Hughes v Milne
[2013] VCC 1813
•28 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMEPNSATION LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-13-00064
| Michael Hughes | Plaintiff |
| v | |
| Paul Milne | First Defendant |
| WorkSafe | Second Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2013 | |
DATE OF JUDGMENT: | 28 November 2013 | |
CASE MAY BE CITED AS: | Hughes v Milne & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1813 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – injury to the right ankle – pain and suffering
Legislation Cited: Accident Compensation Act 1985 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Garnham | Slater and Gordon |
| For the Defendant | Ms Bailey | Herbert Geer |
HER HONOUR:
1 Mr Hughes applies under s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the right ankle suffered on 4 August 2004 during the course of his employment with the first defendant as a furniture removalist.
The issues
2 Mr Hughes suffered a lateral ankle ligament tear in 2002, which was not work-related, which required plaster immobilisation and three months off work as well as physiotherapy. He made no claim in respect of that injury. He says that the 2004 injury, which was work-related, was an aggravation of the 2002 right ankle injury but that after the 2002 injury healed he was largely asymptomatic and was able to work full time as a furniture removalist, and to engage without restriction in his leisure activities of the period, which included golf and fishing. The plaintiff relies on the opinion of Mr Grossbard. The 2004 injury relied upon is what Mr Grossbard referred to as “a major disruption of the lateral ligament structures” which has been surgically treated and an “associated traction injury to the peroneal nerve which is affecting largely the sensory component and manifesting itself as hyperaesthesia”.[1]
[1]See Plaintiff Court Book (PCB) 41
3 The defendant says that the 2002 injury was a serious injury, that it resulted in the plaintiff being restricted in what he was able to do, and therefore that the plaintiff has not established that the further pain and suffering consequences caused by the 2004 injury are more than considerable when compared with other cases in the range of impairments. The defendant relies on the opinion of Mr Battlay which is referred to below.
The hearing
4 The plaintiff gave evidence and was cross-examined. No other witnesses were called. The parties tendered court books. I have considered all the material relied upon by the parties.
Plaintiff’s evidence
5 The plaintiff’s evidence may be briefly summarised.
6 He is 33 years old and completed Year 10 before commencing work in 2001 with the defendant as a “truck jockey” or furniture removalist. The work involved lifting and carrying heavy furniture.
7 In April 2002 he injured his right ankle when he slipped at home. A CT scan of the right ankle revealed a “possible minor avulsion possibly from the lateral aspect of the calcaneum but the lateral malleolus is intact and the ankle joint itself appears stable”.[2] His right ankle was painful and he was prescribed Tramal. He went off work. His ankle was put in plaster for two weeks, then he had some physiotherapy treatment. He was referred to Mr Gerard Bourke, orthopaedic surgeon, in June 2002,[3] who reported that the CT and X-ray finding of small lateral avulsion could be the result of an old injury. He noted some mild swelling laterally and diagnosed a lateral ligament injury as well as a strain to the distal syndesmotic involvement. He arranged for an MRI to be performed and reported in July 2002[4] that there was no evidence of osteochondral facture but evidence of talar body bone bruising which could cause symptoms for up to a year. There was no treatment for this condition, but he advised the plaintiff to limit his level of activity according to his pain level. The plaintiff was off work for 3 months or so. He said in cross examination that he returned to work without difficulty, that his ankle was not unstable, and that he was able to continue with his recreational activities, particularly camping. He agreed that he did not resume rock climbing or white water rafting after the 2002 injury. He did not recall seeing local doctors in November 2004 and March 2006 complaining of a twisted or sprained right ankle but did not deny doing so.
