Haq v Whitehill Silver and Plate Co. Pty Ltd
[2012] VCC 194
•24 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-00849
| ALAZ-UL HAQ | Plaintiff |
| V | |
| WHITEHILL SILVER & PLATE CO. PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 20 February 2012 | |
DATE OF JUDGMENT: | 24 April 2012 | |
CASE MAY BE CITED AS: | Haq v Whitehill Silver & Plate Co. Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 194 | |
REASONS FOR JUDGMENT
---
Catchwords: Section 134AB Accident Compensation Act 1985 – serious injury – injury to right foot – pain and suffering only
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Purcell | Slater & Gordon |
| For the Defendant | Ms M. Britbart | Hall & Wilcox |
HER HONOUR:
The application
1 The plaintiff seeks leave under section 134AB of the Accident Compensation Act 1985 ("the Act") to bring proceedings to recover damages for a crushing injury to his right foot in the course of his employment with the defendant on 15 October 2003.
2 The evidence adduced at hearing consisted of the Plaintiff's Court Book[1] (pages 17 to 37, 39 to 52, and 59 to 86) and the Defendant's Court Book[2] (pages 8 to 10 and 12 to 30d). The defendant showed and at hearing tendered approximately 28 minutes of surveillance film obtained on 14 and 16 September 2010.[3] In accordance with the submission made on behalf of the plaintiff I infer that additional film evidently obtained subsequently, if also shown, would not have advanced the defendant's case.
[1] Exhibit P1.
[2] Exhibit D1.
[3] Exhibit D2.
3 At hearing the plaintiff cured an irregularity in the swearing of his first affidavit by taking an oath on the Koran. He was cross-examined at length.
4 It appears that, from early October 2003, the plaintiff, who was employed full-time in the defendant’s warehouse, had been promoted to evening shift supervisor. One of his responsibilities was to close and secure a heavy steel sliding front gate.
5 The circumstances in which the plaintiff was injured were described by him in paragraph 7 of his first affidavit as follows:[4]
"… At the end of the shift I had let the workers out and pulled the heavy gate closed. The catch designed to stop the gate rolling broke off. The gate continued to roll and moved beyond the two vertical supports. Being no longer restrained in it then toppled over onto the ground. In the process my right foot was caught crushed beneath the gate. As the gate bounced my right foot became free and I pulled it clear. I was in great pain.…(sic)" ("the incident")
[4] Exhibit P1, 19.
6 It was common ground that the injury suffered involved a comminuted fracture of the right medial cuneiform bone and fracture dislocation of the first tarso-metatarsal joint. The development of post-traumatic arthritis of the first and second tarso-metatarsal joints and navicular cuneiform articulation led to arthrodesis (a fusion procedure) performed by treating orthopaedic surgeon, Mr Bedi on 14 December 2009.[5]
[5] Exhibit P1, 52 and 60.
7 In this application the plaintiff submitted that he had suffered a serious permanent impairment of or loss of right foot function for which he seeks leave to bring proceedings to recover pain and suffering damages only.
The statutory requirements
8 In summary the plaintiff carries the burden of proof (on the balance of probabilities).
9 Under the Act, to establish “serious injury” the plaintiff is required to prove that he has suffered a serious permanent impairment or loss of body function. He must prove a compensable injury arising out of or in the course of his employment with the defendant on or after 20 October 1999. The compensable injury must, in its pain and suffering consequence, when judged by comparison with other cases in the range of possible impairments or loss of a body function, be fairly described as being more than “significant” or “marked”, and as being at least “very considerable”.
10 Permanent in the context of section 134AB requires that the impairment is likely to last for the foreseeable future.
11 In this application I am required to ignore any psychological or psychiatric consequence of the injury suffered on 16 September 2004 for the purpose of determining whether the plaintiff has met the test in respect to serious permanent impairment of his right foot function.
