Roscarel v Wannon Region Water Authority

[2012] VCC 863

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT WARRNAMBOOL

CIVIL DIVISION

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-00649

CRAIG ROSCAREL	Plaintiff
v
WANNON REGION WATER AUTHORITY	First Defendant
and
CGU WORKERS COMPENSATION (VIC) LIMITED	Second Defendant

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Warrnambool
DATE OF HEARING:	24, 27 and 28 May 2012
DATE OF JUDGMENT:	19 June 2012
CASE MAY BE CITED AS:	Roscarel v Wannon Region Water Authority & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 863

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION

CATCHWORDS – Serious injury – injury to the left foot – plantar fasciitis – pain and suffering only – whether consequences to the plaintiff are serious

LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(16)(b), 134AB(37) and (38).
CASES CITED – Ansett Australia Ltd v Taylor [2006] VSCA 171; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181.

JUDGMENT – Leave granted

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird and Mr I Fehring	Stringer Clark
For the Defendants	Mr P Elliott QC and Mr J Batten	Lander & Rogers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant in or about June 2007 (“the said date”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.  There, “serious” is defined relevantly as meaning:

“(a)   permanent serious impairment or loss of a body function.”

4       The body function relied upon in this application is the left foot.

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6       The impairment of the body function must be permanent.

7       Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

8       The plaintiff bears an overall burden of proof upon the balance of probabilities.

9       By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

10      I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

11      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.

12      The plaintiff relied upon two affidavits and he was cross examined.  Further, he relied on an affidavit of his wife, Cassandra Roscarel, sworn 21 December 2010.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s Evidence

13      The plaintiff is aged forty four, having been born in June 1967.  He is married with two daughters aged five and three.  His wife is not working. 

14      The plaintiff left school at the age of eighteen, having completed HSC.  He then worked with ACT Electricity & Water, initially as a labourer and eventually as a licensed drainer and team leader for around ten years until about 1995 or 1996.

15      During the late 1980s, the plaintiff injured his left knee at work.  He had an arthroscopy.  He also had a left thumb injury that required fusion.

16      The plaintiff worked in New Zealand fixing water pumps for about a year and a half and then returned to Australia taking up self-employed work as a subcontractor drainer in Sydney.

17      In about 1998, the plaintiff moved to Brisbane to again work as a drainer.  He worked for about two or three years before suffering an injury to his right shoulder in 2000.  He received a settlement in relation to that injury of $62,000 in around 2002.

18      Because of his right shoulder injury, the plaintiff stopped working as a drainer and commenced driving buses in about 2001 and did so for about four years.  Whilst working in that capacity at Cape York, he met his wife.  The plaintiff moved to Victoria to be with her in about 2005/2006 and they were married in 2007.

19      The plaintiff’s wife ran a small hydroponic nursery from home at Penshurst from about 2006 to 2009.  The plaintiff started work with the first defendant as a water treatment officer around the end of October 2006 based in the Hamilton office where there were four or five other people in the water treatment team.

20      On the said date, the plaintiff suffered injury to his left foot whilst taking water samples at the Crukoon Basin.  As he started walking down the side of the basin, he had to walk over fairly large and irregular rocks and boulders, no bigger than a large football.  He put his left foot onto a rock and slipped forward with a high degree of force, the heel of his left foot ramming into another rock (“the incident”).

21      After the incident, the plaintiff was aware his foot was sore and he completed an incident report on returning to the depot. 

22      Over the following months, the plaintiff’s left foot remained a problem.  It took him until about August 2007 to realise his foot was not getting any better and he then went to see his general practitioner, Dr Joyce, but ended up seeing Dr Slabbert, who referred him for an x-ray and told the plaintiff he had plantar fasciitis (“the condition”).  The plaintiff was given a Cortisone injection after which his foot was okay for a week but then the pain returned.

23      In about September 2007, the plaintiff lodged a WorkCover claim.

24      That month, the plaintiff saw Dr Slabbert again and had another injection.  The plaintiff had continued working at this time.  The second injection seemed to have a positive effect on his pain.  He was doing well until one day he went outside in his slippers and stood on a pebble about the size of a fifty cent piece and his pain returned.

