Ebejer v Hobsons Pty City Council

[2014] VCC 795

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-06249

MARK EBEJER	Plaintiff
v
HOBSONS BAY CITY COUNCIL	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 April 2014
DATE OF JUDGMENT:	13 June 2014
CASE MAY BE CITED AS:	Ebejer v Hobsons Pty City Council & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 795

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – plaintiff injured in specific incident – fracture of left tibia and fibula – youthful plaintiff with extensive sporting and recreational background – return to full time restricted employment including second job – extent of consequences – leave sought in respect of pain and suffering only – leave granted

Legislation Cited:     Accident Compensation Act 1985

Cases Cited:Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

Judgment:                 Leave granted to bring proceedings for pain and suffering damages only

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J J Harris	Slater & Gordon
For the Defendant	Ms M Tsikaris	Lander & Rogers

HIS HONOUR:

Introduction

1 The plaintiff, Mark Ebejer, seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding for damages for pain and suffering only in respect of injuries received in a fall during the course of his employment on or about 23 November 2009. The application relies upon paragraph (a) of the definition of serious injury in s134AB(37) of the Act and the loss of body function identified is that of the left leg.

2       The defendant challenges the grant of leave on the basis that the medical opinion categorises the symptomatology flowing from the plaintiff’s left leg injury as either mild or minimal, but in any event insufficient to satisfy the statutory threshold.

3       The plaintiff is presently aged forty-two years.  He was employed by the defendant as a member of its city maintenance team and was involved in the replacement of a street sign in November 2009 when he fell from a step ladder and suffered a fracture to his left leg.  The fracture itself is described in quite gruesome terms in the affidavit material before me and the plaintiff’s recovery from it was complicated by the development of medical complications which required a period of readmission to hospital.  Following a period of physiotherapy commencing in March 2010, the plaintiff was able to return to restricted duties with the defendant.  At the time of the application proceeding before me, the plaintiff had returned to full time employment but with a modification of his duties so that he was no longer required to perform the task of running behind compactor trucks, as had been part of his previous job description.

4       The plaintiff is a married man with two teenage daughters.  He left high school after finishing Year 11.  He has a solid work record prior to commencing with the defendant and no challenge was advanced to his past history which includes ten years with the Toyota Motor Corporation in Altona and nine years with Boral Plasterboard in Port Melbourne.  The circumstances of the plaintiff’s past employment are not directly relevant to my task in this application, but provide a useful contextual background in which to properly evaluate the consequences which are said to flow from the workplace injury.

The evidence

5       The plaintiff was the only witness to give viva voce evidence before me in this application.  He had sworn affidavits on 8 August 2012 and 21 March 2014 which form part of the material tendered on his behalf and included in Exhibit A.  He also relied upon an affidavit from his wife, Maria, sworn on 4 December 2013, and affidavits from Mark Timms, sworn 2 June 2013, and Philip Noble, sworn 7 April 2014, both of which relate to an association with the plaintiff through a common interest in martial arts.

6       It is useful to set out in summary form the matters which I regard as significant from the plaintiff’s affidavit material before dealing with the viva voce evidence given by him both in cross-examination and re-examination.  From the first affidavit, I noted the following matters as material to the application:

·    The plaintiff was born in 1971 and completed his schooling after Year 11 in 1988.  He is married and lives with his wife and two teenage daughters.

·    The plaintiff’s work history, prior to employment with the first defendant, involved some ten years with Toyota in the assembly plant and nine years with Boral in its plasterboard manufacturing plant.

·    The plaintiff commenced with the first defendant a few months prior to the subject injury which occurred on 21 August 2009.  He described his health as reasonably good, apart from a right shoulder injury suffered in 2004 or 2005, which continued to trouble him although, apparently, not to any great extent.

·    The plaintiff’s duties with the first defendant were varied and included replacing and repairing signage and various items such as park furniture.

