Juhasz v Labelmakers Aust Pty Ltd
[2012] VCC 983
•2 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06069
| DAVID JUHASZ | Plaintiff |
| v | |
| LABELMAKERS AUST PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2011 | |
DATE OF JUDGMENT: | 2 July 2012 | |
CASE MAY BE CITED AS: | Juhasz v Labelmakers Aust Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 983 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – right knee – whether impairment satisfies the narrative test.
LEGISLATION CITED – Accident Compensation Act 1985; s.134AB(38)(a)
CASES CITED – Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Ms N Wolski | Nowicki Carbone |
| For the First Defendant | Mr I S Gourlay | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 28 December 2010, David Juhasz (“the plaintiff”) seeks leave, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 as amended (“the Act”), to bring common law proceedings to recover damages for injury to his right leg suffered during the course of his employment with Labelmakers Aust Pty Ltd (“the first defendant”) on or about 29 January 2003 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.
3 The plaintiff and his wife gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant Legal Principles
4 The Court may not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[2]
[2]See s.134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:
“serious injury means─
(a)permanent serious impairment or loss of a body function …”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the right leg.[3] In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” was suffered in the course of or due to the nature of his employment with the first defendant on and after 20 October 1999;[4]
(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … can be fairly described as being more than significant or marked and as being at least very considerable”.[6]
The test for “serious” is sometimes referred to as the “narrative test”.
[3]See T 2, L11-25
[4]See s.134AB(1) of the Act and Barwon Spinners & Ors v Podolak (2005) 14 VR 622 at [11]
[5]See Barwon Spinners (op cit) at [33]
[6]See s.134AB(38)(b) and (c) of the Act
7 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be counted for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard;[8]
(c)must give reasons which are extensive and complete as the Court will give on the trial of the action, and in so doing disclose the pathway of reasoning when dealing with the evidence and issues raised by the application;[9]
(d)notes that it has been observed that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[7]See s.134AB(38)(h) of the Act
[8]See s.134AB(38)(j) of the Act
[9]See s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89]-[92]
[10]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
8 Counsel for the first defendant informed the Court there was no issue that the plaintiff had suffered a compensable injury with consequential minor impairment. The issue arose as to whether or not the consequences of any impairment satisfied the narrative test – essentially, it was that type of case referred to as a “range case”.
The Evidence of the Plaintiff
9 The plaintiff gave evidence that he is presently employed as a labourer with TTI Stone in Thomastown and, in particular, gave the following evidence as to his present duties:
“I’m basically the labourer there. I supply all the machines with the slabs of stone for kitchen benchtops. I do a bit of polishing on the machines as well. I use a forklift to carry the heavy stuff. Some of the lighter stuff I do by hand but I do have a trolley with me so I’m lifting it literally, I’ve just got to walk it. There is a bit of walking it but because I’ve got so many things that I have to do, I spread things out to make things a little bit easier on me because I do, like, 30 different things at once. Because I’m the labourer and it’s such a big business, I’m actually doing a fair few different things. So, yes, it’s just basically a little bit of everything that my boss has me do.”[11]
[11]See T 11, L14-2
10 The plaintiff also gave evidence that he had not seen his treating surgeon for some time as he had been told that there was no further surgery available for his leg. Further, he had not seen the physiotherapist for some time because he had been advised there was nothing more to do other than to keep the leg “moving as much as possible”. He was also advised by the surgeon that if his ankle really gets “bad”, fusion surgery may be an option.
11 In relation to attendance at the gym, the plaintiff gave evidence that, after the injury, he was unable to do any leg exercises as it was “too painful”, but continued to do upper body exercising up until the start of 2011 when he ceased. In particular, he gave the following evidence:
Q:“But upper part of the body ceased when?---
A:Yes, I ended doing upper body this year, the start of this year I finished.
Q:Why did you cease that?---
A:Oh, second child, very hard to get time to go to the gym.
Q:So nothing to do with your injury?---
A:No, probably not, no.”[12]
[12]See T 13, L24-28
12 The plaintiff adopted his affidavits, sworn 3 August 2010[13] and 22 September 2011,[14] to be true and correct.[15]
[13]See Exhibit 1, page 19 PCB
[14]See Exhibit 1, page 30 PCB
[15]See T 14, L13
13 By way of his first affidavit, the plaintiff gives the following evidence:
·He is a thirty-six year old, born 18 February 1976.
·On leaving school, he was employed:
§ as a labourer, sales and amusement parlour attendant for about three years;
§ between 1996 and 1997, at Devitt Panels in Reservoir as a factory hand for about 12 months; and
§ at Diamond Plastics, Heidelberg, as a machine operator for another twelve months.
·According to later evidence, the plaintiff commenced employment with the first defendant on 19 May 1998.[16] He was employed as a general hand for the first three years and thereafter as a printer until 2007 when his employment was terminated.
[16]See T 15, L19-24
·On 29 January 2003, during the course of his employment, at about 9.00 am, the plaintiff suffered injury, in particular, a fracture of his right tibia. He describes the circumstances of the incident in the following terms:[17]
[17]See page 21 PCB
“At the time of the injury I was operating a 1.5 ton side forklift when it tipped over (not completely) as I was making a right hand turn within the loading dock area of the factory premises. As the forklift tilted I was rolled out of a seated position for fear of being crushed by the forklift as it was not provided with a seat belt or safety bars. The forklift kept on moving as I rolled out. …”
[Later evidence establishes that the right leg and in particular the right ankle was crushed between the fork lift and some metal railing].
·Since the time of the injury, he has continued to suffer pain and limitation of movement of his right leg, right ankle and knee.
·He has not had any medical treatment since 9 March 2004 when he was advised by his treaters there was nothing else that could be done.
·When he works (as at 3 August 2011), he does not apply much pressure when getting in and out of a truck, or when carrying out various other activities, such as stepping over boxes, he tends to step with his left foot rather than his right foot.
·He cannot squat in order to pick up heavy boxes or heavy items.
·He can no longer run, which he used to enjoy doing, although he can jog for short periods of time (five minutes) and he is no longer able to power walk.