The areas of dispute
12 Causation was not an issue nor was it an issue that the plaintiff's injured right foot remained symptomatic.[6] In keeping with the Statement of Issues handed to the Court, the defendant nonetheless contended that any relevant impairment of the plaintiff's right foot did not meet the statutory test under section 134AB(38)(c) of the Act when compared to the range of possible impairments and, in particular, that:
[6] Transcript ("TN") 3, 6 and 47.
· the plaintiff has been capable of working in a number of jobs since the incident and was now running his own business;
· since further operative treatment in 2009, the plaintiff's condition had greatly improved with very little if any consequence attributable to his right foot injury;
· there is no ongoing treatment for the plaintiff's right foot and limited use of over-the-counter medication;
· the plaintiff is capable of performing a wide range of activities; and
· the consequences of his right foot injury cannot be fairly described as very considerable.
13 The defendant did not directly challenge the plaintiff's credit. Rather counsel for the defendant submitted that inconsistencies in his evidence undermined the reliability of the plaintiff's evidence on specific matters and the reliability of some of the medical evidence.[7]
[7] TN 7 and 39.
14 The plaintiff is 37 years of age. He was born in Pakistan and migrated to Australia at about age 24. Whilst his spoken English was very good, as submitted by his counsel, the plaintiff's literal interpretation of questions from time to time was probably, at least in part, due to English not being his first language. Nevertheless, to my mind, any lack of familiarity with the nuances of spoken English is not of itself an explanation for any perceived conflict between the plaintiff's evidence indicating ongoing improvement in his functional capacity across a number of areas of activity and his evidence that the activity-related pain in his right foot is again worsening.[8] I will discuss this matter in more detail shortly.
[8] See for example TN 17-18, 22 and 32-33.
Background matters
15 The plaintiff is married with three young children.
16 He holds a Diploma of Commerce and a Bachelor of Business Administration. After migrating to Australia the plaintiff completed a two-year postgraduate degree in Systems Engineering, a branch of study in the area of Information Technology.
17 The plaintiff has prior experience working as an accountant, and for reasons, not explained in his evidence, after graduating in 2001 the plaintiff did not, as planned, pursue work in IT. Instead, he deposed that, between 1998 and 2002, he drove taxis at night and worked two days a night filling in a supermarket.
18 In about 2002 the plaintiff commenced employment with the defendant. After being granted Australian residency, in 2003 the plaintiff travelled to Pakistan for some months. Having become engaged to his future wife, the plaintiff returned to Australia in mid-2003 and, in the months preceding the incident, he resumed employment with the defendant.
The treatment received including the fusion procedure
19 The plaintiff was initially treated at the Royal Melbourne Hospital. On 31 October 2003 the plaintiff underwent open reduction and internal fixation of the right Lisfranc fracture and of the intermediate cuneiform bone. The report submitted by the hospital to the plaintiff’s solicitors on 5 October 2007[9] indicates that there were no complications and that the plaintiff had a good post-operative recovery. He was discharged on 3 November 2003, with advice not to weight bear for a period of three months.
[9] Exhibit P1, 39-40.
20 Between discharge and 23 July 2004 the condition of the plaintiff's foot was reviewed on several occasions during which time his cast was changed, he was advised to use a CAM Walker with an arch support, he was referred to physiotherapy and hydrotherapy and the screws and sutures were removed. When last reviewed, other than an occasional swelling which was said to have improved, the plaintiff apparently reported no pain, no deformity was evident, his gait was normal, there was no evidence of tenderness and x-ray examination indicated that the position, presumably following the surgery, was well maintained.
21 No doubt, as the plaintiff deposed, during the post-operative period he had required strong pain relief, Panadeine Forte, although with the passage of time both the level of his pain and his mobility improved. In cross-examination the plaintiff agreed with the propositions that following surgery there was a period of a couple of years when his foot was better and the pain was "not too bad" before it "started to get a bit worse again in 2007."[10]
[10] TN 17.
22 Post-operatively the plaintiff had also resumed work, although he deposed that boredom with menial tasks prompted his return to work as a taxi driver, work the plaintiff agreed he had been able to perform between 2004 and 2006.[11]
[11] TN 17.
