Goran v TAC
[2010] VCC 1026
•23 July 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02274
| NAGIBA GORAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 March, 19 and 20 July 2010 |
| DATE OF JUDGMENT: | 23 July 2010 |
| CASE MAY BE CITED AS: | Goran v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1026 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – serious injury – impairment to the right foot.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC and | Slater & Gordon Ltd |
| Ms Pilipasidis | ||
| For the Defendant | Mr D Myers and | Solicitor to the Transport |
| Mr P Gates | Accident Commission | |
| HER HONOUR: |
1 The hearing of this application initially commenced on 10 March 2010. On the following day, application was made to adjourn the proceedings until a suitable Kurdish interpreter was available to assist the plaintiff. The hearing commenced afresh on 19 July 2010 when such an interpreter could attend.
2 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 27 July 2006 (“the said date”).
3 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
4 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a) - “a serious long term impairment or loss of a body function”. The body function relied upon by the plaintiff is the right foot.
5 The inquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on one affidavit and gave viva voce evidence. She was cross-examined. Mr Edwards, foot and ankle surgeon, was required to attend for cross-examination. The defendant relied upon an affidavit sworn by Mr Pinkstone, solicitor for the defendant.
9 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
10 The plaintiff is aged forty nine, having been born on 1 July 1960 in Iraq. She attended primary school only, and thereafter she helped out at home.
11 The plaintiff married at the age of twenty six and has four children, three of whom were born in Iraq.
12 In 2000, the plaintiff and her family (“the family”) fled Iraq as refugees and went to Tehran, where they remained for a few weeks before leaving for Malaysia, where they stayed for nine days. The family then went to Indonesia, where they remained for another month before arriving in Australia. The family were sent to Port Hedland Detention Centre, where they remained for two weeks before being granted temporary visas.
13 The family stayed in Perth for five years where their fourth child was born in 2001. They then moved to Melbourne on 19 November 2005. Prior to the said date, the plaintiff was in good health and she was engaged in home duties.
14 On the said date, whilst crossing the road opposite the Magistrates’ Court in Broadmeadows, the plaintiff was struck by a car travelling on her right hand side (“the accident”).
15 As a result of the impact, the plaintiff lost balance and fell backwards, landing on her back on the road. She did not lose consciousness but she was in a lot of pain and was taken by ambulance to the Northern Hospital (“the Hospital”).
16 The plaintiff experienced immediate pain in her right ankle, which was swollen, and she had bruising on the left side of her leg. At the Hospital, x- rays were undertaken of her right ankle, neck and right shoulder. She was very distressed and could not move the toes of her right foot. The plaintiff was discharged home the same day with analgesia and given crutches as she was unable to weight bear.
17 The plaintiff re-attended the fracture clinic at the Hospital (“the Clinic”) on 4 August 2006 and a CT scan of her right ankle confirmed a fracture. A ‘below knee’ plaster was applied and the plaintiff was again discharged, non-weight bearing, with crutches. On attendance at the Clinic on 15 August 2006, the plaster had to be reapplied.
18 The plaster was removed on 5 September 2006 and the plaintiff was advised to use a CAM walker (“the walker”) but instructed not to weight bear. She was also referred for physiotherapy. On review at the Clinic on 24 October 2006, the plaintiff was advised she could begin to weight bear using the walker.
19 Because she was still experiencing ongoing pain and swelling in her ankle, the plaintiff re-attended the Clinic on 5 December 2006. Further x-rays were undertaken which confirmed the plaintiff still had the fracture, and she was given anti-inflammatories for the pain.
20 The plaintiff first saw her general practitioner, Dr Bahnasawi, on 9 November 2006 in relation to her accident injuries, and he continues to treat her in this regard.
21 As her condition was not improving, Dr Bahnasawi referred the plaintiff to orthopaedic surgeon, Mr Lynch, who first saw her on 30 January 2007, at which time he advised against surgery. He told the plaintiff it was unlikely her pain and stiffness would improve, because of the type of injury she had sustained.
22 On review by Mr Lynch on 8 April 2008, the plaintiff was advised her condition was not improving. Two weeks later Mr Lynch gave her a subtalar injection of local anaesthetic and steroid to the right ankle. The injection was very painful and did not help the plaintiff’s symptoms of pain and stiffness and Mr Lynch advised her to continue physiotherapy.
23 Dr Bahnasawi then referred the plaintiff to Dr Karlov, consultant physician, whom she first saw on 15 January 2009.
24 The plaintiff deposed that she continues to see Dr Karlov every three weeks and he injects her right foot with Celestone. The plaintiff also takes Movalis tablets once a day and Moxiclav Duo Forte twice a day.
25 The plaintiff deposed that she still uses a walking stick for any long distances as she has difficulty weight bearing. She tries to walk without the stick when she can because her doctors have encouraged her to exercise and build up her leg strength. However, often when her pain is bad, she has to rely on the stick to get around.
26 As a result of the accident, the plaintiff has developed a psychological reaction. Initially she had a lot of nightmares in which she was falling into a black hole but with time these have become less frequent. It is difficult for the plaintiff to avoid the accident scene as she lives nearby.
27 Whilst the plaintiff has a driver’s licence, she has not driven since the accident. She is not frightened to be a passenger but she is frightened to walk along the road as a pedestrian and is fearful of trying to cross the road and is over vigilant when doing so.
28 The plaintiff is very depressed because of her injury which has affected her relationship with her husband and there have been times when she has completely lashed out at him and she gets very angry very easily. The plaintiff has not been referred for any psychological treatment since the accident.
29 Prior to the accident, the plaintiff was very fit and healthy. She used to jog around the local park and walk every day for at least half an hour for health reasons. Since the accident, she is very limited in her ability to walk and she has put on weight.
30 The plaintiff also has problems with any activity requiring standing or walking long distances. This has interfered with her ability to do housework and she relies on her daughter to help her. The plaintiff is unable to vacuum or mop the floor but she can do lighter chores and lighter cooking.
31 The plaintiff also injured her left shoulder in the accident. She has difficulty moving it. She is unable to lift anything heavy or elevate her shoulder, feeling pain and restriction. Because she is right handed, she avoids using her left hand as much as possible.
32 Since the accident, the plaintiff has also experienced numbness into her left hand and particularly her left ring finger, which Dr Karlov thought was coming from her left shoulder.
33 In cross-examination, the plaintiff confirmed Dr Towie was her general practitioner before the accident, and thereafter she has been treated by Dr Bahnasawi.
34 The plaintiff denied that when she attended the Hospital on 6 February 2007 she was walking well without a stick but she agreed that at that time she had occasional pain, but that it was tolerable.
35 There has not been too much change in her condition since that time “but a little bit is good. There is a little bit of pain - not too much pain”.
36 The plaintiff is prescribed medication by Dr Bahnasawi. She takes one tablet three times a day. She also takes medication for her left shoulder and for her blood pressure. Sometimes the medication gives her a headache. When she takes the medication she does not have any pain in her foot.
