Rogers v Victorian WorkCover Authority
[2020] VCC 1472
•18 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00476
| SHANE WALTER ROGERS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 18 September 2020 | |
CASE MAY BE CITED AS: | Rogers v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1472 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – loss of function of the right foot – pain and suffering –relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Stijepic v One Force Group Pty Ltd & Anor [2009] VSCA 181; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Ms K Bradey | Hounslow Lawyers |
| For the Defendant | Mr R Kumar | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff while employed by Safe & Sound Removals (“Safe & Sound”) on 23 December 2016, while he was working as a furniture removalist (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to paragraph (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon is the right foot.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury”, by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with Safe & Sound on or after 1 July 2014. As set out in s325(1) of the Act, the impairment of the body function must be permanent.
6 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7 By s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, if the plaintiff is to succeed in his claim relating to the function of the right foot, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9 Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
10 By s325(2)(b) of the Act, in determining the seriousness of the “consequences”, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
11 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
12 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Court Book was marked as exhibit (“Ex”) P1. The Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
13 The plaintiff was born in August 1972 and is currently forty-eight years of age. He completed Year 10 at school and after leaving school, worked in a number of manual jobs such as in housekeeping, as a kitchenhand, as a general labourer, as a truck and forklift driver and as a trades assistant in the mining industry. Over the years, he got a variety of tickets, such as his forklift licence and a White Card.[7]
[7]Ex P1, p18
14 The plaintiff started employment with Roadside Services & Solutions (“Roadside Services”), where he worked as a line marker from about August 2016. This was a full-time permanent position with a lot of night-shift work.[8]
[8]Ex P1, p18
15 Towards the end of 2016, the plaintiff obtained another job that he could do on weekends or on days when his job with Roadside Services was “rained out”. He therefore got a job as a truckdriver/furniture removalist with Safe & Sound. His first day of working with Safe & Sound was on 23 December 2016.[9]
[9]Ex P1, p18
Prior medical history
16 When the plaintiff was about seventeen years old, he had to see a psychiatrist in relation to behavioural issues. He was doing some stupid things, like experimenting with drugs, at that time. At one stage, he was hospitalised. He has continued to take drugs from time to time over the years and has had a couple of stints in hospitals and run-ins with police in relation to drug-induced, inappropriate behaviour.[10]
[10]Ex P1, pp18-19
17 The plaintiff was in a motorcycle accident in April 1992. He hurt his left foot and had bruising and cuts to his left elbow and hand. All of those injuries resolved.[11]
[11]Ex P1, p19
18 In about August 1998, he was assaulted and suffered a broken bone in his right hand.
19 In about August 2006, he hurt his back lifting cartons of beer when working for Australian Liquor. He was given medication and had an MRI scan. He was referred to a few specialists and had about a year and a bit off work. His back does not cause him any real problems now.[12]
[12]Ex P1, p19
The accident
20 The plaintiff described the accident in the following way:
“I was employed by … [Safe & Sound] to work as a driver/offsider doing furniture removalist work. On my first day at work, Ross asked me to move an extremely heavy piano that was on castor wheels. Ross had a forklift, and he wanted me to help him move the piano onto the forklift, by tilting it back so that the tines of the forklift could go under the piano. As we tilted the piano back, the piano’s castor wheels broke, and the piano dropped onto my right foot … Although I was wearing steel capped boots, the piano was so heavy that it crushed the steel cap and my foot beyond the steel cap. I felt immediate extreme pain. I felt dizzy and I passed out.
I was given an icepack and some painkillers. I lay down for 10 to 15 minutes. I told Ross that I thought I’d broken my foot, he told me to try to walk on it. Ross then asked me to keep working and, because it was my first day and I didn’t want to appear too soft, I did. I finished the shift, but I felt nauseous from the pain. I also worked the next day, just doing light duties, but I was still in significant pain.
I then had a period of pre-arranged leave, when I went to Thailand. On my return from leave, I went back to work at Roadside Services & Solutions on light duties. I had to stop work eventually because I was in too much pain.”[13]
[13]Ex P1, pp19-20
21 Upon his return from overseas, the plaintiff went to see a doctor at Croydon Medical Centre. That doctor referred the plaintiff for an x-ray of his foot, which showed that he had broken it. He was then referred to the Orthopaedic Department of Maroondah Hospital, where the plaintiff was told he would be put on a waiting list for surgery.[14]
[14] Ex P1, p20
22 The plaintiff underwent surgery on his foot on about 26 July 2017, where screws were inserted into his foot. Following that surgery, his foot was in plaster and he was on crutches for a couple of months. He had follow-up appointments and investigations at Maroondah Hospital. He had to wear a “moon boot” for about a year.[15]
[15]Ex P1, p20
23 The plaintiff moved to Tasmania in about September 2017, and started seeing a doctor at the Victoria Street Clinic. In about March 2018, his treating general practitioner referred him to see an orthopaedic surgeon because he was having ongoing problems with his foot. He had further surgery on about 5 June 2018 in order to remove the screws from his foot. Following that surgery, his foot was again in plaster and he had to use crutches, followed by wearing a “moon boot” for another eighteen months. He was on Endone at this time for his pain.[16]
[16] Ex P1, p20
24 The plaintiff returned to Victoria a few months after the second surgery. He has had physiotherapy since about October 2018, and has done hydrotherapy since about late 2018. He has also seen a podiatrist, who has provided him with inserts for his shoes.
25 In about February 2019, the plaintiff’s general practitioner referred him to a psychologist, because he found he was suffering symptoms of anxiety as a result of his right foot injury.[17]
[17] Ex P1, p21
Evidence concerning the consequences of the injury
26 As set out above, the plaintiff swore three affidavits: the first on 18 September 2019, the second on 31 August 2020 and the third on 1 September 2020.
