Ki v Adecco Industrial Pty Ltd and Victorian WorkCover Authority
[2010] VCC 478
•13 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01235
| STEVEN KI | Plaintiff |
| v | |
| ADECCO INDUSTRIAL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 May 2010 |
| DATE OF JUDGMENT: | 13 May 2010 |
| CASE MAY BE CITED AS: | Ki v Adecco Industrial Pty Ltd & Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0478 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – whether the pain and suffering consequences of an injury to the left ankle were least very considerable?: section 134AB (37)(a) and (38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with | Ryan Carlisle Thomas |
| Mr J Fitzpatrick | ||
| For the Defendants | Mr P Jewell SC with | Lander & Rogers |
| Ms E McKinnon | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") to bring proceedings to recover damages for injury suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr J Mighell, SC appeared with Mr J Fitzpatrick of counsel for the plaintiff and Mr P Jewell, SC appeared with Ms E McKinnon of counsel for the defendants.
4 The body function which the plaintiff says has which has been lost or impaired is his left ankle.
5 The following evidence was adduced during the hearing.
(a) The plaintiff gave evidence and was cross-examined. (b) The plaintiff tendered his Court Book ("PCB"), pages 22-91C: Exhibit A. (c) The defendants tendered their Court Book ("DCB"), pages 1-48: Exhibit 1. 6 The application is brought under the definition of “serious injury” contained sub-s.(37)(a) of the Act which requires the plaintiff to prove that he has suffered a "permanent serious impairment or loss of a body function".
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c)
Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which when judged by comparison with other cases in the range of possible impairment or losses of a body function may fairly be described as being more than "significant" or "marked" and as being as least "very considerable".
(d)
Sub-s.(38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of "serious injury" and not otherwise.
(e)
In conformity with Barwon Spinners Pty Ltd and Others v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the "very considerable" test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] (2005) 14 VR 622, at paragraph 11
8 I am required by s.344AE of the Act to give detailed reasons which are as extensive and complete as the court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
9 The plaintiff was born on 5 September 1977 in Cambodia. He arrived in Australia in 1994 with his family via a refugee camp and New Zealand. He pursued a variety of occupations while in Australia, before registering with the first defendant, which is labour hire company, who placed him with Gale Pacific in February 2003.
10 On 31 January 2003, the plaintiff suffered injury, as deposed to by him in his first affidavit sworn 19 September 2008, as follows:
"At about 2 am during the coating process I noticed there were strings of fabric at the end of a fabric roll which had been caught around a revolving metal shaft and which were tending to clog up the coating machine.
As I had been previously told by one of the more experienced workers, I attempted to cut away the frayed fabric with a Stanley knife. As I was doing this my top got caught and tangled in the revolving metal shaft, consequently I was literally caught up and spun around the shaft. The experience was horrifying. I felt that I was being picked up and thrown about and knocked against machinery."
The Plaintiff's Medical Treatment
11 The plaintiff suffered multiple injuries as a result of the incident. He was taken to the Alfred Hospital where he was treated in the Emergency Department. The injury which required immediate treatment was a serious multiple fracturing of his left ankle.
12 The plaintiff came under the care of Mr Miller, orthopaedic surgeon. Mr Miller operated on the plaintiff's ankle. He described it as a fracture dislocation and an open injury. The dislocation was reduced. Thereafter the plaintiff was taken to the operating theatre where he underwent wound debridement and an open reduction within internal fixation for a bimalleolar fracture. There was disruption of the diastasis and a diastasis screw was inserted.
13 Mr Miller operated on the plaintiff's left ankle on three further occasions, namely: 29 May 2003, 15 June 2009 and 11 December 2009. After reducing the fractures by the use of orthopaedic hardware, Mr Miller removed the same; however a broken screw was left within the bone in the ankle joint because he was unable to remove it.
14 Apart from the treatment provided by Mr Miller, the plaintiff obtained rehabilitation at the Victorian Rehabilitation Centre. He was discharged from its care on 28 March 2004. Subsequently, he has undergone a significant level of physiotherapy. He is still having physiotherapy now, but intermittently.
15 The plaintiff also sees Dr Do, general practitioner, intermittently. He has seen other general practitioners over the time since he was discharged from the care of Mr Miller and the Victorian Rehabilitation Centre. Dr Do prescribes the plaintiff Panadeine Forte for pain relief.
The Medical Evidence
16 Mr Miller provided four medical reports dated 21 March 2003, 8 March 2008, 10 September 2009 and 30 March 2010. He last examined the plaintiff on 11 December 2009. The relevant passages of Mr Miller's last report demonstrate the nature and extent of the injury suffered by the plaintiff. When he last examined the plaintiff, he made the following observations. On clinical examination he found the following:
"Clinical examination revealed antero-lateral swelling, minor irritability
during ankle movement, the ankle felt stable to examination."
17 The diagnosis and prognosis he reached is as follows:
"I refer to my report dated 10/09/09, s.4, left ankle. He has ongoing problems with the ankle. There was some damage to the articular surface and when last arthroscoped, he did have synovitis. I remain of the view that the long-term prognosis for the ankle is only fair."
18 In relation to the requirement for further treatment, Mr Miller said:
"He will require ongoing treatment with analgesics, anti-inflammatory agents and physiotherapy. He may require repeat arthroscopy debridement during his lifetime. He is at slightly increased risk of developing arthritic disease. He may also require modifications to shoe wear."
19 In relation to the plaintiff's capacity for work at that time, Mr Miller said:
"This man will have difficulty with work that involves large amounts of prolonged standing, prolonged walking and twisting, turning and uneven ground. He will not be suitable for heavy physical work. He would not be suitable for climbing. These restrictions are likely to be permanent and relate predominately to the ankle injury."