[2]PCB 43
[3]See Defendant’s Court Book (DCB) 4
[4]DCB 5
8 On 4 August 2004 he was working carrying an armchair when he stepped down from the truck’s walkway into a pothole on the road and fell over. He continued working but attended hospital later that day because of persistent ankle pain. He was prescribed painkillers and anti-inflammatory medication by his treating doctor, Dr Michael Cocks, who diagnosed an inversion injury to the right ankle. He was given a cortisone injection to the ankle on 25 August which did not help and was referred to physiotherapy with Mr Clinton Watson and then back to Mr Bourke in September 2004, who recommended conservative treatment. He had another injection of cortisone and xylocaine on 4 August 2004. He was off work until October 2004 when he tried to return to work but found it too difficult. He then did some light sweeping work for a few weeks at the depot but found he could not manage this work because of ongoing right ankle pain.
9 He was sent back to Mr Bourke in May 2005 because his symptoms persisted and the ankle became more swollen and painful with activity. Mr Bourke performed a ligament reconstruction operation on 1 August 2005. The plaintiff was unable to return to his pre-injury duties. The plaintiff said that his condition was not improving at this time but that he felt obliged to try to work full time. He obtained work as a courier but was unable to manage that work. In 2007 he commenced working full-time, on a casual basis, as a forklift driver for Mitre 10. He has been able to maintain this employment but has persistent right ankle pain, which is aggravated by cold weather, by getting in and out of the forklift, by using the accelerator and by any manual lifting which he is required to perform. Often at the end of the day’s work he has to elevate his ankle and sometimes he ices it. He has had to take an occasional day off work because the pain in his right ankle is too much.
10 He uses Voltaren gel and Deep Heat on his ankle every night. He takes four Nurofen tablets every second night. He takes approximately one Panadeine Forte every 3 to 4 four nights. The last occasion on which he took Panadeine Forte was approximately two weeks ago. He tries to avoid taking Panadeine Forte because it makes him sick and because he is aware that overuse of such painkillers may reduce their effectiveness.
11 He says that he has constant right ankle pain which is exacerbated by prolonged sitting or standing and trying to squat or kneel. He cannot walk long distances and finds it difficult to run. His right ankle pain disturbs his sleep. In spite of the surgery, his right ankle often feels unstable and goes to give way. He has fallen a few times. He finds it difficult to walk on stairs and on uneven ground. The ankle seems permanently swollen and swells more after too much activity, including after work. He sometimes gets a click in the right ankle and limps if he is on his feet too long. He tried working as a part-time carpentry apprentice in 2012 but could not manage his duties because of his ankle pain, and so he returned to forklift driving at Mitre 10. His right ankle pain interferes with his ability to do vacuuming at home. His right ankle condition makes it more difficult for him to go fishing. He has taken up golf in the past few years and plays about once per month with his brothers but has trouble playing 18 holes and has to have a brief rest after each hole. He has tried some ankle exercises given to him by the physiotherapist but cannot manage to do them. He has also been unable to persist with personal training after three sessions because his right ankle gets too sore.
12 The plaintiff said that he did not go back to see Mr Bourke for further treatment because he could not afford it, but told Dr Cocks of his ongoing ankle pain in 2006 and thereafter complained to his family and his physiotherapist of his ongoing problems. He said he did not agree that his condition was starting to improve by the end of 2006 and said he was looking for work because he was desperate and would have taken anything. He said he also complained of right ankle pain to Dr Casey who sent him for a further CT scan between 2009 and 2011. He had a cortisone injection in 2011 but the effect wore off after three or four weeks and his pain returned. His current treating Doctor is Joe Cacek. He said he has not been back to see the surgeon since 2011 because he cannot afford the fees.
Radiology
13 An X-ray of the right ankle on 25 April 2002 was reported in the following terms:[5]
Soft tissue swelling is seen overlying the lateral malleolus
Densities seen inferior to the lateral malleolus are well rounded and reasonably well corticated and the appearance suggests an old injury but it is difficult to positively exclude an acute fracture and close clinical correlation is suggested.
[5]DCB 1
14 A CT scan of the right ankle on 26 April 2002 was reported with the following conclusion:[6]
Possible minor avulsion possibly form the lateral aspect of the calcaneum but the lateral malleolus is intact and the ankle joint itself appears stable.
