Robertson v J and a Dettmann and a and M Turpie (t/as J and a Freight)
[2013] VCC 859
•11 June 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04894
| JOHN ROBERTSON | Plaintiff |
| v | |
| J & A DETTMANN PTY LTD (trading as Dettmann Family Trust) and A & M TURPIE PTY LTD (trading as Turpie Family Trust) Trading as ‘J & A LIGHT FREIGHT’ | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 5, 6 and 7 June 2013 | |
DATE OF JUDGMENT: | 11 June 2013 (Revised) | |
CASE MAY BE CITED AS: | Robertson v J & A Dettmann and A & M Turpie (t/as J & A Freight) & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 859 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right foot
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Woolworths v Warfe [2013] VSCA 22; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Defendants | Mr AJ Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 This is an application which relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”).
2 The body function relied upon by the plaintiff is the function of the right foot and lower right leg. The application seeks leave to commence proceedings for pain and suffering damages only.
3 Section 134AB(38)(c) of the Act states:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
4 It is admitted the plaintiff suffered a compensable injury on 20 November 2009 when his right foot was crushed by a steel load. The only issue is whether or not the injury and the resultant body impairment that is lost or impaired meets the test of “serious injury”. In other words, the defendants argue that the consequences for the plaintiff, when judged in the range of possible impairments or loss of body function, cannot be fairly described as being “at least very considerable”.[1]
[1]Transcript (“T”) 27, L9-12
5 I note the recent repeal of s135AE of the Act and the Explanatory Memorandum and the Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required.
6 It has been said often that a serious injury application necessarily involves a substantial amount of “value judgment” which does not, of itself, admit a detailed reasoning that is explicit. In large part, these are applications involving matters of value judgment, opinion or impression (Woolworths v Warfe[2]).
[2][2013] VSCA 22 at paragraphs 129 and 130
Background
7 The plaintiff has sworn three affidavits. They were sworn on 28 May 2012, 23 April 2013 and, last Friday week, on 31 May 2013. He is a semi-literate man and had the three affidavits read to him by his legal practitioner. He has had to deal with some intellectual disabilities.[3]
[3]Plaintiff’s Court Book (“PCB”) 26, paragraph 5 and PCB 32, paragraph 37
8 The plaintiff is aged sixty-six years and has returned to employment as a tip truck driver over twelve months ago. He drove different types of trucks when employed by the first defendant. At present he works at times up to 8 to 9 hours per day. His week can total up to 40 hours’ driving on occasions but the hours are irregular.
9 In terms of treatment, the evidence indicates he last saw a doctor for treatment in November last year. He is not on any medication at present.
10 In opening this case, it was said that pain and other symptoms, including restricted mobility, were major consequences for the plaintiff.[4] The inability to race speedway cars was the other main consequence opened. His owning a sprint car at the time of the accident was referred to, and his intention to race it. However, it was said he did not go on to race it because of the accident.[5]
[4]T23-25
[5]T22, L25-30
The Plaintiff’s evidence
11 A reading of the plaintiff’s three affidavits pointed to the main consequences in terms of pain and suffering and loss of enjoyment of life that he relies on as pain, together with decreased mobility, loss of speedway race driving, as well as loss of an ability to go pig shooting and camping (Court Book page 29, paragraphs 22-24, 28, 31, 33 and 38) and in the second affidavit (paragraphs 2, 3, 4, 7 and 12), and in the third affidavit (paragraphs 7 and 8). References to his speedway driving include in the first affidavit (Court Book page 28, paragraphs 14, 15, 29, 30 and 32), in the second affidavit (paragraphs 5, 6 and 8), and in his final affidavit (paragraphs 2, 3, 4, 5 and 6). References to the pig shooting and camping are found at Court Book page 28, paragraph 13.
12 As well, the impact on driving and jogging are referred to (Court Book pages 30-31, paragraphs 25-27; page 36, paragraph 10; page 32, paragraph 35, and page 36, paragraph 11).
13 The plaintiff gave oral evidence and was cross-examined. He is a very unsophisticated and uneducated man. Allowance for that was made in the course of questioning. I take it into account. I did not find the plaintiff untruthful or trying to deliberately deceive in any way. However, I found his evidence unreliable. His affidavit and oral testimony cannot sit together on a number of important matters concerning possible consequences.
14 In my opinion, the requisite onus of proof rests on the plaintiff and has not been discharged. This application for leave fails.
