Pearce v Victorian WorkCover Authority
[2014] VCC 776
•2 June 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-13-04307
| VEEDA MARIE PEARCE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY (ABN 90 296 467 627) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 10 and 11 April 2014 | |
DATE OF JUDGMENT: | 2 June 2014 | |
CASE MAY BE CITED AS: | Pearce v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 776 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment of the right leg, particularly the ankle and foot – loss of function – whether pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: The plaintiff is granted leave to bring common-law proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
1 This proceeding is an application brought by Originating Motion dated 22 August 2013 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with Cassmoore Pty Ltd (“the employer”). The plaintiff alleges that she was injured on 26 August 2008 when she fell at her place of employment and injured her right ankle.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
3 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined.
·The following documents were tendered in evidence:
§ Exhibit A – the Plaintiff’s Court Book (“PCB”) pages 1-15, 20-30, 53A-99;
§ Exhibit 1 – the Defendant’s Court Book (“DCB”) pages 7-29 and 38-52;
§ Exhibit 2 – Clinical notes of Dr Deary between 3 December 1998 and 9 July 2008;
§ Exhibit 3 – Certificates of Capacity dated 12 April 2009 and 8 May 2009;
§ Exhibit 4 – Medical notes regarding weight increases for the plaintiff dated 29 October 1989;
§ Exhibit 5 – DVD-video surveillance film dated 13 February 2014, 14 February 2014 and 14 March 2014.
4 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”. The loss of body function in this case is the use of the right leg.
5 Mr Elliott, on behalf of the defendant, identified the issues in this application as whether or not the consequences to the plaintiff of the injury to her right ankle met the statutory test. In short, this case is a range case.
The statutory scheme
6 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
7 I am required by s134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
8 The plaintiff was born in 1960. She is now fifty-three years of age. The plaintiff was born and raised in the Ararat and Stawell area. The plaintiff’s husband died in early February 2009.
9 The plaintiff now works as a personal carer and activities coordinator at the Ararat Retirement Village. Her employment is full time.[3]
[3]Transcript (“T”) 50
10 The plaintiff was educated to Year 10 at Stawell High School. She subsequently worked in a milk bar, bakery and Safeway store for some seven years. The last three years of her work at the Safeway store was as the manager.[4]
[4]PCB 2
11 In 2006, the plaintiff was the publican in respect of BJs Hotel in Ararat. The plaintiff and her husband were also involved in the conduct of the business at the Blue Duck Hotel at Ararat.[5] The plaintiff was injured whilst working at the Blue Duck Hotel in Ararat.
[5]PCB 2
12 The plaintiff has subsequently completed a Certificate III in Aged Care as part of her rehabilitation training. The plaintiff completed this qualification after she had ceased working in the Blue Duck Hotel and had in fact sold the hotel in July of 2009.
Injury with the employer
13 The plaintiff was employed as a manager of the Blue Duck Hotel in Ararat. She managed the property on behalf of the employer. The plaintiff was injured on 26 August 2008.
14 The plaintiff described the incident causing injury to her right ankle as follows:
“On the 26 day of August 2008 the Hotel had shut and I was cleaning up for the night. As part of my duties I had to clean the beer lines. That involved me having to go down into the cellar and change the barrels so that the cleaning solution could be run through the lines and all of the beer flushed out. There is a trapdoor to get to the cellar which is in the floor of the bar area. I opened the trapdoor and went down and changed the barrels and then came back up to run the beer through the lines. The area in the bar is a very awkward and confined space and the trapdoor takes up most of the floor area. I had to walk past the trapdoor to get to the other end of the bar and while I was doing that the bar floor moved because there was inadequate support of the floor and my foot slipped. My left leg went down onto the stairs to the cellar and my right foot became jammed underneath the shelf which is part of the bar. I immediately felt severe pain in my right foot and leg and also pain in my back. I almost fell down into the cellar but I was able to prevent myself. I was in severe pain and it took me a while to even get up and to sit down. I called a taxi because I couldn’t walk and I went to the Ararat Hospital.”[6]