37 Sometimes, when this is the case, the plaintiff can go shopping by herself because the shops are nearby.
38 The plaintiff confirmed the history given by her to various doctors of the need to use a walking stick and that she attended all medical examinations using the stick. She confirmed she had problems doing the housework and difficulty getting out of the house - as reported by Mr Lynch, Mr Hadj and Dr Serry in 2007, Dr Bahnasawi in November 2008, Dr Ingram and Mr Dooley in April 2008 and Dr Karlov in November 2009.
39 The plaintiff agreed that as of early 2009, she used a walking stick pretty much all the time; she was limping; she found it very difficult to support her weight on her right foot; she could not do domestic chores; she was finding it difficult to get out of the house and she was pretty much in obvious pain.
40 The plaintiff confirmed the contents of an affidavit sworn by her on 1 September 2008 detailing her level of pain and disability at that time.
41 At the present time, sometimes it is very hard for the plaintiff to get around and she still has problems getting out of the house. Sometimes she uses a stick, but not as much as she used to. If she feels ok she does not use the stick. Sometimes her movements are slow and at other times her movements are absolutely normal, and she has told Dr Bahnasawi this.
42 The plaintiff last had an injection in her foot in November 2009. Between January 2009 and that date, she had had six or seven injections. They were more helpful to her than the injection administered by Mr Lynch. Mr Lynch was angry with her when she told him his injection was not helpful. The plaintiff had physiotherapy treatment on Mr Lynch’s suggestion and she had further physiotherapy treatment earlier this year.
43 The injections from Dr Karlov gave the plaintiff relief for a week to two weeks. The plaintiff stopped having injections as Dr Karlov advised her to see what happened with her case and he told her he may consider surgery. The plaintiff had alternative treatment when in Iraq in 2007.
44 The plaintiff agreed that she told Mr Edwards in January 2010 that she had constant moderate to severe pain which was worse with activity. When asked why she limped on that occasion, the plaintiff explained that she had pain that day.
45 The plaintiff said that she has a problem with stairs but otherwise she was ok. She did not confirm the history recorded by Mr Edwards that she had trouble walking on almost any surface. She told him that she could only walk for five to ten minutes; she used crutches and often stopped for a rest. The plaintiff then said that she told Mr Edwards that when she took her medication she could walk normally.
46 The plaintiff was shown surveillance film taken on 28 May 2009. The plaintiff agreed she was not shown limping in the film nor was she shown to move slowly. Further, she agreed she was not shown stopping to rest or sit down nor was she using a stick. She explained that she moved in that manner on that day as she had taken medication and she had had an injection, after which she was able to walk normally. She had been told by doctors that “she must run and try to …”.
47 The plaintiff agreed that her level of movement shown on the video was a fair representation of her condition when she had taken medication. She can sometimes do the housework and do the dishes and at other times she needs help from family members. Her twenty one year old and nineteen year old children still live at home and assist her with the housework.
48 The plaintiff regularly picks up her nine year old son from school and he is taken to school in the mornings by the plaintiff’s husband,
49 The plaintiff was unsure when she first saw the surveillance film. She finally said that she had first seen it in 2010.
50 When asked what had changed or happened between her earlier presentation and complaints to doctors of pain and restriction and her presentation on video, she explained that when she took medication tablets or injections she could walk as normal.
The Plaintiff’s Medical Evidence
51 The plaintiff was conveyed by ambulance to the Emergency Department of the Hospital on 27 July 2006. On admission, she reported having been hit on the right side whilst crossing the road. It was noted there was no head or neck trauma nor loss of consciousness.
52 On presentation, the plaintiff had pain in her right ankle and the left side of her leg and she was distressed. There was swelling over the right lateral malleolus and the entire right foot and the plaintiff was unable to move her toes.
53 An x-ray of the right ankle, tibia, fibula and right foot reported there was moderate soft tissue swelling in relation to the lateral malleolus. The ankle mortise appeared normally configured. No distal tibial or fibular fracture was detected. Parallel bands of sclerosis traversing the calcaneus obliquely suggested a compression fracture. The remaining bones of the foot appeared intact and no injury was detected in the more proximal tibia or fibula. The plaintiff was given crutches and analgesia and advised to return to her local doctor.
54 A CT scan of the right ankle was carried out at the Clinic on 2 August 2006 and a ‘below plaster’ was applied.
55 The plaintiff attended the Hospital Emergency Department on 5 August 2006, and on 15 August 2006, she attended the Clinic, where an x-ray was taken. The plaster was removed on 5 September 2006 and an x-ray on 25 September 2006 through plaster showed satisfactory alignment of the fracture at the body of the calcaneus.
56 When the plaintiff attended the Hospital on 24 October 2006, it was noted there was minimum tenderness and she was advised to weight bear with a cam walker. An x-ray on that date showed a healing fracture through the anterior and mid aspect of the calcaneus, the alignment being unchanged from previous investigations.
57 On attendance at the Hospital on 5 December 2006, the plaintiff had ongoing pain and swelling. It was noted her ankle was red, swollen and very tender, and the doctor wondered if the plaintiff was developing Reflex Sympathetic Dystrophy. An x-ray on that day showed a comminuted fracture demonstrated through the calcaneus. Bony fragments appeared to be in anatomical alignment.
58 A CT scan of the right hindfoot was taken on 5 February 2007. It was noted that the plaintiff attended the Hospital the following day walking well without an aid. She had occasional pain but it was tolerable. She was advised to take non-steroidal anti-inflammatories for her pain and she was discharged from the Clinic.
59 The plaintiff saw Dr Towie at the MedIQ Clinic in Broadmeadows on 2 August 2006. At that time the plaintiff complained of right ankle pain which had not improved and she was not able to weight bear.
60 Dr Towie noted x-rays had been performed at the Hospital, the results of which the plaintiff was told were normal and Dr Towie then requested a CT scan of the plaintiff’s ankle.
61 The CT scan arranged by him revealed a comminuted fracture of the right calcaneum which was consistent with the accident. Dr Towie then continued to treat the plaintiff’s injury conservatively. For several months he prescribed analgesics, and last saw the plaintiff on 12 October 2006. He noted she attended his clinic on 18 July 2007 for an unrelated matter.
62 Dr Bahnasawi from Health Target Medical Centre in Broadmeadows (“the Medical Centre”) first saw the plaintiff after the accident on 9 November 2006, and last reported on 10 November 2008.
63 At that stage, Dr Bahnasawi noted the plaintiff’s hindfoot caused her pain, especially when she weight beared. The ankle subtalar and midtarsal joints were all quite stiff, making her movements slow. As a result, the plaintiff was finding it hard to get around and difficult to do all her usual chores, which was making her depressed.
64 Dr Bahnasawi felt the clinical condition of the plaintiff’s foot would not improve a great deal and that she would need to use a walking stick as much as possible as an aid to take any weight bearing.
