Norris v Almax Information Systems Pty Ltd

[2012] VCC 781

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-11-01270

DAVID WILLIAM NORRIS	Plaintiff
v
ALMAX INFORMATION SYSTEMS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2012
DATE OF JUDGMENT:	2 July 2012
CASE MAY BE CITED AS:	Norris v Almax Information Systems Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VCC 781

REASONS FOR JUDGMENT

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Catchwords:  ACCIDENT COMPENSATION – Accident Compensation Act 1985, as amended – serious injury – right ankle injury – s.134AB(38)(a) – pain and suffering damages only – whether impairment satisfies the narrative test.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Keogh SC with Mr N Dunstan	Shine Lawyers
For the Defendant	Mr A J Saunders	Minter Ellison

HIS HONOUR:

Introduction

1 By way of Originating Motion dated 23 March 2011, David William Norris (“the plaintiff”) seeks leave, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 as amended (“the Act”), to bring common law proceedings to recover damages for injury to his right leg and in particular his right ankle suffered during the course of his employment with Almax Information Systems Pty Ltd (“the defendant”) on 5 April 2002 (“the injury”).

2       The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.

3       The plaintiff gave evidence and was briefly 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 s.134AB(37) of the Act.[2]

[2]See s.134AB(19)(a) of the Act

5       The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(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 right leg and, in particular, the right ankle.  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 defendant on and after 20 October 1999;[3]

(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]

(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” or “loss of earning capacity” 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”.

[3]See s.134AB(1) of the Act and Barwon Spinners & Ors v Podolak (2005) 14 VR 622 at [11]

[4]See Barwon Spinners (op cit) at [33]

[5]See s.134AB(38)(b) and (c) of the Act

7       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 counted for the purposes of paragraph (c) of the definition of “serious injury”;[6]

[6]See s.134AB(38)(h) of the Act

(b)   must make the assessment of “serious injury” at the time the application is heard;[7]

[7]See s.134AB(38)(j) of the Act

(c)   must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning when dealing with the evidence and 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 s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 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

8       Counsel for the defendant informed the Court that there was no issue that the plaintiff had suffered a compensable injury with some impairment and 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”.

The Evidence of the Plaintiff

9       The plaintiff gave evidence that he had recently re-read his affidavits sworn on 22 October 2010[10] (“the first affidavit”) and on 1 June 2012[11] (“the second affidavit”), and that the contents of each affidavit were “true and correct”.[12]

[10]See Exhibit 1 at page 5 PCB

[11]See Exhibit 1 at page 16 PCB

[12]T 12 L29 – T 13 L11

10      The plaintiff also gave viva voce evidence that prior to his ankle injury on 5 April 2002, he had engaged in the recreation of rally driving, and had commenced that activity when he was about eighteen years old.  In the twelve months prior to his injury, he had engaged in rally driving approximately five, maybe six, times in the role of a navigator in the vehicle.

11      He further gave evidence that since the injury, he has not been involved in rally driving because:

“I had a lot of difficulty with my ankle.  Driving on rough roads at night, getting about in the bush of an evening.  Walking on uneven surfaces at night.”[13]

[13]T 13 L24-27

12      By way of his first affidavit, the plaintiff gave the following evidence:

·        He is a fifty-year-old (born 31 October 1961) man who was born in Victoria.

·        When he was thirteen his parents were killed as a result of a motor vehicle accident, and he and his brother lived in a variety of places throughout the State.

·        Although he attended Year 11 at the Noble Park Technical College, he believes he did not pass that year.  After finishing school he was unemployed, and worked various part-time jobs before commencing work at Riva Plastics as a labourer.

·        When working for Riva he met his then-wife Patricia, who he married in 1984, and there were two children of such marriage: Belinda, born on 6 January 1985, and Patrick, born 7 May 1987.

·        After leaving Riva Plastics he worked as a truck driver doing deliveries in a light truck for a while, then worked for McBird as a storeman, after which he obtained his taxi licence and commenced to drive taxis part-time.

·        In about 1986, the family moved to Brookville near Omeo, after which he obtained a job with the Forestry Commission as a summer fire-fighter involved in road clearing and back burning.  Because such work was seasonal and his wife was expecting their second child, they moved back to Melbourne to be near family.

·        When back in Melbourne he commenced to drive taxis again, six to seven days a week.  When the children were of school age, his wife went back to TAFE to do a course as a library technician, after which she commenced employment at the Casey-Cardinia Library Corporation in 1996.

·        In about 1992 or 1993, he commenced working in a nursery, just to have a break from the taxis, and, when doing that work, he attended TAFE on a one‑year part-time course, after which he attained a supervision certificate.

·        After that course, he enrolled full-time in a computer course at the Frankston TAFE to complete an Associate Diploma in Technology Computing so that he could improve his employment skills.  The course that he undertook trained him in using, writing and developing software, and putting hardware together.  Such course was over two years full-time, and during weekends he would drive taxis.