[6]PCB 3
15 The defendant concedes that the plaintiff was injured at the Blue Duck Hotel on the day of the accident.
Medical treatment
16 Immediately after the accident, the plaintiff took a taxi to the Ararat Hospital. The following day, she attended the Ararat Medical Centre and saw her local general practitioner, Dr Deary.[7]
[7]PCB 3
17 The plaintiff had an x-ray of her right ankle which showed a fracture of the posterior malleolus. A subsequent CT scan later showed a fracture of the medial malleolus as well. There was no displacement. The plaintiff was treated for the fracture by the Orthopaedic Registrar at the Ballarat Base Hospital.[8] The plaintiff’s right ankle was placed in a backslab, because the swelling of the ankle was too great to provide her with a full plaster cast. The plaintiff was to be immobilised in this way for a period of six weeks.[9]
[8]PCB 15
[9]PCB 15
18 The plaintiff required the use of a wheelchair and, subsequently, the use of crutches, before she was fully mobilised. In her evidence, the plaintiff stated that she was still on crutches at the time of her husband’s funeral in February 2009.
19 The plaintiff was subsequently referred to Dr Andrew Kingsford, specialist in foot and ankle surgery. Dr Kingsford diagnosed the plaintiff with mild Complex Regional Pain Syndrome.[10] The plaintiff only saw Dr Kingsford on one occasion.
[10]PCB 60
20 The plaintiff has received treatments from physiotherapists and takes Panadol and Nurofen for the control of pain in her right foot and ankle. The medical evidence in this case is that there are no other treatment options open for the plaintiff. The plaintiff’s evidence is that she uses compression stockings to control the swelling within her right ankle.
The medical opinions
21 The parties relied upon the following medical opinions in this application:
Dr Mark Deary
22 Dr Deary is a general practitioner and prepared reports dated 30 July 2010, 4 August 2010, 9 February 2011, 21 October 2011 and 20 March 2014.
23 In his final report, Dr Deary summarises the plaintiff’s current condition. Dr Deary diagnosed the plaintiff as having suffered a fracture to the medial and posterior malleoli of the right ankle. He states:
“She remains with pain in the ankle and is not likely to be able to return to her pre-injury duties for the forseeable (sic) future.
Ms Pearce has been working in another capacity. She could work fulltime in any employment that did not result in pain in the ankle. This would depend on all her duties, but I suspect would be largely sedentary or at least allow breaks from walking.
Ms Pearce would be restricted in her social, domestic and recreational activities for the foreseeable (sic) future. Mainly in connection with any activity that required sustained or impacted weight bearing on the ankle.
Future treatment is likely to be limited to pain management, including orthotics and appropriate footwear, analgesia and limitations in her activities, mainly guided by her pain.
I do not think that her symptoms are likely to improve, but that in time she may well start to experience increased pain and reduced tolerance of activity.”[11]
[11]PCB 53A
24 It is clear from this report that Dr Deary is of the opinion that the plaintiff’s condition has stabilised and may deteriorate. Dr Deary is of the opinion that pain in the right ankle is the main problem for the plaintiff.
The Medical Panel
25 The Medical Panel, comprising Dr Jenny Downes Brydon, general practitioner, and Mr Neil Cullen, orthopaedic surgeon, examined the plaintiff on 21 September 2011. The Medical Panel delivered its decision on 6 October 2011. Relevantly, I note that the Medical Panel stated:
“The Panel noted the worker described extreme dysaesthesia of the right foot and ankle region in a well demarcated area extending from the region of the right heel along the lateral border of the right foot, consistent with sural nerve injury. No other neurological or vascular abnormalities of the worker’s right root or lower limb were demonstrated and in particular, there were no stigmata of complex regional pain syndrome.….”[12]
[12]PCB 53G
26 The Medical Panel noted the relevant medical imaging of the right ankle as follows:
• “X-ray of the right ankle reported by Dr T French dated 27 August 2008 showing soft tissue swelling of the lateral malleolus and anteriorly over the ankle joint. The ankle mortise is intact. No avulsion fracture or chondral defect. Supplementary report dated 28 August 2008 suggests a crack fracture of the distal tibia.
