Eales v Burns Philp and Co Pty Ltd
[2010] VCC 1136
•17 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06119
| GREGORY EALES | Plaintiff |
| v | |
| BURNS PHILP & CO PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 11 August 2010 |
| DATE OF JUDGMENT: | 17 August 2010 |
| CASE MAY BE CITED AS: | Eales v Burns Philp & Co Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1136 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act s.134AB – serious injury – injury to the right foot – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC with | Sparke Helmore |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 19 June 2006 (“the said date”).
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 s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right foot.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) provides that psychologically based consequences are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
12 In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: see Petkovski v Galletti;[3] Guppy v Victorian WorkCover Authority.[4]
[3] (1994) 1 VR 436
[4] (2010) VSCA 164
13 The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
14 The plaintiff is presently aged thirty nine, having been born on 22 April 1971.
15 The plaintiff was born in Corowa, New South Wales, and left school at the age of sixteen. He first worked as a stockman for eighteen months until he joined the Australian Army in 1988. He spent ten years in the Army as a corporal and worked as an assault pioneer.
16 That role was essentially as a paratrooper and the plaintiff’s job was to jump out of planes. The landings, when the plaintiff jumped out of planes, were hard on the plaintiff and he rolled his ankles many times.
17 The plaintiff liked being in the Army very much and saw a lot of the world and he also played a lot of sport.
18 The plaintiff was constantly playing sport in the Army, including touch football, rugby union and Aussie Rules in the nine and a half years he was there. He played three games of football a week and touch football nearly every day and depending on the battalion rotation, he could be playing three or four days of other sport as well.
19 The plaintiff was ultimately discharged from the Army on medical grounds due to the condition of his right knee. He is in receipt of a part pension of $30 a fortnight because of this condition.
20 The plaintiff explained the different standard of fitness required in the Army to what was considered fit in civilian life. The fact was that he could no longer jump out of a plane for a living because of his knee was the reason why he took a medical discharge.
21 When the plaintiff came out of the Army his knee slowly improved a bit over the next eighteen months. He did not do a great deal; he just took it a bit easier than having to march sixty or seventy kilometres at a time.
22 After his discharge from the Army, the plaintiff worked at Yarrawonga Abattoir as a loader supervisor, a desk job, for about three years or so. He then commenced work on 20 April 2004 with the defendant, Uncle Toby’s, as a process worker.
23 Prior to the said date, the plaintiff’s right foot was functioning well and he had never had any previous significant pain to his right foot. The plaintiff had, however, suffered a number of injuries.
24 In September 1991, the plaintiff had a right leg injury and rolled his ankle. It was not an overly bad injury. He was hospitalised for a couple of days as a precautionary measure and made a full recovery. The plaintiff deposed that the Army does not let someone do parachute jumps unless they are fully fit and medically cleared.
25 The plaintiff was cross-examined about a number of injuries recorded in his Army file.
26 In March 1991, the plaintiff injured his right knee playing football.
27 On 15 March 1991, the plaintiff had a right ankle complaint following marching.
28 On 2 September 1991, the plaintiff had a right ankle problem with an inversion injury caused by an awkward parachute landing. He did not suffer a fracture in that fall but he was admitted to hospital for observation. He received treatment for about six weeks and took painkillers.
29 On 13 November 1991, the plaintiff injured his left knee, twisting it in a parachute jump.
30 On 11 July 1993, the plaintiff injured his ankle while playing football at the Sydney Cricket Ground for the Defence Force team. He received treatment for that injury.
31 On 7 July 1995, the plaintiff injured his right foot while playing soccer, when he kicked another person’s foot. He then had about three weeks of physiotherapy.
32 On 30 January 1996, the plaintiff reported grinding in his right ankle, for which he had physiotherapy.
33 On 7 February 1996, the plaintiff hurt his right ankle playing football. At that time he was having a recurring inversion problem, having rolled his ankle a couple of times in a space of months.
34 The plaintiff had a bone scan which he believed showed plantar fasciitis and some joint degenerative disease in the ankle. The plaintiff was told by the regimental medical officer that he had a “crook ankle”.
35 On 29 February 1996, the plaintiff’s right knee needed treatment.
36 On 24 July 1997, the plaintiff had a right knee complaint that resulted in arthroscopic examination and a chondromalacia lateral release.
37 The plaintiff had a right knee arthroscopy performed by Mr Falkenberg in 2000.
38 The plaintiff was cross examined about a Commonwealth Department of Veteran Affairs’ lifestyle questionnaire signed by him on 9 September 1998. He agreed that document was part of his application to get him a pension from the Department.
39 He ticked the boxes indicating that he had ‘problems walking’ and with physical training. He noted that he normally rode or walked to work but now he caught public transport, because at that stage his knee stopped him.
40 Rarely or never did he play golf, tennis or fish. He was unable to play sports, such as football, cricket and rugby, and attend the gymnasium.
41 In cross examination, the plaintiff confirmed that he was unable to play any sport from the end of 1998 until early 2000. In 2000, he resumed cricket, football, golf and swimming.
42 The plaintiff denied he said whatever he needed to say to get compensation. He explained it was the standard of military fitness compared to civilian, what he thought he could do before the knee injury. If he filled in that form for his knee condition today he would note problems in certain categories.
43 The plaintiff was cross-examined about the history he gave to Dr Baker in June 2004 when he was examined at the request of the Delegate of the Commonwealth Department of Veteran Affairs for military compensation.
44 Having denied he had any problems driving before the incident, the plaintiff agreed that in mid 2004, he was having problems driving because of his knee pain. The plaintiff explained that the problem with his foot was totally separate to his knee in terms of driving.
45 The plaintiff agreed that prior to the incident, his knee swelled and produced pain to a limited extent. It locked or collapsed very irregularly. He had an ache in the joint itself. When he moved, it increased his pain and limited his walking to about thirty minutes, and he had to sit down. Whilst sitting he could not keep his leg still and had to keep moving it.
46 The plaintiff denied his sleep was upset by his knee. He said his knee was not normally very stiff getting out of bed in the morning. He then agreed that it was true that his sleep was disturbed then by his knee but not so much now, especially during the winter. Having denied any problems doing housework before the incident, the plaintiff agreed that he possibly had problems with housework and did not do the vacuuming.