Consequences
15 With respect to pain and loss of mobility, he removed his sock and boot and showed his foot.[6] There is some obvious scarring and he indicated where sensation is altered and pain was felt. He did not demonstrate any lack of movement. He was asked to walk up and down in court. He did so and showed a distinct limp.[7] He indicated he did not limp all the time but he did limp most of the time.[8]
[6]T56-58
[7]T58, L22
[8]T58, L28
16 A video[9] was then shown of the plaintiff on 15 December 2012. It ran over a period of about two hours from about 8.48am to 10.48am, although there was only about 25 minutes or so of actual footage. He was moving around vehicles, standing for periods of time and helping with some light tasks involving loading a race car onto his truck. He also got into the truck several times.
[9]Exhibit A
17 Although his gait was fairly slow, I do not consider that he showed any limp or indication of any impairment of the foot on that day. His mobility looked normal for his sixty-six years. He moved very differently when asked to walk in court. However, the video is relatively short and not much weight can be attached to such a short time capsule over a period of some three and a half years since being injured. His third affidavit says he frequently walks with a limp, so it is not put as being a constant limp.[10]
[10]PCB 36B, paragraph 8
18 He said before me that he had stopped taking Voltaren last year. His affidavit of 31 May 2013 says:
“I take Voltaren medication but do not take it all the time. I would take about three a day but no more than a total of about eight per week.”[11]
[11]PCB 36B, paragraph 8
19 The clear impression from reading this very recent affidavit is he is still, at times, taking large numbers of prescription tablets for pain. This is not what he said in cross-examination.[12] He said he stopped taking it “…close to 2012, Your Honour, that I stopped taking it”.[13]
[12]T67, L23
[13]T68, L10-11
20 I find he is not taking any medication for pain at present. I do not accept his most recent affidavit is accurate when it paints a picture to the reader of an ongoing need for Voltaren and his continuing to take same.
21 That affidavit also, for the first time, speaks of a need to “…put my foot in a bucket of warm water”.[14] This has never been mentioned in previous affidavits nor to any doctor. He said, however, in cross-examination, this was only being done recently.[15] He said it was over the last two or two-and-a-half months that he had been required to do this.[16]
[14]PCB 36B, paragraph 8
[15]T67, L28
[16]T68, L13-15
22 His second affidavit was sworn some six weeks ago, on 23 April 2013, and it makes no mention of his needing to put his foot in a bucket of water.
23 He could be a little out on the time as six weeks is not very different to two or two and a half months, but there is some inconsistency between his affidavit evidence and his oral testimony. He has not seen any doctor in the last few months, so there is no weight to be necessarily attached to there being no mention in medical reports if it is such a recent complaint. He is not presently having any treatment and he has not seen a doctor for treatment this year.
24 The plaintiff relies on speedway race driving as a major consequence for him that he has lost. This is said to be his passion. In his first affidavit, he describes how he is still actively involved in sport in terms of helping out to get push cars to the track, as well as mates, but the significance of the foot injury is put in the context of race driving. His racing car, a sprint car, was garaged at his shed, he says in his first affidavit.[17] He goes on to describe how the problems with respect to race driving are caused by the right foot difficulties.[18]
[17]PCB 28, paragraphs 14-15
[18]PCB 32, paragraphs 29-30
25 In swearing his second affidavit some six weeks ago, he describes having done no speedway driving and/or racing since the first affidavit and how he misses it.
26 Then, in his third affidavit, sworn shortly before these proceedings commenced by way of hearing, the passion for speedway is repeated. He says at the time of the injury, he had a sprint car, but had not actually raced it and since the accident he had sold it. He corrects the first affidavit’s paragraph 29 and says he only drove in a parade lap after the accident, as opposed to driving in races.
27 The clear impression still from these affidavits was that his loss of race driving was due to the foot injury.
28 His evidence in cross-examination was quite different and, in some cases, in direct conflict. He said he had not raced since 2005, that is some four years before his injury.[19] He had obtained a damaged sprint car about eighteen months or two years before the accident. He said it needed about three months’ work to bring it up to scratch[20] but lack of finance prevented such work.[21] He made it clear that the sprint car had in fact been sold before he was injured.[22]
[19]T35, L2-4
[20]T37, L28-29
[21]T38, L14
[22]T52, L28
29 I cannot conclude on the evidence that the impaired foot function has caused the plaintiff to stop speed car racing. The affidavit gives quite a misleading impression about the impact on his “passion” for speed car driving.
30 I find the plaintiff is still heavily involved in the sport socially[23] and actively on race days.[24] He still takes cars to the track on his truck and helps out with flag duties at the track.