·        After completion of the computer TAFE course at the end of 1996 he managed to be placed at Precise Data Services in Port Melbourne where he performed computing work.  He performed a variety of jobs as a contract trainer which involved training people on computers.

·        He commenced employment with the defendant initially as a part-time worker, but after a few months he was offered a full-time job which commenced in 1999.

·        The defendant provided stock-market data at the end of each day to various businesses, after such data had been processed by the defendant.

·        The plaintiff was initially employed on the help desk, but he also performed work as an assistant administrator, which involved looking after the hardware and also the software.  His initial wage was $46,000, and when he left the defendant in 2005 he was earning $86,500 gross plus superannuation.

·        He enjoyed his job with the defendant very much, as it was a small company and he got on very well with the boss.  Having such a job also brought a great deal of stability to his life and to his family.

·        On 5 April 2002, he fell down the steps at his workplace and broke his right ankle.

·        He attended his general practitioner that evening, who arranged x-rays, and after x-rays which established a fracture, he was referred to the Dandenong Public Hospital where he was treated as a public patient.

·        He remained in the hospital for over a week, during which time he developed a DVT, for which he was treated with Warfarin.  On discharge he had a plaster cast for about six weeks, following which his leg was in a Cam Walker for about five weeks and he was getting around on crutches.

·        He made a claim under the WorkCover provisions and such claim was accepted.

·        After undergoing some physiotherapy and hydrotherapy, his pain persisted so he was referred by Dr Robert Gassin to an orthopaedic specialist, Mr Mark Blackney, who initially saw the plaintiff on 31 January 2003.

·        He underwent injections to the right ankle but these did not provide him lasting relief.  Mr Blackney performed an arthroscopy on 15 October 2003, during which his fractures were set under general anaesthetic and scar tissue was removed.

·        Although there was some initial improvement after the arthroscopy, several months later his condition deteriorated again and although he continued to see Mr Blackney because of ongoing stiffness and pain, he was ultimately told that nothing further could be done to alleviate the problems in the ankle.

·        Apart from those times when he was off work after the accident and following the surgery, his right ankle injury “didn’t really affect the way that I did my work”.[14]

[14]Exhibit 1 – the first affidavit at page 6 PCB

·        On 2 February 2005, he suffered a left shoulder injury during the course of his employment.  He was conveyed to the Knox Private Hospital where he was given pain relief and underwent x-rays and scans of the left shoulder.

·        He came under the care of the orthopaedic specialist, Mr Byrne, and later developed a frozen shoulder, causing him to undergo a hydrodilatation on 21 June 2005.  Later, Mr Byrne recommended that he have a manipulation under anaesthetic which could improve the range of his movement.  He did not wish to undergo that surgery and continued on with physiotherapy hoping that such exercises would allow for improvement in his range of movement in the shoulder.

·        He was terminated from his employment on 30 June 2005, after which he struggled and he felt “down and low”.

·        He consulted Dr Kourdoulos at the Thompson Road Clinic, who prescribed anti-depressant medication (Zoloft), which did improve his mood.  He was continuing to suffer anxiety and shoulder pain and was nervous and upset all the time and was ultimately referred to a psychologist, Ms McDonald.  His treatment was changed to Effexor.

·        Ms McDonald treated him about two to three times a week and such treatment involved cognitive behaviour therapy, motivational therapy and general counselling.

·        Eventually, Dr Kourdoulos referred him to a psychiatrist, Dr Das at the Pine Lodge Clinic, and he commenced treatment in August 2006.  His current psychiatrist (at the time of the first affidavit) was Dr Vinay Kumar, who he has been seeing since January 2009.

·        He was admitted as an inpatient to Pine Lodge Clinic in November 2009 for treatment.

·        During this period of time he was under great financial pressure, and in February 2007, he commenced a part-time job with the Windermere Child and Family Services Agency.

·        He worked there about 20 hours per week, with his employer appreciating that he had a chronic left shoulder problem and psychological issues.

·        In relation to his ankle injury, he states:

“… My ankle is particularly stiff and painful in cold weather and in the morning.  My ankle also becomes stiff if I remain seated for prolonged periods.  My pain increases when I walk and I have difficulty walking on uneven surfaces.  Even on flat surfaces, my right leg has a tendency to give way given the residual weakness in my ankle joint.  It aches if I drive for long distances.  There are times when I limp because of my injury and my ankle is prone to locking and clicking.  The pain interferes with my ability to do things around the house.  I still have a go at doing gardening and chores around the house but not as often as I once did.  I no longer play squash and do not go fishing anywhere near as frequently as what I once did.”[15]

[15]See Exhibit 1 – the first affidavit at page 10 PCB

·        The consequences that have flowed from his left shoulder injury have also been “immense” and in particular, he has difficulty in sleeping on his left side, which causes his sleep to be disturbed.  Furthermore, he struggles to lift heavy items with his left arm and his ability to reach and stretch with that arm has been compromised.