47 In 2004, some days he had to sit on the edge of the bed to get mobile. He was doing swimming exercises for his knee. He went to the Corowa Golf Club pool to swim. He stopped riding a pushbike because of his knee.
48 The plaintiff explained he told Dr Baker that he used to play football, because at the time of the examination he had had major issues over that summer and he had retired and was playing golf with his father.
49 The plaintiff missed the game and wanted to get back into football. He played the second half of the 2004 season, starting off in the reserves because he was a little bit unfit but he played senior football in 2004, 2005 and up until the date of the incident. He did not play in 2003 because he moved to Queensland and he did not play because of his knee.
50 The plaintiff played with Wahgunyah. He played wearing a knee brace as his knee gave him trouble to a degree. Had it not been for his foot injury, he would still be playing football now.
51 The plaintiff agreed that in 2004, as a result of his knee injury, he had a limp and his weight increased from 94 to 102 kilograms because of his lack of exercise.
52 The plaintiff did not mention to doctors involved in his present claim that his knee was a problem in terms of daily activities because they did not ask him about it.
53 The plaintiff was cross-examined about a questionnaire signed by him on 16 April 2004 prior to starting work with the defendant. When asked about any previous painful joints or broken bones, he answered “sprained ankle parachuting”.
54 The plaintiff denied the lack of reference to his knee problems was a deliberate omission. He could not explain why around that time he had told Dr Baker in detail about his knee problem yet he did not mention it in the work questionnaire.
The Incident and Subsequent Treatment
55 On the said date, the plaintiff was operating a pallet stacker. The Crown walkie stacker failed to stop, crushing his right foot against a metal pole (“the incident”).
56 Immediately after the incident, the plaintiff looked down and his foot was literally squashed.
57 The plaintiff was taken to Corowa Hospital where he was an inpatient for two days and his leg was put in plaster and he was under the care of Dr Barrett. The plaintiff’s treating general practitioner at that time was Dr Slonim.
58 The plaintiff was subsequently referred to the fracture clinic at North East Health in Wangaratta, to orthopaedic surgeon, Miss Keith. She ordered the cast be removed because of swelling on the foot.
59 For about two weeks, the plaintiff was in a back slab and underwent investigation. A plaster cast was then applied and he was immobilised for about five weeks.
60 With the help of physiotherapy and other treatment from a podiatrist, the plaintiff gradually mobilised on crutches, which he used until September 2006.
61 The plaintiff had physiotherapy twice a week until November 2006, then he underwent treatment weekly.
62 The plaintiff’s improvement was slow and he got back to work under a return to work plan. He was still, however, immobilised in plaster and was working in the security office doing light duties.
63 The plaintiff was on crutches for five months. During that time the plaintiff’s baby son was learning to walk and the plaintiff was very frustrated that he could not be actively involved in that experience.
64 The plaintiff last saw Miss Keith around August of 2006. He thought she had reported to Dr Slonim.
65 The plaintiff was on light duties until about February 2007 and he returned to full time unrestricted duties with overtime at the end of March 2007.
66 The plaintiff agreed the last time he had seen his general practitioner about his foot was on 29 October 2007. He had not had any active treatment since, but he continued to exercise in his swimming pool at home.
67 The last investigation of the plaintiff’s foot was an x-ray on 15 September 2006. The plaintiff was not advised recently that the defendant wished him to undergo a further x-ray.
68 The plaintiff has not gone back to the doctor because basically he was told there was nothing further that could be done for him.
Pain 69
The plaintiff deposed, as of April 2009, he continued to have pain and discomfort. The pain was medially over the tarsus but also lateral. He had numbness of the lateral aspect of the right foot, dorsum of the foot and dorsum of the great to second toe.
70
The plaintiff described his pain as basically in the arch in the side of his foot and on the external side, the outside of his foot, basically diagonally across from it. The pain can go from a dull ache to quite excruciating if he had been on his feet for long periods of time.
71
The plaintiff had a dull ache in his foot all of the time. He had good and bad days when the pain varied in intensity.
72
There were some days he could not feel his foot, and on other days he had pins and needles. Without understating the severity of his foot injury, the plaintiff described that his right foot certainly had its days. When it was bad the right foot curled up like a ball. He was in pain every day.
73
The plaintiff has no real issue with his ankle joint. His right knee gives him grief some days. It does not cause him to limp. The fracture causes him to limp some days.
74
The plaintiff’s standing tolerance is maybe twenty five minutes to half an hour at most, then he has to find somewhere to sit down. Otherwise he finds it quite painful and uncomfortable because of the fracture. If it is unbearable, then he will take either Nurofen or Panadol to try and subside the pain.
75
On a bad day the plaintiff takes possibly six Nurofen and on a good day he does not take any. He would not have gone for weeks at a time without medication.
76
When he has told doctors he is not taking medication, he meant prescribed medication.
77
The plaintiff last took prescribed medication, namely Panadeine Forte, four months ago. On that occasion he had just finished a twelve hour shift and he almost decided to stay at his mother’s place which was near his work because he did not feel up to driving home.
78
Dr Slonim prescribed the Panadeine Forte in mid 2007 and the plaintiff uses it sparingly when he has bad days. He does not have any left. Way back he took Panadeine Forte once every two weeks, but now he uses Nurofen and Panadol. The plaintiff does not take any pain relief for his knee.
79
In cross-examination, the plaintiff agreed he told Mr Brearley in July 2010 that he had pain and discomfort in his right foot which was intermittent and to a degree it was there one day and not the next. There could be days when it is not there and it could be a week when he had no pain.
80
Occasionally his foot feels normal and often as not he has low grade nagging pain which lasts for a day or more. There is foot pain at night which interferes with his sleep. He has a limp at times, particularly in cold weather, but denied that was because of his knee.
81
The plaintiff explained he knew the difference between his knee aching and his foot aching.
82
The foot injury has improved with the passage of time but the plaintiff “is not in any way comfortable as he was before about himself.”
Sporting Activities 83
The plaintiff played competitive cricket for Wahgunyah as an all-rounder between 2000 and 2002 when his team disbanded.
84 Prior to the incident, the plaintiff played football for Wahgunyah. 85
He had played continuously from mid 2004 and was still playing at the time of the incident. Despite having knee problems which stopped him playing during 2003 and the first half of 2004, the plaintiff was able to resume playing wearing a knee brace.