23 In the intervening years the plaintiff also travelled to Pakistan, married and returned to Australia with his wife.
24 As I have already noted, from about 2007 the plaintiff noted escalating right foot pain and disability for which he sought treatment from general practitioner, Dr Abraham. In December 2007 the general practitioner referred the plaintiff to Mr Bedi.
25 According to Mr Bedi, CT scans ordered by him in about January 2008 to confirm his clinical impression of significant mid-foot degeneration had revealed "advanced degenerative joint disease affecting the first TMT joint and more modest changes affecting the second TMT joint as well as the naviculo cuneiform articulation."[12]
[12] Exhibit P1, 52.
26 As set out in the last of his reports addressed to the plaintiff's solicitors on 7 July 2010,[13] Mr Bedi noted among other things, that:
[13] Exhibit P1, 59-60.
· the use of insoles and subsequently a cortisone injection in April 2009 had failed to alleviate the plaintiff's symptoms;
· during 2009 the plaintiff's symptoms steadily worsened;
· examination had revealed marked tenderness over the first tarsometatarsal joint and lesser tenderness around the medial sesamoid and naviculo cuneiform joint;
· a new CT scan confirmed degeneration of the first and second tarso-metatarsal joints;
· he had diagnosed post-traumatic arthritis affecting these joints. To treat this, on 14 December 2009 the plaintiff underwent the fusion procedure to which I have already referred;
· the plaintiff wore a cast and remained non-weight-bearing for 6 weeks and for three months he mobilised using a CAM Walker;
· he did not anticipate any further treatment ("at this stage") aside from obtaining new insoles to support his right foot arch;[14]
· improvement following such surgery could occur for up to 12 months.
[14]In a letter dated 10 June 2010 seeking permission to make and fit custom foot orthoses, orthotist, Mr Clarke, noted the fusion procedure and the insertion of pins had placed additional stress on the adjacent joints, something he clearly accepted had caused the midfoot discomfort of which the plaintiff complained when weight-bearing, Exhibit P1, 61.
27 As stated by the plaintiff in his first affidavit and during re-examination, the treating surgeon had also advised him that more severe pain experienced during colder weather was likely caused by the metal screws used in the fusion procedure. Notwithstanding this, Mr Bedi was, the plaintiff said, reluctant to remove the metal pins.[15]
[15]Relevantly, orthopaedic surgeon, Mr McTiegue, who undertook an impairment assessment on 1 June 2010, considered surgical removal might be necessary should the screws become troublesome, Exhibit D1, 9.
28 Consistent with the surgeon's advice summarised above, the impression I gained from this further evidence (also relayed by the plaintiff to the defendant’s medico-legal specialist, consultant surgeon, Mr Schutz, some months later, on 21 September 2010[16]) was that, in the period during which functional improvement could (and as we now know did) occur, the treating surgeon did not recommend further procedures or interventions such as removal of the screws.
[16]Exhibit D1, 14.
29 As to ongoing treatment, at hearing the plaintiff told the Court that he had not replaced the orthotics prescribed nor had he persisted with physiotherapy (although the plaintiff also appeared to accept that ongoing physiotherapy treatment had not been necessary[17]) because within months of the surgery the defendant had declined to pay further medical expenses.
[17]Notably, none of the treating or medico-legal specialists have recommended specific ongoing therapies other than medication such as oral analgesia and/or anti-inflammatory medication, although Dr Castle considered the plaintiff would also benefit from participation in a chronic pain program (Exhibit P1 at 67).
30 The plaintiff agreed that, from early 2010, the only treatment recommended was the use of orthotics and taking medication, namely over-the-counter pain relief medication, Panadol (the plaintiff also deposed in his further affidavit and informed some of the doctors that he took Nurofen). The plaintiff said that Dr Abraham had specifically recommended Panadol for pain relief, which in his further affidavit he deposed he took at the rate of 2-3 times per week. However, on at least two occasions at hearing the plaintiff stated that this medication was taken by him at the rate of 3 times per week and under cross-examination he agreed that he took either four or six Panadol tablets per week.[18]
[18]Exhibit P1, 27 and TN 19, 25, 29-30 and 33-36.
