Micallef v Victorian WorkCover Authority
[2012] VCC 1746
•16 November 2012
| 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-11-00428
| DAMIEN RENO MICALLEF | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2012 | |
DATE OF JUDGMENT: | 16 November 2012 | |
CASE MAY BE CITED AS: | Micallef v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1746 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right ankle injury – pain and suffering damages only – whether impairment satisfies the “narrative test”
Legislation Cited: Accident Compensation Act 1985 (as amended), s134AB(38)(a)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health [2008] VSCA 153; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Sabo v George Weston Foods [2009] VSCA 242; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr J L Batten | Herbert Geer |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 9 February 2011, Damien Reno Micallef (“the plaintiff”), seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for injuries to his right lower leg and in particular, his right ankle, suffered during the course of his employment with W P Williamstown Pty Ltd, trading as a real estate agent business known as “Century 21 – Williamstown” (“the employer”) on 12 September 2007 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant Legal Principles
4 The Court may not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means─
(a)permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the lower right leg, and in particular, the right ankle.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” was suffered in the course of or due to the nature of his employment with the employer on or after 20 October 1999;[3]
[3] See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [11]
(b) “the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
[4] See Barwon Spinners (op cit) at [33]
(c) “the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked, and as being at least very considerable”.[5]
The test for “serious” is sometimes referred to as the “narrative test”.
[5]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken account of for the purposes of paragraph (c) of the definition of “serious injury”;[6]
[6]See s134AB(38)(h) of the Act
(b) must make the assessment of “serious injury” at the time the application is heard;[7]
[7]See s134AB(38)(j) of the Act
(c) must give reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[8]
(d) notes that it has been observed that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 586 at [89]-[92]
[9]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
9 Counsel for the defendant informed the Court there was no issue that the plaintiff had suffered a compensable injury with some minor impairment and some minor consequences. The issue between the parties was as to whether or not the consequences of any impairment satisfied the narrative test – essentially, it was that type of case referred to as a “range case”.[10]
[10]See generally Transcript (“T”) 8, L15 – T 9, L9
The Evidence of the Plaintiff
10 The plaintiff gave evidence that he had been through his affidavits sworn on 27 September 2010[11] and 9 November 2012[12] and that the contents of such affidavits were “true and correct”.[13]
[11]See Exhibit 1 at page 15 PCB
[12]See Exhibit 1 at page 21A PCB
[13]T 9, L24-25
11 By way of his first affidavit, the plaintiff gave the following evidence:
· He is a thirty-two year old (born in July 1980) single man who lives with his retired parents.
· In 2002, he was diagnosed as suffering from schizophrenia.
· On 12 September 2007, he suffered injury to his right foot and ankle during the course of his employment with the employer. The employer had arranged a “four-wheel drive bonding session” held in the La Trobe Valley in Gippsland. When walking down a four-wheel drive track, which was steep and very rocky, the plaintiff slipped and landed on his right foot and ankle, suffering a severe fracture to the ankle.
· The plaintiff was conveyed by his workmates to the La Trobe Valley Regional Hospital, where he underwent an operation which has been described as “an open reduction with internal fixation of the medial malleolus and lateral malleolus”.
· On discharge from the hospital, the plaintiff came under the care of his normal general practitioner, Dr Cesar Tan, who referred him to the orthopaedic surgeon, Mr M J Clifford, who he saw on a couple of occasions, the last being, he believed, on 11 December 2008.
· He has continued under the care of Dr C Tan.
· Prior to the injury, the plaintiff describes himself as “extremely fit and active” and trained in boxing and kickboxing. Furthermore, he trained in soccer and played soccer at a high level, and regularly jogged as a part of a fitness regime.
· Since the injury, he has had “considerable ongoing problems” with the right ankle and foot, including:
- the ankle does not bend anywhere near fully
- the right ankle and foot is misshapen and scarred
- if stress is placed on the right ankle and foot, he experiences pain and swelling
- the metalwork from the operation is still in place and his ankle and foot feel strange when moved
- he has noticed that if he is on his feet for “too long”, he experiences pain, and in the morning, his ankle is stiff and sore, particularly in the cold weather, and is also discoloured, a purple/blue colour. In very hot weather, the ankle and foot become more painful and swell.