86
In 2005, the plaintiff played in a representative team for the Kerang League, playing centre halfback.
87
The loss of football to the plaintiff since the incident is a great one as it was the major recreational activity and social activity in his life.
88
The plaintiff still attends the football but it is different when he is not playing as he feels he is not as involved in the club as he was when he was training and playing, when he “fitted in” with the conversations.
89
Counsel for the plaintiff tendered a page from the surveillance report of the plaintiff’s attendance at the football on 10 April 2010.
90
It was noted during that time, between 12.04 and 5.05 pm, that the plaintiff was observed engaging in a number of activities. He was overheard informing a spectator that since he had crushed his foot at work four years ago, he had not played football.
91
The plaintiff has not tried to resume football, because he finds it too discomforting.
92
The plaintiff has a very limited ability to kick the football and he cannot kick very far with his right foot. He kicks a little foam ball with his children. Prior to the incident, the plaintiff absolutely lived and breathed football. That was the only thing he was really good at and he just loved playing. It was a social thing as well, particularly having come back from spending so much time in the Army.
93
Football was everything for the plaintiff. The thrill of winning a premiership with two of his brothers was one of the best feelings he ever had.
94
Prior to the incident, other than football, golf was the one thing the plaintiff enjoyed. He just enjoyed being out there hitting a ball.
95
The plaintiff played golf three days a week, Friday afternoon, Saturdays and Sundays. He also played during the week, depending on work commitments, and if he had a day off he would have a hit of golf. He played at Rutherglen, Corowa and Howlong and had a handicap of seventeen.
96
The plaintiff played competition golf every Saturday and Sunday and played pennant golf for Rutherglen.
97
The plaintiff probably plays golf once every three months. He categorically denied that he had not returned to golf as early as September 2006 when asked about a note referring to golf in his clinical file.
98 The plaintiff has not had a handicap since the incident. 99
The plaintiff does not always use a buggy when playing golf and at times he walks. On two of the five occasions he played this year, the plaintiff walked the course and he played ten holes and nine holes. He got to the tenth hole and had enough and asked his mate to walk back to the pro shop and hire a buggy to come and pick him up.
Daily Activities 100
Due to his foot injury, the plaintiff has difficulty driving. He has to get out of his car every hour-and-a-half or so because his foot seizes up and he has difficulty driving to see his ex-Army friends in New South Wales. The plaintiff cannot have his foot on the accelerator for a long time and uses cruise control.
101
The plaintiff is quite limited in relation to playing with his children. He is restricted to the extent he can interact with them, such as playing cricket and backyard football because he cannot pivot or turn properly. He has problems running, chasing them around.
102
Prior to the incident, the plaintiff was very fit. He and his wife did a lot of walking. They walked into town which was a kilometre from their home. He now has lost interest in doing that.
103
In cold weather the plaintiff’s ankle feels like it is seizing up and it takes him five to ten minutes in the morning to get mobile.
104
The plaintiff cannot run far. In 2008, he wanted to get his fitness back and tried to run at a local oval. Over about three months he did three to four laps, shuffling and walking. However, the pain became too intense and he no longer tries to run.
105
The plaintiff was cross-examined about a clinical note on 3 May 2007, noting increased running. “Recently still runs but not sore.”
106
The plaintiff explained that after about three months of running, it got to the point where it became too painful to continue. He had been trying to do a few laps of the oval, walking and running. He described his running as more of a shuffle, a light jog. He was icing his foot after running. He agreed with the entry in his clinical file : “Feels good five days a week, one to two days it is sore” but said that was not true today, it has got worse.
107
When trying to run, the plaintiff felt like a stabbing pain in the side of his foot and it got to the point where it was not worth continuing.
108
Due to his foot injury, the plaintiff has difficulty going up and down stairs and he is very cautious when he does so. He now has to put his foot flat on each step as he walks up. He cannot just put the ball of his foot and walk up the steps.
109
The plaintiff has problems walking backwards. When he tries to, the pain shoots through his foot and it feels like his foot is going to seize up. If for some reason he has to walk backwards he in fact walks sideways.
110
When the plaintiff is lying on his stomach and his legs are out, his foot feels like it is suffering from a massive cramp.
Current Work 111
In cross-examination, the plaintiff confirmed he is seated at a console in his current job, overseeing the processing of muesli bars. This is the same job he did prior to the incident. About every twenty to twenty five minutes he gets up and does tasks associated with that process, being on his feet at the longest for five or six minutes.
112
The plaintiff works a seven day roster, working seven days out of fourteen. In a two week span he could work four days of twelve hours and he has the other days off. On average he also does overtime of eight hours per week.
113
The plaintiff last worked a twelve hour roster on the Saturday night before the hearing. After that shift, in which he spent twelve hours on his feet, he got home, got out his foot spa and spent approximately an hour and a half with his foot in it. The plaintiff’s foot was very sore and it was aching like it had not ached for a long time.
114
On that night there was a new “robot” at work and the plaintiff was helping load the machine that fed the packets. The plaintiff does four days of production work, sitting down and on the last day, if there is no production, the plaintiff and his fellow workers go and run the robot.
115
That particular night the plaintiff took two Nurofen as soon as he got home and two just before he went to bed. His wife actually noticed he was limping. His foot was “beyond uncomfortable”.
116
The plaintiff could only play with his boys on a limited basis the following day when his foot was still sore, although not as sore as it had been the previous night.
117
The plaintiff has pain of this intensity at least once a fortnight to once a month. His pain can get to an excruciating level when he is on his feet all day, at which time he would rate his pain as about eight and half/nine out of ten. That pain could last for a couple of hours or up to twenty four hours or for a couple of days.
118
The plaintiff takes Nurofen and he has not really had the time to go and see a doctor to get prescription medication. He takes over the counter medication probably every couple of days.
119
The plaintiff, in his most recent affidavit, in response to Mr Battlay’s recent comments that the plaintiff was exaggerating his symptoms, denied this was the case and commented – “I believe it’s not him walking around on the foot.”
Video Surveillance
120 The first video was taken on 30 January 2010. It commenced at 10.55 am and went to 11.30 am, although there was not an hour of film. The plaintiff was shown in a toyshop with his wife and two young children.
