Ku v TAD Pty Ltd
[2011] VCC 329
•31 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No.CI-10-02067
| KIM FAT KU | Plaintiff |
| v | |
| TAD PTY LTD | Defendant |
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| JUDGE: | Her Honour Judge Cohen |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 March 2011 |
| DATE OF JUDGMENT: | 31 March 2011 |
| CASE MAY BE CITED AS: | Ku v TAD Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 329 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985; Pain and suffering only; permanent impairment of foot and ankle; maintains alternative employment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.J. Keogh SC | Holding Redlich |
| Ms B.Y. Knoester | ||
| For the Defendant | Mr P.B. Jens | Lander & Rogers |
| HER HONOUR: |
1 I have decided in this case that the application should be granted for the following reasons.
2 On 22 January 2004 a load of steel rolled onto Mr Kim Fat Ku's left leg in the course of his employment. It is not disputed that he suffered an injury to his left ankle in this incident. In order to bring a claim for damages in respect of that injury he must obtain leave by satisfying the court, on the balance of probabilities, that he suffered a “serious injury” within the definitions and restrictions of s.134AB of the Accident Compensation Act 1985. He relies on part (a) of the definition of “serious injury”, claiming to have suffered serious permanent impairment of the function of his left ankle and foot. It seemed to me in the course of the hearing that might also really include the whole left lower leg but it was opened and put on the basis of left ankle/foot. He seeks leave in respect of pain and suffering damages only.
3 There is no issue that the plaintiff suffered an open fracture which required surgery and convalescence. The defendant's case primarily is that the ongoing consequences of that injury do not meet the test for a serious injury in that, when compared with the range of other possible impairments of body function, they do not fairly meet the description of “more than significant or marked” and “at least very considerable”.[1] In particular, it is argued that the plaintiff's retained capacities are such that his incapacities are not sufficient to meet the test.
[1] s 134 AB (38)(b) and (c) Accident Compensation Act 1985.4 The evidence consisted of the documents tendered – two affidavits of the plaintiff, one of his wife and medical and radiological reports – and the oral evidence of the plaintiff who was the only witness required for cross- examination.
5 The defendant conceded that the plaintiff presented as entirely frank in his oral evidence, but pointed to some matters in his affidavits which may have given a different impression. Mr Ku impressed me as an honest man, with limited amounts to say in English, but genuinely answering to the best of his recollection and entirely frank and direct in his answers to questions. I did not consider there to be any exaggeration or embellishment in his evidence. Indeed, he freely conceded or volunteered information about his activities that might have been regarded as against his interests in this case but which he gave ungrudgingly, and I have no reason to disbelieve him when he describes ongoing pain and other symptoms and how they trouble him. I have no hesitation in accepting his evidence as truthful and reliable to the best of his memory. I have no hesitation in accepting medical opinion insofar as it is based on his account of his symptoms to doctors who also appear to have unquestioningly accepted him as reliable in this respect.
6 Mr Ku is now aged 54. He was born in East Timor where he completed two years of secondary school then worked in a retail shop then a hotel as a purchasing officer. He married, and he and his wife migrated to Australia in 1981. They lived in Darwin for some 18 years, where he worked at various jobs from wholesale fruit seller to laundry hand, supermarket assistant, and for a number of years bean sprouts farmer. He and his wife had three daughters, and in 1999 they moved to Melbourne with their daughters, and he and his wife ran a fish and shop in Mornington until 2003.
7 In August 2003, through the defendant's predecessor labour hire company, he started working as a storeman at Smorgon Steel. It was in the course of those duties that he suffered injury on 22 January 2004 when a cassette holding one tonne of steel tipped and the steel rolled out and pinned his left leg. Three other workers had to use a crowbar to free his leg, revealing an open fracture, and he saw bone sticking out of his left ankle. He was taken by ambulance to Monash Medical Centre where an x-ray showed a fracture of the lower fibula shaft about seven centimetres above the ankle joint. There was also a fracture of the tip of the medial malleolus with slight lateral shift to the talus.
8 He underwent surgery the same day in which the fracture was internally fixed with a metal plate and screws, and he stayed in hospital for a week with the leg elevated and was discharged on crutches to be non-weight bearing for six weeks. Some of the screws in the ankle were irritating and were surgically removed in April 2004, and others and the metal plate subsequently by orthopaedic surgeon Mr Gerard Bourke in September 2004. Mr Bourke wrote that that removal was unlikely to take away any residual ache in the ankle which was probably a result of his original fracture.[2]
[2] See; letter to GP dated 15 September 2004, Exhibit E.9 In May 2004 Mr Ku started physiotherapy with Mr Wayne Creek who performed massage and foot and ankle mobilisation, supervised hydrotherapy, gave him a home exercise program, and about a year later also referred him for orthotics. More than two and a half years later, Mr Creek found residual symptoms including restricted ankle movement which he regarded as a direct result of the work injury, and he was of the opinion that Mr Ku was unlikely to make a great deal of further improvement.[3]
[3] See; Exhibit K.10 In July 2004 Mr Ku returned to work, at first for only two hours a day on light duties, but eventually building up to full-time light duties.
