Maher v Jelena Hall Pty Ltd
[2013] VCC 1158
•4 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01088
| ALLEN MAHER | Plaintiff |
| v | |
| JELENA HALL PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2013 | |
DATE OF JUDGMENT: | 4 September 2013 | |
CASE MAY BE CITED AS: | Maher v Jelena Hall Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1158 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment right ankle – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a right ankle injury suffered by him on or about 4 November 2004 during the course of his employment with the defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C E Hangay | Slater & Gordon |
| For the Defendant | Ms K A Galpin | Lander & Rogers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for pain and suffering damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with the defendant on or about 4 November 2004. The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious” is defined as meaning:
“(a) “permanent loss of a body function.”
3 The body function relied upon ultimately in this application is the right ankle.
4 The plaintiff relied on three affidavits and give viva voce evidence. He was cross-examined. In addition, he relied on two affidavits of his wife, Kelly Maher, sworn 29 November 2011 and 29 August 2013.
5 An impairment of the body function must be permanent in the sense it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities.
6 By ss(38)(c) of s134AB of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “more than significant or marked, and being at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of a body function.
8 Sub-section (38)(h) of s134AB of the Act states that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
9 The defendant concedes that the plaintiff suffered an organic injury in the course of his employment on the relevant date by way of a rupture of the peroneus brevis tendon. The defendant however alleges that this is the extent of the physical injury and it does not include an element of arthritis or chondromalacia in the ankle joint, whether by way of causation, aggravation or acceleration. Secondly, the defendant argues that whatever the consequences of the agreed injury, the range of impairment does not meet the relevant threshold.
The injury
10 Following the injury, the plaintiff was referred to Mr W H B Edwards, a foot and ankle surgeon, in or about May 2005. At that time, the plaintiff described a moderate aching of the lateral hindfoot. It was waking him perhaps twice a week. It was aggravated by activity, especially walking on rough ground, for instance across a building site. He was having trouble with shoes. He reported a limp and swelling, and he felt the limp was starting to cause pain in the other leg. He told Mr Edwards he felt the hindfoot felt weak and very often unstable.
11 Mr Edwards examined an ultrasound and considered that the imaging was consistent with a peroneal tear. He thought it quite probable the plaintiff had suffered an inversion injury, rupturing his peroneal, and at that time, collateral ligaments of the ankle (the latter finding was subsequently dismissed at operation).
12 In or about June 2005, Mr Edwards thought it sensible to perform an ankle arthroscopy and discussed the surgery with the plaintiff. He stated that he discussed with him “the salient risks and potential complications”. The plaintiff was warned of a long recovery period, and in particular of nerve injury when dealing with peroneal surgery. He was also warned that the ankle will never be as sound as it was in the past.
13 Accordingly, on 24 June 2005, the plaintiff proceeded to surgery at the hands of Mr Edwards. The operation note[2] recorded a history of the plaintiff rolling his ankle at work more than six months ago, which had resulted in a “significant injury”. He had persistent moderate aching lateral to the hindfoot pain which sometimes woke him at night. It was worse with activity, particularly walking on rough ground. An MRI scan had shown a peroneal tendon rupture and no intra-articular pathology.
[2]exhibit C, page 50
14 The operation consisted, relevantly, of the following:
“Peroneus brevis bulk excision; then peroneus muscle to peroneus longus tendon transfer; osteotomy of the peroneal tuberosity.”
15 One of the operative findings was:
“Global low grade chondromalacia without any focal lesion.”
16 There was a further comment in the operation note:
“There was however global degenerative change.”
17 At that stage, Mr Edwards thought that an ankle reconstruction was not necessary. The postoperative orders included the comment:
“He will need aggressive physiotherapy. I am concerned in the long run about the degenerative change clearly seen within the ankle.”
18 Mr Edwards saw the plaintiff again on 26 September 2005. He recorded:
“Unfortunately he has some lateral forefoot numbness.”
19 The plaintiff was still having physiotherapy and reported some leg ache and trouble with weakness when he walks and stands.