65 Dr Bahnasawi felt that in the future the plaintiff may suffer from arthritic joint problems and may require surgery as the pain worsened. He noted he had encouraged her to do gentle exercises and continue with physiotherapy.
66 During the course of treatment, Dr Bahnasawi found the plaintiff had a lot of right leg weakness and he referred her to Mr Lynch for assessment. This weakness had continued, together with pain in the right leg.
67 In conclusion, Dr Bahnasawi thought the plaintiff’s injury did cause a major weakness in her right leg and that her ability to do normal living activities was very limited.
68 Mr Lynch, orthopaedic surgeon, first saw the plaintiff on 13 January 2007, six months after the accident. At that time, Mr Lynch reported that the plaintiff’s main problem was right hindfoot soreness, particularly with weight bearing for over an hour. Her gait was slow.
69 The plaintiff told him that she was not getting out of the house to do her usual activities of daily living and was becoming depressed.
70 There was reduction of movement of the ankle subtalar and midtarsal joints on the right. Mr Lynch noted the fracture of the right calcaneus had minimal displacement but that it did involve the subtalar joint.
71 Mr Lynch then advised the plaintiff he did not believe her hindfoot stiffness and ache would improve a great deal from her current status and encouraged weight bearing as much as possible with the aid of one stick in the contralateral hand.
72 Mr Lynch encouraged the plaintiff to perform her activities of daily living, in particular, get out of the house and interact with friends and neighbours to assist with her depression. He encouraged her to stay with the primary treaters at the Hospital for ongoing monitoring and treatment.
73 Mr Lynch felt the right subtalar joint may well become arthritic in the future and require intervention.
74 On review on 8 April 2008, the plaintiff complained to Mr Lynch of ongoing pain around the right hindfoot, and stiffness. He arranged for a CT scan, looking for subtalar osteoarthritis. The CT scan showed mild joint space loss involving the subtalar joint but no established osteoarthritic changes.
75 On 21 April 2008, a right subtalar injection of long active local anaesthetic and corticosteroid was performed by the Radiology Department at the Hospital.
76 Mr Lynch last saw the plaintiff on 29 July 2008, at which time she reported the injection failed to help her symptoms of pain and stiffness. He did not recommend any further surgery but recommended she continue physiotherapy to assist her with mobility, strengthening and proprioceptive retraining.
77 In Mr Lynch’s view, the plaintiff’s injuries had stabilised and she had been left with chronic stiffness and ache in the right ankle and hindfoot. He thought there was a risk of further deterioration in her ankle and hindfoot as he noted traumatic arthritis in the subtalar joint could develop following any intra articular fracture of the calcaneus. In his view, conservative continuing treatment was recommended and physiotherapy should be used only intermittently when her symptoms required, and only if beneficial.
78 Dr Karlov, consultant physician, provided a short report dated 23 November 2009. The plaintiff reported to him great difficulty with domestic tasks, because of her immobility and problems weight bearing. She struggled to carry on these tasks but at great expense in terms of pain and subsequent discomfort.
79 The plaintiff told Dr Karlov that she had had ongoing pain ever since the accident. She was never free of pain but the pain fluctuated and it was always of sufficient severity to interfere with her day to day activities.
80 In Dr Karlov’s view, the nature of the plaintiff’s injury affecting her ankle was prone to lead to rapidly accelerating osteoarthritis. He considered this in part was responsible for the plaintiff’s current pain and was likely to progress to more severe proportions.
81 Dr Karlov thought the plaintiff needed ongoing analgesics and anti- inflammatory medication. In his view, she also needed physiotherapy and ultrasound therapy for the ligaments and she was faced with the prospect of surgery in the future. Dr Karlov made no mention in his report of having administered any injections to the plaintiff.
82 Dr Karlov considered that the plaintiff had suffered a severe injury - three years after which she was unable to go shopping without her crutch, making shopping very awkward. He noted that when she had tried to shop without the crutch her pain had been excruciating so she did not go shopping very often.
83 Dr Karlov noted the plaintiff was becoming acquainted with Melbourne and liked exploring the city. She was going to TAFE to learn English but had been deprived of these activities. The plaintiff had difficulty sleeping because of pain and nightmares. She was downcast and depressed and had very little quality of life and the only things which still cheered her up were her children and her husband.
84 In Dr Karlov’s view, the plaintiff’s injury showed no signs of improvement and it could be expected to be permanent.
Medico-Legal Examinations
85 Associate Professor Hadj, general surgeon, examined the plaintiff on 27 August 2007. At that time the plaintiff told Mr Hadj she was able to walk for about two or three minutes in the house unaided, however she limped. She was unable to walk outside without the aid of crutches and her walking distance had been reduced to ten minutes.
86 On examination, the right ankle showed tenderness present over the right calcaneus and also tenderness over the anterior aspect of the joint. There was an obvious varus deformity and also restriction of movement of the ankle, as well as the hindfoot.
87 In Mr Hadj’s view, the plaintiff had a significant injury to the right foot whereby she sustained a compression fracture of the right calcaneus. She now had a limp with a shortened stance phase and required the use of crutches for distance walking as well as at home.
88 Mr Hadj thought the plaintiff’s condition had substantially stabilised and conservative treatment was indicated.
89 Commenting on Mr Dooley’s report, Mr Hadj noted that the plaintiff was the most appropriate person to determine the level of pain she was experiencing and he had no reason to disbelieve her that she required the routine use of a crutch when she left home. In his view, it was appropriate for a percentage impairment to be allowed for gait derangement.
90 Mr Edwards, orthopaedic foot and ankle surgeon, examined the plaintiff for medico-legal purposes on 21 January 2010. At that time, the plaintiff’s main complaint was of moderate to severe constant pain - it was throbbing or pulsative and burning on the plantar aspect of the foot and tended to be through the hindfoot. The pain woke her and it certainly prevented her from sleeping.
91 The plaintiff told Mr Edwards that her activities were worsened with activity, walking and standing. Her ability to sleep and drive was affected and she had stopped walking for recreation. She had trouble walking on almost all ground surfaces and, in particular, trouble with stairs.
92 The plaintiff’s walking time was now between five and ten minutes but she routinely used crutches and often stopped for a rest. She reported a limp, swelling, bruising, throbbing, numbness and foot deformity.
93 On examination, the plaintiff stood with a normal arch and the heel was in neutral. She could double foot toe stand. When she did that her heel did not swing into varus, unlike the left side. She had a normal ‘too many toes’ sign. To isolated testing, the ankle dorsiflexion was twenty as opposed to twenty five degrees on the other side and plantar flexion to forty, as opposed to fifty. The subtalar joint had diminished movement and was irritable but not rigid. The ankle was stable to anterior draw. There was a lot of tenderness of the sinus tarsi and there was altered sensation inferior to the lateral malleolus. There was altered sensation through the forefoot and through the heel. It was noted the plaintiff presented using one crutch and support shoes.