121 In cross examination, the plaintiff agreed he did not see any limp or any hesitation or restriction associated with his right foot in that film.
122 The plaintiff was then shown at Home Hardware selecting some latticework and a flat piece of timber, which he explained was to be the track for ‘Thomas the Tank Engine’. The plaintiff said he was not getting material for work at home as he did no maintenance work.
123 On 31 January 2010 the plaintiff was shown at the local swimming pool from 11.52 to 1.30 pm of which there was thirty eight minutes. He was shown standing and sitting and with his children at various times.
124 The plaintiff confirmed he wore thongs a great deal of the time and he does not have any orthotics for his foot. When asked what foot he would use if he had a choice, he said whichever foot reached the step first.
125 When asked about kicking his child’s shoe with his right foot whilst at the pool at 12.42 pm, the plaintiff said that it did not weigh a lot. The plaintiff disagreed that he did not avoid activity with his right foot because of injury.
126 Video surveillance of some seventeen minutes was shown of the plaintiff attending the Rutherglen- Wahgunyah AFL match game on 10 April 2010. He attended the football ground from about midday to 4.45. The plaintiff was shown at various locations at the ground standing watching the football and drinking with friends, and at other times walking around.
127 In cross examination, it was suggested to the plaintiff that he had put his right foot down first when he went over the boundary fence, but he said it would not have been better to do so with his left foot because he would have had to take off on his right. He explained that he was not going to “play on something if it is not hurting at that time”.
128 When asked why he was not sitting when there were chairs available, the plaintiff aid that to his knowledge, his foot was not aching at the end of the day.
129 In re-examination, the plaintiff said that he had had about twelve to fourteen cans at the football that day. The more he drank the less pain he had. He was not shown kicking the football in that film because if he did his foot hurt too much.
The Plaintiff’s Medical Evidence
130 Dr Megan Barrett, from the Corowa Medical Centre, on 12 July 2006 requested assistance for the plaintiff with outdoor maintenance because of his inability to do tasks as a result of his foot injury.
Investigations
131 A CT scan of the right foot was organised by Miss Keith on 30 June 2006.
132 There was an undisplaced comminuted cortical fracture of the infero and interomedial cortex of the tarsal navicular. The cortical fracture involved all the articular surfaces, both anterior and posterior. The fragments were not significantly displaced and only one fragment of three to four millimetres was slightly rotated. The alignment of the joints in relation to the tarsonavicular was normal and the other bones of the tarsus were intact.
133 Miss Keith organised an x-ray of the right foot on 4 August 2006. It was noted four weeks post, undisplaced fracture of the right navicular bone, no fracture line involving the navicular bone was evident and alignment was anatomical.
134 Miss Keith organised an x-ray of the right foot on 15 September 2006. There was no acute fracture or bony lesion demonstrated. Specifically, the fracture involving the navicular bone was shown and no soft tissue swelling was noted.
The Plaintiff’s Medico-Legal Evidence
135 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff on behalf of the defendant, on 26 April 2007.
136 The plaintiff told Mr Battlay he played football until the incident. He played golf regularly and walked to keep fit. He told Mr Battlay he had been inactive since the incident and, for that reason, he had put on weight.
137 The plaintiff denied any previous right foot problems, incidents or injuries. At the time of the examination, the plaintiff was not on medication. He was under review by Dr Slonim. The plaintiff said that there had been very poor communication between his general practitioner and treating specialist, but his understanding of the situation was that further investigation or operative treatment was not recommended by Ms Keith.
138 On examination, the plaintiff indicated pain, mainly medially, over the tarsus, but to a lesser extent laterally, and he also described numbness of the lateral aspect of the foot, dorsum of the foot and dorsum of the great toe and second toe.
139 The plaintiff told Mr Battlay that driving long distances particularly aggravated his pain and he avoided walking a great deal and still got discomfort from prolonged standing at work. He could only run for short distances.
140 On examination, Mr Battlay found a half centimetre of right calf muscle wasting.
141 The right ankle was discoloured laterally with subcutaneous pigmentation consistent with previous haematoma formation. The plaintiff was tender and that tenderness was quite well localised over the tuberosity of the navicular on direct pressure. There was full pain free ankle movement and no instability. Both inversion and eversion lacked half the range and passive forced inversion was in particular painful.
142 Mr Battlay viewed available investigations.
143 Mr Battlay concluded the report of injury to the navicular bone was entirely consistent with the incident. He noted the plaintiff had ongoing symptoms but had done reasonably well in spite of not having been considered for a full clearance at work. He thought it reasonable to maintain a degree of latitude towards the plaintiff’s prolonged standing.
144 Mr Battlay noted, given that it was an intra articular injury and it was likely to have disrupted the articular surface of the navicular bone, as well as causing soft tissue strain in the tarsus, he thought it would be quite some time before the plaintiff became more symptom free and thought it likely that a quite modest degree of permanent impairment would ensue in the longer term.
145 He thought the plaintiff was fit for normal duties, but with the aching of his foot, consideration should be given to giving him a seated position.
146 Mr Battlay noted the plaintiff presented in an entirely straightforward manner, but the plaintiff did express disappointment at the lack of communication between his treating surgeon and his general practitioner.
147 The plaintiff was examined by Mr Kenneth Brearley, orthopaedic surgeon, on 2 July 2010.
148 At that stage, the plaintiff complained of continuing pain and discomfort in the right foot which was intermittent. Occasionally he had days when his foot felt normal, but often as not he had low grade nagging pain in the foot which lasted for a day or more. At times he had foot pain at night which interfered with his sleep and he had a limp, particularly in cold weather.
149 The plaintiff told Mr Brearley that at the end of twelve hour shifts he had considerable aching discomfort in his foot, that the pain was unpredictable and the more activity was involved then basically the more pain he experienced.
150 The plaintiff told Mr Brearley he was taking Panadeine Forte about every two weeks or so for aching in the foot.
151 In terms of recreational activities, the plaintiff told Mr Brearley he was not able to play golf the way he did before, that now he used a buggy and thus played only occasionally.
152 The plaintiff was no longer able to go for long walks with his wife, nor was he able to play football, which he did up to the time of the incident. He had trouble playing with his son. He was unable to drive long distances as he found it difficult holding the accelerator down with his right foot, therefore he had to use cruise control.