20 Mr Edwards saw the plaintiff again approximately a year later on 27 July 2006. The plaintiff gave a history that things were much better but he still had significant troubles. He reported a background ache which was constant. He had trouble walking on rough ground and rough surfaces at work, particularly metal mesh, when he has weakness or instability of the hindfoot. This was despite the use of a brace. He had clearly undergone aggressive physiotherapy and he was still undergoing same. At work he tended to use a high top boot.
21 Mr Edwards stated that:
“In essence our patient has a robust tendon transfer but it would seem that he has not fully converted peroneus longus to peroneus brevis function. I very much doubt that there is further surgery that can usefully help this. I think he should continue on with conservative measures. Clearly if he develops problems we might have to investigate a salvage procedure, but at this stage I think his best option is to hold off.”
22 The defendant’s insurer had the plaintiff examined by a physiotherapist, Mr Max Neufeld, on 19 February 2007.[3] Part of the history obtained thereat was as follows:
“[The plaintiff] stated he had five months off work following surgery, which time he underwent regular physiotherapy treatment and hydrotherapy which he found helpful. He subsequently returned to work on restricted hours and duties, and has now progressed to be working full-time with work restrictions of not lifting more than 20 kilograms, avoiding walking across steel mesh, and avoiding excessive stair climbing or tackling ladders. He also avoids jumping off the back of utes and trucks. I believe he is currently receiving work restriction certificates from his physiotherapist.”
[3]exhibit C, page 42
23 It was further noted that the plaintiff was currently attending on average once per week and occasionally twice per week for physiotherapy. He was receiving a benefit of at least 50 per cent reduction in pain for two days following the treatment session. He said following these two days, he gradually suffered an increase in symptoms in the right lower leg.
24 Mr Neufeld also took a history that the plaintiff had received hydrotherapy treatment and strengthening and flexibility exercises which he continued to do at home on a regular basis. He was also continuing to ice his leg on a regular basis, and walked into water at a local beach at least three times per week, and in the past had used elastic exercise rubbers to regain strength in the leg.
25 On that occasion, the plaintiff described the following ongoing symptoms:
· Intermittent aching in the lateral right ankle and lower leg varying from mild to severe in intensity
· Occasional severe sharp pain felt under the lateral malleolus
· Intermittent cramping in the right calf muscle of moderate intensity
· Swelling in the right ankle
· Instability in the right ankle.
26 Further, a history was taken that the plaintiff wore a high ankle boot at work and occasionally a specific ankle brace to improve stability, although at times “his ankle will give way”. Uneven surfaces, tackling concrete stairs on construction sites or attempting to use ladders increased ankle symptoms. His right ankle and lower leg were always more sore and swollen at the end of a working day, as he had to stand and walk around throughout the work shift. He was no longer taking any prescribed medication but was taking a daily dose of glucosamine.
27 Significantly, he had reported a few falls since returning to work, which he attributed to ongoing instability in the right ankle. Further, he described sleep disturbance on most nights due to the ankle, which was also stiff and sore on awakening for about 40 minutes each morning. When asked about a limp, he replied that it was “okay” earlier in the day but was always more evident at the end of a working day due to increased pain. He could squat to full range, although this produced ankle pain. Kneeling was less difficult.
28 It was Mr Neufeld’s opinion that the plaintiff was suffering from–
“…chronic pain and associated physical dysfunction related to a significant soft tissue injury to the right ankle that occurred at work on 4 November 2004 involving ligament tendon injuries. These resulted in a significant instability in the ankle, which despite surgical reconstruction and conservative treatment, has left Mr Maher with chronic pain, swelling, muscle tightness and dynamic instability with resultant physical limitations as described in the body of the report above.”