· He has tried to resume jogging to keep fit but that has brought on too much pain and he has had to give that up. Furthermore, he can no longer do the boxing and kickbox training and can no longer play soccer. In particular, he states:
“… These were things that I loved and I miss them greatly. Because of the injury I am no longer as fit and active as I was. Because of the injury I avoid running.”[14]
[14]See Exhibit 1 at page 19 PCB
· He was using Oxynorm to combat the pain but is no longer allowed to use that drug. Accordingly, he now takes non-prescription pain medication and takes two or three tablets at a time.
· His sleep is disturbed by pain in the ankle and foot, which occurs two or three times a month, and when that happens he takes Panadeine, about three tablets at a time.
· He was off work for about three or four months and was virtually “bedridden” throughout that time and returned to work in a half-cast and on crutches. He remained on crutches for a further period of about three or four weeks.
· His employment with the employer was terminated as a consequence of a flare-up in his underlying schizophrenic condition.
· Since the injury, there were times when his underlying schizophrenic condition worsened, and this led to criminal charges.
· He did resume work on 26 July 2010 as a sales consultant employed by Century 21 – Peter G & Co Pride – Altona, and this employment lasted approximately two months.
12 By way of his second affidavit, the plaintiff gave the following evidence:
· He has limited employment options as he cannot deal with stress which severely aggravates his schizophrenia.
· He has applied for a position doing architectural work with Grocon (having done two years of architectural training) and he has been told to wait for the outcome of such an application.
· He did attend school to Year 12 and thereafter, he commenced courses in commerce, legal studies, accounting and architecture, but never completed any of those courses. When exams became closer, he did not cope well with stress, which in turn affected his schizophrenia.
· He used to be a very “sports orientated person”. In particular, he started playing soccer when he was ten and played for local sides before attempting to be engaged by a side in Cardiff, Wales. An argument ensued as to contracts, after which he gave up soccer and took up boxing and kickboxing.
· He then trained at Joe De Marcoli’s Ultimate Gym in Airport West, where he trained for about four or five years, and he would go to the gymnasium every day for one to two hours.
· When he took up real estate, however, he stopped doing any sport, even jogging.
· In particular, the plaintiff states:
“After this injury, and after the flare ups with my schizophrenia, I ended up stopping work in about 2009. I have not worked since then, save for a couple of months in 2010 as referred to in paragraph 37 of my first affidavit. Because I have so much time, I would like to get back into physical activity. I have tried jogging, I have gone back to the gym, but I find that the only thing that I can do is swimming and I am embarrassed to do that because I am overweight. I find that when I jog, or when I go into ring, my ankle ‘closes up’ – that is, it sort of seizes, or cramps, and I can’t continue. I only last a minute or so in the ring. My left leg is fine, but my right leg is not.
At present, if I do not do anything with my ankle I don’t have pain. However, when I walk – particularly uphill – it can start to cramp. In cold weather, I get pain at night. In summer it swells and I have to take off my shoes. I often wear R M Williams boots and sometimes when it swells I can’t get my right boot off without a lot of effort and sometimes I need to use a shoe horn.
My ankle affects me mainly in that I simply can’t do things which in turn, causes me to get frustrated, get stressed, and then lash out. I have a great deal of leisure time but I can’t do the things that I want to. I want to be active and return to sport but I can’t because of my ankle. I get pain when I jog. When I hurt my ankle, sport was so much on my mind that all I could think of was that I wouldn’t be able to play soccer anymore.
… .”[15]
[15]See Exhibit 1 at pages 21B – 21C PCB
13 Under cross-examination, the plaintiff gave the following pertinent evidence:
· Over the period from 2002 to 2004, there were some confrontations with police arising from incidents fuelled by his schizophrenic condition.
· Since 2002, he has been taking injections to help control his psychiatric condition.
· At some time in 2003 or 2004, he was an inpatient at the Orygen Youth Health System in Melbourne because of his psychiatric condition.
· During 2004, he was doing kickboxing and boxing.
· In 2006, he obtained employment as a real estate agent’s representative with Stockdale & Leggo in St Albans, after completing an agent’s representative course at the VUT.
· He had performed some builder’s labourer’s work in 2002 after returning from Europe.
· He remained with Stockdale & Leggo for about six months and thereafter, commenced employment with the employer in Williamstown.
· During 2005 and 2006, he was admitted on a variety of occasions for treatment in relation to his psychiatric condition.