·    On 23 November 2009, the plaintiff was required to replace a faded “No Standing” sign within the first defendant’s municipality and was required to use a small three-step ladder, as the larger ladder was apparently damaged to some extent.  In the course of using this ladder, his left leg slipped off a step and was caught between the rungs as he fell.  He heard a loud snap and felt severe pain in his leg.

·    The plaintiff was taken to the Footscray Hospital and underwent surgery to reduce the fracture and to have a rod inserted into the leg.  He developed a complication of a clot in the lung and stayed in hospital for several days before being discharged.  In December 2009, he developed an infection and required further hospitalisation.

·    After some physiotherapy and other rehabilitation, the plaintiff managed to return to work on restricted duties by mid-2010, with a restriction that he should do sedentary work with no climbing of ladders or work on the first defendant’s compactor trucks.  At the time of swearing the affidavit he has returned to work save for the harder physical work or running duties on the compactor truck.

·    For 25 years the plaintiff had been engaged in martial arts and apparently a significant level of gymnasium work.  He had obtained a high grading in martial arts described as the second level.  He has been unable to return to martial arts but still attends the gymnasium to control his weight and perform limited exercise.

·    The plaintiff has ceased regular motorbike riding, which he had performed weekly, and has difficulty in performing mechanical work on cars and motorcycles due to problems with kneeling or working in confined spaces.

·    The plaintiff has difficulty in turning quickly and running.  He had previously gone running over a five kilometre distance three or four times per week, but now is limited to walking for exercise.

·    The plaintiff describes his sleep as being affected by pain and has developed a limp, particularly evident in the mornings.  He experiences pain which he describes as always there in his leg but increasing with activity.

·    The plaintiff has taken a casual job with Bunnings to assist in paying the bills.

7       In his second affidavit, sworn on 21 March 2014, the plaintiff confirmed the matters deposed to in his previous affidavit and described further investigation and treatment on his left leg.  I noted, in particular:

·    The plaintiff continues to suffer from pain in the left shin which he believes is worse in cold weather or after increased activity involving the left leg.

·    He sometimes develops a limp, particularly in cold weather.

·    He has developed what he describes as increased left knee pain, again more in cold weather or with activity.

·    He has had little active treatment in the 12 months preceding the swearing of the affidavit and limits medication to taking Nurofen when the pain is severe.  There are some weeks when he takes no medication but, in a bad week, he may take medication two to three times per week. He continues with a self-managed exercise program and attending the gym two to three times per week.

·    The injury to the plaintiff’s left leg, including the ankle and the knee, continues to cause difficulty with activities involving squatting, crouching, running, jumping or twisting.

·    The plaintiff remains employed on a full-time basis by the first defendant, performing his pre-injury duties with the exception that he is no longer required to perform the task of running behind the compactor trucks.  Some tasks cause him increased pain or difficulty due to his left leg injury.  He also continues to work his second part-time job at Bunnings on Tuesday and Thursday evenings, and experiences soreness and tiredness in his left leg at the end of the work day.

·    The plaintiff described the activities involving martial arts, running, motorbike riding and attending the gym as significantly restricted.  He described limitations in his ability to perform mechanical work on his car.

·    The plaintiff has put on weight since the injury and attends gym two to three times per week, but undertakes modified programs to minimise symptoms in his left leg.  He has ceased martial arts totally and acknowledges that there were times when work commitments or his earlier shoulder injury, and other temporary injuries, restricted his ability to participate.

·    The plaintiff has to work slowly in performing maintenance tasks around his house and garden.

8       In cross-examination, I noted the following matters as being relevant to the determination of this application:

·    The plaintiff had a right knee injury, resulting in a compensation claim in 2002, leading to a period of incapacity and a further period on light duties between June 2002 and January 2003.[1]

[1]T15, L7–21.

·    The plaintiff ceased karate in 2004 for a few months because of a right shoulder injury.[2]

[2]T15, L28–T16, L9.

·    The plaintiff underwent shoulder surgery in 2005.[3]

[3]T16, L28–31.