[23]T52, L13-14
[24]T49-52, T71
31 His second affidavit,[25] the plaintiff states he no longer takes push cars to the Rushworth Speedway. However, that affidavit does not go on to say that he still takes push cars to the Daylesford Speedway. He is heavily involved in speedway still, but at a different country track.[26]
[25]PCB 35
[26]T49, L31; T50, L7, L19-28
32 The plaintiff has failed to discharge the onus of demonstrating his foot injury has had any consequences on his involvement in speedway driving that could be described as “very considerable”. He is still actively involved in the sport.
33 I found his evidence, in its totality on this topic, unreliable. Furthermore, the video, in fact, confirmed his involvement with speed car activity when it showed him helping to load a race car onto his truck.
34 His first affidavit describes hunting pigs in western New South Wales and camping as something he enjoyed.[27] It reads as if it was a current activity at the time of injury. Again, the clear impression is that the foot problem would prevent the walking and trekking he used to enjoy, yet in cross-examination[28] it emerged that it was some seven years before starting work with the first defendant in 2005 when he had last been in New South Wales pig shooting. That would be about 1998. There was no evidence before me of hunting or camping anywhere else or at any other time.
[27]PCB 28, paragraph 13
[28]T70, L14-24
35 The plaintiff has not satisfied me that there is any loss in this regard that could be judged as “a very considerable” consequence.
36 His evidence about the impact on his general driving ability is contained in the affidavit material. A trip to Melbourne is described as requiring a stop every 15 to 30 minutes. His second affidavit in April 2013 relates how he does not drive to Melbourne because of the foot symptoms.[29] Oral evidence described difficulties with his foot and operating the foot brake. It also described difficulties with some trucks in terms of the climbing up and down the steps involved.[30]
[29]PCB 36, paragraph 10
[30]T45, L12-16
37 However, when he was required to drive a van on a Melbourne to Bendigo run, it was work he could perform.[31] He did that until the employer “let him go”.[32]
[31]T45, L29-46; T46, L25
[32]T46, L25
38 Later, he was asked:
Q:“When you were doing the trip from Bendigo to Melbourne with Dettmans, that was work that you enjoyed and would have continued doing if they hadn’t let you go?---
A:Yes.”[33]
[33]T54, L21-24
39 In cross-examination, it also became clear at times he was driving a tip truck “20-odd hours a week”.[34] Further on, he conceded he could at times drive the tip truck for up to eight or nine hours a day and could cope with a shift of that length.[35] He agreed sometimes he would drive the truck for up to 40 hours a week.[36]
[34]T62, L11
[35]T63, L27
[36]T63, L19
40 Any reading of the affidavit evidence about driving leads to a very different view than emerged in cross-examination about the capacity to drive for long hours in spite of foot symptoms. Even in re-examination, he described how he used to drive the van to Melbourne from Bendigo in an hour-and-a-half, then have a break on the return trip.[37] This is very different to when he speaks of driving a van and says every 15 to 30 minutes he has to stop and walk around.[38]
[37]T72-73
[38]PCB 32, paragraph 24
41 There were other aspects of his evidence where there were inconsistencies. When he says, in his April 2013 affidavit, that he no longer takes the emergency push cars to the Rushworth Speedway, it reads as if that is because of his foot trouble yet, in cross-examination, it appears he still takes the push cars by truck but to a different track.
42 Further aspects of the evidence about the effects on the plaintiff need to be mentioned: Jogging and fitness are referred to[39] but the impact of the impairment on these have not been proved to be serious. He refers to enjoying working on cars. I do not find he is prevented from doing that by the injury to any serious extent.[40] In fact, he gave evidence about still working at times on cars.
[39]PCB 32, paragraphs 35 and 38
[40]PCB 27, paragraph 12; PCB 32, paragraph 3; PCB 36, paragraph 9
Conclusions
43 The principal argument on behalf of the plaintiff is that pain is the determinative factor in support of this application for leave. The cases of Haden Engineering Pty Ltd v McKinnon[41] and Aburrow v Network Personnel Pty Ltd[42] have dealt with analyses of pain in recent serious injury appeals. These decisions recount some of the principles discussed in the earlier cases such as Dwyer v Calco Pty Ltd (No 2)[43] and Sutton v Laminex Group Pty Ltd.[44]
[41](2010 31 VR 1
[42][2013] VSCA 46
[43][2008] VSCA 260
[44] [2011] VSCA 52
44 When the factors set out in Aburrow, at paragraph 20, are judged in this case by comparing the range of impairments in such matters, I find the plaintiff has not discharged the onus of showing the consequences are very considerable. Some impact on sleep[45] is mentioned and his mobility is limited to some extent, but I do not find these consequences meet the test of serious.
[45]PCB 35
45 His recreational and social activities are similarly not compromised in any way that could be fairly described as “very considerable”.
