Kemeridis v TAC
[2024] VCC 2079
•20 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-05459
| ANNA KEMERIDIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2024 | |
DATE OF JUDGMENT: | 20 December 2024 | |
CASE MAY BE CITED AS: | Kemeridis v TAC | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2079 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – consequential injury – causation – range – consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries and Anor v Poljak (1992) 2 VR 129; Mobilio v Balliotis [1988] 3 VR 833; Lexa v Transport Accident Commission [2019] VSCA 123; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Cropp v Transport Accident Commission [1998] 3 VR 357
Judgment: Leave refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie with Ms K Liu | Carbone Lawyers |
| For the Defendant | Mr A Clements KC with Ms E Golshtein | HWL Ebsworth Lawyers |
HIS HONOUR:
1The plaintiff, Anna Kemeridis, was injured on 26 February 2021 when a bus in which she was travelling stopped suddenly, causing her to fall and fracture her left heel (“transport accident”).
2When she presented to the Emergency Department of the Western Hospital later that day, the registrar recorded a history of Ms Kemeridis falling backwards on a bus, hitting her left arm on the way down and twisting her left ankle.[1]
[1] Defendant’s Court Book (“DCB”) 33
3Although there is no record of any discrete left hip or knee injury in the incident, Ms Kemeridis says that because of her altered gait since, she has suffered consequential injuries to her hip in particular, and also experienced left knee symptoms.
4Ms Kemeridis seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“Act”) to recover damages for personal injuries for the serious long-term impairment of a body function suffered as a result of the accident. The body functions relied on are the left leg (including the hip, knee and ankle), alternatively the left foot and hip, pursuant to sub-paragraph (a) of the definition of “serious injury”.
5Ms Kemeridis bears the onus of establishing that:
(a) she suffers from an ongoing compensable injury;
(b) any resulting impairment is permanent; and
(c) any injury as a result of the transport accident is a “serious injury”.
6The question of “serious injury” is determined by whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequence, “when judge by comparison with other cases in the range of possible impairments or losses, (can) be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2]
[2] Humphries and Anor v Poljak (1992) 2 VR 129 at 140; see also Mobilio v Balliotis [1988] 3 VR 833
7The issues for determination in this application are as follows:
(a) whether Ms Kemeridis suffers from any ongoing accident-related aggravation of an underlying condition of osteoarthritis in her left hip;
(b) whether any impairment consequences of injuries to her left ankle and hip may be aggregated for the purpose of determining “serious injury”; and
(c) whether the consequences of any accident-related condition meet the threshold of “serious”.
8Ms Kemeridis relied on three affidavits sworn 29 June 2022, 15 October 2024 and 14 November 2024. The application was also supported by an affidavit of her sister, Sophie Kalin, sworn 15 November 2024.
9For the reasons which follow, the application is refused.
Background
10Ms Kemeridis was born in May 1975 in Australia. She is single and lives alone.
11After completing Year 12, her work experience involved retail and customer service-type roles including working as a cinema usher, waitressing and as a retail assistant. She commenced employment with Watch Works at Highpoint Shopping Centre in 2003.
12It is not in dispute that at the time of the transport accident, Ms Kemeridis likely suffered from advanced, severe osteoarthritis in her left hip.
13Prior to the transport accident, in 2020, Ms Kemeridis fell on her left side onto bitumen when she was assaulted in a carpark in Footscray. Since then, she has had pain and stiffness in her left groin,[3] which she associates with her left hip. This pain arises when she walks a lot, or wears certain shoes.[4]
[3] Millenium Clinic notes, DCB 47
[4] Transcript (“T”) 17
14She also suffered from severe arthritis in her left knee,[5] unrelated to the transport accident.
[5] DCB 49
The transport accident
15After alighting the bus with the assistance of the bus driver, Ms Kemeridis called a friend to drive her to hospital. She attended the Western General Hospital Emergency Department where she underwent an x-ray on 26 February 2021.
16The Western Hospital notes record that Ms Kemeridis had a “swollen left ankle, more so lateral malleolus, pedal pulse present … neurovascularly intact, no pain across foot itself”.[6] Her diagnosis was an ankle sprain or strain. She was advised to use crutches and Tubigrip, and to take regular Panadol four times a day and Nurofen three times a day.