27 In summary, the relevant evidence which he gave as to the consequences of his injury was as follows:
Experience of pain and treatment
(a) he has pain in his foot, particularly through the top of his metatarsal, particularly after walking for long periods;[18]
[18]Ex P1, pp22 and 32
(b) he is unable to run because he is fearful of jarring his foot;[19]
[19]Ex P1, p22 and 32
(c) he has particular difficulty walking on uneven ground and has been told by his physiotherapist that he should avoid this activity;[20]
[20]Ex P1, p22
(d) he has had to change the way he walks because it is not comfortable for him to put his foot down flat;[21]
[21]Ex P1, p22
(e) he has difficulty standing, and needs to sit down after a short period of time on his feet;[22]
[22]Ex P1, p22
(f) he remains limited in his ability to walk significant distances. He can walk a few kilometres but then needs to sit down to rest his foot;[23]
[23]Ex P1, p32
(g) he has to wear special inserts in both of his shoes to accommodate his foot injury and has had to buy special shoes to fit those inserts;[24]
[24]Ex P1, p22
(h) he presently has a job at the Austin Hospital which requires him to walk around. His foot pain gets progressively worse during each of his three shifts at work each week. Just prior to swearing his third affidavit on 1 September 2020, by the end of his shift the day before, he had sharp, shooting pain in his second metatarsal. His pain gets worse by the end of each shift and then, by the end of having done all three shifts, it is worse again. He needs the five days between Sunday night and Friday night off, to allow his pain to reduce to a level where he can work again;[25]
[25]Ex P1, p158
(i)he no longer sees his general practitioner, Dr Nathalie Gutierrez Velasquez (“Dr Gutierrez”), in relation to his foot injury; [26]
[26]Ex P1, p32
(j)he last saw his physiotherapist in about March 2020, at which time he gave him advice about ongoing limitations in relation to his work capacity, like lifting no more than 10 kilograms. He stopped attending hydrotherapy at around the same time. He no longer sees a psychologist;[27]
[27]Ex P1, p32
Activities of daily living
(k) he used to enjoy playing tennis and was a competition tennis player when he lived in Tasmania. More recently, he had played social tennis, which he loved. He practised almost every day and competed once a week. He has not been able to return to playing tennis since his foot injury;[28]
[28]Ex P1, p22
(l) he used to enjoy kicking the football with his mates. He is right-footed and now he cannot kick the football and cannot run. His mates still go for a kick of the football, but he does not go with them because he cannot play anymore. He also used to go ten-pin bowling, but that is not something he can do now;[29]
[29]Ex P1, pp22-23
(m) he used to go to the gym before suffering his foot injury. He does not go to the gym anymore because his foot restricts him from bearing weight, even in his arms, because the weight goes through his foot and causes him increased pain. Holding anything heavy puts pressure on his foot and increases his pain;[30]
[30]Ex P1, p23
(n) he used to go fishing, including out with his father in his father’s boat. Because of his foot injury, he cannot lift the outboard motor and cannot push the boat;[31]
[31]Ex P1, p23
(o) he used to enjoy bushwalking. He does not do that anymore because he has trouble walking anything other than short distances;[32]
[32]Ex P1, p23
(p) he used to do long pushbike rides. He has recently returned to riding his pushbike, but he used to do long 30-kilometre rides and now he is limited to 3 or 4 kilometres before his pain becomes so bad that he has to stop;[33]
[33]Ex P1, p23
(q) he used to ride a motorcycle, but no longer rides it because he has trouble holding up a big bike and would have difficulty if he needed to brake hard;[34]
[34]Ex P1, p23
(r) he is able to take care of himself, but has to take breaks to sit down because he has trouble standing for very long [35]
[35]Ex P1, p23
(s) he is not able to do maintenance jobs around the house anymore, because he has difficulty climbing ladders. He has difficulty putting the bins out if they are full.[36] He tries to help his girlfriend with light tasks around the house; [37]
[36]Ex P1, p23
[37]Ex P1, p33
(t)he has been able to do some light volunteering work through his church and for the Salvation Army. He has done things like setting tables with cutlery and some light weeding. He still cannot do any of the heavier work that is involved in the working bees that the church holds because he has difficulty with uneven ground and gardening. He feels this loss because he wants to contribute and give back to the community;[38]
[38]Ex P1, pp23-24 and 33
(u) his social life has reduced. He rarely goes out. When he does go out, he goes to see his physiotherapist and to participate in church activities;[39]
(v) his sex life is now non-existent because the pain in his foot prevents him from engaging in that activity;[40]
[39]Ex P1, pp23-24
[40]Ex P1, p24
Work capacity
(w) he feels annoyed because he wants to be what he was before. He had a good job as a line marker and he will never be able to do that sort of work again;[41]
[41]Ex P1, p24
(x) in about November 2019, he got a job doing full-time light maintenance work at the RACV Club in Healesville, and this helped to lift his spirits considerably. Unfortunately, that employment came to an end because the RACV Club decided to downsize its number of maintenance personnel;[42]
[42]Ex P1, p31
(y) he then got some jobs here and there through a labour-hire company called Workforce XS, in Monbulk. That work was irregular in nature;[43]
[43]Ex P1, p31
(z) after a few months of working with Workforce XS, he was posted to the Austin Hospital as a labour-hire casual, where he performed light cleaning duties. After a short while, the Austin Hospital offered him employment directly, which he took up. He continues to work for the Austin Hospital as a cleaner. He works an eight-hour shift on Fridays, Saturdays and Sundays, and sometimes picks up an extra shift here and there;[44]
[44]Ex P1, p31
(aa) his duties at the Austin Hospital are light. He spends part of his shift doing COVID-19 cleaning of surfaces and touch points, and part of his shift is transferring medical and general waste. The job involves a bit of walking. He finds that his foot pain is worse after doing his three shifts each week, but then he has a five-day break before he has to work again and the pain in his foot eases over that time;[45]
(bb)he does not think he could do the job at the Austin Hospital for more than three shifts a week on a week-in-week-out basis, because of the way his pain gets worse the more work that he does;[46]
(cc)there is no heavy lifting in his job at the Austin Hospital. He would not be able to handle that with his foot injury;[47]
(dd)when he returned from overseas following his foot injury, he did some shifts with Safe & Sound and also with Road Services. He did lighter duties for Safe & Sound, like hooking up chains in the container. He did not do any lifting of furniture or anything heavy;[48]
(ee)he wears a special padded rubber insert in his right shoe. This insert helps to cushion his foot from jarring. He wears it all the time, including when he is at work. He still develops pain in his second metatarsal over the course of his shift, despite wearing that insert.[49]
[45]Ex P1, p31
[46]Ex P1, p158
[47]Ex P1, p32
[48]Ex P1, p33
[49]Ex P1, p158
28 Under cross-examination, the plaintiff gave the following relevant evidence:
(a) he is no longer seeing Dr Gutierrez;[50]
[50]Transcript (“T”) 15, L9-12
(b)he stopped seeing her about four months ago, which was about the same time as he stopped seeing his physiotherapist;[51]
[51]T15, L15-18
(c)he had seen his physiotherapist, Mr Salmic, up until March 2020. He was seeing the physiotherapist on a weekly to fortnightly basis. He also underwent some hydrotherapy at the local pool;[52]
[52]TT15-16
(d)the treatment provided through his physiotherapist included using the treadmill, hydrotherapy at the pool and using a spiky ball at home;[53]
[53]T16, L3-6
(e)there was very little gym work provided by the physiotherapist “more hydrotherapy”;[54]
[54]T16, L7-11
(f)he agreed that he was compliant with everything that the physiotherapist asked him to do;[55]
[55]T16, L14-16
(g)it was the physiotherapist who was providing his Certificates of Capacity in relation to his return to work;[56]
[56]T16, L20-23
(h)since March 2020, he has continued to self-manage with his exercise program which was given to him by the physiotherapist;[57]
[57]T16, L24-28
(i)the reason he stopped seeing the physiotherapist was because his treatment funding had expired with CGU;[58]
[58]TT16-17
(j)the exercise program which his physiotherapist gave him to perform at home is designed to increase his tolerance of being able to stand on his foot;[59]
[59]T17, L8-15
(k)if funding had continued to be provided, the physiotherapist would have liked to continue seeing him about once per month;[60]
[60]T17, L5-7
(l)he has been in contact with his physiotherapist on numerous occasions over the telephone, for the purpose of managing his injury at home;[61]
[61]T18, L10-17
(m)he agreed that he had not made any requests for further treatment from the insurance company;[62]
[62]T18, L18-19
(n)he said that Mr Salmic told him that if he wished to continue seeing him, the plaintiff would have to pay for it himself;[63]
[63]T18, L27-30
(o)his treatment with Mr Salmic has helped him improve his capacity to use his right foot;[64]
[64]TT19-20
(p)prior to the COVID shutdown, the plaintiff was attending the Croydon pool for hydrotherapy two to three times per week;[65]
[65]T21, L1-14
(q)the plaintiff agreed that the restrictions to which he was subject by Mr Salmic were lessened over time between July and November 2019. In particular, by November 2019, the only activity which Mr Salmic required to be modified was the plaintiff’s lifting, with other activities limited in the amount of activity that could be performed, rather than in the manner in which it should be performed;[66]
[66]TT22-26
