Earl v National Fleet Administrative Services Pty Ltd
[2023] VCC 1969
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03263
| JEFFERSON EARL | Plaintiff |
| v | |
| NATIONAL FLEET ADMINISTRATIVE SERVICES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2023 | |
DATE OF JUDGMENT: | 3 November 2023 | |
CASE MAY BE CITED AS: | Earl v National Fleet Administrative Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1969 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right hip – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G B Hevey RFD | L N Christie & Co |
| For the Defendant | Mr A W Middleton | Russell Kennedy |
HER HONOUR:
Introduction
1Mr Jefferson Earl, the plaintiff, is a forty-nine-year-old former delivery driver. He seeks leave to issue proceedings claiming pain and suffering damages for an injury to his right hip pursuant to paragraph (a) of the definition of “serious injury” in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2The plaintiff alleged that he suffered the injury to his right hip over the course of his employment with the defendant between March and June 2018, and in particular on 13 April 2018 and 12 June 2018.
3The defendant did not dispute that the plaintiff suffered an aggravation injury to his right hip during the course of his employment with the defendant as a delivery driver.
4The defendant contested the proceeding on the issue of “range”.
5The plaintiff was the only witness to give viva voce evidence. He did so on Zoom as he is currently living in Bangkok, Thailand.
6For the reasons that follow, I find that the plaintiff has not satisfied his onus of establishing that the permanent impairment consequences of his right hip injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
7The following matters of background are not, I believe, controversial. In so far as any part is contested, these represent my findings save where indicated.
8The plaintiff is a single man.
9He completed Year 12 at Parade College, Victoria.
10For approximately 15 years after leaving school, the plaintiff ran his own stationery business. This involved having binders and folders made up and branded to sell to schools.
11Thereafter the plaintiff obtained a Real Estate Licence and worked in that capacity in China, selling apartments, for five to six years. He returned to live in Australia in November 2017.
12Following this, the plaintiff said that he decided that he wanted to start a business manufacturing tiny homes. In the meantime, as a fill-in, the plaintiff obtained employment with the defendant as a delivery driver. He started work on 14 March 2018.
13The plaintiff generally worked between three and five days a week for the defendant, delivering groceries for Woolworths Group. The plaintiff said that handling plastic crates that contained the customer’s purchases, which weighed up to 13 kilograms, caused him to experience pain in his right hip. He said he started to experience symptoms in about April 2018.
14On 15 June 2018, the plaintiff resigned from his employment with the defendant. He said that he did so because he felt he was no longer able to cope with the work due to his right hip pain.
15On 27 June 2018, the plaintiff first consulted a general practitioner (“GP”), Dr Abid Mushtaq, regarding his right hip pain.
16The plaintiff was referred for an X-ray of his pelvis and right hip, and physiotherapy.
17On 11 July 2018, an X-ray of the plaintiff’s pelvis and right hip was reported to reveal osteophytic lipping in each femoral-head neck which indicated early degenerative change potentially associated with femoroacetabular impingement. There was superior joint space narrowing bilaterally and cortical thickening of each femoral neck.[1]
[1]Plaintiff’s Court Book (“PCB”) 35
18On 21 August 2018, the plaintiff lodged a WorkCover claim, which was accepted.
19On 23 August 2018, an MRI scan of the plaintiff’s right hip was reported to reveal features of femoroacetabular impingement, with irregular chondral thickening, a developing subchondral cyst and acetabular labral tear.[2]
[2]PCB 36
20On 28 August 2018, Dr Mushtaq referred the plaintiff to Mr Andrew Chia, orthopaedic surgeon.
21Mr Chia first reviewed the plaintiff on 3 September 2018. He recommended the plaintiff undergo arthroscopic surgery. The surgery took place on 17 October 2018.
22Following the surgery, the plaintiff had a further period of physiotherapy and osteopathy between January 2019 and March 2019.
23In 2019, the plaintiff attempted a return to work. After one hour performing alternative duties in the defendant’s office, the plaintiff ceased work. He said that he was unable to cope because of his right hip pain.
