Menicucci v Transport Accident Commission
[2023] VCC 255
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-00380
| LUISA MENICUCCI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2023 | |
DATE OF JUDGMENT: | 28 February 2023 | |
CASE MAY BE CITED AS: | Menicucci v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 255 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the foot – credit – causation - consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Thapa v Transport Accident Commission [2021] VSCA 239
Judgment: Leave granted to the plaintiff to commence a common law proceeding for damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr C Woollacott | Slater and Gordon Limited |
| For the Defendant | Ms S Manova | Hall and Wilcox |
HIS HONOUR:
Introduction
1Not that long ago, the land approximately 20 kilometres to the north-east of the central Melbourne business district was a semi-rural area. It has now been developed into family friendly, concentrated residential developments, taking in suburbs such as Mill Park, South Morang and Mernda.
2The plaintiff in this proceeding, Luisa Menicucci, is now 38 years of age. For many years she has lived in and around Mernda or Mill Park. She currently lives in her recently built home in Mernda with her husband and three young daughters.
3On 11 April 2019, at approximately 7.40pm, the plaintiff was driving her car through the intersection of Lakes Boulevard with Toulouse Road, South Morang (“the intersection”) with her two youngest daughters (then aged three years and six months respectively) in the rear of her car, when another car failed to give way at the intersection and forcibly collided with her car (“the accident”).
4Any parent of teenage children will know that it can be a difficult exercise to get them out of the bathroom. As at the happening of the accident, a teenage resident of a house adjacent to the intersection was using a bathroom in that house. The tranquillity of that ritual was shattered when the force of the accident caused the plaintiff’s vehicle to smash through the wall of the house and into the bathroom. It is no surprise then that the plaintiff has described that immediately after the accident she was “shocked, confused … exceedingly anxious for her children … and stunned to see the teenager in the bathroom”.[1]
[1]Report of Dr Nathan Serry, consultant psychiatrist, dated 25 August 2020 at Plaintiff’s Court Book (“PCB”) 103.
5Fortunately, the plaintiff, her children and the teenage occupant of the bathroom emerged from the accident relatively unscathed.
This proceeding
6It is against the backdrop of the accident that this proceeding comes before the Court.
7This is a serious injury application brought by the plaintiff pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The plaintiff claims to have suffered a “serious” physical injury to her right foot. It proceeded in the usual way. The plaintiff tendered affidavits sworn by her, together with affidavits from her mother, father-in-law and husband. In addition, she tendered various medical reports and clinical records. She gave oral evidence and was cross-examined. In turn, the defendant tendered various medical reports, extracts from clinical records, extracts from the plaintiff’s social media profiles and payslips from the plaintiff’s current employer.
8I have considered all of the relevant tendered evidence, together with the transcript of the plaintiff’s oral evidence, but will only refer to that material to the extent necessary in these reasons.
9The relevant legal principles are undisputed. The issues for determination in this proceeding are of the type that frequently arise in serious injury applications, namely:
(i)the credit of the plaintiff;
(ii)causation;
(iii)consequences.
10I shall now consider the relevant issues in the order identified and by reference to the relevant evidence.
Credit
11It is trite to note that, in these types of applications, the credit of the plaintiff is a relevant factor.[2]
[2]Johns v Oaktech Pty Ltd [2020] VSCA 10.
12In this proceeding, appropriately, the defendant submitted that the Court need not find that the plaintiff completely lacked all credibility, but the Court should have reservations about her reliability, by reference to inconsistencies in her affidavits, what she has told doctors, and the evidence she gave in the witness box.[3]
[3]Transcript (“T”) 78, Lines (“L”) 1-13.
13On this point, by way of return serve, on behalf of the plaintiff it was conceded that there were “some inconsistencies” that did not reflect favourably upon her, but overall, she gave solid evidence.[4]
[4]T 95, L 16-22.
14Having observed the plaintiff in the witness box, she presented as a somewhat reserved, polite person, who, on my assessment, did her best to answer questions put to her. But there are inconsistencies in the evidence and while this might not be a case where her credit is in issue in the sense of deliberate dishonesty, her unreliability means that some caution needs to be exercised before accepting what she says in the absence of supporting objective evidence.
15One credit issue that dovetails into the issue of causation is the timing of the onset of symptoms in the plaintiff’s right foot.
16In this proceeding, the plaintiff initially relied upon injury to the spine, right foot and a psychiatric reaction as each causing a “serious injury” but, at the commencement of the proceeding, reliance was placed only on the injury to the right foot.
17Much of the cross-examination was directed to the issue of when the plaintiff developed symptoms in her right foot, by reference to when she reported symptoms to a health practitioner. That cross-examination was appropriate and directed to a central issue, namely whether the plaintiff has an accident-related injury, as opposed to a naturally evolving degenerative condition in her right foot.