The plaintiff's current capacity for employment and for the foreseeable future
31 Turning to the issue of his employment, the plaintiff deposed that in May 2010 he had unsuccessfully attempted a return to taxi driving. This had, the plaintiff said, aggravated his pain levels.[19] In this regard the plaintiff also relied on Mr Bedi's opinion, namely that it is likely he would always have some difficulty with prolonged standing or lifting activities. He also relied on the surgeon’s recommendation that the plaintiff retrain for a more sedentary occupation. In re-examination the plaintiff recalled receiving advice to the effect that he should change his career because using a brake and accelerator would only worsen the condition of his already arthritic right foot.[20] This was obviously a view shared by the treating general practitioner[21] who, in the last of her reports made on 30 May 2010, recommended that, to avoid sustained use of his right foot in the operation of an accelerator or brakes, the plaintiff retrain for employment other than taxi driving.
[19]Exhibit P1, 23.
[20]TN 30-32.
[21]And by all but one of the medico-legal specialists who were asked to comment on the plaintiff’s work capacity. Mr Schutz considered the plaintiff fit for most jobs including those for which he was academically qualified, as well as his pre-injury duties, Exhibit D1, 30.
32 When he swore his first affidavit in October 2010, the plaintiff said that he had not been able to work since attempting to work as a taxi driver in May 2010 and, despite having a discussion in August 2010 with rehabilitation service provider, IPAR, no assistance had been forthcoming.
33 However, as my discussion of the evidence below indicates, a more accurate description of the plaintiff’s earning capacity/activity in this period is that the plaintiff explored (as it turned out successfully) other business opportunities and continued to operate his taxi, albeit through other drivers.
34 Despite his failure to mention this in his first affidavit, based on the plaintiff’s further affidavit sworn on 30 January 2012, his oral evidence and the matters reported to at least one medico-legal specialist on 1 February 2011,[22] it is likely that from mid-2010 the plaintiff took initiative and by the date of the hearing he had established an import/export business. Moreover, it is likely that during the same period the plaintiff was paid a portion of the income earned by drivers who drove his taxi, which had been sold, the plaintiff said, three months prior to the hearing.
[22]Exhibit P1, 28-29 and TN 13-16. See for instance the report of occupational physician, Dr Castle, Exhibit P1, 64.
35 The plaintiff now operates his business from a warehouse in Campbellfield. The plaintiff stores second-hand and/or ex-lease computers at the warehouse and then exports these overseas to countries such as Pakistan. In addition to the plaintiff, the business employs a full-time salesperson and a full-time warehouse person. The plaintiff, however, performs largely administrative functions as part of which he manages all aspects of the business, including entering into contracts and sourcing goods.
36 In cross-examination the plaintiff eventually agreed that (without taking into account expenses) both the business (his main focus) and the return from his taxi had produced, on average, $25,000 a quarter.
37 In summary then, I was satisfied that, despite Mr Schutz’s opinion to the contrary, the weight of the treating and medico-legal evidence supported a finding that ongoing impairment of his right foot rendered the plaintiff permanently unfit for his pre-injury duties and for what Mr Hunt broadly described as physical work including driving a taxi.[23]
[23] Exhibit P1, 85.
38 I was similarly satisfied that since mid-2010 the plaintiff had progressively settled into what appeared to be suitable self-employment through which he has been able to avoid the physical consequences of prolonged driving ("When – when I drove more than two – one hour, up one and a half, 20 – 20 minute or 30 minutes more than that my foot gets swollen and the pain is increased (sic)"[24]) and to successfully utilise his residual earning capacity.
[24] TN 31.
The plaintiff's description of his experience of pain and restrictions
39 When the plaintiff swore his first affidavit in October 2010 he described his symptoms and restrictions in the following way:[25]
[25] Exhibit P1, 23-24.