24The plaintiff was in receipt of weekly payments until February 2020.
25At some time in approximately 2020, the plaintiff started, but did not finish, a new enterprise incentive course with a view to pursuing his tiny home business idea.
26The plaintiff appears to have had further physiotherapy, chiropractic, and osteopathic treatment between 2019 and 2021. The nature and extent of that treatment was unclear on the evidence.
27On 13 May 2021, an X-ray of the plaintiff’s pelvis and right hip with erect weight bearing views was reported to reveal mild osteoarthritis of bilateral hips, bilateral cam-type deformities with bony prominence at the femoral head and neck junction laterally.[3]
[3]PCB 53
28The plaintiff was referred back to Mr Chia in August 2022. He re-examined the plaintiff on 22 August 2022. He recommended the plaintiff continue with non-operative management.
29In October 2022, the plaintiff travelled to Thailand to live. There were different accounts of the reasons behind this move.
30He currently lives in a hotel in Bangkok.
31The plaintiff said he is producing video logs, “Vlogs”, on YouTube as a hobby. He plans to earn an income by way of commission assisting people to obtain visas.
The claimed impairment consequences
32In his first affidavit, sworn on 5 April 2022, the plaintiff identified the impairment consequences of his right hip injury as follows:
“34.In the meantime, I have continued to experience ongoing pain in my right hip and groin. I find that sitting for prolonged periods of time or walking for more than about 30 minutes or so tends to increase the symptoms. Indeed, if I walk for too long, I can find it difficult lifting my right leg and climbing up and down stairs can also be quite uncomfortable. Squatting is also difficult and I have difficulty lifting any heavy weights.
35. The pain is accompanied by a sensation of stiffness and tightness. I have persisted with all manner of conservative treatment such as chiropractic treatment, physiotherapy treatment and osteopathy but basically most practitioners have recommended exercise although what I really want is something like massage treatment to help relieve the symptoms and in this regard, I made a request of the employer’s WorkCover insurer a few months ago although have yet to have that approved.
36. In the meantime, I rely on painkillers. This includes Palexia 25mg which I take on average every 2 days or so. I am prescribed a pack of 20 at a time and I try and make this stretch as long as possible. In addition I do not want to become dependent on same. I also take Diazepam 5mg most days. I perform home exercise about twice a week and this includes the use of a ball.
37. The pain affects my ability to sleep very frequently, at least 2-3 times a week. When I have a bad night’s sleep I feel terrible in the morning and wake up feeling tired and lethargic. I try and avoid having a nap in the afternoon as this makes things even worse. I have put on a bit of weight since ceasing work but I am trying to keep this under control.
38. In terms of driving, driving shorter distances is manageable for me.
39. I was on weekly payments of compensation until 25 February 2020 and have since been on a Jobseeker payment currently $670 per fortnight. I have embarked on a new enterprise incentive scheme course through the Government with a view to eventually trying to start up my own business along the lines I have mentioned above, that is, the manufacture of small homes. However, I am finding it difficult to get through the course and do not know whether I will complete same.
40. Prior to working for the defendants, I was travelling well and had ambition to start up this business.
41. My life now should be in a completely different position than what it is. I think a lot of my decision- making has been affected by my pain and my situation. All of my visions and plans are now out of whack. Indeed, due to lack of finances, I have had to sell my properties.
42. Last year I did indulge in buying a motor bike, something I had always wanted to do. Whilst I can manage to take it out, this is generally for short rides only. It has a push button start. I can generally manage to balance the bike at lights by putting my left leg out.
43. I also used to enjoy activities such as playing tennis, something I have not resumed since suffering my injury. I find swimming manageable, as long as there is not too much heavy kicking with my legs.
44. I have always enjoyed going to the gym and I still try and get to the gym, Covid permitting, although I basically do light training of the upper body, with not much leg work.
45. When I was still living at my address in Eynesbury, I was finding it difficult to perform certain tasks around the home such as mowing the lawns and needed assistance for same.”