153 The plaintiff told Mr Brearley of arthroscopies on both knees about ten years ago. He told him that he also suffered injury to both ankles as a result of parachuting while in the Army.
154 On the right foot there was no deformity. The plaintiff indicated the site of pain was over the medial border of the foot around its midpoint. There was some tenderness in that region and there was an area of slight discolouration over the lateral side of the foot at the same level.
155 Mr Brearley found there was very slight limitation of flexion and extension of the ankle joint and also of the toes. Inversion and eversion movements, i.e. mid tarsal joint movements, were within the normal range.
156 There was some wasting of the calf musculature, this measuring forty-two centimetres on the right compared to forty three and a half on the left.
157 Mr Brearley had available to him the CT scan of 30 June 2006 and x-rays of 4 August 2006.
158 Mr Brearley concluded that the plaintiff suffered a comminuted fracture of the navicular bone of the right foot without displacement of the fragments in the incident. Mr Brearley did note the fracture however, involved all of the articular surfaces.
159 Mr Brearley stated that because of the injury, the plaintiff was no longer able to play football, nor play golf at pennant level.
160 Mr Brearley commented there was no question of functional overlay and he thought the plaintiff’s symptoms were entirely the result of physical organic injury.
161 In Mr Brearley’s view, the plaintiff was able to carry out his pre injury employment in full, but he noted the plaintiff was not fit to carry out unrestricted manual labour because that would place undue pressure on his right foot and increase his right foot pain, particularly his post activity pain.
162 Mr Brearley thought the plaintiff needed no present treatment apart from analgesics occasionally and if his condition were to worsen however, there was a likelihood that the plaintiff would require surgery in the nature of a operative fusion.
163 In terms of the prognosis, Mr Brearley thought the plaintiff would continue to have present symptoms and ongoing disability. In his view, there was an outside possibility of the plaintiff’s condition worsening as a result of the development of traumatic osteoarthritis in the joints adjacent to the fractured navicular and, if that occurred, the plaintiff would have increased foot pain and worsening disability, and ultimately could reach the point of surgery.
164 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 16 June 2010.
165 The plaintiff told him that for some ten years he served in the Army, leaving in about 1998. He stated that during that time he sustained an inversion injury to the right ankle when parachuting, but indicated that problem apparently resolved and he returned to full duties and had no difficulty with sport.
166 On examination, the plaintiff had difficulty standing on his toes and right foot. There was a discoloured scarred area of skin in the lateral aspect of the right foot in the mid tarsal region. There was also a small well healed scar on the medial aspect of the foot. Quite marked tenderness was described over the dorsal and medial aspect of the right navicular and also over the navicular cuneiform articulation. There was also some tenderness in the lateral border of the right foot in the vicinity of the cuboid.
167 Active inversion of the foot against resistance immediately precipitated the complaint of quite severe pain around the mid tarsal region on the medial side of the foot.
168 Ankle dorsi flexion was 5 degrees with 40 degrees of plantar flexion. Subtalar inversion was 20 degrees with 5 degrees of aversion. There was some rotary movement of the mid tarsal joint, but it was noted that was associated with the complaint of pain mainly on the medial side of the metatarsal region. There did not, in Mr O’Brien’s view, appear to be any obvious abnormality associated with the right forefoot.
169 Mr O’Brien noted the CT scan and the x-ray of the right foot taken on 15 September 2006.
170 Mr O’Brien noted the plaintiff described the crush injury to the mid tarsal region of his right foot in the incident which resulted in a comminuted undisplaced fracture of the right navicular, described as involving the articular surface of the bone.
171 Mr O’Brien noted the fracture obviously united with conservative treatment. However, the plaintiff continued to describe persistent pain related to the mid tarsal region in the foot, predominantly with weight bearing.
172 In Mr O’Brien’s view, physical signs certainly demonstrated local tenderness both on the medial and lateral aspects of the mid tarsal region of the right foot with precipitation of pain on movement of the mid tarsal joint.
173 Clinically, that suggested the presence of post-traumatic arthritis involving the mid tarsal articulation, in particular, the articulation between the navicular and cuneiform, with some evidence of joint irritability laterally in relationship to the cuboid and metatarsal articulation.
174 Mr O’Brien considered employment was a significant contributing factor to what he described as a significant injury and what now appeared to be ongoing symptomatic post-traumatic arthritis in the mid tarsal articulation.
175 In Mr O’Brien’s view, the clinical condition appeared stable. He noted the plaintiff needed to be careful in avoiding any aggravating activities and it was possible if the pathology persisted causing increased pain, then more active treatment would become necessary, preferably confined to conservative. He therefore remained guarded in relation to the plaintiff’s prognosis.
176 In Mr O’Brien’s view, the plaintiff presented with definite disability associated with ongoing symptoms in his right foot. It had affected his weight bearing function. Mr O’Brien considered there was little doubt that the plaintiff was restricted in relationship to his general social, domestic and recreational activities and that was a permanent problem. He noted certainly the plaintiff had changed his pre injury very active lifestyle and that would be ongoing as the plaintiff continued to limit his weight bearing function.
177 Mr O’Brien did not think there was any clinical evidence to suggest the previous right ankle injury resulted in any loss of ankle function or was relevant to the plaintiff’s current disabling pathology.
The Defendant’s Medical Evidence
178 The plaintiff was examined by Dr Chris Baker, occupational physician, on 2 June 2004 at the request of Commonwealth Department of Veteran Affairs.
179 The plaintiff told him that he twisted his right knee whilst parachuting in Darwin in 1994 that he had been discharged from the Army because of his right knee in 1998.
180 The plaintiff at that stage told him that other than his knee condition he was well. He had knee pain and it swelled. It locked and collapsed. When moving the knee it “catched” and he had fallen. He stated he had a bruise over the front of his right shin due to a recent fall. He said there was a constant dull ache in the joint.
181 When the plaintiff used his knee and moved about, the pain got worse. He estimated he could walk for about thirty minutes but then he had to sit. He could not sit and keep his leg still and had to move it all the time.
182 When he stood, he did not stand in one position but tended to move around. He was able to shower and dress, but noted it was hard to cut the toe nails of his right foot.