29 At that time, Mr Neufeld considered that given the nature of the injury, the ongoing chronic condition and the specific irritation of his condition by his current employment, it was not unreasonable for the plaintiff to receive appropriate ongoing physiotherapy treatment, although clearly the physiotherapy was not improving his overall functional capacity, but rather “palliating” symptoms to allow Mr Maher to cope at work as a builder’s labourer. It was felt it would be unlikely in the future that he would be able to return to walking on steel mesh, jump in and out of the back of utilities, climb ladders without restriction or carry heavy objects. Finally, Mr Neufeld said:
“I would strongly encourage the plaintiff to be wearing an appropriate, if possible, lightweight ankle brace within his boot during work hours to reduce irritation of the underlying condition and the possibility of further falls or major instability incidents.”
30 The plaintiff's general practitioner, Dr M Athari, consulted with him on 26 November 2008, presenting “once again with chronic pain of the right ankle”. No particular abnormality was noted on x-ray.[4]
[4]exhibit C, page 67
31 The plaintiff was examined by Mr John Hart, surgeon, for the purposes of an impairment assessment pursuant to the relevant tables on 7 February 2008. He took a history that the plaintiff experienced discomfort when walking on uneven ground, which is a frequent occurrence in his work as a builder’s labourer. He had developed an ache at the end of the day, particularly if he had to climb frequently. He experienced occasional swelling but no locking or catching, and there had been no definite giving way.[5]
[5]exhibit 1, page 24
32 The plaintiff’s treatment at that time was:
“He applies ice at the end of the day which he feels helps his discomfort and swelling. He wears an elastic support on days when he has to do heavy work and attends physiotherapy if he has an acute flare-up. He takes no medication.”
33 It was noted by Mr Hart that prior to the accident, the plaintiff rode horses and fished regularly. He no longer rode horses, although he still was fishing, although he had to buy a bigger boat and restrict his activities to calm weather because of the discomfort in his ankle and hindfoot.
34 Mr Hart considered that the injury suffered at work was a tear of the right peroneus brevis tendon, which had been treated by surgical repair. At that time, the impairment consisted of a “mild impairment for slight limitation of inversion of the right hindfoot and a one centimetre atrophy of the right leg”.
35 The plaintiff was also assessed by sports physiotherapist, Mr Sam Leslie, on or about 4 December 2010 with respect to a back injury suffered in October 2001, together with the ankle injury suffered in 2004. In essence, he considered that ongoing treatment was required for both conditions, and in particular with respect to his ankle, he considered the plaintiff would have ankle restrictions in high level activities for the rest of his life. He considered that the nature of his injuries had caused significant damage to his ankle which precipitated osteoarthritic degenerative change. Although not specifically commented upon by either counsel, I doubt whether the last comment is within the expertise of Mr Leslie.
36 In any event, he considered that as a result of the ankle injury he would be able to perform a large number of work duties but is restricted in the following:
· unable to jump in and out of a tray truck
· unable to walk up stairs or ladders repetitively
· unable to climb up and down scaffolding.
37 Other restrictions probably were more attributable to his back condition.
38 Mr Edwards reviewed the plaintiff again on 18 August 2011. He took a history that there was background pain on a daily basis but activity made it worse. He had particular troubles with ladders, stairs and rough ground. He told Mr Edwards that he walked his dog every day, typically on the beach, and he liked walking in the water. He had trouble after a heavy day’s work. He had trouble with rough ground, although he could walk up and down ladders or stairs, but if he did it repeatedly he had a flare up of symptoms.
39 The foot would sometimes wake him but this was not routine. It sometimes gave way. This last happened at around Christmas last year and it could feel weak. There was intermittent numbness along the lateral border of the foot, although this was not present on examination. It sometimes clicked. He had physiotherapy but did not use a brace. He tended to use lace-up boots for work and he had trouble fishing, particularly in rougher weather.
40 On examination, there was tenderness of the peroneal tendon laterally, and to clinical examination there was normal sensation. Mr Edwards’ diagnosis at that stage was that there had been a rupture of the peroneus brevis “in association” with his chondromalacia of his ankle. He now had some compromise of function of the sural nerve.
