-19).
The Plaintiff has expressed his lack of confidence in being able to do this type of activity, but he has not tested his ability to do so post injury. As such, it cannot be concluded on the balance of probabilities that this ability is lost to him. Even if the Court so concludes, the Defendant submits that it should attach little weight to such consequence as it is an activity which the Plaintiff did not intend to pursue in the foreseeable future.
Starting his own business
In this respect the Plaintiff gave viva voce evidence that he would be able to do the design aspect of it well, but thinks he would find the implementation of those designs difficult (T70, lines 20-24). However, he has not explored this business option since his right foot injury (T73, lines 9-10). He is not confident in the implementation of the designs. There is a possibility of him doing it but it would be difficult (T73, lines 25-30).
The Plaintiff has expressed his lack of confidence in being able to implement the designs of the business, but he has not tested his ability to do so post injury. He has not seriously explored the option of starting his own business. The Defendant submits that it is not something that the Plaintiff intended to pursue pre-injury nor something that he wishes to pursue post-injury for unrelated reasons. He is happy in his current job and enjoys doing it.
In any event, the Plaintiff has not tested his capacity to start and run his own business. As such, it cannot be concluded on the balance of probabilities that this ability is lost to him.
Pain symptoms in other body parts
Whilst it is the Plaintiff’s own belief that he is over compensating leading to pain symptoms in the other side of his body (such as hip and leg) (T71, lines 27-31) there are no medical opinions confirming same before this Court. The Plaintiff is not a medical witness and is unable to provide the required proof of causation, on the balance of probabilities.
Pain
The tenor of the evidence before the Court is that the Plaintiff suffers from fluctuating pain in his right foot which has been described as ‘mild’ by a number of medical practitioners, save for periods of aggravation a few times per month when the pain increases to a severe level.
The Defendant submits that the Plaintiff’s pain cannot be described as ‘excruciating or unrelenting’ and has not been so described by any of the medical practitioners who provided the tendered material. Furthermore, the Plaintiff’s pain is relieved by infrequent usage of over the counter medication.
The Defendant submits that the Plaintiff has not established that he suffers from a continuous and substantial level of pain, which is an indication of the lack of sufficient impact of the claimed injury/impairment on him and the lack of serious consequences[37].
[37]Sabo v George Weston Foods (supra) per Neave and Mandie JJA at [72] and Stijepic v One Force Group Aust Pty Ltd & Anor (supra) per Ashley JA and Beach AJA at [48].
The significance of what has been lost is informed by what is retained[38]
[38]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) per Ashley JA (with whom Nettle and Dodds-Streeton JJA agreed) at [27].
Gardening
In 2008 the Plaintiff was interested in gardening and did gardening at his house. He was able to perform propagation of seedlings for the veggie patch and assisted his father in building some garden beds. This required walking around for prolonged periods of time and putting pressure on his right foot whilst doing so which he was able to do despite any problems with his right foot at the time. It also required him to stand in one spot but not for very long periods of time as well as to get on his knees. There was minimal digging usually with a trowel (T29, lines 9-39).
He has continued this gardening in a minimal fashion over the years to this time but he is able to perform it (T30, lines 1-5).
The Plaintiff gave evidence that before his work injury he was digging a bit more but generally he was still maintaining the vegetable garden (T66, lines 14-17).
Activities of Daily Living
As at December 2012 and as of now he is able to carry on normal activities of daily living (T38, lines 21-27).
Painting/Renovation Work
He can paint and recently has painted the cabinet doors, etc as part of kitchen renovations of the new place into which he has moved in with his girlfriend. He believes that he has just finished painting the cabinet doors a couple of weeks ago. This required him to stand and move as he painted; to maintain static posture as he painted and to stretch upwards or forwards. He put pressure on his right foot whilst doing all these activities and used a step ladder. He was able to paint despite any foot pain or problems he had (T43, lines 18-31; T44, lines 1-12; T44, lines 22-23).
In terms of renovation work at that house he has assisted his brother in helping to cut up some bench tops; he had to move furniture and cabinetry in and did general cleaning up. He was able to move the furniture and do the required cleaning despite any right foot pain he felt at the time (T44, lines 16-21; T44, line 24).
He has set aside his weekends to try to help where he can in the maintenance. He has done the required maintenance along with his partner and brother and will do his best to participate in future renovations at this house (T45, lines 3-16).
Driving
He is able to drive for quite long distances (T45, lines 17-18).
Walking/Standing Capacity
The Court is referred to the submissions above in this respect as well as to Exhibit 1.