20 The plaintiff was also examined by Dr Horsley, occupational physician, and Mr Westh, orthopaedic surgeon. Dr Horsley provided two medical reports, dated 29 October 2008 and 1 April 2010, after examining the plaintiff on each of those days. Mr Westh provided three medical reports, dated 15 July 2009, 30 October 2009 and 22 April 2010, after examining the plaintiff on 26 May 2009 and 6 April 2010.
21 It is unnecessary for me to reproduce any of the observations and findings made by Dr Horsley and Mr Westh because essentially their observations and findings are very much consistent with those of Mr Miller.
22 Mr Jewell submitted that the observations and findings of the plaintiff's physiotherapists regarding the plaintiff's mobility, and more particularly, his capacity for increased mobility, are of significance in determining whether the plaintiff suffered a serious injury. I do not agree.
23 The plaintiff has been treated by Mr Kellaway and Ms Punter, physiotherapists, who have provided reports dated 27 August 2009 and 22 March 2010 respectively. My analysis of their observations and findings is that they considered that the plaintiff would improve further over time, however their prognoses are one thing, but the proof is whether the plaintiff has failed, or indeed succeeded, in achieving that degree of recovery and an increase in his mobility.
24 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendants. He provided a medical report dated 5 October 2010 after examining the plaintiff on 1 October 2009. Mr Dooley's opinion is in stark contrast to the opinions of Mr Miller, Dr Horsley and Mr Westh. The thrust of his observations and findings were that the plaintiff's left ankle should by now have returned to near normal functioning.
25 In giving his opinion, Mr Dooley said:
"The probabilities are that in another three to six months there will be no evidence of synovitis or swelling in his left ankle joint and both clinically and on examination his left ankle joint will have recovered completely or near completely. The prognosis for this injury is excellent."
26 In the last paragraph of his report, he likewise expressed optimism by saying that he expected that the movements in the plaintiff's left ankle and hind foot would return to normal in the following six to twelve months.
27 There are other medical reports in both the plaintiff's and the defendants’ Court Books, most of which are very stale and none of which figured at all in the submissions made by Mr Mighell and Mr Jewell. I have read those reports, however they seem to me to be of little importance and value, primarily because many of them pre-date the last episode of surgery undertaken by Mr Miller.
Pain and Suffering
28 The plaintiff struck me as a decent young man who gave his evidence in a refreshingly straightforward manner. He seemed to me to be making every effort to provide direct and informative answers, particularly during cross- examination.
29 I accept the plaintiff's oral evidence, and indeed, I accept his evidence contained in his two affidavits sworn 19 September 2008 and 20 October 2009.
30 The only issue raised by this application is whether the consequences contended for by the plaintiff meet the statutory test for pain and suffering?
31 I accept the evidence of Mr Miller, Dr Horsley and Mr Westh. I reject the evidence of Mr Dooley. Mr Dooley's evidence is in stark contrast to the other medical evidence and it is difficult for me to accept it, particularly given what Mr Miller has had to say about the present state of the plaintiff's left ankle and whether it could possibly now have reached a state of near normality, or indeed ever will.
32 The plaintiff is a very young man of thirty-two years of age who enjoyed vigorous physical activity. For example, he was a black belt in Tae Kwon Do. He was very interested and engaged in a variety of other martial arts activities. He enjoyed vigorous sporting activities prior to the incident, such as Rugby Union and soccer. He enjoyed rock fishing. He is no longer able to engage in those activities.
33 He now has significant difficulty with his mobility. He has difficulty standing for long periods of time. He is only able to obtain about four hours’ sleep per night before his left ankle pain wakes him. According to Mr Miller, he will probably require attention to his footwear to accommodate the nature of the injury he suffered to his left ankle.
34 The strong impression I obtained from the plaintiff's oral evidence and from his affidavits, is that he no longer has the capacity to undertake work which requires unrestricted mobility. His present working regime is that he works 15 hours per week in security work which involves some standing. If he stands for too long he experiences pain and a pounding sensation in his left ankle. He sits and he wanders around when he can to try to obtain relief from the pain.
35 It is probable that the plaintiff is capable of performing work in excess of 15 hours per week, but it seems to me, from reading the restrictions which Dr Horsley would place upon him, that he does not have the capacity for vigorous physical work, but rather, light work of the kind he is undertaking presently.
36 My overall impression of the plaintiff's evidence, and that is the evidence which I accept, is that the plaintiff suffered a severe injury to his left ankle which has left him with very significant deficits which are both permanent and will very likely, trouble him to the extent described by him for the balance of his life. He is no longer able to engage in activities requiring a full, free and unrestricted use of his left ankle, and in particular, vigorous activities of the kind which a thirty-two-year-old would probably engage in, of a recreational and sporting nature, and certainly not anywhere to the extent which he was able to engage in those activities before the incident occurred.
37 True it is that the plaintiff is able to work, undertake charity work, pursue his Bible studies and general studies, and perhaps even University studies, and to that end he has retained a capacity to live a worthwhile life, but the measure of whether he meets the statutory test for pain and suffering is by making a comparison with what activities he was able to engage in beforehand and how he has been affected by reason of consequences of the injury.
38 Of course, I can be informed of that by taking into account the capacity which he has retained for activities of the kind which I have just referred to.
39 On the basis of the foregoing analysis, I am of the opinion that the plaintiff has suffered consequences which easily meet the statutory test for pain and suffering, and I have reached that conclusion after having made the relevant comparison with other cases in the range of possible impairments or losses of a body function, as I am required to do.
Conclusion
40 It is for those reasons that I propose to grant the plaintiff leave to bring a proceeding as he applied for.
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