11 He was also referred by his GP for acupuncture, and he has continued to undergo such treatment which has included acupuncture, massage and Chinese medical treatment such as herbal plaster, this all being for his pain and to mobilise the ankle.[4] He still attends approximately weekly. Mr Gerald Moran, orthopaedic surgeon who examined Mr Ku on three occasions for the defendant,[5] was of the view in mid-2005 that he did not need ongoing acupuncture, but by Mr Moran's last report of April 2010 he was of the view that if Mr Ku's weekly acupuncture ceased it is likely he would need increased analgesic medication.
[4] See; Exhibits G and 11.[5] See; Exhibit M.12 All medical reports in evidence that have included comment on Mr Ku's work capacity, have given the opinion that he is unfit to return to his pre-injury duties and is permanently unfit for duties requiring prolonged standing, heavy lifting, walking on uneven surfaces and squatting, and Mr Miller adds kneeling and prolonged walking.
13 In fact, after various light but relatively ineffective duties, Mr Ku was eventually moved at Smorgon Steel to a position in Inventory where his duties include use of a computer, and he is able to sit or move around at his own pace and as is comfortable for him. This became a permanent and directly employed position when the factory was taken over by Bluescope Steel, with which he remains permanently employed. There is no lifting or ladder work or running or prolonged walking and he copes well, including a daily hour of overtime, and he is happy to continue in this job where he believes he is well regarded.
14 In February 2005 Mr Ku returned to Mr Bourke with some ongoing symptoms in his ankle of swelling at the end of the day and pain although it was not stopping him working and he had a full range of movement. Mr Bourke attributed it to his suffering some post-traumatic pain and organised an MRI. It is unclear to me whether a cortisone injection was given as a result of the MRI findings, but those MRI findings were of synovitis and posterior subtalar joint arthritis.[6]
[6] Exhibit C – Report of 24/02/05.15 In 2008 Mr Ku returned to Mr Bourke with symptoms of plantar fasciitis which Mr Bourke did not believe related to his work injury but treated with cortisone injection. Although those under-foot symptoms were not felt by Mr Bourke to be related to the work injury, and are not included in the matters I take into account in this application, ongoing symptoms in the ankle of some swelling at the end of the day and pain, and of shin pain, were reported to Mr Bourke in 2008. Mr Bourke recommend the wearing of a warm stocking for the shin pain.
16 The plaintiff describes ongoing pain, and the various activities which aggravate it, and those which he now limits or performs differently and those which he no longer attempts due to his injury.
17 I am satisfied that the plaintiff's injury has had the following consequences for him which are still affecting him six years after the injury:
•
Pain in his left ankle, foot and shin and calf, fluctuating in degree but at times very strong, requiring daily medication in the form of Panadol and Nurofen, worse in the mornings or after sitting for long periods and frequently bad enough to wake him at night.
•
Daily pain medication: that is two Panadol taken three to four times per day and a Nurofen or sometimes two at night. These have resulted in reflux and stomach consequences for him, for which he takes further medication, a tablet of Nexium.
• Weekly acupuncture treatment to control the pain. •
His left ankle also stiffens when too long in one position, and swells especially towards the end of a day, and at times can change colour.
• The wearing of orthotic support. •
Sleep interrupted by lower leg and ankle pain, two or three nights a week to the extent of not being able to get back to sleep, and about every two to three months having so little sleep that he has to take a day off work. This difficulty sleeping and discomfort in bed contributes to him and his wife now sleeping in separate rooms.
•
He suffers irritability and frustration from pain and lack of sleep, affecting interaction socially with friends and creating tension in his marriage. I take these as reactions to and consequences of chronic pain and restrictions on his movements, and not a psychological condition, no doctor has suggested any “non-organic” component to his symptoms.
•
His being in such pain and low mood that he cries; a prospect never seen by his wife before the effects of this injury.
•
Limitations on his ability to drive, in that now he only drives an automatic because left foot and ankle become too painful controlling a clutch, and driving for more than an hour or so causes pain and stiffness in the ankle.
•
He cannot stand or sit for prolonged periods without increasing pain and swelling and stiffness in the ankle.