18The accident obviously involved a highly unusual and frightening set of events. In such a scenario, it is perhaps not surprising that the plaintiff’s recall of some facts is clouded and that some of her evidence is unreliable. In that sense her reliability is in issue, but I do not consider her to have set out to deliberately mislead and that her credit as such was impugned.
Causation
19As mentioned, the credit issue merged, at least to some extent, with the causation issue. The defendant highlighted the plaintiff’s failure to seek treatment or to mention to a medical practitioner that she had symptoms in her foot for several months after the accident. It was submitted that this failure supported a conclusion that the foot injury was not causally related to the accident.
20In her first affidavit,[5] the plaintiff said that, to the best of her knowledge and belief, she had not previously suffered problems with her right foot. She described in that affidavit how after the accident she was initially in a state of shock and concerned for the welfare of her daughters. She said, “The following day I began to notice increasing pain affecting my neck and shoulders, and subsequently was aware of hip and right foot pain”.[6]
[5]Sworn 7 June 2021, PCB 12.
[6]PCB 14.
21In her affidavit, the plaintiff is vague as to when she began to notice increasing pain in the right foot.
22When attending for medico-legal examinations, the plaintiff has remained vague as to when she developed right foot pain. The tenor of the history given to doctors is of such pain coming on soon after the accident, but mostly lacks specificity. For example, to Dr Jennifer Flynn, orthopaedic surgeon, the plaintiff broadly gave a history of sustaining injuries “causing pain of the neck and shoulders, both hips and her right foot”.[7]
[7]PCB 151.
Dr Saxby
23On the issue of causation, the defendant principally relied on the opinion of Dr Terrence Saxby, orthopaedic surgeon, in a report dated 19 September 2022.[8] It was submitted that Dr Saxby supported a conclusion that any right foot condition is due to a degenerative condition of the plantar plate and unrelated to the accident.
[8] Amended Defendant’s Court Book (“ADCB”) 4.
24Because of the emphasis placed by the defendant on Dr Saxby’s opinion, it is necessary to discuss his report in some detail.
25The defendant submitted that Dr Saxby had provided a reasoned opinion as to causation,[9] and that he was really the only orthopaedic surgeon to have conducted an analysis of the development of symptoms, their worsening over time, and the absence of any immediate complaint of significant pain.[10] But, for the reasons that follow, I disagree.
[9]T 84, L 16.
[10]T 87, L 15-19.
26First, having carefully considered Dr Saxby’s report, it is unclear to me what history he actually obtained directly from the plaintiff or what regard he actually had to what the plaintiff told him. The matters recorded by him early in his report as “history” relevant to injury and “subsequent history” appear to have been extracted (and relied upon in giving his opinion) from the documents provided to him.
27Second, in answer to a specific question as to the onset and progress of right foot symptoms, Dr Saxby appears to dismiss the history given by the plaintiff because of his reliance on other documents. He recorded:
“(a) the onset and progress of right foot symptoms;
Ms Menicucci states that her pain developed in her right foot at the time of the accident, but I note her records when she attended the following day to Dr Alexander make no note of foot pain and she really did not present until December 2019 with foot pain when she was assessed by her own GP, and since that time the foot symptoms have become progressively worse.”[11]
[11]ADCB 8.
28Third, Dr Saxby again dismisses the plaintiff’s history and appears to form a view based on some of the documents provided to him when he expanded upon this issue of the onset of right foot symptoms in his answer to a question about any other matter that he considered relevant. Dr Saxby said:
“The only point I would make is that Ms Menicucci did not initially seek medical attention on the day of injury. The next day she sought medical attention. There was no mention of any right foot injury. She only consulted her general practitioner in December 2019 with a complaint of foot pain which she appears to have stated began in the middle of the year. Therefore, there is quite a delay in her presentation for her right foot pain. If indeed she had had a traumatic plantar plate tear, one would expect the symptoms to be maximum at the time of injury and improve over time. However, in Ms Menicucci’s case it is the opposite. Her symptoms appeared to be minimal at the time of injury and have increased over time. This is more consistent with a degenerative condition of the plantar plate, which I believe is the most likely diagnosis of the condition; that this is simple constitutional change and not related to the transport accident.[12]
[12]ADCB 10.
29Fourth, clearly Dr Saxby obtained a history from the plaintiff that her right foot pain developed at the time of the accident. It is equally clear that he has dismissed that history largely due to a consideration of the fact that the plaintiff did not attend her general practitioner until December 2019. Not only has he disregarded the plaintiff’s own history, but he has also disregarded the material from the treating podiatrist, Ms Elizabeth Kiriakidis. Dr Saxby had reports from the podiatrist dated 25 March 2021 and 26 July 2022 (curiously, there is no report dated 26 July 2022 as part of the evidence in this proceeding).