[6] DCB 33
17Over the next few days, Ms Kemeridis experienced worsening pain on her left foot.
18On 3 March 2021, Ms Kemeridis was recalled to the hospital. She was advised that in fact her x-ray revealed a fractured left calcaneal.[7] Although surgery was not indicated, her left ankle was placed in a plaster cast, and she was sent home on crutches.
[7] DCB 34
19Ms Kemeridis’ foot remained in its cast until mid-April 2021. During this time, Ms Kemeridis stayed with her sister because her pain restricted her from climbing the two flights of stairs to access her apartment. Upon removal of the cast, Ms Kemeridis wore a moon boot for a further two to three months.
20On 19 April 2021, Ms Kemeridis consulted her general practitioner, Dr Adugna Loransios.[8] She reported to Dr Loransios that post cast removal she was unable to walk to due to pain in her left leg.
[8] DCB 46
21On 28 April 2021, Ms Kemeridis had a CT scan of her left calcaneum which showed “ununited comminuted fracture with intra-articular extension and involvement of the sustentaculum tali maintained in near anatomical alignment” and “severe disuse osteopenia”.[9]
[9] Plaintiff’s Court Book (“PCB”) 26
22On 20 June 2021, Ms Kemeridis consulted orthopaedic surgeon, Mr Audi Widjaja, due to her continuing left foot and ankle pain. Mr Widjaja recommended further non-operative management including physiotherapy.[10] No report from Mr Widjaja was tendered.
[10] PCB 56
23An x-ray and CT scan of Ms Kemeridis’ left ankle and foot on 3 July 2021 showed pronounced generalised osteopenia with reduction bone in density, and a mild deformity of the anterior half of the calcaneus and residual cortical step of the calcaneus. The CT scan confirmed a previous oblique fracture of the calcaneus in the posterior body of the calcaneus, quite well united.[11]
[11] PCB 27
24Ms Kemeridis had a further MRI scan of her left ankle in July 2021 which showed:
“1. Vertical fracture line of the mid body of the calcaneus extending to the subtalar joint with lateral displacement of the inferior fracture fragment resulting in subfibular impingement.
2. Geographic signal abnormality with minimal marrow oedema throughout the calcaneus, typical of chronic avascular necrosis.
3. Diffuse marrow oedema in the remaining tarsal bones consistent with disuse osteopenia.
4. Previous injury to the anterior talofibular and calcaneofibular ligaments with tendinosis of the peroneus longus and brevis and probable split tear of the peroneus brevis.
5. Images are degraded by motion artefact.”[12]
[12] PCB 29
25Ms Kemeridis’ affidavit evidence included that in or about February 2022, she experienced pain in her left groin at certain times. Her affidavit did not mention the fall in 2020 and ongoing left groin pain “from time to time” since.[13] Similar to the assault-related pain, following the transport accident the left hip pain now “comes and goes” when walking, and wearing different shoes. She does not require medication for this pain.[14]
[13] T16
[14] T19, Line (“L”) 23
26Ms Kemeridis was referred to physiotherapist, Ms Eliza Osborn, around this time. Ms Osborn diagnosed a left comminuted calcaneal fracture and exacerbation of left hip osteoarthritis, likely due to her altered gait pattern.[15] In Ms Osborn’s opinion:
“Due to the extensive degenerative changes within Anna’s left hip it is likely she will need a total hip replacement in the future.
…
Anna will likely have ongoing pain throughout her left foot and ankle due to the chronicity of her injury. She will require an ongoing strengthening regime to maintain good function of her lower limb …”[16]
[15] PCB 33
[16] Undated report, PCB 34
27Ms Kemeridis no longer has physiotherapy, as the TAC ceased its funding. She does some ongoing home-based exercises, on an inconsistent basis, for up to 45 minutes.
28Although, there was objective evidence of wasting of the left calf in 2021, Dr Meena Mittal noted there was no muscle wasting in the left lower limb in August 2024.[17]
[17] PCB 80
29In January 2022, Ms Kemeridis returned to her employment at Watch Works, initially two days per week, returning to full-time hours without restriction by April 2022.[18] During this period she was aware of pain in her left groin.