41 Mr Edwards noted that the plaintiff’s symptoms were aggravated by activity, particularly walking on rough ground, stairs and ladders. He was also using supportive lace-up boots and sometimes had physiotherapy. He noted that the plaintiff was precluded or restricted in relation to the following activities:
(a) repetitive and/or prolonged use of the right ankle and/or right foot;
(b) prolonged walking or standing;
(c) running;
(d) walking up inclines or down declines;
(e) using steps or ladders.
42 Mr Edwards noted that prolonged activity due to any of these activities caused pain and swelling. He considered that these incapacities would continue for the foreseeable future.
43 His prognosis was as follows:
“He may develop subtalar arthritis or dysfunction. Ultimately he might go on to require a subtalar fusion.”
44 As to arthritis, Mr Edwards replied:
“He is at increased risk of developing arthritis. I am not convinced that things will greatly deteriorate. He may require subtalar fusion either because of arthritis or to deal with tendon weakness or imbalance.”
45 Thereafter, the plaintiff was seen by Mr Kenneth Brearley, orthopaedic surgeon, on 30 September 2011. Mr Brearley took a history that after a hard day’s work, the plaintiff has aching pain in the ankle and foot and after a particularly heavy day, he has to ice his foot and ankle in a bucket when he gets home. He said on average he would have to use this icing about twice a month. On other occasions, he puts up with the discomfort. He stated that he felt his ankle was unstable. He had difficulty walking along the beach with his dog because of this feeling that he may roll the ankle again. He is unable to go up ladders and he cannot jump off the back of a truck. He walks with a limp when he is tired. He is unable to run more than 50 yards. He is very apprehensive about walking on irregular ground and on sloping ground also.
46 He gave a history that he had had a few falls when he rolled over on the ankle when he is not concentrating on being careful.
47 As to his work activities, Mr Brearley recorded that the plaintiff was unable to do heavy labouring. He was restricted to moderate to light labouring only. He was unable to ride his children’s horses. He was unable to kick a football with the children. He could not ride his trailbike. He was unable to go rock fishing. He was able to do a limited amount of gardening and lawn mowing. This was accompanied by pain and swelling in the ankle later. He was unable to stand on a ladder when he had to do maintenance around the house but otherwise he can manage most of that.
48 I should pause at this point and record that the histories taken by the various medical practitioners were generally in agreement with the evidence given by the plaintiff both in his affidavits and in viva voce evidence in Court.
49 Mr Brearley examined the plaintiff and found him to be –
“… a pleasant straight-talking strongly built man who gives no sense of exaggeration of any of his symptoms at all. Certainly there is no evidence of any functional or psychological overlay. If anything he downplays his disability.”
50 I should add that this is precisely the impression that I obtained from the plaintiff in the witness box, and counsel for the defendant fairly conceded that he was honest and straightforward.
51 On examination, Mr Brearley found that movements of the ankle joint showed slight restriction only and the same with mid tarsal joint movements. The treatment consisted of an occasional Panadol and icing of his foot and ankle when his symptoms are severe, which was once every two weeks or so. He was restricted in relation to employment as follows:
·Repetitive and/or prolonged use of the right ankle and/or right foot
·Kneeling squatting or crouching
·Prolonged sitting, walking or standing
·Running
·Walking up inclines or down declines
·Using steps or ladders.
52 Mr Brearley said that the majority of these restrictions were no longer possible for the plaintiff. In particular, this referred to kneeling, squatting or crouching and using steps or ladders and walking up inclines and walking on irregular ground.
53 As a consequence of his physical injury, the plaintiff was very limited with regard to his recreational activities and he was rarely free of pain. The prognosis was quite bad. The likelihood is that he would have increasing pain and stiffness of his ankle as a result of “gradually developing degenerative arthritis of the ankle joint”.
54 Mr Brearley further stated:
“He is certainly at an increased risk of developing arthritis and in fact this is already established.”
and:
“As he develops gradually worsening symptoms of arthritis he will require ongoing medical treatment conservative initially, but surgery is a realistic possibility. This would involve fusion of the ankle joint. This might possibly be required in 10 years time or more.”