183 The plaintiff drove an automatic car, but tended to use cruise control going any distance so that he could move his right leg around.
184 He noted his sleep pattern was disturbed in winter due to knee pain in the joint. His knee was very stiff in the morning when he got out of bed and he had to sit on the edge of the bed and rest before he got mobile. The plaintiff was undertaking exercises and went swimming in the Corowa Golf Club pool. He was riding a bike but had stopped that activity.
185 The plaintiff told Dr Baker he could not do any vacuuming. He was able to clean up the yard. He used to play football but he could not now and he enjoyed watching football.
186 On examination, the plaintiff had a slight limp in his right leg. He was able to lie on the couch unaided. There was no obvious muscle wasting of either side. The right knee was puffy and there was an effusion. Patellar pressure caused the plaintiff pain. There was reduced range of movement with a loss of ten degrees from full flexion. The joint was stable with no obvious ligamentous damage. There was crepitus through the range of flexion but it was more marked in the mid range with catching. There was no abnormality of the lower leg or ankle noted.
187 Dr Baker concluded the plaintiff was suffering with a chondromalacia patella. He had chondromalacia of the right knee and it was mild in the left. Dr Baker thought military employment was probably the cause of that condition and at that stage the plaintiff was not currently incapacitated for all work.
188 Dr Baker thought the plaintiff was partially incapacitated and that he could not do unrestricted duties, such as an electrical contractor. He considered the plaintiff would have problems with trade’s assistant work or work requiring repeated crouching, kneeling or squatting.
189 Dr Baker thought the plaintiff could work as a static security guard on a full time basis but did not think he could walk over long distances on uneven ground.
190 Mr Battlay examined the plaintiff on 19 May 2009. At that time, he told Mr Battlay he had a continuous dull ache in the region of his right hindfoot joint. The plaintiff indicated pain, mainly over the talonavicular articulation and spreading across the dorsum of the foot at that level.
191 On examination, there was half a centimetre of right calf muscle wastage. There was local tenderness over the dorsal aspect of the talonavicular joint medially and movement of the hindfoot joint was painless but somewhat restricted. Inversion was restricted to 15 degrees and eversion to 10 degrees, but neither movement was particularly painful.
192 Mr Battlay noted the plaintiff had some chronic pain associated with the healed fracture and he had motion impairment of the hindfoot. Mr Battlay thought there was no exaggeration, either voluntary or involuntary.
193 Mr Battlay re-examined the plaintiff on 10 November 2009.
194 On examination, Mr Battlay noted the plaintiff walked without a limp. There was no measurable right calf wasting. There was normal temperature, sweating, colour and circulation of the foot.
195 Flexion and extension were restricted very minimally with inversion being significantly restricted to 15 degrees and eversion to 10 degrees. The movements were not painful. The plaintiff was tender on pressure over the tuberosity of the navicular.
196 Mr Battlay commented that the severity of the plaintiff’s symptoms were somewhat in excess of what would be anticipated three and a half years after the fracture. He thought the plaintiff had ongoing symptoms, with a mild degree of permanent impairment of the right leg.
197 Mr Battlay, however, did comment that the plaintiff was not voluntarily exaggerating his symptoms. He noted the symptoms seemed to be in excess of his physical capacity so there may have been some subconscious exaggeration.
198 Mr Battlay thought the plaintiff would eventually be totally asymptomatic. In his view, the plaintiff would have no difficulty walking up or down stairs or walking backwards. He could also walk for extended periods and he would be capable of running despite his injury. He thought there was no reason why the plaintiff should not be able to drive for long distances.
199 Mr Battlay did not think the fractures were related to the cramps in the plaintiff’s foot/leg.
200 Mr Battlay was unable to verify the plaintiff’s symptoms of chronic pain. He noted the plaintiff clearly exaggerated his difficulties, whether consciously or subconsciously, and in his view, the plaintiff certainly did not have constant chronic pain as a separate condition or diagnosis. He classified the plaintiff’s ongoing symptoms as being mild and felt that they would resolve.
201 Mr Elsner, orthopaedic surgeon, examined the plaintiff on 29 March 2010.
202 The plaintiff told him that he sustained several injuries in his previous work, including to both ankles and knees, with the right knee being more severely affected than the left.
203 The plaintiff told Mr Elsner he had multiple arthroscopic operations on his right knee during the 1990s and one operation on the left knee. He told Mr Elsner of the medical discharge because of his knee injuries.
204 The plaintiff also told Mr Elsner he had injured both ankles on several occasions whilst in the Army and had been treated with physiotherapy but never had a specialist review. There was some soreness, but not significant, in his ankles after he left the Army.
205 Mr Elsner noted that medical records provided to him showed no ongoing reference to ankle pain leading up to the incident. He noted repeated references in the records to knee problems, predominantly right, and noted the last right knee arthroscopy was on 20 January 2000.
206 The plaintiff told Mr Elsner his right foot continued to trouble him. He complained of intermittent pain in the foot which ran along the outer or lateral border of the right foot to the little toe and also involved the medial side of the foot directly over the navicular bone.
207 The plaintiff told Mr Elsner his right knee locked periodically but did not swell or give way and he had ongoing right knee pain, albeit a little on and off. The plaintiff estimated he had a dull ache in the right knee about once a month and his right knee continued to trouble him more than his left.
208 The plaintiff told Mr Elsner about the problems with football, golf and running. At the time of the examination, the plaintiff was only having over the counter medication. However, he required some Panadeine Forte four months ago when he awoke with spontaneous right foot pain.
209 On examination, the plaintiff walked without a limp. He was able to stand on his heels with normal power but when he lunged forward on his right foot he indicated that he was bit sore over the right navicular on the dorsomedial aspect of the mid right foot and indicated some soreness in his right toe.
210 The plaintiff told Mr Elsner he could hop on his right foot but would prefer not to because of pain. He could walk backwards without any problems, but if he had to do that quickly, that would result in right foot pain.
211 There was no muscle wasting atrophy of his right leg at mid-calf level compared to the left to tape measurement. Mr Elsner noted normally one would expect, with reduced function such as painful foot or ankle, there would be some atrophy compared with the asymptomatic foot. There was no thigh wasting, nor was there any sign of sympathetic disturbance.
