Petrevski v North West Air Conditioning Pty Ltd
[2015] VCC 642
•4 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-06001
| SAMMY PETREVSKI | Plaintiff |
| v | |
| NORTH WEST AIR CONDITIONING SERVICE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2015 | |
DATE OF JUDGMENT: | 4 May 2015 | |
CASE MAY BE CITED AS: | Petrevski v North West Air Conditioning Pty Ltd | |
| MEDIUM NEUTRAL CITATION: [First revision 20 May 2015] | [2015] VCC 642 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left ankle – pain and suffering only – nature and extent of consequences – resumption of recreational activities – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: Leave granted in respect of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms K Burgess | Shine Lawyers Pty Ltd |
| For the Defendant | Mr P Jens QC with Ms S De Guio | Minter Ellison |
HIS HONOUR:
Preliminary
1 Sammy Petrevski suffered a significant injury to his left ankle on 17 June 2009 when he fell through a roof while installing air conditioning for his employer, North West Air Conditioning Service (“North West”). He went to see his doctor, who organised radiological investigations. In August 2010, the ankle ligaments were surgically repaired by Mr Bedi, orthopaedic surgeon. He returned to work with North West on lighter duties. In March 2011, he was dismissed over allegations, including that he had misused a petrol card.
2 Mr Petrevski got back to work in February 2014 as a handyman/mechanic for a company which imported buses from China. He currently works full time for that company.
3 Mr Petrevski says a range of recreational interests have been affected, although it became clear in the course of evidence that he still enjoys many of those interests including hunting, fishing and motorbike riding.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of his employment on 17 June 2009. The body function said to be lost or impaired is the left ankle. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
5 I am satisfied that as a result of this injury, Mr Petrevski does have consequences which satisfy the “very considerable” test the law requires. For the reasons that follow, his application thus succeeds.
6 Mr Petrevski was the only witness called to give evidence and be cross-examined. In addition, his affidavits, one of his wife, medical and radiological reports and clinical notes were tendered in evidence. I shall not refer to all of this material in the course of the judgment but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 Mr Petrevski is forty-one, and lives in Melbourne with his wife and two children. He left school in Year 10 and finished an apprenticeship as a motor mechanic. He worked in that area for a number of years. He thought he could make more money in the air conditioning industry and in 2007, started a mature-age apprenticeship as a mechanical plumber. In 2009, he was in the second year of his apprenticeship and earning about $1,000 gross per week. He hoped to earn a lot more in the future.
8 Before the incident which gives rise to this application, he hurt his left ankle in 2008 when he fell into a hole. He went to a hospital, and an x‑ray did not show any fracture. They provided him with a brace. He went to see his general practitioner, Dr Winfield, and complained that his ankle was sore if he stood for more than four hours. He had about three days off work.[1] According to his affidavit, he said he made a full and complete recovery and did not have any problems returning to his usual heavy work.[2]
[1]Plaintiff’s Court Book (“PCB”) 27
[2]PCB 8
9 Mr Petrevski has had other problems and conditions including an injury to his left foot when he was a teenager in 1986; to his left hand when he fell off a bike in 1993; and problems on and off with his shoulders. None of these were particularly significant.
10 After his injury in 2009, he has seen doctors for what is described as a “panic reaction” which has caused problems in his shoulders and neck. He has also been concerned about headaches, as his parents have both suffered cerebral aneurisms. These have recently been diagnosed as being related to a sinus problem.
The injury and consequences
11 On 17 June 2009, Mr Petrevski was working in a roof space installing an air conditioning unit. The area was confined and dark. He lost his balance while walking on a bearer and his right foot went through the plaster, twisting his left ankle in the process. He immediately felt pain in the area. He reported the injury and the next day, went to see Dr Winfield. He was given some medication and the joint was bandaged. An x‑ray was taken,[3] which said:
“There is a well-defined subchondral lucency present within the lateral corner of the talus. CT suggested to evaluate further …”.