(r)the plaintiff explained that while the Certificate of Capacity anticipated that he may walk up to 7 or 8 kilometres per shift, he did not think he had ever done that in his job at the RACV Club. Further, he said that after 3 or 4 kilometres, he has pain come on through the top of his second metatarsal in his right foot and he needs a break. With reference to the Certificates of Capacity, he said that he was, in performing his role at the RACV Club, “fine within the limitations of changing light globes, which was my light duties at RACV”;[67]
[67]T25, L10-29
(s)the plaintiff agreed that the position with the RACV Club was not a position especially created for him, but one identified by employment consultants, IPAR, that fell within the limits of his restrictions in the context of him completing a rehabilitation program with that organisation;[68]
[68]TT28-29
(t)he agreed that the job title of his position at RACV Healesville was “general maintenance” and that his was a “maintenance all rounder position”. He explained that it was a permanent part-time role which included changing light globes, changing minibar lights, fixing bedside lamps and other duties which were very light. He agreed he was working about 37.5 hours per week;[69]
[69]TT28-29
(u)after his work at the RACV Club finished, he put his name down with a labour-hire contractor, Workforce XS in Monbulk. It was through that group that he got his work at the Austin Hospital. Prior to starting at the Austin Hospital, he had also performed another role for a nursery company for a short time;[70]
[70]TT30-31
(v)it was suggested to the plaintiff that at the nursery job, he was required to do a variety of heavy labouring tasks, such as loading and delivering materials, cleaning and preparing a jobsite and using a variety of machines, such as blowtorches, power drills, pressure washers and water-spraying equipment, as well as setting up and taking down ladders, scaffolding and other temporary structures. The plaintiff disagreed with this proposition. He said that he was trimming small plants and trees with a saw, and was also involved in propagating, which involved checking the irrigation lines to make sure that they were running;[71]
[71]TT33-34
(w)it was suggested to the plaintiff that in obtaining various positions, he held himself out as being able to work without restriction. In response to this, the plaintiff said that he was not prepared to go into any jobs involving heavy labour. He went on: “There was many jobs that I’d knocked back like construction and factory work, and I done my best … to get … back into the workforce (sic)”;[72]
[72]TT34-35
(x)the plaintiff was questioned about his duties at the Austin Hospital. In response to this line of questioning, the plaintiff explained that he works Friday, Saturday and Sunday on split shifts. He said that four hours of his eight-hour shift is walking around with a trolley and a bottle of disinfectant to wash all of the touchpoints at the Austin Hospital. He said the other four hours of the shift are as a waste services officer, where he pushes a bin to a Veolia compactor, which hydraulically lifts the bin into a compactor. He said that if he is required to do additional shifts on-call, he feels obliged to help the Hospital out;[73]
[73]T36, L7-21
(y)the plaintiff explained when he uses the term “light duties” during his evidence, he was using that phrase to indicate that the job he was performing was a job he was able to do within his restrictions. In relation to the Austin Hospital job, he said: “I’ve landed on my feet with the job that’s suitable for me;”[74]
[74]TT38-39
(z)the plaintiff gave more evidence in relation to the overtime that he had recently been performing, saying that there were many full-time staff at the Austin Hospital who had been symptomatic and therefore were tested for COVID-19, with a two-day turnaround for testing. He explained that these staff have had to go into isolation and his boss had asked him if he could take on some extra shifts. He said that he had been able to do one or two extra shifts as required. He said he was able to complete those shifts but does need a good break afterwards. He also said that the COVID cleaning work does not impact on his foot as much as other shifts because it is just walking around with a trolley doing the touchpoints. He said that the bins can be “a little bit heavier … After a period of time it gives me a lot of pain;”[75]
[75]TT39-40
(aa)he said that he feels obliged to help his boss and workmates out “because they’re all getting tested for COVID and I get called due to that reason. But my set shifts are Friday, Saturday, Sunday on my roster;”[76]
[76]T41, L5-11
(bb)it was suggested to the plaintiff that the affidavit which he swore where he said he thought he would be unable to do more than three shifts per week on a week-in-week-out basis was simply not true. To this proposition, he replied:
“I’m doing the COVID cleaning on the call-out shifts which doesn’t aggravate my injury as much as what the waste services officer [job] does. It’s a very spasmodic thing. Again, it’s because of people getting COVID tested at the hospital … I don’t’ know when I’m going to get called and it’s been a very spasmodic thing just to fulfil the other employees when they’re COVID … I’ve done the best of my ability to keep into work and try and survive … when I’m needed at the hospital.”[77]
[77]TT41-42
(cc)he agreed that he had told Dr Horsley that the pain in the top of his foot is 3 out of 10 on a Visual Analogue Scale. It was suggested to the plaintiff that the way in which he had described his pain to Dr Horsley is that the pain is not there all the time and that when it comes on, it is 3 out of 10 and then it resolves. In response to this, the plaintiff replied:
“Sorry, I experience pain on most days, … I used to enjoy a lot of things that I’ve lost enjoyment in my life now, even for example walking up to three kilometres I experience pain through the top of my metatarsal. I experience pain on most days.”[78]
[78]T43, L26-30
(dd)the substance of Mr Edwards’ report was put to the plaintiff where it was recorded that the plaintiff rated his pain on a Visual Analogue Scale as between 6 to 15 out of 100. In response to this line of questioning, the plaintiff responded:
“I disagree. There must have been some misunderstanding … I have told Mr Edwards my pain level is three out of ten.”[79]
[79]T44, L1-12
(ee)the plaintiff confirmed that prior to his injury, he used to do “lots of physical walking”:
“I was able to ride a motorbike, which is a road trail motorbike, I was able to do mountain climbing, I was able to do diving and snorkelling, I was playing competitive tennis. All of these [things] have been restricted due to my pain. I’m still able to walk but not as far as what I could do before.”[80]
[80]TT 44-45
(ff)he agreed that by the end of his physiotherapy in March this year, he had gradually improved and could possibly walk up to 4 kilometres;[81]
[81]TT47-48
(gg)he agreed that pre-injury, he was able to walk for two hours:
“… absolutely … And that I would walk three times a week. I’m now no longer able to do bush walking, for example, mountain climbing or anything like that, and I have a lot of other things that I enjoyed like tennis and fishing and motorbike riding that I’ve lost the enjoyment in my life due to my injury.”[82]
[82]T49, L5-12
(hh)he agreed he can now do two laps of the Lilydale Lake over about an hour “but I need a seated break because the pain comes on after one lap”;[83]
[83]T49, L16-20
(ii)he said that with his job at the Austin Hospital he is –
“… currently not doing any Lilydale Lakes … because I’m fulfilling my three shifts at the Austin Hospital which gives me pain and I’m restricted, so I rest up after my three shifts at the Austin Hospital.”[84]
[84]TT49-50
(jj)he can do more walking when he has rested up after his three shifts;[85]
[85]T50, L18-19
(kk)he agreed that after he moved to Victoria in 2016, he was not doing much bushwalking;[86]
[86]T54, L6-9
(ll)the last time he played competitive tennis was when he was living in Tasmania. He used to play social tennis with his brother also when he was living in Tasmania. He agreed that he had not played any tennis since moving to Victoria, which was prior to his injury;[87]
[87]TT54-55
(mm)he agreed that playing footy with his mates was something that he used to do when he was in Tasmania;[88]
[88]T55, L14-17
(nn)he said that when he arrived in Victoria, he started up a gym membership which was a substitute for his tennis. Since his injury, he has had to stop his gym membership. He said that at the gym he was doing the treadmill and able to do lots of things, but that after his injury, he had to cancel his gym membership. He said that his gym membership had taken over all his other recreational activities when he arrived in Victoria, including his bushwalking. He was going to the gym three times a week for at least an hour at a time. He said that in addition to the treadmill, he would get on the rowing machine and also lift some light weights;[89]
[89]TT55-56
(oo) he agreed that he sold his motorbike when he moved to Victoria;[90]
[90]T57, L5-10
(pp)he has been fishing since he moved to Victoria, both in Port Phillip Bay and also down the Great Ocean Road. He said this activity took place about once a week, usually jetty fishing;[91]
[91]TT56-57
(qq)he no longer enjoys fishing as much as he used to, because he is not able to walk on uneven ground like sand or rocks to get to “the good spots fishing”. He also said that he used to enjoy fishing in his father’s boat and was able to “assist him lifting the outboard motor”. He said that he misses all these things that he was able to do before his injury;[92]
[92]T58, L4-13
(rr)when he used to go fishing in Tasmania, it included putting out cray pots by clambering over rocks to get to special spots to obtain the crayfish: “I’m unable to do that anymore;”[93]
[93]T58, L18-24
(ss)it was suggested that if he wanted to, he would still be able to ride a motorbike. To this, he replied:
“I believe that I’d be able to ride a push bike, but I wouldn’t be able to ride my motorbike because I used to enjoy going into the mountainous areas in Tasmania … and that would jar my foot too much with the terrain that I would go on. And also the motorbike involves a lot of constant braking and I’m not sure if my right foot could handle that if I … needed to brake very fast in a situation where I had to pull up quickly … I certainly wouldn’t attempt road trail bike riding again because it would jar my foot … .”[94]
