Mahdi v Marble Design (Aust) Pty Ltd

[2019] NSWDC 287

District Court

New South Wales

Medium Neutral Citation:	Mahdi v Marble Design (Aust) Pty Ltd [2019] NSWDC 287
Hearing dates:	11, 12 June 2019
Decision date:	25 June 2019
Jurisdiction:	Civil
Before:	Scotting DCJ
Decision:	Orders dated 25 June 2019: (1)   Verdict for the plaintiff. (2)   I direct that the parties confer and review the mathematical calculations in the judgment. (3)   I direct that the parties confer and bring in Short Minutes of Order to give effect to my decision. (4)   I list the matter for argument on 28 June 2019 in relation to any outstanding matters.  Orders dated 27 June 2019: (1)   Verdict for the plaintiff in the sum of $1,354,026.00. (2)   Order that the defendant pay the plaintiff’s costs. (3)   The defendant is to have credit for all weekly payments of compensation, currently noted to be $289,469.00. The parties note that weekly payments will continue until the judgment monies are paid to the plaintiff and the defendant will be entitled to credit for any further payments of weekly compensation made between 25 June 2019 and the date that the judgment monies are paid. (4)   Note that the parties: (5)   (i)    agree on the mathematics of the awards set out in the Reasons published on 25 June 2019;        (ii)   agree that the Fox v Wood sum is $34,311.00;        (iii)   agree that the interest sum is $22,167.00. (6)   Exhibits to be returned to the parties. (7)   Vacate the listing of 28 June 2019.
Catchwords:	TORTS – negligence – work injury – claim against employer – plaintiff’s credibility DAMAGES – assessment of damages – past and future economic loss
Legislation Cited:	Evidence Act 1995 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844
Category:	Principal judgment
Parties:	Firas Mahdi (Plaintiff) Marble Design (Aust) Pty Ltd (Defendant)
Representation:	Counsel: E G Romaniuk SC with J A Malouf (Plaintiff) D Kelly (Defendant)     Solicitors: Ayoub Lawyers (Plaintiff) Gillis Delaney Lawyers (Defendant)
File Number(s):	2018/288006
Publication restriction:	None

Judgment

Introduction

1. The plaintiff brings a claim against the defendant for work injury damages.

2. On 10 May 2012 the plaintiff was employed by the defendant as a labourer at the defendant’s factory situated at 51 Claremont Avenue, Greenacre. His work involved assisting stonemasons employed by the defendant to lift and manually handle various pieces of marble between different locations in the defendant’s factory. Large marble slabs were stored on steel A-frames and moved by using a forklift with a clamp attached, from one A-frame to another or to the various cutting stations. At about 12.30pm the plaintiff commenced assisting other employees to unload a truck delivering large marble slabs. Each slab was approximately 4 metres x 2 metres high and 10 – 25 mm thick. Each slab weighed about 250 kgs. There were no A-frames available for use and the plaintiff’s supervisor instructed him to unload and store the marble slabs leaning against a metal skip bin. During the course of this operation three of the marble slabs fell onto the plaintiff. He suffered fractures to both ankles and his left wrist. He was taken to hospital and underwent surgery to internally reduce and fix each fracture.

3. The matter proceeded by way of assessment of damages only.

4. The plaintiff is entitled to damages for economic loss. The plaintiff has not returned to work and alleges that he has no residual earning capacity or alternatively, if he does have a residual earning capacity it is unable to be exercised on the open labour market. The defendant contends that the plaintiff has some residual earning capacity and that his damages ought to be calculated accordingly.

The Plaintiff’s Evidence

5. The plaintiff was born in Iraq in 1976 and he is presently 43 years of age.

6. The plaintiff attended primary school and high school in Iraq before attending a private college. The plaintiff did not get the required marks to attend a publically funded university, so he attended a private college and enrolled in a Bachelor of Administration. The plaintiff paid to attend the college. The degree was a four year course that the plaintiff completed in five years, after failing one year.

7. At the time he was studying the plaintiff operated a female clothing store. It was a family business but the plaintiff was the primary operator of it and it was his responsibility to deal with customers and suppliers. He worked at the store when he did not have classes at college. He attended college from 8am to 2pm, five days a week and then worked at the store until approximately 10pm.

8. The plaintiff completed his Bachelor of Administration in about 2000. He was married to Zeinab in 2003. The plaintiff and his wife had three children while living in Iraq.

9. After the fall of the Saddam Hussein regime the plaintiff obtained employment within a new ministry called the Department of Human Rights. He was initially appointed as an Assistant Auditor. He was in that role for about three months before being asked by the Minister to come and work in the Minister’s office. He worked in that role for about six months before being promoted to be the Manager of the Minister’s office.

10. As the Manager of the Minister’s office, he organised the Minister’s visits, tours and meetings. The plaintiff supervised 25 employees in that role and worked for three successive Ministers.

11. The second Minister advised him to get further qualifications to assist with his progression in the Ministry. The plaintiff enrolled in a Bachelor of Law at the same college. The Bachelor of Law involved studying each night from 5pm to 8pm for a period of three years. He passed all of his subjects, but did not complete the requirements to obtain the qualification.

12. In the course of his work for the Minister the plaintiff was asked to perform a number of investigatory roles. He became the subject of an attempted assassination, after which he decided to leave Iraq. The plaintiff applied for and was granted a refugee visa. The plaintiff and his family immigrated to Australia, and arrived on 8 February 2011.

13. At the time of the plaintiff’s arrival in Australia, his wife was pregnant with twins who were born in June 2011.

14. On his arrival to Australia the plaintiff had little or no English. He was allocated 400 or 500 hours English tuition as a result of his refugee status. He attended Navitas English College to undertake the English tuition. This consisted of attendance of five days a week from 9am to 2pm, after which he obtained a Certificate II in spoken and written English.

15. During the course of his English tuition, the plaintiff made enquiries as to whether his Bachelor of Administration would be recognised in Australia. He was informed that he would have to complete further study for the qualification to be recognised.

16. On completion of his English tuition in about April 2012, the plaintiff was offered vocational training, being the choice of a course in cleaning, child care or operating a forklift and undertaking warehousing duties. He chose the latter course and attended the Navitas College for the purpose of undertaking that training. He completed that training in or about April 2012.

17. After that the plaintiff undertook work experience placement for a period of two weeks.

18. In or about early May 2012 the plaintiff was recommended by a friend to apply for a job with the defendant. The plaintiff was successful in his application and commenced work on 9 May 2012 at 6am. The plaintiff told his supervisor, Salah El Hage that he had recently obtained his forklift licence. Mr El Hage informed the plaintiff that he could not drive the forklift within the factory until he was familiar with its surroundings and asked him to undertake labouring duties.

19. On his first day of work the plaintiff was asked to sort out some glues that were colour coded in the storeroom. He was then asked to move smaller pieces of marble, by putting them into a bucket and emptying them into a large skip bin. He continued this work for several hours until lunch time. After lunch the plaintiff cleaned out a drain which had become blocked with marble dust residue. He did that work for about half an hour before being asked to carry marble from around the cutting machine, of various weights and sizes to put them into the skip bin. On the first day the plaintiff assisted with loading some marble pieces that had been cut to size from A-frames onto the utility vehicles of three kitchen installers.

20. The plaintiff was supposed to finish work on the first day at 5pm but was asked to stay back and do overtime. He finished work on the first day at about 8pm.

21. On 10 May 2012 the plaintiff started work at 6am. He was injured at about 2.30pm on that day. He was taken to hospital and remained there for about 25 days.

22. He came under the care of an orthopaedic surgeon, Dr Raymond Chin. He underwent surgery on 11 May 2012 and after his discharge from hospital he continued to see Dr Chin for follow up.

23. After the initial surgery the plaintiff was required to use a wheelchair and then crutches for about a year whilst he was undertaking physiotherapy and hydrotherapy.

24. About two years after the first operation, the plaintiff had further surgery to remove the screws and plates from both ankles and his left wrist. After the surgery Dr Chin recommended an arthrodesis, or fusion, of the right ankle.