[3]PCB 38
12 Dr Winfield arranged a CT scan of the left ankle on 1 July 2009 which confirmed the “subchondral lucency” said to measure 5 millimetres. This was described as “evidence of prior trauma to the lateral malleolus …”.[4]
[4]PCB 37
13 Dr Winfield provided a certificate, and Mr Petrevski was off work for three or so days. He returned on lighter duties.
14 Mr Petrevski continued to see Dr Winfield and complained of a flare up of ankle pain in February 2010. He said he had difficulty climbing ladders and with other work duties. A new CT scan was performed on 10 March 2010.[5] That recorded:
“Increase in size of the bony defect in association with the lateral talar dome osteochondral lesion since the previous CT examination … .”
[5]PCB 39
15 In February 2010, Mr Petrevski moved to Epping and so changed his general practitioner to Dr Shaun Salimi of the Epping Medical and Specialist Centre. He organised an ultrasound,[6] which found “evidence of a complete rupture of the anterior talofibular ligament …”. Dr Salimi thought there was a ligament injury which required specialist orthopaedic treatment. He referred him to Mr Stephen Doig, orthopaedic surgeon, who he first saw in March 2010, complaining of ongoing ache in the ankle with some swelling and clicking. He said it was sometimes difficult to walk on uneven surfaces. Mr Doig organised and MRI scan which was said to show “osteochondral defect in the talar dome”. Mr Doig referred Mr Petrevski to another orthopaedic surgeon, Mr Harvinder Bedi, a specialist in foot and ankle surgery. On 5 August 2010, Mr Bedi performed an ankle arthroscopy. The procedure was described as a “LCL reconstruction, ankle arthroscopy and debridement, talar dome ostectomy and drilling and a repair of the peroneus brevis”.
[6]PCB 40
16 Correspondence passing between Mr Bedi and Mr Doig in 2010 indicated the surgery was successful, with Mr Petrevski gaining more stability in the ankle.[7] By May 2011, Mr Petrevski was skill complaining of pain which was thought to relate to post-operative scarring. Mr Bedi arranged custom-made insoles. An injection of anaesthetic and steroid into the ankle occurred on two occasions, but did not provide any long-term relief.
[7]PCB 25A-E
17 Mr Petrevski kept working with North West until March 2011. According to a letter sent to him at that time,[8] he was dismissed from his work for “serious misconduct” relating to abuse of a fuel card and non-attendance at trade school. In cross-examination, Mr Petrevski said he “took this up” with North West but it did not go anywhere.
[8]Defendant’s Court Book 52
18 In February 2014, he found work with another company, Heavy Vehicles Australia, working full time as a bus handyman and mechanic. He still works there. He is based in Melbourne, but travels by car to various places to work on buses which have broken down. He enjoys the work and gets on well with his employer. Not only does he perform mechanical work, but also spends time in his car, drives buses from time to time and performs office work. He says he does not have to stand for long periods and the work is not as demanding as installing air conditioning units. He is not on his feet all day and does not use ladders. At the present time, he is earning about $60,000 gross per year. He accepted in cross-examination that the work is fulfilling, he enjoys it and there is long-term security. He was taken to China on one occasion and has attended conferences.
19 According to his most recent affidavit,[9] and his oral evidence, he claims the following consequences as a result of the left ankle injury:
[9]PCB 14-15
·He says he has chronic pain in the joint which, unpredictably, gets worse sometimes. On occasions it is because of increased activity, or when he is on his feet a lot, but on other occasions without that activity.
·He avoids walking or standing for lengthy periods, as this can bring on additional pain.
·He has had to change the way he walks. Sometimes he can walk for a short distance, and on other occasions 5 kilometres.
·He feels a clicking and a grinding in the ankle, although less so in recent times. He wears orthotics in his boots and a compression brace on the ankle most days of the week.
·Walking on uneven ground is difficult. Climbing stairs and ladders can cause extra pain.