·        As a result of his left shoulder injury and its consequences, it has caused him to suffer a “deep depression” which has had an impact on his ability to socialise with people, dealing with his family and in particular, his wife.

13      By way of his second affidavit, the plaintiff gave the following evidence:

·        His right ankle symptoms have remained much the same and he continues to get pain and stiffness in the right ankle.

·        He finds that the right ankle is particularly stiff and painful in cold weather and in the early morning and also if he is forced to sit for a prolonged period.  If he walks for any length of time the pain increases and he has difficulty walking on rough or uneven surfaces.

·        His right ankle can still give way underneath him at any time, even when he is walking on an even surface.

·        He often walks with a limp because the ankle is still prone to locking and clicking and he can get a shooting pain going up into his right calf.

·        If he drives for any long distance the right ankle is particularly painful.

·        He takes Nurofen, Nurofen Plus and Panadol for his right ankle pain and in particular, such medication is taken about two or three times a week as needed.

·        From time to time he has problems sleeping because of his right ankle pain and this occurs about once a week, “sometimes more” and that he will be disturbed at night by aching pain in the ankle.

·        He is “very limited” as to what he can do around the house and he is unable to do any heavy lifting or heavier work around the house because he cannot put weight on his right ankle.

·        He is still no longer able to play squash or go for a jog or a run.  He was a keen beach fisherman before his ankle injury but cannot do this any more because of difficulty walking on the sand.

·        He is very keen on the outdoors and still goes to the bush to go walking but has to be very careful about not rolling over on the ankle and is very cautious walking on rough or uneven ground.

·        In May 2011, he ceased working with the Windermere Child and Family Services Agency.

·        He was thinking about going back to driving taxis but considered the long driving hours would be inappropriate given the state of his right ankle.

·        In August 2011, he separated from his wife and part of the reason for the marital problems and final separation was his physical injuries, which included his right ankle injury.

·        He has been on a Disability Support Pension since November 2011 and such pension is for his mental state.

·        He continues to see Dr Kumar, a psychiatrist, about every three weeks (although up until recently he was seeing him fortnightly) and is prescribed by the psychiatrist, Pristiq (150 milligrams), and Innovane, which is to help him sleep.

·        He also sees his psychologist, Ms McDonald, about every three weeks.  He also sees his general practitioner, Dr Kourdoulos, about every three to four weeks, although such attendances are not for any treatment in relation to his right ankle.  He was told by his orthopaedic surgeon, Mr Blackney, back in about 2003, that there was nothing further that could be done with the right ankle and he had to learn to live with pain and stiffness as best he could.

·        He spends most of his time pottering around the house with some time spent on the computer and some time watching television or reading.  He does do shopping most days in order to get out of the house and has become interested in photography as a hobby.

14      Under cross-examination, the plaintiff gave the following pertinent evidence:

·        Absent his left shoulder injury, he expected to be doing the type of work that he was doing at the time of his ankle injury.

·        He agreed that his current situation – that is not working – is largely if not wholly related to matters other than his ankle injury.

·        He confirmed that he still has problems with his sleep in terms of the ankle and that the pain does cause disturbance in his sleep and cause him to not get to sleep.  He also confirmed that his shoulder problem causes him difficulty in sleeping.

·        Before his ankle injury, he had been playing squash for a couple of years on a social basis approximately once a month.

·        Prior to his ankle injury, he went for a jog or run “regularly” and by that he explained that to be “several times a month, once a week, once a fortnight”.  He was never methodical in his running but ran about “several kilometres”.

·        Prior to the ankle injury, he was a “very keen beach fisherman” and he had “quite a passion” for beach or surf fishing.

·        He engaged in beach or surf fishing “quite regularly”, meaning a couple of times a month, maybe once a month, but it was quite regular.  He would go to the 90 Mile Beach, the Great Ocean Road or to Phillip Island.

The Medical Treatment of the Plaintiff

15      The plaintiff relies, in part, on medical reports from his treating general practitioner, Dr Demetrios (Jim) Kourdoulos, dated 20 January 2006;[16] 12 April 2007;[17] 1 September 2011;[18] 13 April 2012[19] and 18 May 2012.[20]

[16]See Exhibit 2 at page 21 PCB

[17]See Exhibit 2 at page 23 PCB

[18]See Exhibit 2 at page 24 PCB

[19]See Exhibit 2 at page 31 PCB

[20]See Exhibit 2 at page 37 PCB

16      Initially, the plaintiff attended Dr Robert Gassin at the Thompson Road Clinic on 28 November 2002, giving a history that he had suffered a bimalleolar fracture of his right ankle in April 2002.

17      At that time, the plaintiff was referred to the orthopaedic surgeon, Mr Mark Blackney, who apparently thought that the plaintiff may have small bone fragments in the joint, and he suggested an arthroscopy of the ankle.