Exhibit 1 - Video Surveillance dated 24/8/11
He is able to walk without any noticeable restriction; able to stand upright and did not see himself in pain; able to move about and walk around without any noticeable difficulty; able to get inside the car without any noticeable restriction (T47, lines 29-31; T48, lines 1-8).
Social Interaction
The Plaintiff retains the capacity for social interaction with his mates and girlfriend.
He can still go out with his mates despite any problems he feels in his right foot and he is still able to spend time with them and go out on social occasions with them (T31, lines 2-6). He is able to go out to places with his girlfriend in terms of various shops and takes her for drives. His right foot pain does not stop him from doing this and certainly does not stop him from having a meaningful relationship with his girlfriend (T42, lines 7-13).
Wearing Shoes
The Plaintiff can wear a variety of shoes as long as the sole is thick enough to insert the carbon plate and as long as the composition of the sole itself can hold the glue (T73, lines 11-18).
Summary
He can do maintenance, gardening, painting, driving and work full hours without prescription medication and without taking non-prescription medication every day (T46, lines 5-15).”
The Plaintiff’s submissions – Exhibit P
“The Defendant’s barrister alleges the Plaintiff exaggerated consequences both in terms of physical incapacity and psychological difficulties (Transcript – Page 12, Line 16). He further stated it was true the Plaintiff does not rely upon paragraph (c) but he alleges the exaggeration negatively impacts on his credit. He submitted to Your Honour that the Plaintiff had exaggerated those psychological and physical consequences.
It is my submission the Plaintiff was a forthright, honest, credible witness who did not exaggerate. It is my submission that Your Honour should accept the Plaintiff’s evidence as to the consequences that have befallen him due to the accident on 24 September 2007.
The Plaintiff, whilst employed by the Firstnamed Defendant on 24 September 2007, suffered a crush injury together with fractures to three toes of his right foot when a 20 foot crate weighing two to three tonnes fell on his foot (Exhibit A, paragraph 13). The plaintiff was not able to undergo surgery until 15 October 2007 because of the severe swelling (Exhibit A, page 18, paragraph 17). Dr Oi in Exhibit ‘F’ saw the Plaintiff on 24 September 2007 and found the Plaintiff could not walk. X-ray showed fractures at the 2nd, 3rd and 4th metatarsal with some displacement. He was referred to Mr Biescher (sic) who operated the next month. On the second page of the Exhibit, a special boot was made for the Plaintiff. Further, Dr Oi sent him to see a psychologist as he was depressed. As set out in page 3 of Exhibit ‘F’, he saw the Plaintiff on 28 February 2013 and the Plaintiff was just managing the physical aspects of his work.
Professor Myers, in Exhibit ‘J’ considered the Plaintiff suffered a crush injury of his right foot. Professor Myers in Exhibit ‘K’ last page, says the restrictions will be long term.
Treatment
15 October 2007, the Plaintiff underwent an open reduction internal fixation of his fractures (2nd, 3rd and 4th metatarsals) (Exhibit N)
Medical Evidence
The Plaintiff’s current medical diagnosis is such that he suffers from osteoarthritis and degenerative changes of the 2nd, 3rd and 4th metatarsals of the right foot (Exhibit E). This comes as no surprise as following the Plaintiff’s surgery, Mr Beischer noted that the Plaintiff is likely to suffer osteoarthritis following the work related injury (Exhibit O). The diagnosis of osteoarthritis was made by Mr Beischer in September 2012, prior to the most recent radiological findings (Exhibit G). It was also confirmed by Dr Oi in early 2013 (Exhibit F, 2nd last page). Dr Oi further states that it is likely that the Plaintiff’s osteoarthritis will worsen in the future (Exhibit F). Further, Mr Myers also notes that the development of arthritis is likely. (Exhibit J, last page).
Further, medical opinion has revealed that the Plaintiff is likely to require further surgical treatment if his symptoms associated with the arthritis, worsen. In particular, Mr Beischer notes that ‘symptomatic arthritis of the tarsometatarsal joints could require further surgery’. (Exhibit O, page 5). Mr O’Brien expressed a similar opinion when he expressed that if arthritis change did progress, ‘more definitive treatment may become necessary’. (Exhibit 8, page 3).
Given the Plaintiff has now been diagnosed with osteoarthritic degenerative change in the metatarsal joints, and based on the medical opinions raised above, it is likely that the Plaintiff will require further medical treatment in the future. This supports a finding that the Plaintiff’s medical condition is permanent and likely to persist for the foreseeable future.