25. The plaintiff started to suffer right knee pain and was referred for an MRI scan. The plaintiff was having difficulty with walking. He felt that he could not put his full weight on his right foot and that restriction had changed the way he was walking. The plaintiff described that he could only put weight on the edge of his right foot and the heel. The plaintiff still continues to experience this problem, but occasionally it is better than at other times. The plaintiff gave evidence that he cannot stand or walk for long periods of time without increasing pain and continues to experience episodes of swelling in his right foot. The plaintiff also began to experience difficulty with his lower back.

26. The plaintiff gave evidence that the present position of his injuries are as follows.

27. He continues to get pain in his left wrist and cannot move it properly. He feels as though there is a sharp object still inside it. If he undertakes a lot of activities with his left wrist he gets severe pain and swelling. Such activities include lifting heavy objects, such as shopping bags or making sudden movements. He continues to experience some numbness in his ring finger and little finger of his left hand. He has decreased sensation in those fingers extending to the outside of his left hand. He has difficulty moving those two fingers on his left hand.

28. The plaintiff continues to suffer low back pain on the left hand side. He notices back pain first thing in the morning and it gets worse as the day progresses. He notices the pain particularly if he has to walk a long distance or if he tries to pick up something from the floor. It is also brought on by sitting down for a long time. The plaintiff gave evidence that walking for more than 15 minutes would bring on the pain. The plaintiff uses patches and hot packs to remove the pain. He has been under the care of a physiotherapist. He also uses pain killers like Nurofen and Voltaren.

29. The plaintiff presently suffers pain in both knees but the right one is worse. He has also noticed swelling in the right knee. He described that the movement of his right knee is noisy. He has restricted movement in the right knee and cannot kneel or bend through the knees.

30. In his right ankle, the plaintiff cannot, without experiencing pain, put his right foot squarely on the ground, favouring the outside edge of his right foot and his heel. By walking in this way the pain is reduced but not eliminated. The plaintiff described that if he walked for 15 minutes that the pain would get worse. The plaintiff has difficulty in climbing stairs. He relies on his left foot predominantly when climbing stairs and just brings his right foot through. He has difficulty on uneven ground and suffers from instability in the ankle. He has had a fall caused by the instability of his ankle. He does not feel that he could wear steel capped boots anymore. The plaintiff chooses to wear flat shoes to alleviate the pain.

31. His left foot has returned to about 80% of normal. The plaintiff thought that his wrist had improved a little bit but his right ankle had not improved. He continues to suffer pain in the lower back and in his knees. He has worn a brace on his ankle and on his knee which have given him some assistance. He suffers increased pain in cold weather.

32. The plaintiff has engaged with the rehabilitation provider provided to him by the workers compensation insurer. The plaintiff has been required to apply for 10 jobs per month, and to record the details of those positions sought. He has been informed by the rehabilitation provider that he can only do light duties with a number of restrictions. It has been suggested that he look for jobs like reception work or monitoring CCTV screens, but he has been unable to find positions of that kind. He has also tried to find work in restaurants, bakeries and supermarkets. He has also sought work as a shop assistant in his local area. On the occasions when he has sought work, he has told the prospective employers about the restrictions contained in the various medical certificates he has been given.

33. The plaintiff gave evidence that he could not now undertake the work that he did with the Department of Human Rights in Iraq. That employment involved him visiting prisons and hospitals which involved a lot of walking and climbing stairs. He has not been able to find any office work in Australia. If he could find that work, he would need to be able to move around and change position when required.

34. When the plaintiff first arrived in Australia he was receiving $425.00 a fortnight from Centrelink. In his employment with the defendant he was expecting to earn about $700.00 per week net. The plaintiff gave evidence that he needed to work to support his family and to furnish the house that they had rented. At the time he was employed they only had a small television and beds and no other furniture.

35. The focus of the cross-examination was the plaintiff’s gait. He was asked a number of questions on the basis that he walked with a limp. The plaintiff’s evidence was that he was unable to walk properly. The evidence given by the plaintiff in cross-examination was then challenged by reference to some video footage taken of the plaintiff on 30 April 2019, immediately after he had attended an appointment with Dr Keller. As this evidence was crucial to the defendant’s submissions, which I will come to, it is appropriate to set out certain passages of the evidence in full.

36. In examination-in-chief, the central basis for the defendant’s attack on the plaintiff’s credit was based on the following passage in examination-in-chief at [T19 line 40-42]:

Q.   When you asked for a job do you tell them about your restrictions?

A.    INTERPRETER: When I apply online, I don’t tell them but when I go in for an interview they see and they know my injuries.

37. In cross-examination, the plaintiff was asked the following questions and gave the corresponding answers at [T24 line 23] - [T25 line 5]:

Q. You were asked some questions about going and trying to find work with different employers and you said something about when you go into some of the shops they see you and they know. What did you mean?

A. INTERPRETER: They would say that I can't walk properly, and they ask me "Why can't you walk properly". I tell them that I had an accident.

Q. You were asked some questions by Mr Romaniuk about your walking and you described putting pressure on the back and the side of your foot, is that correct?

A. INTERPRETER: Yes, like that.

Q. But when you go into a shop to ask for work, what are you saying these people see? Are you walking with a limp?

A. INTERPRETER: Yes. They ask me why I walk like that and I will tell them about the accident, and they ask me about, if I had any restrictions, and I just show them the medical certificate.

Q. But I just want to get this clear. What sort of shops are we talking about where this has happened? What type of businesses?

A. INTERPRETER: Like different shops, like restaurants, bakery places, supermarkets and mixed businesses.

Q. Are you saying that in all of these places the way you walk up to the person they can tell immediately that you've got a problem with your leg or foot?

A. INTERPRETER: When I apply or the job they call me in for an interview. When they see my condition in the interview they say "We're sorry". You can check with the three rehabilitation providers that I dealt with.

Q. I'm asking again, so the questions I'm asking you about is the way you say, "When they see my condition". What do you mean by that? What is it that they see that tells them there's something wrong?

A. INTERPRETER: I can't walk properly.

38. And further at [T25 lines 40-44]:

Q.   When you walked in to ask for those jobs, the reception jobs and the security job, when you walked in were you walking with a limp?

A.    INTERPRETER: At the start I tried to walk properly but the, the pain forces me to, to limp.

39. And further at [T27 lines 40-46]:

Q.    That you’re able to walk around on your right ankle, correct?

A.    INTERPRETER: Since the accident until now, I’m unable to walk normally. I’m unable to walk properly.

Q.    When you say you can’t “Walk normally” is that the limp you’re talking about?

A.    INTERPRETER: Yes.

40. And further at [T30 lines 13-16]:

Q.    As I understand your evidence, and tell me if I’m wrong, when you walked in people, either because of how you come in or the certificate, don’t offer you a job, a paying job, correct?

A.    INTERPRETER: Yes.

41. The plaintiff agreed in cross-examination that he had seen Dr Keller on 30 April 2019. He agreed that he had told Dr Keller about experiencing neck pain but denied the proposition that he did not tell Dr Keller about his lower back or knee pain when he saw him in 2017. The plaintiff thought that the interpreter had failed to convey that message. The plaintiff agreed that he could not undertake the work that he had been doing with the defendant as a result of his neck pain although the pain in his right foot was the most significant pain that he experienced.

42. The plaintiff agreed that he walked with a limp when he saw Dr Keller on 30 April 2019. The plaintiff gave evidence that he could not walk properly from first thing in the morning. The pain was less in the morning but got worse as the day went on. The plaintiff described it getting worse after 15 minutes which I interpolated to mean after 15 minutes of standing or walking.

43. The plaintiff caught the train to the appointment with Dr Keller. He took a taxi from Central or Town Hall Railway Station because he was running late for the appointment. At the completion of the appointment he left with the interpreter. The interpreter gave him directions to attend his next appointment which was with a migration lawyer for the purpose of obtaining a visa to allow his parents to visit Australia. Dr Keller’s rooms were in Erskine Street, and the migration lawyer’s office was on the corner of Liverpool and Pitt Streets, Sydney. The plaintiff agreed that he walked from Dr Keller’s rooms to the migration lawyer’s offices proceeding via Martin Place, turning right onto Pitt Street and walking to Liverpool Street. The plaintiff said it took him about 15 or 20 minutes to undertake that walk.