• Ultrasound of the right ankle and hind foot, reported by Dr Tony French, dated 16 December 2008 suggesting split in the anterior tab fibular ligament.
• Further x-ray of the right foot dated 10 October 2008 reported by Dr K New confirming normal fracture alignment.
• CT of the right ankle dated 3 October 2008 reported by Dr C Trotman demonstrating an undisplaced posterior malleolar fracture and a fracture through the medial malleolar is without displacement with some disruption to the articular surface indicating some compression fracturing along the distal end of the tibia along with the degree of bone bruising.
…
• Ultrasound of Right ankle and hind foot dated 16 December 2008 reported by Dr T French describing a possible small split in the anterior tab fibula ligament.
… .”[13]
[13]PCB 53G
27 The Medical Panel, on the basis of its examination and the medical imaging, concluded as follows:
“On the basis of the history given by the worker, examination undertaken by the Panel, medical imaging and Referral material, the Panel concluded that the worker is suffering from persistent right ankle dysfunction and dysaesthesia in the distribution of the sural nerve, following united posterior and medial malleolar fractures of the right ankle, relevant to the accepted right ankle injury.”[14]
[14]PCB 53H
28 It is clear from this opinion that the Medical Panel accept that the plaintiff has an ongoing nerve-related injury in her right ankle and foot.
Dr Andrew C Kingsford
29 Dr Kingsford, foot and ankle surgeon, prepared a report dated 16 February 2011. The report was directed to the plaintiff’s general practitioner, Dr Mark Deary.
30 Dr Kingsford noted the radiological reports. In particular, he described the CT scan report of 3 October 2008 of the right ankle as:
“… An undisplaced posterior medial malleolar fracture line was exhibited with some disruption of the articular surface and some bone bruising.
Plain film radiographic report only (10.10.2008 right foot): Healing fracture of the posterior and medial malleoli was noted.
Computerised tomography 28.10.2009 right ankle): NAD reported; but an undisplaced faint fracture line through the postero-medial malleolus was still visible.
… .”[15]
[15]PCB 60
31 Dr Kingsford went on to diagnose the plaintiff with mild Complex Regional Pain Syndrome. Dr Kingsford noted that there was no residual physical or structural pathology that could be determined. The plaintiff was advised to use rubefacient massage regularly and seek a team opinion from a pain management department at a major public hospital.[16]
[16]PCB 60
32 I note that of all the doctors in this case, Dr Kingsford is the only doctor who diagnosed the plaintiff with Complex Regional Pain Syndrome.
Mr Kenneth Brearley
33 Mr Brearley, orthopaedic surgeon, reported for medico-legal purpose on behalf of the plaintiff in this case. He prepared two reports, dated 31 July 2013 and 7 February 2014.
34 In his 2014 report, Mr Brearley noted:
“There is considerable swelling around the ankle and proximal part of the foot. There is extreme tenderness over the medial malleolus as before. There is marked loss of extension of the ankle. Plantar flexion is close to normal. There is moderate limitation of mid tarsal joint movements.”[17]
[17]PCB 69
35 Mr Brearley gave his opinion as follows:
“Undisplaced fractures of the right medial malleolus and posterior malleolus. Treatment was conservative and union of the fractures has occurred in good position.
Exquisite tenderness persists over the medial malleolus and as indicated previously, this is presumably due to involvement of the peripheral branches of the sural nerve. There has been no improvement since I saw her last and there is no therapy which would help her with this hypersensitivity.”[18]
[18]PCB 69
36 Mr Brearley was of the opinion that there was no indication for the plaintiff to receive any interventional or operative treatment now or in the future. Mr Brearley noted there was some involvement of the articular surface, despite the non-displacement of the fractures, and that raises the possibility of some long-term arthritic change. If that was to occur, he was of the opinion that the plaintiff would only require conservative treatment for that symptom.[19]
[19]PCB 70-71
Mr Thomas Kossmann
37 Mr Kossmann, orthopaedic surgeon, examined and reported on the plaintiff for medico-legal purposes. He prepared two reports, dated 13 July 2013 and 12 February 2014.