· The plaintiff believes he was off work for about four months after the occurrence of the injury and on returning to work, such employment came to an end after other incidents resulting from his schizophrenic condition.
· In one particular episode he was involved in assaulting a policeman on 12 December 2008, at which time he used his right leg to kickbox his victim.
· He accepted that he took up boxing and kickboxing after he stopped playing soccer.
· He presently (other than a short break where his nephew was injured) takes his nephew to a kickboxing gymnasium now and trains him in kickboxing. In particular, the plaintiff gave this evidence:
Q: “It is suggested that apart from taking your nephew to the kickboxing gym now, you don’t engage in training for kickboxing?---
A: Just if someone is big enough, I get in the ring. Before the accident, I’d last 12 rounds. Now I can’t even last a full round. I try. Like, I try jogging, it hurts. I try bike riding – I’ve tried everything.”[16]
[16]T 16, L20-26
· After his diagnosis of schizophrenia, his weight increased to in excess of 130 kilograms, whereas before that he was in the order of 75 to 80 kilograms. He believes the medication for schizophrenia – Risperidone – causes him to gain weight.
· He is presently about 110 kilograms, and partly of his own volition and partly on the recommendations of doctors, he has been attempting to lose weight and get fitter. This involves trying to walk, jog and swim, but he cannot perform such activities as well as he did before the injury.
· He accepted that he told his treating orthopaedic surgeon in November 2007 that he was progressing well and now playing golf.
· He also accepted that in November 2009, he told doctors at a Medical Panel that he attends a gymnasium three times a week doing weights and was taking very little analgesia.
· He was going to resume training his nephew in a few days.
· He ceased employment in mid October 2008 following a disagreement with the principal of his employer and also advising him that he would not return to work.
· When he does not feel well from a psychiatric perspective, he attends his psychiatrist, Dr Walton.
· He did work for about two or three weeks as a sales consultant with Century 21, Peter G & Co, at Altona. However, he was advised by Dr Walton to cease such type of work as it was too stressful.
· He presently receives the Disability Pension.
· He explained that the weight work he was undertaking in 2009 involved “heavier weight work” which was for strength rather than endurance or fitness.
· When he is training his nephew, such training involves three or four attendances at the gymnasium a week and when his nephew is playing football, they attend the gymnasium twice a week. Each time the attendances are for an hour, or up to a couple of hours.
· He trains his nephew in kickboxing and boxing, together with someone else at the gymnasium. After confirming that this instruction will continue from the following week, the plaintiff stated:
Q:“… Next Monday. But for me, I sit there and I watch them and I get, I don’t know what word to use not to be rude, I get frustrated.
Q:That you can’t do it?---
A:That I can’t do it and then I start talking to myself and Joe ask ‘Go for a drive and then come back’.
Q:But this is also occasions - sometimes you’ve stepped into the ring with someone your size?---
A:That’s right, and then I’m happy.
Q:You’re a very big man obviously?
A:That’s right.
Q:There wouldn’t be too many men coming your way, your size would there?---
A:No.”[17]
[17]T 26, L29 – T 27, L10
· He confirmed that when he was working as a real estate agent’s representative he stopped all sport, including jogging.
· When queried about some of the history he gave to Mr Schofield, and in particular, the comment he made that he has “difficulty running”, he was asked whether he was telling the Court that he cannot run, and the plaintiff stated:
“No, like I said, I try running up and down the street. I do it once, twice, three times and then I have to stop. Before, I could go 5 K’s no problem.”[18]
[18]T 28, L20-23
· He is able to drive a car, walk normally when he is out and about, and wear thongs, R M Williams boots and comfortable Nike runners. He goes out to pubs and has a social circle of friends with whom he mixes.
· His present medication is Risperidone for his underlying mental condition, Valium to keep his stress and anxiety down and some Swisse to help him sleep.
· He does take Panadeine, Panadol and other over-the-counter tablets, just whenever he gets cramps (in the ankle) or something.
· When queried, the plaintiff gave the following evidence:
Q:“Where are you talking about? Where do you say the cramps occur?
A:In my right ankle, so then I take Panadol and then I go back to sleep. Your Honour, during the hot days, it swells up and I have to sit down.
Q:Any other activities like, say, fishing or the like?---
A:I like fishing, but I never really got – I’ve gone a couple of times with friends on the boat, but I don’t - I’m not much of a – I used to go surfing a lot. I don’t go any more. There are a lot of activities I could do, but I’m going to start to go to the pools. I’m not embarrassed. I wear a T-shirt. … .”[19]
· Dr Walton, his treating psychiatrist, has advised him to seek a stress-free occupation.