·    After the shoulder surgery, the plaintiff did not return to karate for a few months.[4]

[4]T18, L8–10.

·    The plaintiff had a back injury whilst at Boral in 2003, resulting in restricted duties for about five months.[5]

[5]T18, L19–29.

·    The plaintiff had suffered with tinea and shin splints in 2004.[6]

[6]T20, L1–6.

·    The plaintiff’s weight had been as high as 105 kilograms because of shift work and a back injury in 2004.[7]

[7]T23, L1–9.

·    The plaintiff was unable to run for a few months in 2004 because of treatment for shin splints and tinea.[8]

[8]T25, L7–12.

·    The plaintiff did not return to running or jogging before March 2005.[9]

[9]T27, L28–T28, L1.

·    The plaintiff suffered blistered feet while working at Boral.[10]

[10]T33, L2–7.

·    The plaintiff suffered a bilateral groin strain in July 2009, again while working at Boral.[11]

[11]T36, L1–2.

·    The plaintiff had been prescribed Stilnox treatments to assist in his sleeping in March 2009.[12]

[12]T37, L2–5.

·    The plaintiff was currently taking over-the-counter medication, being Panamax or Nurofen, as needed.[13]

[13]T37, L17–20.

·    Currently the plaintiff has some pain free days, but most days he would be in pain.[14]

[14]T38, L11–15.

·    The plaintiff suffered from right plantar fasciitis in October 2010.[15]

[15]T49, L15–17.

·    The plaintiff’s current working hours are 7am to 4pm Monday to Friday.  He had worked overtime on occasions for the council.[16]

[16]T54, L10–14.

·    The plaintiff commenced additional work at a local Bunnings in late 2010 or 2011 and was currently working two shifts, six hours per week.[17]

[17]T54, L14–16 and T55, L1–L3.

·    The work with Bunnings involved the plaintiff primarily being on his feet.[18]

[18]T56, L6–7.

·    The plaintiff agreed that he was still performing maintenance around his home, including repairs on a pergola roof.[19]

·    There had been little material change in his earnings since the accident.[20]

[19]T60, L7–11.

[20]T60, L15–18.

9       The plaintiff was then shown surveillance video taken on 24 November 2013.  In relation to this surveillance video, the plaintiff agreed that it showed him initially wearing work clothes as he had performed overtime on a Sunday, probably for four hours.[21]  It showed the plaintiff later at a shopping centre where he unloaded a box containing 20 1.5 litre bottles of bleach, suggested to weigh 30 kilograms.[22]  When further cross-examined, the plaintiff agreed that his wife runs a cleaning business and he would assist her at times by using a vacuum cleaner.[23]

[21]T65, L19–21.

[22]T65, L28–T66, L1.

[23]T66, L2–6.

10      The plaintiff was re-examined, particularly in relation to the earlier injuries.  He described the right shoulder injury requiring surgery in 2005 as restricting his return to karate for a few months.[24]  In the years leading up to the leg injury (the subject of this application), he was training for karate between three and four times per week.  It was a full contact sport.[25]

[24]T70, L2–7.

[25]T70, L15–23.

11      In response to further questions from myself, the plaintiff agreed that a real restriction post injury was that he could not run and could not jump on the leg.  Kneeling down and squatting were identified as the other restrictions.  He also graded his interest in martial arts as a 10 on a 1 to 10 scale of importance and commented that he had been doing martial arts since he was five years old.[26]  The plaintiff also made reference to his difficulty with weight control, given his inability to run.[27]

[26]T72, L13–21.

[27]T73, L13–23.

12      Apart from the plaintiff’s evidence, there was no further oral evidence given in the application.  The plaintiff’s wife, Maria Ebejer, swore an affidavit on 4 December 2013.  She deposed to having known the plaintiff since her teen years and she married him in 1992.  She essentially confirmed that the plaintiff had been unable to return to karate, which he used to attend two to three times per week prior to his injury, and also his inability to run, which she believed he used as a means of keeping fit.  She deposed that he would run probably four times per week and this had again ceased subsequent to his leg injury.  The affidavit also referred to restrictions in his home life and when playing with his children, particularly his daughter, Ebony, who enjoyed sports.  She further described her observations of her husband appearing to be in pain and suffering stiffness in his leg.  The affidavit referred to other restrictions involving bushwalking and motorcycle riding, in particular.