38 In his second report, Mr Kossmann stated:
“In my two examinations, I could not find any signs of a complex regional pain syndrome.”[20]
[20]PCB 81
39 In his final report, Mr Kossmann notes:
“Ms Pearce still suffers from swelling of her right ankle and she may profit from inlays as well as stockings. Ms Pearce told me that she wears stocking during work and this seems to have paid off, however when she takes the stocking off in the evening then her right foot/ankle swells up.
…
… I am of the opinion that Ms Pearce has a changed gait, which may also influence the other joints in her right foot, right knee, right ankle and possibly also in her lumbar spine. … .”[21]
[21]PCB 82
40 Mr Kossmann’s opinion was:
“In my opinion, Ms Pearce shows signs of an advancing osteoarthritis in her right ankle. She has pain and movement restriction in her right ankle. In my last report I have recommended that she should undergo an MRI of her right ankle to quantify the damage in the ankle and possible signs of advancing osteoarthritis. This recommendation has not been followed up.”[22]
[22]PCB 83-84
41 Mr Kossmann goes on to say that the plaintiff may require surgery in the right ankle if the conservative treatment of the pain symptoms are not successful.[23] I note that Mr Kossmann is the only medical practitioner who raises the prospect of the plaintiff advancing to the stage of requiring an arthrodesis of her ankle joint.
[23]PCB 84
Mr Michael Troy
42 Mr Troy, general surgeon, examined the plaintiff on behalf of the insurers for the defendant. He prepared a report dated 13 May 2011. His diagnosis was as follows:
“This lady has a soft tissue injury to her right ankle, plus a bony injury to the medial malleolus and posterior malleolus to that same ankle, plus a soft tissue injury to her left sacroiliac joint area.”[24]
[24]DCB 18
43 Mr Troy’s examination and report was for the purposes of assessing a whole-person impairment determination under the Guidelines of the 4th edition of the AMA Guides.
Dr Chris Grant
44 The claim by the plaintiff in this case is not a psychiatric-related claim. The defendant relied on the report of Dr Chris Grant, psychiatrist, for the purpose of obtaining a history and a basis for cross-examination of the plaintiff. His report is of no assistance to the Court in respect of the determination of serious injury relating to the plaintiff’s right leg.
Mr Michael Dooley
45 Mr Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant for medico-legal reporting. Mr Dooley prepared a report dated 11 March 2014.
46 In his examination, Mr Dooley noted that the plaintiff walked without a limp. He noted that the plaintiff’s ankle and hindfoot was very sensitive to touch. He noted that there was no evidence of discolouration or swelling in the right ankle.
47 In the diagnosis section of the report prepared by Mr Dooley, he noted as follows:
“… I believe however that what I term excessive neurovascular response to healing is not uncommon. With this, patients do seem to get some increased pain, have sensitivity around the ankle, swelling etc. They are often slow to mobilise. The natural history however is recovery in time and certainly within a period of twelve months or so.
Patients following this sort of ankle fracture will note some aching in the ankle with prolonged activity and prolonged standing. On balance, the intensity in Ms Pearce’s ongoing pain and her described disability are greater that [sic] what one would expect to see for her condition at this point in time. The use of firm socks, elastic stockings etc will help swelling. Low impact exercise, e.g. exercise bike riding etc may be of benefit. Shoe wear modification may be of some assistance. I do not think that surgical intervention would help Ms Pearce. She does not require specific ongoing orthopaedic treatment.”[25]
[25]DCB 28
48 Mr Dooley gave his opinion as follows:
“From an orthopaedic viewpoint only, I would expect Ms Pearce to note some aching of her right ankle with prolonged activity and prolonged standing. Given that the malleolar fractures were undisplaced, the risk of post traumatic osteoarthritis developing in the right ankle in time would be low.”[26]
[26]DCB 28
49 In Mr Dooley’s opinion, the plaintiff did not suffer from Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome Type 1. He disputes Mr Kossmann’s opinion in that regard. Mr Dooley accepts that a fracture of the kind the plaintiff suffered can cause long-term swelling and pain greater than one would expect in the joint. In the plaintiff’s case, this has continued for nearly six years.