[19]T 30, L24 – T 31, L3
14 Under re-examination, the plaintiff gave evidence that he continued to go to the gymnasium after putting on weight following the administration of Risperidone.
The Radiology Undertaken by the Plaintiff
15 I refer to the following radiological examinations undertaken by the plaintiff:
(a) X-ray of the right ankle required by Dr Tan dated 10 July 2009.[20] The radiologist concludes:
[20]See Exhibit 3 at page 51 PCB
“No recent fracture seen [in] the ankle.
Previous fractures have united by bony union with two screws through the medial malleolus and metal plate and screws through the lateral malleolus are in situ.”
(b) Plain x-ray of the right ankle requested by Dr Tan and undertaken on 30 November 2009.[21] The radiologist concludes:
[21]See Exhibit 3 at page 52 PCB
“Fractures of both medial and lateral malleoli have solidly united and are held in good position by plate and screws.
The ankle mortice [sic] is anatomical.”
(c) X-ray of the right ankle requested by Dr Tan and undertaken on 8 November 2011.[22] The radiologist concludes:
“Plate and multiple screws are present in the distal right fibula. Two screws are present in the medial malleolus of the tibia. No fracture lines are visible. Alignment is normal. No degenerative changes are seen.”
[22]See Exhibit 3 at page 53 PCB
The Medical Treatment of the Plaintiff
16 The plaintiff relies on medical reports from his treating general practitioner, Dr Tan.[23]
[23]See Exhibit 2 at pages 26-35
17 Dr Tan notes that the plaintiff had extensive physiotherapy shortly after surgery to his right ankle and was referred to the orthopaedic surgeon, Mr Clifford. In his report dated 4 May 2009, Dr Tan notes that the plaintiff continued to experience pain in his right ankle. In his report dated 16 January 2012, Dr Tan noted that the plaintiff “has not complained of severe pain in his ankle and he does not require to see a specialist”. Dr Tan notes that the plaintiff was last seen by the orthopaedic surgeon, Mr Clifford, in July 2010, who recommended that the plaintiff continue his mobilisation and exercises and that it was not necessary to remove the plaintiff’s screws at that stage.
18 Dr Tan does note that the plaintiff is unable to do “prolonged walking or do any strenuous sports or exercise as a result of injury”.
19 In his final report dated 10 August 2012, Dr Tan notes that the medico-legal orthopaedic specialist, Mr Schofield, recommended the removal of hardware in the right ankle. Acting on advice from another orthopaedic surgeon that the risk of removing the hardware could result in arthritis and more complications, the plaintiff decided not to remove any of the metal.
20 Dr Tan considered that the right ankle injury had stabilised and he did not require any further treatment. However, later in that report, he did suggest that the plaintiff undergo regular physiotherapy to avoid stiffness in the ankle joint.
21 In some of his reports, Dr Tan opines that the plaintiff is “totally incapacitated for any type of employment”. Counsel for the plaintiff asserted that it is not clear from such reports whether Dr Tan is relating the incapacity to work to the psychiatric condition or the physical injury. In any event, counsel for the plaintiff expressly disclaimed any reliance on any incapacity for work as a consequence of the injury. I accept that the reports from Dr Tan are unclear on this aspect, although I consider it far more likely than not he was relating the incapacity to the psychiatric condition rather than the ankle injury.
22 The plaintiff also relies on reports from the treating orthopaedic surgeon, Mr M J Clifford.[24] Mr Clifford initially consulted with the plaintiff on 19 November 2007 on referral from Dr Tan. At that time, the plaintiff gave a history that he was in a cast for approximately two weeks, followed by physiotherapy, and he had “progressed well and was playing golf”, with some limp.
[24]See Exhibit 2 at page 24 PCB
23 On examination, he had an element of pes cavus deformity and a slight decrease in the range of movement of the right ankle and there were scars over the medial and lateral aspect of the ankle. On reviewing x-rays taken on 21 September 2007, Mr Clifford was of the opinion the plaintiff had suffered a medial malleolar fracture, internally fixed with two screws, and what appeared to be a Weber B fracture, treated with a plate. He also noted there was a posterior malleolar fragment which was small and had not been treated.