25      The plaintiff had a third injection in November 2007 which did not help.

26      Dr Slabbert referred the plaintiff to Mr Mitchell, surgeon, in Ballarat, whom he saw before Christmas in 2007.  Mr Mitchell told the plaintiff he could fix his foot with surgery which would involve an eighty per cent release of the tendon.  No risks were discussed with the plaintiff and he was told by Mr Mitchell he would be off work for three weeks.

27      After a tendon release (“the surgery”) in February 2008, the plaintiff returned to Mr Mitchell for review.  The plaintiff was limping and he told Mr Mitchell his foot was no good.  Mr Mitchell said he was afraid the plaintiff was going to say something like that.  Mr Mitchell mentioned he might be able to operate to lengthen the calf but the plaintiff explained he was not keen on further surgery and Mr Mitchell suggested he could try physiotherapy.

28      The plaintiff was off work for three weeks after the surgery and returned on light duties for about five weeks, after which Mr Mitchell approved a full return to work.  This was very problematic and painful as the plaintiff was required to do a lot of walking.  He experienced pain if he sat down or stood up for too long.  Mr Mitchell diagnosed lateral column overload.  The plaintiff’s left foot was much worse after the surgery than beforehand.

29      In cross examination, the plaintiff confirmed that his initial pain was at the front of his left heel.  That pain was helped by the surgery but thereafter, his major pain has been on the side of his foot with some pain in his toes.   

30      The plaintiff continued with his full time duties with great difficulty up until about July or August 2008 due to his left foot.  He then advised the first defendant’s supervisor he was not coming to work and he obtained a  certificate of capacity for two days off from Dr Joyce.

31      Not long thereafter, the plaintiff saw a surgeon, Mr Rice, in Melbourne, who gave him a month off work and organised an MRI. 

32      In cross examination, the plaintiff agreed he did not think much of the doctors who had treated him.

33      As at end of 2008, the plaintiff was finding it very difficult to walk and he had great difficulty doing the renovations and gardening that he had previously been doing.  He was feeling very tired and it was difficult to play with his young daughter.  Another daughter, Mia, was born in September 2008 and he had difficulty assisting his wife with jobs around the house and caring for the baby.  As he was feeling depressed, the plaintiff was eventually prescribed antidepressants, which he took for six months but then stopped due to side effects. 

34      At the end of 2008, the plaintiff saw Dr Blombery, a pain specialist, who gave him various medications including a Morphine patch, but Dr Joyce was not keen on the patch so the plaintiff did not persist with it.   Mr Rice advised the plaintiff there was no surgery to offer but organised for referral to an orthotist. 

35      The plaintiff was keen to get back to full time duties by early 2009 and try fieldwork.  Mr Rice said he should try, perhaps, four hours a day in the field and four in the office.  In April 2009, the plaintiff was sent to Mr Troy by WorkCover.  Mr Troy agreed with Mr Rice’s view as to a return to work. 

36      However, the first defendant effectively ignored this request and the return to work plans only focused on hours worked.  The plaintiff continued to work four hours a day in the office until he was told work had run out and his employment was terminated in May 2009.

37      In cross examination, the plaintiff disagreed he was made redundant.  His employment was terminated because he could not climb a ladder.  He agreed he had only needed to climb a ladder twice during the three years he had worked for the first defendant. 

38      Having agreed that both Mr Troy and Mr Rice thought he had the capacity to continue working for the first defendant, the plaintiff thought that he could keep working with the first defendant and he wanted to stay on but he was unhappy when he was advised he no longer had a job because of the ladder issue.

39      The plaintiff deposed in October 2010 that he had applied for a number of jobs, including machinery salesperson and spare parts interpreter.  He got two interviews for over a dozen jobs.  The plaintiff’s rehabilitation was being conducted by Work Able Consulting, who provided him with a heavy combination licence, an Agsafe Certificate and a first aid course.  The plaintiff was then still completing a traffic management course in coach operations which he had to pay for himself. 

40      Whilst he was employed with the first defendant, the plaintiff had applied for a part time position as a credit manager which could have fitted in with his return to work plan.  However, that application was unsuccessful.  He had also applied to undertake vocational post graduate courses in asset management that were offered to those in the first defendant’s employ.