44. The plaintiff was then asked to demonstrate his walking in Court. The plaintiff walked from one side of the Court room to the other in front of the bar table. The plaintiff walked slowly but in my view did so because he believed he was being asked to demonstrate his manner of walking, rather than being asked to walk normally across the Court room.

41. The defendant’s counsel recorded on the record that Mr Mahdi appeared to be clearly rolling onto the outside of his right foot during the course of walking across the Court room. It appeared to me as though the plaintiff was having difficulty putting weight on his right foot but that should be taken in the context that the plaintiff was being asked in a forensic setting to demonstrate the affectation on his gait or ability to walk. Apart from the fact that the plaintiff walked quite slowly, which I have already referred to, the apparent affectation of the plaintiff’s gait was not particularly prominent but it was noticeable. I would certainly not describe his walking as involving a noticeable limp or that the affectation of his gait was particularly pronounced.

42. The plaintiff gave evidence that he could walk for 15 minutes or half an hour or more but he could only do so with worsening pain. He was in pain at the time he saw Dr Keller but it was not severe pain. He experienced severe pain that night when he got home because he had been sitting on the train for a long time.

43. The plaintiff said he walked quickly down Pitt Street because he was running late to the appointment with the migration lawyer. The plaintiff was then shown the video footage of him walking between Dr Keller’s rooms and the migration lawyer’s office. The plaintiff agreed that he was the person depicted on the video. He was carrying a white bag containing his x-rays and MRI scans which was tucked under his left arm and supported at the bottom with his left hand.

44. It is appropriate at this point to describe what was depicted on the video footage. I make the following observations:

1. The video footage was comprised of two distinct parts. The first part depicted the plaintiff walking from about Martin Place, along Pitt Street to the corner of Liverpool Street (the first segment). The first segment was taken between about 1.46pm and 1.57pm as time-stamped on the footage. The second part depicted the plaintiff walking from the corner of Pitt and Liverpool Street to George Street and into the entrance of Town Hall Railway Station just north of the intersection with Bathurst Street (the second segment). The plaintiff then proceeded to a ticket machine and to a platform where he waited to board a train and then subsequently boarded the train. The second segment was taken between about 3.27pm and 3.56pm as time-stamped on the footage.

2. The plaintiff was wearing flat soled ‘boat’ shoes.

3. In the first segment, the plaintiff walked to Martin Place from the vicinity of York Street. At the intersection of Martin Place and Pitt Street the plaintiff turned right and walked toward Liverpool Street, stopping at a building close to the corner of Pitt and Liverpool Street. This first part of the video lasted a bit over 15 minutes. The video was taken at lunchtime and there were a lot of pedestrians on Pitt Street at the time the video was taken.

4. The plaintiff did not walk particularly quickly. The plaintiff appeared to be passed by more pedestrians than he passed, in the course of his travel.

5. The first segment was taken by a person walking behind the plaintiff. This caused the footage to appear bumpy and affected the quality of observations that could be made of the plaintiff’s gait. There were times when the view of the plaintiff was obstructed by the presence of other pedestrians. There were very few parts of the footage depicting the plaintiff from front or side on, from which his gait could be viewed.

6. The plaintiff walked on the footpath and crossed roads. The terrain appeared to be flat and even throughout the footage. The plaintiff stepped on and off gutters when required to do so.

7. There were a number of times when the plaintiff’s gait appeared to be obviously affected or he was seen to favour his left foot. First, when the plaintiff was walking down the slope towards Martin Place, the plaintiff appeared to limp for a short time. Second, when the plaintiff reached the intersection with Market Street, the plaintiff stopped waiting for the lights to change and when he did so he took the weight off his right foot by placing his weight on his left foot. Third, at about time stamp 1.54pm I noticed a change in the plaintiff’s gait where he appeared to place more weight on his left foot.

8. It is fair to say that the plaintiff did not walk with an obvious limp, but to my observation it appeared that his gait was affected. The plaintiff appeared to place more weight on the strike of his left foot. His feet were abducted in that his toes were pointed outwards and there were definite occasions when he did display an affected gait.

9. In the second segment the plaintiff appeared to walk more slowly than the first segment. The observations about the limitations of the footage and my impression of his gait were similar.

10. When the plaintiff descended the stairs into Town Hall Railway Station, the video was not continuous. The view of the plaintiff descending the first part of the stairs was obstructed. The plaintiff did not appear to be using the handrail at the bottom of the stairs but did walk in close proximity to it. The same observations apply to when the plaintiff descended the stairs onto the platform.

11. On the platform the plaintiff waited for a train for 15-20 minutes. When he did so, he remained standing leaning against a wall. At this time the surveillance operative was observing the plaintiff and taking footage of him intermittently. At the times when footage was taken the plaintiff was standing with his right foot raised and placing his weight through his left foot.

12. When the plaintiff boarded the train he went to the upstairs part of the carriage and did not appear to use the hand rail.

13. The plaintiff tendered the report of the surveillance operative which contained a number of still shots from the footage. The still time-stamped 1.46pm on the bottom of page 6 of the report depicts the plaintiff walking with his right foot inverted. The still time-stamped 1.48pm shows the plaintiff walking with the weight on the outside of his right foot. The still time-stamped 3.27pm at the bottom of page 7 of the report clearly shows the plaintiff standing with his weight predominantly on the outside of his right foot. The still time-stamped 3.27pm at the top of page 8 of the report clearly shows the plaintiff walking with his weight predominantly on the outside of his right foot.

49. The plaintiff disagreed that he had walked for 14 minutes at a fast pace, explaining that the speed shot on the video was faster than what it actually was.

50. The plaintiff maintained that he was not walking normally. He agreed that he did not have a clear limp and gave evidence that he was wearing an ankle brace with metal components on the day when he saw Dr Keller. The plaintiff gave evidence that he walked close to the hand rails when using the stairs.

51. The plaintiff denied that he had deliberately put on a limp when presenting to Dr Keller to exaggerate his physical condition. He denied that he had done so for the benefit of his court case. He denied deliberately limping when approaching respective employers to obtain work, again for the purposes of maximising his compensation.

52. The plaintiff denied deliberately pretending that he had a limp in June 2016 when he attended for the multi-disciplinary assessment organised by the rehabilitation provider. He disagreed that he exaggerated the extent of any problem he had in his right ankle at that time. The plaintiff disagreed that he had given untruthful evidence about the ability to put his right foot flat on the ground. The plaintiff said that the video demonstrated that he was not walking properly. The plaintiff denied that by carrying the scans in the way that was depicted on the video, that he was using his left hand in a way that was troublesome for him.

The Plaintiff’s Medical Evidence

53. The plaintiff tendered a bundle of medical reports, together with the clinical notes of the plaintiff’s General Practitioner, Dr Khalid and Dr Chin. It is unnecessary to refer to the bulk of the materials, because the position is adequately set out in the reports that I will refer to.

54. The orthopaedic discharge referral from Liverpool Hospital dated 30 May 2012 recorded that the plaintiff suffered a 10 cm transverse laceration anterolaterally above the right ankle joint, a segmental distal fibula fracture and fractured medial malleolus of the right ankle. The right ankle dislocation was reduced in the Emergency Department. The plaintiff underwent an angiogram when his blood flow did not return to normal. In the left ankle he suffered a Webber B fracture. He sustained a comminuted intra-articular fracture of the distal radius in his left wrist with a 5 mm puncture wound over the ulna/volvar aspect. He was admitted under the care of Dr Chin, an Orthopaedic Surgeon and underwent surgery on 11 May 2012. The injuries to his right ankle, left ankle and left wrist were the subject of open reduction and internal fixation. He was observed in relation to some cardiac symptoms following the operation. He was discharged wearing cam boots bilaterally and able to weight bear on his left leg but not on his right leg. He was able to weight bear as tolerated with respect to his left wrist. His progress with physiotherapy was slow prior to his discharge.

55. On 12 June 2012 Dr Chin reviewed the plaintiff four weeks after the first surgery. Dr Chin noted that the plaintiff was discharged in a wheelchair to be non-weight bearing for six weeks. Dr Chin noted the wounds to be healing. The plaintiff was referred to physiotherapy and asked to return in four weeks. The plaintiff was referred to an MRI of his right knee that was now clicking and painful. Dr Chin noted that it was possible that he had sustained a twisting injury to his right knee at the time of the injury.

