O'Brien v Victorian WorkCover Authority
[2016] VCC 126
•23 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05118
| DEAN FRANCIS O'BRIEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2016 | |
DATE OF JUDGMENT: | 23 February 2016 | |
CASE MAY BE CITED AS: | O’Brien v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 126 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the left lower limb – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Richards v Wylie (2000) 1 VR 79
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr G A Worth | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with his own company, Dean Communications Pty Ltd (“the employer”) on 27 April 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the left lower limb.
5 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
6 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
7 The plaintiff is presently aged thirty-two, having been born in October 1983. After completing Year 10 in 1999, he worked until 2009 as a panel beater.
8 In 2010, the plaintiff started up his own company, the employer, to work as a contract cabling installer.
9 On the said date, the plaintiff suffered a left ankle injury in a fall at work. Whilst crossing a drain to get across to the Telstra exchange, the plaintiff’s foot went down a gap between the concrete slabs. He lost his footing, landing on his left foot, suffering injury to his left foot and ankle (“the incident”).
10 The plaintiff reported the incident. He completed a Claim for Compensation on 22 May 2011. In the Claim Form, he described the injury/condition affected as “torn Achilles heel tendon, left foot” which occurred “walking on site when fell to lower ground where I tore tendon in foot”.
11 The plaintiff could not say whether he had torn his Achilles or not because he was not a doctor; he just did his ankle.[1] Whilst the Claim Form noted “Torn Achilles heel tendon”, it also set out an injury to the left foot.[2]
[1]Transcript (“T”) 21
[2]T22
12 The plaintiff initially attended Chris Seville, physiotherapist, in Pakenham on 29 April 2011. An x‑ray was also carried out on that date.
13 The plaintiff was cross-examined about a discharge summary completed by Mr Seville.
14 On that summary, it was noted the date of initial presentation was 29 April 2011. Counsel for the defendant suggested the handwritten notes indicated the following.
“Round two last year – felt pain in achilles. 7/12 before ↓ soreness. Agg 1/12 later sore for 1/12. Haven’t done much for the last few months. last Mechanism of injury- jumping. Aggravated by dorsi flexion, running, jumping. Social History ; footy (Chelsea Garfield) Telstra hook up, coach cricket (played!!).”
(sic)
15 The plaintiff denied he had any left ankle problems before the incident. In March 2011, he was bowling a lot of overs in cricket and he was the coach. His team won the premiership that year and he bowled well in the Grand Final.
16 In early 2011, the plaintiff was working full time five days a week and he was starting to do pre-season football training by himself. He had not been to the physiotherapist before April 2011. He had not had any previous ankle injuries but had had general soreness, for which he had massage.
17 The plaintiff’s exercise was fairly rigorous before the incident. He was going to sign on as a paid player for Bunyip Football Club that season.[3] He had previously played in the Firsts for Chelsea in the Southern League.[4]
[3]T12
[4]T13
18 The plaintiff denied seven months of soreness since Round 2. He did not tell Mr Seville he had aggravated his Achilles one month earlier when seen on 29 April 2011 or that his ankle had been sore for a month. He did not tell him in April 2011 that he had not done much the last few months because of his Achilles injury.[5]
[5]T22
19 Further, there had been no subsequent aggravations of the plaintiff’s left foot condition since the incident, as Mr Seville noted.
20 When interviewed in 2012 by a Queensland newspaper when he was coaching Boyne Island Tannun Sands Football Club, the plaintiff told the paper that his ankle injury in the incident had stopped his AFL career, not that he had suffered an Achilles injury as the paper reported.[6]
[6]T18
21 The plaintiff, in cross-examination, agreed he hoped to play AFL but realised pre-injury, when he was about twenty five, that that was not going to happen.[7]
[7]T17
Treatment
22 At Mr Seville’s suggestion, the plaintiff attended Bunyip Medical Centre on 6 May 2011. He was then referred to Mr Wang, orthopaedic surgeon.
23 The plaintiff was seen by Mr Wang in May 2011. After an MRI scan was arranged, Mr Wang operated on the plaintiff’s left ankle on 15 June 2011 (“the surgery”).
24 After the surgery, the plaintiff had further physiotherapy from Mr Seville but never completely recovered from his injury.
25 The plaintiff disagreed his ankle was basically back to normal after the surgery. He agreed he would have told Mr Wang that he had some ankle pain but that was settling with regular ice and activity modification in July 2011 and was much better when taped.[8]
[8]T30
26 The plaintiff agreed when he last saw Mr Wang, he would have told him he was feeling much freer in terms of his range of movement. The plaintiff did not tell him he had an excellent range of movement.[9] Mr Wang might have told him he had absolutely no restrictions for progressive weight bearing, running and strength work but the plaintiff did not know. He had restrictions at that time about which he would have told Mr Wang.[10]
[9]T32
[10]T32
27 The plaintiff could not recall Mr Wang saying to come back to see him if he had any more problems. He agreed Mr Wang mentioned numbing injections that he might need for the pain but the plaintiff has not had them. He did not resume sport, so he did not follow up with the injections.[11]
[11]T33
28 The plaintiff agreed at the last appointment, Mr Wang might have told him his ankle had stabilised. The plaintiff disagreed at that stage, nothing was stopping him from running or walking. It was incorrect he was returning to normal function as of October 2011.[12]
[12]T34
29 The plaintiff denied by October 2011, he had made an excellent recovery and that he then could have returned to playing cricket. He would not have been able to.[13] He was an opening bowler with a lot of overs and that would put pressure on his front left foot. He would not be able to run in and bowl. He would not be able to run when batting wearing pads.[14]
[13]T35
[14]T36
Post-incident work
30 Following the incident, the plaintiff was not able to work for about six months. He could not go back to his contract work for Service Stream Communications because someone else had taken that job.