41      At that time, the plaintiff did not see a future in the water and drainage industry.  In absolute desperation, he saw no other option but to start his own business as a coach driver, operating under the name Roscoe & Coach.  He purchased a fifty three seat bus in February 2010 and a thirteen seat minibus in April 2010 and sold his car.  He was then trying to establish bus tours through the Grampians, Great Ocean Road and to Melbourne for special events.  Business was quiet and he had not been drawing a wage.  He was living off WorkCover payments and a credit card.  He also had to secure a part time position as a taxi driver in Hamilton. 

42      The plaintiff had a vague recollection he spoke to someone at CGU while he was running the bus business and receiving WorkCover payments.  He would have had to put in a taxation return at that time. 

43      The plaintiff thought it was correct WorkCover payments ceased in December 2010 and he commenced his bus business in about February 2011.  He also drove taxis towards the end of 2010 and occasionally in January/February but only a couple of days here and there.

44      The plaintiff was under Dr Joyce’s care until moving to Queensland in June 2011.  He took Panadol daily and used ice cold water or ice on his foot, particularly in the mornings, and had a heat gel at other times to relieve pain and allow him to do his activities. 

45      The plaintiff found driving manual buses was very painful for his foot by the end of the day and had considerable trouble walking and sleeping at night. 

46      In June 2010, the plaintiff sold the buses.  He had been struggling with the business in Victoria and an opportunity arose to buy a forty eight seat bus on a school run which was associated with All Saints School at Merrimac on the Gold Coast. 

47      In cross examination, the plaintiff described how the bus run takes about forty five minutes in the morning and after school every school day.  He has a contract with the parents at the school and they pay a fixed rate if their child attends every day.  There is also a casual rate but the plaintiff generally receives about $35 a child and on average, he drives about thirty five children.  The furthest distance the plaintiff drives is eight to ten kilometres.  The children just hop on and off the bus with their bags.

48      Between shifts, the plaintiff normally goes to the coffee shop, then has lunch in the bus before starting the afternoon pick up.

49      Washing the bus usually takes the plaintiff about fifteen minutes.  It takes to longer wash it for an inspection as the plaintiff was shown doing on the film.

50      The plaintiff does the charter work whenever it is available outside the time that he is operating the school run.  He could not do this work full time as he could not cope with constantly lifting luggage.

51      The plaintiff advertises for charter work, mainly for bucks’ parties, hens’ parties and school transfers.  He agreed he also advertised for tourist work and he had done two trips with Japanese tourists with the assistance of a tour guide.  The plaintiff collected the tourists at Brisbane airport and then took them to local hotels.  On occasion he drove them back to the Gold Coast.

52      The plaintiff agreed that he would have to move luggage doing an airport pick up, but he does not do many of those runs. 

53      The plaintiff could no longer drive buses in the outback, as he previously did at places like Cape York, because he cannot walk on rough ground. 

Other Consequences

54      Prior to the incident, the plaintiff was very fit and active and travelled all over Australia and had never had any difficulty with walking, driving buses or being involved in significant physical activity.  All that has now all changed. 

55      The plaintiff deposed that in October 2010 there were some things he could physically do but avoided doing because they aggravated his left foot pain.  He avoided walking more than two hundred metres or kneeling on his left knee as it involved flexing his left foot backwards.  Standing for more than ten or fifteen minutes was a problem and twisting caused discomfort in his lower back. 

56      As of October 2010, the plaintiff’s mental status was not good.  He often felt depressed and did not feel like visiting friends as he was not in the mood.  Overall, he was worried his foot injury was not getting any better and he was worried about his future.

57      The plaintiff recently deposed that at times, he has been depressed and finds it very difficult to cope with the ongoing restrictions and a whole range of things he cannot do or has difficulty doing. 

58      In October 2010, the plaintiff’s ability to care for his young children and baby was affected.  When he sat for too long his leg and back got stiff and painful.  He had pain every day in his foot and it felt like a burning pain.  Standing in the kitchen to cook , an activity he loved, was painful.

59      Carrying the children caused discomfort and pain, as did pushing a shopping trolley or any activity where he had to put pressure on his left foot.

60      The restrictions in activities with his daughters who are now aged three and five continue and are very upsetting.

