Hoi v VWA
[2018] VCC 1595
•2 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-18-01628
| HAROLD QUAI HOI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2018 | |
DATE OF JUDGMENT: | 2 October 2018 | |
CASE MAY BE CITED AS: | Hoi v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1595 | |
REASONS FOR JUDGMENT
---
Subject: Accident Compensation
Catchwords: Serious Injury Application
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Judgment: Leave granted to bring proceedings for recovery of pain and suffering
damages
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Y Chen | Slater and Gordon |
| For the Defendant | Mr T Storey | Russell Kennedy |
HIS HONOUR:
1 On 31 January 2015 the plaintiff was struck in the head by a crowbar flung out of a machine. He was working for Adbri Masonry Pty Ltd. Mr Hoi fell to the ground and broke his left leg. As a result of the injuries he was taken to the Royal Melbourne Hospital where he was an inpatient for some four days. As time went on it became apparent that there is an impairment and injury to his left lower leg that has remained and it is that injury that is relied on in this paragraph (a) application.
2 This man is a very well motivated maintenance electrician of 63 years of age. After injury, he returned to work in about March 2015 and by the end of 2015 he was on his essentially normal duties. He has continued to work for the same company to the present time in a job he has held since 2010 but he endures symptoms to maintain that position.
3 The peroneal nerve injury that followed from the left fibula fracture is an admitted compensable injury. Whether or not the nerve injury flowed directly from that fracture or from treatment for that fracture is neither here nor there. Responsibly, the defendant has conceded it is "a range case". Thus the only matter for determination is whether or not the permanent consequences can be fairly described as being at least very considerable when judged by comparison with other cases in the range of possible impairments of the left lower limb.
4 There is no medical controversy in this case and indeed, in the thankfully brief court books, the plaintiff has relied on two medicolegal reports that have been obtained on behalf of the employer and its insurer. It has been said many times in a case such as this, where a man has returned to his old job that to an extent there is a value judgment typically found in evaluating whether pain and suffering consequences reach the bar of "very considerable". Such an evaluation involves matters of fact, degree and impression. This is just such a case.
5 Two very informative views were conducted in court. Firstly, the plaintiff showed me his left foot after removing his sock and sneaker. He has a grossly deformed foot with his second toe clawed or curled over almost all the top of his big or large toe. This position was the same whether he sat or stood. I do not need evidence to convince me that to walk, and even to wear a lot of footwear, would cause symptoms given the deformed nature of the position of his two largest and longest toes on his left foot.
6 Secondly, he showed his work boots to the court. These are boots provided by his employer and are only three months old. There was little or no tread worn on the right boot but there was a clear wearing away on the outer left heel towards the rear of the heel. This is consistent with alteration in gait, and with the other evidence the plaintiff has given in his affidavits and in the witness box, about the ongoing reminder he would have of his left nerve injury and resultant left foot drop with virtually every step he takes.
7 What I make of the plaintiff as a witness is very important in a case such as this. After hearing and also observing the plaintiff give evidence, he is quite a basic, straightforward fellow who did not in the slightest exaggerate his problems with his foot. In fact, if anything, he was understated. He was a candid witness. He made admissions against interest and they included his ability to drive distances, to climb ladders at home when he had to, travel to Fiji, and also to kick a football with his right foot if he had to do so.
8 He was very forthcoming with respect to his work. He agreed he had taken no time off work since returning on a graduated return to work through 2015 and eventually getting up to full hours and duties. He conceded he worked on Saturdays at times, in addition to his full time hours during the week. He admitted that at times he used ladders if he needed to. It would be difficult to find a more compliant witness when cross examined.
9 I accept his evidence about symptoms and complaints as set out in his two affidavits and corroborated by his partner (PCB9 19). In particular, without going into some of the lifestyle impacts, recreational consequences and so forth, I am satisfied that he has symptoms that include diminished sensation, tenderness, restriction on mobility, as well as left foot drop that all amount to very considerable consequences for this man and when viewed against other possible cases in the range of lower leg impairments.
10 I accept that he has pain in the lower leg which varies in intensity but is especially bad in cold weather and after prolonged walking or standing. The ability to stand and walk long distance is something we take for granted. Not only does he have problems with prolonged walking, but he has a lack of confidence in terms of how the impairment affects balance. The left foot drop means he has to be particular about what he wears. I am also satisfied that it causes a tendency to shuffle or limp when walking and his left foot scuffs the ground. This was confirmed by the view I had of his work boots and how the left heel was worn down and the right heel was not.
11 Responsibly, the model litigant made no attack on his credit. This case involves my judgment about the level of his symptoms and how they affect his life in terms of pain and suffering and loss of enjoyment of life. I am satisfied on the probabilities this man has a "serious injury" in terms of impairment of his left lower leg, in particular due to the peroneal nerve damage. I am also satisfied that there is no treatment open to him and this condition will remain for the foreseeable future.
12 He is a motivated plaintiff and he will go on working as long as he can in a job that has physical demands. But he will do so because he is prepared to put up with symptoms, constant alteration of his gait and limitations and problems that by the end of the day make him very sore and tired, in circumstances where they would not occur with a normally and otherwise fit man.