13      Further affidavit material was relied upon from Mr Mark Timms, sworn 2 June 2013, and Mr Philip Noble, sworn 7 April 2014.

14      Mr Timms had known the plaintiff since the age of 16 and had trained with him in a martial arts school “fairly consistently for 20 years”.[28]  His affidavit commented:

“In the 20 years I have known him Mark has always been physically active and karate was a big part of his life.  He would train on average 2–3 times per week.  He was good at karate and reached the level of second Kyu.”

He confirmed that the plaintiff did not return to karate at all after suffering his injury.[29]

[28]Exhibit A, page 21.

[29]Exhibit A, page 21.

15      Mr Noble’s affidavit deposed to having known the plaintiff initially in the early 1980s when they met at an after-hours junior karate class.  The affidavit went on to describe how Mr Noble had opened a karate club, together with his brother and two other persons, in North Altona and subsequently at Hoppers Crossing.  He described the plaintiff as training at that school, at least from 2005 or 2006, for three to four years prior to his injury.

“He would attend consistently.  He generally trained three times per week.  This involved two normal classes and one sparring class.  Each class went for one and a half hours.  There were 8 to 10 participants in the adult class.”[30]

The affidavit went on to describe the plaintiff improving in his proficiency from the third lowest level to the second highest level in karate.  Mr Noble’s affidavit concluded:

“I have known Mark through karate for over 20 years.  From my knowledge of him up until his injury martial arts was an important part of his life.  It was something he had participated in since he was a kid and had also shared with his children.  In my view his ability to progress to the level of brown belt demonstrated his commitment to training regularly.”[31]

He also described a number of students in their forties and fifties who trained regularly.

[30]Exhibit A, page 31B.

[31] Exhibit A, page 31C.

16      The plaintiff relied on medical reports from the treating general practitioner, Dr Mitropoulos, who most recently (27 May 2013) confirmed:

“Mr Ebejer’s leg has recovered very well given the trauma to it.  He does have some minor discomfort that he feels at the proximal end of the tibia, at the knee joint and also subtle pain which he feels at the level of the ankle joint distally.  This is not surprising given the trauma, the surgery and the rehabilitation he has done.  I believe overall he has had an excellent result from the surgery.”[32]

[32] Exhibit A, page 34.

17      In relation to his recreational activities, Dr Mitropoulos commented:

“With respect to returning to any sports, I am very happy for him to continue in his gymnasium exercise regime, but I would be hesitant to say to him to begin a running program in his age group with the significant trauma that he has been through with that leg … Unfortunately, he must accept that running and playing contact sports are now out of the question.”[33]

[33] Exhibit A, page 35.

18      The plaintiff also relied upon a report from the treating orthopaedic surgeon, Mr Robert Pianta, dated 24 January 2011, and three reports from Dr Damien Rowe, physiotherapist, dating from 2010 and 2011.  There is no issue in relation to the nature of the injury or the initial treatment and these reports are useful only insofar as they provide details of the historical treatment.

19      Finally, the plaintiff relied upon a medico-legal opinion from Mr Iain McLean, orthopaedic surgeon, dated 22 October 2013.  His diagnosis, insofar as it is relevant to my task, confirms that the plaintiff has ―

“Left knee symptoms and signs secondary to the proximal cross screw and the tibial rod. Secondary quadriceps wasting and patellofemoral chondromalacia. Left ankle with tenderness and sensitivity over distal cross screws. Secondary calf wasting and limitation/stiffness to dorsiflexion.”[34]

[34]Exhibit A, page 54.