50 On the basis of the preponderance of the medical evidence in this case, I accept that the plaintiff has suffered an organic injury to her right ankle. The right ankle has continued to give the plaintiff considerable pain and swelling. This has been observed by nearly all of the medical examiners. The Medical Panel, in its opinion, has diagnosed the plaintiff as having suffered injury to her sural nerve which impacts upon the pain and sensitivity of the plaintiff’s right foot. This is consistent with the complaints made by the plaintiff. I accept that the medical opinions, in the main, support the complaints of pain and sensitivity and swelling to the right foot and ankle made by the plaintiff.
Credit of the Plaintiff
51 Mr Elliott, on behalf of the defendant, challenged the credit of the plaintiff. He cross-examined the plaintiff on the basis that she was exaggerating and embellishing her description of the levels of pain that she suffered in her right ankle and foot. He submitted that her evidence in re-examination relating to the swelling and exquisite pain in the foot after a day’s work were not to be accepted. Mr Elliott relied upon the DVD-video surveillance film of the plaintiff conducted on 13 and 14 February 2014, 14 March 2014 and 1 April 2014.
52 I have had the advantage of observing the plaintiff give evidence in this case. I accept the plaintiff is a witness of truth and I accept that her evidence about the level of and duration of her pain and the consequences for her was accurate or even understated by her. The plaintiff did not exaggerate or overstate her symptoms or difficulties at any time during the course of her evidence. Her manner was matter-of-fact and she presented as a stoical person.
53 I am fortified in that view on the basis of the medical reporting in this case. Each of the medical practitioners has found the sensitivity in her right foot and accepts that there is an organic basis for it.
54 The plaintiff, having decided that she was unable to continue in her role as a publican, has then sought alternative employment and retrained in order to undertake that further employment in aged care. She has got herself back to full-time paid employment. This is to the plaintiff’s credit, and she performs that full-time work despite the fact that she suffers from pain and swelling in her right foot, as described by her.
55 In the DVD-video surveillance film, the plaintiff is shown walking about after work. The purpose of the defendant’s attack upon the plaintiff’s credit was to challenge her statement in affidavits that she would go home after work and put her foot up because she had to. The plaintiff’s commonsense and practical answer to this was that, having worked in Ararat and living in Moysten, she would perform her shopping duties before going home after work. She was videoed doing this on a number of occasions. Most importantly in my opinion, the plaintiff was shown to be limping whilst walking around in her shopping activities. When the plaintiff was cross-examined about her shopping and activities after work but before going home to Moyston, she never took the opportunity to say she was limping. It would have been an easy thing for the plaintiff, having seen the video in Court, to simply say “You can see I am limping in the video”.
56 I accept that the Court has to be careful when considering the impact of short surveillance film when assessing a plaintiff’s credit. The principles are well set out in Church v Echuca Regional Health.[27] In my assessment, the video surveillance film of the plaintiff shown in this application confirms her complaints of difficulty with her right ankle and leg. The plaintiff, in my opinion, was clearly limping in some of those surveillance film recordings.
[27](2008) 20 VR 566
57 I conclude that the plaintiff is a truthful and honest witness. The plaintiff presented as a person who acknowledged her difficulties with the right ankle injury and just got on with her life. The plaintiff presented as a straightforward, no nonsense woman.
Consequences of the injury to the Plaintiff
58 The plaintiff swore two affidavits, dated 21 February 2013 and 30 January 2014. The plaintiff adopted those affidavits in her evidence and was cross-examined and re-examined in the course of this hearing. The plaintiff also relied upon the affidavit of Geoffrey Lloyd, sworn 21 June 2013 and the affidavit of the plaintiff’s daughter, Carli Koros, sworn 14 August 2013. Neither Mr Lloyd nor Ms Koros were cross-examined in this application.