24 In a report dated 5 November 2008,[25] Mr Clifford states:
“This patient has suffered a bi-malleolar fracture, which has been treated in an anatomical way. He has not been seen over the last 12 months since his review and I trust that he has settled down quite well and is not getting any symptoms in the ankle that would require removal of metal. If he does get ongoing symptoms, I would be quite happy to remove the metal at that time. There is a slight chance that he will develop degenerative changes in that ankle later in life as a result of this injury.”
[25]See Exhibit 2 at page 24 PCB
25 Mr Clifford reviewed the plaintiff on 11 December 2008, at which time he noted that the plaintiff was worried about some prominence of some screws around the ankle. At that time, clinical examination revealed palpable screws, and Mr Clifford arranged for the plaintiff to undergo x-rays of his ankle.
26 Mr Clifford seemingly did not review the plaintiff until about July 2010, and I refer to his report dated 7 July 2010, wherein he states:
“I have seen this gentleman again in consultation. He is still getting some symptoms in his right ankle at this stage and finds that he does get cramps over the lateral aspect. He has trouble running more than 5-10 minutes, difficulty with boxing and occasional clicking.
On examination of him he has palpable screws over the lateral aspect but no specific tenderness medially. His x-rays taken on the 27th November 2009 show the fracture to be soundly united with no evidence of significant degenerative changes.
I think at this stage he intends to continue his mobilisation and exercises and I do not think it is necessary for him to have the metal out.”[26]
[26]See Exhibit 2 at page 33 PCB
Medico-Legal Reports
27 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) The occupational health and rehabilitation consultant, Dr David Middleton, on 4 January 2012;[27] and
(b) The orthopaedic surgeon, Mr Stanley Schofield, on 7 February 2012.[28]
[27]See report dated 9 January 2012 – Exhibit 2 at page 36 PCB
[28]See report dated 20 February 2012 – Exhibit 2 at page 46 PCB
28 When examined by Mr Middleton, the plaintiff complained of the “main pain” to be around the scars on the medial and lateral aspects of the right ankle and behind the ankle. He also complained of pain on the dorsum of the right foot extending along the longitudinal arch of the right foot, causing him to limp. Furthermore, he complained of cramps in the right foot which were worse with cold or activity and throbbing pain in hotter weather.
29 Examination revealed a 15 per cent loss of dorsiflexion of the right ankle but otherwise movements were equal to that of the left ankle.
30 Dr Middleton, who also gave an opinion about any relationship between the occurrence of the injury and any aggravation of the schizophrenia (which is not relevant to this case), considered that the plaintiff was suffering a Chronic Regional Pain Syndrome involving predominantly the right ankle and foot as a direct result of the injury. He considered that would be best managed by an active, physical exercise program. Dr Middleton noted that the radiological evidence provided clearly pointed “to a technically good result, where the ankle mortise is described as being anatomical with solid union”.
31 When examined by Mr Schofield, the plaintiff complained of an occasional limp due to pain in the ankle joint and also some swelling in the ankle joint when the weather is hot. He also asserted that he was unable to resume his physical training, including boxing, bike riding and walking long distances. In particular, he complained that any twist of the ankle causes pain and it gives way. He has occasional cramps in the leg and occasional feelings of numbness which causes difficulty with running and, as a result, he has increased his weight. However, he informed Mr Schofield that he was able to swim.
32 Mr Schofield arranged for fresh x-rays to be undertaken. Mr Schofield reports that such x-rays showed evidence of a healed fracture of the bones of the ankle joint on the right side and there was no deformity and there was full union. He noted there remained a well-positioned lateral plate and screws, as well as two medial screws, and the mortise was essentially intact.
33 In particular, Mr Schofield arranged for the plaintiff to have stress views of inversion and eversion, and noted that in the inversion view, there was a minimal opening of the lateral aspect of the ankle joint so that the joint surfaces of the tibia and talus were not completely parallel. Mr Schofield considered that this indicated a mild instability in the ankle joint as a result of the injury.
34 In his report dated 20 February 2012, Mr Schofield states, in part:
“This patients [sic] suffered a trimalleolar fracture requiring internal fixation involving the medial and lateral malleoli. He has had continuing pain in the ankle ever since and his current examination does show limited dorsiflexion. There is no involvement of the subtalar joint. He has mild wasting of the right calf. X-rays with stress views show that there is some instability in the ankle joint which is a precursor to post-traumatic arthritis. The measurements are small and required stress views which had not been done previously.”[29]
[29]See Exhibit 2 at page 49 PCB
35 Mr Schofield recommended that he be referred back to his treating surgeon for opinion regarding the removal of hardware and thereafter, to undergo an MRI scan to establish whether there has been any articular damage to the joint surfaces.