33In his second affidavit, sworn on 20 March 2023, the plaintiff deposed to the following impairment consequences:
“2. Since swearing my first affidavit, the symptoms in my right hip have remained about the same.
3. Because of my right hip injury, I find certain positions awkward and uncomfortable. The pain in my right hip and stiffness fluctuates. It might be reasonable one day, but bad the next.
4. When my right hip is stiff I can experience a sharp pain there. I experience the sharp pain when I attempt to get up, or when I sit down, or when I go up and down stairs or if I try and move quickly. The onset of these sharp pains can last anywhere up to 40 minutes and then might subside for about an hour depending on what I am doing before they return.
5. Sometimes in order to manage the pain I rely on two physio balls, one larger one and one smaller one. When using the balls, I lie on my side and place the larger physio ball under my hip, lie over it and start stretching over the ball to try and help relieve the symptoms. I rely on the smaller physio ball when I really want to get into the right hip area.
6. The pain in my right hip still affects my ability to sleep and in this regard I find that I need to change position in bed to alleviate the pain. In this regard, it doesn’t take much for the pain to come on.
...
8. For the ongoing pain in my right hip I have been taking medications in the form of Palexia and Codeine for a number of years although I am trying to limit the amount of medication I take as they are powerful medications and I don’t want to become addicted.
9. I was also having physiotherapy treatment although this was affected by lockdowns during Covid which became overwhelming for me.
10. It got to the point where I felt that I needed a change and I travelled to Thailand in October 2022 where I am currently residing and am looking to apply for a longer term visa.
11. I found the plane trip to Thailand quite uncomfortable due to difficulties sitting for prolonged periods of time and was frequently up and out of my seat walking up and down the aisle in order to stretch.
12. In Thailand I am having massages to deal with the symptoms in my right hip.
13. In addition to massage, I try and walk for exercise and whilst I have tried to become more active, this is not easy for me.”
34The plaintiff was cross-examined regarding his use of prescription medication. He accepted that he was last prescribed analgesics for his right hip condition on 10 October 2022, prior to moving to Thailand. The plaintiff said each Palexia prescription was for 20 tablets, and two boxes were dispensed on that occasion. The plaintiff takes it “sparingly”.[4]
[4]Transcript (“T”) 16
The medical evidence
Treating practitioners
Dr Abid Mushtaq, GP
35The plaintiff tendered two substantive reports and five referral letters from Dr Mushtaq who was the plaintiff’s GP from June 2018 until his move overseas in October 2022.
36In his first report, dated 27 September 2019, Dr Mushtaq outlined his treatment of the plaintiff from June 2018. At that stage he was of the view that the plaintiff’s condition had not stabilised as the plaintiff’s pain levels were high and the probability of future hip replacement surgery was high.
37In his most recent report, dated 24 February 2023, Dr Mushtaq noted that he last saw the plaintiff on 26 August 2022. Dr Mushtaq opined that the plaintiff suffered a right hip strain at work, with the aggravation of degenerative changes and femoro-acetabular impingement in the hip joint.
38Dr Mushtaq noted that the plaintiff continued to take Palexia as required. He opined that there was a possibility the plaintiff might need a right total hip replacement in the future “if he were not able to return to work and if pain becomes more severe and restrictive.”[5]
[5]PCB 33
39Dr Mushtaq was of the view that the plaintiff’s right hip symptoms were stable. He said the plaintiff had reported “a moderate difficulty on his social, domestic and recreational activities.”[6]
[6]PCB 34
Mr Andrew Chia, orthopaedic surgeon
40The plaintiff tendered five reports from Mr Chia.
41When first examined by Mr Chia on 3 September 2018, the plaintiff’s right hip was not irritable. Flexion and internal rotation were limited by pain. The plaintiff had a strongly positive FADIR (flexion, adduction, internal rotation) sign. The hip flexors were not painful to examination.