18      The plaintiff was then seen by Dr Eric Foong on 20 March 2003 seeking a second opinion in relation to his ankle.  An MRI scan undertaken on 9 April 2003 revealed bone marrow oedema on the malleoli at the sites of the previous fractures.  Mr Blackney treated him with a cortisone injection and suggested conservative treatment.

19      On 17 October 2003, the plaintiff underwent an arthroscopy which apparently revealed loose fragments of fibrous tissue which were removed and a synovectomy was performed.

20      Dr Kourdoulos first consulted with the plaintiff on 7 December 2005, at which time the plaintiff complained of pain on and off in the ankle and that the ankle was unstable, causing an inability to run because of the pain.  At that stage, Nurofen was taken occasionally.

21      Examination on that day revealed a full range of movement of his ankle with no joint tenderness.  An x-ray performed on 9 December 2005 revealed no abnormality and an ultrasound of the ankle undertaken on 4 January 2006 was also normal.  At that stage (20 January 2006), the plaintiff was receiving no treatment for his ankle and did not seek further specialist opinion regarding his condition.

22      Dr Kourdoulos also treated the plaintiff for his left shoulder injury and resulting Depression.  Dr Kourdoulos considered that the plaintiff’s chronic Depression had been contributed to by his injuries with the defendant but there were also other factors, such as his marital problems, which also contributed to such Depression.

23      In September 2011, a Vic Roads taxi medical examination was performed by Dr Kourdoulos.  The plaintiff was deemed fit for a conditional licence and in particular, examination of the ankles revealed a full range of movement.  Dr Kourdoulos noted, as at 13 April 2012, that the ankle injury affects the ability of the plaintiff to run and stand, although his Depression is the main problem which affects all facets of his daily life.  Dr Kourdoulos is of the opinion that the plaintiff has no current work capacity because of his depressive symptoms and that such inability to work will be permanent.

24      The plaintiff also relies on a report from a musculoskeletal physiotherapist, Sean Slattery, dated 20 April 2004.[21]  Mr Slattery noted that the plaintiff seemed to recover fairly well from the surgery to his right ankle but after a period of time, such improvement plateaued and there were ongoing complaints of recurring pain and stiffness.  Mr Slattery noted that “objectively” there was a general thickness rather than an effusion around the ankle joint but there was little restriction to his range of movement and no real specific tenderness to palpate, apart from the ankle being somewhat more tender generally than the other side.

[21]See Exhibit 2 at page 58 PCB

25      Mr Slattery was of the opinion that the condition of the plaintiff in his right ankle was more a pain or an inflammatory one rather than a stiffness problem or instability problem.  Accordingly, the plaintiff was encouraged to persevere  with lots of exercise including bike, swimming, proprioceptive exercises in addition to the use of ice and contrast baths.

26      Dr R Gassin, the initial treating general practitioner of the plaintiff, referred the plaintiff to the orthopaedic surgeon, Mr Mark Blackney, on 31 January 2003.  The plaintiff relies on reports from Mr Blackney dated 11 February 2003;[22] 25 October 2004[23] and 11 January 2006.[24]

[22]See Exhibit 2 at page 63 PCB

[23]See Exhibit 2 at page 65 PCB

[24]See Exhibit 2 at page 65 PCB

27      When initially seen by Mr Blackney on 31 January 2003, the plaintiff complained that he had been unable to regain full movement of the ankle and still had pain and stiffness whenever he walked.  Such symptoms were “mild to moderate in severity” depending on his activity level.

28      The plaintiff received some relief from wearing runners but had been unable to return to his normal physical activities.  The ankle remained chronically swollen and there was marked stiffness, particularly in the morning.

29      Examination revealed generalised wasting with thickening around the ankle joint, together with tenderness over the anterior and anteromedial aspect of the joint.  There was mild restriction of a range of motion of the ankle joint with a positive anterior impingement sign.

30      X-rays showed a well-healed bimalleolar fracture of the right ankle with some early degenerative changes.

31      At the time of the initial examination, Mr Blackney was of the opinion that the plaintiff’s persisting problems were related to his ankle fracture and he suspected that arthrofibrosis and perhaps the presence of some small bone fragments within the joint were contributing to the impaired range of motion.

32      When re-examined on 30 May 2003, medial ankle pain had resolved but the plaintiff was now experiencing most of his pain in the lateral aspect of the ankle in the region of the sinus tarsi.  Mr Blackney injected that region with cortisone.

33      Because of persisting symptoms, Mr Blackney performed a right ankle and subtalar joint arthroscopy on 15 October 2003.  Operative findings were minor scuffing over the lateral talar dome, quite advanced fibrous impingement over the lateral gutter with a large meniscoid lesion and lateral fibrosis.  There was also extensive fibrous impingement throughout the anterior subtalar joint.  Mr Blackney proceeded with arthroscopic debridement of those regions.

34      According to Mr Blackney, the plaintiff made an overall uncomplicated recovery from surgery and at review on 23 April 2004, the plaintiff was experiencing some inflammation of the subtalar joint and was injected with cortisone on that day.