The failure to report foot pain
30I shall return to Dr Saxby’s opinion in a moment, but returning to the evidence of the onset of symptoms, during her oral evidence, the plaintiff was taken to clinical records from Our Lady of Rivergum Medical Centre and, in particular, an entry from Dr Alexander of 12 April 2019,[13] in which Dr Alexander recorded a history of:
“MCA last night hit from the driver’s side and amb was called. Was driving and ended up in a house bathroom. Had a sore neck. Heavy in the legs. A bit dizzy.”
[13]ADCB 105.
31The plaintiff conceded that she did not report right foot pain to Dr Alexander. She accepted there was no reason to hide foot pain from the doctor.[14] She accepted that there was no bruising to the right foot immediately after the accident.[15] She said she could not recall any swelling, but if the foot had been swollen she probably would have mentioned it to Dr Alexander.[16] It was then suggested that she was not limping or unable to weight bear in the days following the accident, and said “I was limping”.[17]
[14]T 37, L 30.
[15]T 38, L 1.
[16]T 38, L 10.
[17]T 38, L 13.
32The plaintiff was challenged about when she commenced limping. She said that it commenced two days after the accident. She had a good memory of it because she was in a lot of pain. She was asked why she did not go back to the doctor to mention that and said:
“I didn’t think about it as my youngest daughter had just gotten out of a hip brace and she had a hole in her heart. I did not think anything about myself. I was concerned about my daughter.”[18]
[18]T 39, L 1-4.
33During cross-examination, the plaintiff stuck to her guns that said she had pain in her foot the day after the accident, bad enough to cause her to limp, but she conceded she did not seek treatment for some time, and even then, did not give a history of the accident. In other words, she made appropriate concessions.
34The first objective reporting of right foot pain is to a chiropractor at the Craigieburn Chiropractic Clinic. The plaintiff tendered clinical records from that clinic.[19] The notes are hard to decipher and suggest the plaintiff attended for mainly neck pain. However, on 11 July 2019, there is a note of severe right foot pain and a suggestion of referral to a general practitioner. There is no history of that foot pain coming on immediately after the accident or, indeed, being related to the accident. An allied health treatment and recovery plan was included amongst the chiropractic records which refer to the injury as a whiplash injury to the neck and thoracic spine.
[19]Exhibit P2.
35Next in time is a report from the podiatrist, Ms Kiriakidis. In a report dated 25 March 2021, which I note Dr Saxby had a copy of, Ms Kiriakidis stated that:
“Ms Menicucci initially presented for an assessment of her foot injury after the accident on 16 August 2019. On examination, Ms Menicucci’s right foot was swollen and tender on palpitation with inflammation present. She was not able to weight bear at the time.”[20]
[20]PCB 58.
36Further in the report, Ms Kiriakidis expanded upon the history provided at that initial appointment on 16 August 2019. She recorded:
“16/8/19 – initial appointment
- Reported serious MVA that she was trapped & recalls braking very hard at the time of the accident. Her right foot was swollen and inflamed. Patient was unable to weight bear without severe pain. Initial diagnosis was fracture or ligament tear, patient was referred for medical imaging to aid in diagnosis (Ultrasound, X-Ray). We also discussed at the time of consultation (and also on request of Luisa) to alleviate her pain, proceeded to prescribe custom orthotics, to immediately off load the area & resume normal gait.”[21]
[21]PCB 59.
37The plaintiff was challenged in cross-examination on the basis that she had retrospectively linked her foot problems to the accident only after undergoing the investigations by way of ultrasound and x-ray and learning of the results of those investigations. I reject that submission as it is inconsistent with the report as set out in the preceding paragraph. Ms Kiriakidis obtained a history of the motor vehicle accident on 16 August 2019 and then arranged the investigations.
38An ultrasound of the right foot (incorrectly referred to as the left foot) was undertaken on 20 August 2019.[22] The radiologist concluded that there were mild changes of adventitial bursitis at the plantar aspect of the second metatarsophalangeal joint. Armed with that ultrasound, Ms Kiriakidis then commenced a program of treatment, including shockwave treatment to the right foot. Eventually a CAM boot was provided in December 2019. The plaintiff required that boot at least until attendance upon Ms Kiriakidis on 19 June 2020.[23]
[22]PCB 36.
[23]PCB 62.