Pain and Suffering Consequences
As Your Honour requested, the Plaintiff’s pain and suffering consequences will be displayed in table format below in order to demonstrate what the Plaintiff has lost and what has been retained.
It is noted however that my learned friend, in his submission, argued that the Plaintiff’s injury is not serious particularly because he had not consulted with a GP for approximately three years. In response to this submission, we refer Your Honour to the case of Brett Dwyer v Calco Timbers Pty Ltd (No 2). In this case, their Honours found that the ‘…fact that the appellant has not had treatment for many years does not stand…against a conclusion that his continuing pain, though not ‘disabling’, is nonetheless a matter of some significance’.
Further we state that notwithstanding this gap in attendances with a GP, the most recent medical evidence clearly shows that the Plaintiff is still suffering from the injury sustained during the course of his employment with the Defendant, and that the injury is serious and permanent.
Their Honours in Brett Dwyer v Calco Timbers Pty Ltd (No 2), also stated that the ‘… appellant gave evidence, in effect, that he abandoned treatment - including the taking of analgesics - when he was told that nothing more that could be done for him. He did not pretend in evidence that the pain was crippling. He said in a forthright way that he suffered aching pain in the morning and after a day's work. There was no reason to disbelieve him’.
Similarly in this case, the Plaintiff takes analgesic medication on an as needs basis. Further, he was consistent in his presentation and he did not overstate the extent of his pain. As Your Honour noted after watching the video surveillance, the Plaintiff presents as a man that is doing ‘the best he can to do an honest day’s work’. (Transcript – Page 57).
As a result of his right foot injury, the Plaintiff is requires a carbon plate inserted in his shoes to assist with the difficulty he has with walking. This plate is uncomfortable and causes the Plaintiff to walk awkwardly. The Plaintiff gave evidence that as a result of the plate, he subsequently feels pain in his hip and leg. (Transcript, Pages 36, 37 Lines 8-9; 18-28; Page 38, Lines 1-11, Page 39, Lines 2-7 and 14-16; Page 40, Lines 4-5, 25-27; Page 42, Lines 28-31)
The Plaintiff is very stoic in nature. As Your Honour will see from the Transcript, he presents as an individual who is far from an exaggerator and prefers to get on with his life and put up with the pain. The Plaintiff acknowledges that he is in constant pain however that he just does not think about it. (Exhibit J). Further, it is clear that the Plaintiff has been consistently motivated to return to work and not allow the injury to overwhelm his life. This does not take away from the fact that the Plaintiff has in fact suffered a serious injury and continues to suffer pain and suffering consequences arising out of this injury. The medical evidence provides ample support for this finding and therefore Your Honour should have no difficulty in determining that the Plaintiff has sustained a serious injury.
Before and After Comparison
Pain and Suffering Consequences Before the Injury After the Injury Walking
8-10km walks (1 hour, 45 minutes), every night (Transcript – Page 67, Lines 11-16)
Plaintiff also undertook a pilgrimage whereby he walked between 17 – 27 kilometres per day. (Transcript – Page 67, Lines 19-24)
Due to his right foot injury, the Plaintiff is unable to walk for prolonged periods without rest. (Exhibit C, Paragraph 5)
Also experiences pain with prolonged walking. Plaintiff experiences pain in the right great toe with prolonged walking. (Exhibit 8, Page 2; Transcript 39, Lines 2-31)
The likelihood of the Plaintiff ever being able to undertake a pilgrimage of a similar nature is slim.
Altered gait (Transcript 40, Line 4-5)
Walks strangely (Transcript 28, Line 20; Transcript 37, Line 18)
Pain causes him to limp. Sometimes mild, at times severe. (Transcript 37, Line 18-28)
Feels strange walking, unable to walk as used to (Transcript 39, Line 2-3)
Walking is now a challenge, needs to wear ‘Brooks’ shoes, altered gait. (Transcript 42, Line 28-31, Transcript 43, Line 1-3)
Gardening/Landscaping
Undertook a significant amount of digging. (Transcript – Page 66).
The Plaintiff also had prospects of undertaking landscaping and starting his own business in this area. (Exhibit F, Dr Oi, Last Page).
At best, completion of his work activities. (Transcript – Pages 66, 68 and 73)
Likelihood of him starting his own business in landscaping has been significantly diminished. (Transcript – Pages 67-68)
Landscaping would require heavy digging which the Plaintiff does not have the physical capacity to undertake. (Transcript – Pages 67-68).
Social Activities
Was very socially involved (Exhibit B, Paragraph 8)
Plaintiff often found it difficult to go out. (Transcript – Page 66)
Restricted Movement
None.
