Pickert v Victorian WorkCover Authority
[2023] VCC 572
•20 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-04064
| JARRYD LEIGH PICKERT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2023 | |
DATE OF JUDGMENT: | 20 April 2023 | |
CASE MAY BE CITED AS: | Pickert v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 572 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – injury to the right foot
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Nikolic v Transport Accident Commission [2020] VSCA 148; Church v Echuca Regional Health (2008) 20 VR 566; Peak Engineering & Anor v McKenzie [2014] VSCA 67; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr J Plunkett | LHD Lawyers |
| For the Defendant | Mr B R McKenzie | Russell Kennedy |
HER HONOUR:
Introduction
1Mr Jarryd Pickert, the plaintiff, is a thirty-one-year-old machine operator. On 20 September 2018, an excavator ran over his right foot at work (“the incident”) resulting in a crush injury. He seeks leave to issue proceedings claiming pain and suffering damages associated with that physical injury.
2The plaintiff was a keen surfer and basketball player prior to his right foot injury. He says, by reason of his right foot impairment, he cannot surf as often, or for as long as before and now has to use a longboard. The plaintiff also says he can no longer play basketball. The plaintiff says that these are the losses which elevate his impairment to the “very considerable” level entitling him to leave.
3The defendant accepted that the plaintiff suffered a compensable injury to his right foot in the incident. It identified the issues to be the credibility and reliability of the plaintiff, disentanglement, permanence and range.
4The legal principles are well known and were not in issue.
5This is a case in which the plaintiff’s reliability is of considerable importance to the ultimate outcome of the proceeding.[1]
[1]Nikolic v Transport Accident Commission [2020] VSCA 148 at paragraph [64]
6For the reasons that follow, I find that the plaintiff has not satisfied his onus of establishing that the long-term impairment consequences to him of his right foot injury can be fairly described as being more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
7The plaintiff completed Year 12 at Bayview Secondary College, Portland, Victoria. He then completed one year of a mechanic apprenticeship and worked in various occupations, including retail sales and as a telephone operator.
8In May 2018, the plaintiff began working for Lake and Land Pty Ltd (“the employer”) as a machine operator on a full-time basis.
9Just four months into that employment, the plaintiff suffered the crush injury to his right foot.
10The plaintiff drove himself to Geelong Hospital. An x-ray and CT scan revealed that the plaintiff had suffered a fracture of the right cuboid bone. His foot was put in plaster and remained in plaster for ten weeks. He then wore a Cam boot for several weeks. He was discharged from the Fracture Clinic at Geelong Hospital in about January 2019. The plaintiff has not been referred to any specialist for treatment of his right foot injury since that time.
11The plaintiff had physiotherapy for his right foot for several months. He consulted a podiatrist on two or three occasions and was given orthotics to wear. He no longer uses these. His evidence was that he cannot afford them.
12The plaintiff was unable to work because of his right foot injury for approximately four months. He then performed light duties for a period of two to three months before being certified fit to resume his pre-injury duties by his general practitioner (“GP”), Dr Nadia Akbar, from 23 March 2019.[2]
[2]Amended Joint Court Book (“JCB”) 30-31
13The plaintiff ceased working for the employer in about April 2019 as he was no longer offered shifts. After that, the plaintiff started, but did not finish, a carpentry apprenticeship. That ended when work was no longer available because of the COVID-19 pandemic.
14The plaintiff is currently working as a machine operator. He has casual employment, but generally works 40 hours a week and also performs considerable overtime. For example in the week ending 19 January 2023, he performed 18.5 hours’ overtime; in the week ending 2 February 2023, he performed 6.25 hours’ overtime and in the week ending 23 February 2023, he performed 15.5 hours’ overtime. The plaintiff agreed that he is performing the normal duties of a machine operator and works as much overtime as is offered or available.[3]
[3]Transcript (“T”) 12-13
15The plaintiff separated from his wife in late 2021. His two young children live with their mother but spend two nights a fortnight with the plaintiff. He has returned to live in Portland and currently lives with his sister and her family.