·If he does go for walks, such as walking the dog, he can do it for no longer than one hour, after which his ankle becomes swollen.
·He has difficulty playing with his three year old son as he cannot squat and can no longer cross his legs whilst sitting on the floor.
·With extreme changes in weather conditions he feels a sharp stabbing pain in his ankle, especially where the scarring is situated. Such pain causes great discomfort, especially when at work.
·He has a numb spot on the back of the right calf which is also discoloured and which was not there prior to the injury.
·He finds it difficult to walk upstairs and coming down also causes pain and he finds he uses his left foot.
·He can no longer play any form of sport, especially volleyball which he used to play on a regular basis as he was in three teams.
·When out with friends, he feels pain which causes him to sit down and rest his ankle.
14 In his second affidavit, the plaintiff gives the following evidence:
·He continues to suffer constant and variable levels of pain in his right ankle and right lower leg which is his major concern.
·Although he has attempted to remain active and to undertake exercise on a daily basis, he can no longer jump or run distances and he can no longer engage in his chief recreational hobby of A Grade volleyball at Reservoir or play beach volleyball.
·He can jog at a slower pace, although he finds it painful to do so.
·He walks his dog most days and can walk 45 to 60 minutes, but finds the further he walks the more swollen his ankle becomes and the more pain he suffers in his right leg.
·He finds it difficult to walk on uneven surfaces and, in particular, walking up steep hills.
·He asserts he has been told by medical practitioners that it is likely that he will go on to develop osteoarthritis in his right ankle.
·He finds that he suffers greater pain in periods of cold weather and that movement and function of his right ankle joint is diminishing.
·He is concerned that function in his ankle will continue to diminish and the pain increase to the point where he will require surgery, which may involve fusion of the ankle joint.
·In his present employment, he takes care of his leg when he is at work and finds by the end of the day he suffers increased pain in his leg because it has been used throughout the day at work.
15 Under cross-examination, the plaintiff gave the following pertinent evidence:
·His wife, Alison, works two days a week in Human Resources for a company in Bundoora.
·He has two children, a son aged four and a daughter aged one.
·When he was made redundant by the defendant, he was one of several people, but the only printer. He asserted he may have been put off because of his history of injury. He did not recall when it was put to him about being given a warning at work.
·He was coping with his work at the time of the redundancy.
·He commenced employment with First Fleet in 2009, which was a delivery company, and he was driving a heavy rigid truck making deliveries to 7‑Eleven stores in various locations around Melbourne and Geelong.
·His work at First Fleet involved loading and unloading goods. In particular, the plaintiff gave the following evidence:
Q: “What were you delivering? Cartons of food?---
A: Yes, food, drinks. Yes, that was pretty much it. Anything that was in a 7 Eleven store – cigarettes.
Q: As one would surmise from that were you lifting boxes and the like off the truck onto a trolley and then transporting them into the various premises?---
A: Yes, I was actually using – yes, I was using a pallet jack to take the pallet off the truck to put it near the actual shop, and then from there with a trolley loading it onto the trolley and pushing it into the store.
Q: So you would lift the boxes off the pallet jack onto the trolley?---
A: Yes.
Q: Then push the trolley into the store?---
A: Into the fridge, yes, that’s right.
Q: We’ve all seen people doing that from time to time but you might be carrying what, a couple of boxes on the trolley?---
A: Yes.
Q: What sort of weight would you be carrying – I beg your pardon, pushing on the trolley?---
A: I’d say anywhere between 20 and probably 50 kilo.”[18]
[18]See T 17, L18 – T 18, L6
·He performed that work for about two and a half years and returned to work as a printer for about four months before that company was bought out by the defendant who did not offer him a job.
·After leaving the printing work, he performed truck driving work for another two years up to approximately the end of 2010 with Hellman Logistics and Whymap.
·Such work involved manual handling of goods and, depending on the size of boxes, sometimes forklifts were used.
·The trucks that he drove for First Fleet and Hellman Logistics were manual.
·When working for First Fleet, he would usually start at about 6am and finish at about 3pm or 4pm, although around Christmas time he could work anything between 12 to 16 hours because of double runs.
·His present employment commences at 7am and he finishes at 3.30pm, five days a week.
·Inside the factory at his present work is a concrete floor and outside is a dirt surface, and he spends about equal amounts of time on either surface.
·He has been doing the work for about a year and agreed that he loves the job. In particular, he gave evidence:
Q: “- - - although it’s a bit hard on your leg?---
A: It’s a bit hard, but I’ve always been a physical person. I’m never a person that likes to sit down. I like to move. That’s why I like the job.
HIS HONOUR:
Q: Why did you leave the truck driving?---
A: More for always being on the road and also my placement of my leg on the accelerator gets a bit on the touchy side if I’m there too long, so I don’t actually put my foot on the accelerator per se. I always have it off to the side because it’s more comfortable for me. Also climbing in and out of the truck is a little bit on the hard side. Because I usually lift with my left leg, the truck I was driving was actually four steps into the cabin, so I had to use the right leg at some stage to pull my body weight up step by step.”[19]
[19]T 23, L10-24
·During the course of his subsequent jobs after the injury, the plaintiff had suffered pain in his back and also has had some wrist pain.
·The wrist pain occurred in about 2006 or 2007 and he required medical treatment for such condition and ultimately underwent some surgery to the right wrist area.
·He recalls that the nature of the surgery was the insertion of a pin and screw through the wrist.
·He has also had problems with his right shoulder and he accepted that may have been in the latter part of 2007. He sought medical treatment for that condition and underwent an arthroscopy to investigate his rotator cuff. Since the surgery, he has been careful with his right shoulder.
·He accepted that he was sent to a variety of doctors in relation to his wrist and shoulder injuries.
·It was put to him that he attended an orthopaedic surgeon, Mr P Kudelka, on 7 July 2006 in relation to his wrist injury and gave a history of “cycling and gym work” after his right leg injury. In particular, the following evidence was given:
Q: “Are you someone who likes to get out on a bicycle?---
A: Yes, I don’t mind having a bit of a ride every now and then. I used to do a lot of riding and then ended up stopping.