Insertion of carbon plate in Plaintiff’s right shoe causes the Plaintiff to walk awkwardly (Transcript 28, Line 20; Transcript 37, Lines 18-28)
Restricted dorsiflexion, plantar flexion and eversion. (Exhibit J, Page 7).
‘Restriction of dorsiflexion of the relevant toes and also evidence of hallux rigidus involving the first metatarsophalangeal joint. In addition, there is restriction of movement of the first interphalangeal joint of the right great toe’ (Exhibit 8, Page 2)
Constant Pain
No pre-existing pain
Constant ‘ache’ in the right foot, increasing in the evenings after a busy day at work. Pain around the ankle and right side of the knee. (Transcript – Page 65; Exhibit K, Exhibit 8)
Pain is ‘always there’ but the Plaintiff ‘does not think about it’. (Exhibit J)
Significant problem with Right Foot (Transcript – page 24)
Aching – severe (Transcript – page 45, Lines 1-11)
Getting worse (Transcript – page 45, Line 22)
Weight bearing on Left Side (Transcript – Page 52)
Plaintiff has reported consistent pain for approximately four and a half years and ongoing (Exhibit 8, Page 2).
Pain is exacerbated by cold weather. (Exhibit K, Page 2; Transcript – Page 70, Line 5).
At times, the pain is so severe that the Plaintiff cannot move. (Transcript – Page 65, Line 27).
Sleeping
Not affected
Plaintiff often wakes up due to pain (4 to 6 times a month). On busy days at work, he finds it more difficult to get to sleep due to pain in his right foot. (Transcript – Pages 69 and 33 – Line 8)
Full Time Pre Injury Employment
Worked Full-Time unrestricted duties
Injury to the right foot will restrict the Plaintiff’s capacity to perform full time pre-injury duties or Landscaping (Exhibit F; Exhibit J, Page 2).
Plaintiff cannot undertake heavy manual labour duties. (Exhibit F, Page 4; Exhibit J, Page 2; Exhibit 7, Page 3-4).
Weight
Weighed 142 kilos (Transcript 15, Line 2-9)
Got to 170 kilos (Transcript – Page 15, Line 9)
Now 147 kilos (Transcript – Page 15, Line 11)
Shoes
Normal
Carbon Plate inserts in right shoe (Transcript – Page 18, Line 18)
Walks strangely due to carbon plate (Transcript – Page 28, Line 20)
Pathology
None
‘Post-traumatic arthritis affecting the midtarsometatarsal joint and also described affecting the metacarpophalangeal joint of the toes’ (Exhibit 8, Page 3).”
Findings
66 I found the plaintiff to be an honest witness doing his best to tell the truth. He answered all questions directly without embellishment. He made appropriate concessions. In his oral testimony he did not exaggerate his condition or the extent of his problems. He never attempted to portray himself as a victim of misery or misfortune. Although he initially had psychological issues associated with what must have been a traumatic experience, he applied himself to treatment and rehabilitation. With professional assistance he has largely overcome these psychological problems and no longer complains of them.
67 There is no suggestion that the plaintiff is faking symptoms, fabricating evidence or malingering.
68 I agree with Mr Churilov that the plaintiff’s affidavits paint a more grave picture of disability than does the plaintiff’s oral testimony. However, that does not mean that the affidavits contain falsehoods, or that any apparent inconsistency is necessarily fatal to his application.
69 It is common ground that because of his injury every day, for most of his waking hours, unless he is predominantly seated, the plaintiff must wear stiff, modified shoes with an orthotic insole, which he describes as uncomfortable. These are needed to immobilise his toes, to assist in healing, to alleviate strain and to protect his toes from further deterioration.[39] Previously, the plaintiff enjoyed the freedom to wear any shoe of his choosing – fashionable, comfortable, light, heavy duty, whimsical or sensible. Now the plaintiff is confined to purchasing thick-soled shoes that are capable of accommodating both an orthotic insole and adhesion or insertion of a carbon plate sole. Soft sandshoes, flexible runners or slippers are out of the question. Whilst the beneficial function of this modified, rigid footwear is to protect, it also serves to inhibit natural, normal, fluid and free movement. Instead of transferring weight from heel to ball of foot and then pressing off the toes, when walking the plaintiff’s movement is “flat-footed” and rigid.[40]
[39]See exhibit F, PCB 46, entry of 24 April 2008; Exhibit O, page 3, review of 22 April 2008 and exhibit 7, opinion of the defendants’ witness, Mr O’Brien, page 4, almost one year after the incident: “I am sure that he will benefit from the continuing use of an insole in the right shoe. Also I would suggest the continuing use of a rigid soled shoe will restrict right forefoot strain and further accommodate full healing of the significant injury.”