[18] T23, L24-29
30On 28 December 2022, Ms Kemeridis underwent an MRI scan of her left hip which showed signs of advanced osteoarthritic changes to her left hip joint with an associated effusion, synovitis and psoas effusion.[19]
[19] PCB 31
31To date, Ms Kemeridis has not undergone any surgical intervention for the injury to her left foot or the osteoarthritis in her left hip.
32In January 2023, Ms Kemeridis’ role was made redundant at Watch Works when the business went into administration. This was a very stressful time for her as she was not able to find work for a period of nine months.
33In October 2023, Ms Kemeridis re-commenced work on a full-time basis at the same store, although employed by a different company, resuming her previous duties of watch repairs, key cutting and engraving.
34Upon referral from her general practitioner, Ms Kemeridis commenced treatment with Dr Christopher Woodgate, pain specialist, in November 2023. At the time she reported pain in her left heel and thigh between 7 and 8 out of 10, and her “terrible” sleep was a major problem for her. The range of motion in her ankle was normal, with use of stairs at home causing pain in her left foot. Dr Woodgate did not record any history of left hip pain, or tenderness upon examination, and diagnosed ongoing left foot pain of nociceptive and neuropathic origin, with “a potential” for her foot to develop secondary arthritis. In his opinion, substantial improvement in her condition is unlikely. Ms Kemeridis did not attend her April 2024 appointment for review and to renew her Amitriptyline script for “pain, sleep and mood”.[20] In her oral evidence, Ms Kemeridis said she ceased Amitriptyline very recently as she did not think it was doing anything, save for occasionally helping with her sleep.[21]
[20] PCB 40
[21] T20, L29
35While Ms Kemeridis had treatment from psychologist, Ms Marg Saffron, for symptoms of anxiety and depression, her last treatment was in June 2023 when she was not working. At that time, Ms Saffron’s opinion as to prognosis was as follows:
“Anna is keen to recover and her usual everyday attitude is to enjoy life. She will recover well if she can gain meaningful employment that eases her financial worries, that does not exacerbate her leg pain, and that allows her to feel valued and respected as a competent and skilled person.”[22]
[22] PCB 38
36Since that time Ms Kemeridis has returned to work full-time, and enjoys her work. There is no up-to-date report from Ms Saffron.
What injury did Ms Kemeridis suffer in the transport accident?
37It is not in dispute that as a result of the transport accident Ms Kemeridis suffered a comminuted fracture involving the calcaneus, which extended to the subtalar joint. It is unclear whether there was any disruption of the subtalar joint, which is an indicator of likelihood of development of arthritis.
38Ms Kemeridis was examined by a number of doctors for the purposes of this application.
39Pain physician, Dr Meena Mittal’s, report of June 2023 records her diagnosis as follows:
“1. Persistent pain in the left ankle and heel secondary to a comminuted calcaneal fracture, this is chronic in nature. 2. Left hip pain is secondary to left hip joint osteoarthritis. I believe that this is related to the transport accident. Ms Kemeridis noticed this pain when she commenced mobilising more effectively after removal of the moon boot. I believed that as a result of the accident as well as an antalgic gait pattern, there has been an aggravation of pre-existing asymptomatic hip joint osteoarthritis.”[23]
[23] PCB 65
40There is no record of any immediate hip pain or injury in the transport accident, and it had been symptomatic since the assault in 2020, so Dr Mittal’s 2023 opinion as to causation concerning the left hip, confirmed in her report of 19 August 2024,[24] is of little weight.
[24] PCB 76
41In Dr Mittal’s opinion, Ms Kemeridis will “continue to have some pain and its associated dysfunction in the left heel and ankle well into the foreseeable future.”[25]
[25] PCB 83
42In orthopaedic surgeon Mr Raf Asaid’s opinion, the injury has resulted in mild restrictions, and the intra-articular nature of the fracture places Ms Kemeridis at an increased risk of developing post-traumatic arthritis. This risk was not quantified, and qualified as only a “chance”, with no indication as to when it might possibly eventuate.
