Oliver v Victorian WorkCover Authority
[2014] VCC 2174
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04664
| STEPHEN JOHN OLIVER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 8 December 2014 | |
DATE OF JUDGMENT: | 18 December 2014 | |
CASE MAY BE CITED AS: | Oliver v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2174 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application on the basis of s134AB(37)(a) – whether injury to the lower right leg and right ankle “serious” within the meaning of s134AB(38)(c) – pain and suffering only.
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Judgment: Leave granted to the plaintiff pursuant to s134AB(16)(b) of the Act to commence a common law proceeding against the defendant and his former employer claiming damages for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J Batten | Lander & Rogers |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 11 September 2013.[1]
[1]Plaintiff’s Court Book (“PCB”) 28
2 In the Originating Motion the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendant and his former employer claiming damages.
3 The plaintiff’s case is that he suffered an injury arising out of, or in the course of, or due to the nature of his employment as a truck driver with Scott’s Transport Services Pty Ltd (“Scott’s”) on or about 24 September 2009.
4 There is no issue in this proceeding that in the course of his employment with Scott’s on or about 24 September 2009, the plaintiff suffered an injury to his right leg and ankle. The radiographer, Dr Damien Cleeve, reported on that day, that x-ray of the right ankle revealed oblique fractures to the distal third of the fibula with disruption of the distal tibio-fibula joint and a 1-centimetre lateral subluxation of the talus, indicating medial ligament disruption.[2] The fracture was plated and screwed. I will return to the medical evidence relating to the plaintiff’s injury later.
[2]PCB 74
5 Further, there is no issue in this proceeding that the plaintiff continues to suffer pain and suffering consequences as a result of sustaining the injury, or that those pain and suffering consequences are likely to be permanent.[3]
[3]Transcript (“T”) 36
6 The plaintiff claims that the injury he sustained has resulted in permanent serious impairment or loss of a body function to his lower right leg and ankle within the meaning of s134AB(37)(a) of the Act.
7 The plaintiff seeks leave to commence proceedings claiming damages for pain and suffering only.
8 The issue in dispute in this proceeding is limited to the question of whether or not the pain and suffering consequences of the plaintiff’s injury are “serious” within the meaning of s134AB(38)(c).[4] This issue is to be determined having regard to all of the evidence.
[4]T36 and T42
9 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
10 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of his employment and, what consequences (if any) were suffered and continue to be suffered by him.
11 The plaintiff filed and served three affidavits in support of his application. Those affidavits were sworn on 26 October 2012,[5] 7 February 2014[6] and 17 June 2014.[7] There was no challenge to the credit of the plaintiff.
[5]PCB 1
[6]PCB 6
[7]PCB 8
12 In addition, the plaintiff was called for cross-examination and was extensively cross-examined by the defendant’s Senior Counsel.
13 The plaintiff’s application was also supported by an affidavit of his wife, Sharon Florence Oliver, also sworn 17 June 2014.[8] She was not called for cross-examination and so her evidence is not challenged.
[8]PCB12
14 In addition, the plaintiff filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as exhibit B the Plaintiff’s Court Book (“PCB”) pages 1 to 14 and 39 to 80 inclusive. I also admitted into evidence as exhibit A, a letter from the plaintiff’s current employer.
15 I admitted into evidence as exhibit 1, on behalf of the defendants, pages 1 to 14 inclusive from the Defendant’s Court Book (“DCB”).