16The plaintiff was in a significant transport accident on 15 January 2022. He lost consciousness whilst driving his motor vehicle, veered into oncoming traffic and had a head-on collision (“the transport accident”). He was taken by ambulance to Geelong Hospital. He suffered from a concussion, bruising and compartment syndrome to his left calf. He underwent a fasciotomy. The plaintiff was unable to work between January and October 2022 because of the injuries he sustained in the transport accident. In his affidavit sworn on 12 September 2022, the plaintiff suggested that a cause of him passing out on 15 January 2022 was increased use of Paracetamol and Nurofen because of his right foot injury. However, his case was not put on that basis in this application.
The Plaintiff as a witness
17Mr McKenzie, who appeared for the defendant, attacked the plaintiff’s reliability as a witness. He submitted the plaintiff exaggerated his symptoms and the impairment consequences of his right foot injury. The primary basis for this submission was video surveillance of the plaintiff.
Video surveillance
18Video surveillance of approximately 14 minutes was shown of the plaintiff attending two medical appointments in Melbourne on 10 November 2022. The surveillance commenced at 8.47am and ended at 1.00pm. The footage was not continuous; however, the plaintiff did not suggest that it had been edited creatively. It showed the plaintiff in the Melbourne CBD, when he attended medico-legal appointments with Dr Terence Saxby and Dr Alan Jager.
19The video surveillance was played in court. Separately, I have watched it again for the purposes of providing these reasons. The following is a summary of my observations:
· at 8.47am, the plaintiff was observed near 459 Little Collins Street, Melbourne where he was due to see Dr Saxby. He was wearing a bandage on his left leg;
· at 9.43am, the plaintiff was observed walking from the vicinity of 459 Little Collins Street to Flinders Street station;
· at 9.53am, the plaintiff entered Flinders Street station. He walked down three flights of stairs and then up a ramp to a train platform;
· at 9.55am, the plaintiff caught a train to South Yarra station. At South Yarra station, the plaintiff walked up a ramp to the station exit;
· at 10.17am, the plaintiff sat and then stood leaning against a wall outside South Yarra station for about 15 minutes;
· at 10.31am, the plaintiff was observed walking around the Chapel Street area;
· at 11.34am, the plaintiff was observed walking back to South Yarra station, where he caught a train back to Flinders Street station;
· at 11.47am, the plaintiff was observed at Flinders Street station, where he walked up two consecutive flights of about 18 stairs each whilst looking at his phone. Immediately adjacent to the stairs was an escalator;
· at 11.52am, the plaintiff was then observed walking along Flinders Street and across the river to Crown Casino. The plaintiff briefly sat and played the pokies and roulette in the Casino;
· at 12.48pm, the plaintiff was observed leaving the Casino. The footage concludes with the plaintiff standing near Aquarium Drive at 1.00pm.
20In order to consider the impact, if any, the surveillance footage has in the case, it is useful to set out the way in which the plaintiff described the impairment consequences of his right foot injury in his evidence.
The Plaintiff’s affidavit evidence
21The plaintiff swore two affidavits in support of his serious injury application.
22In his first affidavit, sworn on 2 May 2021, the plaintiff described the consequences of his right foot injury as follows:
“My injuries have impacted upon numerous aspects of my day to day life and level of functioning. I suffer ongoing pain and discomfort associated with my right foot injury. This pain and discomfort fluctuates in severity and is worse with activity and especially any prolonged period of walking or standing.
I experience regular swelling of my right foot, which is worse in warmer weather.
I do take non-prescription medications, by way of pain killers and anti-inflammatories, on a daily basis. I take two Panadol and two [N]urofen twice daily. I have been taking these non-prescription medications for some time, and cannot see myself ceasing them in the foreseeable future.
I do not take any prescription medications for my injury on a regular basis. I may take some [P]anadeine [F]orte when the pain becomes extreme at the end of a busy day. However, I try to avoid taking this stronger medication, and only use it as a last resort.
I also use ice or heat bags to assist with my pain and swelling levels from time to time when they are particularly bad.
Running causes me to experience pain in the middle of my injured right foot. I was previously very active, and enjoyed various sports and leisure pursuits. My injury has curtailed these pursuits very significantly.