[6]PCB 43
15 An X-ray of the right ankle on 2 September 2004 was reported with the following conclusion:[7]
A small bony fragment noted near the tip of the lateral malleolos has a well defined margin and may be related to a previous bony injury. It does not appear particularly acute however. Symmetry of the ankle mortice is preserved.
[7]DCB 7
16 An MRI of the right ankle on 17 September 2004 was reported with the following conclusion:[8]
There is a minimal amount of bone bruising in relation to the interior isertion of the deltoid ligament. No evidence of deltoid ligament tear. There appear to be sprains at the ATFL and PTFL without signs of ligament disruption. Accessory ossicles were noted in relation to the lateral malleolus.
[8]DCB 8
17 A CT scan of the right ankle on 1 March 2005 reported the presence of bony irregularity of the lateral malleolus which was consistent with old trauma and/or surgery. [9] There was no evidence of a recent bony injury.
[9]PCB 46
18 An MRI of the right ankle on 6 April 2005 was reported with the following conclusion:[10]
Swelling and abnormal T2 signal within the posterior talo-fibular ligament with thickening of the anterior talo-fibular ligament in keeping with previous injury and healing. No recent bony injury. No talar dome disruption.
[10]PCB 45
19 An MRI scan dated 2 October 2011 was reported as revealing “scarring around lateral malleolus. Minor anterior tibia osteophyte ? anterior impingement but no bone marrow oedema is demonstrated (sic)”.[11]
[11]PCB 48
Medical Evidence
Treating doctors
20 Dr Joe Cacek reported on 12 June 2011[12] that the plaintiff had right ankle pain, was working with restrictions but could not continue his work as a furniture removalist as he could not walk up and down ramps. He was unable to walk any distance without severe pain. He had a limp. In a further report dated 5 November 2013,[13] Dr Cacek noted that the plaintiff is permanently disabled in that he is limited in what he can do, and is permanently unable to lift from ground level and to carry heavy weights. He requires regular medication and ongoing physiotherapy. His right ankle pain is worsened by walking. He cannot squat. He cannot walk quickly or run, and is permanently restricted from social activities or sports requiring these activities.
[12]PCB 19
[13]PCB 20A
21 Mr Bourke reported on 26 June 2002[14] in relation to the April 2002 right ankle injury sustained at home that he viewed the X-ray and CT scan which showed a possible small avulsion but it “was impossible to age this flake of bone and it may be a result of an old injury”. He diagnosed a “lateral ligament injury and a strain to the distal syndesmotic ligaments”, and recommended conservative treatment. On 10 July 2002 Mr Bourke noted that the plaintiff had shown “little improvement despite the use of a brace and weekly physiotherapy” and that he was still tender.[15] He noted that the MRI confirmed “marked odema within the body of the talus but no evidence of an osteochontral fracture”.[16] He concluded:
Talar bone bruising can cause ongoing symptoms for up to twelve months. It is impossible to treat effectively and needs to run its own course. Fortunately during the recovery phase I can reassure Michael that a little bit of pain would not do him any harm and that he should use symptoms as a guide to his level of activity.[17]
[14]DCB 4
[15]DCB 5
[16]DCB 5
[17]DCB 5
22 The plaintiff relied on 6 letters in 2005 from Mr Bourke to Dr Cocks in relation to the August 2004 injury. In a letter dated 21 June 2005 Mr Bourke noted that the plaintiff had “ongoing right ankle pain following a repeat inversion injury in August 2004”,[18] which had not improved despite physiotherapy and which limited him to walking only 20 minutes, standing only thirty minutes and disturbed him at night. On examination, he noted “marked instability in both the lateral and anterior talofibular ligaments”, and recommended an ankle reconstruction.[19]
[18]PCB 28
[19]PCB 28
23 Mr Bourke performed an ankle reconstruction on 21 July and wrote to Dr Cocks on 1 August 2005 to the effect that in the surgery he excised a “large non-united fragment” and performed right ligament stabilisation.[20] The plaintiff was in below knee plaster. On 12 August 2005, Mr Bourke noted that the sutures had been removed and the plaintiff would continue to be non-weight bearing in a plaster for 6 weeks.[21] On 9 September 2005, Mr Bourke noted that the plaster had been removed and the plaintiff had been referred for physiotherapy with a recommendation that he not return to any weight bearing work for another 6 weeks.[22] On 28 October 2005 Mr Bourke noted that the plaintiff’s recovery had been slow and he encouraged the plaintiff to be more aggressive with his retraining.[23] On 5 May 2006, Mr Bourke noted that the plaintiff was slowly progressing but was still “debilitated by pain on the outside of the ankle with excessive activity and associated swelling”.[24] His symptoms were only slowly improving and he was limited to walking 30 minutes and still had some instability and weakness on uneven ground. He noted that the plaintiff was permanently restricted in relation to heavy lifting duties or jobs involving prolonged walking, especially over uneven ground and would be well suited to a driving job with intermittent loading of objects.
