Ong v Department of Education and Early Childhood Development
[2013] VCC 1163
•12 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-12-03661
| Meow Ket Ong | Plaintiff |
| v | |
| Department of Education and Early Childhood Development | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2013 | |
DATE OF JUDGMENT: | 12 September 2013 | |
CASE MAY BE CITED AS: | Ong v Department of Education and Early Childhood Development | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1163 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – impairment of the function of the left foot – left ankle – pain and suffering
Legislation Cited: Accident Compensation Act 1985 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Shine Lawyers |
| For the Defendant | Mr I Gourlay | Minter Ellison |
HER HONOUR:
1 The 60 year old plaintiff applies under s.134AB(16)(b) of the Accident Compensation Act 1985 for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the left foot sustained on 23 April 2001 during the course of his employment as a teacher with the defendant when he tripped over a telephone cord in the staff office. He sustained a partial rupture of the left Achilles tendon which was treated conservatively. He was off work until 19 July 2001. He was on crutches for 6 weeks then walked with a boot. He had physiotherapy in 2001 and chiropractic treatment in 2002 and took medication until 2003. He has worked full time as a teacher since July 2001 and returned from teaching in Western Australia in 2012. He is currently looking for work in Victoria.
2 It was common ground between the parties that as a result of his Achilles tendon injury the plaintiff has suffered a permanent impairment to the function of the left foot. The defendant says, however, that the pain and suffering consequences of that impairment are not more than considerable when compared with other cases in the range of permanent impairments of the foot.
3 The plaintiff’s evidence concerning the permanent sequelae of his left foot impairment may be briefly summarised. He cannot squat or run. His walking gait is affected and he has pain if he walks even a kilometre, so he does not walk for exercise. He feels his balance is affected on the stairs and on slopes. When descending the stairs he now invariably uses his right leg to maintain control and steps down with his left leg to avoid falling. His left ankle aches when he uses the stairs. He gets cramps in the left ankle at night. He takes up to 6 tablets per week, mainly Panadol but also Voltaren when the pain is more severe. He does not have pain at rest. He has had no treatment at all from any doctor for his left ankle for the past four years. He can no longer play racquet sports, particularly badminton which he played two to three times per week and competitively up until the time of the injury. He played table tennis socially. He played in the C Grade championships in badminton about a year or so prior to his injury. He loved sport and completed a postgraduate diploma in recreation. He worked as the sports coordinator at his school in 1989 in additional to teaching mathematics. He can no longer coach sports or coordinate sports.
4 The plaintiff agreed that while working as a teacher in Western Australia in the past four years he was able to care and cook for himself, work full time and do yard duty. He did not have a doctor there. At present, he does not do much house cleaning, but manages to live with his wife in a two-storey house. He drives, uses the computer and goes to church where he socialises with friends. When he has left ankle pain it is a dull aching pain for which he takes painkillers. He does not seek out doctors. He agreed that when examined by various doctors he was able to stand on his toes or walk on his heels. He said that he sleeps alright at night most of the time but sometimes has a cramp in his left foot.
5 The plaintiff’s wife swore an affidavit in which she stated that the plaintiff depends on her for activities which require squatting or reaching down low to the floor, and is also unsteady even on a small step ladder. He can no longer do housework that involves reaching up high. He cannot carry heavy items down the stairs. He no longer dances when they go out, and can no longer walk for more than 20 minutes. She has seen him in a lot of pain as a result of his left ankle injury.