212 Mr Elsner thought that the plaintiff’s right knee problem was longstanding and not related to work with the defendant. However, in his view, it would affect the plaintiff’s capacity to play sport to some extent. He noted, on examination, the right knee showed no swelling and no ligamentous instability, but the plaintiff lacked five degrees of extension and flexion and there was associated patella crepitus consistent with the patella arthritis.
213 Examination of the right foot and ankle revealed no swelling. There were no sympathetic changes, such as colour, temperature or circulation, being the same in both feet.
214 Examination of the right ankle indicated a full and pain free range of movement, and similarly with the left, and there was no instability in either ankle.
215 There was tenderness over the navicular on the medial aspect of the foot, but there was no other area of tenderness in the right foot. The tibialis posterior tendon which is inserted predominantly into the navicular was intact and had normal power.
216 Inversion was to 65 per cent and eversion was to 75 per cent of full range and with these movements the plaintiff indicated pain in the region of the navicular.
217 On passive right foot rotation, the plaintiff indicated some navicular pain. Mr Elsner noted there was no joint crepitus, such as one would find with traumatic arthrosis.
218 There was reduced sensation over the lateral third of the dorsum of the right foot, including the fourth and fifth toes, possibly the third toe, but, in fact, sensation in the right big toe and second toe was normal. Mr Elsner commented that that reduced sensation suggested that at the time of the subject injury, the plaintiff probably sustained a direct injury to the sural nerve, the sensory nerve supplying at least part of this area of reduced sensation, but noted that that did not cause any significant loss of function and, in particular, the nerve did not supply the muscles to the right foot.
219 Mr Elsner had available to him all investigations.
220 In his view, the current diagnosis was that of a united fracture of the right navicular and a sensory deficit in the sural nerve distribution of the right foot. In relation to the fracture, he considered that there was no objective clinical abnormality to find on examination, i.e. no swelling, no crepitus with joint movement and no muscle atrophy. There was some localised tenderness over the navicular, however, and there was some mild (subjective) reduction of hind foot (but not ankle) movement and the plaintiff indicated pain in the navicular area.
221 Mr Elsner commented that the symptoms and physical restrictions reported seemed significantly greater than he would have expected on current clinical examination, particularly with the lack of atrophy. He noted the plaintiff was requiring little in the way of medication and had not sought active treatment for over two years.
222 Mr Elsner commented that the plaintiff’s prognosis had not entirely followed the expected pathway of recovery of which he would have expected complete resolution within six to twelve months. He noted, however, occasionally with this type of injury there can develop a traumatic arthrosis in, for example, the talonavicular joint. Mr Elsner noted the mild residual sensory deficit in the sural nerve was not unusual in a crushing injury such as described.
223 Whilst the fracture was work related, Mr Elsner could not be sure the plaintiff had any significant residual injury in relation to that fracture. He thought that further investigation would be required to determine this issue.
224 Mr Elsner commented that there was no clear indication of a non organic component or exaggeration. However, the lack of any significant objective findings on clinical examination raised that possibility.
225 Mr Elsner thought the plaintiff’s symptoms were currently mild to moderate. However, the physical findings were unremarkable in relation to the navicular.
226 Mr Elsner provided a supplementary report, having been provided with details of the plaintiff’s pre incident condition. That material did not cause him to change his opinion. He confirmed that the plaintiff’s current foot condition was mild.
227 Various clinical notes from the plaintiff’s general practitioner’s file were tendered by the defendant.
228 On 29 October 2007, it was noted:
“Continuing improvement in the foot. Very few restrictions, active with sports. Feels can manage all duties at work. Minimum tenderness laterally, good range of movement. Clearance and final certificate provided. Review if needed.”
229 On 30 August 2007, it was noted:
“Slow but steady improvement. Trying to run further and more often. Has even kicked a football but always pain after activity and needs to ice and rest. Only issues at work relate to inability to run upstairs though he can walk up slowly. Not to climb ladders and several times a week when foot really aches he needs to sit down for 15 to 20 minutes and usually does productive computer type work. Overall there has been a steady improvement and perhaps in six months there may be no restrictions at all. Review monthly.”
230 On 10 May 2007, it was noted the plaintiff had a slightly better month with his foot. Activity remained very restricted and frustrating. He managed most duties at work apart from climbing ladders. He needed to rest at times through the day when his foot became sore.
231 On 19 September 2006 it was noted that there was increasing swelling due to increased walking. There as also a note- “Golf, 4 to 6/52”.
232 On 3 March 2007, it was noted:
“Increased running recently. Still numb but not sore. A lot of pool exercises four times a week. Feels good five out of seven days a week. One to two days is sore.”
233 The defendant tendered a Claim for Compensation medical certificate setting out the plaintiff was unfit for work in March 2005.
234 There was a note of a telephone conversation on 5 May 2004 in relation to receipt of incapacity payments with the Defence Department. The plaintiff advised he had gone to Queensland searching for work as he thought the warm climate might be better for his knee. It was noted that the plaintiff worked for an electrical company when he first left the Army, but he had to leave because he could not physically manage the work.
235 The defendant tendered a Veteran Affairs’ lifestyle questionnaire completed by the plaintiff in 1998 which set out the plaintiff was unable to be actively involved in sports which were a large part of his social life. He said “no” to driving restrictions. He said he normally rode to work or walked, but now got public transport. He said he was unable to play sport, such as football, cricket, rugby and attend a gymnasium. He was unable to continue as an infantry soldier in the parachute battalion. He had problems with prolonged standing or physical pressure on his ankles and knees.
236 In a pre-employment medical report, before commencing work with the defendant in 2004, the plaintiff noted in a confidential health questionnaire that he had sprained his ankle parachuting. He made no mention of a knee injury.
Findings
237 I am satisfied that the plaintiff suffered a compensable injury to his right foot in the crushing incident on the said date. The injury was confirmed on various investigations as an undisplaced comminuted cortical fracture of the infero and anteromedial cortex of the tarsal navicular. The fracture involved all the articular surfaces both anterior and posterior.
238 Examination findings support the presence of ongoing problems with the plaintiff’s foot.
239 Mr Elsner found the sensory deficit in the sural nerve distribution and also localised tenderness of the navicular. Mr Battlay on his two earlier examinations found right calf wasting as did Mr Brearley. No such wasting was found by Dr Baker when he examined the plaintiff in June 2004, prior to the incident.