16 The plaintiff is a fifty-one-year-old truck driver with limited education and an excellent work record. He left school after Year 11 and joined the army for a short period before he commenced truck driving, which he has done in one form or another ever since. He deposed and, it is not challenged, that his truck driving was mostly involved in livestock delivery.[9] He holds certificates in Victoria that qualify him to teach driving of heavy vehicles and equipment. He holds a Diploma in Occupational Health and Safety.[10]
[9]PCB 2 [3]
[10]PCB 4 [7]
17 After the injury, the plaintiff was operated on and hospitalised for a period of six days. He then attended his general practitioner, Dr Renfrey, and attended a physiotherapist for a few months. He deposed to having medication for several months including codeine and Panadol. The plaintiff was unable to work for up to seven months before he obtained employment with Journey Management Group in April 2010. This work involved training and assessing drivers. He did this work until around December 2011 (about twenty months) when he obtained what he at first thought would be similar work with a BHP Company, Exact Mining Services at the Olympic Dam site in northern South Australia.[11] At the time he obtained this job, the plaintiff was living with his family in Hamilton, Victoria. He gave evidence he would drive to Mt Gambier and from there catch a light plane to Adelaide where a further flight would transport him to the Olympic Dam site. He liked the job, which was at first to be a training-type job, but it transpired that there were no personnel to train so the plaintiff was employed as a truck driver. This work ceased when the plaintiff was forced to return home to Hamilton because of his wife’s health.[12]
[11]PCB 3 [4]
[12]PCB 6 [3]
18 The plaintiff deposed he remained at home for a couple of months before obtaining employment with Porthaul in late August 2013. This involved driving timber trucks between Hamilton and Geelong on a daily basis.[13] The plaintiff deposed that this work significantly increased his leg pain, which he said was due to the amount of driving he was doing. He said he also was getting right hip pain which made it difficult for him to get comfortable in the driving seat of the truck. He said he was having to take a lot of Panadeine and was also having regular massage in order to continue the work. He worked in this job for only three months.[14]
[13]PCB 6 [3]
[14]PCB 7 [4]
19 In January 2014, the plaintiff commenced employment as a trainer/driver. The company was Outback Logistics and the plaintiff was required to work out of Moomba at the oil and gas field near the South Australia/Queensland border. The plaintiff and his wife moved to Adelaide for this work. The plaintiff’s employer would fly him in and out of Adelaide to Moomba, where he would work a fourteen-day shift.[15] The plaintiff’s work involved driving road trains. He ceased this work in June 2014 and obtained work with GKR Transport. Initially this involved driving a two-driver truck from Adelaide to Perth, which the plaintiff said he found very difficult. In recent times, he has been performing local work for the same employer. This involves driving vehicles of varying size within a 100-kilometre radius of Adelaide.
[15]PCB 7 [5] and [6]
20 In his first affidavit, the plaintiff deposed that his right leg is painful all of the time and the pain increases with activity. He deposed he can walk only for about a kilometre before the leg pain increases. He said he cannot stand for long periods. He deposed that his driving a car was restricted to about an hour to an hour-and-a-half when he said “the leg and, in particular, the ankle, hip and knee” become painful. He has difficulty kneeling and going up and down stairs and walking on rough ground.[16] He deposed he has difficulty climbing in and out of heavy high vehicles involving going up and down ladders and being in confined spaces. He deposed that such activities cause him what he described as “a lot of problems and by the end of the day my leg is quite painful and stiff but I just put up with it”. He said the pain affects his sleep, waking him and making it difficult for him to get back to sleep.[17]
[16]PCB 6 [5] and PCB 9 [5]
[17]PCB 3 [5] and PCB 9 [6]
21 When the plaintiff was giving his evidence and whilst he was in the court room, I had the opportunity to observe him closely. He often appeared physically uncomfortable whilst giving evidence, shifting from side to side and constantly moving around.
22 The plaintiff deposed that whereas before he was injured he enjoyed shooting on a monthly basis, he has only been shooting twice since the injury. He said he can no longer garden but he does do some lawn mowing.[18]
[18]PCB 4 [6] and PCB 10 [8]
23 When the plaintiff swore his first affidavit, he said, inter alia:
“I could not go back to driving a semi-trailer or heavy truck on a full-time basis because of the difficulties in my leg. I would not be able to do the driving because of the long hours involved, it would be too painful and too difficult.”[19]
[19]PCB 4 [7]
24 The defendant points to this and argues that the plaintiff’s subsequent work history shows this statement to be wrong. I take the view it may have been premature. The plaintiff has in fact returned to work as a truck driver in one form or another but I am of the view that he does so with considerable ongoing difficulty.
25 In his first affidavit, the plaintiff deposed that he had not taken any medication since returning to work because he was determined to keep working. Notwithstanding he was not then taking medication, he said, and I accept, he was suffering bad pain. He said then and, has continued to say, that at the end of a busy day, his right leg is very sore and he does not sleep well. I accept this evidence.[20] I formed the clear opinion the plaintiff is a very stoic person and one not given to exaggerating any of his consequences.
[20]PCB 4 [8]
26 When the plaintiff swore his third affidavit in June this year, he described his right leg pain as constant. He deposed that when he gets out of bed in the mornings he has difficulty even standing in the shower for longer than a few minutes. He said the pain level improves after a while once he is moving. He described the pain level as 3 out of 10. But he said the pain level increases, rising to around 6 or 7 out of 10 by the time he knocks off work.[21] I accept this evidence.