[20]PCB 29
[21]PCB 30
[22]PCB 31
[23]PCB 32
[24]PCB 33
24 On 18 October 2011, Mr Bourke provided a medico-legal report to the plaintiff’s solicitors.[25] In the report he summarised the matters which are outlined in the letters to which I have referred above, and noted that he reviewed the plaintiff in 2011 when he organised a further MRI. The plaintiff complained of pain “in everyday life with walking and activities such as shopping” with pain after walking 200 metres, with a maximum of 2kms walking.[26] The pain “was his major complaint and this was worse after activity and occasionally lasted into the night with associated swelling”.[27] He was able to work as a forklift driver but jumping from the machine and lifting heavy objects caused his ankle pain to flare up. The plaintiff felt that his ankle had worsened over the years. Mr Bourke noted that the MRI showed scarring around the ankle but no other major pathology. He felt that the ankle joint had been stabilised. Mr Bourke injected the ankle with local anaesthetic and cortisone. He concluded that he was unsure as to what exactly was causing his ongoing pain.
[25]PCB 34
[26]PCB 34
[27]PCB 34
25 Dr Cocks reported on 27 July 2011[28] that after the surgery in August 2005 the plaintiff developed an infection requiring treatment. He last saw the plaintiff in December 2006 when he provided clearance for the plaintiff to return to normal duties as he was working as a courier. He concluded that as a result of his right ankle impairment the plaintiff was permanently incapacitated for his pre-injury employment as a removalist, and suggested that fork lift driving would be a suitable occupation. On 4 August 2013 Dr Cocks opined that the work-related injury on 4 August 2013 was significant contributing factor to the permanent impairment of the right ankle which the plaintiff suffered as at late 2006.
Medico-legal reports
[28]PCB 21
26 Mr Peter Battlay, orthopaedic surgeon, reported on 13 October 2004 a history of a lateral ankle ligament tear in 2002 which required plaster immobilisation and three months off work as well as physiotherapy.[29] The plaintiff told him the right ankle was “not one hundred per cent” when he went back to work. Mr Battlay diagnosed an “aggravation of his previous lateral collateral ligament tear” by way of “a lateral ligament strain”. He doubted whether there would be any permanent impairment resulting from this aggravation and opined that the ankle instability was the result of the 2002 injury to the right ankle. He noted that the plaintiff limped and wore an ankle brace. He found minimal swelling around the ankle on examination. He recommended that he continue wearing the brace.
[29]DCB 16
27 On 9 August 2013, Mr Battlay provided a further report in which he noted that surgery had occurred which he described as “a very successful reconstruction with no current evidence of instability and no likelihood of any future complications”.[30] However, he noted the plaintiff’s complaint of continuous pain in the right foot and ankle with pins and needles in the right foot as well as difficulty walking more than 15 minutes. He felt that the ossicles were present in 2002. He considered that there was a full range of movement and no clinical instability. He opined that “the clinical findings were indicative of a non-physical problem”[31] He repeated his earlier diagnosis and stated that “it is quite likely that some residual symptoms were present even before the further incident of 4.8.04”[32] He concluded that it was quite likely that even without the 2004 incident, he would have eventually required surgery to the right ankle again.[33] Mr Battlay also concluded that given the success of the ankle surgery, the plaintiff is capable of his pre-injury duties but is “safer” doing his current job.[34] He agreed that ongoing medication was the appropriate treatment for his symptoms.