36 The solicitors for the defendant arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) The consultant general surgeon, Mr Edward Schutz, on 6 February 2009;[30]
[30]See report dated 16 February 2009 – Exhibit A at page 1 DCB
(b) The consultant psychiatrist, Dr Nigel Strauss, on 28 July 2009;[31]
(c) The orthopaedic surgeon, Mr Ian Jones, on 17 November 2011[32] and on 15 August 2012.[33]
[31]See report dated 28 July 2009 – Exhibit A at page 11 DCB
[32]See report dated 17 November 2011 – Exhibit A at page 23 DCB
[33]See report of same date – Exhibit A at page 30 DCB
37 Mr Schutz examined the plaintiff at the Metropolitan Remand Centre and the primary purpose of the assessment was to render an AMA impairment assessment.
38 Mr Schutz did obtain a history that the right ankle at that stage throbbed at night, although he tends not to notice such symptoms if he is concentrating on something else. The plaintiff stated that he walked all day around the Remand Centre, although at night his right ankle could be sore. He can run about 100 metres but this bothers his right ankle and his ability to sit, stand and bend is normal. He cannot fully squat because of symptoms in his right ankle.
39 Examination of the right ankle revealed no abnormality, with sensation, colour and circulation being normal. There was some loss of dorsiflexion movement. In particular, Mr Schutz thought there had been anatomical alignment and there was little likelihood of any serious disruption to the articular surfaces.
40 When examined by Dr Strauss on 28 July 2009, the plaintiff gave a history, in part, that although his right ankle is stiff and sore of a morning (if it is cold), he no longer has any significant problems, although he finds it hard to run, although he can walk reasonable distances.
41 When initially seen by Mr Jones, the plaintiff complained of swelling towards the end of the day, together with some cramps in the ankle region every two to three months. Furthermore, he confirmed he was able to walk long distances and stand without restriction, although he was unable to jog or run.
42 Mr Jones was of the opinion that the plaintiff had suffered a fracture of his right ankle which had soundly healed in excellent position, with some residual complaints of slight restriction of ankle movement, as well as swelling of the ankle.
43 Furthermore, Mr Jones accepted that his activities of daily living were not impaired but he would have some reduced function in the ankle to the point where he would have difficulty jogging, running and skateboarding and would probably be limited to some degree in terms of boxing were he to attempt that activity. Mr Jones believed he would be able to ride a bike without limitation.
44 Mr Jones re-examined the plaintiff on 15 August 2012, at which time the plaintiff described his ankle as “pretty good”. He did complain that on cold mornings, he does notice that the ankle is a bit stiff and he may limp slightly for a short time. In particular, the plaintiff stated that he was not experiencing pain and was not requiring any analgesics or other medication for his ankle injury.
45 The plaintiff also gave a history that after walking a long distance, he may limp slightly, and estimates that after walking approximately four suburban blocks he may have to stop and rest. He has no restrictions on his ability to stand and sit, and is able to drive a car.
46 Mr Jones noted that the plaintiff has been attempting to lose weight and has been doing some bike riding to achieve that end.
47 Mr Jones stated, in part:
“This patient suffered a fracture of his right ankle which has soundly healed in excellent position. The patient has some clinical evidence of a slight restriction of ankle movement and some complaints of slight stiffness and aching particularly in the cold weather. He has regained all but a full range of extension in his ankle compared with his left side.
The outlook for this patient is possibly one of minor ankle stiffness in the future and perhaps some aching in the in the ankle joint. Based on his slight improvement since he was last seen, I believe the long term prognosis for the ankle is good with the unlikely chance of developing osteoarthritis. I do not believe that removal of the screws or plate used to fix his ankle fracture is required.”[34]
[34]See Exhibit A at pages 31-32 DCB
48 Mr Jones noted also that the plaintiff takes his nephew down to the boxing gymnasium from time to time and the plaintiff also hits “a few bags from time to time”. The plaintiff stated he had not resumed jogging, running or skateboarding.