Q: But at that time in July 2006, you gave Mr Kudelka the history that at that stage you enjoyed cycling?---
A: Yes, I did.
HIS HONOUR:
Q: Do you cycle now?---
A: Not per se, cycling, as in on the road cycling. I used to try and do a little bit of mountain bike, dirt-trail bike riding. Not real harsh stuff, just low key with my brother-in-law. He got me into it mainly.
Q: Is this the downhill business, is it?---
A: No, there’s way I'm ever going to try that. I've seen too many injuries to try that. I'm just talking more straight roads, going through dirt tracks, like where you can actually go from my area to the city via a road and then you go via dirt tracks as well, and we just took dirt tracks basically. That’s the kind of cycling we done.
Q: Do you have – what do they call them, a mountain or a hybrid bike?---
A: I used to have a mountain bike.
Q: What do you have now?---
A: Now I just have a chopper, a customised chopper.”[20]
[20]See T 29, L7-28
·He denied telling Dr Malcolm Brown on 22 July 2008 that his leg injury had “resolved completely”.
·He accepted that after the injury he had certificates for modified duties from 12 May 2003 until 27 October 2003 after which he was fit to go back to normal duties.
·He last had physiotherapy in relation to his leg injury in March 2004 and had not been back to a doctor for any treatment since about then. In particular there was no treatment plan in place between 2003 up to the present.
·When queried whether he had any particular philosophical view about taking tablets, he gave the following evidence:
A:“Yes, kind of. I didn’t want to really take – with the leg within – after the having the accident within the first six months I actually pushed myself. Because I was getting married I had to lose a certain amount of weight and get back into my suit, so I basically pushed myself to a limit and figured out what I was capable of doing and what I was not capable of doing. In regards to the leg I injured it a fair few times and found out certain things that hurt it, certain things that didn’t, so I stayed away from things that did and I've tried to travel along with that. But there is the times where I do injure it and I don’t take nothing for it, I just basically go home and was told to elevate my leg at heart height, so to sit on a recliner and lift my leg up. After a couple of hours the leg seems to just - - -
Q:Just come down a bit?---
A:Yes, calm down a bit, to a point where I'm okay again.”[21]
[21]T 35, L1-17
· He recalled making a statement dated 5 March 2008 in relation to the circumstances surrounding his shoulder injury. In particular, he was taken to the following parts of such statement, where he stated:
“I have lodged previous WorkCover claims for compensation when I was working for Label Makers. One of these claims was for a fractured right leg and the other was for a left wrist injury. My right knee became crushed between a pole and a 1.5 ton fork lift. I was hospitalised for two weeks as a result of that accident. I returned to my normal duties. The left wrist was strained due to repetitive work. I was off work altogether for about one month and I was back to normal duties after about three months. My left arm is fine except that I have a bone that does not connect and my right leg is fine.”
[my emphasis]
Later in the statement, the plaintiff states:
“Before I injured my shoulder I trained in the gym four days a week and then three days a week and then back to four days a week, for four years, basically since I broke my leg. The gym I was attending was Body Image Health Club, 771 Gilbert Road, Reservoir. I have not been to the gym since I first injured my shoulder. I used to play A Grade and AA Grade volleyball and golf regularly but I have not played these sports since prior to September 2007. I have never hurt myself at the gym. I may have hurt my neck when lifting weights and that was why I went to see Tom for my neck. I used to work all body parts and building up and depending on what exercise I was doing, would depend on what weight I was lifting. I could bench press maybe 80 kilograms once a week.”[22]
[22]Refer to Exhibit C at pages 49 and 52 DCB
[my emphasis]
·He accepted that he signed each page of the statement.
·When queried about the contents of such statement, he gave evidence that he did not think it would concern the investigator the condition of his leg bearing in mind that the investigator was investigating his shoulder injury. Further, he stated:
A:“With golf I – after I had the leg injury I did play, using a buggy, drive-on buggy but with – in regards to volleyball, like, in 2007 I probably had one game just to see how my leg went, because my brother-in-law asked me, but from what I can remember I've only played one game since, and that one game didn’t work out right for me.
Q:You mean one game since the leg injury and before the shoulder injury?---
A:Correct.
Q:Why would you word it the way you have, then?---
A:I have a weird way of – yes, even my wife tells me I have a weird way of putting things across.”[23]
[23]T 44, L4-15
·He accepted he played golf between 2003 and 2007 most probably at Yarrambat which is “real hilly” and he had hired a buggy.
·He ceased going to a gym – the Power Core Gym in South Morang – at the end of 2010 in part because of family commitments and also he could not train his old body.
·He is able to drive to the local supermarket, does perform some vacuuming, a bit of cooking and mows the lawns. His wife performs the other gardening because he does not like particularly “getting into it”.
·He has a hobby of buying cars and then cleaning them up and them sometimes helping mates who have purchased older cars which need assistance.
·He holds a motor bike licence and rides a motor cycle out “every now and then”. Such activity would occur about once a month, or maybe twice a month.
·On being referred to a history obtained by Mr Khan on 10 March 2011 that:
“He goes to gym to do his workouts and use the weights. His hobby has been playing with motorcars. He tries to tinker with them and repair them. He also has a motorbike licence. He rides a pushbike. In the past he used to be a top grade volleyball player. He has kept up his training at the gym since then and continued with cycling.”
He denied that he was continuing to train and the doctor misunderstood him when he said that he stopped at the beginning of 2011.
·He presently earns $885 net per week.
·In relation to working on the cars, he likes to “detail” such cars on the inside and outside which involves polishing and removing stains.
·He did have recent x‑rays and a bone scan undertaken at the request of Mr Khan for medico-legal purposes and not for treatment purposes.
·Early in the day, he has a stiffness and sharpness in his ankle which does improve to a certain extent over the day.
·He wears work boots in his present employment.
·He has asserted that he has numbness in the back of his calf and the right ankle is constantly swollen, although he accepted later that it is probably not swollen all the time, but depends on how much walking he does.