[94]TT 58-59
(tt)it was suggested to the plaintiff that he could try different inserts for his shoes to assist him to participate in more vigorous activities such as riding his motorcycle. In response to this, the plaintiff stated that his insert is –
“… a universal insert which could be used for my work boot or my sneaker, so I use it universally … I certainly wouldn’t try it in a motorcycle boot because … I don’t have the capacity to brake on a motorcycle or ride a motorcycle on uneven ground.”[95]
[95]TT60-61
(uu)it was suggested to the plaintiff that he does not know whether or not he could run because he has not tried it. It was pointed out that he told Mr Edwards that he is not sure whether he can run. In response to this, the plaintiff said:
“I explained to Mr Edwards that running would cause jarring because I suffer pain through the top of my metatarsal … so I haven’t tried to run … I’ve tried to walk, but that gives me pain, so I don’t see any reason why I would try and run and jar my foot … It’s not something that I feel comfortable with … why would I try to run … when walking aggravates my injury? I certainly wouldn’t want to jar my foot by running.”[96]
[96]TT61-62
(vv)he agreed that prior to his injury he was able to pushbike ride up to 10 kilometres per session;[97]
[97]T62, L6-9
(ww)he says that he now uses a stationary bike at the gym as part of his rehabilitation program. He said that Mr Salmic had told him that as part of his physiotherapy, he could use a normal pushbike, but not a motorbike;[98]
[98]T62, L12-20
(xx)he said that he had seldom attended the gym as part of his rehabilitation program. He said that he felt more comfortable liaising with his physiotherapist in the pool doing hydrotherapy because “it suspended my weight at that time with the pain [that] was going through my foot … I was doing more hydrotherapy than the actual gym attendance;”[99]
[99]T63, L22-29
(yy)it was suggested to the plaintiff that he could go back to the gym now if he wanted to. In response, he said:
“… I don’t feel that I would be able to return to the gym and do any speeds or things that I was doing before … I was quite vigorously involved in the gym … I feel that I would be able to do some things at the gym but not all the things that I was doing before … There were certain activities … like moving steps and inclines which I was able to do before … I certainly wouldn’t be able to do the incline that I was doing before pre injury, but I believe that I would be able to do low speeds of flat walking.”
He said that instead of going to the gym to do that walking, he prefers to go outside around Lilydale Lake or elsewhere near where he resides;[100]
[100]TT64-65
(zz)it was suggested to the plaintiff that he would be able to use the rowing machine if gyms were open. The plaintiff said that “the rowing machine would be out of my limitations now … because you’re putting a lot of flex on to your feet from pulling the rowing machine”. He agreed that all of the weight is taken through the feet and you push back with your feet and legs on a rowing machine;[101]
[101]T65, L5-15
(aaa)he said that for the same reason, he would not be able to use the weight machines at the gym “because that would transfer pain into my foot because you are lifting weights which transfers right through to your toes”. He said that even with a seated machine “you have to sit with a position very strong on your feet to support the weight from the weight machine. It’s all combined, whether it’s from your arms or transferring down into your feet;”[102]
[102]TT65-66
(bbb)he agreed that he could use a small stepladder at home for any tasks that required that “but nothing of great height … nothing maybe over a couple of steps”. He gave as an example the fact that he was unable to clean the vents in his bathroom because he has high ceilings and is unable to use a stepladder to get up to that height;[103]
[103]T67, L19-27
(ccc)he said that he is able to take the bins out if they are light but not if they are heavy. He said that even though the bins only have to be moved 20 metres, it is down a steep incline to the road. He said he is fearful that the bin would run away from him if it is too heavy because he does not have the strength on the incline to take the weight of the bins;[104]
[104]T68, L1-23
(ddd)he said he is unable to mow the lawns at his house because of the incline around the house and the angle of the ground. He agreed that he is able to do light tasks at home and helps his partner whenever he can;[105]
[105]T69, L3-12
(eee)in relation to participating in the volunteer work of his church group, he said that there was a working bee down Port Melbourne which involved picking up rubbish on the beach which he was unable to do because of the advice of his physiotherapist that he not walk on uneven ground. He said that he has been able to go to the Mooroolbark Baptist Church and do some light weeding, but not window cleaning, which involved climbing up ladders;[106]
[106]TT69-70
(fff)he agreed that he had been able to assist his church group in serving soup to the homeless at a soup kitchen. He agreed that in summary, he is not able to do very physical activities with his church group, but he can do light activities such as the weeding. He said he would be unable to do jobs such as working bees, cleaning out gutters, getting up on the roof of buildings or cutting branches off trees. He said he is unable to do anything physical or that requires him to walk on uneven ground, or climb ladders;[107]
[107]TT72-74
(ggg)he agreed that while he can still contribute to his church, he feels that he is restricted in what he can do and “I would like to give the church more”;[108]
[108]T74, L2-9
(hhh)he agreed that he does still have the ability to have intimate relations with his partner but that his participation is somewhat limited by his inability to adopt certain positions;[109]
[109]T74, L26-29
(iii)he denied that following the injury he went to Japan to go skiing. He said that he went to Thailand on a pre-arranged holiday;[110]
(jjj)he agreed that when he returned from that holiday between January and June 2017, he continued to work with Safe & Sound and also with Roadside Services. He said that he felt obliged to help out his employer at Safe & Sound and that he had done some light duties “hooking up some chains in a container and also folding some rugs”;[111]
(kkk)he denied that he was able to complete his normal duties with Roadside Services after he sustained his injury:
“I never done my normal work. I went out on light duties work washing witches hats and doing light duties as the OH&S officer was aware that I had a sore foot … I … did … continue on to my best ability to work until surgery.”[112]
(lll)it was suggested to the plaintiff that his affidavits were misleading because they referred to the plaintiff’s inability to do activities which he had long ceased doing before his injury. In response to this, the plaintiff said: “No, I haven’t tried to mislead the court, Your Honour. Everything I’ve told you is honest and above;”[113]
[110]TT75-76
[111]T76, L7-13
[112]T76, L18-26
[113]TT77-78
29 During re-examination, the plaintiff gave the following relevant evidence:
(a)his physiotherapy involved hydrotherapy, home-based exercises involving a spiky ball and stretchy bands and some gym work. It was mainly hydrotherapy and physiotherapy at Mr Salmic’s office;[114]
[114]T79, L6-13
(b)he was having hydrotherapy once per fortnight;[115]
(c)the home-based exercise program that he is currently doing consists of using a spiky ball to reduce the inflammation underneath his foot, some exercises at home with flexion and using a stretchy band;[116]
(d)when he worked at the RACV Club, after walking 3 to 4 kilometres on his shift, he would need a 15 to 20-minute seated break;[117]
(e)at this time, he would be suffering “excruciating pain through the top of [his] metatarsal”;[118]
(f)he knocked back many jobs in construction and factory work under the guidance of IPAR, because those positions were “too heavy” for his foot;[119]
(g)he needs a good break when he completes his shifts at the Austin Hospital because of the constant pain that he experiences through the top of his metatarsal. He said that “It’s a very sharp pain when the piano fell on my foot and it near drops me to the ground at the end of my shifts;”[120]
(h)the pain that he experiences is of gradual onset in nature and increases to a sharp pain by the end of his three shifts. When the sharp pain occurs, he has to elevate his foot and rest;[121]
(i)prior to sustaining his injury, he would have liked to continue on with playing competitive tennis;[122]
(j)when he started attending the gym in substitute for his other recreational activities, the gym became his life. He really misses going to the gym in the way he used to be able to;[123]
(k)he used to derive a lot of pleasure out of his fishing activities. He loved cray fishing and walking across rocks to get to the good spots.[124]
[115]T79, L14-15
[116]T79, L19-24
[117]T79, L25-29
[118]TT79-80
[119]T80, L2-6
[120]T80, L7-15
[121]TT80-81
[122]T81, L19-26
[123]TT81-82
[124]T82, L4-11
The medical evidence
30 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
31 One report was included in the plaintiff’s Court Book from the plaintiff’s general practitioner, Dr Gutierrez, dated 25 August 2020. In that report, Dr Gutierrez diagnosed the plaintiff as suffering from a “Lisfranc mechanism of injury with bone fragments at the medial and lateral insertions of the Lisfranc ligament”.[125] Dr Gutierrez confirmed that the plaintiff had required two events of surgical intervention and had been managed since then with a swimming program, podiatrist sessions and physiotherapy sessions. She thought that the plaintiff may require, in the future, further podiatrist and physiotherapy sessions to help him control his pain and have guided exercises to improve his mobility. She thought that in the future he may develop chronic pain not responsive to medication and will require pain specialist evaluation in that event.