For example, I can no longer play basketball due to my injury. Prior to sustaining my injury, I enjoyed playing basketball very much, and did so on a regular basis. I continued to try playing basketball for a period of time post-injury, but the more I tried to do so the more I found I was experiencing pain and discomfort in my injured right foot. Due to the ongoing pain in my right foot when I run, I have had to cease my participation in this sport and this upsets me very much.
I also previously very much enjoyed surfing on a regular basis. My ability to continue participating in this pursuit is also now severely inhibited due to the ongoing consequences of my right foot injury. I find that cold water increases the pain in my right foot. I love surfing so much that I do continue to do it, but I do not derive the enjoyment from it that I did previously and I experience significantly increased pain in my right foot during and after surfing.
Swimming was another activity that I enjoyed, and which I was quite good at. I have found ,,since my injury that a simple freestyle kick while swimming now causes me pain in my injured right foot. I therefore now swim far less frequently than I did prior to sustaining my injuries.
I find it very difficult to drive for any extended period of time due to my injuries. I find it difficult to operate the accelerator due to the pain associated with my injuries, and I suffer increased pain in my right foot after driving.
Any form of squatting or bending, or in fact any motion that places pressure on my right foot, is difficult for me as it ca[u]ses me pain and discomfort. I therefore need to be very careful with my movements. This impacts both my occupational and non-occupational pursuits.
… .”
23In his affidavit, sworn on 12 September 2022, the plaintiff deposed to the continuing impairment consequences of his right foot injury as follows:
“(a)My right foot condition is no better and I experience severe pain on a daily basis, which was temporarily aggravated by reason of the MVA.
(b)I continue to suffer from swelling of the right leg, more so in the summer months. Since the MVA, I have suffered increasing pain and swelling to my right foot/ankle, due to putting more pressure on my right leg, by favouring my left leg.
(c) I continue to experience stabbing pain on the outer part of my right foot and in front of my right ankle on a regular daily basis, particularly if I am on my feet during the day.
(d)I continue to experience problems with walking. My right ankle becomes tired the longer I stand and walk, which causes increased swelling and pain.
Before and after the MVA, I have suffered and continue to suffer from the following ongoing problems:
(a) I continued to walk in a slow and cautious manner, particularly on uneven surfaces.
(b) I continued to swim over the summer months, however, I was careful with placing my right foot on the sand or losing my footing in the surf.
(c) I continued to experience significant pain and discomfort in my right foot when driving long distances, where I need to use my right foot for the accelerator or brake. I stopped every hour to an hour and a half to relieve discomfort and pain in my right foot.
(d) I tended to be extra cautious when travelling up and down stairs and I made sure that I held the handrail to support my right foot.
(e)I used shoe orthotics for a long period after the injury, but stopped as they are too expensive.
(f) I continued to take medication for pain and discomfort to my right foot since my First Affidavit, including Paracatemol (500 mg) tablets, twice a day and 2 Nurofen (200 mg) tablets twice a day.
(g)At the time of the MVA in January 2022, I was taking an increased dosage of Paracetamol and Nurofen, not only to deal with my right foot pain but also due to experiencing a bad toothache, which ultimately led to the circumstances leading to the MVA.
(h) I have also suffered from a mild limp since my workplace injury (right foot injury), which had improved over time but was still a problem at the time of the MVA.
Before my injury, I surfed most days (for about 2-3 hours) in Ocean Grove, Torquay (Surf Coast) and also Phillip Island since my workplace injury.
I have attempted to return to surfing, however, I have found it difficult due to the pain and restriction of movement in my right foot. I stopped surfing for about 8-9 months post injury. I attempted to return to surfing, but I experienced difficulties with pain and discomfort to my right foot and was restricted in movement. I was only able to surf about once every 3-4 weeks for only about 1 hour. Before the MVA, I was forced to change to riding long boards, which was much easier to surf due to ongoing right foot/ankle pain. Cold water also affected my right foot making it very difficult and painful to surf during the colder months.
… .”
24I note that the surveillance footage was taken just two months after the plaintiff swore his second affidavit.
25The defendant made admissions regarding additional surveillance. Surveillance was undertaken of the plaintiff on 3, 4 and 10 November 2022 for a total period of 12.25 hours. The only surveillance footage from that period was that which was shown in court. It was of only 14 minutes and depicts the plaintiff on a single day in Melbourne. It is relevant that the surveillance footage was not provided to any of the doctors for comment.