31 Post injury, the plaintiff did a lot of physiotherapy and tried to get back to physical activity. He could not return to his job because it involved ladders and he was advised against doing so.
32 The plaintiff then started a Certificate IV in OH & S and was advised by his case manager at WorkCover to find a suitable role such as a forklift position to keep his foot off the ground as much as possible and give it the best chance to heal. The plaintiff underwent forklift driver training in the second half of 2011 before he moved to Queensland.[15]
[15]T24
33 The jobs the plaintiff obtained were through family friends in Queensland. At that time, he could not do his old job involving ladders and similar work. It was an easier option to take the jobs offered in Queensland.[16]
[16]T43
34 Pre-injury, the plaintiff’s plan with his cabling business was to earn the same amount of money his friends earned in that work and basically after the first year, he would be “deemed reliable” and given get extra work. He would earn a very good wage. He did not get to that stage because of his injury.[17]
[17]T44
35 When in Queensland, the plaintiff initially worked for eighteen months at a gas mine on Curtis Island for Fulton Hogan. He then worked for McCosker Joint Venture as a trades assistant driving a trailer. The plaintiff then took up employment with Bechtel at the same facility driving a forklift.
36 The plaintiff obtained these jobs through family friends. The jobs were well paid and the plaintiff did not suffer any loss of earnings once he was able to return to work. However, he had ongoing problems with his left ankle and foot and was, at the time he swore his first affidavit in June 2014, unsure whether would be able to continue to earn a good income.
37 Whilst in Queensland, the plaintiff attended a general practitioner at Night Owl at Gladstone. He suffered some depression as a result of the ongoing pain and disability but had at that stage, not been referred for counselling or treatment.
38 Whilst working at Bectel, the plaintiff suffered an abdominal strain. After that injury, he returned to work on office duties. His normal duties involved driving a forklift, and the work was not heavy. He did not have to do any lifting. He did not have any difficulty driving a forklift because of his ankle.
39 There was work seven days a week and the plaintiff could work weekends if he wanted to. He had agreed that he was a very good employee as a forklift operator.[18]
[18]T40
40 The plaintiff denied that he did not play cricket in Queensland because he was working on the weekends. He could have taken time off as he did to coach football. As he could not play sport, the plaintiff thought he might as well work, so he did.
41 The plaintiff would have loved to have played cricket on turf wickets in Queensland if he could. He could not have thought of anything better than getting out there and playing. However, coaching cricket would have upset him as he would see what he was missing out on.[19] Sometimes it was better to work and not worry about it.[20]
[19]T37
[20]T38
42 When the plaintiff commenced work with Bechtel, he did not declare his left ankle because, had he done so, he would not have obtained the job. He told Bechtel he had a bone spur in his ankle[21] and denied any previous injury. He was not required to do the physical referred to in the pre-employment medical form.
[21]T41
43 The plaintiff’s job interview was conducted by his friend, so the plaintiff was not required to do the physical testing. His friend just ticked the boxes and his friend’s father gave him the job. His friend was not going to write “bad stuff” so the plaintiff would not pass the medical when he knew the plaintiff was only going to drive a forklift.[22]
[22]T42
44 The plaintiff’s forklift job finished in March 2015. The following month, he and his fiancée moved to Melbourne with a view to living here permanently. He returned to Victoria as he wanted to raise his son in Gippsland. He came back to Victoria because it was his home.[23]
[23]T47
45 In about October 2015, the plaintiff started working with Longwarry Food Park, a job similar to his Queensland work, seated operating a forklift with little pressure on his left ankle. He can tolerate the pain and discomfort whilst working. He is not restricted doing his current job as a forklift driver sitting down.[24]
[24]T17
46 The plaintiff has done physical work since the injury. However, it is more the standing that causes pain. He does not have any real problem with lifting, dragging or pulling heavy items. The real problem is weight bearing or putting force on his left leg.
Symptoms
47 When he swore his first affidavit on 25 June 2015, the plaintiff continued to experience pain and swelling in his left ankle and foot and sometimes had pins and needles in the three smaller toes. There was tenderness under his left heel.
48 The plaintiff had restricted left ankle movements and because of his injury, he avoided running. Walking could cause problems and sometimes if he walked half a kilometre, he could experience an increase in pain, depending on what sort of shoes he was wearing. He could walk up to 2 kilometres before experiencing increased pain if he wore very good running shoes.
49 Generally, the plaintiff had to avoid activities placing too much strain on his left ankle and foot. He had become depressed, as his condition had not improved and he had not been able to get back to his active sporting lifestyle.