46 The only matter that remains for determination is whether or not the medical evidence, standing apart from my findings on the unreliability of his evidence, prove the plaintiff’s case to the requisite degree. In other words, does the medical evidence, standing alone, make out the application?
47 The medical evidence commences, in terms of treatment, with the Bendigo Healthcare Group material recording the plaintiff’s admission to the Emergency Department on 20 November 2009. It describes a metatarsal fracture and soft tissue damage. He was seen by a Mr Hue Williams, orthopaedic surgeon. After that, he was sent by Mr Williams to Mr Anthony Gray, general surgeon, on 24 February 2010 for debridement and grafting surgery on 22 March 2010. He was then referred back to Mr Williams.
48 Mr Williams has, in effect, seen the plaintiff after two referrals. He first saw him in February 2010 via the Bendigo Hospital. This surgeon thought his prognosis was good when reporting on 31 March 2011 and did not expect the ache and fatigue in the foot to be incapacitating.[46]
[46]PCB 42
49 There was then a re-referral to Mr Williams from the general practitioner, Dr Rahman, in November 2012.[47] There were complaints about non-specific pain and hypersensitivity that Mr Williams said were “consistent with a diagnosis of Chronic Regional Pain Syndrome”.[48] He noted the plaintiff could work and did not recommend any treatment.
[47]PCB 47
[48]PCB 47
50 His last word is on 25 March 2013 and does not seem to follow any further visit since the 29 November 2012 examination. He thought the plaintiff demonstrated Complex Regional Pain Syndrome with restricted movement but he could manage his employment. It was largely a stabilised condition.[49] He does not comment at any length on any restrictions pertaining to pain and suffering or loss of enjoyment of life.
[49]PCB 48
51 A general practitioner, Dr Rahman, reports and writes letters which start in 2009.[50] His final comments are on 15 October 2012. He had seen the plaintiff in February 2012 and thought “the prognosis uncertain as he continues to experience pain. He gets pain even at rest and with prolonged standing and walking. He can’t lift heavy weights”.[51] He felt the condition stabilised and that: “He can do modified duties like truck driving”.[52]
[50]PCB 69
[51]PCB 71
[52]PCB 72
52 The last note is the October 2012 re-referral to Mr Williams which is extremely brief and records: “He still complains on and off of severe pain in his right foot. It looks like he has developed chronic regional pain syndrome.”[53] There was no current medication the plaintiff was on.
[53]PCB 73
53 The treating doctors’ medical evidence does not point to disabling consequences in terms of enjoyment of life or a disablement from work that could be fairly described as very considerable.
54 Mr David Murphy, consultant physician, provided a medico-legal opinion. He said, in August 2012, that the plaintiff “…suffers from pain and stiffness causing significant limitation of function and participation”.[54] He should avoid certain work but the physician thought he had demonstrated he could undertake modified duties. The prognosis was good with no dramatic deterioration expected. Finally, he thought neuropathic pain and stiffness will be permanent conditions.
[54]PCB 86
55 When he refers to “participation”, I note that he has this history that I now find is erroneous: “He has been a keen speedway racer in the past but cannot do that now because he has difficulty operating the cars because he is not able to use his feet quickly enough”.[55]. He is labouring under a false impression that racing stopped because of the foot injury.
[55]PCB 85
56 The defendants’ medico-legal opinions consist of one from Dr David Elder, consultant in occupational and environmental medicine. He basically gives an AMA percentage assessment report in September 2011 and in October 2011. These do not assist me in terms of consequences that I must judge in June 2013.
57 Similarly, Mr Peter Kudelka, orthopaedic surgeon, reported quite some time ago, in October 2011, to the insurer. He described the injuries and said: “I think he needs to remain on modified or alternative duties, limiting his driving to light capacity vehicles with restrictions on loading and unloading. I do not anticipate that he will be able to return to his pre-injury levels of truck driver duties”.[56]
[56]PCB 81
58 In some applications where the lay evidence is unreliable and insufficient on pain and suffering consequences, the medical evidence stands alone and, of itself, can result in the plaintiff’s onus being discharged. That is not the case here. The doctors’ acceptance of certain pain and suffering limitations and consequences are sprinkled throughout the reports. Taking it overall, the medical evidence does not point to very considerable consequences in all the circumstances for this sixty-six-year-old man, still capable of tip truck driving up to 40 hours per week at times.
59 Ultimately these pain and suffering applications are matters of value judgment and impression. Looking at the range of foot and leg injuries and impairments and the consequences relied on in this case, I find they have not been proved to the requisite degree and the application, for those reasons, fails.
60 I will hear the parties on costs.
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