16 Under re-examination, the plaintiff gave the following pertinent evidence:
·That he did not recall writing out the statement to which he was referred to in cross-examination.
·He affirmed that he has only played one game of volleyball since his leg injury, leading up to the shoulder injury. In particular he described how he was a “spiker” in the volleyball team which required him to jump off the ground.
·He cannot walk around a golf course because his leg is too painful. He believes he played four games of golf since his leg injury, whereas before his leg injury he was playing about twice a week.
·When asked to make a comparison of his level of pain from March 2008 to December 2011, the plaintiff gave the following evidence:
A:“From 2008 to now I reckon I've probably lost 20, 25 per cent movement in my leg, I would say.
Q:In the ankle?---
A:Yes, correct.
HIS HONOUR:
Q:Well, you said leg. Do you mean the leg or do you mean the ankle?---
A:The ankle. Like the rest of my leg the knee works all right and everything, it’s the ankle that’s very hard for me to move, and it gets worse and worse as the days go by, basically. Like I don’t test it every day but from what it was to what it is now is a huge difference for me.”[24]
·When asked to compare his ankle from 2003 to 2011, he says presently the feelings that he has in the ankle in terms of weather changes are:
“It’s very sharp. I get a real aching feeling in the ankle and my movements are very hard to move, it’s more like on the stiff side, like a bearing that’s not greased is what it feels like.”[25]
[24]T 62, L14-24
[25]T 63, L17-24
17 Mrs Allison Juhasz gave evidence that the contents of an affidavit sworn by her on 21 September 2011,[26] were “true and correct”.[27] By way of that affidavit, Mrs Juhasz gives the following evidence:
[26]See Exhibit 1 at page 34 PCB
[27]T 68, L3
·She has known the plaintiff for approximately sixteen years, having met when they were eighteen years old.
·She describes the plaintiff as always being an “extremely active and outgoing person” who maintained a “high level of fitness through regularly attending the gym, jogging, playing golf most weekends and had a few teams of volleyball”. She and the plaintiff would often go for long walks along St Kilda beach and various other places.
·Since the injury to his ankle, he is not able to get back to the fitness level that he was prior to his injury and he has sold his golf clubs and has never resumed playing volleyball.
·She observes him to have pain on a daily basis trying to play with their son and he makes complaint of pain in the ankle when the weather is cold and even wakes him the middle of the night in pain.
·Walking the dog is even hard for him as he comes home with pain and has a swollen ankle.
18 Under cross-examination, Mrs Juhasz gave the following pertinent evidence.
·She believed that he had attempted golf on one occasion since the ankle injury. She was unaware whether he used a buggy or not.
·In relation to his wrist and shoulder injuries, he was “restricted” very minimally and for a very short period as a result of these injuries.
·She believes that his difficulties with the golf, even if he had a buggy, was the stance which would impact on his leg injury.
·She denied that her husband had played volleyball between the date of his leg injury and the present.
·He does go out from time to time on a bicycle.
·He uses arm weights occasionally at home.
·She has observed the ankle to swell up.
·The swelling comes and goes and the pain is not constant.
19 Under re-examination, Mrs Juhasz gave the following pertinent evidence:
·From her observations, the pain seems to be “definitely worsening” over the period from 2003 up to the present.
·When the weather does get cold the plaintiff seems to be more sensitive with his leg when walking.
20 The plaintiff also relies on affidavit of Damian Nugara sworn on 30 November 2011.[28] In that affidavit, Nugara deposes that he has known the plaintiff from when he commenced work with the defendant in 1998. He describes the plaintiff as then being a very energetic and athletic person, being very much involved with golf and volleyball. Although Nugara left the defendant in July 2006, he continued to be in contact with the plaintiff. After the subject accident, he observed that the plaintiff was not his normal self and would complain about pain in his leg ankle and knee. To his observation, the plaintiff stopped playing golf and Volleyball. Nugara has also observed swelling in the ankle if he has been on his feet for “too long”.
[28]See Exhibit 1 at page 40(c) PCB
The Medical Treatment of the Plaintiff
21 The plaintiff was conveyed by ambulance to the Northern Hospital on 29 January 2003 and gave a history that when driving a fork lift he had an accident causing his right leg to be jammed between the fork lift and some metal railing.
22 X-rays undertaken at the hospital revealed an undisplaced transverse fracture through the junctions of the distal third of the tibia associated with soft tissue injury. Under general anaesthesia, the wound was cleaned and debrided and then sutured with the fracture being reduced and the leg plastered.
23 Subsequent x‑rays showed the fractures of the middle and distal thirds of the tibia to be in anatomical alignment. He underwent physiotherapy in hospital and was ultimately discharged on 7 February 2003.
24 When reviewed in the outpatient department on 17 February 2003, an x‑ray revealed that the alignment was anatomical and there was no definite callus formation. At that stage, he was complaining of some foot pain and the wound was healed and the stitches removed.
25 On review in the outpatient department on 17 March 2003, x‑ray revealed a mild anterior angulation of the distal fragment. Review on 14 April 2003, also revealed mild anterior angulation and although the fracture line was still evident, there was some evidence of bony healing being seen.
26 At that stage, the leg was examined out of plaster and was not tender but it was put in a brace and he was asked to return in six weeks. However, there was no record of any further attendance.
27 The plaintiff relies on medical reports from his treating general practitioner, Dr G Lamba dated 26 August 2010[29] and 11 January 2011.[30]
[29]See Exhibit 3 at page 42 PCB
[30]See Exhibit 3 at page 48 PCB
28 Dr Lamba initially consulted with the plaintiff on 27 February 2003 at which time he obtained the history of the fracture and the treatment in the Northern Hospital. At that stage, he had plaster on his right leg and undergoing physiotherapy and rehabilitation.
29 He resumed working on modified duties on 28 April 2003 and according to Dr Lamba, he “recovered fully” and started working full time on his pre-injury duties on 27 October 2003. Dr Lamba has not seen the plaintiff since 27 October 2003.