•
He can walk for 30 or 40 minutes but more slowly than he used to do, and his ankle will be swollen after this, and sometimes he limps.
•
He cannot go hiking. Walking on uneven ground is difficult and he is not confident doing it.
• He cannot go running which he used to enjoy and do for up to an hour. •
He cannot kneel in the normal manner. In kneeling or squatting he goes down with his right knee and ankle fully flexed. He demonstrated keeping his left leg at right angles and the foot flat on the ground. In this regard he was shown in a video clip with his left knee on the ground in a kneeling position, but in a position where the foot did not have to flex as it was overhanging from a ledge, and that is consistent, in my view, with his professed difficulty of flexing the left foot.
•
He feels restricted in most activities because he has to think about them and adjust to how he can manage to do things so as not to exacerbate pain in his left ankle.
18 All of these consequences are consistent with the medical evidence and radiological evidence of arthritis in the left ankle joint. All medical opinion is that there is no likely further improvement and in fact likely deterioration. Even though other orthopaedic surgeons do not mention it, Mr Russell Miller who provided a medico-legal report[7] even predicts the need in future for surgery to fuse the ankle joint or else a joint replacement.
[7] Exhibit J.19 I note that the physiotherapist Mr Creek had suggested that there might need to be further surgery in the future. Whether or not he eventually does require further surgery, I am satisfied that he suffers a significantly symptomatic and deteriorating condition in a weight-bearing joint.
20 In my view, Mr Ku's circumstances assessed under the criteria or indicia outlined by Maxwell P in Haden Engineering v. McKinnon[8] bring him into the description of suffering very considerable pain.
[8] [2010] VSCA 69 at para [11].21 The defendant points to the plaintiff's own admissions that he remains active despite his injury, including driving for up to an hour each way to and from work, regularly working an hour's overtime, and performing various activities around his home, including mowing the lawn, doing some other gardening, cleaning windows and performing light maintenance work which includes clearing leaves from gutters. He says he can still ride a bicycle and does so with family members.
22 He was filmed[9] clearing gutters on his roof and climbing down a level. He was also filmed mowing the lawn and doing other gardening and also crossing the road in a shopping area and entering a retail gardening premises. Not only had he frankly admitted being able to do and in fact doing all of these activities before the film was shown, but none of his movements in the video surveillance seemed to me to be done with any more speed or ease of movement than he had described himself capable of. In fact, it seemed to me that he mowed the lawn with slow movements, and as he crossed the road he walked in a manner consistent with protecting his left lower leg.
[9] Exhibit 1.23 I take into account the authorities to the effect that consideration of a person's incapacity can be informed by considering his retained capacities.[10] In the present case, although Mr Ku clearly is still able to engage in a number of activities, and some of those to which he referred in his affidavit as now impossible or limited had not been frequent in his life prior to the injury, I am satisfied that Mr Ku suffers from chronic pain in his left ankle, foot and lower leg, and that it is his stoicism and determination that has resulted in his continuing with as much activity as he does as well as maintaining full-time employment.
[10] eg. Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at para [27].24 I found wholly convincing his own answer in cross-examination put simply but to the point. He was asked by Mr Jens "Do you do anything to keep fit?" and his answer was "As I said, I am very active person, that’s why it doesn’t matter the pain is there, I still go and do work I can do. I'm not that kind of a person that like to sit down inside the house and what I do I take painkiller if the sore appear; I take painkiller and keep going".[11]
[11] Transcript Page 40 Lines 7-12.25 By remaining in full-time employment he does not satisfy the test to entitle him to sue for damages for loss of earnings. That does not mean that he has not suffered some loss of earning capacity, although no details of wages were in evidence. Further, just because he has retained substantial earning capacity he is not precluded from proving, as in my view he does here through plenty of other evidence, that he has a serious permanent impairment as to pain and suffering.[12]
[12] Cherpov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at para [24] explained in
26 I consider, moreover, that the limitations on his work capacity including that were he to lose his present job he would be significantly limited in finding alternative work, particularly given his age and background in manual work, is an aspect of his overall impairment that is relevant to the factors affecting his frustration and irritability and loss of what his wife called "his previous cheeriness".
27 I am satisfied that the consequences of the injury to Mr Ku's left ankle can fairly be described as more than significant or marked and at least very considerable when compared with other possible impairments of body functions and therefore that the injury satisfies the definition of serious injury. I propose to grant him leave to bring a claim for damages for pain and suffering in respect of that injury.
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VSCA 52 at para [77]-[79].
Stijepic v One force Group Pty Ltd [2009] VSCA 108 at para [47] and Sutton v Laminex Group Pty Ltd [2011]
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