56. On 28 August 2012 the plaintiff was reviewed by Dr Chin. He reported ongoing issues with his right knee and right ankle. Dr Chin observed a good range of motion and minimal pain in his left ankle and left wrist. He was referred for MRI scans on his knee and right ankle.

57. On 25 September 2012 the plaintiff was reviewed by Dr Chin. The MRI scan of his right ankle showed peroneal tendonitis. Dr Chin noted the left wrist fracture was uniting and that he did not have any problems in his left ankle. He was favouring his left hand side when walking and walking very gingerly on the right hand side.

58. On 23 April 2013 the plaintiff was reviewed by Dr Chin. Dr Chin noted some right ankle osteoarthritis which was post-traumatic and opined that the plaintiff was probably suffering some irritation from the plates and screws inserted into his various fracture locations. Dr Chin noted severe post-traumatic osteoarthritis on the x-ray. Dr Chin thought that the plaintiff would require an ankle fusion, bone graft, removal of the hardware and fibular osteotomy of the right ankle. Dr Chin believed that removal of the hardware in his left ankle may assist him. Dr Chin stated that the ankle fusion would require three months non-weight bearing followed by another three months of rehabilitation, allowing a return to manual work in six months. The effect of the ankle fusion would be to lose all ankle movement, which would make walking up and down inclines and climbing ladders difficult for the plaintiff. Dr Chin recorded that the plaintiff wanted to go ahead with the operation.

59. On 27 August 2013 the plaintiff was seen by Dr Tim O’Carrigan, an Orthopaedic Surgeon, on referral from his General Practitioner for a second opinion. The plaintiff described a problem in his right ankle as involving ongoing severe pain associated with swelling to the point that he could not weight bear on it and could not return to work. On examination by Dr O'Carrigan the plaintiff demonstrated difficulty weight bearing on his right ankle and numbness in the ankle joint itself in the distribution of the superficial peroneal nerve. Dr O’Carrigan observed minimal swelling and a pretty good range of ankle movement. Dr O’Carrigan noted some definite post-traumatic arthritis in his ankle with the probability that there was some articular surface damage that was done at the time of the traumatic fracture dislocation which was quite a severe injury. Dr O’Carrigan opined that his range of movement was fairly good considering the nature of the injury. Dr O’Carrigan expressed concerns about how much pain relief the plaintiff would get from an ankle fusion given his range of movement and the extent of the minimal arthritic changes on his plain x-ray. Dr O’Carrigan opined that his pain dysfunction was a lot worse than his x-ray would suggest and that it was probable that an ankle fusion would at best only provide partial pain relief. Dr O’Carrigan opined that the plaintiff had a very mobile joint considering and that he would lose all of that movement with an ankle fusion. Dr O’Carrigan recommended that he not proceed with an ankle fusion at the time noting that it may well be necessary in the future. Dr O’Carrigan recommended referral to a pain management specialist for assessment. He also recommended the consideration of radio frequency treatment which could be helpful to alleviating pain caused by the superficial peroneal nerve. Dr O’Carrigan recommended adjustments with his current medication regime to control some of those symptoms. Dr O’Carrigan agreed that the removal of the hardware would assist him particularly because he could not undergo an MRI scan with the hardware in situ. Dr O’Carrigan recommended an ankle arthroscopy to probe the syndesmosis. If the ankle arthroscopy showed arthritic changes were minimal in his tibiotalar joint and the ankle syndesmosis instability then he recommended a syndesmosis reconstruction at the time of the hardware removal.

60. On 11 February 2014 the plaintiff was reviewed by Dr Chin. Dr Chin noted that all the fractures had united successfully. The plaintiff had post-traumatic ankle arthritis on the right hand side and hardware irritation in both ankles. In his left wrist he had post-traumatic carpal tunnel symptoms. The plaintiff expressed the view that he was not ready for an ankle fusion, because that would be permanent and he would still like to have movement in his ankle. The plaintiff agreed to further surgery for a removal of the hardware and an open carpal tunnel decompression and synovectomy of his left wrist.

61. On 2 September 2014 the plaintiff was reviewed by Dr Chin, two weeks after the removal of the hardware and open carpal tunnel decompression. The plaintiff reported some numbness along the medial nerve territory and the right forefoot. There was a small area of wound dehiscenc on the right ankle.

62. On 16 September 2014 the plaintiff was reviewed by Dr Chin, following the removal of the hardware in his fracture sites. Dr Chin described a poor area of healing that was secondary to the initial injury of his right ankle. The original injury may have interfered with some of the blood supply to that area. His right ankle x-rays continued to demonstrate post-traumatic arthritis. Dr Chin opined that if his right ankle became more consistent to the point where he was having difficulty walking then ankle arthrodesis would be the operation of choice. Dr Chin noted that the open carpal tunnel decompression was undertaken but that there was some residual numbness along the median nerves of the tip of the fingers on the left hand.

The Reports of Dr Habib

63. On 26 May 2016 the plaintiff attended a medico-legal consultation with Dr Sheikh Habib. Dr Habib produced a report dated 27 May 2016. The content of that report can be summarised as follows. The plaintiff complained of left wrist pain and stiffness, a severely painful right ankle and a painful and somewhat stiff left ankle as well as a painful right knee. He required assistance from his wife for self-care and dressing and had employed someone to undertake outdoor maintenance at his home. Dr Habib noted that the plaintiff also complained of low back pain, bilateral knee pain mostly at night, bilateral ankle pain and an inability to walk properly, in that he tended to walk on the outer part of the sole of his right foot.

64. On examination, Dr Habib noted the plaintiff walked with a heavy and antalgic gait (walking to avoid pain) with his right foot acutely inverted (tilted parallel to the frontal plane so that the plantar surface of the foot faces the mid line of the body). He noted some soft tissue swelling of the left wrist as well as tenderness and some restriction in movement compared to the right wrist. Dr Habib observed the plaintiff to stand and walk on the outer border of his foot, reporting severe pain if he put his foot “square to the ground”. There was swelling with evidence of synovitis in the gutters of the right ankle. The right ankle and foot movements were moderately restricted especially dorsiflexion and eversion. Dr Habib recorded tenderness at the lower end of the fibula and distal tibiofibular joint in the left ankle. The ankle movements and hind foot were restricted. The plaintiff displayed moderate guarding in the low back and there was tenderness in the lumbar spine at L5/S1 with some restriction of lower back movement.

65. Dr Habib opined that the plaintiff suffered serious multiple injuries at work being a severe compound fracture dislocation of the right ankle, compound comminuted fracture of the left wrist and fracture of the distal end to the left fibular following the distal tibiofibular joint, a severe strain of the back and right knee trauma. The plaintiff was left with severe post-traumatic degenerative arthropathy of the right ankle. The plaintiff had ongoing symptoms in the left ankle, left wrist and low back, with a resolved right knee injury. Dr Habib opined that the nature and severity of the fracture dislocation of the right ankle had left severe degenerative changes. The plaintiff was unable to put his foot squarely on the ground due to severe pain in the ankle joint. The plaintiff reported reluctance to undergo an ankle fusion, which Dr Habib thought was inevitable. Dr Habib thought it was reasonable to consider further replacement surgery and if that failed then to consider the ankle fusion. This would result in a shortening of the right leg and a leg length discrepancy. It was likely that the left wrist fracture would result in degenerative wrist joint changes and Dr Habib noted some features of osteoarthritis already being present. Dr Habib opined that the plaintiff walked with an altered gait predominantly as a result of the problems with his right foot and ankle and that this was likely to continue to exacerbate right knee and low back problems.

66. Dr Habib opined that the plaintiff was permanently unfit for his pre-injury employment as a forklift operator or labourer. Dr Habib believed at the time of the consultation he was not fit for any work. Dr Habib opined that his prognosis was for deteriorating degenerative changes in the left wrist and possibly the requirement for an ankle arthrodesis. A right ankle arthrodesis was likely to result in a stable pain free ankle joint. Dr Habib opined that the plaintiff was unfit for work at the time of the report because he had not been referred to a pain management specialist or had the ankle arthrodesis completed. The plaintiff was fit for a few hours of sedentary employment two to three days a week with the following restrictions:

1. standing or walking for longer than short periods and the need for change of posture;

2. sitting for long periods without change of posture every 15 to 20 minutes;

3. standing or walking on uneven surfaces;

4. bending or lifting more than 5 kgs from waist height;

5. repetitive use of the left hand or thumb;

6. squatting or kneeling.