26Further surveillance was undertaken over the Labour Day long weekend for 15 hours. The plaintiff was not sighted. It became clear during his oral evidence that the plaintiff spent that weekend at the Port Fairy Folk Festival.
27I am mindful of these matters of context when considering the impact of the surveillance footage on my view of the plaintiff’s reliability.[4]
[4]Church v Echuca Regional Health (2008) 20 VR 566
28The surveillance footage of 10 November 2022 showed the plaintiff walking normally throughout and at times briskly. There was no observable limp and no sign that I could detect of any restriction or inhibition in relation to his walking. Persons observing the plaintiff walking would not detect that the plaintiff is a man with a right foot problem.
29The plaintiff claims that the impact of his right foot injury is so bad that he is required to walk “in a slow and cautious manner”. The difference between that description of his ability to walk in his second affidavit and his presentation in the surveillance when walking is substantial.
30When seen going up and down several flights of stairs, the plaintiff not only moved at a normal pace, but made no use of the available handrails. This is in marked contrast to the plaintiff’s account in his second affidavit of being “extra cautious when travelling up and down stairs and I made sure that I held the handrail to support my right foot”. I note that at one point the video surveillance depicts the plaintiff ascending two consecutive flights of about 18 stairs, whilst also looking at his phone. In cross-examination, the plaintiff said that he had not noticed the escalator adjacent to the stairs. I accept his evidence on that point. However, I do so in circumstances where I find the plaintiff was not concerned to look and see if there were alternatives to the stairs. This tends to support a finding that the plaintiff does not experience any significant difficulty traversing stairs.
31In the surveillance footage, the plaintiff did not appear to have any difficulty walking on inclines. This is in contrast to the plaintiff’s description to Mr Kossmann on 25 July 2022, that he has difficulty doing so.[5]
[5]JCB 41
32The plaintiff did not appear to be favouring his right foot or leg at any point in the surveillance footage. There was no outward sign that I could detect of any pain or restriction in the plaintiff’s movements. The picture in the surveillance footage is of normality.
33After the surveillance footage was shown, the plaintiff agreed that he displayed no sign of any difficulty associated with his right foot; that he walked up inclines that were about 50 metres’ long without difficulty; that he used several flights of stairs without, at any time, holding the handrail; that he walked normally, with no sign of any limp and at one point walked quickly to catch the train.[6] The plaintiff commented that when he was seen to walk up the two flights of stairs towards the end of the surveillance footage, that he was walking “quite slowly”.[7] Whilst that was not my impression from viewing the surveillance footage, it was notable that the plaintiff was looking at his phone as he was going up the stairs. When the contrast between his described walking capacity in his second affidavit and the surveillance was put to him, the plaintiff said “that looked pretty slowly to me” but agreed that he moved up and down the stairs in the footage quite freely.[8]
[6]T42-45
[7]T44
[8]T46
34Dr Plunkett, who appeared for the plaintiff, submitted that the surveillance footage was entirely consistent with the plaintiff’s evidence. He further submitted that if there were discrepancies between the surveillance footage and the plaintiff’s evidence as to his impairment consequences, such discrepancies were “minor”. I do not accept those submissions. The plaintiff painted a picture in his second affidavit of someone whose capacity to undertake the basic everyday activities of walking and using stairs was compromised. The surveillance footage was in marked contrast to that evidence.
Other matters of reliability
35The defendant submitted that the plaintiff’s affidavit was incorrect in suggesting that there was a causal link between his medication usage for his right foot condition and the happening of the transport accident.[9] Despite giving some additional oral evidence-in-chief, the plaintiff did not correct paragraph 8(g) of his most recent affidavit, which raised that connection. The contemporaneous records revealed that the plaintiff was suffering from dental pain in early January 2022 and had been prescribed Diazepam and Panadeine Forte for that condition. The plaintiff agreed in his oral evidence that the transport accident was not related to his right foot problems in any way.[10] His counsel confirmed that no such connection was being advanced on his behalf.[11] The substance of the plaintiff’s affidavit evidence on this issue at paragraph 8(g) was, I find, an example of the plaintiff’s tendency to overstatement and exaggeration.