"– I have 'on and off' pain in my foot which varies in intensity, usually depending on activities. I have pain from the middle of the big toe up to the middle of my foot. The pain sometimes feels like it is in the bones themselves.
– The symptoms are worse when I stand, walk or drive too much or in cold weather in general.
– The pain worsens when driving.
– My foot swells, often in association with standing, walking or driving.
– I have problems walking over rough or uneven ground. Stairs can be difficult. Bare foot activity is very difficult. I need to wear modified shoes and an insert to provide stability and balance.
– Because it is generally unstable I am unable to fully weight bear on my right foot alone."
40 Apart from the impact on his physical earning capacity, the plaintiff said that ongoing pain and disability had prevented him from returning to recreational activities such as playing social cricket, a game he had played on a regular basis and to bushwalking, another activity the plaintiff had previously enjoyed on an occasional basis.
41 In his most recent affidavit sworn in January 2012 the plaintiff deposed, among other things, that:[26]
[26] Exhibit P1, 27-28.
· there had been no real change in his condition or in his treatment regime;
· the best form of treatment was to simply try and keep weight off his right foot, as weight-bearing increased the level of his pain;
· pain was worsened by cold weather and by standing for more than an hour to 1 and 1/2 hours;
· in general he has a feeling in his right foot which he described as "uncomfortable";
· if he stands for too long his pain level progresses and his foot swells leading to very bad pain. This requires the plaintiff to elevate his right foot and take painkilling medication;
· in addition to the restrictions mentioned in his first affidavit he said he is restricted in his capacity to lift, carry and play with his children or run around after his children aged six, four and one respectively and in his ability to perform domestic tasks. According to the plaintiff, foot pain is increased after only a short period of activity with his children or mowing the lawn (although he does not mow all the lawn on the one day).
42 During cross-examination and re-examination, the plaintiff gave the following evidence concerning the level of his pain and the extent to which this and ongoing impairment of the function of his right foot interfered with activities other than work and with his enjoyment of life.
43 In cross-examination the plaintiff agreed that in mid-2010 he had informed Mr Bedi that his foot was improving and that he was not having many problems at all ("And certainly at that time in mid-2010 you weren't having many problems at all, were you?---Yep. So when you say yes you agree with what I said, is that right? ---Yes."[27]). Moreover, the plaintiff agreed that:
[27] TN 19.
· when in late 2010 he last consulted his general practitioner, Dr Abraham, for reasons other than treatment of his right foot injury, the pain in his foot had not been too bad.[28] The plaintiff nevertheless claimed that any improvement before he noticed a worsening of pain, particularly after activity, was short-lived (for one summer);[29]
[28] TN 18-19.
[29] TN 18.
· his foot did not hurt unless he exceeded the tolerances reported by him;
· the two or three times a week he took Panadol coincided with the occasions on which he exceeded these tolerances;
· he was not suffering from constant pain ("it's not there all the time?"[30]) and he only suffered pain or, what was from time to time described by him as "discomfort", when he did too much, as for example when he exceeded his walking and standing tolerances. Nevertheless, both in his affidavit evidence and at hearing the plaintiff maintained that he experienced a level of discomfort/pain all the time. I took this to be a reference to the uncomfortable feeling which, in his further affidavit, he said he experienced. This however did not warrant painkilling medication. For instance, in re-examination the plaintiff told the Court that if he sits or stands for too long he experiences numbness and pins and needles which then leads to pain. When prompted by counsel, he added that in summer his base level of pain was 4 to 5 (out of 10), whereas in winter or cold weather this went up to 6, 7 or 8. Indeed in winter the plaintiff said that he had "normal" pain which was constant and this reached "extreme level", namely 8, three to four times per week;[31]
· pain no longer woke him at night.[32] In these circumstances Mr Hunt's record[33] that the plaintiff was usually woken by pain twice each night is probably indicative of some confusion in recording the symptoms reported by the plaintiff before and after surgery.
[30] TN 25.
[31] TN 33-34.
[32] TN 28.