[21]PCB 8-9 [3]
27 The plaintiff deposed the pain level in his right leg increases with activity and he can now walk only for 15 to 20 minutes before having to sit down. Prior to being injured, he said that walking was one of his few recreational activities.[22] He deposed that he now does not go to local football or go to the movies and avoids activities where he has to stand for any length of time.[23] I accept this evidence.
[22]PCB 9 [4]
[23]PCB 9 [5]
28 Although the plaintiff said that at first he tried to avoid taking medication, in his third affidavit, he deposed that in the last couple of years he found the need to take four or five Panadeine tablets per day. He said he usually has to take a tablet after driving for half-an-hour.[24] He said there are many activities around the home that he used to do with his wife but now cannot, or he can only do for a limited period.[25]
[24]PCB 9 [7]
[25]PCB 10 [10]
29 The plaintiff deposed that he cannot treat his current employment as long term. He said he was working in transport, trying to pay off his mortgage as soon as possible, but if he is unable to continue in the only form of employment that he has known all of his working life then he is fearful of his financial future.[26] He has been told by the doctors that there is nothing more that can be done for him.
[26]PCB 10 [11]
30 The plaintiff described an incident that occurred on 8 June 2014 where he walked on a stone on uneven ground and rolled his ankle. He described the consequent pain as “excruciating” and meant that he missed a week at work.[27] I accept that as a consequence of his injury, the plaintiff’s future employment prospects must be guarded. Should he be unable to work as a truck driver or instructor/assessor, his ability to earn income will be put into question having regard to his age (fifty-one years) and limited education, training and work experience.
[27]PCB 11 [13]
31 In her affidavit, the plaintiff’s wife largely corroborates the plaintiff. She particularly confirmed that the plaintiff often wakes up at night with leg pain.
32 I turn to consider the medical evidence. None of the doctors whom the plaintiff has consulted for any purpose was called to give evidence.
33 Mr Mladenovic, an orthopaedic surgeon, carried out surgery on the plaintiff on the day he was injured at Warrnambool Base Hospital. He reported the plaintiff sustained “a multi-fragmentary Weber C fracture of his right fibula”. The fracture was reduced and there was internal fixation of the fracture with a plate and diastasis screw. The screw was removed on 16 December 2009. Mr Mladenovic thought the plaintiff “will make a full recovery and have a good outcome”. He also opined the plaintiff “should be fit for normal duties by the 9th February 2010”.[28] Mr Mladenovic has not seen the plaintiff since 2009.
[28]DCB 1
34 Mr Paul Kierce, an orthopaedic medico-legal consultant, saw the plaintiff for assessment on behalf of the defendant on 28 February 2011.[29] After noting the injury and appropriate treatment, Mr Kierce thought the plaintiff had some sensory loss in the area of distribution of the right sural nerve. He also noted some limitation of ankle movements and of the right hindfoot movements.[30] Examination revealed the plaintiff was tender over the anterior aspect of the right ankle joint, especially over the anterior aspect of the right medial malleolus, and also very tender on palpation of the right subtaloid joint.[31] Mr Kierce opined that the surgery carried out on the plaintiff had corrected the lateral shift of the talus but that the plaintiff may also have injured his right hip with a jarring in the fall.[32]
[29]DCB 3
[30]DCB 4
[31]DCB 8
[32]DCB9
35 Dr Renfrey is the plaintiff’s general practitioner. He reported having provided several work certificates for the plaintiff in the immediate period after he was injured but that he has not been consulted in regards to the injury since 2010.[33]
[33]PCB 40
36 Mr John Henderson, an orthopaedic and general surgeon, first saw the plaintiff for medico-legal purposes in October 2012. In addition to the fracture to the fibula, Mr Henderson opined the plaintiff “also suffered some sort of severe injury to his right hip joint at the same time”.[34] He went on to describe this injury in this way:
“His ongoing symptoms now, of pain; and the moderate severity of his loss of both flexion and internal rotation range of movement, when I examined him today, indicate that some very substantial new internal derangement injury to your client’s right hip joint has now occurred, as a result of his accident fall at work, just over three years ago.”[35]
[34]PCB 55
[35]PCB 56
37 Mr Henderson thought the plaintiff was incapacitated for his pre-injury employment.[36]
[36]PCB 56
38 Mr Henderson saw the plaintiff again in July 2014.[37] He thought the plaintiff had made an excellent recovery from the fracture injury but this was not the case with regard to the plaintiff’s disrupted distal tibia-fibular joint.[38] Mr Henderson’s prognosis with regard to the plaintiff’s “right ankle joint ligamentous disruption injury” was that it was “very bad”. He went on to say the plaintiff “has substantial permanent disability as a result of these ligamentous disruption injuries on both sides of his right ankle joint”. He also opined the plaintiff suffered “a quite severe direct blunt trauma injury to his right hip joint when he slipped and fell awkwardly and heavily”.[39]
[37]PCB 59
[38]PCB 70
[39]PCB 71
39 I accept and act on the evidence of Mr Henderson, who seems to have carried out two very thorough examinations of the plaintiff. I prefer the evidence of Mr Henderson to the evidence of Mr Kierce in this case. Accepting, as I do, the evidence of the plaintiff, there is a medical basis for the complaints of ongoing pain which the plaintiff continues to make.