[125]Ex P1, p150
32 Dr Gutierrez said that as a result of the accident, the plaintiff was left with “chronic pain through the R midfoot, that he has learnt to manage … his daily activities by doing the exercises … after podiatrist and physiotherapy sessions”.[126] Dr Gutierrez thought that the plaintiff would not be able to perform some regular activities, like running or walking on uneven ground. She said he would require breaks from prolonged standing, walking and driving. She thought that with time, the injury and the damage it caused would lead to osteoarthritis to the joints affected, and secondary pain/restriction in his range of movement of his foot. She said that the result of the plaintiff’s injury was to have “an immense impact on … [the plaintiff’s] social, domestic and recreational activities by limiting what he can or can not do compared to what he used to do”.[127]
[126]Ex P1, p150
[127]Ex P1, p150
33 Two reports were provided by the plaintiff’s treating physiotherapist, Mr Michael Salmic. The first report, dated 17 December 2019, noted that the plaintiff first attended Mr Salmic following “a severe foot injury in 2016”. Mr Salmic noted that the plaintiff had been “very committed to his rehab. He has completed land and water based therapy. He has worked hard to improve his strength and endurance.”[128]
[128]Ex P1, p79
34 In a report dated 25 August 2020, Mr Salmic noted that the plaintiff had trouble weightbearing on his right foot and as a result of his gait pattern, his ability to walk long distances was heavily impacted by his injury.[129] He said that at the time of his final session with the plaintiff, which took place on 24 March 2020, the plaintiff continued to be diligent with his rehabilitation and was now able to walk 5 to 7 kilometres, depending on how his foot was feeling. Mr Salmic noted that the plaintiff had gained a full range of motion of his right ankle.[130] It was noted that at the time of writing the report, the plaintiff had been discharged from physiotherapy services and was managing his injury independently with his prescribed program.[131] Mr Salmic said that the plaintiff would not need further physiotherapy treatment into the future “if his current progress and improvement is maintained”.[132]
[129]Ex P1, p81
[130]Ex P1, p82
[131]Ex P1, p82
[132]Ex P1, p83
35 Mr Salmic noted that during his rehabilitation, the plaintiff reported being restricted in his social, domestic and recreational activities, such as daily walks around the Lilydale Lake. He noted that the plaintiff had reported a reduction in his social participation, engagement and mood in social and domestic activities due to his pain levels prior to commencing and during his rehabilitation. Mr Salmic said that this had improved with physiotherapy treatment and rehabilitation. He said that while the plaintiff had returned to work and recreational activities, such as walking, his injury and the conditions which it causes, will likely impact on his daily activities as he may at times have increases in discomfort and/or pain in his foot.[133]
[133]Ex P1, p83
36 The plaintiff was reviewed by Mr Douglas Gardiner, orthopaedic surgeon, in about May 2019. In a report dated 10 May 2019, Mr Gardiner noted that on examination, when asked to walk with bare feet, the plaintiff tended to walk with a noticeable weight on the outside of his right foot, and that on standing, the second toe did not touch the ground.[134] Mr Gardiner noted that following the accident, difficulties arose with treatment of the injury due to the fact that the plaintiff was seen in the public hospital system and unfortunately did not obtain orthopaedic treatment for at least six months after the injury. Mr Gardiner noted that by this time, the plaintiff was severely disabled and deconditioned. Mr Gardiner said that while the eventual orthopaedic treatment, including internal fixation and subsequent removal of the metalware has produced “an apparently satisfactory structural result,” nevertheless, the plaintiff remains reportedly disabled to the extent that he is no longer able to perform the activities that were required in his previous employment and in leisure and general activities.[135]
[134]Ex P1, p93
[135]Ex P1, p95
37 Mr Gardiner said that the impact on the plaintiff’s extracurricular activities has been “profound”. He noted that the plaintiff is no longer able to go to the gym or to play competitive tennis. He noted that the plaintiff is unable safely to ride his motorbike and is limited in the amount of weight he can lift in recreational activities. Mr Gardiner thought that the prognosis was such that the plaintiff’s right foot would remain in its current state in the foreseeable future. He said that he had been left with irreversible soft-tissue injuries, despite satisfactory healing of the second metatarsal. He said that the plaintiff has a stiff midfoot, which means that more stress may be placed on the other joints in the foot and, therefore, there is a chance that any post-arthritic change that occurs in the region of the second tarsal metatarsal joint may be secondarily transferred to the other joints as a result of them having to compensate for the stiffness in the affected joints.[136]
[136]Ex P1, pp95-96
38 The plaintiff was assessed by Dr Robyn Horsley, occupational physician, on 4 June 2020. In a report of the same date, Dr Horsley said the plaintiff had reported:
“… ongoing disability related to the right foot. He experiences pain if he walks for too long. He often experiences pain towards the end of the working week, and particularly in the evenings. The pain is located over the base of the second metatarsal, both over the dorsum of the foot and over the plantar aspect. At times, he experiences swelling over the plantar aspect.”[137]
[137]Ex P1, p101
39 Dr Horsley noted the plaintiff has great difficulty with ladder climbing and therefore avoids ladders. She said he has difficulty with repetitive stair and hill climbing. He has great difficulty getting in and out of a truck and getting off the ramp at the rear of a truck. She said that he squats with difficulty and he kneels with difficulty.[138] When he experiences pain in the foot, it is approximately 3 out of 10 on the Visual Analogue Scale. It can last for hours to one to two days. It generally resolves on his day off.[139]
[138]Ex P1, p102
[139]Ex P1, p102
40 Dr Horsley conducted a clinical examination of the plaintiff which revealed a calf circumference of 25 centimetres on the left and 23 centimetres on the right. Dr Horsley said that this represented a reduction in muscle bulk on the right side. She noted that the plaintiff had restriction of plantar flexion secondary to pain, limited to approximately half the normal range. She noted that the plaintiff was able to walk on his toes, but with difficulty. He was only able to squat to approximately two-thirds, experiencing pain in the dorsum of the foot at the base of the second metatarsal.[140] Dr Horsley noted that the plaintiff would continue to self-manage when his physiotherapy sessions come to an end. She confirmed that the plaintiff has a home-based exercise program. She concluded that the plaintiff is at risk of developing an acceleration of the degenerative process of the right foot which will ultimately decrease his functional tolerances and impact further upon work capacity into the longer term.[141]
[140]Ex P1, p102
[141]Ex P1, p104
41 Dr Horsley thought that prudent work restrictions for the plaintiff include:
§Avoidance of climbing up and down ladders.