50 The plaintiff deposed that he had discussed all of this with his doctor at Gladstone.
51 However, the plaintiff confirmed he did not see a general practitioner in Queensland for his ankle in the three years he was there. He was told there was nothing they could do.[25] The whole time, the plaintiff was told his ankle would get better and it has not.
[25]T56
52 In his second affidavit, the plaintiff deposed that he cannot even recall the last time he saw a general practitioner for his ankle. He feels it has slowly became progressively worse and he is worried what it might be like in five or ten years.
53 The plaintiff has not had formal physiotherapy since the end of 2011. In Queensland, the plaintiff’s best friend’s partner was a physiotherapist and at times, he strapped the plaintiff’s ankle.
54 The plaintiff agreed that he had not had a lot of physiotherapy in Queensland as Mr Battlay has reported.[26]
[26]T25
55 In his second affidavit sworn 13 January 2016, the plaintiff confirmed he has continued to suffer from significant ongoing left ankle pain, especially with weight bearing. His ankle remains constantly painful and uncomfortable. There is nothing he can do about it. It often swells and causes pain and discomfort.
56 The plaintiff’s left ankle is a lot worse now. It is stiffer. He has lost even more movement.[27]
[27]T57
57 The plaintiff agreed his pain has been intermittent but if he tries to do what he used to do, it flares up and the pain is severe. If he is not doing anything, it is still sore. Lying in bed with the doona on his ankle, he has pain in the ankle joint. The pain is there all the time but it gets worse with activity. He experiences a different pain when jogging because he puts a lot more pressure on his ankle.[28]
[28]T31
Sport
58 Pre-injury, the plaintiff was a very good sportsman and he enjoyed playing sport, including playing football, cricket, tennis and golf and running to keep fit. Because of his injury and incapacity, as at June 2014, the plaintiff had put on about 20 kilograms.
Football
59 Pre-injury, the plaintiff played as a rover and a forward. He was a very good footballer but had to give it up because of his injury.
60 Sport was the plaintiff’s life pre-injury and he came from a very successful sporting family. His brother, Danny, played senior AFL football for Geelong in 2000. Another brother played league and county cricket in England for a number of years. The plaintiff’s uncle had played local football in the West Gippsland League. His family had always been sports mad.
61 In the season prior to injury, the plaintiff played in the Firsts at Chelsea in the Southern Football League. He was paid $400 a game and there were incentives if the team reached the finals. He was to play with Bunyip at the start of 2011 but did not do so because of his injury.
62 Football, running and fitness meant a lot to the plaintiff as he had played football for many years. His inability to return to football and running since the injury was a great loss to him, having last played football when he was twenty-six.
63 The plaintiff coached AFL football in Queensland in 2012 but that was not the same as playing. It was not overly physical, just standing around blowing the whistle and directing training. That was his last involvement with a football club. The plaintiff missed the more physical activities and the camaraderie of playing. At junior levels he was competing with the elite and was fiercely competitive.
64 The plaintiff did not tell Mr Battlay he could not coach football. He cannot play.[29]
[29]T29
Cricket
65 Pre-injury, the plaintiff was also a very good all-round cricketer. He was paid to play and was eligible for bonuses. As a result of his injury, he has also had to give up playing cricket.
66 Cricket is the plaintiff’s greatest loss. He has not resumed playing since the 2010-2011 season when he was captain-coach of the premiership winning Bunyip Firsts who played in Third Grade. He had led that team from a lowly position the previous season.
67 The plaintiff loved cricket and had won a number of league and team medals, both in batting and bowling.[30]
[30]T21
68 The plaintiff was mainly a bowling all-rounder. He could not return to bowling because of the pressure he had to put on his left ankle whilst bowling.
69 The plaintiff is keen to become involved in the sporting club again as he is only thirty-two. He would have difficulty running when batting. He would like to coach cricket but the problem is that most local club teams have a playing coach. Having played representative cricket as a junior, he intended to play and coach as long as possible.
70 The plaintiff has been playing sport since he was ten or eleven, three sports a year or so. He would play sport every day of the week now if he could. He loves working. So if he is not playing sport, then he has to work.[31]
[31]T58
Golf
71 Pre-injury, the plaintiff also enjoyed playing golf, regularly playing 18 holes and walking the course. He had a handicap of about 7 or 8.
72 Since the injury, the plaintiff has played golf less frequently. When he plays, he now uses a cart, as walking the course brought on left ankle and foot pain.
73 The plaintiff can still play golf but his score is not as good as pre-injury. He now has the same skill and ability to hit a ball but has to use the cart he bought. He does not get the better feel for the game that those playing walking the course get. He has tried walking the course but that has resulted in excruciating pain to the point where he has almost not been able to remain standing. He believes he has lost distance driving due to the power transfer during the swing. He is working hard to get back to his previous score.
74 It has been a long time since the plaintiff has gone on golf trips with his friends – maybe one or two years ago.[32]
[32]T54
Other sport
75 Pre-injury, the plaintiff played tennis and ran 30 kilometres a week for fitness and hundreds of kilometres during the football pre-season. He is no longer able to play tennis. He feels as if he has been robbed of activities he loved so much.