42Mr Chia recommended an arthroscopy and labral repair, which took place on 17 October 2018. The surgery findings and treatment were reported by Mr Chia as follows:
“He had a degenerative labral tear with full thickness chondral delamination along the acetabular rim. I repaired the labrum with 2 anchors and chondroplasty was performed to stabilise the chondral edge with a curette and RF wand. Micro-fracture was performed to promote fibro-cartilage cover over the bare bone. Femoro-osteochondroplasty was performed with a high speed burr to re-shape the femoral neck. This was confirmed dynamically and via intra-operative x-rays.”[7]
[7]PCB 39
43The plaintiff was reviewed by Mr Chia one week post the arthroscopy. He advised the plaintiff to begin light resistance exercises. He told the plaintiff that given the severity of the chondral damage, he was at a very high risk of developing symptomatic osteoarthritis. If the pain and stiffness did not settle down, he told the plaintiff he may require a total hip replacement.
44On 16 January 2019, Mr Chia reviewed the plaintiff again. The plaintiff reported his pain was better than before the arthroscopy but told Mr Chia he had hip pain with prolonged standing, sitting, and walking. Further, that he had not returned to work due to pain.
45On examination, Mr Chia noted as follows:
“… his hip is irritable to gentle rotation. The range of movement is 0-80° flexion, 0° internal rotation and 15° external rotation and the range is limited by pain. He complains of pain lifting up his leg.”[8]
[8]PCB 41
46Mr Chia noted a probable future requirement for a total hip replacement but said that did not need to be rushed. He referred the plaintiff for physiotherapy.
47Mr Chia reviewed the plaintiff again on 4 March 2019. On this occasion he opined that the plaintiff’s return to work capacity was largely defined by the plaintiff’s pain. He noted that if the plaintiff’s pain did not settle and if he was unable to return to work, consideration ought to be given to a total hip replacement.
48Mr Chia next saw the plaintiff three years later on 22 August 2022, after he was referred back to him by Dr Mushtaq. Mr Chia noted there had been no change in the plaintiff’s pain pattern, or its severity. He noted the plaintiff managed his pain with lifestyle modification and Palexia as required.
49Mr Chia’s examination findings were:
“… Jefferson’s right hip is mildly irritable and stiff. The range of movement is limited by pain and is 0-90° flexion, 5° internal rotation and 20° external rotation. The greater trochanter is non tender.”[9]
[9]PCB 43
50Mr Chia advised the plaintiff to continue with non-operative management of his right hip condition. He opined that a steroid injection could be considered for short-medium term pain relief if there was a significant exacerbation of pain. As to the future, Mr Chia opined:
“If his pain becomes more severe and restrictive, I recommended total hip replacement. This should be delayed as he is very young.”[10]
[10]PCB 43
51There is no planned follow-up with Mr Chia.
Medico-legal reports
52The plaintiff did not tender any medico-legal reports.
Dr Francis Ghan, orthopaedic surgeon
53The defendant tendered one report from Dr Ghan dated 1 May 2019. He examined the plaintiff on 24 April 2019.
54Dr Ghan noted the plaintiff’s account to him of his status as follows:
“Mr Earl is still off work. He is still having physiotherapy. He attempted to return to work for a day doing data entry but he states this was aggravating. He indicates his buttock as the site of his soreness as well as his right hip and pelvis. He states he can walk for up to half an hour and stand for half an hour beyond which he will have some “aching in the hip”. He can negotiate steps. His sleep is undisturbed. He is able to drive.
...
He does most of his domestic chores except lifting. He has no garden.
...
Mr Earl takes Palexia, an opioid, around two tablets a week as required as well as Valium also as required.”[11]
[11]Amended Defendant’s Court Book (“DCB”) 16
55On examination, Dr Ghan noted the plaintiff had no limp. Trendelenburg test was negative bilaterally. Similar ranges of movement were elicited in both hips. There was no irritability on range of motion testing.
56Dr Ghan opined that there was an “excellent” range of motion in the plaintiff’s right hip and it “will function for a fairly long time before it causes any issues.”[12]
[12]DCB 18
57He said that the plaintiff’s right buttock ache was non-specific and not related to his right hip arthritis.