39Returning to consider the relevant clinical records, the plaintiff returned to see the general practitioner, Dr Reuben Ganasan at the Lakes Boulevard Medical Centre in South Morang. The plaintiff had been unable to obtain an appointment with the clinic the day after the accident, hence the attendance on Dr Alexander at the nearby clinic in Mill Park. The clinical notes record the plaintiff attending at Dr Ganasan’s clinic from time to time after the accident, but no mention of the accident until an attendance on 22 December 2019, by which time she had been provided with the CAM boot by Ms Kiriakidis. At that attendance on 22 December 2019, Dr Ganasan recorded various matters, including that the plaintiff had an accident in April and had whiplash, but that “had ongoing foot pain did see a physio and got scans done …”.[24]
[24]ADCB 77.
Dr Saxby, again
40So, to return then to the reliance placed by the defendant on Dr Saxby. The defendant submitted that the plaintiff had failed to establish there were contemporaneous symptoms in her right foot, because her evidence was “clouded” and there was a lack of objective or contemporaneous evidence to support a temporal connection.[25] Therefore, the Court should conclude that the right foot pain did not commence until several months after the accident. Such a conclusion fitted nicely with the opinion of Dr Saxby, namely the lack of immediate symptoms and then an onset and deterioration of symptoms most likely meant that the plaintiff’s condition was degenerate and not trauma (accident) related.
[25] T 81, L 16-31.
Conclusions as to causation
41I reject the submissions of the defendant in respect to causation. I reject the submission that, in effect, Dr Saxby’s opinion should be accepted over other opinions because he had provided the most reasoned opinion as to causation.
42First, broadly I accept the plaintiff as an honest witness. She stuck to her guns when challenged about the onset of symptoms. Not only did she stick to her guns, but she also gave what I consider to be an appropriate and credible explanation, namely that her immediate concern was for her young children.
43Second, by July 2019, the plaintiff was reporting to the chiropractor severe right foot pain. There is no suggestion of any other intervening event or trauma to the right foot. Dr Saxby ignores (or is unaware) of the fact that the plaintiff had severe right foot pain by mid-July 2019. There is no path of reasoning in his report as to how a degenerate condition could produce severe symptoms within such a short period of time, assuming he is correct and there were no symptoms in the weeks or months after the accident.
44Third, when the plaintiff attended the podiatrist on 16 August 2019, she described significant symptoms, including being then unable to weight bear, which she related to trauma from the accident, namely braking very hard and suffering a swollen and inflamed foot. Dr Saxby does not consider such a scenario in his report.
45Fourth, the suggestion that the plaintiff did not link her symptoms to the motor vehicle accident until after undergoing ultrasound examination in August 2019 and then, in effect, retrofitting the ultrasound findings to an assumption that they must relate to the accident, ignore the opinion and history obtained from Ms Kiriakidis. On this point, when challenged for the second time in cross-examination, the plaintiff repeated what I consider to be credible evidence that she had foot pain two days after the accident but just did not think anything about it because she was concerned about her daughters and not worried about herself.[26]
[26]T 50, L 9-13.
46It was put directly to her that it was only after she had the ultrasound of her foot that she entertained the idea of the foot being injured in the car accident. The plaintiff said “[n]o, it’s from the time I started limping, and I just automatically thought it was a bruise. And it’s the way I obviously pressed the pedal”.[27] I also consider that to be credible evidence.
[27]T 52, L 8-13.
47Fifth, a consideration of the whole of the evidence, and allowing for some unreliability of the plaintiff, tends to the conclusion that shortly after the accident she developed symptoms in her right foot, which were severe by mid-July 2019 and bad enough to prevent her from weight bearing by 16 August 2019.
48I consider that the evidence does tend to the conclusion that such right foot symptoms are causally connected to the accident, coming on soon after and rapidly progressing. I do not accept Dr Saxby’s opinion, because he has proceeded on a factual basis contrary to what I have concluded. In particular, he appears to have dismissed what the plaintiff told him, ignored what Ms Kiriakidis recorded in her report and instead placed too much reliance on a failure to report claimed accident-related symptoms to a general practitioner until December 2019.
Dr Menz
49I will deal with the balance of the medical evidence in a moment but, for present purposes, it is convenient next to deal with the further orthopaedic opinion relied on by the defendant, namely that from Dr Anthony Menz, orthopaedic surgeon, in his report dated 10 October 2022.[28]
[28]ADCB 160.
50Dr Menz was also provided with various relevant documents. His report is unclear as to what history he obtained from the plaintiff as to the onset of right foot symptoms. However, he stated in his report that the plaintiff “did not start to complain of right foot pain until three months after the accident”.[29] He opined that the plaintiff had some mild degenerative changes in her right foot based on an MRI.[30] He goes on to say that there was the same level of foot pain “without much in the way of pathology seen on radiological investigations and that there was a significant functional component to the plaintiff’s presentation”.[31]
[29]ADCB 165.
[30]ADCB 166.
[31]ADCB 167.