76 The plaintiff has tried to run on his physiotherapist’s advice for fitness and confidence. However, he has broken down every time he has tried. Placing weight on his left foot causes excruciating pain and he does not run properly. After about two weeks of running, his foot becomes hot and swells and he cannot keep doing it as he has to work.[33]
[33]T15
77 If the plaintiff runs now, he does small runs. If he did run 1.5 kilometres on Monday and Tuesday, by the end of the week his foot would be so sore he could not put the doona on it in bed.
78 Weight training and other activities trying to get strength and stability back into the ankle have not worked and the plaintiff’s ankle remains painful. He believes it has become more restricted in motion over the past year or so.
79 Exercise is limited by his weight bearing tolerance. Mainly due to inactivity, the plaintiff has gained about 20 kilograms over the past five years. That weight gain also upsets him, as he considered himself an athlete.
80 From time to time, the plaintiff had tried to get back into sport and tried to get back to running to lose weight, but his attempts had always ended up with him experiencing considerable pain in his left ankle and foot, thus he had given up.
Footwear
81 The plaintiff had considerable pain and swelling and had to ice his foot after wearing dress shoes at a wedding in March 2014. When he has to wear dress shoes, he cannot wait to take them off. He could not drive to Court wearing dress shoes.[34]
[34]T16
82 The plaintiff wears orthotic supports in his shoes and work boots. At times, his ankle feels as if it is unstable and he needs to use ice packs very frequently for the swelling.
83 The plaintiff wears mining boots for work which give him solid ankle support, all the way to the shinbone, and keep his ankle stable. The boots do not stop the pain or discomfort.
Treatment
84 As of June 2014, when the plaintiff had a flare up, he took up to six anti-inflammatories a day and in the cold weather, his ankle was stiff and painful when he woke.
85 The plaintiff now does not take any prescription medication and rarely sees doctors for his problem as there is nothing they can do for him. He takes Nurofen for the swelling. He estimates he goes through about a packet every week or fortnight. He does not really like taking it and would rather put up with the pain.
86 Sometimes the plaintiff could take up to six Ibuprofen a day, sometimes for three or four days, because his ankle swells up. Every time he has tried to get active on his doctor’s advice to try and lose weight, his foot has increased and he takes tablets to try and maintain the fluid.
87 The plaintiff did not take stronger medication because he managed with Nurofen, which he took once or twice a week and more if active.[35] He could take up to twenty Nurofen or more a week.
[35]T26
88 In a quieter week, the plaintiff might take six to eight tablets in two days. Thirty tablets a week is a bit of an over estimate but he may take that number in a bad week. In an average week, he takes six to eight tablets.[36]
[36]T27
Domestic
89 The plaintiff and his partner have a one-year old son. It is difficult for the plaintiff to walk around carrying the baby.
90 The plaintiff is able to shop and drive, work full time, maintain the house and do the jobs he has always done without any great difficulty. Cleaning the pool causes increased pain; however, he can cope with it.
91 The plaintiff is a bit more of a homebody now with his young son and he does not spend time at the clubs where he used to play. But as a leader, he misses that part of socialising. Trying to adapt to a new life is not easy and it upsets him.
92 The plaintiff has not been able to continue taking regular trips away with his partner because of their young son and the related responsibilities. It has been “pretty full” on in the last six months since they have moved back to Victoria – new job; house; son – “so obviously that would impact anybody”.[37]
[37]T55
93 The plaintiff denied his responsibilities would impact on his ability to play cricket, football and golf. His partner pushed him to do things. He has not had difficulty attending recent activities with her.[38]
[38]T56
94 The plaintiff remains upset nearly five years after injury. He had looked forward to a young family and continuing sport. It is now less likely that he will be able to have a kick with his son, and that upsets him a lot. The plaintiff’s ankle serves as a reminder of the sporting life he had stop when he was twenty-seven. He believes he has suffered major losses, not only in his ability to play sport but also life and confidence.
95 The plaintiff suffered an abdominal injury while working in Queensland in 2013 and put in a WorkCover claim. He does not believe he had any time off although he had some modified duties.
96 The plaintiff also had issues at work with bullying and harassment from a co-worker. As a result, the plaintiff had psychological treatment. He submitted a claim in 2014 that was denied. He recovered from those issues and continued working in Gladstone until March 2015. None of those issues relate to his ankle injury sustained in 2011.
97 The plaintiff agreed he had a very serious psychiatric injury working for Bechtel in Queensland. It interfered with his work and normal social activity. He denied that, because of that condition, he would not have been able to play sport because it would have been good to be active with a mental injury.[39]
[39]T45
98 The plaintiff agreed during the three months that he had a nervous breakdown, he could not get out of bed. He was tearful and taking antidepressants. He started seeing a psychologist in February 2014. He agreed he had a panic attack in June 2014.[40]
[40]T48
99 The plaintiff has not had any psychological counselling or treatment since returning to Victoria. He gets a little bit of anxiety but otherwise he is fine.