67. On 17 May 2018 the plaintiff returned to Dr Habib for a follow-up medico-legal consultation. Dr Habib produced a report dated 25 May 2018. The content of that report can be summarised as follows: The plaintiff reported that he was partly independent in his personal care and hygiene with some help from his wife. He told Dr Habib that he could stand or sit for short periods in the kitchen to help his wife with the preparation of food but had difficulty in standing for long periods of time due to bilateral ankle pain or sitting for long periods of time which exacerbated his low back pain. The plaintiff’s complaints at the time of the examination were left wrist pain and stiffness that increased with continued use of the left thumb. The plaintiff reported numbness in the lateral three digits following the median nerve decompression for carpal tunnel syndrome as well as some numbness in the tips of his two medial digits. The plaintiff also reported low back pain, left knee pain on kneeling and right ankle pain. The plaintiff complained of right ankle pain and an inability to put his foot squarely on the ground. Dr Habib noted that when he stood or walked he transferred his weight onto the lateral part of his right foot. The plaintiff also had continuing left ankle pain and stiffness.

67. On examination, Dr Habib noted moderate restriction in the movements of his left wrist, left thumb and forearm rotation. Dr Habib did not note any abnormality in the examination of his left knee. The plaintiff stood weight bearing on the outer border of his right foot and displayed restricted movement in both ankles. The findings on the examination of his low back were unchanged from the previous consultation.

68. Dr Habib opined that the plaintiff’s long term prognosis was uncertain. The intra articular nature of the fractures in the ankles and wrists, and particularly the widening of the syndesmosis and decreased talo fibular joint space in the right ankle would result in the development of severe premature degenerative changes or osteoarthritis. Such a complication was frequently very painful and would necessitate consideration of an ankle joint arthrodesis. Dr Habib noted osteoarthritic changes in the left wrist that were likely to deteriorate.

69. Dr Habib opined that the plaintiff was permanently unfit for his pre-injury employment or any other physically demanding labouring jobs. Dr Habib believed the plaintiff was fit for sedentary duties only with the following restrictions:

1. no long hours of work (recommended two to three hours a day, three days a week, preferably on alternate days);

2. long periods of standing or walking (recommended change of posture every 20 minutes);

3. no uneven surfaces or use of stairs or step ladders;

4. lifting restrictions 2 to 4 kgs, avoiding repetitive lifting;

5. avoiding repetitive use of the left hand digits;

6. pulling or pushing heavy static objects.

71. Dr Habib described the plaintiff’s injuries as severe and the likelihood that they would be prematurely degenerative. Dr Habib recommended ongoing physiotherapy with the focus being the provision of a supervised programme to maintain mobility and strength.

Defendant’s Medical Evidence

The Reports of Dr Powell

72. On 22 September 2016 the plaintiff attended a medico-legal consultation at the request of the defendant with Dr Richard Powell, Orthopaedic Surgeon. Dr Powell produced a report dated 20 October 2016. The contents of that report can be summarised as follows.

73. The plaintiff complained of stiffness and restriction in range of motion and subjective loss of strength in the left wrist. He had pain over the volar aspect of the distal radius which was constant and sharp in character. He also had some numbness on the ulnar border of the wrist. The plaintiff expressed his major concern as being in relation to his right ankle. He reported constant pain affecting the ankle in a generalised fashion which was more significant on the medial side. The pain was sharp in character with background ache. It was accompanied by swelling, clicking and stiffness. The plaintiff reported difficulty negotiating sloping and uneven ground, telling Dr Powell that he tendered to walk on the lateral border of the foot. In the left ankle the plaintiff reported intermittent pain of the lateral aspect but was not aware of any significant stiffness or restriction in range of motion, instability or century change. The plaintiff reported taking medications including anti-inflammatories and Tramadol, attending the gym on a weekly basis and undertaking an exercise programme at home. The plaintiff had experienced some low back pain in 2004 without any specific precipitating incident. The pain was constant and accompanied by some stiffness.

74. Dr Powell reported the plaintiff to be compliant and co-operative throughout the course of the examination. He was observed to be in mild discomfort at times during the assessment. On examination, Dr Powell noted a restricted range of motion in the left wrist and thumb with evidence of a peripheral nerve lesion. Dr Powell reported the plaintiff as having an unusual gait incorporating antalgic components bilaterally and some protected weight bearing. He tendered to walk on the lateral border of the right foot which was abducted (facing outwards) and slightly inverted. On the left side he avoided heel strike and explained that he was diagnosed with plantar fasciitis a few days previously. In the right ankle there was diffuse bony tenderness to palpation of all elements of the ankle and mild generalised swelling. The range of motion was restricted and his foot remained fairly supple. On the left ankle there was no focal tenderness to palpation but some pain from the plantar fascia. He had a normal range of motion in the left ankle and it was stable. Dr Powell did not observe anything of note of the examination of the plaintiff’s knees. There was diffuse tenderness to palpation of the posterior aspect of the lumbar spine, without muscle spasm. The range of motion was restricted. Sciatic stretch tests were negative.

75. Dr Powell opined that the plaintiff’s condition was consistent with the history provided. Based on his examination, Dr Powell believed that the plaintiff had reached his maximum stage of medical improvement.

76. On 21 September 2017 the plaintiff attended a refresher medico-legal consultation with Dr Powell. Dr Powell produced a report dated 10 October 2017. The contents of that report can be summarised as follows.

77. The plaintiff reported that there had been no significant change in his left wrist, that his lower back symptoms were worse including constant pain and that there had been no change in his left ankle symptoms. The plaintiff reported his right ankle symptoms were worse particularly with marked stiffness, restriction in range of motion and difficulty walking on sloping or uneven ground.

78. Dr Powell noted the plaintiff was compliant and co-operative. Dr Powell opined that there was no suggestion of over-reaction or exaggeration. The plaintiff was observed to be in mild discomfort at times during the assessment. On examination, Dr Powell noticed a reduced range of motion in the left wrist. The plaintiff was tender to palpation over his lower back without evidence of muscle spasm. His range of movement was restricted but his neurological examination of the lower limbs was normal. The plaintiff had a normal range of motion in the left ankle and it was stable. On examination of the right ankle Dr Powell observed a limp with a shortened stance phase on the right side. The plaintiff had a tendency to walk on the lateral border of the foot. He had a varus position of the hind foot. He was unable to perform a single leg heel raise. Dr Powell observed moderate generalised swelling around the ankle and some reduced sensation and tenderness to palpation over the medial malleolus and lateral malleolus with a restricted range of motion. Dr Powell opined that the plaintiff had a reasonable prognosis in relation to his left wrist and left ankle. The prognosis in relation to the right ankle was less favourable. Dr Powell opined the plaintiff had developed significant post-traumatic osteoarthritis with chronic pain and marked stiffness and restriction in range of motion. This had led to an altered gait pattern and aggravation of a lumbar spine condition. Dr Powell opined his right ankle would remain a source of ongoing symptoms and may require further surgery in the future in the form of an arthrodesis. It was likely that the right ankle condition would deteriorate over time.

79. Dr Powell opined that the plaintiff would never return to his pre-injury duties and recommended permanently modified duties. His restrictions would include avoidance of prolonged standing, walking, repetitive bending, lifting or twisting movements. The plaintiff should avoid stairs and any work in elevated areas. The plaintiff is best suited to work of a sedentary nature and to be able to alternate his tasks where possible and have the opportunity for regular rest breaks. Dr Powell recommended a return on reduced hours of four to five hours per day on four to five days per week recommending that his hours be increased in a gradual fashion as tolerated. Dr Powell was of the opinion that the plaintiff was unlikely to regain full pre-injury hours and that given the extensive list of restrictions and limited transferrable skills that alternate employment opportunities were limited.