·He is not able to carry out the same sort of work now as he did when he was working as an air conditioning plumber. He is restricted in the work that he can do. He thinks if he had stayed working as a plumber, he would be earning something like $40,000 per year more than he is now.
·His sleep is affected and he only gets about four hours of unbroken sleep a night.
·He still rides a motorbike in the bush, although he is more careful and rides at a slower pace. He has recently purchased a number of new motorbikes.
·He still goes hunting and shooting fairly regularly, although hunting is more difficult and he cannot climb the steep hills as before. He still goes camping and fishing and he is not restricted in those activities.
·Of significance, he believes that his ankle condition is getting worse which is supported by the MRI and CT scans. From the opinions of most doctors, he has osteoarthritis in the ankle and there is the prospect of surgery to fuse the joint.
·He takes medication from time to time, in particular Tramadol, and over the last month has been taking one or so a day.
Medical opinions
20 According to a report of Mr Doig of January 2014,[10] there had been no improvement in the pain in Mr Petrevski’s ankle over the previous two years. The ankle was stable. He said Mr Petrevski was not fit to return to work as a mechanic or plumber, in particular being up on a roof or in a job which required standing for long periods or to perform heavy manual work. He thought he could return to a sedentary job, being able to work at his own pace. He said if the pain continued, and the ankle deteriorated, there was the prospect of ankle arthrodesis. He did not agree with the opinion of the defendant’s orthopaedic specialist, Mr Clive Jones, that 50 per cent of the current problems were related to the episode of 2008. He thought that, given Mr Petrevski was able to work full duties up until the 2009 incident, combined with the history that the incident was relatively minor, suggested it played little role in his current presentation.
[10]PCB 49
21 Mr John O’Brien, orthopaedic surgeon, provided a number of reports. In his final report of April 2015, Mr Petrevski told him that he had constant left ankle pain which had remained much the same since the first time he was seen in February 2011. It varied in severity, was at least 2 out of 10 on the Visual Analogue Scale. The pain could get worse, particularly in cold weather. Mr Petrevski told Mr O’Brien that he was capable of most normal activities and was working full time, but was unable to run and had difficulty squatting and kneeling. He could not kick a ball, although could go fishing and ride a motorcycle.
22 In relation to the first incident of 2008, Mr O’Brien obtained a history that although Mr Petrevski was off work for a couple of days, he returned to normal duties and the pain resolved. Mr O’Brien concluded that the continuing pain was related to post-traumatic arthritis of the left ankle which was consistent with the finding at the time of surgery of articular cartilage damage, and consistent with the findings on the MRI scan. He thought the condition was stable but the prognosis poor. He thought there would be a continued progression of the ankle pain with the need for more active treatment. As a result, he said Mr Petrevski had limited ankle function and would not be able to return to his pre-injury work. He thought he would probably manage continuing full-time work but there was very definite restriction in general, social, domestic and recreational activities, which was likely to continue.
23 The defendant arranged for Mr Petrevski to be examined by Mr Clive Jones, orthopaedic surgeon, on a number of occasions between 2011 and 2015. He said that although the surgery had been successful in stabilising the ankle, Mr Petrevski was still having pain in the ankle, in particular in cold weather. He thought it was unlikely the ankle would come to a full fusion. Because of the clinical notes of the general practitioner, Dr Winfield, of February 2009, which reported that Mr Petrevski had gone to a hospital and been diagnosed with a torn ankle ligament, the incident of 2008 “may be relevant” and that 50 per cent of his present impairment was related to that earlier incident. In a final report of 18 March 2015, he said when he saw Mr Petrevski in January 2015, there was definite reduction of left ankle joint movement and the complaints of ongoing sensitivity, in particular in cold weather, supported a diagnosis of very early osteoarthritis, which he said was likely to progress. The chance of an ankle arthrodesis was only about 10 per cent.