[30]DCB 22-23
[31]DCB 23
[32]DCB 24
[33]DCB 25
[34]DCB 25
28 Mr Michael Flaim, surgeon, reported to the plaintiff’s solicitors on 15 July 2011[35] that the plaintiff complained of pain in the right ankle, aggravated by use of the accelerator at work, limitation of his capacity to walk to about 20 minutes, with difficulty on uneven ground, and some instability of the right ankle at times. On examination he found a good range of movement. He felt that the CT scan of 12 July 20911 showed no evidence of arthritic change within the ankle. He found that the plaintiff had injured his right ankle in 2002 but aggravated it in August 2004. He concluded that the consequence of the 2004 incident was that the plaintiff required surgery for instability of the right ankle, and that this surgery has controlled the instability.[36] He noted that clinical and radiological review did not reveal “an obvious cause for his chronic pain”.[37] However, based on the history, he felt that the 2004 incident was “the continuing cause of his chronic pain”. He noted the plaintiff’s limitation in walking, and restriction of function for uneven ground, inclines and for use of ladders, and that the plaintiff was taking Panadol Rapid and/or Voltaren gel. He also noted that the plaintiff was unable to afford other treatment but was due to see his treating surgeon. He found no evidence as at the date of the report of any post-traumatic arthritis but felt that this was a risk “in the very long term”.[38]
[35]PCB 36
[36]PCB 38
[37]PCB 38
[38]PCB 38
29 Dr David Fish, occupational physician, reported on 17 May 2012 that on the history given the plaintiff suffered an initial right ankle injury in 2002 which led to right ankle instability and suffered an aggravation of this injury in August 2004 while at work.[39] He noted that the ankle surgery for stabilisation had been unsuccessful and he had persistent instability and pain. He felt that there was evidence of sural nerve injury “presumably as the result of the surgery”.
[39]PCB 42A
30 On 23 October 2013, Mr Garry Grossbard reported to the plaintiff’s solicitor that the plaintiff made a full recovery from the right ankle injury in 2002 and “was able to work as a furniture removalist without symptoms or evidence of ankle instability or significant pain”.[40] He felt that the notes of 2002 suggest that the ossicles “probably pre-dated 2002”, and was possibly a “developmental anomaly of an extra ossicle at the tip of the lateral malleolus”.[41] He noted that “[v]isits to his local doctor between the incident in 2002 and the incident in 2004 do not point to his ankle as being an issue”.[42] He concluded that “this man’s ankle injury was probably of a minor nature and he made a full recovery from it”.[43]
[40]PCB 39
[41]PCB 41
[42]PCB 41
[43]PCB 41
31 Mr Grossbard opined that the injury in August 2004 involved a “major disruption of the lateral ligament structures. This may have been associated with some articular cartilage injury but there was also bruising on the medial side of the talus which would suggest considerable force and displacement of the ankle”.[44] He noted the complaint of paraesthesia and burning pain from the time of the injury which he said could be due to a traction injury to the nerve as it passes around the fibular neck which was not addressed by the reconstructive procedure. Given that this complaint predated the surgery he did not attribute it to the surgical procedure. He discounted the presence of a chronic pain syndrome. He noted the plaintiff had returned to work in a limited capacity and felt that his injury was organically based. He felt there was a high likelihood of the plaintiff’s current degenerative changes worsening in the future. If this occurred, his options would include ankle debridements and ultimately an ankle fusion. In the mean time, his pain should be managed with medication. He felt that there may be a neurological aspect to the plaintiff’s pain which warranted EMG investigation.