13 Lest there is any doubt about the matter, there are some consequences important to him that I consider would reach the bar of "very considerable" such as sleep disruption, the loss of his very enjoyable fishing recreation out in boats on the bay, and also his capacity to enjoy his nine grandchildren in terms of physical activities are matters that, in my view, would qualify as very considerable consequences.
14 It is not necessary in this case to deal at length with the medical reports as there is not the controversy that is often seen in applications such as this. In deference to the materials tendered, I will make some very brief comments.
15 The treating local doctor, Dr McMahon, last reported on 2 October 2018 but has not treated the left leg since March 2017. His diagnosis was clear, that it was a fracture of the fibula and left peroneal neuropathy (PCB41C). Dr McMahon thought the condition was stable (PCB41D).
16 There is a relative absence of treatment in this case. However, the absence of treatment since about March 2017 and the fact none is really predicted into the future does not take the matter anywhere really as there is no treatment reasonably suggested as open that Mr Hoi has not availed himself of. This applies to both the past and as to the future.
17 The radiology demonstrates the nerve injury and really why there is no controversy about the nature of his residual nerve injury and persistent left foot drop (PCB20 25). The treating neurologist, Mr Crump, said in his last report in September 2016 that:
"I suspect that Harold has residual changes to his peroneal neuropathy and his current recovery is as good as it is going to get." (PCB42).
18 He ordered some further nerve conduction tests and these followed the 2015 studies (PCB20 25). The left peroneal neuropathy was confirmed in the 2016 studies. The issue here is simply an evaluation of the consequences flowing from this lower limb impairment.
19 The plaintiff tendered a report from Dr Peter Boys, orthopaedic surgeon, who saw Mr Hoi for Allianz Insurance in August 2015. While the fracture had united, Dr Boys saw signs consistent with nerve damage at clinical examination (PCB54). He diagnosed:
"United left proximal fibula fracture with partial common peroneal nerve palsy." (PCB55)
20 The second report obtained on behalf of the defendant was from Professor Joubert, neurologist, and that was six months ago in March 2018 (PCB61). He considered this man gave "an unembellished account" (PCB66). He found signs consistent with nerve damage at clinical examination. They were consistent with left peroneal neuropathy (PCB66). He thought the prognosis was reasonable as it was "appearing to be improving". Surgery would not be required in the future (PCB6).
21 The most recent report is from Professor Mark Cook in June 2018. Professor Cook agreed with the diagnosis of nerve damage and left foot drop and there was no surgical remedy for it (PCB48). It is likely to have occurred as a result of the fall but possibly from the treatment of the fracture and the pressure orthopaedic appliances put on the limb. He said as to consequences:
"On the balance of probabilities there is likely to be change in his capacity for work in the future, as he finds activity fatigues him much more quickly now, and as well because of his capacity to do work for long periods, particularly in small spaces, is restricted, it is likely that he will find more challenging to continue work through to his anticipated retirement. These injuries have certainly had far reaching consequences for Mr Quai Hoi and his family, which are unlikely to show further spontaneous improvement." (PCB49).
22 I accept this report as indicative of an impairment that on the probabilities will remain as it is for the foreseeable future and for which there is no real treatment. In other words, on the probabilities, the impairment is stable and is thus a permanent impairment.
23 The defendant tendered an affidavit from an operations manager, Mr Richard Blake. His evidence is unchallenged that the plaintiff does still carry out his duties. Mr Hoi candidly agreed he did this and carried out his usual job and worked the hours, and he hopes to continue working indefinitely. The two WorkCover certificates confirm his capacity to carry out his old job.
24 Without hearing from Mr Blake, however, I do detect some slight equivocation in his language when he said: "I have not noticed the plaintiff struggling", and then said, "I cannot recall the plaintiff ever making complaints"(DCB2). This is a manager speaking and not a fellow worker on the tools. Those statements go as far as they do unchallenged but they are consistent with a man who wants to keep his job and it is probable he would go about his work in an uncomplaining way if he wishes to keep his job. A motivated man who understates his problems is not to be penalised for a stoical attitude to a permanent impairment such as Mr Hoi exhibits.
25 The appearance of his toes speaks for itself and supports that he has constant problems and disability due to the injury, and particularly with respect to gait. In my opinion, he has a permanently altered gait and a range of other symptoms set out in his affidavits, and that of his partner that are permanent.
26 An Allianz Insurance facsimile from a physiotherapist is dated July 2015 and it does not even deal with the peroneal nerve injury and foot drop.
27 The report speaks of a "acute patella tendonitis" and "a capacity to return to graduated work hours." The plaintiff has proved he can work and continues to do so. This report does not assist in evaluating pain and suffering consequences now, in October 2018.
28 I am satisfied the plaintiff has suffered very considerable consequences as a result of his left peroneal injury and left foot drop. These are likely to remain for the foreseeable future. Accordingly, I grant leave to bring proceedings for the recovery of pain and suffering damages.
0
0
0