100 The plaintiff did not think it was important to record his psychiatric injury in detail in his affidavit. He agreed his mental condition was very severe in the breakdown period.[41]
[41]T49
101 The plaintiff helped out for a few days in a panel beating shop as a production manager after he stopped working with Bechtel. He helped with two minor jobs with the help of an assistant. There was not a lot of physical work.[42]
[42]T53
102 During that time, he was unfit to work at Bechtel because of his mental state and the harassment that occurred.
The Plaintiff’s medical evidence
Treaters
103 Chris Seville, physiotherapist, reported to Dr Dhillon in May 2011. Mr Seville noted the plaintiff presented on 29 April 2011 complaining of left posterior ankle pain following an incident where he tripped at work over a month ago.
104 Mr Seville asked Dr Dhillon whether he thought surgery was warranted and suggested Mr Wang was an appropriate physician.
105 Mr Seville reported to the plaintiff’s solicitors on 8 May 2014. He noted the plaintiff’s presentation with left posterior ankle pain, describing an episode at work two days earlier.
106 Mr Seville diagnosed posterior impingement syndrome resulting from the incident.
107 Mr Seville noted at the end of treatment on 28 October 2011, the plaintiff was cleared for normal duties. At that stage, the plaintiff had slightly reduced ankle range of motion, which Mr Seville thought was likely to persist. The plaintiff did however have a good functional range of motion and should not be limited functionally by this restriction.
108 Mr Seville considered the plaintiff should have no issue relating to his ankle in performing his pre-injury role or maintaining his pre-injury lifestyle.
109 On 6 June 2011, Mr Wang, orthopaedic foot and ankle surgeon, wrote to CGU requesting funding of surgery for the left posterior ankle and subtalar arthroscopy.
110 Mr Wang noted the results of the plaintiff’s left ankle MRI scan and thought pre-operatively, he remained symptomatic, with positive posterior impingement signs. There was also tenderness along the navicular and sinus tarsi.
111 On 15 June 2011, the plaintiff underwent a posterior ankle arthroscopy and excision of os-trigonum.
112 Two weeks post operatively, the plaintiff’s wounds were well healed and he had been commenced on physiotherapy. He was allowed to weight bear and wean off his crutches. Six weeks post surgery, the plaintiff certainly felt much freer in terms of his range of movement. His flexion-extension was excellent. He still had some residual instability issues but the ankle was stable from an anterior drawer point of view.
113 Mr Wang then thought, in all likelihood, the plaintiff should improve with persistent physiotherapy and there were no restrictions for progressive weight bearing, running and strength work. The plaintiff was asked to come back in four to six weeks if he had any residual pain or swelling. If that was the case, Mr Wang thought the plaintiff may be a candidate for a small injection.
114 Mr Wang diagnosed left posterior ankle injury with Achilles injury and posterior impingement secondary to os-trigonum. Injury was suffered jumping off unstable footing whilst at work. At the last review on 3 August 2011, the plaintiff had a full capacity for employment and his prognosis was excellent.
115 Dr Dhillon from Bunyip Medical Centre reported in July 2012.
116 On 6 May 2011, the plaintiff attended for left heel pain. He advised he had injured his foot on the said date when he panicked whilst walking on an uneven concrete slab, jumped off it and landed on the ball of his left foot.
117 Noting the treatment undergone, Dr Dhillon thought the plaintiff showed to be able to perform full duties and his prognosis was good when last seen on 21 December 2011. Dr Dhillon then noted the left ankle appeared normal.
Medico-legal examiners
118 The Medical Panel, on 25 October 2013, accepted the left ankle foot heel injury in accordance with s98E of the Act. It acknowledged the plaintiff had some loss of use of the left foot but considered that that was not severe enough to be regarded as effectively a total loss or a total loss of use of the left leg, lower part of the left leg or the left foot.
119 The Panel therefore concluded there was no total loss of use injury, assessing the degree of permanent impairment at 4 per cent.
120 Mr Peter Battlay examined the plaintiff on behalf of the defendant in December 2012.
121 The plaintiff gave a history of the incident on the said date and subsequent surgery.
122 On examination, the plaintiff described the pain at the level of the Achilles tendon but deep within the joint, weight bearing on his toes increased pain, he could not fully dorsiflex his ankle and there was pain when twisting. His symptoms were not improving.
123 The plaintiff described swelling from trying to run and also after playing 18 holes of golf.
124 On examination, there was no measurable wasting and no instability of the ankle. The plaintiff complained of some medial ankle pain with diminished flexion and extension at the ankle joint.
125 Mr Battlay thought the plaintiff had developed synovitis and loose bodies as a result of his fall. He had had an os-trigonum removed, as well as synovial resection and loose bodies being removed.
126 Mr Battlay thought the prognosis was good and he did not see the plaintiff developing any specific complications.
127 Mr Battlay re-examined the plaintiff in November 2015.
128 The plaintiff gave him a history that since the last examination, he had worked in Queensland, and had a lot of physiotherapy with a physiotherapist with whom he was living and his ankle was regularly taped.
129 The plaintiff advised he had tried running at times but was never pain free and partly because of that, he had developed a weight issue, putting on 20 kilograms.
130 The plaintiff told Mr Battlay he bought over-the-counter medication of which he took 20 or 30 in a week (noted incorrectly as Brufen).
131 The plaintiff stated there was fairly continuous ankle pain which he indicated medially, spreading to the anterior aspect of the joint and also to Achilles tendon.