59 The plaintiff deposes to the following consequences as a result of the injury to her right ankle:
Sleep
60 The plaintiff states in her first affidavit that her sleep was significantly affected and that she would probably get four to five hours sleep at best and then she was awoken with pain and then had difficulty getting back to sleep.[28]
[28]PCB 4, paragraph 7
61 In her later affidavit, the plaintiff deposed that she had difficulty with sleep five to six nights a week. She described how the pain would wake her and that she would toss and turn and could not get back to sleep or that her sleep was poor as a result of the pain in her right foot.[29]
[29]PCB 7, paragraph 3
62 The plaintiff was challenged by Mr Elliott about this evidence. The following evidence was given:
A:“I have difficulty with sleep five to six nights a week. Can’t get back to sleep or sleep can be poor because of the pain in the right foot.
Q:Is that the situation now?‑‑‑
A:Yes.
Q:Have you been prescribed sleeping tablets to help you sleep?‑‑‑
A:No.
Q:Is there any reason why you wouldn't take sleeping tablets, Mrs Pearce?‑‑‑
A:Because, like I said, I don’t like taking a lot of medication.”[30]
[30]T28, L15-22
63 I accept the plaintiff’s evidence that her sleep is interrupted as a result of the pain to her right foot and ankle. I accept that the interruption to sleep and the limit to her sleep is a very considerable consequence for the plaintiff in the enjoyment of her life and her ability to wake up after having a proper rest.
Pain
64 The plaintiff, in her first affidavit, states that she has pain in her right foot and ankle and it sometimes spreads to the lower part of her leg. The plaintiff stated:
“I get numbness and altered sensation in the right foot and ankle and it is painful all the time. … .”[31]
[31]PCB 4
65 The plaintiff, in her second affidavit, confirms that her right foot and ankle are painful all the time and that the pain can spread into the lower part of her leg.[32]
[32]PCB 7
66 In the course of cross-examination, the plaintiff was challenged about her ability to go shopping and carry things et cetera after a day’s work. The evidence was as follows:
Q:“I put it to you that those two videos on two separate days show you going straight from work, and attending to a number of places, shopping, going in and out, carrying things, getting in and out of your car, and being active for quite a period of time; do you agree with that?‑‑‑
A:I did do those things. I have to do shopping. I have to go to the post office to get my mail.
Q:You do it because you’re physically able to do it, Mrs Pearce; you were physically able to do those things that we saw on the video?‑‑‑
A:I did do them and my foot was in pain while I was doing them.[33]
…
Q:I put it to you it doesn’t show any signs of pain, the video. You were going around getting into your car, going to the shops, going here, getting the plants for your garden, getting the bale of hay, things of that nature, going around doing the normal things in life?‑‑‑
A:There’s no one else to do them for me.
Q:Exactly, Ms Pearce; it’s not a question of your ankle swelling up and you having to go home and put it up, you’re out and about?‑‑‑
A:That’s not every day.”[34]
[33]T36, L9-19
[34]T36, L28 – T37, L5
67 In re-examination, the plaintiff was asked about her altered gait in the DVD-video surveillance films and the following evidence was given:
Q:“When you say there were altered sensations in the foot, was there anything specific?‑‑‑
A:In the heel and the under heel? Can you just ‑ ‑ ‑.”
HIS HONOUR:
Q:“What do you mean by that?‑‑‑
A:It’s a feeling like numbness and very sensitive at the same time. Like, you can feel it now, when things are touching my heel and my underfoot it’s a horrible feeling, yes.”[35]
[35]T56, L2-8
68 In her evidence, the plaintiff also stated as follows:
Q:“During the course of a day how often would you get the swelling?‑‑‑
A:Well, I wear compression stockings to help with the swelling, right, but it - it swells up to - to an uncomfortable level, and then when I take the stocking off and that, that’s when it just really feels like it’s going to explode and you’ve got another terrible sensation, and - and pain and that with that as well, and that’s when, as I take the stockings off, that’s when I put my foot up for a while, either on the chair, or in bed I’ll have it up on a pillow.
[Mr Fehring]:
Thank you, no further questions, Your Honour.”
HIS HONOUR:
Q:“When you say in bed you have your foot up on a pillow?‑‑‑
A:Yes.