240 Restriction of foot and ankle movement and tenderness in the area of the navicular fracture has been found by the various examiners.
241 Whilst much of cross examination related to the plaintiff’s pre accident lower limb condition, I am satisfied that, as at the said date, the plaintiff was not having any ongoing problems with his ankle.
242 There were ongoing problems at that stage with his right knee which continued which I will later consider in terms of the principles set out in Petkovski v Galletti[5] when I consider the consequences of the plaintiff’s foot injury.
[5] supra
243 I accept that the plaintiff has ongoing problems with pain and restriction of movement in his foot since the incident. Mr Battlay, in his most recent examination is the lone voice questioning the genuineness of the plaintiff’s complaints.
244 I accept that the plaintiff’s pain can be as high as eight out of ten, sometimes he does not have pain and sometimes it is a nagging pain. The plaintiff continues to undergo the limited treatment that is appropriate for him namely pain killing medication and using the foot spa.
245 I do not accept that the plaintiff embellished “his story” depending on the injury for which he was making a claim.
246 I accept the plaintiff is a hard working man who clearly enjoyed a very active lifestyle and prided himself on his level of fitness. This was the case at the time of the incident despite his knee problems.
247 The plaintiff’s recovery after the incident was slow with five months in plaster and on crutches. Whilst he has returned to full time work, his leisure activities have been significantly affected by his foot injury.
248 The lack of report from treating doctors in this case of clear physical traumatic injury is not as significant as it may be in other circumstances.
249 In any event I note the plaintiff’s comments that there was some lack of communication between his general practitioner and surgeon and the fact that no further treatment was suggested to the plaintiff following the removal of his plaster.
250 Counsel for the defendant relied upon Sumbul[6], Kelso v Tatiara Meat Company Pty Ltd[7] and Stijepic v One Force Group Aust Pty Ltd & Anor[8] arguing that the plaintiff’s impairment was not serious as he continued to work full time.
[6] Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
[7] [2010] VSCA 12
[8] [2009] VSCA 181
251 Reference was also made to Sabo v George Weston Foods.[9]
[9] [2009] VSCA 242, at paragraphs 66 – 71/72
252 Although the plaintiff continues to work full time, he has problems with extended standing when not seated at the console. As the plaintiff said, as recently as the Saturday night before the hearing, after working standing, his foot pain was eight out of ten and he had to use the foot spa at home. The times when he has to work on the robot are those which give him the greatest difficulty.
253 Whilst the plaintiff was shown at the football over a five hour period, he was shown at various locations and had obviously moved around and was not shown having stood in the same spot fro any extended period of time. Similarly, on the first date when shown at the toyshop for over an hour, the plaintiff was walking around the shop.
254 I accept that the plaintiff has problems with prolonged standing in a static work context, and his ability to walk around and stand at the football does not detract from that situation. Obviously attending the football and socialising is a far more enjoyable activity than standing working in the one spot. It was obvious from the video that the plaintiff had moved around a fair bit. He also on his own evidence had a lot to drink and his foot was not particularly troubling him on that day.
255 In terms of the consequences to the plaintiff, of greatest significance to him is the fact that he has not been able to play Australian Rules football since the incident.
256 I accept the plaintiff’s evidence in this regard, despite Mr Elsner’s view that the injury would not prevent the plaintiff playing football and the fact that there is no lay evidence supporting the plaintiff.
257 In my view the plaintiff’s love of football is such that he would now be playing if he was not prevented from doing so by his foot injury given his history of participation in football and other sports.
258 Whilst his knee problems had obviously affected his ability to play at football, the plaintiff had returned to football initially in the reserves, then the seniors in mid 2004, and was playing in that capacity until the date of the incident, albeit with a knee brace.
259 The plaintiff had obtained such a level that he played in the league representative team in 2005. The plaintiff is now to the point where cannot really kick a football at all and is confined to kicking a foam football with his young child. He also misses the greater involvement with the club he enjoyed as a player.
260 Significantly, as was noted on the surveillance report of the film taken on 10 April this year, the plaintiff was heard informing a spectator he had crushed his foot at work four years ago and had not played football since.
261 Further, the plaintiff’s golf has been significantly affected by his foot injury. Prior to the incident, he played pennant and also played socially a number of times during the week. As a result of his foot injury he has gone from playing regularly at a relatively high level with a reasonably good handicap to playing irregularly with difficulty.
262 Since the incident, because of foot pain, the plaintiff has only played golf on about every three months or so and has required the use of a buggy. When he has tried to walk the course, as he described, he only got to about nine or ten holes and his friend had to go back to the pro shop and get a buggy for him.
263 Given the plaintiff’s passion for fitness, I accept that he would still be running for exercise if his foot allowed him to, despite Mr Elsner’s comments in this regard.
264 Whilst the plaintiff might have had some problems limping because of knee pain, since the incident the plaintiff has also limped because of pain associated with the fracture. He also has an additional problem when putting pressure on his foot. Going up stairs and walking on uneven ground he has to carefully place his foot flat and he cannot walk normally as he used to before the incident.
265 The plaintiff’s foot injury affects his ability to play with his children – a situation I accept gives him particular concern as it was obvious from the video surveillance film that the plaintiff is a family man who spends a lot of time with his young children.
266 Whilst the plaintiff had problems with his right knee driving before the incident, there is the added problem of putting pressure on his right foot whilst using the accelerator.
267 As it is now four years since the incident, and there has been no improvement in the plaintiff’s condition I consider the impairment to his right foot to be permanent.
268 Further as Mr O’Brien stated clinical examination suggested the presence of post traumatic arthritis involving the mid tarsal articulation. Mr Brearley thought there was an outside possibility of a worsening of the plaintiff’s condition as a result of the development of traumatic osteoarthritis in the joints adjacent to the fractured navicular and if that occurred the plaintiff could reach the point of surgery.
269 Whilst the plaintiff does work full time and does not have much treatment, I am satisfied that the consequences of his right foot impairment in terms of the interference with sporting activities in a relatively young man of thirty nine, for whom sport played a major role in his life, meet the test of seriousness.
270 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering in relation to his right foot injury.
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