51From his report, it can be inferred that Dr Menz considers the degeneration shown on radiology to be unrelated to the accident, but he does not specifically say that. In any event, based on my conclusion that the plaintiff did have symptoms soon after the accident, that also decreases the weight that I place on his opinion relevant to the issue of causation, for the reasons already given.
The balance of medical opinion
52I shall briefly set out the remaining medical opinion. It is supportive of the plaintiff’s claim that the right foot condition is causally related to the accident.
Dr Ganasan
53Commencing with the treating general practitioner, Dr Ganasan, in a report dated 13 June 2020,[32] Dr Ganasan obtained a history of the accident for the first time on 22 December 2019. He recorded the plaintiff as having suffered pain in her neck, right foot and bilateral hips, but as being more preoccupied with her daughter who was in the car with her. Dr Ganasan recorded that it was not until July/August 2019 that she realised that her right foot pain was attributed to the accident.[33]
[32]PCB 46.
[33]PCB 46.
54Dr Ganasan reported that the foot symptoms would be likely due to high impact injury during the motor vehicle accident as the best plausible explanation, in part because he did not consider that degeneration would affect one foot and not the other.[34]
[34]PCB 48.
Ms Kiriakidis
55I have already dealt to some extent with Ms Kiriakidis but, for completeness, by letter dated 23 November 2019, she described the radiology results and stated that the plaintiff had suffered an injury at the time of the accident consistent with “hitting the brakes”.[35]
[35]PCB 71.
56In that same letter, Ms Kiriakidis said that she had been seeing the plaintiff “for minimum five years for routine podiatry and this injury was not present prior to the accident”.
57There was time spent appropriately in cross-examination to explore the treatment that the plaintiff had received from Ms Kiriakidis before the accident. But there was nothing that arose out of cross-examination that would place doubt on the statement by Ms Kiriakidis that the right foot injury was not present prior to the accident.
58Next, in another letter dated 10 January 2020, Ms Kiriakidis described more recent radiology as showing a plantar plate tear consistent with trauma impact.[36]
[36]PCB 77.
59Returning then to the report of 25 March 2021, Ms Kiriakidis noted that the last attendance on the plaintiff had been on that day.[37] She opined that the plaintiff would always require modified or comfortable shoes, and custom orthotics were recommended. She said that the plaintiff’s capacity “to stand in one area or walk for long distances greater than one hour will be greatly compromised”.[38]
[37] PCB 58
[38] PCB 63
Dr Flynn
60Returning to Dr Jennifer Flynn, in her first report dated 2 September 2020,[39] she took a history that the plaintiff suffered injury causing pain in the neck, shoulders, right hip and right foot in the accident,[40] as well as noting ongoing symptoms and treatment. She reviewed radiology and clinical records and opined that the plaintiff had right foot metatarsal pain likely due to plantar plate tears.[41] She stated that the diagnosis was consistent with the stated cause, considering the nature of the described mechanism of injury and temporal onset of the conditions.[42]
[39]PCB 111.
[40]PCB 112.
[41]PCB 114.
[42]PCB 116.
61In a further report dated 26 October 2022, Dr Flynn repeated her earlier matters of history and opinion. She repeated her diagnosis of right foot metatarsal pain, likely due to plantar plate tears.[43] She said that the history and examination suggested that the foot symptoms related to an organic condition, not a chronic pain syndrome. She opined that the plaintiff could be treated with a corticosteroid injection, and management by a treating orthopaedic foot and ankle surgeon was advisable for an opinion regarding surgical repair of the plantar plate tears.[44] Ultimately, she described the prognosis as guarded. She said the plaintiff continued to report moderately severe symptoms and noted further assessment by a pain management specialist.[45]
[43]PCB 154.
[44]PCB 155.
[45]T 156.
Associate Professor Edwards
62Associate Professor Elton Edwards is an orthopaedic surgeon who examined the plaintiff and provided two reports at the request of her solicitors. In his first report dated 19 November 2020,[46] Associate Professor Edwards obtained a history of the plaintiff braking exceedingly hard to try and avoid the accident and of being extremely concerned regarding the wellbeing of her children. He recorded the plaintiff attending her general practitioner the next day (not her usual doctor) and complaining of aching throughout a broad area of her neck, shoulders and head. He recorded the plaintiff as saying, “there was also pain in the right foot which she regarded as a lesser problem”.[47] He went on to record that the foot pain “became gradually worse commencing at approximately two months from the motor vehicle accident”.
[46]PCB 120.
[47] Ibid.
63Associate Professor Edwards then recorded worsening foot pain approximately four months after the accident requiring treatment in a CAM walker and attendance on the podiatrist.