49 Subsequent to that report, Mr Jones was supplied initially with the report of Mr Schofield dated 20 February 2012. In response to that report, Mr Jones commented:
“Subsequent to my first examination, Mr Schofield saw the patient on 07.02.2012 and apparently organised stress x-rays. Neither these x-rays nor the associated report were available for review. I note the comments that inversion of the ankle demonstrated a minimal opening of the lateral aspect of the ankle joint so that the surface of the tibia and talus were not completely normal. Mr Schofield apparently reported that this is indicative of a partial rupture of the lateral ligament. He further apparently comments that the lateral stress view demonstrated a 1 mm increase in the medial gap between the medial and malleolus and medial side of the talus.
My only comment in regard to such findings would be that in similar situations I would recommend comparative stress views of the other ankle joint to see whether the suggested pathology was constitutional or was a result of the injury resulting in the ankle fracture.
In regard to possible instability symptoms, the patient’s current complaints are not those of ankle instability and even if a minor degree of instability did exist I do not believe this would warrant any particular treatment. If such a degree of instability was present, however, it would increase slightly the risks of him developing osteoarthritis of the ankle joint long term.
… I can see no indication for removing the screws and proceeding with MRI scan as any pathology affecting either medial or lateral ligaments of his ankle in my opinion would not be severe enough to require any particular treatment.
… .”[35]
[35]See Exhibit A at pages 33-34 DCB
50 Later, Mr Jones was provided with the stress x-rays of the plaintiff’s right ankle performed on 7 February 2012. After perusing such x-rays, Mr Jones stated:
“Review of the stress x-rays shows no measurable increase in the inversion or eversion stress x-rays raising possible instability in the ankle joint and possibly having long term consequences in regard to the development of osteoarthritis of the ankle. On the basis of review of these x-rays, I can find no x-ray evidence of instability and I would consider the likelihood of this patient developing osteoarthritis in the ankle long term as being extremely remote.”[36]
[36]See Exhibit A at page 29 DCB
Analysis of the Evidence
51 I find that the plaintiff suffered a lower right leg, and in particular, a right ankle injury, during the course of his employment with the employer on 12 September 2007. I further find that such injury has resulted in some permanent impairment and some organic consequences.
52 It is for the plaintiff to satisfy the Court as a matter of probability, that such organic consequences satisfy the narrative test.
53 I find that the plaintiff was essentially a witness of credit and that he was attempting to give honest and accurate answers to questions put to him. Sometimes, I gained the impression he was slightly confused as to various occurrences and dates, but I consider this more reflective of the effluxion of time or some confusion as a result of his mental condition.
54 I am assisted by the following decisions:
(a) In Sabo v George Weston Foods,[37] the Court of Appeal (consisting of Neave and Mandie JJA) stated:
[37]Supra at [73]
“In considering whether Mr Sabo[‘s] impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.’”
(b) I refer to Sumbul v Melbourne All Toya Wreckers Pty Ltd,[38] wherein Chernov JA stated:
[38][2006] VSCA 292 at [24]
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’ … .”
These words were later clarified by Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd,[39] wherein they stated:
[39][2009] VSCA 181 at [47]
“… it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. ... .”
(c) I also refer to Dwyer v Calco Timbers Pty Ltd No 2,[40] wherein Ashley JA stated:
“… I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[40][2008] VSCA 260 at [27]
55 I make the following further findings of fact:
(a) The plaintiff suffered a right ankle fracture which, based on clinical examination and radiological studies, has soundly healed in excellent position;
(b) Consistent with the opinions of the treating orthopaedic surgeon, Mr Clifford, the general surgeon, Mr Schutz, and in particular, the orthopaedic surgeon, Mr Jones, I find that the likelihood of the plaintiff developing osteoarthritis in the right ankle long term as being extremely remote;
In particular, I prefer the evidence of Mr Jones to that of Mr Schofield. Mr Jones has had the advantage of examining the report of Mr Schofield and the x-rays arranged by Mr Schofield which were undertaken on 7 February 2012. In particular, Mr Jones, when reviewing those stress x‑rays, was of the opinion that they showed no basis for the likelihood of the plaintiff developing osteoarthritis long term;
(c) The plaintiff has some mild restriction of movement in his right ankle, in that dorsiflexion is slightly limited, but otherwise there is a full range of extension in his ankle compared with the left side. I also find that when the plaintiff wakes up, he may experience some stiffness in the ankle and aching, particularly in cold weather;
(d) I do find that the plaintiff may have difficulty jogging for any extended distance, running for any extended distance, and would have difficulty performing kickboxing for an extended period of time;
(e) I do find that the plaintiff is capable of playing golf, walking long distances, swimming, and performing certain weightlifting activities in a gymnasium;
(f) I find that the plaintiff takes occasional over-the-counter pain relief if his ankle ever becomes particularly sore or, as he describes it, “cramps up”. Such “cramping up” on the evidence would seem to follow activities when he is walking over anything other than a short distance;
(g) I find that the plaintiff continues to attend the gymnasium, assisting his nephew with kickbox training, and occasionally will enter the ring himself to perform some kickboxing when someone his size is available to compete. However, on the evidence before me, I do find that he would be unable to perform eight rounds of such kickboxing;
(h) I find that the occurrence of the ankle injury and any resulting impairment does not impact on his capacity for employment. The plaintiff demonstrated his capacity to return to work as a real estate agent’s representative after the occurrence of the injury, and such employment came to an end by reason of complications from his schizophrenic condition.