35      When last reviewed by Mr Blackney on 26 August 2004, the plaintiff was complaining of some stiffness and pain in his ankle.  Mr Blackney states:

“… I could find no particular reason for this … [stiffness and pain in the ankle] … on that day.  Range of motion of the ankle joint was good and there was no instability or locking.  I recommended that Mr Norris have some blood tests to exclude an inflammatory arthritis … [which were undertaken and did exclude such condition] … and also arranged for a follow up MRI scan of the region.

I spoke to Mr Norris on the 18^th October 2004.  We discussed his MRI scan.  My conclusion was that there was still some remaining fibrosis and synovitis of the ankle joint. I felt that Mr Norris was a patient with a high fibrotic tendency.  This may have been related to his diabetes.  I felt that further surgery may be beneficial but that it would also have continuing risks of fibrosis developing again.  The other option was to consider Synvisc injections in the region.  My concern was that this may only offer temporary relief.  The pain was mainly in the morning and improved as the day progressed; I felt this may be a pain that improved over time.  …  I reassured Mr Norris that he had no signs of arthritis and that ultimately his symptoms may improve by themselves.  I have not reviewed or spoken with Mr Norris since that day.  … .”[25]

[25]See Exhibit 2 at page 66 PCB

Radiological Studies

36      The plaintiff underwent the following investigations:

(a)   An MRI scan of the right ankle on 9 April 2003.[26]  The conclusion of such investigation was:

[26]See Exhibit 3 at page 67 PCB

“Persistent bone marrow oedema both in relation to the lateral malleolus and posterior malleolus (tibial plafond).  This is at the site of previous fractures.  The presence of bone marrow oedema at this time is unusual and suggests ongoing ‘instability’ although the fractures are otherwise apparently united.”

(b)   An MRI scan of the right ankle on 21 September 2004.[27]  The conclusion of such investigation was:

[27]See Exhibit 3 at page 70 PCB

“Incomplete healing of the distal fibula and the posterior tibial malleolar fractures with subchondral soft tissue process occurring adjacent to the articular margins.  Whilst this may have a fibrotic component there is also ongoing granulation tissue or other soft tissue process.  There is no evidence of a reactive synovitis generally.  These lesions do not represent synovial herniation, given the intrinsic contrast enhancement following Gadolinium administration.  There is also probably early cartilage degeneration at the ankle joint.”

(c)   Imaging report undertaken at the Casey Hospital on 25 July 2008[28] which involved both hands and both feet.  The report in relation to the feet stated:

“No erosive changes identified at the time.  Plantar fascial insertion as well seen achilles insertions appears satisfactory.”

(sic)

[28]See Exhibit 3 at page 71 PCB

Medico-Legal Reports

37      The solicitors for the plaintiff arranged for the plaintiff to be examined by the following doctors:

(a)   The orthopaedic surgeon, Mr Russell Miller, on 14 December 2011;[29]

[29]See report dated 30 December 2011 contained in Exhibit 4 at page 87 PCB

(b)   The orthopaedic surgeon, Mr Thomas Kossmann, in or about April 2012;[30]

(c)   The orthopaedic surgeon, Mr S Doig, in or about late May 2012.[31]

[30]See report dated 24 April 2012 contained in Exhibit 4 at page 93 PCB

[31]See report dated 28 May 2012 contained in Exhibit 4 at page 106 PCB

38      Mr Miller obtained a history that the plaintiff was suffering pain and discomfort in the ankle and hind foot and had difficulty with prolonged walking and standing.  In particular, he had difficulty with uneven ground, kneeling and squatting.  Although his symptoms fluctuated, he regarded them as “static” and he also reported “occasional sleep disturbance”.

39      After examination and review of the MRI scans undertaken on 9 April 2003 and 21 September 2004, Mr Miller diagnosed the plaintiff to have suffered injury to the right ankle with probable fractures involving the posterior malleolus and lateral malleolus.  Furthermore, he considered the plaintiff had suffered a chondral injury involving ankle and subtalar joints.  In particular, he had suffered a reactive fibrosis to this and has a degree of arthrofibrosis and significant ongoing symptoms causing the prognosis to be only “fair”.  Mr Miller considered that the right ankle injury would impose significant restrictions on pre-injury leisure and recreational pursuits of a physical kind and noted that the plaintiff enjoyed fishing, walking and outdoor activities prior to his right ankle injury.

40      When seen by Mr Kossmann, the plaintiff gave a history that he has pain and swelling in his ankle and can only walk between 50 and 500 metres, depending on the day.  Further, he has discomfort and shooting pains in his right ankle and is extremely careful when he has to walk on uneven ground.  He also noted that sometimes the right leg gives way and sometimes the pain in his ankle disturbs his sleeping pattern.

41      Mr Kossmann was of the opinion that the plaintiff had suffered an ankle fracture on the right side which had progressed to an “accelerated osteoarthritis” over the years since the accident.  Because of the pain and swelling, the right ankle injury had caused an impact on his social, domestic, recreational and sporting activities and such restrictions will continue into the future.