The Reports of Dr Keller

80. On 26 September 2017 the plaintiff attended a medico-legal consultation at the request of the defendant with Dr Andrew Keller. Dr Keller produced a report dated 26 September 2017, the contents of which can be summarised as follows.

81. Dr Keller noted that the plaintiff, in September 2016, had his work capacity upgraded to allow three hours of work per day, two days a week with no lifting over 2 kgs, sitting for 60 minutes or standing for 30 minutes. That assessment was current at the time of the consultation. The plaintiff reported that he had been looking for work but had no work trials as yet. The plaintiff reported constant right ankle pain at a severity of between 4 and 9 out of 10, constant wrist pain rated at 6 out of 10 and at the time of consultation, no left ankle pain.

82. Dr Keller reported the plaintiff to be pleasant and co-operative throughout the interview and that he was assisted by an interpreter. Dr Keller observed the plaintiff to walk unassisted with a limp putting most of his weight on his right leg but particularly on the outside of his right foot. The plaintiff was described as sitting comfortably throughout the consultation that lasted about 40 minutes. Dr Keller observed restricted movement in the plaintiff’s left wrist together with reported reduced sensation to light touch. Dr Keller observed a full range of motion in the neck, shoulders and lumbar spine. Dr Keller observed reduced movements in both ankles and sensation to light touch was reported around the surgical scars but normal in both sets of toes. The plaintiff stated that he was unable to walk normally.

83. Dr Keller opined that the plaintiff had mild restriction in motion associated with the left wrist, moderate to severe restriction of motion in the right ankle and moderate restriction of motion in the left ankle. Dr Keller’s prognosis was for permanent restriction of motion in these joints with no likelihood of full recovery in the future. Dr Keller did not believe that the plaintiff would benefit from any ongoing passive physical therapy.

84. Dr Keller opined that the plaintiff had persisting pain in the left wrist and right ankle and restriction of movement in the left wrist and both ankles as a result of the incident at work. He was permanently restricted from returning to heavy manual work or work involving constant standing or walking. Dr Keller opined that the plaintiff was permanently unfit for return to work as a labourer or forklift driver. Dr Keller opined that the plaintiff was able to work suitable duties for three to four hours a day, five days a week. He should avoid sitting for more than 60 minutes, standing or walking for more than 30 minutes and lifting more than 2 kgs. Dr Keller specified the plaintiff needed a five minute break out of the car for every 30 minutes of driving and was restricted to driving automatic vehicles. The plaintiff accepted that he could agree to attempt light or sedentary work with these restrictions.

85. On 30 April 2019 the plaintiff attended a refresher medico-legal examination with Dr Keller at the request of the defendant. Dr Keller produced a report dated 8 May 2019. The contents of the report can be summarised as follows.

86. The plaintiff reported no new injuries, further surgery or major treatment since the last examination by Dr Keller. He had continued to receive physiotherapy twice a week and was on medication including over-the-counter and prescription pain killers. The plaintiff continued to be certified to work light duties, three hours a day, two days a week with no lifting over 2 kgs, standing for 15 minutes or driving for more than 30 minutes. The plaintiff reported continuing to look for work without success.

87. Dr Keller again reported the plaintiff to be pleasant and co-operative throughout the interview which he attended with an interpreter. Dr Keller observed the plaintiff to walk unassisted but with a limp and favouring the outside edge of his right foot. The plaintiff was described as sitting comfortably throughout the consultation that lasted approximately 40 minutes. On examination, Dr Keller noted a full range of movement in the neck, shoulders and elbows. He had limited movement in his left wrist and some reported reduced sensation in the left ring and little fingers. There was a full range of motion in the lumbar spine and he could squat to 50% of normal. There was a reduced range of ankle motion in both ankles with movements of the toes being normal. The plaintiff reported experiencing significant swelling in his right ankle particularly overnight.

88. The plaintiff believed that he could not exceed three hours a day, two days per week of work. Dr Keller opined that the plaintiff had mild restriction of motion in the left wrist, mild restriction of motion in the left ankle, moderate restriction of motion in the right ankle. Dr Keller opined that the plaintiff’s condition had stabilised and that there was no prospect for a full recovery with Dr Keller stating that the plaintiff was likely to have permanent restrictions. Dr Keller recommended that the plaintiff should manage his symptoms with analgesics and long term exercise. Dr Keller thought it would be beneficial if the plaintiff could wean himself off opiate analgesia as tolerance could have been responsible for some of his more wide spread pain complaints. Dr Keller did not believe that he would be receiving any lasting benefit from further passive physical treatment.

89. Dr Keller opined that the plaintiff was permanently unfit for work as a forklift driver or as a labourer. It was reasonable that the plaintiff was totally unfit for work during some years following his injury. Dr Keller opined that in the future, the plaintiff would have the capacity to work up to three hours per day, five days a week doing light, sedentary duties with postural changes required. The plaintiff needed to avoid lifting over 2 kgs, avoiding standing or walking more than 30 minutes and avoiding driving for 30 minutes before taking a short break.

The Reports of the Rehabilitation Provider

90. The defendant relied on a selection of reports from i-Health Concepts, the rehabilitation provider to whom the plaintiff was referred by his workers compensation insurer.

91. The plaintiff underwent a functional capacity assessment on 27 May 2016. The rehabilitation consultant, Ms Stephanie Padilla prepared a report dated 20 June 2016, the content of which can be summarised as follows.

92. Ms Padilla assessed the plaintiff as having the following functional restrictions for 4 hours per day work for 3 days per week:

1. frequent lifting up to 3kg at waist height;

2. frequent lifting up to 3kg from waist to shoulder height;

3. sitting and standing up to 20 minutes;

4. walking up to 20 minutes with breaks;

5. standing up to 30 minutes – dynamically;

6. pushing/pulling up to 12 kg.

93. The assessment also indicated that the plaintiff should avoid the following activities:

1. overhead activity with a load;

2. unilateral balancing;

3. excessive walking – greater than 20 minutes;

4. frequent stair climbing;

5. repetitive left hand gripping/ lifting;

6. squatting and kneeling.

94. The plaintiff was asked to undertake a number of tasks to assess his ability to undertake movements and activities related to his disabilities. The plaintiff was noted to be co-operative and to attempt all tasks required of him. The plaintiff was observed to have an antalgic gait with an inverted foot position. He was not asked to perform balance tasks because of his inability to weight bear on the right foot alone. He was noted to be deconditioned.

95. Ms Padilla recommended that the plaintiff drive only an automatic motor vehicle.

96. The plaintiff underwent a vocational assessment on 3 June 2016. The rehabilitation consultant, Ms Laila Ayshan, produced a report dated 20 June 2016. The contents of that report can be summarised as follows.

97. As at the date of the report the rehabilitation provider identified three possible occupations for the plaintiff, being:

1. Customer Service Officer earning $1,025 per week;

2. Process Worker (light) earing $758 per week;

3. Assembly Worker earning $893 per week.

98. The plaintiff’s General Practitioner, Dr Khalid, was contacted and opined that the plaintiff was unfit to perform any of these positions for the suggested 12 hours per week.

99. The plaintiff was co-operative and well prepared for the vocational assessment. The plaintiff reported suffering pain between 7 to 9 out of 10 and accompanied by discomfort. He suffered from low back pain, bilateral leg, knee and back pain as well as swelling in his legs and hand. His symptoms affected his sleep and general wellbeing. He experienced difficulty with cleaning the house and paced himself to do anything required, but in general his wife performed all household tasks.

100. The plaintiff reported suffering from a number of psychological symptoms including lack of motivation, irritability and anhedonia.

101. The plaintiff reported a number of restrictions consistent with the medical reports which I will not repeat. Ms Ayshan observed a number of those restrictions throughout the assessment.

102. Ms Ayshan noted that the plaintiff reported his English skills as ‘basic’ and that he thought that they were a barrier to his return to work. He reported basic computer skills. The plaintiff thought that he did not have the ability to job seek independently.

103. Ms Ayshan opined that the plaintiff’s transferable work skills made him suited for the occupations identified above.

104. Ms Ayshan recommended that i-Health Concepts conduct a medical case conference with the plaintiff and Dr Khalid to increase the plaintiff’s work capacity from zero to 12 hours per week, that the plaintiff continue to seek medical treatment, that i-Health Concepts provide the plaintiff with job seeking skills and that the plaintiff be referred for vocational counselling. It was intended that the plaintiff’s position be reviewed on 18 August 2016.