61      The plaintiff deposed that his intimate life was affected with intercourse being painful and he did not have much of a sexual drive.  His sleep had been badly affected.  He had to chase a cold spot in the sheets to overcome the left foot burning sensation.  Sometimes he had to leave his foot outside the cover.  He also had pain if the sheets pressed on his foot.  Getting in and out of the bath could also be painful and difficult.

62      In his recent affidavit, the plaintiff confirmed he still does not sleep well at night because his foot is painful and he usually wakes every night and probably only gets two to three hours’ sleep.  If he rolls over at night and catches his foot on the sheets, it will be painful and then he will be awake for the rest of the night.

63      The plaintiff also confirmed that sexual relationships have definitely been affected and he is very moody and short tempered and his relationship has been put under a lot of strain because of his injury.

64      As of October 2010, whilst still living in Penshurst, the plaintiff could do limited things around the garden such as digging but he did so rarely as it aggravated his foot and caused pain.  If he went at it too hard, his foot ached and he tended to push on and just get it done.  He suffered for the next few days but had to give it a go for his psychological health.  He had avoided lawn mowing since September 2008.  The plaintiff had paid assistance with gardening.  His wife did the mowing if it was required.  He had stopped tending the vegetable patch. 

65      The plaintiff currently uses a ride-on mower at his Queensland home.  Gardening is restricted and he cannot do any heavy digging. 

66      Before he injured his left foot, the plaintiff had been very active as a handyman.  He installed a new kitchen and renovated the bathroom at Penshurst.  At the time of the incident there was still a lot to do but he had not been able to do it.  He did some work on the shed after the incident but he required assistance as he was very slow doing it. 

67      The plaintiff would not now be able to do that sort of activity with major renovations or repairs because the twisting and turning involved would cause too much pain in his foot.  It generally takes him too long to do things these days.  He could not stand to paint a whole room, even though he could sit and drive a bus.  He could possibly get on a stepladder.

68      The plaintiff is now looking to buy a house in Queensland that does not require a lot of work.  The property would have to be on at least an acre as he needed that area to park his bus as it is more convenient to park the bus at home rather than at a depot. 

69      Looking after the large garden area would also be difficult, although the plaintiff would be able to use the ride on mower.  Heavier activities would be impossible.

70      Before being injured, the plaintiff occasionally played golf although had not played for two or three years before the incident.  Had he not had a problem with walking, he intended to play more golf.

71      It was hard for the plaintiff to exercise properly and he could not ride a pushbike.

72      The plaintiff used to swim laps whenever he got the opportunity and swim at the beach.  Kicking with his feet made it hard to go swimming and walking on the sand was painful.

73      In cross examination, the plaintiff confirmed he continued to have problems swimming.  He could not swim for exercise as advised by his doctors because of the pain in his foot.  He could not kick his foot under water.

74      In cross examination, the plaintiff could not remember telling Dr Davison he had not played any sport in his adult life or done any regular gym.  He last played rugby league when he was twenty two. 

75      When the plaintiff deposed to having trouble even walking around his backyard, he was referring to the backyard at his Penshurst home.

76      The plaintiff cannot possibly run with his foot problem even for a short distance. 

77      In cross examination, the plaintiff confirmed squatting is difficult and even just going up and down stairs or over rough ground, his pain will increase. 

78      The plaintiff agreed with Mr Troy’s suggestion that he lose weight so less weight would be put on his foot but he thought he would have a lot of difficulty doing proper exercise, dieting and swimming.  The plaintiff had tried to reduce his weight but he now weighs about one hundred and thirty four kilograms. 

79      The plaintiff tried to go to a gym in 2009 as part of his rehabilitation on medical advice.  The plaintiff had not been to the gym since.  He did not think that would assist in losing some weight.  He initially disagreed with the advice that if he exercised and lost weight the pressure on his foot would ease but then agreed his condition would be assisted if he did lose weight.

80      Until about a year ago, the plaintiff was using special orthotic shoes and inserts which allowed him to walk a bit easier.  In cross examination, the plaintiff said that he was not aware of having flat feet until after the surgery  The orthotics he was given did not help with his flat feet.  He could not recall when he stopped wearing orthotics but it might have been a year ago.

81      The plaintiff currently wears rocker shoes, like runners.  They have cushioning in the heel like a rocker.  The shoes generally help him with walking and make him feel more comfortable.  He cannot wear the rockers whilst working.  The plaintiff otherwise wears heavy work boots.  The boots he wore to court and was shown wearing on the film, provide support and they are quite comfortable. 