94 Mr Edwards reported that the x-rays taken on 11 April 2009 were normal. There was subtle abnormality of the subtalar joint and of the anterior process of the os calcis consistent with previous injury.
95 Mr Edwards viewed the January 2009 MRI. To his eye there was synovitis of the ankle. The subtalar joint was of abnormal contour and the calaneum was of abnormal contour anteriorly, amongst other problems. There was a segmental split within the peroneus longus tendon and there was a peroneus brevis tendinosis with a chronic partial thickness tear of the anterior talar fibular ligament.
96 He noted the report of the ultrasound taken in April 2009 showed the talar fibular and tibiofibular ligaments were intact, as were the other ligaments.
97 Mr Edwards was deeply suspicious the plaintiff had arthritis or post-traumatic injury of at least the subtalar joint which he thought in time would progress, albeit slowly.
98 In his view, the plaintiff certainly would require non-operative treatment, the use of medication, such as anti-inflammatories and analgesics, and quite possibly the use of a crutch or a brace. He thought she may well need to go on to require surgery, probably a subtalar arthrodesis. He thought the injury was serious and would affect her ability in the long term to be physically active.
99 Mr Edwards was required to attend for cross-examination.
100 In examination-in-chief, Mr Edwards explained his examination findings. He noted that when he asked the plaintiff to stand on her tiptoes, on the right side the heel did not swing into varus. There was little or no movement of the subtalar and related joints. Mr Edwards found the right subtalar joint was not moving as much as the joint on the other side. It was irritable and when moved, the plaintiff had pain but it was not rigid and there was some movement of the joint.
101 The posture of the subtalar joint was wrong and it did not move normally and heal did not invert when the plaintiff toe stands. Further, the joint was stiffer than the joint on the other side and it was irritable and tender.
102 There was some restriction of dorsiflexion and plantar flexion which were largely movements of the ankle, and there was some contribution from the other joints of the hindfoot.
103 Mr Edwards confirmed dorsiflexion is normally to about fifteen degrees and plantar flexion normally to about fifty or sixty degrees. There could be some discrepancy between the level of movement of various parts of the ankle in the absence of trauma. The fact there was dorsiflexion to twenty degrees on the right, as opposed to twenty five degrees on the left, was not an overwhelming finding - you “wouldn’t hang your hat on it”.
104 Mr Edwards confirmed there was tenderness of the sinus tarsi and if he pushed on that joint, the plaintiff complained it hurt. Her response was therefore subjective.
105 Mr Edwards explained his comments on the 2009 investigation, noting there was an inflammation or a fusion of the ankle. He did not place much reliance on the MRI report of ligament damage. He did not find tendon damage to clinical examination but said he would not exclude it. There was no abnormality of the ligaments or involvement thereof in the plaintiff’s presentation clinically and his findings were confined to the subtalar joint.
106 Mr Edwards then explained the anatomical make up of the foot and ankle as set out on a number of diagrams provided by counsel for the plaintiff.
107 If there was something wrong with the subtalar joint, Mr Edwards would always push conservative treatment to begin with and ultimately it would be treated with a fusion if required. However, it was not a dangerous condition and surgery was not imperative; it was to mitigate the plaintiff’s symptoms. It was not something that demanded intervention but it was pressing.
108 Mr Edwards saw the video surveillance prior to court. In his view, the injury suffered by the plaintiff does not stop a person walking down the street. It makes the foot painful and it might make it painful afterwards or stop you from sleeping. His question would be: How did the plaintiff respond to walking down the street?
109 In cross-examination, Mr Edwards confirmed there was no problem with communicating with the plaintiff, who had the assistance of her daughter as an interpreter. He agreed it was important how a patient would respond to conservative treatment. He was not told of any treatment attempted that had been of benefit and did not know anything about Dr Karlov’s injections.
110 Mr Edwards confirmed the plaintiff told him she was in moderate to severe pain constantly but nothing much had helped.
111 Mr Edwards did not find swelling or bruising on examination. He used a goniometer to measure the exact ankle movement, but in terms of moving the heel, he compared one to the other. The plaintiff said when she felt pain, thus tenderness had a subjective aspect, as did pain and loss of feeling. Mr Edwards agreed there was a subject aspect to the loss of range of movement.
112 Mr Edwards explained that if he fused the subtalar joint he would not expect the plaintiff to limp as it would eliminate the pain from the joint grinding. He would not expect, if the plaintiff was pain free, that she would have problems walking. He would not be able to see she had a problem with her subtalar joint when she was walking down the street, even if it was fused.
113 Mr Edwards said certainly the presentation on video did not look like how the plaintiff had presented on examination. There was nothing she said to him that explained the difference between her presentation on both occasions, such as taking tablets.
114 Mr Edwards was taken to Mr Dooley’s report. In Mr Edwards view, you get wild variance in relation to subtalar joint complaints. Mr Edwards thought it was often correct, as Mr Dooley said, that post-traumatic arthritic changes of the subtalar joints occurred over many years and not rapidly, but this was not always the case. Mr Edwards agreed the plaintiff presented to him in a very disabled way. She had a crutch and she was in a lot of pain.
115 Mr Edwards was not of the view that the MRI scan was a particularly good test in relation to arthritis, nor did he rate it highly as a way of looking at a subtalar joint problem. Mr Edwards agreed that at the end of the day you are really dependent, as a clinician and a practising orthopaedic surgeon, on what you have been told by the patient.
116 On re-examination, Mr Edwards stated he had carried out probably fifty to sixty examinations of hindfoots and ankles a week over many years and there was an objective aspect to the plaintiff’s presentation in terms of movement. He would be very surprised if the plaintiff had different movements of the subtalar joint than that which he measured. He would ask a patient to stand on their toes three or four times before he made a finding in that regard.
117 When asked to describe the clinical findings and whether they fitted in with the plaintiff’s injury, Mr Edwards said the fact that the heel did not swing into varus, fitted with subtalar joint injury. The overall movement of the hindfoot was not as good as the other side and fitted entirely with his experience with this sort of injury but was not diagnostic of it. He thought the diminished movement was a solid finding and “it spoke to injury”. He thought it was hard to mislead as to irritability but it was, to some degree, subjective. He thought he had isolated abnormal ankle movement from the subtalar joint. Having found tenderness of the sinus tarsi, that was the joint that he thought was involved. The finding of altered sensation was not pertinent to anything.
118 When asked about the importance of clinical findings as to the suspicion that there was arthritis or post-traumatic injury, Mr Edwards said these clinical findings in the setting of someone who has a fracture are very important but he could not put a percentage on it. He explained that “the answer is eighty per cent on history; fifteen per cent on physical examination and five per cent on investigations”.
119 In Mr Edwards’ view, analgesics or anti-inflammatories usually help symptoms and surgery occurs when such medication stops working in tandem with all other conservative treatment, such as bracing shoes, activity modification and weight modification.