Q:You mean there’s a pillow on the bottom end of the bed?‑‑‑
A:Yeah, yes.
Q:Your foot’s on it?‑‑‑
A:Yep.
Q:And then the blankets are over that?‑‑‑
A:No, most times I’ll get rid of the blanket or I’ll hang my foot out the side of the bed, even, because when - like, at the end of the day, right, and it’s – it’s horrid. It is really painful. You cannot stand the sheets touching it, you cannot stand anything touching it. When you go home and you put your feet up when all the day is done, right, we’re in a whole different zone then, and so, you put - I put my foot over the edge of the bed, sometimes I’ll even put a compression stocking back on, or, a tight sock to sort of make it feel a little bit better, or I’ll take some Panadol or some Nurofen or something like that to help with it.”[36]
[36]T59, L21 – T60, L17
69 Mr Elliott, on behalf of the defendant, submitted that I should not accept the evidence of the plaintiff about her symptoms after work and when she gets home and lies on the bed. I accept the plaintiff’s evidence in this regard for the reasons I have set out in relation to the credit of the plaintiff section of these reasons for judgment. I also note that the plaintiff has given that history to doctors in the course of their examination of her for the purposes of this application. The consistency of the history by the plaintiff and her evidence lend credit and weight to the evidence of the plaintiff, which I accept on the issue of pain and swelling in her left ankle.
70 I consider the level of pain and swelling suffered by the plaintiff as a result of her injury to her right ankle has been a very considerable consequence for her. I consider that this condition, given that it has lasted for some six years until now, will continue into the foreseeable future.
Medication
71 The defendant mounted an attack on the plaintiff on the basis that she was not taking pain-relief medication for her symptoms as she described them in relation to her right ankle and foot. The plaintiff, in her first affidavit, stated that she continued to take Panadol and Nurofen, probably on a weekly basis, sometimes more often, to deal with the pain in her foot.[37] The plaintiff never at any stage gave evidence that she took pain-relieving medication any stronger than Panadol or Nurofen.
[37]PCB 6, paragraph 2
72 On the issue of medications for pain relief, the following evidence was given:
Q:“And Mrs Pearce, looking at these notes, I can’t see you being prescribed any painkillers by the doctor in this period in 2009?‑‑‑
A:Because I told him that I didn’t want to be taking any, like, really hard painkillers because I don’t like taking medication, but I do take it when I have to.”[38]
[38]T16, L19-23
73 Later on in the cross-examination, the following proposition was put to the plaintiff:
Q:“You’ve gone back and you don’t like taking pain killers, I can understand that?‑‑‑
A:Not heavy duty ones, no.”[39]
[39]T20, L21-22
74 In the course of cross-examination, the plaintiff was challenged about the movements that she was making as displayed on the DVD-video surveillance films. The following evidence was given:
Q:“I put it to you that it’s a different picture that we’ve seen in those videos, to the one that you’ve painted in your affidavits of being restricted through swelling practically every day, having pain that restricts you in what you do. It’s a completely different picture, Mrs Pearce?‑‑‑
A:That’s how it appears to you but I’m in pain. I’m in pain right now.
Q:And you don’t take any medication for it?‑‑‑
A:I take Panadol and Nurofen.”[40]
[40]T40, L12-20
75 The plaintiff, later on her evidence, stated that she did not like “taking hard-core pain killers”.[41]
[41]T54, L4
76 I accept the plaintiff’s explanation that she is a person who does not like taking medication, in particular hard-core pain-relieving medication. Consistent with that position, she is supported by the evidence in affidavit form from Geoffrey Lloyd, where he describes the plaintiff as someone who does not complain about her pain.[42] The plaintiff is also supported by her daughter, Carli Koros, in describing her mother as a stoic.[43]
[42]PCB 10, paragraph 5
[43]PCB 13, paragraph 6
77 I accept the plaintiff does take Panadol and Nurofen when the pain is at a heightened level for her. This medication is not the prescribed medications of much higher pain threshold requirement. The plaintiff is not to be disbelieved about her description of the pain and the effect of pain on her merely because she does not take more serious and prescribed pain-relieving medication.