43His opinion as to increased risk of developing post-traumatic arthritis in the future is based on the intra-articular nature of the fracture extending to the subtalar joint, and does not set out any other reasoning. Likewise, the diagnosis of aggravation of left hip osteoarthritis was not supported by any explanation.[26]
[26] PCB 73, report dated 13 August 2024
44Mr Asaid’s view about progression of the injury was speculative, and unconvincing:
“… it is difficult to comment on the probability of surgery being required as this is largely dependent on the severity of the post-traumatic arthritis and her symptoms. In this case, in the event that she develops/has developed post-traumatic subtalar joint arthritis, the most definitive treatment would generally be a subtalar joint fusion.”[27]
[27] PCB 95
45Ms Kemeridis did not mention her hip symptoms to Mr Asaid in the course of his examinations in 2022 or 2023. It was not until August 2024 that she reported pain in her left hip, “which she attributes to her altered gait pattern”.[28] Mr Asaid by that time had been supplied with Dr Mittal’s opinion in relation to the left hip. Ms Kemeridis did not disclose the 2020 assault and its sequelae to Mr Asaid either, which reduces any weight I may place on his opinion that she suffered an aggravation of left hip osteoarthritis in the accident.
[28] PCB 70
46In April 2023, orthopaedic surgeon, Mr Michael Dooley, reported as follows:
(a) following recovery from Ms Kemeridis’ form of calcaneal fracture, “most patients would notice some intermittent heel and ankle pain with prolonged standing on a hard surface and with walking reasonable to long distances”, with some swelling after prolonged standing;
(b) there was a low risk of subsequent post-traumatic osteoarthritis, because “there was no significant disruption of the subtalar joint in association with the injury”;[29] and
(c) she had retained capacity for light physical work, including her pre-injury employment.
[29] 11 April 2023 report, DCB 10
47There is no record of any complaint of symptoms in the left hip in Mr Dooley’s first report.
48Mr Dooley’s subsequent report of 6 November 2024[30] followed review of plain x-rays of the left foot dated 23 February 2022 and the left hip dated 15 June 2022, the MRI of the left hip dated 28 December 2022 and a complete set of clinical records and reports from treating doctors.
[30] DCB 26
49Based on the MRI investigation and reported plain x-ray findings, in his view:
(a) Ms Kemeridis’ left groin pain relates to the osteoarthritis of her left hip which had been present for some years, and
(b) her left hip symptoms are not related to the transport accident.
50His November 2024 report states:
“It is most likely that the left groin pain that Ms Kemeridis was complaining of in February 2022, relates to osteoarthritis of her left hip. … Based on all of the information available to me, Ms Kemeridis has constitutional, naturally occurring degenerative osteoarthritis affecting her left hip joint.
… it is likely that she has at least early osteoarthritis of her right hip joint. In the early phases of its natural evolution, osteoarthritis does not cause symptoms. As the articular cartilage of the hip joint decreases, pain develops. True osteoarthritic hip pain is felt in the groin and often the anterior thigh with referred pain into the knee. Pain can be noted when this underlying condition has heightened effect, secondary to placing increased load upon the hip joint, e.g. prolonged standing, a lot of walking, the adoption of an awkward bent posture etc. Initially symptoms tend to be intermittent, but, in time as further loss of articular cartilage occurs, they become more consistent”
It is probable that the fall in early 2020 heightened and caused symptoms in [the left hip]
…
I believe that symptoms in relation to Ms Kemeridis' osteoarthritic left hip have evolved in the expected way for constitutional degenerative osteoarthritis. There will be times during Ms Kemeridis' working life and everyday life where the underlying condition might be caused to have heightened effect. The increasing symptoms in time, relate to the naturally occurring condition. I do not believe that this condition has been aggravated, either directly or indirectly in the motor vehicle accident of February 2021.”[31]
[31] DCB 26
51I prefer Mr Dooley’s reasoned opinion to that of the bare statement of Mr Asaid, without the benefit of the history of symptoms prior to the transport accident. Mr Dooley undertakes a careful analysis of the progression of osteoarthritis, and his views in terms of work capacity and residual symptoms accord with Ms Kemeridis’ evidence.