58Dr Ghan opined the plaintiff was fit for pre-injury duties and hours.
59Dr Ghan described the degenerative change in the plaintiff’s right hip, which was addressed by the arthroscopy, as “mild”. He said the work component had ceased.
60He opined that the plaintiff’s mild right hip condition could be treated with self-management including intermittent anti-inflammatory medication.
Medical Panel Opinion and Reasons
61The defendant tendered a Medical Panel (“the Panel”) Opinion and Reasons dated 26 May 2021. This was provided for the purpose of the plaintiff’s impairment benefit claim.
62The Panel comprised Dr Caroline Hall, GP; Associate Professor Andrew Hardidge, orthopaedic surgeon; and Dr Juliette Gentle, orthopaedic surgeon.
63The Panel noted the plaintiff reported his current symptoms, function and treatment as follows:
“He told the Panel he continues to suffer from an “on and off”, dull pain felt to the side and back of his right hip and sometimes going into the right groin. His hip “impinges a bit but it moves okay”. There is a tightness felt in the right hip as if it needs to loosen up or have a massage. Mr Earl also said he has a mild background pain, which is “fairly constant” and there are sharp increases which come and go. He notices some difficulty lifting his right leg over an object and squatting is not as easy because it feels tight. He is able to walk reasonably well on the flat: he walks three times a week, a couple of kilometres at a time. Stairs and escalators are taken normally. He said he could run but “I’m not a runner”. The right groin pain is much less problematic than it was. He gets increased hip symptoms after two hours of standing or sitting in the same position. Sleep would be interrupted by right hip pain on two or three nights a week. ...
... He is able to do normal walking things, drive his car and does household chores. He remains independent for personal and ordinary daily activities.”[13]
[13]DCB 63
64On examination, the Panel observed a normal seated posture, and normal agility. The plaintiff’s standing posture was normal. There was normal weight-bearing and toe and heel weight bearing on each leg equally. Trendelenburg sign was negative bilaterally. The plaintiff was able to half squat. Walking gait was normal. There was mild, non-specific tenderness to deep palpation in the region of the right hip superior to the greater trochanter. Passive adduction of the right hip caused some pain. Provocation tests for trochanteric bursitis were negative. The Panel found a very mild restriction in active flexion, and mild pain at end of range in all directions.
65The Panel concluded that:
“Mr Earl has residual mild right hip symptoms following a surgically treated exacerbation of pre-existing degenerative right hip changes. This occurs in the setting of bilateral, constitutional anatomical variant, femoro-acetabular impingement (FAI), relevant to the accepted right hip injury.”[14]
[14]DCB 66
66Considering the imaging, medical reports, the plaintiff’s history and their clinical findings, the Panel concluded the plaintiff had:
“low level persistent symptoms and physical signs (tenderness) in the region adjacent to the right greater trochanter/trochanteric bursa, he has a normal gait and minimal clinical signs indicative of any trochanteric bursitis.”[15]
[15]DCB 65-66
Dr Mary Wyatt, occupational physician
67The defendant tendered two reports from Dr Wyatt dated 28 March 2023 and 17 April 2023. Dr Wyatt did not examine the plaintiff in person. Her assessment was confined to a Zoom interview on 20 March 2023 as the plaintiff lives in Bangkok.
68Dr Wyatt noted that the plaintiff reported that the arthroscopy had resolved the pain he had at the front of the right groin. He said that he was sore over the outer aspect of the right hip, and it could be sore deep into the right hip. The plaintiff also reported soreness in the right buttock.
69The plaintiff told Dr Wyatt that he used a spikey ball, foam roller or self-massaging to relieve the soreness. He tried to walk regularly, experiencing some stiffness after a kilometre. He could run but generally avoided this. He avoided squats but had no difficulty with inclines. He could cook and clean. He was able to pursue his online activities and was thinking of writing a book.
70The plaintiff told Dr Wyatt he used Palexia once or twice a week, and Panadeine Forte weekly, particularly if he had trouble sleeping.