Medico-Legal Examinations
30 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a)the orthopaedic surgeon, Mr M Khan, on 10 March 2011;[31]
(b)the occupational physician, Dr H Sutcliffe, on 13 April 2011;[32]
(c)the consultant physician, Dr P Blombery, on 18 August 2011;[33]
[31]See report dated 5 May 2011 – Exhibit 3 at page 51 PCB
[32]See report dated 30 April 2011 – Exhibit 3 at page 68 PCB
[33]See report dated 1 September 2011 – Exhibit 3 at page 64 PCB
31 During the examination by Mr Khan, the plaintiff complained that “he managed to sleep reasonably well, although he complained of aching pain in the right leg which seemed to bother him with the change of weather”. He did not require any crutches or aids and could sit reasonably well and stand satisfactorily. Mr Khan observed that when he walked he tended to lean on the left leg a lot.
32 Mr Khan also noted that the plaintiff went to the gym to work outs and use weights, had a hobby of playing with motor cars involving tinkering and repairing them and has a motor bike licence and also rides a push bike. In the past he had been a “top grade” volleyball player. Mr Khan noted that since injury to the right ankle, the plaintiff has kept up his training at the gym and continued with cycling.
33 Mr Khan noted that he complained of getting intermittent pain in the right knee and right ankle. The examination revealed that he had no laxity of the right ankle and the anterior drawer sign was negative. He did complain of pain in the anterior joint line on attempting plantar flexion of the right ankle.
34 Mr Khan had available an x‑ray of his right ankle and foot dated 18 August 2005 which did not reveal any evidence of bony or joint injury and that the fracture of the right tibia had healed in reasonable alignment.
35 Mr Khan was of the opinion that the incident on 29 January 2003 caused a severe crushing injury to his right leg which resulted in a comminuted and compound fracture at the junction of the middle and third of the tibia and severe soft tissue injury to the right leg below the knee. He was also of the opinion that the plaintiff may have suffered some type of twisting injury to his right knee as well.
36 In particular, he considered that the fracture had eventually “healed up” but he has developed some local discomfort and an ache in the leg since then and he walks favouring the right leg and leans on the left leg. He considered that the plaintiff has been left with partial permanent stiffness and discomfort in the right ankle and has associated injury to the soft tissues of the right ankle to some extent.
37 Later, Mr Khan arranged for the plaintiff to undergo x‑ray of his right knee and proximal leg together with a localised bone scan on 28 September 2011.
38 X-ray of the right leg[34] revealed transverse sclerosis in the right distal tibial shaft with overlying callus formation in keeping with an old healed fracture. The localised bone scan[35] revealed a focal inflammatory arthropathy in the anterior aspect of the tibio-talar component of the right ankle joint.
[34]See Exhibit 3 at page 63 PCB
[35]See Exhibit 3 at page 62 PCB
39 Mr Khan commented that on the basis of such x‑ray and scan, the plaintiff has developed secondary degenerative changes in the tibio-talar compartment of his right ankle joint which is consistent with that type of injury.
40 When examined by Dr Sutcliffe, the plaintiff complained that he is no longer able to squat or jump and he can no longer jog as before. He has persisting pain in the area of the ankle and has increased pain with activity. In particular, he has no capacity to play volleyball as he did prior to his injury.
41 Examination revealed that there was no decrease in range of movement of the right ankle (or the right knee), although there was some decrease in muscle power of plantar flexion of the right foot.
42 Dr Sutcliffe was of the opinion that he sustained permanent impairment as a result of the crush injury to the posterior calf with decrease in muscle bulk, alteration in contour and reduction in circumference of the right lower leg. In particular, she believed that the plaintiff would continue to have activity related pain and loss of capacity for exercise as a result of the crush injury to his right lower leg.
43 When seen by Dr Blombery, the plaintiff complained that he could not run and he could only jog for two minutes. He experienced pain and some stiffness in the ankle, with the pain worse on cold days. He further complained that the right ankle was “constantly swollen” and the pain “occasionally kept him awake at night”. He considered that his symptoms were becoming worse over the last two to three years.
44 Dr Blombery had the x‑ray of the right ankle dated 14 May 2007 which according to him showed minor anterior osteophytic nipping of the ankle and an impression of mild joint space loss at the ankle joint. Dr Blombery comments:
“It is appears likely that this is due to the accident and the resultant change in the way that he has been weight bearing. It is likely that in the future, the arthritis in the right ankle may become worse and he may eventually require ankle fusion. However, his ankle is not at that stage yet where this is necessary.
He does not have features of complex regional pain syndrome type 1 but rather has a non-specific pain syndrome in the affected area in the right leg which has been triggered by the accident where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.”[36]
[36]See Exhibit 3 at page 66 PCB
45 Dr Blombery considered that there would be no significant change in his level of disability in the foreseeable future and that he had significant limitations in terms of his everyday activities.
46 The plaintiff also relies on two medico-legal reports obtained by the solicitors for the first defendant. The plaintiff also relies on the following medico‑legal reports obtained for the solicitors for the first defendant:
(a)the orthopaedic surgeon, Mr Michael Shannon, who examined the 2 August 204[37] and on 28 November 2011;[38]
(b)the orthopaedic surgeon, Mr P Lugg, on 30 September 2011.[39]
[37]See report dated 3 August 2004 – Exhibit 4 at page 57 DCB
[38]See report dated 2 December 2011 – Exhibit 4 at page 26a DCB
[39]See report dated 6 December 2011 – Exhibit 4 at page 26e DCB
47 At the time of his initial examination on 3 August 2004, Mr Shannon obtained a history from the plaintiff that apart from stiffness in the ankle, he also had soreness in the right knee and pain at the fracture site. He could only jog for a very short time and could not run because of the pain at the fracture site. Prior to the right ankle injury, he used to play volleyball but now is unable to jump.
48 After examination, Mr Shannon was of the opinion that the plaintiff had suffered fractures of the tibia and fibula which had been treated conservatively and had united in excellent alignment. He considered the plaintiff had minor restriction of movement of his knee and very slight ligament laxity which seems a little bit more than on the other side and is probably secondary to the injury. He accepted that the plaintiff had limitation of movement of his ankle and subtalar joints and that his complaints were consistent.