52He also states his opinion that the injury is not associated with the risk of post-traumatic osteoarthritis:
“The fracture involving the calcaneum is said to have extended from the posterior body region anteriorly. There was no disruption of the subtalar joint. Therefore, the injury is not associated with a risk of post-traumatic osteoarthritis of the subtalar joint in time.”
53I accept his opinion that there is no risk of development of post-traumatic osteoarthritis in the left ankle. Mr Dooley had regard to all of the available investigations and, unlike Mr Asaid, makes credible findings based on the level of disruption of the subtalar joint.
54In June 2023, consultant psychiatrist, Dr Dianne Neill, diagnosed a chronic adjustment disorder with anxiety and depressed mood of mild to moderate severity; and alcohol use disorder (pre-existing and entirely unrelated), of at least moderate severity. In her opinion, the adjustment disorder is predominantly attributable to the claimed injury with some contribution for recent redundancy and job search stress.
55In September 2024, Dr Saji Damodaran also reported that Ms Kemeridis is suffering from an adjustment disorder with mixed anxiety and depressed mood, along with alcohol use disorder, and a chronic pain disorder associated with the general medical condition.
56I prefer the more optimistic view of Ms Saffron to Dr Damodaran as to the overall impact in terms of prognosis of this condition. The treating psychologist has formed her view over many consultations. Dr Neill’s opinion is of lesser weight, informed as it was by the redundancy and job search stress, which are no longer relevant.
Evidence as to consequences
57Ms Kemeridis swore three affidavits in support of her application, setting out the following consequences of her left ankle and hip condition:
(a) constant pain in her left ankle;
(b) the pain is aggravated with prolonged standing and walking, and she finds it difficult to walk up and down stairs, or on uneven surfaces;
(c) swelling, in particular the back of her heel;
(d) she now walks with a mildly altered gait;
(e) she has developed secondary pain to her left knee, left hip and groin. Sometimes she gets a shooting pain to her left groin and left hip when she takes a step;
(f) disturbed sleep;
(g) difficulty doing heavy household chores, such as cleaning the shower and bathroom floor, lifting heavy washing, moving heavy furniture and mopping;
(h) prior to the accident, she used to walk to work at least twice a week;
(i) she used to enjoy dancing as a form of exercise but can no longer do this due to pain in the heel, which feels like a burning sensation;
(j) her level of socialisation has reduced. Outside of work, she is too tired to socialise and no longer goes out as much;
(k) she is no longer able to squat or crouch because of her left ankle pain;
(l) she can no longer wear high platform shoes;
(m) she used to enjoy cooking for family and friends either at her home or at their homes, but she can no longer stand for long enough periods to enjoy cooking; and
(n) she is no longer as confident with her work as she was previously, because engraving work is difficult for her.
58Despite an invitation to do so in cross-examination, Ms Kemeridis was unable to quantify the level of pain in her left foot on a scale, as there is no “normal” and she “cannot put a number to it”.[32]
[32] T28; T30, L16-17
59Her left knee and hip trouble her only occasionally at work.
60Ms Kemeridis’ evidence is supported, to a limited extent, by her sister, Sophie Kalin.[33]
[33] Exhibit B: Redacted affidavit of Sophie Kalin sworn 15 November 2024
61Ms Kemeridis stayed with Ms Kalin for approximately six months following the transport accident. More recently, Ms Kemeridis has complained to her about ongoing pain and stiffness in her ankle when standing for prolonged periods at work.
62According to Ms Kalin, Ms Kemeridis used to be a social person and enjoyed attending concerts or going out dancing. She says now her sister rarely engages in these activities.
Findings as to consequences
63I accept Ms Kemeridis did her best to provide a frank account of her circumstances in the witness box.
64Although there was no attack on Ms Kemeridis’ credit, the objective evidence is important, as always. I have considered all of the evidence.
65I reject the submission that the totality of the impairment consequences of the left hip, knee and ankle may be aggregated on the basis that the left leg comprises a single body function. In any event, as a result of my findings below this consideration does not arise.