64Associate Professor Edwards then recorded the plaintiff reporting that over the last few months her symptoms had improved considerably. He recorded her as saying she had returned to undertake almost all of her household duties, but had not returned to any form of leisure-related exercise. In respect to employment, he noted that the plaintiff had returned to full duties and had also resumed almost full home duties.[48]
[48]PCB 121.
65Associate Professor Edwards then summarised the situation as follows:
“In summary Mrs Menicucci was involved in a dramatic motor vehicle accident on 11 April 2019 where she sustained a neck injury and right foot injury. The right foot injury has improved considerably with conservative measures. The neck injury remains ongoing and relatively similar in status. She has also developed severe anxiety which has impacted substantially upon her life.
With respect to the prognosis, it is my opinion that the foot injury has settled substantially and that further improvement is likely. Whether or not she will be able to resume full unrestricted pre-injury activity remains unknown. However I think it is unlikely that such a recovery, allowing full unrestricted pre-injury activity, will occur, although I do anticipate that she will approach that status. …”[49]
[49]PCB 122.
66Associate Professor Edwards then reported for the second time on 11 July 2020.[50] Relevant to the status of the right foot at that time, Associate Professor Edwards reported that:
“Mrs Menicucci was interviewed in relation to the status of her right foot. She summarised the enquiry regarding her status stating, ‘it is still the same’. She stated she was unable to stand for more than approximately ten minutes because of pain located in the forefoot on the plantar surface. She also advised that the pain extends to the posterior ankle/tendo achilles [sic] region. She stated that she was only able to walk for approximately 15 minutes and then would have to stop and rest for approximately five minutes. She was unable to run or jump or undertake post gym based activities. She stated that on occasions the pain would not simply extend to the ankle region but proximally to her thigh.
She stated that she had undergone a range of treatments including shock wave therapy, laser therapy and ultrasound. She stated that these therapies had not provided benefit other than on the day of application.”[51]
[50]PCB 138.
[51]PCB 138.
67Next, in respect to prognosis, Associate Professor Edwards said:
“Plantar plate injury and associated chronic pain syndrome. It is difficult to differentiate between these two as the first injury has led to the second. Having established a chronic pain syndrome with considerable limitation of activity (only able to stand for ten minutes) it is my opinion that the prognosis is for symptoms of a similar nature to remain more or less indefinitely. Whilst she is to attend a chronic pain clinic, and it is hoped that some benefit will be achieved, it is likely that there will be some degree of residual symptoms in the long term.”[52]
[52]PCB 139.
Consequences
68In respect to pain and suffering consequences, in her first affidavit the plaintiff said that:
“14.Because of the problems with my right foot, Dr Ganasan placed me in CAM walker for about six months to try and improve symptoms. Whilst I was using the CAM walker my symptoms did improve however that improvement has not been sustained over the longer period of time.
15.I also saw a podiatrist who used a number of different treatments including laser, shock wave and ultrasound which were of assistance at the time in providing relief in the severity of my symptoms. I saw the podiatrist for a period of about twelve months in total.
16.In time however my right symptoms have again deteriorated. I used to go to the gym five or six days a week. I used to walk for at least an hour each day and I maintained an active lifestyle generally.
17. As a result of the restrictions imposed by my foot, I have tried to go to the gym but found it very painful and no longer attend the gym. I also am greatly restricted in my walking and although I tried walking, found that the further I walked the more painful my foot became. Over more recent times, I have given up recreational walking because it was too painful for me. I find walking on uneven surfaces and stairs to cause additional pain.
18.I use over-the-counter pain relief such as Panadol but given the chronic nature of the pain both in my right foot and in my neck am loathe to use too much medication.”[53]
[53]PCB 15.
69Next, in a further affidavit,[54] the plaintiff said that her pain and restrictions had remained the same. She said she continued to experience the worst pain in her foot in the cold weather and when the mornings were particularly cold, she struggled to get out of bed and to put her foot down. She said further that:
“5I refer to paragraph 17 of my first affidavit and confirm I have not been back to the gym. I used to walk a lot but I am now restricted to only walking short distances. Sometimes I will go to the park with my kids but I’ll have to stop after five or ten minutes because of the pain in my foot. I find it generally hard to play with my kids which upsets me a lot.
6I don’t like to take medication but I will take over the counter pain relief to manage my pain. Depending on how bad the pain is I’ll take up to six Panadol or Nurofen tablets a day. I tend to use Nurofen more than Panadol as I find it more effective.”[55]
[54]Dated 30 September 2022.
[55]PCB 19.
70The plaintiff provided various lay witness affidavits. I have considered those lay witness affidavits. Much of the content of those affidavits is directed towards the plaintiff’s emotional situation. Much of the evidence in those affidavits is given at a high level of generality as to impairment and impairment consequences and does not identify whether such consequences relate to the plaintiff’s anxiety, her neck condition, or the right foot.