[9]JCB 20
[10]T27
[11]T28
36The defendant submitted that the plaintiff’s failure to mention his hobby of kayak fishing went to his credit. Given it is engaged in relatively infrequently, I do not find that the plaintiff’s failure to mention it in his affidavits impugns his credit to any material degree.
Conclusion regarding the Plaintiff’s reliability
37Given the contrast between the surveillance footage and the plaintiff’s evidence regarding his level of ongoing pain, capacity to walk, use stairs and traverse inclines, I find that the plaintiff has exaggerated or overstated the extent of his pain and disability. Because of this, I find that I should view the plaintiff’s evidence as to the ongoing impairment consequences to him of his right foot condition with caution and only accept the asserted consequences if there is other evidence to support them.
Disentanglement
38Mr McKenzie submitted that the plaintiff failed to disentangle the impairment consequences referable to his right foot condition from the injuries he sustained in the transport accident.[12] Further, he submitted that the plaintiff had failed to disentangle the impairment consequences of an aggravation of his right foot condition caused by the left leg injury he suffered in the transport accident.
[12]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs [8]-[9] and [24]-[25]
39Dr Plunkett submitted that the impairment consequences of the plaintiff’s right foot condition were sufficiently and separately identifiable. As to the issue of the aggravation from the transport accident injuries, it was submitted that his impairment consequences referable to his right foot injury are much the same now as they were prior to the transport accident. I was invited to infer that any aggravation had ceased.
40I find that the evidence does enable me to separately identify the impairment consequences of the transport accident injuries. In particular, Dr Singh’s report of 9 October 2022 states that the plaintiff’s left leg wound had healed well and required no further treatment; his depression was improving and his prognosis was good. The evidence supports a finding that there is no ongoing impairment of any real significance to the plaintiff’s left leg arising from the transport accident.
41I find that the condition of the plaintiff’s right foot and the impairment consequences it causes are much the same now and more likely better than they were prior to the transport accident. So much is clear from a comparison of the reports of orthopaedic surgeons, Associate Professor Max Esser and Dr Terence Saxby. In those circumstances, I do not find that there is any continuing aggravation of the plaintiff’s right foot injury caused by the transport accident.
Permanence
42The basis for the defendant’s submission regarding permanence was the opinion of Dr Saxby that the plaintiff’s prognosis was “good”. That is, that his condition would improve or resolve. I find that the thrust of Dr Saxby’s report is that there is little in the way of ongoing impairment caused by the right foot injury. He does not suggest the situation will change for the better or worse in the foreseeable future. Dr Saxby specifically acknowledged that the plaintiff complained of some continuing discomfort “but there is no treatment that is likely to assist him”.
43Accepting Dr Saxby’s opinion on this point, I find that the current impairment consequences of the plaintiff’s right foot condition are permanent in the requisite sense. Absent Dr Saxby identifying some future change in the impairment consequences, I am not prepared to find that the descriptor of a “good prognosis” means that the current impairment consequences will not endure into the foreseeable future. The real issue here is identifying the true extent of the current impairment consequences.
Range
44The primary consequences relied upon by the plaintiff are a reduction in his ability to surf and an inability to play basketball.
45A feint submission was made in opening by Dr Plunkett that there was an impairment in the plaintiff’s ability to work. This was withdrawn during closing submissions. Given that the plaintiff has resumed his pre-injury role and is capable of undertaking extensive overtime, I find that there is no significant impairment in the plaintiff’s work capacity.
46Whilst I have found that the plaintiff’s evidence regarding the extent of his impairment consequences has been overstated or exaggerated, I am required to consider the whole of the evidence. An issue for determination is what the other evidence reveals as to the likely position objectively. This is a convenient point to review the medical material relied upon by the parties.
Evidence of treating practitioners
Dr Dalbir Singh
47The plaintiff relied upon one report from his current GP, Dr Dalbir Singh, dated 9 October 2022.[13] Dr Singh has been the plaintiff’s GP since 2020.[14] His report is notable for the fact that it does not mention the plaintiff’s right foot injury. It is entirely focussed upon the injuries sustained by the plaintiff in the transport accident.