66I accept Mr McCredie’s submission, in accordance with the authority of Lexa v Transport Accident Commission,[34] that any permanent aggravation of the underlying osteoarthritis of the left hip – if it existed – in the months and years that followed the left knee injury, due to her mild antalgic gait, would be a consequence of the initial injury. Accordingly, any impairment consequences of the impairment of the hip may be aggregated with those of the left ankle/foot.
[34][2019] VSCA 123
67There is very considerable doubt, however, in relation to the causation issue in terms of the left hip. In the end, I am not satisfied the left ankle injury has produced a long-term aggravation of the underlying severe osteoarthritic condition in the left hip.
68Clinical notes tendered record, and Ms Kemeridis conceded, that she was assaulted and fell in a carpark in Footscray in 2020; and since then, she has had ongoing pain in her left groin and hip area. Nevertheless, as her counsel pointed out, she had no treatment, no time off work, and the pain was not constant.
69It is difficult to overcome my impression of a woman who experienced mild left hip pain since an assault in 2020, and continues to do so after the transport accident. As was the case prior to the transport accident, she has not required time off work in relation to the hip and requires no treatment or medication for her symptoms. These findings do not support the application based on aggravation of underlying osteoarthritis, or that any ongoing symptoms in her left hip are “significant”.
70It is not in dispute that Ms Kemeridis suffered from severe pre-existing osteoarthritis in her left hip, and I reject the submission that the left hip was asymptomatic prior to the transport accident. The evidence establishes that her hip had been symptomatic since the assault and fall in 2020. Other than Mr Dooley, no doctor had a history of the 2020 assault when Ms Kemeridis fell onto the bitumen and had symptoms since. For that reason, I prefer his opinion.
71Although I accept her evidence that since the transport accident the pain in her left groin and hip area is now more frequent, Ms Kemeridis has not established that any aggravation or increase in left hip pain since the transport accident is significant, or causally related to it. It does not impact her work, and the pain is similar to pain which she had experienced since the 2020 assault. To the extent she now experiences discomfort most days, with episodes of shooting pain, I accept Mr Dooley’s evidence this is more likely to reflect the progression of the underlying and severe condition, rather than because of a discrete consequential injury as a result of the transport accident.
72The evidence in relation to the left knee is scant, and certainly not sufficient to establish serious injury. Ms Kemeridis herself said she did not wish to make a “big deal” about her knee, as it is less of a concern for her than her ankle and hip.[35]
[35] T22
73The injury to the left ankle was initially significant, was slow to heal, resulted in 12 months off work and required prescription pain medication. Since then, fortunately, Ms Kemeridis has returned to full-time employment with very little restriction.
74In cross-examination, Ms Kemeridis said standing for long periods of time produced pain in her left ankle, but not her hip, and walking long distances was more likely to give rise to pain in her left hip.
75I accept Ms Kemeridis’ evidence that she sometimes has pain when standing for long periods at work. Her work is variable in that she can sit or stand, but she is able to stand all day if required. Sometimes her work does not aggravate her symptoms. This level of discomfort at work is a considerable consequence, but certainly not “very considerable” or “more than marked”.
76While she has a mild antalgic gait and pain in her left ankle most days, there are pain-free days.
77Ms Kemeridis relies upon the consequence of no longer walking to work twice a week. She does not have a driver’s licence and then, as now, uses public transport and walking to complete her activities. She can still walk up to 5 kilometres, but it takes her longer.[36] She has only walked the 4 kilometres to work once since the accident.[37] Previously she would sometimes walk, other times catch the bus. Her explanation in court was that she no longer walks to work because it is “too tiring”, rather than due to pain or restriction. In re-examination, her evidence included that it was not her left ankle but shooting pain in her hip which was the problem.
[36] DCB 7
[37] T25, L4
78In terms of what has been retained,[38] Ms Kemeridis still walks to the library, which is 15 to 20 minutes or so away, once or twice a fortnight. She walks to the local shops, which are 5 minutes away. There is no indication that, provided she wears appropriate footwear, she is unable to ambulate and complete her activities, notwithstanding some discomfort. Her domestic tasks are minimally affected.
[38]See Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260, at paragraph [27]
79On balance, having regard to all of the evidence, Ms Kemeridis’ restriction in walking is significant to her, but not to a level more than “marked”. There is an issue also in terms of disentangling because, on Ms Kemeridis’ own evidence, at the very least in part this incapacity relates to her hip, which is non-compensable.