105. On 27 February 2017 Ms Delilah Ayshan of i-Health Concepts produced a progress report for the workers compensation insurer covering the period 1 February 2017 to 28 February 2017 (described as progress report 3). The plaintiff was at that time certified fit to work 3 hours per day for 2 days per week, with the following restrictions:

1. lifting or carrying capacity 2kg;

2. sitting tolerance – as tolerated;

3. standing tolerance – 15 minutes;

4. pushing/pulling ability – as tolerated;

5. no bending;

6. driving 30 minutes followed by a rest.

106. It was noted that i-Health Concepts were cold calling employers to seek jobs on behalf of the plaintiff. Ms Ayshan recommended that the position be reviewed on 22 March 2017.

107. On 30 June 2017 Ms Delilah Ayshan of i-Health Concepts produced a progress report for the workers compensation insurer covering the period 1 June 2017 to 30 June 2017 (described as progress report 7). The plaintiff’s restrictions were unchanged from the February progress report. The report noted that on 6 June 2017, 16 June 2017, 23 June 2017 and 30 June 2017 that i-Health concepts conducted cold calling of prospective employers on behalf of the plaintiff and assisted the plaintiff to submit a number of job applications.

108. On 31 August 2018 Ms Rayan Maarabani of i-Fit Rehab produced a progress report for the workers compensation insurer covering the period 1 August 2018 to 31 August 2018 (described as progress report 17). The plaintiff’s restrictions were unchanged from the February progress report. On 22 August 2018 the plaintiff’s treating physiotherapist opined that the plaintiff could work 5 hours per day for 3 days per week with the following restrictions:

1. lifting/carrying capacity 6 kgs;

2. sitting tolerance – as tolerated;

3. standing tolerance – 45 minutes;

1. pushing/pulling – avoid doing so through left wrist;

2. no bending.

109. The physiotherapist advised the rehabilitation provider that the plaintiff could obtain further improvement within four to 12 weeks in a number of areas. The plaintiff had demonstrated improvement with his gait and was able to walk 75m without pain. The plaintiff’s grip strength, I infer in his left hand, had increased from 2kg to 22kg over six weeks.

110. On 13 2018 and 22 August 2018 i-Fit Rehab had conducted cold calling with employers on behalf of the plaintiff. The focus was on Community Service positions because the plaintiff had commenced a Diploma of Community Services. The rehabilitation provider continued to provide the plaintiff with job seeking skills, by performing mock job interviews. The matter was listed for review on 30 September 2018.

111. I infer from the rehabilitation provider reports that cold calling of prospective employers and assistance in compiling job applications for any potential job identified in that process, was a regular part of the service provided to the plaintiff by the rehabilitation provider. The plaintiff’s evidence was that he has not obtained any job or been offered any work trial and I infer that he was not offered any employment or work trial from the cold calling process conducted by the rehabilitation provider.

Consideration

The Plaintiff’s Credit

112. The defendant submitted that the appropriate outcome of the case hinged on the plaintiff’s credit, determined by reference to the surveillance footage. The defendant submitted that all of the medical opinion evidence was based on an acceptance of the veracity of the plaintiff’s evidence, but that he had exaggerated by telling the doctors that he could not place his right foot flat on the floor and that he had a noticeable limp, obvious to anyone who looked at him. The defendant submitted that the footage depicted the plaintiff walking ‘absolutely normally’, that the plaintiff did not have any difficulty with placing his right foot squarely in the ground and there was no indication that the plaintiff was in pain when he did so. The defendant submitted that the plaintiff was walking quickly and displayed no signs of what he told Dr Keller ‘10 minutes earlier’, making it clear that he was fabricating and/or exaggerating what he told the doctors (and the rehabilitation providers) as well as what he said in evidence. It followed, on the defendant’s submission, that the plaintiff could not be believed about his right ankle symptoms and that would give rise to concerns about the veracity of his complaints about the left ankle, left wrist, knees and lower back.

113. The defendant did not dispute that the plaintiff suffered ‘a nasty injury requiring serious treatment and a not insignificant period of recovery and rehabilitation’. The defendant accepted in submissions that the plaintiff was totally incapacitated for work for four years after the accident (to 10 May 2016) and thereafter continued to only have capacity for 20 hours work per week.

114. As a matter of principle, surveillance evidence may be relevant for a number of reasons including to impugn the plaintiff’s credit or to demonstrate capacity for work: Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [155] per Adamson J. It can show that a plaintiff has not been frank about a particular matter or his or her capacity generally. The footage may be at odds with a history given to a doctor at a proximate time or with the plaintiff’s evidence-in-chief. The contents of the footage may undermine the basis on which experts have based an opinion and thereby require an assessment of the value of the opinions based on facts that are inconsistent with what is depicted.

115. Where there is a difference between the evidence and the assumed factual basis for expert opinion, it is a question for the primary judge as to whether the opinion can still be accepted: Paric v John Holland(Constructions) Pty Ltd (1985) 59 ALJR 844 at 846.

116. Where the surveillance evidence is put to the plaintiff for the first time in cross-examination and the medical experts have not seen it, there are several courses of action that may be adopted. If the history given is inconsistent to what the footage depicts, it is usually incumbent on the plaintiff to call the expert and to adduce evidence orally of the effect that the footage has on their opinion: Kubovic at [160] per Adamson J (Ward JA agreeing). A defendant also has the choice to call its medical experts to put the surveillance evidence to them to see what difference the footage makes to their opinions. Kubovic at [164].

117. If there is no express evidence from the medical experts, as in the present case, the primary judge must decide what difference, if any, the disparity between the history or the evidence and the footage makes as to the reliability of the opinions expressed. A substantial disparity will make the opinions inadmissible; a lesser disparity will affect the opinion’s weight: Kubovic at [165].

118. I am not satisfied that the video footage depicted the plaintiff walking normally, without pain or without restriction. This was a matter for expert evidence. The limitations on the plaintiff having a normal or unchanged gait depended upon the physical changes that had occurred within the plaintiff’s right ankle. This was a matter that called for the application of specialised knowledge as provided for in section 79 Evidence Act 1995.

119. All of the medical experts that were qualified for both parties accepted that the plaintiff’s gait had been affected by the changes that occurred as a result of the injury to the right ankle and were confirmed by physical examination. On examination, Dr Habib on 26 May 2016 noted a severely inverted right foot and observed the plaintiff to walk on the outside of his right foot. On 17 May 2018, Dr Habib observed the plaintiff transferring his weight to the lateral aspect of the right foot when he walked. On 22 September 2016 Dr Powell observed the plaintiff’s right foot to be abducted and slightly inverted and that the plaintiff tended to walk on the lateral aspect of the right foot. On 21 September 2017 Dr Powell observed the plaintiff to have a shortened stance phase on the right side, a tendency to walk on the lateral border of the right foot and a varus (twisted) position of the hind foot. Dr Powell concluded that the plaintiff had an altered gait pattern that had aggravated his lumbar spine condition. On 28 September 2017, Dr Keller observed the plaintiff to walk unassisted with a limp putting most of his weight on the outside of the right foot and on examination, observed a severe restriction of movement in the right ankle. On 30 April 2019, Dr Keller recorded similar findings. None of the medical evidence suggested that the plaintiff was exaggerating his symptoms or that he gave any inconsistent history.

120. If I am wrong on the conclusion that the assessment of the plaintiff’s gait was a matter for expert evidence, then in my view the plaintiff’s gait was not normal. There were a number of occasions set out above, when I observed the plaintiff’s gait to change where he appeared to favour his left foot. He was also seen on a number of occasions to favour his right foot by lifting it up and putting his weight through his left leg. Further, the still shots of the video footage are particularly telling. The still shots clearly show the plaintiff putting his weight on the outside of the plaintiff’s foot, and some inversion of the right foot in a manner consistent with the plaintiff’s complaints and the observations of the medical experts. This aspect was not apparent when watching the footage at normal speed, but I got the overall impression that the plaintiff’s gait was adversely affected.