42      When seen by Mr Doig, the plaintiff complained of ongoing ache and pain in the right ankle which he described as being “unreliable”.  The plaintiff considered that the ankle was “static” and that he was not having any current physical treatment as far as the ankle was concerned.  He noted that there was occasional swelling.

43      On the basis of the various material, Mr Doig considered the plaintiff had suffered a bimalleolar Pott’s fracture which was treated conservatively because of his insulin-dependent diabetes.  His diagnosis was that the plaintiff suffered a degree of arthrofibrosis present still in the right ankle.  Although he could not completely explain why there should be an ongoing ache and pain at this time, he considered that the range of movement of the ankle would “mitigate against” there being a significant degenerative change in the ankle.

44      In particular, Mr Doig was of the opinion that the disability and symptoms suffered by the plaintiff do stem from physiological factors, in that he considered it was most likely that the plaintiff does have a degree of arthrofibrosis of the joint, consistent with the initial arthroscopy.

45      Mr Doig did not consider that any further treatment was necessary or appropriate, and made the following comments:

“He states that he remains very concerned about the right ankle and he does not trust it.  He has not returned to running or squash.  He has returned to camping but not at the same level.  He does some fishing but again not at the same level because he does not trust the ankle.  His lack of trust in the ankle certainly at least in part is due to his physical finding.  I cannot and of course would not comment on whether his psychological status has anything to do with that.”[32]

[32]See Exhibit 4 at page 108 PCB

46      It is also convenient to refer to the medico-legal report of the orthopaedic surgeon, Mr Clive Jones, who examined the plaintiff on behalf of the defendant on 29 May 2012.[33]

[33]See Exhibit A at page 72 DCB

47      Although Mr Jones had examined the plaintiff on two previous occasions (in 2007 and 2009), those examinations were in relation to the left shoulder injury whereas the examination on 29 May 2012 was in relation to the right ankle injury.

48      At the time of the examination, the plaintiff complained that the right ankle remained painful and that there had really been no change over the past three or four years.  He was living independently after the separation from his wife; he was able to cook and shop for himself.  He is involved outside the home in a membership of a camera club which meets twice a month and this is his major interest.

49      Examination revealed him able to walk with a normal gait and the calf circumferences were equal at 39 centimetres.  Inspection of the right ankle showed normal contours with a slight restriction of movement and with some persistent tenderness in the front of the medial malleolus of the ankle.

50      Mr Jones was of the opinion that the plaintiff sustained an undisplaced malleolar fracture in the right ankle and now experiences a very minor degree of stiffness both in the ankle and subtalar joint and an unpredictable aching.  Mr Jones comments that this would normally be regarded as a “satisfactory outcome”.

51      Mr Jones does note that the diagnosis appears to be an ankle fracture followed by arthrofibrosis resulting from the injury and that the effects of such ankle injury will probably be ongoing and will not cease.  However, he noted that apart from his inability to run and to be active, he is able to lead a relatively normal life with a good outcome from the injury.  He also notes that he considers the plaintiff’s Depression and isolation have been “extremely significant factors as far as this man’s outcome is concerned”.

Analysis of the Evidence

52      I find that the plaintiff suffered a bimalleolar fracture of his right ankle during the course of his employment with the defendant on 5 April 2002.  Although the fractures have healed reasonably well, the plaintiff has suffered persisting difficulties due to a degree of arthrofibrosis in that joint.

53      I also find that the arthrofibrosis following the ankle injury has come about because the plaintiff seemingly has a high fibrotic tendency (which may be due to his diabetes).  Operative findings at the time of the arthroscopy on 15 October 2003, which was carried out by Mr Blackney, revealed advanced fibrous impingement over the lateral gutter with a large meniscoid lesion and lateral fibrosis, together with extensive fibrosis impingement throughout the anterior subtalar joint.  Although there was debridement in these regions, the subsequent MRI scan undertaken on 21 September 2004 suggested that there was ongoing fibrosis in the area of the ankle.

54      I accept the opinions of Mr Blackney, the treating orthopaedic surgeon, and the medico-legal orthopaedic specialists, Mr Miller, Mr Doig and Mr Jones.  All these doctors consider that the “complicating” factor in the presentation of the plaintiff is the degree of arthrofibrosis which followed the fracture of the right ankle.

55      In particular, I also accept the opinions of Mr Blackney, supported by Mr Miller, and Mr Doig, that it is unlikely that the plaintiff will develop arthritis in the affected joint.  On this point, I reject the opinion of Mr Kossmann.

56      The foregoing is not disputed by the defendant, which accepts that the compensable injury has given rise to some permanent impairment of the right ankle and lower leg, together with some consequences.   The submission of the defendant is that the consequences described by the plaintiff do not satisfy the narrative test.