§Avoidance of repetitive stair climbing.
§Avoidance of repetitive squatting, which impacts upon manual handling technique.
§Avoidance of lifting items greater than 10 kilograms except on an occasional basis.
§Avoidance of lifting items of up to 8 to 10 kilograms on a repetitive basis.
§Caution when choosing footwear.[142]
[142]Ex P1, p104-105
42 Dr Horsley thought that any work which the plaintiff would perform in the future would need to take into account the restrictions as outlined above. She noted that the plaintiff is frustrated by his reduction in earning capacity. She said that as time passes and the degenerative process accelerates, the plaintiff’s functional capacity is likely to decrease, which will further impact upon work capacity. She noted that he is only forty-seven years of age.[143]
[143]Ex P1, p105
43 The plaintiff was examined for medico-legal purposes by Mr William Edwards, orthopaedic surgeon specialising in foot and ankle surgery, in June 2020. Mr Edwards described the plaintiff’s current symptoms in the following way:
“… [The plaintiff] talks about pain. He says it is mild. He rates it between 6 and15/100 using a visual analogue pain scale. He says it is aching. He records it can be sharp. He records he has had pain in the form of a small ball in the forefoot but this seems to have settled. He says he has pain at night but it neither wakes him nor stops him going to sleep. He says if he twists the foot it hurts and it is a little sensitive. He notes his pain is worse in cold weather not in hot weather … he says the pain is aggravated by activity and after activity if it is prolonged … His maximum walking time is an hour and a half. He tells me [he] has particular trouble with rough ground and it is worse going up than down hills. He says that he can negotiate a small set of stairs without problems, larger stairs he approaches in a non-reciprocal manner and holds onto the bannister. He tells me he is unable to use ladders. He says he sometimes limps … He says he is not sure whether he can run … He can carry perhaps ten kilograms and push or pull around the same …
… He says he no longer performs gardening because rough ground gives him pain with the foot. He says he cannot climb a ladder and this makes it hard to clean vents at home or wash his house …
… He says he routinely walks once or twice a week for an hour – two rotations around the Lilydale Lake with a break in between. He says he no longer goes mountain bike riding. He cannot run nor ride a bike. He no longer plays tennis. This all because of his foot.”[144]
[144]Ex P1, pp109-110
44 Mr Edwards noted that the plaintiff was currently working at the Austin Hospital approximately 30 hours per week and had taken on a second role as a COVID crisis cleaner, which Mr Edwards thought was for about 16 hours per week.
45 Mr Edwards conducted a physical examination of the plaintiff and noted that the calf circumference at 9 centimetres inferior to the tibial tuberosity was a maximum of 37 centimetres on the right and 39 centimetres on the left. He noted that in relation to the plaintiff’s right foot:
“The third toe tends to underlay the second, that is to say it displays subtle varus through its length from the MTP joint. The second toe is enlocated and mobile at the M.T.P. joint but the tip of the toe does not engage the ground and the second M.T.P. joint is tender. This joint is unstable to Lachman’s testing. There is a significant tenderness of the second web. There is tenderness of the T.M.T. joints of the midfoot. There is tenderness of each of the metatarsal heads but this is limited … There is an area of altered sensation six centimetres from proximal to distal and two centimetres across. There is diminished sensation and some slight pain with light touch … .”[145]
[145]Ex P1, p110-111
46 Mr Edwards was of the view that the plaintiff’s right foot will remain much the same as it is presently. He thought that the midfoot may become arthritic and demand further intervention. He was concerned that there may be progression in “forefoot deformity”.[146]
[146]Ex P1, pp112-113
47 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Graeme Doig, general orthopaedic and trauma surgeon, on 23 August 2018. In a report dated 31 August 2018 which was relied upon by the plaintiff, Dr Doig noted that at that time, the plaintiff was experiencing constant pain on walking, with a restricted walking distance. Dr Doig noted that the plaintiff was unable to run and has difficulty on uneven ground. He said that the plaintiff limped into his consulting rooms, favouring his right leg. He noted that the plaintiff had significant scarring over the top of his right foot. He said that the scars were all prominent but not particularly irritable. He measured “just over 1.5 cms of calf atrophy on the right”. He said that upon examination, the midfoot was painful on stressing.[147] Dr Doig diagnosed the plaintiff as suffering from –
“… a complex fracture of the second metatarsal of the right foot, with involvement of the Lis-Frank articulation, requiring delayed operative stabilisation and subsequent implant removal … [The plaintiff] continues to suffer from pain and restrictions as a result.”[148]
[147]Ex P1, pp132-133
[148]Ex P1, p134
48 Dr Doig said that the plaintiff’s prognosis was “guarded”. He thought that the plaintiff would most likely experience “chronic pain through the right mid-foot and will have difficulty running and walking on uneven ground”. He thought that the plaintiff would require long breaks from prolonged standing, walking and driving in the future.[149]
[149]Ex P1, p135
49 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Catherine Bones, consultant occupational physician, on 3 December 2019. In a report dated 10 December 2019 relied upon by the plaintiff, Dr Bones noted that the plaintiff:
“… continues to experience some pain on the top of his foot around the scar area. [The plaintiff] explained that this pain can be severe at times. [The plaintiff] told me that he continues to experience some pain underneath the right foot when walking but that the sensation of a ball in the base of his foot has resolved.”[150]
[150]Ex P1, p141
50 Dr Bones commented that the plaintiff engaged with her well during the course of the assessment, responding to her questions in a straightforward manner, with no exaggeration of symptoms or any observable pain behaviour.[151] Dr Bones noted that the plaintiff was unable to ride a motorbike, play tennis, play football or undertake bushwalking or climbing. She said that the plaintiff stated that he also had difficulty with heavy lifting and bending.[152]
[151]Ex P1, p142
[152]Ex P1, p144
51 Dr Bones thought that in the longer term, the plaintiff may be predisposed to degenerative changes at the fracture site of the right foot.[153] She thought that the plaintiff would continue to experience some symptoms and limitations of activities for the foreseeable future. She noted that the plaintiff appeared, at that time, to be genuinely motivated to source alternative employment. She thought that he should avoid prolonged standing or walking, unless he is able to self-manage that activity. She thought he should avoid climbing long ladders and also avoid heavy or awkward manual handling.[154]
[153]Ex P1, p145
[154]Ex P1, p146
The Defendant’s medical reports and Certificates of Capacity
52 The defendant included one report from Dr Catherine Bones, consultant occupational physician, in its Court Book. This report was dated 13 June 2019. This report provides information which was similar to that contained in the report of Dr Bones already referred to above, dated 10 December 2019, which was relied upon by the plaintiff. As such, I will not refer to the content of the June 2019 report from Dr Bones in this judgment.