121. The use of the word ‘limp’ in the evidence is apt to mislead for the following reasons. First, it is unclear by what Dr Keller meant when he used that term on either occasion. I would not infer that he was referring to an obvious or exaggerated limp as may be associated with the use of the word by lay people or to lay observation. Second, the plaintiff accepted that he had a limp in the context that he subjectively believes that he cannot walk normally or properly, and the reference to either was to before the (significant) injury occurred. The plaintiff’s subjective belief is wholly supported by the expert medical opinion, and he has good reason to believe that he is significantly disabled as a result of the injuries sustained on 10 May 2012. In all the circumstances, the plaintiff’s evidence about what other people notice about him is no more than a reflection of what he perceives about himself and was not intended to be an exaggeration of his predicament.

122. The footage did not depict activities that the plaintiff said he could not do and accordingly there was no discrepancy between the facts assumed by the medical experts and the plaintiff’s evidence-in-chief. The plaintiff’s evidence was that the pain was always there, but got worse with standing and walking. The footage did not depict him exceeding a limit on walking that he was certified unfit for or in contradiction of what he said he could not do. It is not possible to determine from watching the footage whether or not the plaintiff was in pain.

123. In my view, the plaintiff was a careful and considered witness. He gave evidence that was on occasions that was against interest, for example that he failed one year of his tertiary studies. To my mind that type of evidence was consistent with him being a witness of truth.

124. The plaintiff gave evidence with a calm, quiet and polite demeanour. He made appropriate concessions in the course of his evidence, for example that he had applied for jobs that he thought he could do. He was forthright but calm in his denials of exaggerating or fabricating his symptoms for the purpose of maximising his compensation claim.

125. For all of those reasons, I find that the plaintiff was an honest and reliable witness, that the opinions of the medical experts are based on accurate and reliable information and there is no need to discount the weight to be applied to them.

The Plaintiff’s Loss of Earning Capacity

The Plaintiff’s Submissions

126. The plaintiff submitted that he has sustained a total loss of earning capacity, because irrespective of any residual capacity for work, which is subject to significant restrictions, the plaintiff has been unable to find suitable work. The plaintiff has been required to apply for 10 jobs per month and has been assisted by the rehabilitation provider, but has not been successful in finding suitable work.

127. The plaintiff submitted that he would have progressed in his work with the defendant or found alternate employment such that he would have been earning average weekly earnings (AWE) by 1 July 2015 and that he would have continued to earn an income of that magnitude.

128. The formula by which past and future superannuation was calculated was common ground.

The Defendant’s Submissions

129. I have already referred in [113] above to the defendant’s basis for calculating the plaintiff’s lost earning capacity.

130. The defendant contended that the calculation should be based on the plaintiff’s pre injury wage which was $646.00 per week nett, but accepted as $700.00 per week including some overtime. The defendant allowed CPI increases but no more, arguing that some workers must be employed at the wage that the plaintiff was earning and that there was no basis on which it would be found that the plaintiff would reach AWE.

Determination

131. The plaintiff has been assessed as having a residual earning capacity of between zero hours and 20 hours per week, with a number of restrictions which are for the most part common ground amongst the medical experts. I would prefer the opinion of Dr Keller that his residual earning capacity is about 15 hours per week, comprised of 3 hours per day 5 days per week. I do not accept that he could commence working those hours immediately, but rather that he would benefit from a gradual increase in hours and that he should start with work on alternate days.

132. I am satisfied that the plaintiff has tried very hard to find work, suitable for his physical restrictions, but has been unable to do so. This has involved applying for 10 jobs per month at the direction of the rehabilitation provider, applying for advertised positions, cold calling in person at a number of different types of businesses and participating in the cold calling episodes with the rehabilitation provider at its regular reviews. I am satisfied that the plaintiff was motivated to find work after his injury, but has not been able to do so as a result of his physical incapacity, limited English skills and lack of work experience in Australia.

133. His job skills developed in Iraq have not been transferable to the open labour market in Australia. He has recently enrolled in a Diploma of Community Service. Whilst this demonstrates a willingness to retrain and I infer to work in the future, there was no evidence as to how the completion of this course would increase his employability. I would be speculating, if I was to place much significance on the plaintiff’s enrolment in this course. His employment opportunities are severely limited by his injuries and disabilities. It is likely that his condition will deteriorate in the future, at which time he will require an ankle fusion.

134. I am satisfied that the plaintiff has suffered a total loss of earning capacity.

135. The plaintiff was motivated to work to support his family. His wife did not return to the workforce until the youngest children were at school in about 2016. The plaintiff and his family had a modest existence and I am satisfied that the plaintiff wanted to provide for them and would have worked hard. His background in Iraq is to his credit. He applied many hours each day to work and study commitments. I am satisfied that he would have pursued similar opportunities in Australia with the same vigour if he had been given the opportunity to do so. There is a significant chance that he would have ended up earning well in excess of AWE.

136. I do not accept that the plaintiff would have stagnated in the job that he first obtained with the defendant. After gaining experience and competence I am satisfied that he would have looked for suitable work that would have maximised his earning potential as a way of providing for his family and securing their future.

137. I am satisfied that AWE is an appropriate measure of the plaintiff’s future loss, but I do not accept that he would have reached that level of wages in the time contended for by the plaintiff. In my view, this would have been a more gradual progression which I have estimated to be 5% per annum until reaching AWE on or about 30 June 2019. I have set out the figures for past loss in the following table:

10 May 2012 to 30 June 2012 (7 weeks) at $700 pw 60% of AWE	$4,900.00
1 July 2012 to 30 June 2013 (52 weeks) at $754 pw 65% of AWE	$39,208.00
1 July 2013 to 30 June 2014 (52 weeks) at $833 pw 70% of AWE	$43,316.00
1 July 2014 to 30 June 2015 (52 weeks) at $901 pw 75% of AWE	$46,852.00
1 July 2015 to 30 June 2016 (52 weeks) at $972 pw 80% of AWE	$50,544.00
1 July 2016 to 30 June 2017 (52 weeks) at $1,049pw 85% of AWE	$54,548.00
1 July 2017 to 30 June 2018 (52 weeks) at $1,134pw 90% of AWE	$58,968.00
1 July 2018 to 11 June 2019 (49 weeks) at $1,197pw 95% of AWE	$58,653.00
Total	$356,989.00

138. The plaintiff is entitled to past loss of superannuation calculated at 11% of the past loss figure, which comes to $39,268.79.

139. For the future I would allow loss at the rate of AWE until the date of the plaintiff’s retirement on 15 March 2043. The appropriate multiplier is 738. The future loss is calculated at $1,260.00 x 738 less 15%, which comes to $790,398.00.

140. The plaintiff is entitled to loss of future superannuation calculated at 14.03% of the future loss, which comes to $110,892.00.

Other matters

141. The plaintiff may also be entitled to interest pursuant to section 151M Workers Compensation Act 1987, a Fox v Wood component and costs.

142. I have not yet deducted any amount on account of weekly compensation already paid to the plaintiff.

Orders

143. The orders I make are as follows:

1. Verdict for the plaintiff.

2. I direct that the parties confer and review the mathematical calculations in the judgment.

3. I direct that the parties confer and bring in Short Minutes of Order to give effect to my decision.

4. I list the matter for argument on 28 June 2019 in relation to any outstanding matters.

Addendum

144. On 27 June 2019 the parties reached agreement in relation to the orders to be made.

145. On 27 June 2019 I made the following orders in chambers:

1. Verdict for the plaintiff in the sum of $1,354,026.00.

2. Order that the defendant pay the plaintiff’s costs.

3. The defendant is to have credit for all weekly payments of compensation, currently noted to be $289,469.00. The parties note that weekly payments will continue until the judgment monies are paid to the plaintiff and the defendant will be entitled to credit for any further payments of weekly compensation made between 25 June 2019 and the date that the judgment monies are paid.

4. Note that the parties:

1. agree on the mathematics of the awards set out in the Reasons given on 25 June 2019;

2. agree that the Fox v Wood sum is $34,311.00;

3. agree that the interest sum is $22,167.00.

5. Exhibits to be returned to the parties.

6. Vacate the listing of 28 June 2019.

Decision last updated: 28 June 2019