120 Dr Serry, consultant psychiatrist, saw the plaintiff on 28 August 2007. On examination, the plaintiff moved slowly and with the assistance of a crutch.
121 The plaintiff told Dr Serry of frequent dreams, not of the accident itself but of falling into a deep hole. She had thoughts of never getting better and those thoughts took over her. He was unable to obtain a clear history of flashbacks but he noted that she did appear to have intrusive memories in relation to the accident.
122 The plaintiff told Dr Serry of her anxiety as a pedestrian and that she was upset by accident reminders. She felt stressed and worried virtually all the time and had become more argumentative and irritable.
123 The plaintiff gave a history of constant difficulties given the political situation when she was growing up in Iraq. She also told Dr Serry that she eventually arrived in Australia on a boat via people smugglers which was a difficult time, and in the process the dingy in which the plaintiff was travelling capsized and she almost drowned. The plaintiff told Dr Serry that after arriving in Australia she progressively settled down and was able to put her traumas behind her.
124 The plaintiff denied any formal past psychiatric history.
125 The plaintiff told Dr Serry that she relied on her children to do the housework and that from a social and recreational point of view, she had been very limited. She no longer went shopping.
126 On examination, Dr Serry noted that the plaintiff was a reasonably clear historian but demonstrated a reduced range of affect and at times was quite labile. There were prominent underlying depressive scenes and some residual post-traumatic anxiety features. Dr Serry thought there were no psychotic features.
127 Cognitive assessment was not formally carried out but Dr Serry noted the plaintiff was alert and oriented and insight was somewhat restricted.
128 Dr Serry, whilst noting no formal pre-existing psychiatric history, thought the plaintiff clearly had been traumatised as a result of her experience in Iraq and as a refugee.
129 In Dr Serry’s view, the psychiatric illness resulting from the accident was an Adjustment Disorder with Anxiety, Depression and features of traumatisation. He suspected there was also an emerging Pain Disorder associated with a general medical condition and the psychological factors.
130 Dr Serry thought the plaintiff’s prognosis was particularly guarded and he thought she would require ongoing treatment for her psychological condition, including antidepressant medication. He also thought it would be useful for her to have some supportive psychological treatment, particularly via a Kurdish speaking professional.
131 Dr Serry re-examined the plaintiff on 5 January 2010. At that stage the plaintiff told him she was taking fifteen milligrams of Movalis per day, vitamin D, fish oil and Moxiclav Duo Forte. She also had had a number of injections into her foot.
132 Since the earlier examination, the plaintiff told Dr Serry that she had persistent pain in her right foot and ankle and also pain in the left side of her neck and shoulder.
133 The plaintiff was quite restricted from a social and recreational point of view and she was unable to do her shopping alone and she relied heavily on her husband.
134 The plaintiff told Dr Serry that she continued to feel the psychological impact of the accident but the severity had diminished as she became used to her circumstances. She continued to worry she would not get better and those thoughts were quite distressing. The accident still came to mind and she had ongoing dreams which were not present prior thereto, which reflected a sense of being out of control, including falling into a deep hole.
135 Dr Serry noted he was then unable to establish a clear history of flashbacks, although vivid memories persisted. The plaintiff remained anxious, fearful and avoidant as a pedestrian and was very sensitive to the accident site and easily upset by accident reminders.
136 In Dr Serry’s view, the plaintiff continued to feel somewhat stressed and worried but perhaps not to the same extent as previously. She had also become less argumentative and there were no longer frequent fights at home. She continued to feel intermittently sad, given her restrictions.
137 Dr Serry noted the plaintiff was motivated and interested but only functioned within a narrow range of activities that she felt capable of undertaking. Generally, she found it much harder to enjoy herself, because of pain and limitations. Her energy level continued to fluctuate and her concentration was reasonable, but at times impaired by pain. Her appetite and weight had generally been elevated since the accident and she reported she was unable to exercise. Dr Serry noted that the level of impulsivity had diminished since the previous assessment.
138 On mental status examination, the plaintiff demonstrated a normal affective range but with residual underlying depressive themes. She was not labile. There were residual post-traumatic anxiety and phobic features. There was no abnormality of thought stream or form but thought content revealed an ongoing preoccupation with the accident and its impact. There were no psychotic features and, once again, the plaintiff was alert and oriented and insight was a little restricted.
139 From a diagnostic point of view, Dr Serry thought the plaintiff would be considered to have a Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation. He thought there also appeared to be a Pain Disorder associated with psychological factors and the plaintiff’s general medical condition.
140 Dr Serry thought the plaintiff would require ongoing conservative treatment and could potentially benefit from some brief and focussed psychological work with a psychologist.
Investigations
141 A CT scan of the right ankle taken on 2 August 2006 showed a comminuted calcaneus fracture.
142 The CT scan of the right hindfoot, which was taken at the Hospital on 5 February 2007, identified two fractured lines within the calcaneus. The cartilaginous joints spaces at the subtalar and talar navicular joints were well maintained. The ankle joint was normal in appearance and there was no evidence of a fracture involving the talar dome.
143 An x-ray of the right foot and ankle taken on the 7 January 2008 showed ankle alignment was normal. Sclerosis and trabecular irregularity in the calcaneus indicated that the calcaneus was the probable site of previous injury. There was a tiny subarticular cyst in the tip of the medial malleolus but the joint space was preserved.
144 Mr Lynch organised a CT scan of the plaintiff’s right hindfoot on 11 April 2008. It was concluded there was mild joint space loss involving the subtalar joints but no established osteoarthritic change.
145 Mr Lynch organised a right subtalar injection on 21 April 2008. It was noted that Triamcinolone and Marcain were injected uneventfully.
146 Mr Edwards reported that the x-rays taken on 11 April 2009 were normal. There was subtle abnormality of the subtalar joint and of the anterior process of the os calcis consistent with previous injury.
147 Mr Edwards viewed the January 2009 MRI. To his eye there was synovitis of the ankle. The subtalar joint was of abnormal contour and the calaneum was of abnormal contour anteriorly, amongst other problems. There was a segmental split within the peroneus longus tendon and there was a peroneus brevis tendinosis with a chronic partial thickness tear of the anterior talar fibular ligament.
148 Mr Edwards noted the report of the ultrasound taken in April 2009 showed the talar fibular and tibiofibular ligaments were intact, as were the other ligaments.
The Defendant’s Medical Evidence
149 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 17 April 2008. The plaintiff told Mr Dooley at that time that she had pain in her right ankle and heel.
150 The plaintiff told Mr Dooley that she had pain when standing and when she walked. She had difficulty doing the housework. She used a crutch.
151 On physical examination, the plaintiff walked with an antalgic right-sided gait. She was using an elastic support on her ankle and a crutch in her left hand. On examination, there was no deformity of the hindfoot or ankle. Dorsiflexion of the ankle was to zero degrees and plantar flexion was to twenty degrees. Inversion of the hindfoot was to zero degrees and eversion to five degrees. There was tenderness over the lateral aspect of the calcaneus.