24 I did not find the opinion of Mr McInnes, general surgeon, of August 2012 of any assistance.
Issues and conclusions
25 There is no issue the Mr Petrevski suffered an injury to his left ankle in the incident of June 2009 when he partially fell through the roof of a building in which he was installing air conditioning. It is clear he suffered significant damage to the ankle, including a rupture of ankle ligament which required surgery to repair and stabilise the joint. He has had other treatment, including several injections, physiotherapy and medication, from time to time. He does not have much treatment at present, although I accept he takes the pain reliever, Tramadol, from time to time.
26 There is an issue about the extent to which the earlier incident where he hurt his left ankle when he fell in a hole in 2008, contributes to his current presentation. I prefer the opinions of Mr Doig and Mr O’Brien to that of Mr Jones. I am satisfied from the evidence of the plaintiff that that was a minor incident from which he made a near complete recovery and plays little if any role in the damage that the left ankle clearly sustained in 2009.
27 I was able to assess the plaintiff in the course of cross-examination. He was a full, frank and impressive witness, making many concessions in response to Mr Jens’ skilful cross-examination. He answered questions in a manner I would expect of an honest witness. He freely conceded that he regularly went camping and fishing and those activities were not much impaired by his ankle injury. Given my findings about his honesty, I am able, with some confidence, to accept the complaints of pain and restriction he now makes about the ankle.
28 Significantly, as Mr Jens points out, in an assessment of the restrictions an injury places on a worker one must look not only to what is lost, but also what has been retained. It is clear in this case that the plaintiff has retained quite a range of recreational and social pastimes and activities. He still goes trail bike riding, albeit with some restrictions. Sometimes he can walk 5 kilometres, even up hills. On any view, trail bike riding is an demanding sport with the prospect of jolting to the ankle when the foot is placed on the ground. Overall, from the cross-examination, I did not think that the fact he was hunting and motorbike riding less often now than before 2009 was because of the ankle injury. I accept his evidence nonetheless that he does not engage in the more extreme aspects of either activity.
29 Mr Petrevski frankly admitted that he still enjoys fishing, even backing his four-wheel drive vehicle with a trailer attached into the water, and taking the boat off by himself. He goes camping with friends and family, staying overnight, and often fishing for a whole day.
30 I further accept Mr Jens’ submission that at the present time, he does not get much medical treatment. He does not see a doctor and takes only occasional pain-relieving medication.
31 I accept the opinions of Mr Doig and Mr O’Brien that he has osteoarthritis in the joint. It is well known that such a condition is progressive, although the rate of progression cannot be accurately gauged. All of the doctors are of the view that there is justification for the plaintiff’s complaints of pain which are likely to continue and worsen over time. I accept the views of these gentlemen that there is the possibility of significant fusion surgery to the ankle at some time in the future, although this is not certain. It is worth bearing in mind that Mr Petrevski is relatively young man.
32 On balance, from the evidence, and the medical opinions, I accept the following:
·Mr Petrevski suffers ongoing pain in the ankle which varies, rather unpredictably, but is always present. Sometimes it flares up, depending on what he is doing.
·The pain requires occasional pain-relieving medication.
·It affects his sleep, which is restricted to about four hours without interruption.
·There is some restriction in his work activities and he is unable to return to the heavier more demanding work he did as an air conditioning plumber. It is difficult to measure whether he has suffered a significant loss of income but I accept his evidence it was likely he would be paid more had he remained in that industry.
·He cannot spend as much time on his feet as he used to do; walking on uneven ground and ladders is difficult. Working on a roof would be out of the question.
·There is some restriction in the recreational activities he used to enjoy, in particular hunting and motorcycle riding, although on balance, those restrictions are relatively minor.
·The situation is likely to get worse with time, with increasing pain and restriction in the ankle and the possibility of fusion surgery.
33 Bearing these consequences in mind and weighing in the balance on the one hand what has been lost, and what has been retained, I am satisfied, that in terms of pain and suffering, the plaintiff does suffer consequences which are, objectively assessed, more than significant and marked and do reach the level of “very considerable”.
34 In these circumstances, I am prepared to grant leave to the plaintiff to bring common law proceedings. I shall make consequent orders.
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