Mr McLean noted that the limitations to the plaintiff were as follows:

“He is unable to perform the running, jumping, twisting, loading type activities.  He has not been able to return to the running and some of his gym work activities.  He has not returned to his motorbike riding or his martial arts … This will continue into the foreseeable future.”

He went on to say:

“There is an increased risk of him developing degenerative changes in the left knee as a result of the fracture of his left tibia and fibular and the resulting force that may have been applied to the knee at that time.  The fact that he has had surgery with the insertion of the tibial rod through the knee with the associated proximal cross screw.  These remain in place at present, but may need removal at some point in the future.  The ongoing muscle wasting imbalance then having an effect on the tracking of his patella and tibiofemoral chondral surfaces being more at risk than would otherwise have been the case if he had not suffered these injuries.” [35]

[35]Exhibit A, page 56.

20      The defendant called no oral evidence, but tendered various clinical notes relating to pre-injury treatment about which the plaintiff was extensively cross-examined.  In terms of medical evidence relevant to my assessment, I have considered in particular the opinions of Mr Clive Jones, orthopaedic surgeon, who conducted an examination of the plaintiff for medico-legal purposes on 24 November 2011.  He concluded at that time that the plaintiff’s leg condition had not fully resolved:

“Residual symptoms of cold weather aching and feelings of stiffness are likely to persist more or less indefinitely.  There was no pre-existing condition.”[36]

In a supplementary opinion provided in February 2012, in answer to further questions, he commented:

“I understand he is working full hours, but there are some tasks in maintenance that he finds difficult … It may be that he will not achieve a full and normal work return, but certainly does try as far as his job is concerned.”[37]

[36]Exhibit 2, page 21.

[37]Exhibit 2, page 22.

21      The defendant also sought an opinion from Dr Geoffrey Graham, occupational physician, on 8 June 2012.  He obtained a history consistent with the plaintiff’s evidence, save that he recorded the plaintiff was having no treatment.  In terms of his capacity at that time, Dr Graham commented:

“He is currently performing his pre-injury hours and the vast majority of his pre-injury duties.  I would agree that he should avoid working as a garbage runner, given the need to repeatedly jump off a truck onto what may be uneven ground.”[38]

[38]Exhibit 2, page 27.

22      Finally, the defendant sought a further orthopaedic opinion from Mr John O’Brien, who examined the plaintiff on 15 October 2013.  Again, Mr O’Brien obtained a history that the plaintiff had ―

“…not received any treatment for his symptoms for some time … The patient states that he does occasionally take some hydrotherapy and pool exercises.  He does not undergo any other active treatment.”

Mr O’Brien noted that the plaintiff no longer does any running, nor is he involved in martial arts.[39]  He regarded the clinical condition as stable and described the symptoms as mild.  In terms of the consequences, he noted:

“The patient now describes very minimal residual disability.  This appears to relate predominantly to his ability to run, however all other activities appear basically unrestricted.  The patient in fact is now undertaking what are considered normal duties, apart from the occasional duty which involves running with the garbage truck.”[40]

Mr O’Brien suggested that the plaintiff’s general, social, domestic and recreational activities were minimally restricted.

[39]Exhibit 2, page 32.

[40]Exhibit 2, page 34.

Analysis

23      The medical assessment in this case is quite straightforward.  The plaintiff suffered a traumatic fracture of the left tibia and fibula, from which he had a prolonged period of recovery but is now regarded by the medical examiners as stable.  All medical examiners, and indeed the plaintiff, agree that he is capable of full‑time work, save for his inability to run or to jump on and off garbage trucks.

24      The plaintiff is having what could properly be described as minimal treatment involving some exercise and occasional medication.  The medication is not obtained on prescription and I regarded the plaintiff as being quite vague in terms of his usage of it.  Certainly, a person who was suffering pain at a level requiring regular medication for its control would have described its use in more definite terms.

25      I also noted, particularly from the surveillance video and subsequent cross‑examination, that the plaintiff had not only returned to full hours of employment, but had also taken on part-time employment in customer service at Bunnings and did, on occasions, assist his wife with vacuuming in her cleaning business.