Legal principles
[44]PCB 41
32 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and, relevantly that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[45] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[46]
[45]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[46]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42].
33 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[47] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[48] The ‘pain and suffering consequences’ of an injury encompass the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[49]
[47]Fleming v Hutchinson (1991) 66 ALJR 211.
[48]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
[49]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA); Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.
34 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[50]
[50]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
35 The whole of the evidence before the court should be considered, not just the medical evidence.[51]
[51]Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, [170].
36 In cases involving aggravation of a pre-existing injury or condition there must be an analysis of the extent of the impairment of the relevant body function before and after the injury. In addition, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.[52]
[52]Petkovski v Galletti [1994] 1 VR 436, 444; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz [2012] VSCA 60 (4 April 2012).
37 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[53]
[53]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46
38 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[54] Each case has to be determined in the light of its own facts.[55]
[54]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[55]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
39 Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[56]
[56]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
Findings and reasons
40 I found the plaintiff to be a straightforward and frank witness whose credit was not seriously challenged. I accept his evidence concerning the impact of the 2002 injury. In particular I accept his unchallenged evidence that once this injury healed it did not prevent him doing anything he wanted to do, and did not prevent him working full time in his pre-injury duties. I note that Dr Cocks, Mr Bourke and Mr Grossbard also did not consider that the 2002 injury was a significant injury. I prefer their evidence to that of Mr Battlay on this point, particularly as Mr Battlay assumed some facts which are expressly denied by the plaintiff, in particular that he had residual symptoms prior to the 2004 incident, and that the ankle surgery was successful. In addition, Mr Battlay posited complete stability of the ankle after surgery, which is contradicted by the plaintiff’s sworn evidence and by the opinion of Mr Flaim. Mr Battlay’s concession that the plaintiff continues to suffer ankle pain was accompanied by a conclusion, which was unexplained, that the pain was indicative of a non-physical problem. I prefer the evidence of Mr Grossbard, which is echoed by Mr Bourke and Dr Fish, that the plaintiff’s ongoing pain is of an organic nature.
41 The weight of the evidence (from Dr Cocks, Mr Bourke, Dr Fish, Mr Flaim and Mr Battlay) is to the effect, and I therefore find, that in the 2004 incident he suffered an aggravation of a pre-existing but then asymptomatic right ankle injury which has been surgically treated but which has rendered him permanently unfit for his pre-injury duties. Mr Flaim, Dr Cocks, Mr Grossbard, Mr Bourke and Dr Fish opined that the 2004 injury is a continuing cause of his chronic right ankle pain. I accept that this is so. I prefer Mr Grossbard’s opinion to that of Mr Battlay in this regard because Mr Grossbard took a more accurate history of what the plaintiff says has occurred in relation to the right ankle after the 2002 injury.
42 I accept without reservation the plaintiff’s evidence concerning the pain and suffering sequelae of the 2004 right knee injury. These are set out at paragraphs 9 and 10 above. I accept his evidence that he was completely unrestricted in his occupational, domestic and recreational activities after the resolution of the 2002 injury. I consider that the sequelae he now complains of are all attributable to the aggravation which occurred as a result of the 2004 incident. They may be briefly restated. At 33 years of age, he suffers constant right ankle pain and some altered sensation. He has very limited tolerances for walking. He cannot lift heavy weights. He has had to change occupations. He wears a brace at work. He walks with an altered gait. He has trouble with stairs and uneven ground. He has had an ankle reconstruction which has not resolved his right ankle symptoms. He has had physiotherapy and steroid injections. He takes substantial medication every second night. He cannot walk more than 15 minutes and cannot run. Given his age, he will have to endure these consequences for a longer time than older people with impairments of a body function.
43 In all the circumstances, I consider that the pain and suffering consequences of the 2004 right ankle injury are more than considerable when compared with other cases in the range of impairments.
Conclusion
44 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the injury to the right ankle suffered on 4 August 2004 during the course of his employment with the defendant.
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