82      Since moving to Queensland the plaintiff has attended at the Canungra Medical Centre where he sees Dr Christianson.  The plaintiff has been prescribed Mobic and Tramal  although he has not taken Mobic for some months.  He tries to avoid taking medication and does not like being on pills but he knows he will have to put up with his foot into the future. 

83      The plaintiff is currently taking Tramal and also Nurofen and Panadol, pretty much daily.  Generally, he takes Nurofen in the morning and then Panadol in the afternoon, taking a couple of tablets.  He does not take sleeping tablets. 

84      The plaintiff had some physiotherapy for his left leg in February this year, last having had treatment from Tania Aitken in 2009.  The plaintiff thought the last psychological treatment he would have had was when he was in Victoria.  The plaintiff confirmed he had a trial of a TENS machine but it was not any good.

85      The plaintiff continues to use cold baths and cold water on his foot every morning to try and keep the pain down and he uses heat gels two to three times a week, particularly in the afternoon if his foot is very painful.  He takes Tramal when his foot becomes worse.  His left foot is painful all the time and if he does too much on it or puts too much pressure on it, the pain gets severe.  Walking is the most difficult activity.  The plaintiff is okay for ten maybe twenty minutes, as long as the ground is flat and even, but more than that and being on his feet for any prolonged period of time increases his pain. 

86      The plaintiff confirmed in cross examination there had been no change in his condition between the dates he swore his affidavits.

87      The plaintiff confirmed there were things he could still physically do but he avoided because they aggravated his pain, such as walking more than two hundred metres.  He also avoids kneeling on his left knee as it will involve flexing his left foot backwards.  His standing tolerance is about twenty minutes and twisting still causes discomfort in his back.

88      The plaintiff agreed that standing in the kitchen to cook could be very painful and that if he sits for too long, his legs and back get stiff and painful.  He can now do cooking standing on one leg, putting his weight on his right foot.  Standing in this position for twenty minutes, his right foot becomes sore.  He confirmed he has pain all the time.

Surveillance

89      The plaintiff was then shown surveillance film taken in 2012 in Queensland and earlier film taken when he was still living in Penshurst.

90      There was thirty three minutes of film taken on 9 and 10 February 2012.

91      On 9 February 2012, at 8.20 am, the plaintiff was shown driving his bus, initially attending Robina Shopping Centre and then going to the Coffee Club.  A couple of times, he was shown bending down to release a lever to unlock a door on the bus. 

92      The plaintiff was then shown at a local truck wash facility from 9.54 to about 10.23 minutes washing his bus.  He was washing it intensively for an inspection for a roadworthy.  A normal wash would take about fifteen minutes.

93      The plaintiff usually washes the bus once a fortnight.  He agreed he was shown bending down and opening the back compartment of the bus to clean the engine.

94      The plaintiff agreed he was shown using a spray gun to wash down the engine and then getting down on one knee to clean underneath the wheel of the bus.  Whilst he was kneeling on his right knee and his left leg was out behind him, he would not say there was any weight on his left foot as his right knee took the weight.  The plaintiff, however, agreed he stood from that kneeling position, taking his weight on his left foot.

95      The plaintiff continued to spray down and clean the engine and then got a bucket and mop and began washing dirt off the bus.  He then started to scrub and spray the bus using a broom.  The plaintiff agreed he was able to stand for quite a period of time performing that activity bending up and down.

96      On the second date, the plaintiff was shown starting the school run at about 7.00 am, having picked up the bus from the truck centre where it is parked.  The plaintiff commences the afternoon run at 3.30 pm and usually finishes about 4.15 pm. 

97      There was thirteen minutes of film taken on 17 and 25 May 2011. 

98      On the first date, the plaintiff was shown for a couple of minutes at the rear of his premises in Penshurst.  He said it was probably him and he was just walking in the yard in the area of the vegetable patch.  He could possible bend down and weed a few vegetables now.  There was a shed on the property where tools were stored.  There were a few sheep on the back of the property, which the plaintiff kept for meat, and were basically self-shedding.  He did not kill them himself.  His wife looked after the chooks. 