49 When re-examined on 28 November 2011, he gave a history in part that he had not resumed playing volleyball and was unable to play golf. Furthermore he asserted that he could not run or jog for more than a minute and could not walk the dog for more than an hour.
50 The problem is limited to his ankle which seems to click and lock up and he has limited flexibility when he is squatting. His knee does not give him much trouble unless he tries to run.
51 Examination revealed that he can form a near full squat, has a full range of movement on his right knee with significant crepitus and minimal laxity of the medial ligament. In particular, he has limited dorsiflexion of the right ankle but a full range of plantar flexion and moderate restriction of subtalar movement without evidence of instability.
52 After viewing x-rays, Mr Shannon was of the opinion that such x‑rays demonstrate that there is a transverse undisplaced slightly comminuted fracture of the tibia, but the fibula appears to be intact. Furthermore, x‑rays undertaken in 2005 confirm that the fracture of the lower tibia has soundly united with anatomical alignment with a very slight posterior bowing to the lateral view. The ankle and knee joints appear to be normal.
53 Mr Shannon did note that the recent bone scan of the right ankle showed evidence of inflammatory arthropathy. Again, x‑rays of the tibia and knee in September 2011 revealed the healed tibia shaft fracture with mild bowing and the knee joint was unremarkable.
54 Mr Shannon states:
“Mr Juhasz sustained a compound fracture of the tibia in compensable circumstances.
The fracture was undisplaced, was treated conservatively and united with very slight posterior bowing, but otherwise anatomical alignment.
Secondly to the prolonged period of immobilisation he has developed some stiffness of his ankle and subtalar joint.
He may have some mild degenerative change in the ankle, although there is no evidence the ankle itself was injured in the accident.
Similarly in regard to his knee, he has minimal medial ligament laxity, but no other evidence of pathology in the knee.
He has been able to perform moderately heavy physical work in the years since the fracture and he clearly works as a Truck Driver in which he injured his shoulder, but not his leg, subsequent work in the Printing Industry and currently as a Labourer in a Stone factory.
Residual stiffness in his ankle and subtalar joint would limit him in the performance of activities involving squatting and heavy lifting and would also limit his sporting activities.
…
Physical findings are described and have not significantly changed since my previous examination.
…
The diagnosis is that he has a united fracture of the tibia with secondary restriction of movement of ankle and subtalar joints.
The prognosis is for his condition to remain unchanged. Despite the Bone Scan appearances he does not really have clinical evidence of osteoarthritis and the nature of the fracture is not such that it would be likely to produce osteoarthritis.”[40]
[40]See Exhibit 4 at pages 26c-26d DCB
55 When examined by Mr Lugg on 30 September 2011, the plaintiff complained that his was unable to run because of pain at the fracture site, cannot spring up to jump and cannot sit cross-legged for very long. Furthermore, he had some difficulty walking on uneven ground.
56 Examination of the lower right leg did reveal some swelling due to fluid, but there was decreased calf definition due to wasting. The range of movement in the right ankle demonstrated a loss of 20 degrees of both plantar flexion and dorsiflexion and there was a slight loss of inversion and eversion of the subtalar joint. Midtarsal joint movement was normal and non-tender. There was some tenderness behind the medial malleolus and resistance to tipb. Post activity was painful.
57 Mr Lugg notes that there were a variety of x‑rays to show that he had suffered an undisplaced fracture of the distal shaft of the right tibia and ankle x-rays were normal. X-rays in March 2004 demonstrate definite full union of the fracture.
58 Mr Lugg was of the opinion the plaintiff suffered an undisplaced fracture of the lower shaft of the right tibia, which has healed with conservative management but accompanied by ongoing symptoms of predominantly pain around the fracture site and some stiffness in the ankle. In particular, Mr Lugg states:
“In general terms, this man has more symptoms than I would normally expect after an undisplaced fracture of the tibia, symptoms are often more severe when the injury involves a crushing injury, with more soft tissue damage than a simple fracture.
I would expect the aching around the fracture site to continue to gradually improve as time passes. I doubt that the stiffness in his ankle would improve any further.
The pain at the fracture site relates to bony remodelling around the fracture site, together with a soft tissue injury and tethering of skin to the tibia at the site of the fracture.
…
The symptoms, specifically the pain over the fracture site, has been unrelenting ever since the fracture, although there appears to have been some improvement in the severity of symptoms, but by no means complete recovery. … “[41]
[41]See Exhibit 4 at pages 26g-26h DCB
59 Mr Lugg believed that there may be some mild improvement in the severity of pain but the stiffness of the ankle is unlikely to change much further; that the plaintiff was probably capable of performing full time pre-injury duties, providing a few simple restrictions were observed.
60 It is also convenient to refer to the other medico-legal examinations relied on by the defendant.
(a)the orthopaedic surgeon, Mr Peter Kudelka, on 6 July 2006;[42]
(b)the occupational physician, Associate Professor M Wallin, on 28 February 2008;[43]
(c)the occupational physician, Dr Malcolm Brown, on 22 July 2008.[44]
[42]See report dated 7 July 2006 contained in Exhibit B at page 12 DCB
[43]See report of 28 February 2008 contained in Exhibit B at page 15 DCB
[44]See report dated 22 July 2008 contained in Exhibit B at page 23 DCB
61 Mr Kudelka examined the plaintiff in relation to his left wrist injury suffered on 6 April 2006, and only obtained a passing history of the earlier right leg fracture. Similarly, Associate Professor Wallin examined the plaintiff in relation to his right shoulder injury giving rise to symptoms in 2007 and does not assist in the determination of the issues before the Court. That is not to say that the wrist and shoulder injuries suffered by the plaintiff have not given rise to various consequences – however for the purposes of this proceeding, the enquiry is limited as to whether or not the organic consequences as a result of the incident of injury on 29 January 2003 satisfy the narrative test.
62 Dr Brown examined the plaintiff on 22 July 2008 primarily in relation to the shoulder injury which occurred (at least symptoms) during 2007. In the course of that examination, he obtained a history from the plaintiff that he fractured “his right arm and leg in fork lift accident in 2000 and these injuries resolved completely”. The reference to the right arm and the date being 2000 would appear to be wrong.