57      The plaintiff presented with a very flat and depressed affect, no doubt as a result of his psychiatric condition for which he is receiving ongoing treatment from a psychiatrist and psychologist.  The psychiatric condition was seemingly a consequence of his left shoulder injury suffered on 2 February 2005 during the course of his employment with the defendant, and his subsequent termination of employment effective from 30 June 2005.

58      Senior Counsel for the plaintiff made clear that following the right ankle injury, the plaintiff did return to his work with the defendant and was able to cope with such work until the left shoulder injury on 2 February 2005.  Although the plaintiff is presently on a Disability Pension and has not worked for some time, any inability to work seemingly has resulted from the left shoulder injury and resultant psychiatric condition.

59      I was informed from the Bar table by Senior Counsel for the plaintiff that the plaintiff had made a “serious injury” application in relation to the left shoulder condition which had been granted by the Authority, but the matter had been taken no further.

60      Counsel for the defendant submitted that I should be slightly wary of the credit of the plaintiff, in that whereas he advised in his first affidavit that he was having difficulties with sleep as a result of his left shoulder condition, it was not until his second affidavit which dealt specifically with the ankle condition that there was an allegation that there was some sleep disturbance as a result of the ankle injury.

61      I formed the view that although clearly in a depressed state, the plaintiff was attempting to give an honest account of the circumstances surrounding his right ankle injury.

62      Senior Counsel for the plaintiff submitted that although the plaintiff may not necessarily be viewed as someone who suffers the “endurance of permanent daily pain requiring frequent medication”,[34] he was someone who prior to the right ankle injury was active and in particular, enjoyed outdoor activity.  Such outdoor activity involved squash, rally driving, fishing and camping, and whereas prior to the ankle injury, he had an “unrestricted range of activities in which he could engage” and which he did frequently engage, it is now “markedly reduced”.

[34]See Sutton v Laminex Group Pty Ltd [2011] VSCA 52 per Tate JA at paragraph [91]

63      After a consideration of all of the evidence, I make the following further findings:

(a)   The plaintiff is a fifty-one-year-old man who is now separated from his wife and who has two adult children;

(b)   At the time of his injury on 5 April 2002, he was employed in the computer industry and absent subsequent injuries to his left shoulder and psychiatric reaction, the plaintiff has the physical capacity to perform such work as he demonstrated from when he returned to work after his right ankle injury up to the time of his left shoulder injury on 2 February 2005;

(c)   The bimalleolar fracture of his right ankle has healed well, as demonstrated by various X-rays – however there has been some complications brought about by the plaintiff having a high fibrotic tendency;

(d)   After undergoing an arthroscopy on his right ankle on 15 October 2003, he has continued to suffer pain and stiffness in the right ankle, but has not undergone any further active treatment in relation to the ankle;

(e)   Clinical examination would suggest that there is no significant reduction in the range of movement of the right ankle and in particular, the general practitioner, Dr Kourdoulos, found in September 2011 that the ankles revealed a full range of movement.  (Such examination was undertaken for the purposes of obtaining a conditional taxi licence).  However, as pointed out earlier in these reasons, ongoing symptoms seem to have been brought about largely by the complicating factor of arthrofibrosis;

(f)   Although the plaintiff has had no active treatment for his ankle since the arthroscopy on 17 October 2003, he has continued to take tablet medication consisting of Nurofen, Nurofen Plus and Panadol for right ankle pain about two or three times a week on a needs basis;

(g)   Although I find that the right ankle pain on occasion does disturb his sleep, I do note that Mr Miller obtained a history on 14 December 2011 that there was “occasional sleep disturbance” and that Mr Kossmann, who examined the plaintiff in April 2012, obtained a history that “sometimes” the pain in his ankle disturbs his sleeping pattern;

(h)   The plaintiff is capable of living independently and is able to cook and shop for himself.  Furthermore, he has become involved in photography and enjoys the membership of a camera club which meets twice a month and he described this activity to Mr Jones as a “major interest”;

(i)    The right ankle injury has caused him to cease playing squash which he had undertaken for a couple of years prior to his right ankle injury, playing approximately once a month.  Furthermore, I find that his right ankle injury does prevent him running any distance and prior to his right ankle injury, he ran “several times a month, once a week, once a fortnight”, although such running was not methodical and was limited to “several kilometres”;

(j)    That prior to the ankle injury, he had been a very keen beach fisherman and that subsequent to his right ankle injury, this has become difficult because of the requirement to walk on sand.  In this sense, although he still goes walking in the bush, it is now limited to some extent to avoid any risk of his ankle “rolling” and he is cautious walking on rough or uneven ground;

(k)   Since his right ankle injury he has not been involved in rally driving because of the requirement of driving on rough roads at night, getting about in the bush of an evening and walking on uneven surfaces at night.  Prior to his right ankle injury he had done that five to six times a year and had been involved in such activity for many years.