56 Counsel for the plaintiff put the case for the plaintiff on the basis that the plaintiff is now not performing any work (due to his schizophrenic condition) and has much more time on his hands. In that respect, whereas prior to his work as a real estate agent’s representative he was very much involved in kickboxing and various other fitness activities, his inability to perform such activities in his now expanded leisure time is of some consequence to him.
57 There is some force in such submission. It was apparent during the course of the plaintiff’s evidence that he did miss being able to engage in kickboxing in an uninhibited way.
58 However, after a consideration of the evidence, although accepting that such a consequence may be significant or marked, the Court is not persuaded that the organic consequences resulting from the impairment of the right ankle “when judged by a comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked, and as being at least very considerable”.
59 I have reached such conclusion for the following reasons:
(a) Although accepting the plaintiff is limited in various physical activities, he is still capable of playing golf, swimming, lifting weights, and seemingly, able to perform some jogging, albeit on a limited basis. Furthermore, he is still involved with kickboxing by training his nephew, and indeed, on occasion, enters the ring to perform kickboxing, albeit on a significantly reduced basis, when someone his size (198 centimetres) is found as an opponent);
(b) Although on his history, the plaintiff was involved in kickboxing and such physical activities on a frequent basis in years gone past, he freely concedes that when working as a real estate agent’s representative, he performed none of these activities. I also note that he is still awaiting notification in relation to his application to perform work with Grocon. One wonders, if such employment is found, whether such activities would also lapse, as they did in the past;[41]
(c) Counsel for the plaintiff succinctly put his argument and accepted that other than what he advocated were special circumstances, it would be difficult to assert that the injury is a “serious injury” within the meaning of the Act.
[41]I do not make any express finding on this aspect of the matter. I also note the prognoses of several doctors in relation to whether the plaintiff will resume employment because of his psychiatric state.
Conclusion
60 Accordingly, I dismiss the application and will hear the parties on the question of costs.
Annexure “A”
1 The plaintiff tendered the following material:
(a) Exhibit 1
· Two affidavits of the plaintiff sworn on 27 September 2010 and 9 November 2012 found at pages 15-21C of the Plaintiff’s Court Book (“PCB”);
(b)Exhibit 2
·Medical reports of the treating orthopaedic surgeon, Mr M J Clifford, dated 5 November 2008 and 16 April 2009.
·Medical reports of the treating general practitioner, Dr C Tan, dated 12 December 2009, 4 May 2009, 16 January 2012 and 10 August 2012.
·Medico-legal report from the occupational physician, Dr D Middleton, dated 9 January 2012.
·Medico-legal report from the orthopaedic surgeon, Mr S Schofield, dated 20 February 2012.
All such reports are found at pages 24-50 PCB.
2 The defendant tendered the following material:
(a) Exhibit A
· Medico-legal report of the general surgeon, Mr E Schutz, dated 16 February 2009.
· Medico-legal report from the psychiatrist, Dr N Strauss, dated 28 July 2009.
· Medico-legal reports from the orthopaedic surgeon, Mr I Jones, dated 17 November 2011, 3 September 2012 and 15 August 2012, together with addendum dated 23 August 2012.
All such reports are found at pages 1-34 of the Defendant’s Court Book (“DCB”).
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