Analysis of the Evidence
63 I find that the plaintiff during the course of his employment with the first defendant on 29 January 2003, suffered a crushing injury to his leg at which time he suffered an undisplaced slightly comminuted fracture of the tibia, which has soundly united with anatomical alignment and a very slight posterior bowing as seen on the lateral view on x‑rays. Although there were initial complaints of pain in the knee area, such complaints have largely diminished and the plaintiff continues to suffer pain and some restriction of movement in his right ankle. The impairment of the ankle, or lower right leg, is permanent and has some consequences. So much is not disputed by the first defendant.
64 The first defendant asserts that to the extent that the plaintiff suffers organic consequences as a result of the lower right leg injury and in particular the right ankle injury, such consequences do not satisfy the narrative test.
65 After a consideration of all the evidence, I make the following findings in addition to the findings made in paragraph 63:
(a)As a result of the injury on 29 January 2003, the plaintiff was off work from the date of his injury until a return on modified duties on 28 April 2003. He returned to work on full time normal duties as from 27 October 2003. At that time, Dr Lamba described him as having “recovered fully” and he was supplied a certificate dated 24 October 2003 to resume normal duties.
(b)The plaintiff was made redundant in 2007 together with other employees of the first defendant. The plaintiff gave evidence that he was coping with his work at that time.
(c)After leaving the employment of the first defendant, the plaintiff was subsequently employed by First Fleet as a truck driver, which involved loading and then delivering various food items and drinks to 7-Eleven stores and unloading such goods at the store. In particular, he was required to use a pallet jack to take the pallet off the truck and then use a trolley, loading it onto the trolley and pushing the trolley into the store. The goods on such trolley could weigh between 20 and 50 kilograms. He performed this job for about two and a half years.
(d)He then returned to the printing industry for about four months as a printer and that particular company was bought out by the first defendant and he was not offered a job. He then returned to truck driving for about two years with Hellman Logistics and Whymap and such work also involved manual handling of goods, although most of the time, the goods were unloaded and loaded by fork lift.
(e)His hours with First Fleet as a truck driver were usually from 6.00 am to about three or four in the afternoon, although over the Christmas period it could be anything from twelve to sixteen hours a day, which involved “double runs”. With his second truck driving job, he would work ten to thirteen hours from Monday to Thursday and on Friday it was always over fourteen hours.
(f)His present job with TTI Stone involves him performing a variety of labouring activities involving polishing of various slabs of stone, the use of fork lift carrying heavier pieces of stone, manually carrying lighter pieces of stone and what the plaintiff describes as a little bit of everything. He accepted that he enjoys his job very much, although he is on his feet most of the day.
(g)For the financial year ending 30 June 2010, he earned $53,763 gross. For the year ending 30 June 2005, he earned $44,980 gross; for the year ending 30 June 2006, $47,062; for the year ending 30 June 2007, $38,857; for the year ending 30 June 2008, $30,686; and for the year ending 30 June 2009, $41,688.[45]
(h)On balance, I have formed the view that he has been unable to continue playing volleyball since his ankle injury, although the statement made by him on 5 March 2008,[46] states that he continued playing volleyball up until his shoulder injury, in September 2007. I tend to the view that given the nature of volleyball and in particular his assertion that he was a “spiker” which required him to jump, that it be inherently unlikely that he could have continued with such activity after the ankle injury. Furthermore, I note that when the plaintiff was examined by Mr Shannon on 2 August 2004, he gave a direct history that prior to the accident he used to play volleyball and that now he was unable to jump. It is not clear on the evidence what the intentions of the plaintiff were in relation to his future life as a volleyball player (absent his ankle injury) given the advent of his young family.
(i)I also accept that he was generally a fit and active person who regularly attended a gym, but note that such gym activities, at least in relation to his upper body, continued until about one year prior to the hearing. The cessation of such gym activities occurred because of family responsibilities, bearing in mind he had two young children. He also gave evidence that he rides both a pushbike on the open road and also rides a motor bike. Furthermore, he undertakes the hobby of reconditioning old cars which he purchases, which involves work on both the outside and inside the vehicles.
(j)I accept that he has some symptoms of pain in and around the right ankle which sometimes results in the ankle being swollen. Furthermore, I accept that his sleep may “occasionally” be interfered with by ankle pain.
(k)The evidence in relation to his cessation of golf playing was not impressive. Whereas he admitted to playing some golf – on his evidence about four times – after the occurrence of the ankle injury, he has subsequently sold his golf clubs because he did not like being involved in golf matches where he travelled by golf buggy and friends would walk the course. On the other hand, his wife in her evidence, suggested that the plaintiff had to give away golf because of the impact on the right leg because of the stance that he would take to play a golf shot. Given that the plaintiff is frequently on his feet both in his present employment, performing labouring duties, and indeed given the type of work he undertook when driving trucks, I consider the plaintiff would have the capacity to play golf if he chose to travel in a buggy, rather than walk the course.
[45]See Exhibit D at page 82 PCB
[46]See Exhibit C at page 49 DCB
66 After consideration of all the evidence, it may be that the totality of the evidence reveals that the plaintiff has suffered and continues to suffer “pain and suffering consequences which are both marked and significant”, but the Court is not persuaded these consequences can be fairly described as being more than “significant” or “marked” or at least being “very considerable”.
67 Such a conclusion has been reached for the following reasons:
(a)The nature of his right leg injury did not impact upon the capacity of the plaintiff to perform the type of work that he was performing at the time of the injury. Indeed, the unequivocal evidence is that he resumed full time normal employment in October 2003 and continued in such employment until made redundant in 2007.
In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[47] Chernov JA stated:
[47][2006] VSCA 292
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’.”[48]
[48]Sumbul (op cit) at paragraph [24]
These words were qualified in Stijepic v One Force Group Aust Pty Ltd & Anor,[49] wherein Ashley JA and Beach AJA stated:
[49][2009] VSCA 181
“ … it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”[50]
[50]Stijepic (op cit) at paragraph [47]
Furthermore, the plaintiff has engaged in reasonably strenuous employment as a truck driver and continues to engage in reasonably strenuous employment as a labourer in his present employment. Furthermore, he has given evidence that he enjoys his present employment and a perusal of the wage records would suggest that he is now better off than in any of his earlier employments.