132 The plaintiff advised that pain disabled him from walking more than one kilometre and he could not run, despite using orthotics.
133 The plaintiff could not coach football as he did before and could not play tennis. He played golf from a cart. He did very little garden maintenance.
134 On examination, there was no measurable calf muscle wasting. There was tenderness over the medial and anterior aspect of the ankle and also the Achilles, but no instability of the collateral ligaments. There was reduction in flexion and extension and a slight reduction in inversion and eversion. There was only mild discomfort with those movements.
135 Mr Battlay noted the plaintiff continued to complain of symptoms and a significant impact on his activities. He confirmed the plaintiff did have a permanent impairment of the left leg which he would still attribute to the development of synovitis and loose bodies in the ankle and he had not improved.
136 Mr Battlay noted, if anything, the plaintiff’s range of motion was more restricted at the ankle and hind foot joints than previously, although there was no overt instability.
137 Mr Battlay thought the plaintiff seemed very fit physically in spite of the loss of motion. He noted there was no evidence of the various symptoms interfering with the plaintiff’s activities in terms of his normal calf muscle development.
138 Mr Battlay described pain brought on by activity. He thought the symptoms may be somewhat overstated. He noted the plaintiff’s symptoms interfered with more strenuous sporting activities but not in other ways, such as with social activities. Mr Battlay thought the plaintiff’s pain had an organic basis but he seemed somewhat focussed on it.
139 Mr Battlay considered no further treatment was required.
140 Mr Battlay thought there were no inconsistent findings on examination. According to the history, in his view, the incident materially contributed to the plaintiff’s condition and continued to do so.
141 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in December 2015.
142 The plaintiff told Mr Miller of the incident and subsequent surgery and return to less physical work as a forklift driver.
143 On examination, the plaintiff had an ache, discomfort and pain in the left ankle and hind foot and there was swelling. He advised he had difficulty with stairs and uneven ground and difficulties with kneeling and squatting.
144 The plaintiff reported some improvement after surgery but still found the symptoms bothersome. He suffered some sleep disturbance and some hypersensitivity when bending and resting on it.
145 Mr Miller also noted adverse mental reaction with problems with anxiety and depression which would complicate the assessment and management of the plaintiff’s condition. He noted that required separate assessment by a psychiatrist.
146 Mr Miller reported the plaintiff continued to use Ibuprofen and Nurofen. He had had psychological counselling in the past but that was not ongoing.
147 In terms of past history, the plaintiff stated he had no prior left ankle problems and no prior medical problems. He was fit and healthy.
148 Examination of the left ankle revealed calf muscle wasting of about 1.5 centimetres. There was diffuse swelling and tenderness in the Achilles with limited range of ankle movement. There was some irritability during subtalar movement and ankle movement. There was diffuse posterolateral and posteromedial swelling and tenderness.
149 Mr Miller noted he had not been provided with any investigations.
150 Mr Miller thought the plaintiff had suffered a significant injury to the left ankle. There were significant ongoing symptoms and the prognosis was only fair.
151 Mr Miller considered the plaintiff had had appropriate treatment to date. He thought it possible, but unlikely, he would require further surgery. He considered the plaintiff was at an increased risk of developing arthritis disease in the ankle and subtalar joint but was not likely to do so to the point where he would require surgery.
152 Mr Miller commented the capacity for work issue was difficult in this case. He noted the plaintiff’s previous work was moderately physical, involving climbing, and squatting and uneven ground. He thought the plaintiff would not be able to return to those pre-injury duties. He would not be safe to work at heights or to undertake climbing. Further, he would have long-term restrictions, including no large amounts of prolonged standing, walking, kneeling, squatting, twisting and turning.
153 Mr Miller concluded the plaintiff would have a reduction in his capacity for pre-injury leisure and recreational activity.
Investigations
154 An MRI scan of the left ankle was arranged by Mr Wang in June 2011.
155 It was reported there was minimal Achilles paratenonitis. There was 5-millimetre os-trigonum with small effusion of the posterior subtalar joint which may result in clinical findings of posterior impingement. There was moderate insertional tendinosis of tibialis posterior with an 11-millimetre Type II accessory navicular. There was no partial thickness intrasubstance tear at the tibialis posterior tendon.
156 An x‑ray on 29 April 2011 showed a small dorsal process in the posterior aspect of the talus, the significance of which was uncertain. There was no evidence of ankle joint effusion.
The Defendant’s medical evidence
157 Mr Seville reported in July 2011 to Mr Wang.
158 Mr Seville noted the plaintiff still reported pain in his ankle but believed this to be settling with regular ice and activity modification. He reported it was also much better with tape that prevented him from excessive dorsiflexion.
159 Mr Seville requested the general practitioner’s advice as to when the plaintiff would be expected to return to running and work.
160 Mr Seville reported to Dr Dhillon in October 2011 that the plaintiff had progressed reasonably well with his rehabilitation and was now completing a structured exercise program. He had progressed back to his usual activities, including running, and he was currently undertaking a vocational assessment.
161 Mr Seville noted the plaintiff still reported some intermittent pain, especially following heavy use. Taping his ankle was of assistance. He also advised he was keen for the plaintiff to commence a gym program to continue his strengthening exercises.