71Dr Wyatt opined that the 2018 imaging of the plaintiff’s hips established mild osteoarthritis at the hips, and the X-ray, dated 13 May 2021, showed similar findings.
72Dr Wyatt was of the view that the plaintiff’s right buttock pain was likely muscular dysfunction as it was not an area typical for osteoarthritis of the hip.
73Within the limitations of a Zoom examination, Dr Wyatt noted some loss of movement in full flexion and soreness reported at end of range movements.
74Dr Wyatt considered that the plaintiff’s employment had brought forward symptoms that would likely have developed at some point in the future.
75She opined that it was unlikely that work activities from 2018 were continuing to contribute to the plaintiff’s right hip problem.
76Dr Wyatt was of the view that the plaintiff had a capacity for full-time suitable employment. His time off work was out of proportion to the nature of his problem.
Conclusions regarding the medical evidence
77There was little dispute on the medical material that the plaintiff’s compensable injury was an aggravation of pre-existing asymptomatic degenerative change in his right hip.
78I find that the work-related aggravation, which rendered symptomatic the previously asymptomatic degenerative change in the plaintiff’s right hip, is continuing. Whilst the surgery addressed the pre-existing degenerative change, the surgery was prompted because the degenerative change became symptomatic due to the work injury. It has been symptomatic to some degree since the time of the aggravation.
79I note that the accounts of symptoms reportedly given by the plaintiff to Dr Ghan, the Panel, and Dr Wyatt were not put to the plaintiff in cross-examination. In the circumstances I place little weight on those accounts.
80The findings on examination by Dr Ghan in 2019, the Panel in 2021 and Dr Wyatt in 2023 are all very similar. That is, that there are objective signs of mild disability in the plaintiff’s right hip, he has slightly restricted flexion, but otherwise a good range of movement. There was some soreness, and mild pain at end of range movements.
81Mr Chia’s findings on testing the plaintiff’s range of movement in August 2022 noted a “mildly irritable and stiff” right hip. I note that Mr Chia’s recorded range of motion findings at that time were more restricted than those found by Dr Ghan in May 2019, the Panel in April 2021, and by Dr Wyatt in March 2023 (noting that examination was limited by virtue of being conducted on Zoom).
82I acknowledge that Mr Chia is a treating orthopaedic surgeon who has seen the plaintiff several times and performed the surgery. However, I prefer the objective findings of Dr Ghan, the Panel and Dr Wyatt. I do so because there is a consistency in their examination findings across a four-year period. Those findings are also consistent with the evidence that following recovery from the surgery, the plaintiff’s condition has improved and thereafter has been stable.
83There is little controversy that the plaintiff may require a right hip replacement in the future. Whether that becomes necessary and the timing of it is unknown.
84I am not persuaded, on the evidence, that right hip replacement surgery would be required for the compensable aggravation injury rather than the underlying degenerative condition. Mr Chia was not asked to specifically address that issue and his reports do not identify or opine on that aspect of the plaintiff’s claim. Further, the medical evidence tendered by the defendant does not support such a finding.
Impairment consequences
85I find that the plaintiff experienced an aggravation of pre-existing asymptomatic degenerative change in his right hip, which has been treated by way of arthroscopic surgery.
86The defendant did not make submissions regarding the plaintiff’s credibility or reliability.
87I must consider the evidence as a whole. A failure to challenge a plaintiff’s reliability does not mean that the Court is bound to accept every aspect of the plaintiff’s evidence. I am required to consider all of the evidence, including the expert medical opinions.
88I make the following findings as to the impairment consequences to the plaintiff of his right hip aggravation injury on the basis of the whole of the evidence, including the objective evidence as to the extent of the plaintiff’s right hip disability.
Pain and medication
89I find that the plaintiff suffers from some ongoing stiffness and variable intermittent pain in his right hip. At its worst, the pain requires strong analgesia occasionally.
90I accept that the plaintiff takes Palexia infrequently. He was last prescribed 40 tablets in October 2022.