71However, for completeness, I note the evidence from her mother, Nadia Soccio, that the plaintiff always seems to be in a lot of pain, mainly in her legs, and that they used to do a lot of walking together but no longer do that.[56] I also note the affidavit from her father-in-law, Pino Menicucci, which is mostly directly towards the work that she did in his business before and after the accident. That evidence does not specifically refer to the plaintiff’s foot and, ultimately, it is of little assistance in this proceeding.
[56]Affidavit sworn 30 September 2022, PCB 23.
72Finally, the plaintiff’s husband, Tony Menicucci, provided an affidavit.[57] I consider that affidavit is of little assistance insofar as it makes no specific reference to the right foot and broadly describes restrictions without reference to any claimed compensable injury.
[57]PCB 29.
73The plaintiff has described ongoing pain in her right foot, with a limited tolerance for standing and worse after weight bearing for more than about 10 minutes or having to walk for extended periods. Broadly, I accept her evidence, but I do note that she apparently reported to Associate Professor Edwards that the pain was worse after walking for about 40 minutes. I do not consider that much turns on that apparent inconsistency. The general tenor of her evidence is of increasing pain with weight bearing activity, with difficulty walking and standing and of increasing foot pain after a relatively short period of time standing or walking.
74In assessing the seriousness of the injury to the plaintiff, it is relevant to look at not only what has been lost, but what is retained.[58] As the defendant pointed out, the plaintiff retains an ability to now work full-time in an administrative job, as well as remain an active parent to her daughters and engage in some social and recreational activities, such as baking complicated cakes from time to time to celebrate family birthdays. The plaintiff’s ongoing active treatment is limited. She uses either over-the-counter medication or a prescription medication by way of Norgesic.[59]
[58] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at para [27].
[59]T 12, L 28.
75There is no current likelihood of any major intervention, such as surgery or the like. At its highest, Dr Ganasan reported that if podiatric treatments did not work, then she would benefit from consulting a podiatric surgeon for repair of the plantar plates and removal of ganglions with corticosteroid injections.[60]
[60]PCB 48.
76Associate Professor Edwards opined that the plaintiff will have symptoms of a similar nature to remain more or less indefinitely, although some benefit might come from attendance at a chronic pain clinic.
77Dr Flynn opined that it was appropriate for review by a pain specialist (although she seems to link that to the spinal pain), and that further treatment to the foot may be by way of corticosteroid injections, and that management by a treating orthopaedic foot and ankle surgeon was advisable for an opinion regarding surgical repair of the plantar plates.[61]
[61]PCB 155.
78Therefore, a consideration of the whole of the evidence is that the plaintiff has ongoing symptoms in her right foot, for which she continues to use painkilling medication. It limits her ability to stand and walk after a relatively short period of time, even if some of her evidence of such tolerances is hard to reconcile. Nevertheless, I accept that the plaintiff has ongoing foot pain made worse by prolonged standing or walking, which limits her ability to engage in some heavier household or recreational activities. This is consistent with the severe symptoms that she presented with to the treating podiatrist and requiring a prolonged period in a CAM boot. I accept that the symptoms are bad enough that there is the possibility of intervention by way of corticosteroid injections and a possibility of the need for surgery, although at present that does not seem seriously on the radar.
79There is no real suggestion that the plaintiff’s foot injury will impact her earning capacity. It was conceded by her counsel that she has suffered no real economic loss to date and cannot point to any potential economic loss, other than the broad assertion that heavier forms of employment would now be unavailable to her. There is no evidence of her ever having an intention to pursue heavier forms of employment. To her credit, since the accident she has obtained full-time employment and is coping in that employment including overtime when required. I do not accept that there is any real loss of earning capacity consequences to her.
80The question then is whether the pain and suffering consequences, as identified, are sufficient to establish a “very considerable” consequence.
81Having considered the whole of the evidence, bearing in mind that I must consider the possible range of impairments and impairment consequences and not just those that come before the courts, and also bearing in mind that the assessment whether an injury is “serious” involves questions of degree and value judgment,[62] I am satisfied that the plaintiff has suffered a “very considerable” pain and suffering consequence.
[62] Thapa v Transport Accident Commission [2021] VSCA 239
82The plaintiff is still relatively young and there is no suggestion of any improvement or cure for her foot pain. There is the risk that she will require more invasive treatment, such as corticosteroid injections or surgery. There is the probability that she will require painkilling medication of one type or another indefinitely. She has restrictions on her ability to stand, walk and engage in heavier day to day activity. She will likely require ‘comfortable’ shoes and orthotics. It is hard to think of a more fundamental human activity than the ability to ambulate freely and without pain, particularly for a parent of active young children.