[33] Exhibit P1, 79.
44 The plaintiff also told the Court that the pain he experienced now affected other areas of his straightened foot, namely in the region of his ankle and the end of his toes and that this had worsened in the 3 to 4 months prior to the hearing (I took this to mean from the latter part of 2011).[34] The importance of the plaintiff’s description of the location of his pain lies in the fact that the fusion procedure had sought to and apparently had ameliorated pain caused by post-traumatic arthritis in the mid-foot.
[34]TN 32-33. See also the plaintiff’s first affidavit, Exhibit P1, 23, where he describes pain from the middle of his big toe extending to the middle of his foot.
45 This evidence has some bearing on the dispute about whether the plaintiff remained at risk of developing further degenerative changes as a consequence of the injury with some or any likelihood of more surgery.
46 No further radiological investigation has been undertaken since Mr Bedi obtained x-rays in March 2010. Mr Bedi did not directly address this issue and the medico-legal opinion relating to this issue required careful consideration.
47 The opinion offered by Dr Castle was contradictory and therefore unhelpful ("… there is a substantially increased risk of developing arthritis of his right foot. This will occur over a long period of time and its onset is unpredictable. I do not think there will be any long-term deterioration"[35]).
[35]Exhibit P1, 69.
48 Mr Brearley did not have the results of the x-rays taken after the fusion surgery. Rather he relied on the CT scans when he predicted likely "gradually increasing discomfort and pain in the right foot because of the extent of change evident in the tarsal joints as shown on the CT. He will require conservative treatment at this time. It is unlikely that he will require further surgery."[36]
[36]Exhibit P1, 76.
49 Mr Hunt also allowed for the possibility that the plaintiff could develop further degenerative changes elsewhere in the midfoot region. However, he thought this could lead to further operative intervention "particularly in those joints adjacent to the fusion undergoing more rapid processes of degenerative change. This may produce increasing symptoms and require both non-operative intervention and oral analgesics and possibly operative intervention should his symptoms warrant such treatment."[37]
[37] Exhibit P1, 86.
50 To summarise then, whilst Mr Hunt did not anticipate the degenerative changes in the remainder of the plaintiff's midfoot to progress for some years to come, he nevertheless foresaw a circumstance where, were his symptoms to escalate, the plaintiff could require further treatment, such as targeted injections and, as a last resort, possible further fusion surgery to the right midfoot.
51 Having had an opportunity to consider additional documents (which were not identified in his correspondence) including the reports submitted by Mr Brearley and Mr Hunt, Mr Schutz opined that:
· the plaintiff had developed osteoarthritis in his right foot as a result of the incident which had been successfully treated by the fusion procedure;
· whilst there was no current evidence of an additional risk of developing osteoarthritis in the right foot, as a result of the incident, any risk was very small.[38]
[38] Exhibit D1, 30(b).
52 Were I to accept Mr Schutz's view that Mr Brearley's statement was inconsistent with his earlier acceptance that the fusion surgery had been successful, nonetheless all three specialists accepted that there remains a risk of progressive degenerative changes in the right foot and, in particular, in the area of the midfoot. However, the difference in the opinions expressed by the orthopaedic surgeon, Mr Hunt, and the general surgeon, Mr Schutz, largely depends on whether the plaintiff’s evidence of ongoing pain and restriction is accepted and whether in the absence of up-to-date radiology, one treats the risk of progressive degenerative change and the prospect of further fusion surgery as greater. In reaching his conclusions Mr Schutz clearly thought the plaintiff's symptoms and the restrictions described were minimal or trivial and he no doubt factored in to this his assessment of the surveillance film. I will discuss the film viewed by Mr Schutz, and shown at hearing, shortly.
53 Ultimately, I have accepted (as did all of the doctors other than Mr Schutz) the plaintiff's account of his symptoms as consistent and credible evidence. This and the orthopaedic specialist's very clear analysis of the risk of progressive degenerative changes and the possibility of further treatment interventions has persuaded me that these factors remain relevant considerations in assessing whether the injury meets the statutory test.