91In his most recent affidavit, the plaintiff deposed to taking codeine for his right hip pain. During cross-examination the plaintiff said that “at times” Dr Mushtaq prescribed codeine. Doing the best I can on the evidence as a whole, I find that the plaintiff has not been prescribed codeine since some time prior to October 2022. Consistent with the plaintiff’s viva voce evidence that he uses prescription medication sparingly, I find that his use of codeine is infrequent.
92The plaintiff generally manages his pain using physio balls for stretching.
93He also referred to having sports massages.
94No other hands-on treatment is required or planned.
Walking, sitting and standing
95The plaintiff has some mild restrictions in his capacity to walk, sit and stand for prolonged periods.
Sleep
96In his first affidavit, the plaintiff said that his sleep was disturbed at least two to three nights a week due to right hip pain. However, in his most recent affidavit the plaintiff deposed that he experienced sleep disturbance by reason of his right hip pain but did not identify the frequency with which that occurred.
97Given the findings I have made regarding the nature of the plaintiff’s ongoing pain, I am not persuaded that the plaintiff’s sleep continues to be disturbed several nights a week. I accept there is some sleep disturbance from time to time.
Driving
98The plaintiff’s right hip impairment does not restrict his capacity to drive in any significant way.
99In Thailand he uses a motor scooter for transport.
100The plaintiff has not lost the ability to ride a motorbike because of his compensable injury. On the evidence, he first bought a motorbike following the injury, which he sold when he moved overseas.
Recreational pursuits
101The plaintiff played some competition tennis as a younger man. He gave up regular tennis-playing several years prior to suffering his right hip aggravation injury. Given my findings as to the plaintiff’s mobility, I am not persuaded that the plaintiff is unable to play tennis due to his compensable right hip condition. In any event, I do not find it to be a loss of significance given the irregularity with which the plaintiff played prior to injury.
102The plaintiff remains able to swim, which was a pursuit he enjoyed previously. I accept he might have difficulty with particularly vigorous kicking.
103The plaintiff remains able to go to the gym and perform a variety of exercises.
Domestic activities, cooking
104The plaintiff remains able to perform domestic activities without significant difficulty.
Personal care
105The plaintiff remains able to undertake his own personal care.
Socialising
106The plaintiff did not claim any impairment in his ability to socialise.
Other claimed impairment consequences
107Mr Hevey submitted that the Court ought to consider the fact that the plaintiff sold his home, and a block of land, to fund his living expenses as a pain and suffering consequence. Further, that the plaintiff had to move overseas to eke out his money.
108I do not accept that submission.
109First, whilst there is some evidence which supports a contention that the plaintiff is no longer able to pursue his pre-injury employment, that employment was a stopgap between other ventures. Even if the plaintiff was permanently unable to perform his pre-injury employment by reason of his right hip aggravation, the plaintiff would not have lost the ability to pursue employment which he particularly enjoyed.
110Second, the evidence does not enable a finding that the plaintiff has any incapacity for suitable employment by reason of his right hip condition. On the evidence, there appears to be no reason why the plaintiff could not now pursue his pre-injury business plans, perform real estate work, run a stationery business, or pursue a broad range of sedentary employment on a full-time basis.
111Third, I find on the evidence that the plaintiff has had a capacity for full-time suitable employment since at least 2020, and likely earlier. Therefore, I do not accept that the plaintiff’s decisions to sell property and move overseas are consequences of his right hip aggravation injury. I am fortified in this conclusion by the fact that the plaintiff deposed that he moved to Thailand as he felt he needed a change, and that he is a man who previously lived in China for several years.
Conclusion
112I take account of the plaintiff’s relative youth.
113In undertaking the value judgment required of me, I am required to assess the impairment consequences to the plaintiff of his right hip aggravation injury and determine where those impairments sit by comparison with other cases in the range of possible impairment or losses.
114On the whole of the evidence I find that the plaintiff has not satisfied his onus of establishing that he suffers impairment consequences which could fairly be described as being more than significant or marked and at least very considerable.
115Accordingly, the plaintiff’s application is dismissed.
116I will hear the parties on the issue of costs.
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