55 I should note that none of the medical practitioners were cross-examined in this case and I am willing therefore to infer that Mr Brearley’s opinion is that the gradually worsening symptoms of arthritis are causally related to the subject injury probably by way of aggravation given that there was some pre-existing degenerative change.
56 Mr Brearley stated:
“Any future operation should eliminate much of his pain but he would be left with a stiff ankle joint which would add significantly to his disability.”
57 The next practitioner to examine the plaintiff was again Mr Hart, on 9 May 2012. On that occasion, Mr Hart recorded that:
“The treating surgeon Mr Edwards commented that the plaintiff may require a subtalar arthrodesis although there was a finding of a full range of movement in the hindfoot when he assessed him on 18 August 2011.”
58 Mr Hart took a history that, in the intervening period since last seen, the plaintiff said he had suffered increasing pain over the lateral aspect of the right foot behind and distal to the lateral malleolus extending to the lateral border of the foot. This pain had become constant and was aggravated by standing and walking. He said that he developed swelling at the end of the day over the lateral aspect of the hindfoot and experienced giving way on rough ground. He also complained of intermittent numbness over the lateral aspect of the foot which had previously resolved and had now recurred.
59 As to medications, the plaintiff tried to avoid same and only took occasional Panadol for pain.
60 At work the plaintiff avoids working on ladders and scaffolds and walking on reinforced mesh and rough ground. He no longer rode horses but he was still fishing, but less than previously.
61 In summary, Mr Hart said that the plaintiff had continued to complain of discomfort in his right hindfoot since he was last seen, and the symptoms had mildly increased.
62 Examination revealed that he had slight limitation of inversion and it was possible that he may be developing mild arthritis of the subtalar joint “but apart from the limited inversion there is no objective evidence of this”.
63 In answer to specific questions, Mr Hart stated that the plaintiff suffered a rupture of the right peroneus brevis tendon and that the slight limitation of inversion of the subtalar joint may represent some mild degenerative change developing in the subtalar joint, although there was no evidence of this on imaging that was obtained in 2011. Significantly, he stated:
“If the worker is suffering from subtalar arthritis, that would be a direct result of the injury.”
64 Finally, Mr Hart thought that the prognosis was excellent in the sense that he thought it highly unlikely that the plaintiff would develop significant arthritis in either the ankle or subtalar joint in the foreseeable future.
65 More recently, the plaintiff was examined by orthopaedic surgeon, Mr John O’Brien, on 20 November 2012. He took a history as follows:
“Currently, Mr Maher describes constant pain, localised to the lateral aspect of the right ankle, which he states can extend proximally up the lateral aspect of the distal calf, and sometimes extend into the right foot where he reports a throbbing pain. The patient stated that, in general, the severity of his ankle pain is five out of 10 on the Visual Analogue Scale, but with aggravation can reach eight out of 10 on the Visual Analogue Scale.
The plaintiff stated that the pain is aggravated particularly by excessive activity, and especially climbing stairs, ladders, scaffolding, and walking on uneven ground. The patient indicated that he is unable to walk on areas of reinforced steel at work, even when wearing high sided work boots. The patient, in fact, stated that he still experiences occasional giving way of the ankle and it rolls.
Mr Maher described pain and stiffness in the ankle in the early morning, and after prolonged sitting and prolonged driving. The patient reported that the ankle pain can cause disturbance of sleep. The plaintiff stated that the pain was always worse at the end of a working day, and he would end up icing the right ankle five nights out of seven.”
66 Further, the plaintiff told Mr O’Brien that he could squat and kneel with some difficulty, and he had difficulties with tasks such as mowing the lawn and any prolonged driving. He stated that walking on uneven surfaces, such as sand, was also difficult and caused aggravation of pain.
67 On physical examination, the plaintiff was able to squat, although did describe some pain in the lateral aspect of the right ankle. Tenderness was described along the line of the peroneal tendon behind and below the lateral malleolus. Some tenderness was also described across the anterior aspect of the right ankle joint.