80Ms Kemeridis has a longstanding history of alcohol abuse, supported by the treating doctors’ notes, which has not been affected by the injury. This was conceded by her counsel. I reject the submission that she uses alcohol in lieu of pain medication for her left foot.
81I accept that Ms Kemeridis has a mild adjustment disorder as a result of her physical injury, which the TAC accept has resulted in some ongoing impairment.[39] This factor needs to be weighed in the context of Ms Kemeridis receiving no treatment, not requiring medication, and her longstanding daily abuse of alcohol which affects her sleep.
[39] T12
82While Ms Kemeridis’ evidence included her sleep has been disrupted, this pre-dated the transport accident. In cross-examination, Ms Kemeridis said her sleep is occasionally affected by her left groin, and otherwise she is not sure why she wakes up at night. Her affidavit evidence included an assertion that she had sleep difficulties due to left ankle pain; and in re-examination she stated that she might be woken twice a week by pain. This evidence is difficult to reconcile.
83Ultimately, I find that Ms Kemeridis’ sleep is minimally affected by her left ankle pain. Her sleep issues are either unrelated to her accident, or not of a significant nature. I make this finding on the basis of her evidence in court, being somewhere between being woken twice a week due to ankle pain, to there being no link between her waking and the transport accident.
84While Ms Kemeridis’ evidence included she has stopped dancing due to pain in her heel, she has danced since the accident, including at a wedding and a nightclub. Her evidence in re-examination was that she experienced pain mainly due to the platform shoes she was wearing. I accept her choice of footwear affects her capacity to enjoy herself dancing. While a matter of some importance to her, no longer being able to wear high platform shoes for dancing is not a “very considerable” consequence.
85The evidence does not establish that Ms Kemeridis is likely to suffer from osteoarthritis in the left ankle. Mr Dooley was careful to set out his analysis, which I accept.
86I do not take into account the prospect of surgery in assessing the impairment consequences of the left ankle injury.
87There are employment restrictions as set out in the opinions of Mr Asaid and Dr Mittal. For example, Mr Asaid says Ms Kemeridis may experience some restriction in relation to activities involving pushing, pulling or lifting; kneeling, squatting or crouching; prolonged walking or standing; and using steps or ladders.
88In practical terms, any restrictions have had no effect on Ms Kemeridis’ employment save that she is less confident in performing engraving tasks, as she is required to place weight on her left foot in the engraving process. She previously enjoyed this part of her job. Ms Kemeridis’ capacity for and enjoyment of her pre-injury employment is otherwise unaffected.
89The medical evidence overall is that she is fit for her pre-injury employment and otherwise has the capacity to perform suitable employment in a full-time capacity.
90There is a suggestion[40] that Ms Kemeridis may suffer some pecuniary disadvantage into the future if she were to lose her current job, because of the restrictions placed upon her as a consequence of her injury. Although in theory I accept this might be a relevant factor, in Ms Kemeridis’ circumstances it is not a significant consequence because, four years after the incident, she is engaged in stable full-time employment. There is no evidence this type of work might not be available with another employer.
[40]See Cropp v Transport Accident Commission [1998] 3 VR 357
91Ms Kemeridis presently receives no treatment for her injury, takes no medication, her sleep is only minimally disrupted, and her discomfort upon walking and dancing appears to be related substantially to the footwear she is wearing or her left hip rather than her left ankle symptoms.
92Without a driver’s licence, she no longer walks to work, but is still able to walk as required and work full-time, despite some pain and discomfort. There is possibly a low but probably no risk of development of osteoarthritis in her left ankle, with no possibility of surgery indicated.
Conclusion
93I have a deal of sympathy for Ms Kemeridis but, nevertheless, it is her burden to establish on the evidence she has reached the “very considerable” standard.
94Having regard to the range of cases, including those that do not come before the court, ultimately I am not persuaded that the consequences of the injury to the left ankle, even including a consequential injury to the left hip, individually or in combination, rise to the mark of at least “very considerable”.
95The application is dismissed, with costs.
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