40 In opposing the application by the plaintiff, Mr Elliott asked me to have regard to the range of movements and activities which the plaintiff has retained post injury in assessing the consequences to him. Mr Elliott’s submission was that when this is done, it cannot be concluded that the plaintiff’s injury to his right leg and ankle is “serious” within the Act, because the pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments, cannot fairly be described as being “more than significant or marked” and as being “at least very considerable”.[40] In reaching my decision, I have had full regard to the range of bodily functions retained by the plaintiff post injury.
[40]Within s134AB(38)(c)
41 Mr Elliott referred to the fact the plaintiff has been able to return to work full time, doing hard work involving driving heavy vehicles over long journeys in confined space and also involving the difficulties of getting in and out of the vehicles. I accept the evidence shows that the plaintiff has done this work. However, I accept the plaintiff’s evidence he has only been able to work with a great deal of difficulty, often with a high level of pain. He has been able to do this only because of his stoicism.
42 Mr Elliott went through the evidence that relates to the plaintiff’s work history since the injury that is not in contention here. The plaintiff accepts he has been able to work hard and that he has received markedly increased earnings. The problem is that he is trained as a driver only and all of his work has been as a truck driver, albeit some of it as an instructor. All of the work causes him pain which he treats with Panadeine or Panadol. I accept the plaintiff’s evidence that he has difficulty getting comfortable and I accept his evidence that the ongoing pain in his right leg and ankle causes him to wake at night and have difficulty getting back to sleep. All of these consequences are likely to continue into the future.
43 I accept the plaintiff’s evidence that his domestic life is affected as a consequence of his injury. I accept he cannot walk far and no longer enjoy this activity with his wife that he did before he was injured. I accept he cannot work in the garden and has difficulty walking on uneven ground, as evidenced by what happened to him in June of this year.
44 It is common ground the plaintiff does not have any ongoing treatment and has not seen any surgeon for many years regarding his injury except for medico-legal purposes. It is also common ground the plaintiff is not prescribed any pain-relieving medication, relying as he does on over-the-counter pain relief. In deciding this application, I have had full regard to this evidence.
45 I observed the plaintiff very closely when he was giving evidence. He did not exaggerate his problems. If anything, he tended to play down his symptoms and made appropriate concessions. His credit was not challenged and he was undoubtedly a witness of truth. I accept and act upon all of his evidence. The plaintiff has been able to live his working life and domestic and social life post injury in the way that he has only because he is a very stoic person.
46 I am satisfied that the plaintiff suffered an injury to his right leg and ankle and right hip during the course of his employment on 24 September 2009. The nature of the injury is set out above and there is no need to here repeat it. The plaintiff’s fracture injury was properly treated but he has been left with a serious ligamentous disruption to the right ankle and a painful right hip injury. The plaintiff has been able to resume his employment but only with a great deal of difficulty, because the activities in which he engages leave him in almost constant pain that affects almost every aspect of his working, domestic and social life. I am satisfied the pain and suffering consequences suffered by the plaintiff as referred to in his three affidavits and, in his evidence before me can, when judged by a comparison with other cases in the range of possible impairments, be fairly described as being “more than significant or marked” and as being “at least very considerable”.
47 For these reasons, the plaintiff will have leave pursuant to s134AB(16)(b) of the Act to commence a common law proceeding against the defendant and his former employer claiming damages for pain and suffering.
48 I will hear the parties on the question of costs.
- - -
0
0
0