(b)The plaintiff has not undergone any treatment whatsoever for his lower right leg and ankle since late 2004. Although accepting that the plaintiff has some symptoms, I do not consider that his situation involves the “endurance of permanent daily pain requiring frequent medication” which would raise a real prospect of the consequences being “very considerable”.[51]
(c)The only doctor who suggests that the plaintiff may require an ankle fusion due to “arthritis in the right ankle” was the vascular physician, Dr Blombery. No orthopaedic surgeon has advanced such a view.
I put particular weight on the views of the orthopaedic surgeon, Mr Shannon, who has had the advantage of examining the plaintiff on 2 August 2004 and 28 November 2011. He notes that physical findings from one examination to the other are not “significantly changed”. In particular, and bearing in mind that he was aware of the bone scan arranged by Mr Khan on 28 September 2011, he states that the plaintiff “does not really have clinical evidence of osteoarthritis and the nature of the fracture is not such that it would be likely to produce osteoarthritis”. Furthermore, neither Mr Lugg nor Dr Sutcliffe suggest that osteoarthritis is or may be a problem in the future.
(d)It was submitted on behalf of the plaintiff that the evidence given by the plaintiff and indeed the observations made by the wife to the effect that his pain was increasing over the last few years does not appear to be borne out by any of the medical examinations. As noted, although not precisely on point, Mr Shannon considered that the clinical findings in 2011 were similar to those in 2004. I also note that Mr Lugg obtained no history of any deterioration in symptoms and indeed suggested that there appeared to be some improvement in the severity of symptoms and further considered that there may be some mild improvement in the severity of pain in the future.
(e)Notwithstanding the complaint by the plaintiff that his ankle swells frequently, no doctor on examination found swelling. (Although Mr Lugg thought there was some swelling of the lower leg due to fluid).
(f)Although I do accept that he has some pain symptoms in the right ankle, these do not constantly interfere with his sleep, interfere in any material way in his capacity to perform employment or indeed to pursue such activities as bike riding or motorbike riding. He is able to walk some distance but is unable to run and, as I have already indicated, can no longer pursue the activity of volleyball. Although accepting that he clearly had some interest in sporting activity, and to some extent this has been curtailed by his inability to continue performing volleyball, he is still able to perform a variety of activities in the gymnasium (not involving his legs) if he so desires.
[51]See Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph [91]
68 In considering what the plaintiff has lost, it is relevant to consider also what he has retained and to that end, I am of the view that he has retained a reasonably wide capacity for employment as he has demonstrated and that he has the capacity to engage in some outdoor pursuits such as bike riding and motor cycle riding and gymnasium work. He also continues to engage in his hobby of reconditioning cars.
69 Furthermore, given the complaints of pain made by the plaintiff and his ability to perform certain activities, I am conscious of the dicta of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[52] wherein he stated:
“I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[53]
[52][2008] VSCA 260
[53]Dwyer (op cit) at paragraph [3]
70 However, as pointed by Tait JA in Sutton,[54] the question must always be “What is the plaintiff stoical about?” It always remains necessary to establish that the plaintiff is stoical about pain and suffering that is more than “marked” or “significant”.
[54](op cit) at paragraph [81]
Conclusion
71 Accordingly, I dismiss the application.
72 I will hear the parties on the question of costs.
ANNEXURE “A”
The plaintiff tendered the following material:
(a)Exhibit 1 – Affidavits of the plaintiff sworn on 3 August 2010 and 22 September 2011; affidavit of Mrs Alison Juhasz, sworn on 21 September 2011; and the affidavit of Mr Damien Nugara, sworn on 30 September 2011 – all found at pages 19-23, 30-36, and 40(c)-40(e) of the Plaintiff’s Court Book (“PCB”).
(b)Exhibit 2 – Mayne Health Diagnostic Imaging x-ray report of the right tibia dated 17 March 2003 at page 41 PCB.
(c)Exhibit 3 – Medical reports of Dr G Lamba dated 26 August 2010 and 11 January 2011; of orthopaedic surgeon, Mr Michael Khan, dated 5 May 2011 and 18 October 2011, of physician, Dr Peter Blombery, dated 1 September 2011; of occupational physician, Dr Helen Sutcliffe, dated 30 April 2011; two reports from Dr Brand of the Northern Hospital dated 21 May 2003 and 23 August 2010; and a report from Mr Roger O’Toole for the Northern Hospital dated 15 July 2003 – all such reports being at pages 42-79 PCB.
(d)Exhibit 4 – Reports of the orthopaedic surgeon, Mr Michael Shannon, dated 3 August 2004 and 2 December 2011; report of orthopaedic surgeon, Mr Peter Lugg, dated 6 December 2011 – such reports being at pages at 26a to 26h of the Defendant’s Court Book (“DCB”).
The first defendant tendered the following material:
(a)Exhibit A – Worker’s Claim Form dated 30 January 2003; Employer Claim Form dated 7 February 2003; WorkCover certificates of capacity dated 31 January 2003 and 24 October 2003 – such material being at pages 1-9 DCB.
(b)Exhibit B – Medical Reports from the orthopaedic surgeon, Mr Peter Kudelka, dated 7 July 2006; from the occupational physician, Associate Professor Maurice Wallin, dated 28 February 2008; from the occupation physician, Dr Malcolm Brown dated 22 July 2008 – such reports being at pages 12-26 DCB.
(c)Exhibit C – Particulars of injured worker dated 29 January 2003; warning to the plaintiff dated 15 November 2006; termination of the plaintiff dated 19 March 2007; statement of the plaintiff dated 5 March 2008 – such material being at pages 43-46 and 49-53 DCB.
(d)Exhibit D – Summary of earnings for the plaintiff for the years 30 June 2001 to 30 June 2010 found at page 82 PCB.
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