152 Mr Dooley diagnosed a fracture of the right calcaneus. He noted plain x-rays showed some flattening of the bohler’s angle, with it being neutral. He thought there may also be some early degenerative change affecting the subtalar joint.
153 Mr Dooley noted the original CT scan of the calcaneus was reported to show a comminuted fracture at the mid and distal portions of the calcaneus, with a fracture line extending from the plantar surface to the superior aspect posteriorly and also towards the sinus tarsi. The subtalar joint and talonavicular joint were intact.
154 Mr Dooley concluded there had been some compression of the fracture, that there had not been any major involvement of the subtalar joint. The fracture had healed with some flattening of the bohler’s angle, with which there was no obvious clinical deformity.
155 Mr Dooley noted subsequent x-rays showed that the plaintiff may be developing early post-traumatic osteoarthritis of the subtalar joint. Whilst she had had a fracture and may be developing early osteoarthritic change, in Mr Dooley’s view, her level of pain and disability with which she presented were greater than he would expect to see for the injury sustained. He would not expect the plaintiff to require the use of a crutch at that stage and noted that simple analgesic medication was reasonable.
156 Mr Dooley considered that if the plaintiff did develop ongoing post-traumatic osteoarthritis of the subtalar joint, then ultimately she could require subtalar fusion surgery. He thought further assessment in this regard was required.
157 Mr Dooley was subsequently forwarded a report from Associate Professor Hadj dated 27 August 2007 in which a Professor Hadj had made an allowance for gait impairment.
158 Mr Dooley commented that he thought the plaintiff’s use of a crutch related to her psychological reaction to injury and/or pain and not to the injury itself. Accordingly, he thought she would not need to use a crutch on a permanent basis.
159 From the organic orthopaedic viewpoint, Mr Dooley would not expect the plaintiff, either currently or in the future, even if she had fusion surgery, to require the regular use of a walking aid, therefore, although it was an option to allocate impairment under the gait derangement table, he chose not to do so and thought it was more appropriately assessed under the range of motion table.
160 Mr Dooley provided a supplementary report on 15 February 2010, having been provided with further medical reports and surveillance material.
161 Mr Dooley provided a report dated 5 March 2010, having received the MRI scan dated 8 January 2009 and a plain x-ray and ultrasound of the plaintiff’s right ankle and hindfoot dated 4 November 2009.
162 Insofar as the MRI scanning was concerned, in Mr Dooley’s view, there was no obvious osteoarthritis of the subtalar joint or of the ankle joint.
163 On plain x-rays of the right hindfoot there was evidence of some sclerosis of the subchondral bone of the calcaneum adjacent to the subtalar joint. Mr Dooley commented that this bone may be more prominent as a result of impaction that occurred with the fracture or it could be part of very early degenerative changes affecting the subtalar joint.
164 Mr Dooley noted the joint space itself was not obviously narrowed. In his view, on balance, there was probably early osteoarthritic change affecting this joint and there was no osteoarthritic change affecting the ankle joint.
165 Mr Dooley noted that clinical experience would tell that these changes either may not progress in time or may progress slowly in time. If the change was to progress in time, then he believed its progress would be slow and would probably occur over approximately a ten-year period. Mr Dooley concluded the radiological progress of osteoarthritic change was not necessarily accompanied by clinical deterioration.
166 Mr Dooley noted the surveillance film showed the plaintiff able to walk reasonable distances comfortably and without any obvious pain, not using a crutch. She was carrying a large umbrella but not using it as a walking aid. The film indicated to him that the plaintiff was able to function far more effectively than she demonstrated on formal examination. It indicated to him that the pain the plaintiff experienced in everyday life was far less than she described in her history and presentation.
167 Mr Dooley noted the plaintiff was presenting to medical practitioners in a very disabled way. In his view, the film suggested this presentation was a deliberate exaggeration of her symptoms and signs.
168 Following the injury sustained, Mr Dooley would expect the plaintiff to note some aching of the ankle and hindfoot with a lot of standing and walking. He thought she may continue to develop slowly progressive post-traumatic osteoarthritis of the subtalar joint which, if these changes were to occur, they would occur over many years and not rapidly. He noted perhaps standing in the one position for a long time or jumping or impact activity may aggravate the plaintiff’s condition.
169 In his view, if further degenerative change occurred, it may cause the plaintiff to note more pain and may lead to some restriction of inversion and eversion of the hindfoot. Mr Dooley thought it was clear the plaintiff did not require any specific treatment at present.
170 The plaintiff was examined by Dr Ingram, psychiatrist, on 17 April 2008.
171 The plaintiff told Dr Ingram that she been knocked to the side of the road in the accident. She was unable to move and had been immediately aware of severe pain in her right leg and she started screaming loudly.
172 Dr Ingram noted that at the time of the accident, the plaintiff was not working but had an active and busy life looking after her husband and four children. She went for regular walks every afternoon for up to two hours a day, visited friends and was involved in other social activities and did normal housework and shopping.
173 The plaintiff told Dr Ingram that since the accident, she had become very limited in what she had been able to do and could only do simple household tasks not requiring too much standing. She was unable to walk for more than five minutes at a time and therefore had not even been able to go to the local shop. She spent most of her time sitting down and watching television or sometimes just getting up and wandering outside.
174 The plaintiff told him that she did not have a licence before the accident but she had become more nervous in a car since then and was startled with loud traffic noises. She was also more anxious when crossing the road and she went out less to visit friends. There had been some diminution of her sex life, mainly because she had not felt like it because of pain.
175 The plaintiff told Dr Ingram she had become more sad and depressed than she had been previously and found herself in tears for much of the time. She related this to her situation and the fact that she had been in chronic pain and unable to live the life she had previously. She felt hopeless and found it hard to see her future, although she had not had any suicidal thoughts, and when her pain was less severe, especially when sitting down, she had sometimes been able to enjoy herself and felt happy.
176 The plaintiff had had frequent dreams, sometimes nightmares about the accident which woke her feeling frightened. There had been a loss of appetite and energy levels and she had become more forgetful. She felt angry about what had happened and she had become more irritable and short tempered. She tended to think about the accident when her pain became particularly bad.
177 The plaintiff denied any previous history of psychiatric problems and reported that there was no family history of psychiatric illness.
178 The plaintiff told Dr Ingram that she was born in Northern Iraq and was of Kurdish descent and that one of her brothers had been shot for political activity and another had been killed by Sadam Hussein. She said she had a difficult childhood because of all the political problems. She had only gone to primary school, which was normal in her society, and she had been an average student. After leaving school, she had not worked and stayed at home and had not married until the age of twenty six.
179 Her marriage was good and she and her husband moved to Australia at the age of forty to escape the political situation in Iraq. She enjoyed being a mother.