162 On 21 October 2011, Mr Seville reported to CGU that the plaintiff was recovering well following surgery and that his recovery had been mostly unremarkable. He was now able to load the ankle for long periods with only moderate increasing discomfort. However, when he did so for a long period, he noted an increase in pain at the end of the day. Taping had been carried out to prevent excessive pronation of the foot and, on that basis, Mr Seville was keen to have a podiatry assessment.
163 Mr Seville requested a gym membership for the plaintiff for the next three months.
164 Mr Wang wrote to Mr Seville six weeks post surgery advising the plaintiff certainly felt much freer in terms of movement with the flexion-extension being excellent. There were some residual instability issues but the ankle was stable from an anterior drawer point of view.
165 Mr Wang advised that the plaintiff should improve with persistent physiotherapy and he was happy for him to build on his current regime as tolerated and there were no restrictions for progressive weight bearing, running and strength work. He had suggested a return in four to six weeks if he had any residual problems but if he did not hear from the plaintiff, he would assume he had made a full recovery.
Longwarry Medical Centre
166 There was no mention of any left ankle complaint before May 2011, the plaintiff having attended this practice since June 2008.
167 On 6 May 2011, Dr Dhillon noted that the plaintiff was walking on the said date on an unstable concrete slab and panicked and jumped off it and landed on ball of foot.
168 The plaintiff attended on crutches on 22 June 2011. In November 2011, he complained of left ankle pain. He had had been going to physiotherapy twice a week and wanted a referral for a cortisone injection. The last reference to left ankle complaints was on 21 December 2011. The last attendance at that practice appears to be in June 2012.
169 Notes of the plaintiff’s attendances at Gladstone Central Medical Centre from November 2013 to August 2014 did not include any reference to left ankle complaints.
170 The notes contained numerous attendances in relation to mental health issues in 2014 following harassment at work. Antidepressant medication was prescribed and the plaintiff was referred for counselling. Anxiety/panic attack was noted on 18 June 2014.
Overview
171 I am satisfied that the plaintiff suffered injury to his left ankle in the incident on the said date.
172 The plaintiff’s ankle condition was diagnosed as posterior impingement syndrome of the left talocrural joint. This condition was surgically treated by Mr Wang on 15 June 2011.
173 I accept the injury occurred in the circumstances described by the plaintiff despite the handwritten discharge summary from Mr Seville that appears to refer to a seven-month history of left ankle soreness following an injury in Round 2 and an aggravation a month earlier.
174 Counsel for the defendant submitted that this history was in fact taken on the initial visit on 29 April 2011 rather than the date of discharge in October 2011.[43] It was submitted the note indicated the plaintiff had a longstanding left ankle problem predating any injury alleged on the said date. This issue was a matter of clinical importance that was relevant to practitioners who had examined the plaintiff for the purposes of this case.[44] Having not been provided with that history, it was submitted the opinion of those examiners was questionable.[45]
[43]T67
[44]T68
[45]T69
175 It was submitted if that was the correct reading of Mr Seville’s note, then the plaintiff would have difficulty establishing precisely which injury was sustained on the said date.
176 I do not accept counsel for the defendant’s interpretation of Mr Seville’s note.
177 In my view, the details were written at the time of discharge as it is a “discharge summary”. That date is 29 October 2011.
178 Whilst there seems to be some confusion in Mr Seville’s correspondence as to the precise date of injury, he makes no mention in any documentation of any left ankle problems suffered by the plaintiff prior to the incident.
179 There is no evidence the plaintiff experienced left ankle pain prior to the incident.[46]
[46]T28
180 Significantly, the plaintiff denies that he had any left ankle problems prior to the incident. His level of activity during that period suggests this was the case, playing football for the entire previous season and then cricket in late 2010, early 2011. During that time, the plaintiff was also working full time.
181 Liability was accepted for the arthroscopic surgery and there was about six months of weekly payments.[47]
[47]T28
182 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[48] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[48][2006] VSCA 171
183 No such explanation has been forthcoming in the present case.
184 I am satisfied the plaintiff’s ankle impairment has a substantial organic basis.[49] There is no suggestion that non-organic or psychiatric factors play any significant role in the plaintiff’s current presentation.
[49]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21] – [22]
185 Whilst Mr Miller thought a psychiatric assessment was appropriate, he concluded the plaintiff suffered an organic injury, the effects of which continued. This view was shared by Mr Battlay.
186 The plaintiff has not required any psychiatric treatment since his return to Victoria from Queensland.
187 Although there is no report from a treating medical practitioner since the end of 2011, the plaintiff has not had treatment since then, as he was advised nothing further could be done for him. The optimism of those treaters as to the plaintiff’s prognosis at that time has not been borne out, with the plaintiff continuing to suffer pain and significant restriction in his various activities.
Credit
188 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[50]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[50](2010) 31 VR 1 at paragraph [12]
189 It was submitted on the defendant’s behalf that the plaintiff was an unreliable witness.
190 In this regard, it was submitted the plaintiff had failed to disclose pre-existing left ankle problems as set out in Mr Seville’s discharge summary.