54 The plaintiff was cross-examined at some length about his ability to perform and sustain certain activities, namely squatting, walking, standing or driving, specifically during the 12 months following his examination by occupational specialist, Dr Castle, at the request of his solicitors on 1 February 2011.
55 Whilst at the time Dr Castle may have apprehended that the plaintiff was not able to squat, until this was explained to him by the defendant's counsel during the course of cross-examination, I could not be satisfied that the plaintiff understood the kind of physical activity to which this term referred.[39] Once he understood this the plaintiff agreed that he could squat (but not beyond 5 minutes) and that since the incident he had avoided this and other activities that placed pressure on his right foot. In addition to these matters the plaintiff also agreed that during the 12 month period since he reported these tolerances to Dr Castle:[40]
[39] See Dr Castle's report Exhibit P1, 63-69 and TN 24.
[40] TN 22-24.
· his walking tolerance had increased from 30 to 40 minutes - "from 45 to an hour and 20 minutes to two hours, yeah". This estimate generally accorded with the plaintiff's most recent affidavit evidence, whilst at the same time reflecting improvement on the tolerances apparently recorded by Mr Brearley ("an hour or so"), Mr Schutz ("45 to 60 minutes") and Mr Hunt ("45 minutes") in August, October and November 2011 respectively;
· his standing tolerance had increased from 45 minutes to one hour. This accorded with the improvement recorded by Mr Schutz when he examined the plaintiff for the second time in October 2011 and it represented an improvement on the tolerances recorded by Mr Brearley ("an hour or so") and Mr Hunt ("20 to 30 minutes");
· his driving tolerance had increased from 30 to 40 minutes to an hour or 1 1/2 hours. Relevantly, other than their opinions vis-à-vis the plaintiff’s capacity to return to driving taxis for a living, none of the other specialists specifically addressed the plaintiff's driving tolerances;
· his ability to do jobs around the house had increased because he could now mow the lawn but not in one session. In this regard both Mr Brearley and Mr Hunt understood that by reason of the impaired functioning of his right foot, the plaintiff's domestic activities were limited to less physically demanding tasks. This evidence is consistent with the restrictions they and the treating doctors placed on the plaintiff in the exercise of any residual earning capacity. Mr Brearley nevertheless considered that the plaintiff’s restrictions in a domestic setting were slight. Mr Schutz took a different approach and appears to have equated the plaintiff’s report that he was able to perform all domestic activities with an ability to perform these activities without restriction. This suggests a misunderstanding on the specialist’s part because the plaintiff clearly indicated to Mr Schutz that he avoided heavy lifting. The examples he gave were that he had not tried lifting anything heavier than 15 kg (that is his daughter) and that when he travelled to Pakistan in 2011 he had relied on his partner and his brother to handle his suitcase weighing in the order of 18 or 25 kilograms.
56 Other than his statement to the effect that the plaintiff was very restricted in his recreational activities, Dr Castle did not elaborate on the type of activities lost by the plaintiff by reason of ongoing impairment. Mr Brearley and Mr Hunt accepted that, as claimed, the plaintiff could no longer enjoy various recreational activities he reported including social cricket, tennis, running or kicking a ball with his young son. Having already determined that there was no evidence of any deterioration in the plaintiff's ability to manage most activities normally, Mr Schutz does not appear to have turned his mind to the specific sporting activities (cricket and tennis) to which the plaintiff referred when first examined by him in September 2010.
The film
57 As I have already noted, the Court was shown film obtained on 14 and 16 September 2010.[41] The first segment of film, recorded intermittently between approximately 12:37 pm and 1:32 pm, depicted the plaintiff walking along a street with a young child, playing with her on the swings in a park (and pushing off with both his feet), squatting, jogging and running (in short bursts) without apparent restriction or discomfort.
[41] Exhibit D2 and TN 26-28 and 35-36.