180 On mental state examination, Dr Ingram found that there was no psychomotor retardation or evidence of the plaintiff being in pain, although she was rather demonstrative in talking about her problems. Her affect was mildly depressed but there was normal reactivity and she engaged well.
181 There was some preoccupation with her pain and depressive themes but there was no formal thought disorder or perceptual abnormality and the plaintiff’s memory, concentration and intelligence seemed normal.
182 Dr Ingram concluded that, psychologically, the plaintiff had found the accident quite distressing and since then she had had regular nightmares and also flashbacks most days. She also became depressed about her chronic pain.
183 In Dr Ingram’s view, the plaintiff was mainly suffering from a Post-Traumatic Stress Disorder. He noted that her flashbacks and nightmares did not appear to be improving with time and he thought it appropriate for her to be treated with an SSRI at moderate to high doses, and, in his view, there was a reasonable chance this would help with some of the plaintiff’s Post-Traumatic Stress Disorder symptoms, as well as the depression.
184 Dr Ingram was forwarded a report from Dr Serry in which Dr Serry attributed a larger whole person impairment to pre-existing issues.
185 Dr Ingram noted he had not been told, as had Dr Serry, that the plaintiff also had a traumatic time in the process of coming to Australia and had been in a dinghy that had capsized and that she nearly drowned. Dr Ingram, however, felt this information did not change his assessment, having already factored in the plaintiff’s stressful childhood and her quite stable life in Australia prior to the accident. On that basis, he thought there was no premorbid psychiatric impairment. He did not think the traumatic trip to Australia was causing the plaintiff’s symptoms before the accident.
The Defendant’s Evidence
186 An affidavit was sworn by Stewart Pinkstone, solicitor for the defendant, on 5 March 2010.
187 Mr Pinkstone deposed that in the course of conducting the defence of these proceedings, the defendant had acquired a copy of a report and a DVD dated 4 June 2009 prepared by Laurie Simmons & Associates and also a DVD obtained by that company on 28 May 2009.
188 On or about 16 October 2009, the plaintiff was served with a copy of these documents, under cover of letter dated 15 October 2009 to the plaintiff’s solicitors.
189 On or about 22 October 2009, the defendant was served with a copy of the plaintiff’s affidavit dated 4 September 2009 but sworn 19 October 2009 under cover of a letter from the plaintiff’s solicitors dated 20 October 2009.
Surveillance Evidence
190 There was surveillance taken of the plaintiff’s activities on 28 May 2009. The plaintiff was first shown at the front of her house at 11.17 am standing outside for about a minute or so.
191 From 4.59 pm, the plaintiff was shown walking along a neighbourhood street carrying an umbrella in her right hand. At no time did she use the umbrella as a walking aid.
192 Over the following minutes, where there were some gaps in the film, the plaintiff was shown walking in a normal way, not limping and not relying on any walking aid. There was no film between 5.01 and 5.03 pm.
193 The plaintiff was then shown with the umbrella in her right hand, and at 5.04 pm, she was shown walking up steps without any support, continuing to carry the umbrella in her right hand.
194 The video resumed at 5.13 pm, when the plaintiff was shown holding a handrail in her right hand briefly while walking down steps.
195 There was then a gap in the film until 5.15 pm, when the plaintiff was shown walking with her son with her son’s backpack on her back, having collected him from school. The plaintiff was not limping; she had her umbrella in her right hand. She continued walking until 5.21 pm, when she arrived home and took letters out of her letterbox and then walked slowly into the house.
196 At no time during the film was the plaintiff shown to limp, use an aid, walk slowly, take a rest or a break from walking or have any difficulty walking.
Claim Documentation
197 The plaintiff submitted a Claim for Compensation to the Transport Accident Commission on 12 August 2006, setting out she had suffered a broken ankle and psychological shock in the accident. Her doctor at the time was Dr Sidrak and she was admitted to Epping Hospital on 27 July 2006 and discharged the following day, at which time she reported the accident to the police.
198 The plaintiff swore an affidavit on 1 September 2008. At that time the plaintiff stated that she was still having difficulty walking without the assistance of crutches. She could get around the house unaided; however, she tended to limp. If she needed to walk outside she used the crutches, however, she could only manage about ten minutes’ walking. As a result of using the crutches, she had developed increasing left shoulder pain and symptoms extending into her left hand.
199 The plaintiff stated that as a result of the accident, she was unable to carry out her daily household chores and she relied heavily on her teenage children to assist. The plaintiff used to go shopping every day; however she was no longer able to do so as she could not walk for longer than ten minutes.
200 The plaintiff stated that she had developed a psychological reaction as a result of the accident. She felt she was never going to get better and these thoughts tended to be with her every day. She could no longer sleep through the night and often woke up during the night and tended to sleep more during the day. She had not driven since the accident and found herself very anxious if she went for a walk and got quite nervous and even scared near the accident site.
201 Since the accident, she had become more frustrated and irritable and it made her sad, because of her limited activity due to her ankle. She got angry more easily and was more argumentative at home. Her concentration levels were impaired by her pain and her energy levels had decreased, as had her libido which had an effect on her marital relationship.
Findings
202 It is not disputed that in the accident the plaintiff suffered a comminuted fracture involving some compression of her right calcaneus. The injury has been treated conservatively with medication and injections, the last injection having been administered in November 2009.
203 The issue for consideration is whether any resulting impairment to the plaintiff’s right foot is serious and long term.
204 The impairment to the plaintiff’s right foot must have consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
205 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak (supra), at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441: see in particular, Chernov JA, at paragraph 29.
206 I am also entitled to take into account the expected psychological consequences of the plaintiff’s physical injury in assessing its seriousness.
207 In this application, the plaintiff’s viva voce evidence and the surveillance film taken in May 2009 paints a vastly different picture of the plaintiff’s condition than her presentation to all medical practitioners since the accident.
208 Further, there is a lack of up-to-date evidence from the plaintiff’s treating doctors.
209 Counsel for the plaintiff placed reliance heavily upon the plaintiff’s viva voce evidence. He submitted that such evidence was “the clearest picture given by somebody who was unsophisticated”. It was submitted the plaintiff had understated her problems and was not assisted by the interpreter.
210 It was submitted that the plaintiff’s evidence was consistent with the situation where she had said over time there had been a little bit of improvement and there is improvement with medication and at least, for a period of time, with injections.
211 After the lack of evidence from treating doctors and the plaintiff’s different versions of her condition were put to counsel for the plaintiff, he conceded that if I was unable to place reliance upon the plaintiff’s viva voce evidence, “the plaintiff cannot win her case; that is as clear as that”.
212 Counsel for the plaintiff did not suggest that there was a “total absence of some level of exaggeration or, putting it another way, that what has been presented in histories is the situation quite possibly at its worse”.
213 In this regard, I note that all such histories however did not vary and all involved a presentation by the plaintiff of significant disablement.