[13]JCB 32
[14]T16
48It was put to the plaintiff during cross-examination that he had not mentioned his right foot injury to Dr Singh. The plaintiff said that he had told Dr Singh of his right foot problems, but Dr Singh had not noted those discussions. I accept that the plaintiff has mentioned his right foot injury a few times to Dr Singh, that the issue has not been noted in the GP’s clinical notes, no treatment has been sought and no referrals made for assessment or treatment of the plaintiff’s right foot condition by Dr Singh.
Dr Nadia Akbar
49The defendant tendered a certificate of capacity signed by Dr Nadia Akbar dated 11 April 2019. This cleared the plaintiff to resume his pre-injury employment from 23 March 2019.
50The plaintiff tendered a right ankle and foot x-ray report dated 15 April 2019. The clinical indication for the x-ray was stated to be “Crush injury left (sic) ankle September 2018. Forceful dorsi flexion today. Intense left lateral forefoot pain for investigation.”[15] The reported findings were that no acute or healing fracture was evident; there was a normal appearance to the cuboid and “bony alignment was satisfactory”.
[15]JCB 61
51Although some clinical records were tendered by the defendant in which mention was made of the incident by way of history from the plaintiff, no other report was tendered from any practitioner who has treated the plaintiff’s right ankle condition. On the available evidence, I find that the plaintiff has not sought any treatment for his right foot injury since ceasing physiotherapy and seeing a podiatrist some time in 2019.
Evidence of medico-legal practitioners
Mr Thomas Kossmann
52The plaintiff relied upon a medico-legal assessment performed by Mr Thomas Kossmann, orthopaedic surgeon, dated 25 July 2022.[16] This assessment was conducted via video because of COVID-19 restrictions. It was undertaken whilst the plaintiff remained unable to work because of the transport accident injuries.
[16]JCB 34
53Mr Kossmann recorded the plaintiff’s complaints as follows:
“Mr Pickert complained that he has pain in his right foot, which intermittently disturbs his sleep. He cannot run. He cannot jog for long distances. If he is on his feet for a long period of time, his right foot swells up. He limps when he is tired. He has pain in both of his hips, more on the right than on the left side. He has difficulty walking on sand or pebble stones. He has difficulty walking on inclines.”
54Mr Kossmann diagnosed the plaintiff’s injury as a crush fracture of the right foot with a bony fragment around the cuboid on the right side. He thought the plaintiff’s prognosis was guarded. He noted that he had not detected any movement restrictions in the plaintiff’s right ankle, right subtalar joint and right toes. He said that this type of injury was “difficult to treat, and patients often suffer from pain issues for a long period of time”. Whilst Mr Kossmann was of the opinion that the plaintiff’s fractures had healed, he thought that the plaintiff “may suffer from some kind of regional pain syndrome”. Mr Kossmann does not appear to have found objective evidence of any ongoing impairment to the plaintiff’s right foot but appears to make his possible diagnosis of a regional pain syndrome based on the plaintiff’s reported symptoms and his opinion that this type of injury is difficult to treat.
55Mr Kossmann opined that the plaintiff had the capacity to work as an excavator operator. However, he recommended that the plaintiff “should avoid walking long distances, walking on uneven ground, walking upstairs and downstairs, walking on inclines and declines, climbing up and down ladders, kneeling, squatting, and carrying heavy items weighing more than 2-5kg”. The plaintiff has resumed full-time unrestricted employment as an excavator driver since the date Mr Kossmann assessed him.
Associate Professor Max Esser
56The defendant relied upon a medico-legal report of Associate Professor Max Esser, orthopaedic surgeon, dated 12 August 2021.[17]
[17]JCB 69
57The plaintiff reported to Professor Esser that he had intermittent discomfort and pain in his right foot, that he was unable to play basketball and had difficulty getting up onto a surfboard. He told him that he had intermittent episodes of pain that can occur randomly. He reported that his walking distance was well maintained, but he had discomfort walking on uneven or rocky ground. Walking up a slope could also cause discomfort. He had episodes of swelling on occasion.