68 In discussion, Mr O’Brien noted that arthroscopy revealed significant peroneal tendon pathology. In addition, the arthroscopy demonstrated degenerative changes within the ankle joint. Reconstruction of the peroneal tendon complex certainly resulted in improvement in symptoms. However, the plaintiff continued to report pain over the lateral complex of the ankle, associated with some sense of instability.
69 Significantly, Mr O’Brien stated as follows:
“Physical signs certainly demonstrate restriction of ankle dorsiflexion and subtalar movement, in addition to a persistent tenderness in the lateral aspect of the ankle joint. I would suggest this indicates the presence of some degree of ankle and subtalar joint arthritis, secondary to the described injury. In addition, there does remain evidence of some mild peroneal tendinopathy. ... The injury is consistent with the stated cause. ... The clinical condition now appears stable. The patient remains mildly symptomatic, with a history suggesting some progression of, in particular, intra-articular pathology. At present, however, I would suggest there is no indication for specific active treatment. One could not, however, exclude the possibility that if significant pathology progressed, there would arise the need for active treatment.”
70 Once again, I am prepared to infer from this opinion that Mr O’Brien is forwarding an opinion that the arthritis, which he believes exists on clinical grounds, is causally related to the described injury, probably by way of aggravation.
71 Mr O’Brien assessed the plaintiff again on 23 July 2013:
“On examination, there was quite marked tenderness immediately posteriorly and inferior to the lateral malleolus, and tenderness also described across the anterior aspect of the ankle and immediately in front of the medial malleolus. There was no apparent active extension of the joint.”
72 Included in the history was that approximately two weeks earlier, the plaintiff had walked across a road in the dark, and on stepping on to the nature strip, his right ankle gave way, causing him to stumble. The plaintiff immediately felt some aggravation of ankle pain, but in particular, experienced a sharp, stabbing pain over the anterior aspect of the right knee, directly under the kneecap. He went off work for a time, and underwent symptomatic treatment of the knee. There is a paucity of information with respect to any further development of knee injury.
73 The plaintiff further told Mr O’Brien that he still had a sensation of instability of the ankle, and he found that pain was aggravated by walking on uneven ground. He stated he had to be really careful where he placed his foot, and on stairs he always holds onto rails going up and down. He was also aware of frequent swelling of the ankle, usually after a working day, and as a result, he regularly iced the ankle. He also stated on occasions he wears an ankle brace.
74 It was Mr O'Brien’s opinion that chronic pain continued to be described in addition to the sense of instability, and further, he stated:
“Indeed, a recent episode of ankle instability would now appear to have resulted in quite marked symptoms associated with the right knee which remains under investigation.”
75 Further, he stated that:
“Physical signs in relation to the right ankle appear to have changed little, there being continuing restriction of movement of both the ankle and subtalar joint, which I would consider does indicate the presence of intra articular pathology, which I would now call post-traumatic arthritis. In addition, there still remains some clinical evidence of peroneal tendinopathy.”
76 Once again, I infer that this opinion means that the post-traumatic arthritis is causally related to the original injury, probably by way of aggravation.
77 Finally, Mr Kenneth Brearley also saw the plaintiff recently, on 18 July 2013. In summary, there was no improvement in the condition of the right ankle and there had been some reported deterioration with somewhat more pain and disability than before. The plaintiff said he had ongoing pain of variable severity and a feeling of instability. Mr Brearley also took a history of the knee injury consequential upon the rolling injury of the ankle. Mr Brearley once again considered he was restricted with regard to employment in the foreseeable future and his lifestyle had been disturbed and that he was no longer able to ride his motorbike and he cannot ride horses and is unable to go dancing with his wife, which he did regularly before. The prognosis was said to be not good and there was not likely to be any improvement in the ankle and foot and his condition is considered stabilised. Mr Brearley thought he was at increased risk of developing arthritis of the ankle joint and this will cause increasing pain and stiffness of the ankle and gradual difficulty with his work.