191 Further, the plaintiff omitted to mention very serious psychiatric matters in his affidavit. He deposed to having discussed his inability to get back to an active sporting life with his doctor in Queensland but he agreed in cross-examination that was entirely wrong.[51]
[51]T70
192 It was also submitted that the plaintiff had misled Mr Battlay in saying he had had lots of physiotherapy in Queensland and that he had not been able to coach football when he had in fact coached football in 2012.
193 However, there appear to be a number of errors in Mr Battlay’s report including his notation the plaintiff was taking Brufen, which was never the case.
194 Counsel for the plaintiff submitted the plaintiff was a credible witness who was candid and readily gave concessions. It was submitted that he was of excellent character and his evidence should be accepted without hesitation and his application should succeed.
195 Whilst Mr Battlay mentioned some overstatement on the plaintiff’s part, I accept he was generally a witness of truth and I accept his description of the consequences of his left ankle injury in terms of his work capacity and its impact on his previously very active sporting life.
196 Further, there was no surveillance film or other evidence showing a greater level of activity than the plaintiff described. There is no suggestion by any medical practitioners of any inconsistencies on physical examination.
Consequences
197 The plaintiff is now only thirty-two.
198 In Stijepic v One Force Group Aust Pty Ltd,[52] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[52][2009] VSCA 181 at paragraph [43]
199 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it relevant to look at the likely period for which those consequences would be experienced.
200 The Court noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
201 Attention must be focussed on the impairment or loss of body function, not the injury.[53]
[53]Richards v Wylie (2000) VSCA 50 at paragraph [16] (per Winneke P)
Pain
202 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[54]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[54](Supra) at paragraph [11]
203 Given the changes in the plaintiff’s activities and lifestyle post-incident, I accept he has had ongoing left ankle pain despite mention by his treaters at various stages and by medico-legal examiner, Dr Graham, at the end of November 2011, that there had been substantial recovery.
204 Mr Battlay’s findings of further reduced ankle movement on recent examination confirm the plaintiff’s complaint that his ankle of recent times has become stiffer and has less movement. The fact that the plaintiff has not recently attended a general practitioner in this regard is consistent with his approach to treatment generally, having been told there is nothing further that can be done for him.
205 In addition to pain, the plaintiff continues to have problems with activities involving weight bearing such as walking the golf course, running and bowling, and standing for prolonged periods.
206 Mr Battlay and Mr Miller confirmed the plaintiff would have problems with these activities. On examination, they both found restriction of ankle movement and tenderness.
207 Mr Miller considered the plaintiff was at an increased risk of developing arthritis disease in the ankle and subtalar joint.
Treatment
208 The plaintiff has had limited treatment since the surgery. He continues to require painkilling medication, taking six to eight Nurofen tables on average every week.
Work
209 Counsel for the defendant submitted this is not a case where a chosen career is lost because of injury. Therefore, employment is irrelevant in terms usually discussed by the Court of Appeal. Further, it was submitted the plaintiff is currently earning a god income.[55]
[55]T63
210 I do not accept there have been no work-related consequences of the plaintiff’s ankle injury.
211 In my view, it is of significance that the plaintiff, having just started his own cabling company in 2010, had to cease that work because he could not cope with ladder work and other heavy duties involved because of his left ankle injury.
212 As Mr Miller confirmed, the plaintiff is unable to do work involving climbing and walking on uneven ground.
Sporting activities
213 The most significant consequences of the plaintiff’s ankle injury however, relate to his ability to participate in a range of sports, not just cricket.
214 Whilst not an elite athlete, the plaintiff played football and cricket to a relatively high level before the injury. Sport was his life and he was paid to play both sports.
215 The plaintiff has not been able to play football or cricket since the incident.
216 Cricket was the plaintiff’s first love. As a result of his left ankle injury, he can no longer play because of problems bowling with his left foot and also batting, having to wear pads when running between wickets.
217 Whilst the plaintiff can still coach cricket, coaching positions are not readily available, as he is unable to play and he would be a much more attractive candidate if that was the case. Further, the plaintiff is frustrated with coaching as it constantly reminds him of his inability to play at the level he would like to and the fact he has had to give up sport since the age of twenty-six.
218 The plaintiff simply cannot play football because of the running involved.
219 The plaintiff’s running is very limited, having previously run long distances for fitness prior to his injury.
220 As a result of his inactivity, the plaintiff has put on a substantial amount of weight, up to 20 kilograms. This upsets him greatly, both as to his lack of activity and also from a physical point of view.
221 Whilst the plaintiff still plays golf, he has to play in a cart and has problems transferring his weight. He does not produce the same scores as he previously could.
222 The plaintiff has had to give up tennis.
223 I accept for this young, sporting plaintiff, the interference with his sporting life is a serious consequence in itself.[56]
[56]T74
224 Further, the plaintiff has to wear orthotic supports in his shoes and work boots. He has problems wearing dress shoes, as he indicated, both to Court and also at a recent wedding.
225 Despite wearing supports, at times, the plaintiff’s ankle feels as if it is unstable and he needs to use ice packs very frequently for the swelling.
226 Taking into account all of the evidence, I am satisfied that the plaintiff has a permanent impairment of his left ankle, the consequences of which are serious.
227 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
- - -
1
5
0