78 The assessment of whether pain and suffering consequences are sufficient to qualify an injury as a “serious injury” is a question of fact, degree and value judgment for determination by a comparison with other cases. An assessment is not based on whether a plaintiff takes particular pain-relieving medication as a consequence of the injury.
Activities of daily living
79 The plaintiff gave evidence that on occasions she has had sudden falls as a result of the difficulty she has in her right ankle. She states that she has to be careful to put the front part of her foot down on the ground first rather than put her foot down in a flat manner. This disability impacts upon her capacity to perform the usual amount of gardening around the farmlet that she lives on. The plaintiff clearly states that she is able to do the gardening but has to wait and take appropriate breaks to do so. I accept that the plaintiff’s activities of daily living, including housework and the like, are impacted by her right ankle injury. This impact on the plaintiff’s life is a further consequence of the right ankle injury to her.
Work
80 The plaintiff, through her counsel, Mr Fehring, submitted that the plaintiff was unable to work as a publican as a result of this right ankle injury. He stated that this was a very considerable consequence for the plaintiff.
81 The history of this case was that prior to her right ankle injury, the plaintiff had been suffering from depression and anxiety as a result of her work at the Blue Duck Hotel in Ararat. The right ankle injury to the plaintiff in the August of 2008 precipitated the situation where the plaintiff had to abandon her continuing conduct of the Blue Duck Hotel. The plaintiff has subsequently retrained and became an aged carer and activities coordinator in an aged-care facility.
82 As a result of this change in work, the plaintiff’s income has increased. Further, it seems that she is now enjoying her place of work. The evidence was as follows:
Q:“And you’re working full time now; correct?‑‑‑
A:Yes, yes.
Q:And, I take it that you enjoy the work you’re doing?‑‑‑
A:I do enjoy the work.
Q:You get satisfaction out of helping the old people there with the activities and also for caring for them?‑‑‑
A:Yes.
Q:And it’s a good environment for you to work in?‑‑‑
A:Yes.”[44]
[44]T50, L23-28
83 It could be said that the right ankle injury was a blessing in disguise as far as the plaintiff’s work situation was concerned. She is now in a place where she works and enjoys her work and her income has increased. I do not accept that the plaintiff’s change of employment is a considerable consequence for her on the basis of these findings.
Conclusion
84 I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury to her right ankle has occasioned her. I am required to determine where the facts of this particular case sit in the broad spectrum of cases. The test to be applied is whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being “more than significant or marked” and as being “at least very considerable”.
85 I have taken into account my assessment that the plaintiff is a stoical person. I assess the plaintiff as someone who has been prepared to put up with pain and suffering and make the best of her situation and consequently should not be treated less favourably than an applicant who, being of less strength of character, simply resigns him or herself to the injury.
86 I accept that the plaintiff’s endurance of permanent daily pain requiring some medication, and the description of her swelling of the foot according to ordinary human experience, raises a real prospect of a very considerable consequence.
87 I have taken into account the considerations set out in the cases of Haden Engineering Pty Ltd v McKinnon[45] and Sutton v Laminex Group Pty Ltd[46] to determine the impact of pain and the extent of it on the plaintiff in this case. Ultimately the decision I am required to take is a value judgment in which matters of fact and degree are to be taken into account when making assessment of the total consequences to the plaintiff arising from her injury to her right ankle and foot.
[45](2010) 31 VR 1
[46](2011) 31 VR 100
88 I conclude that, taking into account the consequences as I have found them to be, that they are of such a level to be properly described as being “very considerable” either separately or individually or collectively as a group.
89 I am satisfied that the plaintiff’s impairment as a result of the injury to her right ankle and foot is more than significant or marked and properly described as being “at least very considerable”. I am satisfied that the consequences found in this case are for the foreseeable future.
90 I grant leave to the plaintiff to bring common-law proceedings for the recovery of damages for the injury to her right ankle on 26 August 2008 in the course of her employment with the employer.
91 I will hear the parties on the question of costs.
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