78 In summary, in identifying the injury, I note that the defendant has not had the plaintiff further examined by Mr Hart since May of 2012 and given the virtual concurrence of opinions between Mr Brearley and Mr O’Brien, having examined the plaintiff in 2013, I am disposed to accept, on balance, that the plaintiff has developed or is developing post-traumatic arthritis which is causally related to the subject injury by way of aggravation thereof and that arthritis is partially responsible for the pain and limitation of movement suffered on account of the injury.
Consequences
79 The consequences that I have referred to above as part of the histories given to the various medical practitioners are consistent with the evidence given by the plaintiff in his affidavit and evidence before me. In particular, I refer to the dicta of Maxwell P in Haden Engineering Pty Ltd v McKinnon[6] where his Honour recorded, at paragraph 9:
“… The ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. … .”
[6](2010) 31 VR 1
80 At paragraph 10, he stated:
“As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.”
81 At paragraph 11, he stated:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
82 Relevantly to the issues in this case, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said, at paragraph 12:
“As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
83 Also relevantly, an assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism.
84 At paragraph 13, Maxwell P observed:
“As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
85 Before aligning elements of evidence with the criteria referred to above, something needs to be said about the plaintiff’s pre-existing back injury which he suffered in or about October of 2001.
86 Evidence was adduced from Mr Sam Leslie in a report dated 10 August 2010 to the effect that the plaintiff was, at that point, suffering from ongoing chronic low-back pain which had an effect on his activities ever since suffering the original injury. No specific diagnosis was given in the report other than that the low-back pain was “chronic”.[7] However, the plaintiff was examined by musculoskeletal physiotherapist, Mr Tony Flanagan, on or about 2 June 2010.[8] In essence, Mr Flanagan considered that both conditions required some ongoing symptomatic treatment.
[7]exhibit 3
[8]exhibit 2
87 Of interest, however, were his findings on examination of the lumbar spine. They were as follows.
“On examination, he had no obvious sign of postural deformity of his lumbar spine. He was slightly overweight with a protruding abdomen. On examination, he had a full range of movement in all directions. Examination of his lumbar movement showed full pain-free range [of] movement in all directions. Straight leg raising was unaffected on both sides. He was able to squat without pain. Examination of his hip movement on both sides showed no restriction. On palpation he was slightly stiff, tender over left L4-5.”
88 These findings and the tenor of the report with respect to the back injury is consistent, in my view, with the plaintiff’s own evidence in the witness box to the effect that there was some restriction in his everyday activities with respect to the back but such activities had not precluded him from engaging in fishing, horse riding, kicking the football, rock fishing and dancing with his wife prior to suffering the ankle injury.
89 Once again, Mr Flanagan’s findings to the effect “I found Allen to be a most open and genuine witness who told his story in a seemingly straightforward and honest manner” to be consistent with all the medical witnesses referred to, as well as my impression of him in the witness box.
Findings
90 In terms of the criteria referred to above and my finding that the plaintiff’s injuries include the aggravation of an underlying arthritic condition, I make the following findings:
(a) The plaintiff was an honest witness and made concessions where relevant, and, in my view, gave a frank account of his disabilities;
(b) The plaintiff, in my view, has permanently lost the opportunity to work full-time without restriction in the future on account of his injury, although not satisfying the statutory test for economic loss pursuant to this legislation. Nonetheless, such a restriction on his working capacity is relevant in the assessment of pain and suffering consequences;
(c) He further swore he can no longer rock fish, ride his motorbike, ride horses or kick a football or dance. These consequences were not seriously challenged in cross-examination.
91 Taking into account the plaintiff’s experience of pain and disabilities and his honest presentation, it is my opinion that the pain and suffering consequences to which the physical compensable injury materially contributes are “very considerable and more than significant or marked”. I consider that his injury to the right ankle has met the threshold test for leave to bring proceedings for pain and suffering damages under s134AB(16)(b) of the Act and leave will be so granted.
92 As a footnote, I cite paragraph 15 of Haden Engineering Pty Ltd v McKinnon[9] referred to above, to the following effect, where Maxwell P said:
[9]Supra
“… The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. … .”
- - -
0
2
0