[40]T70 - T71
70 In my judgment, it is a significant factor that the plaintiff is dependent on this modified shoe in order to perform the fundamental activity of walking. It is an activity inherent in his restricted work. It is inherent in the one physical activity from which he previously derived pleasure and which assisted him in weightloss and management. Another way of looking at it is to ask what the plaintiff would be capable of doing without the modified shoe? Would he be capable of performing his current work? Would his pain be even worse? It is one thing to modify a person’s work environment to cater for their injury. In such a case there is no interference with the person. But it is quite another matter to effectively impose an aid onto the body of an injured person, which aid alters and restricts the natural movement of the foot. The plaintiff has adjusted well to this imposition, but it is not without cost.
71 Significantly, the plaintiff will never return to his pre-injury employment due to the injury, a fact that is not disputed. I accept that many work opportunities are no longer available to him (eg manual labour). I also accept it is unlikely that the plaintiff will be able to run his own business as a landscaper/horticulturalist without assistance of manual labourers. He will likely be unable to perform the physical labour involved in implementing his garden designs.[41] Although he has not yet pursued his own business, I am satisfied that he harbours a genuine interest in pursuing a career involving landscaping and horticultural design, given he spent two years studying to obtain his diploma. He has acted on that interest by successfully seeking employment based on his qualification, albeit it appears that his creative talents have not been exploited. Rather, as the surveillance videos show, much of his time is spent doing menial tasks.
[41]T70
72 I also accept that the plaintiff’s capacity for uninterrupted, restful sleep has been compromised and that his hours of sleep have been diminished. Good sleep is a vital function and such significant interruption to it as has been suffered by the plaintiff is a serious matter to be weighed in favour of granting leave.
73 Regarding pain, I also accept that the plaintiff endures pain on an ongoing basis in an intensity which fluctuates from mild to severe. I accept that because of his injury he experiences pain during the day and that he modifies his physical movements or rests to ease the pain. I accept that his pain increases in intensity during the day and that there are days, perhaps as many as five or six in a month, that the pain is very bad. It is true that the plaintiff is not crippled by debilitating pain every moment of every day, but that is not a threshold he needs to meet. The fact of frequent pain and its intensity is but one factor that must be weighed in the balance.
74 Regarding stoicism, I agree with Mr Ruddle that the plaintiff is somewhat stoic in nature and that he has tried to do his best to overcome his problems and re-enter the workforce. It is to his great credit that he does not complain or take time off work.
75 I am satisfied that the plaintiff’s condition has stabilised and that his loss of a body function or impairment is permanent.[42] I am also satisfied to the requisite degree that the plaintiff now has early onset of osteoarthritis,[43] and it is possible that in the future he will require further treatment or even surgery in respect of this condition.
[42]This was not an issue. In any event, the medical evidence supports this finding, particularly exhibits J and K.
[43]I have already referred to the medical reports that refer to osteoarthritis. Even the first defendant’s expert witness, Mr O’Brien, considers that arthritis is already present (exhibit 7).
76 I wish to add that I agree with and adopt Mr Ruddle’s submissions, for the reasons he advanced. The matters referred to are powerful factors that weigh heavily in favour of granting the application.
77 In making my assessment I have taken account of all of the evidence and of all of the legal principles earlier set out. I have weighed all consequences to the plaintiff of his impairment or loss of a body function with respect to pain and suffering, individually and cumulatively, and have compared those consequences with other cases in the range of possible impairments or losses of a body function. I have arrived at the conclusion that the plaintiff has established on the balance of probabilities, that he suffered a serious injury on 24 September 2007 arising from his employment with the first defendant.
Conclusions
78 I am satisfied on the balance of probabilities that the plaintiff has suffered a serious injury as a result of his employment with the first defendant and I propose to grant him leave to issue common law proceedings to recover pain and suffering damages. I will discuss the form of the orders with Counsel.
Orders
(1) The plaintiff have leave to bring a proceeding at common law pursuant to s134AB of the Act to recover pain and suffering damages for injuries arising out of the workplace accident on 24 September 2007.
(2) That the defendant pay the plaintiff’s costs, to be paid in accordance with the WorkCover (Litigated Claims) Legal Costs Order 2010.
(3) Certify for Counsel for the plaintiff at $4,200 per day, plus two hours of special conferences at $420 per hour.
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