26 On the face of it, these matters are indicative of an absence of consequences reaching the threshold for serious injury set out in s134AB(37) of the Act or in the numerous appellate authorities which bind me in the determination of this matter.[41]  The approach described in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181,[42] referring to the principle of assessing what has been lost by reference to what has been retained, would indicate that the plaintiff has not suffered a serious injury. 

[41]Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100.

[42]At [44] per Ashley and Beach JJA.

27      In this case, however, the plaintiff has largely relied upon the restriction of his ability to run and his ability to participate in martial arts in the post-accident period as the foundation for his application. This was emphasised in his own affidavit and in the supporting affidavits provided by his wife, Mr Timms and Mr Noble.  A large portion of the cross-examination by Ms Tsikaris, who appeared for the defendant, was directed towards absences from martial arts activities occasioned by the plaintiff’s earlier injuries to his right shoulder, shin splints and other pre 2009 conditions.

28      Further, the affidavit of Mr Noble is significant in that it confirms that persons, to his knowledge, regularly participate in martial arts activities into their forties and fifties.

29      There is no challenge that the plaintiff had engaged in this activity on a very regular basis, including involving his children in martial arts training, to the knowledge of Mr Timms.  His involvement appears to have gone back to childhood days and it is clearly a recreational activity that formed a major part of his life prior to the fracture of his leg.  The plaintiff is forty-two years of age and the medical evidence confirms that he will not return to running or activities involving impact loading to his left leg on a permanent basis.  The inability to run impacts additionally upon his ability to manage his weight and I accept that the plaintiff has had difficulty in controlling his weight in the past, certainly in the period of approximately nine years when he was employed by Boral prior to joining the first defendant. 

30      I also accept that the leg injury will impact to some extent on his general enjoyment of life in terms of his earlier activities of bushwalking and motorcycle riding but these matters alone would be insufficient, in my mind, to elevate what some of the surgeons describe as very minimal residual symptoms to consequences that could fairly be described as satisfying the statutory threshold test. 

31      However, accepting not only the plaintiff in terms of his description of his involvement in martial arts, but also the unchallenged evidence of the three supporting lay witnesses, I must conclude that his involvement in martial arts was certainly his dominant lifelong recreational activity.  The plaintiff has not simply suffered a restriction in his ability to enjoy this activity, it has been totally lost to him as a consequence of his injury.

32      To my mind, the loss of a dominant recreational activity engaged in over many years with a frequency of two to three times per week is something that represents a very considerable detriment to the plaintiff’s enjoyment of life.  When the other consequences in terms of running, with its restriction on his ability to control his weight, the bushwalking, which had previously been enjoyed, and the motorcycle riding are taken into account, I am fortified in concluding that the consequences in terms of pain and suffering for the plaintiff are fairly described as at least being more than significant or marked to the extent of being at least very considerable.

33      In coming to this assessment, I have not enlarged the consequences to the plaintiff in terms of constant pain or pain which requires regular medication or other treatment for its control.  I have also placed little weight on the plaintiff’s evidence that his sleep is regularly disturbed.  It would seem quite inappropriate to regard a person who has returned to full hours of employment, taken on a second job and managed to persist with many domestic activities, albeit in a more measured fashion, as having suffered serious consequences.  It is truly the loss of his lifelong and dominant recreational pastime that, in my view, constitutes a very considerable consequence for him.  Without his accepted pre-injury involvement in martial arts, I would not regard the consequences suffered by Mr Ebejer as reaching the statutory threshold.

Conclusion

34      I am satisfied, on the whole of the evidence in this proceeding, that the plaintiff is entitled to a grant of leave to claim damages in respect of pain and suffering only in respect of an injury sustained in the course of his employment with the defendant on or about 23 November 2009.

35 I propose to grant leave to the plaintiff pursuant to the provisions of s134AB(16)(b). I will hear the parties in respect of formal orders and the question of costs.

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