6 Mr Kenneth Brearley, orthopaedic surgeon, reported on 12 April 2012 that on examination there was “very marked atrophy” of the left calf,[1] which was 1.5 cm narrower than the right, and slight limitation of movements, with an inability to stand on his toes. He noted the plaintiff’s restrictions (inability to squat, run, go for long walks, play racquet games, climb ladders or garden) demonstrated that “he has been left with a significant disability”.[2]
[1]Plaintiff’s Court Book (PCB) 34
[2]PCB 35
7 Dr Mary Wyatt, occupational physician, examined the plaintiff on 11 April 2012 and noted the wasting in the left calf and some mild limitation of dorsiflexion of the left ankle with tenderness over the Achilles tendon.[3]
[3]Defendant’s Court Book (DCB) 35
8 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff on 16 April 2012[4] and reported that he had a 1cm decrease in left calf, a slightly thickened left Achilles tendon,[5] some limitation of movements of the left ankle and hind foot but concluded that he exhibited “minimal dysfunction” in the left leg.[6]
[4]DCB 37
[5]DCB 40
[6]DCB 42
9 On 2 July 2013 Mr Polke[7] reported that he re-examined the plaintiff’s left leg and noted that the 1cm wasting of the left calf was still present as well as “minor diminution of ankle movements, although he could walk on his tip toes and on his heels; he did not squat completely to the ground; his left Achilles tendon was still a little thickened but non-tender and in continuity”. [8] The range of movements of his left hind foot and ankle region were unrestricted with “minimal decreased eversion only”.[9]
[7]DCB 44
[8]DCB 46 – 47
[9]DCB 47
10 Mr Brendan Dooley, orthopaedic surgeon, reported on 6 December 2010[10] that on examination there was wasting of 1.5cms and slight weakness affecting the left calf; but normal left ankle movements with slightly increased extension and mild loss of motion in the left hindfoot. He concluded that the plaintiff was “considerably disabled for heavy physical activity” and could no longer play racquet games.[11] He felt that the muscle wasting in the left calf might be improved by riding a stationary bicycle.
[10]PCB 38
[11]DCB 41
Legal principles
11 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[12] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[13]
[12]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[13]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
12 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[14] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[15] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and, finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[16]
[14]Fleming v Hutchinson (1991) 66 ALJR 211.
[15]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
[16]Ibid [80].
13 The “pain and suffering consequence” of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[17]
[17]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
14 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[18]
[18]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
15 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[19]
[19]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.
16 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[20] Each case has to be determined in the light of its own facts.[21]
[20]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[21]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
17 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[22] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him. Overall the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[23]
[22]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
[23]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
Findings and reasons
18 I found the plaintiff to be an impressive, understated witness. He was candid in acknowledging that his left ankle pain is an ache which is not always present, that he is able to work full-time as a teacher, take care of his own personal needs, cook for himself while living interstate, socialise at church, and is able to walk, drive and use the stairs in his home. He sleeps alright most of the time. There was no evidence that his physical relationship with his wife has been affected by his ankle injury. He has had no treatment at all for the past few years.
19 On the other hand, he was vivid in expressing his passion for sport in general, and the loss of enjoyment he has experienced as a result of not being able to play racquet sports, or to coordinate sports activities at school, or even to run while on yard duty. Similarly, he expressed his considerable disappointment at not being able to run at all, and not being able to walk for exercise at all, due to his left ankle symptoms. He has wasting in the muscle of the left calf. He can no longer squat at all, his gait has been affected, he has trouble walking over uneven ground, and has trouble descending stairs. He has had to adopt a special way of going downstairs in order to keep his balance and even then using the stairs causes his left ankle to ache. He takes analgesic medication three times per week for his ankle pain. He is limited in what household chores he can do. He can no longer garden.
20 I found the plaintiff to be a fairly stoic man, who has done the best he can to adjust to the limitations forced upon him by his work-related left ankle impairment. Whilst he retains the capacity to work as a teacher, as a result of his left ankle injury he has to give up completely the prospect of ever working as a sports coordinator or coach, which gave him tremendous pleasure, particularly because he always wanted to be a sports teacher but had not been able to gain entry to that course. More importantly, he is affected in a most basic activity, walking, by the pain caused by his left ankle injury. He cannot walk for recreation or pleasure with his wife, and this prevents him from retaining his former fitness and from playing racquet sports which were a major part of his life. He suffers from pain which requires medication three times per week and from cramps at night which sometimes disturb his sleep.
21 In all the circumstances, I am satisfied that the pain and suffering consequences of his left ankle injury are more than considerable when compared with other cases in the range of permanent impairments of the function of the left ankle.
Conclusion
22 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the left ankle suffered on 23 April 2001 during the course of his employment with the defendant. I reserve the question of costs.
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