53 The defendant relied upon five Certificates of Capacity, the first dated 27 July 2019 and the last dated 2 November 2019. The Certificates of Capacity were provided by the plaintiff’s physiotherapist, Mr Michael Salmic.
54 In the Certificate of Capacity dated 27 July 2019, Mr Salmic noted that the plaintiff’s standing, walking, squatting, kneeling and lifting all required modification. This certificate noted that the plaintiff could stand for one hour at a time before requiring a seated break, that the plaintiff’s walking was limited to 3 to 4 kilometres total per shift, that the plaintiff should begin on shifts at work of four to five hours, that the plaintiff should do no more than ten steps in a row up any flight of stairs, that the plaintiff can squat to lift no more than 10 kilograms to waist height, and that there should be no lifting of anything over 10 kilograms.[155]
[155]Ex D1, p127
55 In the Certificate of Capacity dated 2 November 2019, Mr Salmic noted that it was only the plaintiff’s lifting capacity which required modification. Mr Salmic noted that the plaintiff may need a five-minute break after each three to four hours of standing, that his walking should be limited to 7 to 8 kilometres total per shift, that he can start performing eight-hour shifts, five days a week, that his walking upstairs could be unrestricted, that he could use a small stepladder if required, and that he could squat to lift no more than 10 to 12 kilograms to waist height, with no lifting of anything over 12 kilograms.[156]
[156]Ex D1, p139
The issues
The Plaintiff’s credit
56 Numerous attempts were made to discredit the plaintiff during cross-examination. The focus of the cross-examination was upon the plaintiff’s pre-injury activities and an assessment of whether those activities which the plaintiff now said he was unable to perform were matters which the plaintiff was actually involved in prior to his injury in 23 December 2016. The reason why he was not currently undertaking certain activities was explored. The plaintiff was also cross-examined about his present physical capacity, especially by reference to the nature of his present employment and the content of the Certificate of Capacity provided in November 2019 by Mr Salmic. In particular, the plaintiff was pressed in detail about the tasks he is required to undertake in his position at the Austin Hospital, his present capacity for work, including overtime, and whether his capacity for those activities in the workforce were inconsistent with activities which the plaintiff claimed to be unable to perform domestically, for example handling heavy rubbish bins, climbing ladders and mowing the lawns at home.
57 In response to these matters, the plaintiff acknowledged that he had not participated in various activities such as bushwalking, trial bike riding and playing tennis, between when he moved to Victoria in mid 2016 and when he was involved in the accident on 23 December 2016; however, he explained that his gym program, which he began when he moved to Melbourne, had been his substitute for all of these activities which he previously enjoyed. There was no suggestion made during the cross-examination that the plaintiff ceased engaging in the activities that he deposed to having enjoyed in the past, because of physical infirmity or loss of interest. The plaintiff merely acknowledged that he had ceased some of the activities because he used to engage in them with his family, who lived in Tasmania. The plaintiff’s evidence was not to the effect that he never wished to engage in those activities again. I accept the plaintiff’s evidence in relation to these matters.
58 The plaintiff gave clear and cogent evidence about his present work duties and his general capacity for work. He said that he is lucky to have fallen on his feet in getting a job which is light enough for him to manage. He was candid about the fact that he was presently undertaking some extra shifts, but also made it clear that this was a short-term issue caused by a lack of staff at the hospital due to the COVID-19 crisis. He gave evidence about the effects which the activities involved in this job have on his capacity to walk for leisure. He denied misleading the Court when he swore in his third affidavit, that he did not think he had the capacity to take on extra work over and above his three weekly shifts, on a week-in-week-out basis. It was clear from the evidence which the plaintiff gave, that the extra shifts which he has been taking on are a temporary and ad hoc arrangement. The plaintiff said that because of the health crisis, he feels obliged to help out his boss and the other employees. I accept his evidence in relation to these matters.
59 Lastly, the plaintiff provided cogent explanations in relation to what he said were his domestic and personal limitations by reason of his injury. In particular, he explained why he would have trouble putting out heavy rubbish bins, mowing the lawns on the sloping land around his residence, or climbing a high ladder to clean out vents at his home. He was clear about what he could and could not do to contribute to his church community activities. He explained why he deposed to the fact that his sex life is limited. He explained that while he could still engage in fishing off a jetty if there was a flat surface to walk on to get there, his enjoyment of that sport had included getting to “the good spots” by climbing over rocks and walking on other uneven ground like sand. He particularly missed being able to set cray pots, which involved climbing over rocks. I accept the evidence which the plaintiff gave in relation to each of these matters.
60 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest witness who was doing his best at all times to give accurate responses to the questions asked of him. During cross-examination, the plaintiff gave his evidence openly and without embellishment. He made concessions when necessary, many of which were adverse to his own interests.
61 Furthermore, I find that the plaintiff’s account of events has remained fairly consistent throughout the period in which he has seen his treating medical practitioners, consulted with medico-legal assessors and provided evidence to this Court. I note the observation of Dr Catherine Bones that the plaintiff responded to her questions in a straightforward manner, with no exaggeration of his symptoms and no observable pain behaviour. This observation accords with my assessment of the plaintiff’s demeanour when he gave evidence to the Court.
62 After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the medical records, I consider that he is a credible witness in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms in any way.
Stoic Plaintiff
63 I also formed the view that the plaintiff was extremely stoic in relation to his condition. I note the comment made by Mr Salmic, physiotherapist, that the plaintiff was always “very committed to his rehab … [and had] worked hard to improve his strength and endurance”.
64 In addition, I note the comment made by Dr Bones that the plaintiff was “genuinely motivated” to source alternative employment, despite his injuries. I also note that despite great difficulty, the plaintiff has returned to work, initially at the RACV Club in Healesville as a maintenance officer and, when that job was restructured, through an employment agency at the Austin Hospital as a cleaner. Furthermore, I find that despite the fact that his current work at the Austin Hospital causes him an increase in pain as he performs his weekly shifts, the plaintiff has persisted with this employment and agreed to perform overtime shifts, not because he feels physically able to accommodate this work, but out of loyalty to his employer who required extra assistance during the COVID-19 crisis.
Compensable injury
65 The details and occurrence of the injury are not in dispute.
66 Having considered all of the medical evidence from the plaintiff’s treating doctors a well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffers the consequences of a complex fracture of the second metatarsal of the right foot, with involvement of the Lis-Frank articulation, requiring delayed operative stabilisation and subsequent implant removal.
Is the compensable injury permanent for the purposes of the Act?
67 Having considered the relevant reports, in particular the reports from Mr Salmic,[157] Dr Gutierrez,[158] Mr Gardiner,[159] Dr Horsley,[160] Mr Edwards,[161] Dr Doig[162] and Dr Bones,[163] I find that the plaintiff is likely to suffer from the injuries that he sustained in the accident for the foreseeable future. Given this, I find that his injury is permanent for the purposes of the Act.
[157]Ex P1, pp83-84
[158]Ex P1, p150
[159]Ex P1, p95
[160]Ex P1, p103
[161]Ex P1, p112
[162]Ex P1, p135
[163]Ex P1, p146
Are the consequences to the plaintiff of the injury “serious”?