58 In cross-examination the plaintiff told the court that at that stage he was not able to do a lot of walking and running. However, he agreed with the proposition that his condition had since improved. His response during re-examination that walking for more than 30, 35 or 40 minutes would have caused pain, reinforced my impression that these activities filmed over fairly short intervals had not troubled him at the time.
59 In the second segment of the film obtained at different times on 16 September between approximately 4:18 pm and 5 pm, the plaintiff was seen changing a flat tyre on what he said was his only car. In other words, the plaintiff found himself in circumstances that demanded he change the tyre.
60 During this sequence of film, as the plaintiff agreed, on 4 to 5 occasions he used his right foot to apply significant pressure/force on the tyre in order to tighten the wheel nuts. When he was asked in re-examination why he had used his foot in this fashion the plaintiff replied: "It just the way I was standing there and just suddenly with the mind, it's happened, so (sic)."
61 My impression having viewed the film was that, as submitted by the defendant, the plaintiff used both feet interchangeably without hesitation and with little indication of restriction or discomfort.
62 It appears that Mr Schutz was shown the text of the surveillance report referrable to the film obtained on 14 and 16 September 2010, and he subsequently also viewed the DVD.[42]
[42] Exhibit D1, 20-23.
63 In Mr Schutz's opinion, the failure of the film to demonstrate that the plaintiff was limping or had problems when he squatted, supported his findings on examination, namely that there was no residual sign of inflammation or pain in the midtarsal region.
64 However, in deciding this application I have preferred the evidence of the other specialists which, generally speaking, supports the plaintiff’s case. My impression of Mr Schutz's evidence, which the plaintiff submitted should be rejected, is that, unlike the other doctors, he did not believe the plaintiff, and as a result he tended to minimise the effect of the symptoms (pain and swelling) the plaintiff claimed were experienced during cold weather or when day-to-day activities were performed beyond the tolerances he very candidly reported.
65 In all, I was not satisfied that the limited amount of film was of such moment as to contradict the history reported by the plaintiff or to deny the account of his current symptoms.
66 In my view, the plaintiff's account is consistent with there having been slow and progressive improvement in the function of his right foot. Indeed, at no stage did the plaintiff appear to minimise his functional capacities. This evidence accords with the treating surgeon's report in mid-2010 to the effect that he expected improvement for another 12 months. The plaintiff's complaint however is that, despite the extent to which he has experienced functional improvements across a range of activities as well as pain relief following further surgery in December 2009, he is again facing an escalation in pain, such that he now requires regular painkilling medication. The plaintiff submitted that this and the other consequences (globally his residual level of activity) to which I have already referred should satisfy the Court that the impairment of his right foot is both permanent and serious to the degree required by the statute.
Findings
67 In summary then, in the course of his employment with the defendant and in particular on or about 15 October 2003 the plaintiff suffered a compensable crushing injury to his right foot. He is a comparatively young man who likely endures persistent albeit variable levels of discomfort/pain, particularly should he perform activities for periods exceeding the tolerances he has thus far achieved. It is unnecessary to reiterate all the restrictions to which the plaintiff referred in his affidavit and oral evidence. Suffice to say that these equate with meaningful and significant restrictions impacting for the foreseeable future on the plaintiff's employment capacity, his day-to-day activities and his enjoyment of life. Moreover, as I have already indicated I have accepted Mr Hunt’s analysis of the risk of further degenerative changes occurring in the region of the surgery, and it follows from this that there is a risk of further treatment being required in the future.
68 Based on all the evidence, the plaintiff has satisfied me that the impairment of his right foot is permanent in the sense that it is likely to last for the foreseeable future and that it is serious because, when judged by comparison with other cases in the range of possible impairments, the pain and suffering consequence meets the "at least very considerable" test.
Order
69 For these reasons I propose to make an order granting leave to the plaintiff to commence common law proceedings against the defendant in respect of pain and suffering damages only for injury to his right foot sustained in the course of his employment with the defendant, Whitehill Silver & Plate Co. Pty. Ltd., on or about 15 October 2003. I will hear from the parties on the making of appropriate orders.
0
0
0