83Dr Saxby noted that the plaintiff required ongoing supportive shoes and orthotic inserts.[63] On clinical examination, he found evidence of dorsal swelling, reduced range of motion and tenderness. He also stated that the plaintiff was fit for work “as long as she avoids prolonged standing and walking”.[64] Whilst I do not accept his opinion on causation, his opinion, and conclusions in respect to ongoing clinical findings and restrictions are consistent with the plaintiff’s own evidence and the other medical evidence and fortifies me in my conclusion that the plaintiff has suffered a “very considerable” consequence.
[63]ADCB 8.
[64]ADCB 9.
Loose ends
The claim for compensation
84The plaintiff was cross-examined about the claim for compensation that was either completed by her or on her behalf in respect to the accident.[65] That claim form recorded that the injuries were neck pain, left shoulder pain and left hip pain. The plaintiff was challenged on the basis that the claim did not record right foot pain. This was submitted to be either a credit point or evidence that there were in fact no symptoms in the right foot following the accident.
[65]PCB 33.
85True it is that the claim for compensation does not mention the right foot injury but, equally, the plaintiff is not legally qualified and I do not ascribe to her a level of sophistication to conclude that the omission of any mention of the right foot as an accident-related injury means that there were no symptoms in the plaintiff’s right foot. The claim form is clearly deficient, in that it does not mention the shock or anxiety that the plaintiff had suffered. Further, the claim form is deficient as it does not identify the plaintiff’s daughters as having been involved in the accident. The claim form is part of the evidence and I have taken it into account, but I do not consider it to be of particular importance in determining this application.
Advanced Healthcare
86In relatively recent times, the plaintiff has been referred to Advanced Healthcare for treatment of injuries suffered in the accident. The plaintiff tendered a multidisciplinary pain management assessment of Advanced Healthcare dated 13 October 2022.[66] In my view, that document is of little assistance in the resolution of this application. It refers to a range of symptoms including neck, bilateral numbness in the hands, right lower leg and into the right foot, central lumbar pain and symptoms broadly of anxiety.
[66]Exhibit P2.
87It is clear that much of the assessment has focused on psychological treatment or physiotherapy for a variety of physical symptoms. It is of little assistance in understanding what the treatment has been by that organisation for the right foot. However, at page 3 of the report it is noted under a heading of “Functional Problem” that walking was limited to 10 minutes because of right foot/leg pain, static standing was limited to 5-10 minutes because of limited right foot/leg pain. Otherwise, the report is of little assistance in considering the consequences from the right foot injury and it is of no assistance on the question of causation.
88There was raised as an issue whether, with ongoing pain management, there might be some further improvement in the plaintiff’s condition, such that the Court should conclude that the right foot condition was not “long term”. The material from Advanced Healthcare, such as it is, does not suggest that the treatment is really directed towards her right foot. Further, it does appear predominantly to be directed towards the plaintiff’s ability to manage pain and her psychological reactions.
89That fits with her evidence that she had slightly improved since the accident in her ability to walk or use the foot “through the pain management. How to manage pain”.[67] I accept that evidence and I accept the pain management program is just that, namely a program to better help the plaintiff understand and manage her pain but is not a program directed towards treating the cause of the pain.
[67]T 56, L 6-8.
Pre-accident employment
90Notwithstanding the way in which the plaintiff put her case, there was considerable cross-examination as to the work she had done for her father-in-law before the accident, the hours that she worked and how she was paid. The cross-examination was to test the plaintiff’s credit but also became relevant as to ongoing consequences.
91In respect to credit, I accept that there were inconsistencies in the plaintiff’s affidavits as to the hours that she worked for her father-in-law and how she was paid. Ultimately, I do not consider that to be a big credit point. The consideration of the whole of the evidence tends to the conclusion that the plaintiff had a fairly loose arrangement to perform work for her father-in-law and was paid a sum of money not strictly referable to the work that she did, but rather based on accounting advice seemingly provided to her father-in-law’s company. The fact of that loose arrangement, and that she was provided with a fuel card and a credit card that could be used partly for the company’s business and partly for her own purposes, does not lead to a conclusion that the plaintiff was somehow involved in an elaborate tax evasion scheme or that it was so improper that her credit is impugned.
92It is a relevant consideration of what is retained that, since the accident, the plaintiff has gone on to obtain full-time employment in the open market and is now working more hours than she was pre-accident. The plaintiff is engaged in sedentary-type employment, mostly working from home, and in my view that does not detract from the pain and suffering consequences from the foot injury.
Summary
93For the reasons given, I conclude that the plaintiff has suffered a “serious injury”. Leave shall be given to commence a common law proceeding in respect to injury suffered in the accident.
94I shall hear from the parties as to consequential orders including orders for costs.
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