68 Having regard to all of the relevant evidence, I find that as a result of the injury to the function of his right foot alone, the plaintiff suffers from the following consequences:
(a) the need to undergo two operative procedures to repair the fracture in his right foot;
(b) almost daily pain in his right foot, which varies in intensity. It can be aching, but after protracted periods of walking or standing, can become very sharp, shooting pain. On occasions, he has described the pain as “excruciating”;
(c) an inability to put his right foot fully flat on the ground;
(d) the presence of a significant scar on the top of his right foot;
(e) some wasting of the right lower limb due to reduced activity;
(f) a restriction in his ability to walk long distances. He experiences pain in the top of his right metatarsal after walking, such that he needs to take a seated rest or to lie down with his foot elevated;
(g) an inability to run because he is fearful of jarring his right foot;
(h) difficulty squatting and kneeling;
(i) difficulty climbing long flights of stairs;
(j) the need to wear special inserts in both of his shoes to accommodate his foot injury. He has had to buy special shoes to fit those inserts;
(k) the need to engage in a home-based exercise program to try to increase the mobility of his right foot and his pain tolerance;
(l) the risk of developing an acceleration of the degenerative process of the right foot which will ultimately decrease his functional tolerances and impact further upon work capacity into the longer term. It was postulated by numerous doctors that the plaintiff was at risk of developing osteoarthritis in the future. Dr Edwards thought that in addition to osteoarthritis, the plaintiff was also at risk of developing “forefoot deformity”;
(m) an inability to engage in leisure activities that he used to enjoy, such as long walks in the bush over hilly and rough ground, riding a trail bike, playing tennis, kicking a football, going ten-pin bowling and fishing in hard to access places where there may be a need to climb over rocks, to walk on sand or to go in a boat;
(n) an inability to engage in his gym work as he would like to. Prior to suffering the injury to his right foot, the plaintiff had a vigorous gym workout that he used to greatly enjoy. Since the injury, he still goes to the gym, but for rehabilitation purposes. He mostly does hydrotherapy because it is weightless. He cannot now do weights even on the weight machines, as this puts pressure on his foot. He cannot do any exercises that require stepping. He cannot do any rowing. He cannot walk up an incline. He cannot run. He misses these activities;
(o) limitations in his ability to ride a pushbike. He used to do long pushbike rides. He has recently returned to riding his pushbike, but he used to do 30-kilometre rides and now he is limited to 3 or 4 kilometres before his pain becomes so bad that he has to stop;
(p) limitations in his ability to engage in selfcare. While he is able to take care of himself, he has to take breaks to sit down because he has trouble standing for very long;
(q) limitations in his ability to engage in domestic chores. He tries to help his girlfriend with light tasks around the house but is not able to do maintenance jobs anymore, because he has difficulty climbing ladders. He has difficulty putting the bins out if they are full. He can no longer garden. He cannot mow the lawns at home because he lives on a sloping site;
(r) limitations in his ability to engage in community activities with his church. He has been able to do some light volunteering work through his church and for the Salvation Army. He has done things like setting tables with cutlery, serving in the soup kitchen and some light weeding. He still cannot do any of the heavier work that is involved in the working bees that the church holds. He feels this loss as he would like to contribute more to the community through his church;
(s) a reduction in his social life. He rarely goes out except to participate in church activities;
(t) an interference in his ability to engage in intimate relations with his girlfriend;
(u) an inability to lift items over 10 kilograms and to engage in heavy manual labour. He feels the loss of this because he wants to be what he was before. He had a good job as a line marker and he will never be able to do that sort of work again;
(v) a limitation on his ability to perform full-time work, even if the duties are lighter in nature. He presently experiences difficulties with the light work that he is undertaking at the Austin Hospital. His foot pain gets progressively worse during each of his three shifts at work each week. He still develops pain in his second metatarsal over the course of his shift, despite wearing the special shoe insert. He needs the five days off between Sunday night and Friday night, to allow his pain to reduce to a level where he can work again. The pain in his foot eases over that time;
(t) he has taken on some extra shifts at work because of the shortage of employees due to COVID-19. He has felt an obligation to help his boss out. He experiences increased pain in his foot because of these extra shifts. At the moment, he is walking so much for work that he cannot walk for leisure. He acknowledges that this situation is temporary.
69 In Haden Engineering Pty Ltd v McKinnon,[164] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[165] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. As the Court of Appeal observed in Dwyer v Calco Timbers Pty Ltd (No 2):[166]
“… Impairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained … .”
[164](2010) 31 VR 1
[165](ibid) at paragraph [9]
[166][2008] VSCA 187 at paragraph [27]
70 The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[167]
[167](ibid) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
71 The Court in Haden recognised that some plaintiffs may be more “stoic” than others. To this end, Maxwell, P observed:[168]
“… This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by a ‘stoical’ plaintiff is not to be viewed as any less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[169] In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual. …”
[168]Haden (supra) at paragraph [13]
[169]Dwyer v Calco Timbers Pty Ltd (No 2) (supra)
72 Lastly, as to the capacity for work, the Court in Haden observed that it is necessary to identify whether and to what extent the plaintiff is prevented by pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[170]
“… it would be unfortunate, and in … [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[170]ibid
73 What matters in this regard is the extent to which “an area of work which the … [plaintiff] enjoyed has been closed off to [him or her]”.[171]
[171]Haden (supra) at paragraph [15]; see also Dwyer (supra) at paragraph [25]
74 It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness, and especially where the plaintiff has been found to be stoic, there is no reason to reject his ongoing descriptions of the pain suffered by him.[172]
[172]Halpin (supra) at paragraph [44]
75 I have already made observations about the plaintiff’s demeanour and presentation in Court. I have found that the plaintiff was both a witness of credit and also stoic in his presentation and attitude to managing his injury.
76 During closing submissions, I was referred by counsel for the defendant to TTB SMS Pty Ltd v Reading (“TTB”),[173] in support of an argument that in this case, the consequences of the plaintiff’s injuries are not trivial, but do not satisfy the test for a serious injury under the Act.
[173][2020] VSCA 203 at paragraph [17]
77 I was also referred to the passage in Sabo v George Western Foods,[174] where it was observed that:
“In considering whether … [an] impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.’ ”
[174](supra) at paragraph [73]
78 In TTB, the plaintiff had suffered an injury to his right little finger, requiring surgical repair. He suffered from some pain but it was not constant. He occasionally took over-the-counter medication but otherwise had no other treatment. The Court of Appeal noted that his life was –
“… unaffected to any real degree. As mentioned, he still fished and still enjoyed it. He no longer water-skied or played golf, but these were not major pre-accident interests. ... His self-care was virtually unaffected. … .”[175]
[175](ibid) at paragraphs [21] and [31]
79 By comparison with the facts of TTB, an analysis of the evidence in this case clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injury which he suffered in the accident.
80 In particular, the plaintiff endures permanent, almost daily pain which causes significant discomfort and restrictions in various aspects of his life. This condition has impacted upon his ability to work, to socialise, to contribute to his church community and to engage in his domestic chores and activities of daily living. It has caused a permanent decline in his ability to exercise. It has affected his intimate relationship with his girlfriend and also his ability to engage in the recreational activities which he used to enjoy. The nature and extent of the symptoms in his left foot are such that he has a permanent need to engage in rehabilitation exercises to try to maintain his mobility and pain tolerance. He will always have to wear special inserts in his shoes and to wear special shoes in order to accommodate the inserts. He will have a lifelong need to avoid occupations and activities that involve heavy manual labour, for which he was otherwise reasonably suited. I note that the plaintiff is a relatively young man, and will have to live with the consequences of his injury for decades to come.[176]
[176]Haden (supra) at paragraph [18]; see also Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [43] and Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [46]
81 I am satisfied that the plaintiff has lost much more than what he has retained. To a degree, what the plaintiff has retained is due to his stoic nature and his determination to continue on despite his pain. Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury that he sustained in the course of his work with Safe & Sound, are “very considerable” and certainly “more than ‘significant’ or ‘marked’” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
82 For the reasons set out above, I am satisfied that as a consequence of the injury sustained in the course of his work with Safe & Sound on 23 December 2016, the plaintiff has suffered a “serious injury”, as that term is defined in the Act. The application is granted.
83 I will hear the parties on the question of costs.
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