214 For the first time during the hearing the plaintiff said that she was pain free and able to walk normally after she had taken medication. There was no affidavit evidence to this effect. She further said however, that at times she has problems with her housework and general mobility even if she takes tablets.
215 Having been shown the surveillance film taken on 28 May 2009, the plaintiff acknowledged, as was clearly shown, that she walked normally with no limp or restriction, not using a stick and not needing to stop and rest. She explained she moved freely because she had no pain as she had taken medication and had had an injection, the date of which is unclear.
216 The plaintiff did not say she had any difficulty walking on this particular day that was not apparent on the film, nor that she had any problems with her foot when she got home.
217 Yet, as mentioned above, the plaintiff has consistently presented to medical examiners, both treaters and medico-legal, reliant on a walking stick and complaining of significant pain and restriction.
218 In cross-examination, the plaintiff agreed with all histories recorded by medical practitioners except that of the Northern Hospital relating to an attendance in February 2007, at which time it was noted the plaintiff walked well without an aid.
219 The plaintiff agreed that as of early 2009, she was using a stick pretty much all of the time; she was limping; she found it very difficult to support her weight on her right leg; she could not do her domestic chores; she found it difficult to get out of the house and she was pretty much in obvious pain.
220 I have difficulty reconciling that degree of disability reported on all occasions by the plaintiff and reported as recently as January 2010 to Mr Edwards, with the plaintiff’s viva voce evidence.
221 No doctor, treater or otherwise has been told by the plaintiff of the benefit of any treatment, let alone pain free and normal movement after taking medication.
222 Those doctors who consider the plaintiff to have significant ongoing difficulties have been given a description of complaints which differ greatly from her own evidence as to her level of disability. Those opinions must be considered in this light.
223 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
224 As Mr Edwards explained, he was really dependant, as a clinician and practising orthopaedic surgeon, on what he had been told by the patient.
225 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
226 Mr Dooley, and during the course of the hearing, Mr Edwards, saw the video surveillance film. Although Mr Edwards thought the plaintiff’s subtalar joint problem would not be visible when observing the plaintiff walking, he agreed with Mr Dooley, that the degree of movement shown on the film indicated the plaintiff as functioning far more effectively than she demonstrated on formal examination.
227 It was clear from the video, as the plaintiff herself agreed, she had no problems moving. She was not walking slowly or with restriction. She did not require a walking aid, nor did she use the umbrella she was carrying to assist her to walk. She did not stop and take a rest. She was shown walking her child home from school carrying his backpack.
228 Although it was only a snapshot of the plaintiff’s life, it is one totally inconsistent with the manner in which she has presented to all doctors and inconsistent with her evidence that she was experiencing significant problems at the start of early 2009.
229 In the absence of other evidence supporting such problems, I do not accept, with this level of mobility demonstrated, albeit on one day, that the plaintiff would have significant problems on a regular basis with her daily activities.
230 Further, there is no evidence other than the plaintiff’s that she had received an injection shortly before the video was taken in May 2009 or any other evidence about any injections administered by Dr Karlov.
231 The evidence before the Court from the plaintiff’s treating doctors, based upon the plaintiff’s disabled presentation to them, does not really advance the plaintiff’s claim.
232 Dr Towie, the plaintiff’s general practitioner at the time of the accident, last saw the plaintiff for her foot complaint in August 2006.
233 The plaintiff last attended the Hospital in February 2007. She agreed that at that time she had occasional pain which was tolerable but she denied that she attended walking well without an aid, as was reported by the Hospital.
234 The plaintiff’s current treating doctor is Dr Bahnasawi, who last reported in November 2008. In that report, he made no mention of any medication being prescribed for the plaintiff, nor did he note that she had any benefit from any treatment to date.
235 Dr Karlov reported once in November 2009. He made no mention in his report of having administered any injections.
236 In the absence of such evidence, it was submitted by counsel for the plaintiff that in the end there was a reasonable consistency between Mr Edwards and Mr Dooley’s view.
237 However, both opinions were based on a presentation of significant disablement which, on the plaintiff’s own evidence, is no longer the case.
238 Whilst it is the impairment not the injury that is the relevant matter for consideration, Mr Edwards’ evidence dealt largely with his clinical findings which were relied upon by the plaintiff.
239 When these findings are closely examined, it is apparent that whilst Mr Edwards found some abnormality of the right subtalar joint, in that it did not move as freely as the left, the loss of movement of the right ankle was not particularly significant. Complaints of tenderness and irritability, although accepted by him, were largely subjective. There was no tendon or ligament damage or problem.
240 Importantly, Mr Edwards’ views as to the development of arthritis and the need for fusion surgery were largely dependant on the level of pain and disability reported to him by the plaintiff. As Mr Edwards explained, the answer was eighty per cent on history, fifteen per cent on physical examination and five per cent on investigations was what he had been taught as a student – he could not say that “but maybe that’s right”.
241 Further, in Mr Edwards’ view, even if the plaintiff came to fusion surgery, her pain would be relieved and there would be no problems with walking.
242 In terms of the consequences of the plaintiff’s impairment, given the significant difference between the plaintiff’s presentation to doctors, on video and in court, I have difficulty accepting her evidence as to her level of pain and disability.
243 Further, there is no supporting evidence from any lay witness, family or friend as to the plaintiff’s claimed level of pain and disability.
244 In any event, on the basis of her present evidence, the plaintiff has no pain with medication and can walk normally, but sometimes she has problems with housework and getting out of the house when she has pain.
245 It was submitted by counsel for the plaintiff that the consequences could be measured by the level of treatment that is required to modify her condition. However, it is not clear what medication is being prescribed for what condition as there is no evidence from any treating doctor in this regard and the plaintiff has ongoing problems with her left shoulder and her blood pressure, for which she also takes medication.
246 I accept that the plaintiff will continue to note some aching of her right ankle and hindfoot with a lot of standing and a lot of walking, as Mr Dooley described. Further, I accept that at times she may have difficulty with housework and doing the shopping and require assistance from family members at home. She may also have difficulty engaging other physical activity when she has pain.
247 However, I do not accept that such consequences are serious.
248 Having been given a history by the plaintiff of significant disablement as a result of her accident injury, both Dr Serry and Dr Ingram concluded the plaintiff had a psychiatric response thereto involving a Chronic Adjustment disorder and features of traumatisation, with Dr Ingram also diagnosing Post- Traumatic Stress Disorder.
249 The plaintiff deposed in October 2009 that the nightmares of which she had complained to Dr Ingram had become less frequent.
250 Again, these psychiatric opinions are based on a presentation by the plaintiff of significant physical disablement which differs greatly from her viva voce evidence and must be viewed in this regard.
251 Accordingly, when the consequences of the impairment to her right foot and any expected mental consequences thereof (Richards v Wylie) are considered, I am not satisfied, that at the date of the hearing, any impairment suffered by the plaintiff meets the definition of “serious” in Humphries v Poljak.
252 Accordingly, the plaintiff’s application is dismissed.
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