58On examination, Professor Esser noted the plaintiff walked normally without a limp. He found some slight restrictions in the range of movement of the right ankle, but minimal tenderness and no swelling. Professor Esser opined that the plaintiff had an undisplaced fracture of the right cuboid bone. That he had virtually no residual disability. Professor Esser said the plaintiff had some minor symptoms, but very little in the way of active disability.
Dr Terence Saxby
59The defendant also relied upon a report of Dr Terence Saxby, orthopaedic surgeon, dated 21 November 2022.[18]
[18]JCB 85
60The plaintiff told Dr Saxby that he had some discomfort in his right foot. He could stand for about four hours a day and then had pain at the end of that. He described being able to run and jump to some extent, but his capacity to do so is reduced. He could sit without difficulty. He had some pain walking on uneven surfaces. The plaintiff reportedly told Dr Saxby that he takes occasional Panadol and Nurofen (a few days a week) but does not do any exercises and does not use a brace or orthotic. He told Dr Saxby that he is able to drive and perform his normal self-care, but household duties were limited. He described having difficulty returning to his recreational activities including surfing, playing basketball and working out at the gym due to pain in his right foot.
61On examination, Dr Saxby found no evidence of a limp and the same range of movement in each ankle. Dr Saxby described it as “a very normal examination”. Noting that the plaintiff complained of some ongoing discomfort in his right foot, Dr Saxby said “there would perhaps be a small degree of permanent disability related to his injury, but his examination was essentially normal and he was functioning very well in terms of activities of daily living, with just some restrictions on sporting activities”.
62That completes a review of the relevant medical material.
63Mr Kossmann’s assessment was limited by his inability to fully examine the plaintiff over video and at a time when the plaintiff continued to be incapacitated for work by reason of his transport accident injuries. Nevertheless, Mr Kossmann found a normal range of motion in the plaintiff’s right ankle.
64Both Professor Esser and Dr Saxby performed face-to-face examinations of the plaintiff. I prefer their opinions, given they had this advantage over Mr Kossmann. There appears to have been further improvement in the plaintiff’s range of motion in his right ankle over the period between Professor Esser’s assessment in August 2021 and Dr Saxby’s assessment in November 2022.
65The objective findings of Dr Saxby were that the examination of the plaintiff’s right ankle was “essentially normal”. The plaintiff was able to carry out his normal activities of daily living and work full time. Dr Saxby opined that the expectation would be for “near-normal function” following this type of injury but noted that injuries of this type do cause some long-term discomfort.
66Both Professor Esser and Dr Saxby opined that there would be some minor ongoing impairment referable to the right foot condition. They did not express doubt as to the plaintiff’s asserted requirement for simple analgesia a few days a week, his description of some discomfort with prolonged standing and of some reduction in his ability to run and jump which impacted his recreational pursuits.
67The examination findings made by Dr Saxby are also in keeping with the manner in which the plaintiff presented in the surveillance footage, which was taken on the same day.
68The medical evidence regarding objective ongoing disability is scant. However, I find that in keeping with the expected medical outcome of a crush injury of this type, it is more likely than not that the plaintiff does, and will, experience some ongoing impairment referable to his right foot injury. The difficulty for the plaintiff is that I am unable to be satisfied as to the extent of the impairment consequences of his right foot. This is because I find that he has overstated or exaggerated his impairment consequences and the objective evidence does not assist the plaintiff to discharge his evidentiary onus.
Impairment consequences
Surfing and basketball
69The plaintiff’s case was put on the basis that it was the loss of ability to play basketball and very significant diminution in his capacity to surf that elevated this to a “serious injury”.
70The plaintiff submitted that his evidence as to the effect of his right foot injury on these activities was “unchallenged”. However, the plaintiff’s reliability was very much in issue and I have found that the plaintiff had a tendency to overstate or exaggerate the impairment consequences of his injury.
71Because of my findings regarding the plaintiff’s reliability, I am unable to accept his evidence as to the extent of his consequences absent other evidence corroborating the degree to which these activities are compromised. There is support in the reports of Professor Esser and Dr Saxby for ongoing restrictions in the plaintiff’s capacity to pursue sporting activities, because of some diminution in the plaintiff’s ability to run and jump. Such restrictions would likely impact the plaintiff’s capacity to play basketball and surf freely. However, the plaintiff has not discharged his onus of establishing the extent to which those activities are affected.