64      The plaintiff described the consequences of his left shoulder injury and psychiatric state as “immense”, causing difficulty in sleeping on his left side and significant difficulties using the left arm to lift heavy items, to reach and stretch with that arm.  Although it is clear that I am directed to assess the organic consequences of the right ankle injury in determining whether or not such injury is “serious”, and that it is not to the point that a subsequent injury may give rise to the same consequence (for example, difficulties with sleeping), I formed the impression after the evidence given by the plaintiff that his present psychiatric state does impact on what he believes he can and cannot do in relation to the ankle.  However, I do accept that there are organic limitations on a variety of the recreational activities that he undertook prior to his right ankle injury.

65      As pointed out earlier in these Reasons for Judgment, a determination as to whether the threshold of “very considerable” pain and suffering consequences is met has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative”.[35]

[35]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [41]; Sutton v Laminex Group Pty Ltd (op cit) at paragraph [99]

66      It may be that the totality of the evidence reveals that the plaintiff has suffered and continues to suffer “pain and suffering” consequences which are both marked and significant, but the Court is not persuaded that these consequences can be fairly described as being more than “significant” or “marked” or at least being “very considerable”.

67      Such a conclusion has been reached for the following reasons:

68      (a)    The nature of the right ankle injury did not impact upon the capacity of the plaintiff to perform the type of work that he was performing at the time of the injury.  The plaintiff resumed the same duties with the defendant after his ankle injury and continued those duties until the left shoulder injury on 2 February 2005 after which he was terminated on 30 June 2005.

In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[36] Chernov JA stated:

[36][2006] VSCA 292

“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.’”[37]

[37]Sumbul (op cit) at paragraph [24]

These words were qualified in Stijepic v One Force Group Aust Pty Ltd & Anor,[38] wherein Ashley JA and Beach AJA stated:

“… 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.”

In the circumstances of this matter, the plaintiff was able to resume his normal duties with the defendant and those duties only came to an end for unrelated reasons.  I do accept that the nature of the injury may prevent him performing some of the labouring activities that the plaintiff performed prior to obtaining qualifications in the computer industry – for example, working as a summer fire-fighter.

(b)The plaintiff has not undergone any treatment for his right ankle injury for many years.  X-rays performed on 9 December 2005 revealed no abnormality and an ultrasound of the ankle undertaken on 4 January 2006 was also normal.  In particular, as I have already found, it is unlikely that the plaintiff will develop arthritis in the affected joint.

(c)Although I accept there is ongoing complication in the right ankle brought about by the high fibrotic tendency, which give rise to symptoms in the right ankle area, I do not accept that the plaintiff presents as someone who suffers the “endurance of permanent daily pain requiring frequent medication”.[39]  In this respect, I do accept that the symptoms may cause him to take Nurofen or associated medication two or three times a week on a needs basis.  Although I also accept that the pain may on occasion disturb his sleep, Mr Miller obtained a history that there was “occasional sleep disturbance” and Mr Kossmann obtained a history that “sometimes” the pain disturbs his sleep.  Although he has not returned to running or squash, the plaintiff has returned to camping but not at the same level, has done some fishing but not at the same level, and also is involved in the hobby of photography which he describes as a “major interest”.  Prior to the right ankle injury he only played squash once a month for the last couple of years prior to that injury and was not a methodical runner.

[38][2009] VSCA 181

[39]See Sutton (op cit) at paragraph [91]

Conclusions

69      Accordingly, the application is dismissed.

70      I will hear the parties on the issue of costs.

ANNEXURE “A”

1         The plaintiff tendered the following material:

(a)   Exhibit 1 – Affidavits of the plaintiff sworn on 22 October 2010 and 1 June 2012 found at pages 5-19 of the Plaintiff’s Court Book (“PCB”).

(b)   Exhibit 2 – Medical reports of the general practitioner, Dr Kourdoulos, dated 20 January 2006, 12 April 2007, 1 September 2011, 13 April 2012 and 18 May 2012 found at pages 21-45 PCB; report of physiotherapist, Mr Slattery, dated 20 April 2004 found at page 58 PCB; and reports of orthopaedic surgeon, Mr Mark Blackney, dated 11 February 2003, 25 October 2004 and 11 January 2006; found at pages 63-66 PCB.

(c)   Exhibit 3 – An MRI scan taken of the right ankle on 9 April 2003; an operational report dated 17 October 2003; a further MRI scan of the right ankle dated 23 September 2004 and a diagnostic imaging report dated 25 July 2008; all of which are found at pages 67-71 PCB.

(d)   Exhibit 4 – consisting of medico-legal reports from the orthopaedic surgeon, Mr Russell Miller, dated 30 December 2011; the orthopaedic surgeon, Mr Thomas Kossmann, dated 24 April 2012; and the orthopaedic surgeon, Mr Stephen Doig, dated 28 May 2012; all of which such material is found at pages 87–98 and pages 106-108 PCB.

2The defendant tendered the following material:

Exhibit A – Report from orthopaedic surgeon, Mr Clive Jones, dated 3 June 2012 at pages 72-75 of the Defendant’s Court Book (“DCB”).

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