Other impairment consequences
72Although the focus of the plaintiff’s submissions was upon the effect of his right foot injury on his recreational pursuits, I must consider all the evidence of impairment consequences.
73I am required to consider the plaintiff’s experience of pain and the disabling effects of the pain.
74The plaintiff alleges that he experiences variable pain in his right foot. Whilst his affidavits refer to “severe pain” on a daily basis, this is not the picture presented to the medico-legal examiners. Mr Esser recorded that the plaintiff complained of intermittent discomfort and pain. Dr Saxby recorded complaints of “some discomfort” and pain after four hours’ standing and pain with walking on uneven surfaces. Mr Kossmann recorded a complaint of pain which intermittently disturbs the plaintiff’s sleep. In his oral evidence, the plaintiff did not deny telling Professor Esser that his pain was intermittent and appeared to accept that the pain comes and goes when responding “sometimes it gets worse, sometimes it’s just there”.[19]
[19]T48-49
75The nature and extent of the plaintiff’s ongoing discomfort and/or pain cannot be objectively measured. Doing the best I can on the whole of the evidence, I find that the plaintiff has some pain or discomfort in his right foot when he engages in vigorous sporting activities, stands for more than four hours or so, or walks on uneven surfaces. He experiences swelling of his right ankle on occasion. The plaintiff has not been prescribed any prescription analgesia since the immediate aftermath of the injury. I accept his evidence that he takes over-the-counter analgesia for his right foot a few days a week – sometimes more, sometimes less. I find that this medication regime is all that is required, given the level of pain or discomfort the plaintiff experiences.
76The plaintiff deposed to ongoing disruption in sleep due to a combination of pain in his right foot, psychiatric upset, and to a reducing extent, left leg problems caused by the transport accident. However, during cross-examination, the plaintiff accepted that his recent sleep problems were due to the transport accident, not right foot problems.[20]
[20]T21
77The plaintiff deposed to experiencing significant pain and discomfort when driving long distances. However, he is working very long hours as a machine operator which, as far as I understand it, involves driving heavy machinery.
78The plaintiff did not depose to any difficulties performing his personal activities of daily living.
79There is a suggestion in the evidence of some restriction in the plaintiff’s ability to perform household activities and gardening, however, the plaintiff did not depose to such in his affidavits. Given the plaintiff’s continuing capacity to work full time and perform extensive overtime, I find it difficult to accept that he has any meaningful restriction in his capacity to perform household duties by reason of his right foot injury.
80The plaintiff does not claim any inability to socialise by reason of his right foot injury. He continues to fish from time to time, doing so from a kayak. The plaintiff continues to perform gym work (approximately weekly) at home.
Conclusion
81In undertaking the value judgment required of me, I must assess the impairment consequences to the plaintiff from his right foot injury from the incident and determine where the facts of this case sit by comparison with other cases in the range of possible impairments or losses.[21] I take account of the plaintiff’s youth. He suffered this injury when he was twenty-seven years of age and he will experience the consequences of it for many years.[22] I must also consider the plaintiff’s retained abilities, which include his ability to work full-time hours in his pre-injury role and perform significant overtime. He retains a full capacity to care for himself . He is not receiving any hands-on treatment and has not had any such treatment for his right foot for some years. Apart from some over-the-counter painkillers, he is not prescribed and, I find, does not require anything stronger for right foot pain.
[21]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [31]
[22]Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at paragraphs [43]-[44]
82I accept that the plaintiff suffered a significant injury which incapacitated him for several months. I also accept that he has some ongoing consequences, primarily a diminution in his ability to participate in basketball and surfing which could be described as significant or marked. However, because of my findings regarding the plaintiff’s reliability as a witness, I am unable to determine the true extent of such diminution.
83In summary, I find that the plaintiff has not satisfied his onus of establishing that he suffers consequences which could fairly be described as being more than significant or marked and at least very considerable.
84Accordingly, the plaintiff’s application is dismissed.
85I will hear the parties on the question of costs and any ancillary orders.
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