99      On 25 May 2011, the plaintiff was shown attending a medical practice in Hamilton.  He was then shown walking around the streets of Hamilton and in various shops.  He stood speaking to a lady on the street from 9.48 to 9.57 am.  He explained that while he was standing there, if you looked close enough, you could see he was standing on one leg when talking to her.  Most of his weight was on his right leg.  He did not stand “like a flamingo with one knee sort of stuck up”.  He agreed he could stand for that period of time but he did so “favouring his leg.” . 

100     The plaintiff said that he could definitely see situations in the film where he was standing on one leg.  He disagreed he was not shown having any problems doing various activities.  He explained he was not continuously walking or standing in the film and was shown doing so for only five or six minute bursts.  He noticed when he was shown coming out of the doctor’s surgery he was walking with just a slight limp.  He disagreed that he was walking along normally.

101     The plaintiff does not do the activities shown on the film day in, day out.  He does not use his foot to drive the bus. 

102     There was thirteen minutes of film taken on 27 and 28 April 2012.  The plaintiff was shown driving his bus out from the Hino Bus Centre at about 7.05 and travelling to a school, picking up students.  He was shown at 8.30 outside a café at the shopping centre and then took some food and a coffee back to the bus.  He drove the bus to a sports stadium at 13.05.  He was then shown at KFC buying some lunch. 

103     The plaintiff was shown on 28 April 2012 at his house, which is about six kilometres from Canungra.  He was shown alighting from the bus about 9.05 am and then going with his wife and two children to real estate agent’s office.  At 9.56 am, he was shown looking in the window with his family.  He was then shown, walking down the stairs and getting back to his car with his family and getting in to the car and driving off.

Lay Evidence

104     The plaintiff’s wife, Cassandra, swore an affidavit on 21 December 2010.

105     Mrs Roscarel is presently aged forty.  She was then engaged in home duties, prior to that being employed as a technical officer in the Public Service and also having a small nursery at home.

106     Mrs Roscarel was attracted to the plaintiff when she met him in Cape York where he was her bus driver.  She was drawn to his passion of getting out and about and his ability to learn things.  They shared a passion for seeing sights and growing vegetables and gardens.  The plaintiff was active and loved getting out and about. 

107     They gradually came to the decision for the plaintiff to move to Penshurst with her and she became pregnant with their first child in mid 2006.  When the plaintiff moved to Victoria he did not have any work and started doing odd jobs and eventually secured employment with the first defendant.  They lived at an old house in relation to which the plaintiff was doing extensive renovations including installing a new kitchen.

108     After the incident, the plaintiff started slowing down and complained his foot was irritating him and complained of pain.  The home renovating got too much and the plaintiff was taking whatever medication he could to ease his pain and she could recall him crying because his pain was so bad.

109     They married on 24 November 2007.  The plaintiff could not dance with her at the wedding.

110     In January 2008 Mrs Roscarel found out she was pregnant with their second child.

111     The plaintiff underwent the surgery in February 2008, after which he told her he was surprised at how painful the surgery and his foot was.  The plaintiff complained of experiencing a different kind of pain in his foot and became frustrated and angry he could not do his previous activities.

112     The plaintiff’s foot did not improve after the surgery and became worse and he sought further treatment.  As a result he was given orthotic shoes and several cortisone injections.

113     They were putting things off in their lives such as gardening and renovating in the hope the plaintiff’s foot would get better but they had gradually come to the realisation this would not be the case.

114     The first daughter, Keily, was a handful while Mrs Roscarel was pregnant.  The plaintiff struggled to help at home as well as doing jobs such as going to the tip and mowing the lawns.

115     On 22 September 2008, the Roscarel’s second daughter Mia was born via caesarean.  She had colic and was very sick.  The plaintiff could not get up at night due to his bad foot.  Mrs Roscarel had to keep one hearing aid on so she could attend to the baby.

116     During that time, the plaintiff was working on light duties until terminated from his employment by the first defendant in May 2009.

117     At one stage the plaintiff tried various anti-depressants but that made him feel spaced out and forgetful.  At the beginning of 2010, he started his own bus company.  Mrs Roscarel encouraged the plaintiff to start the business to get him out of the house.  It helped his moods but caused financial problems and his employment was irregular.  When he returned from bus driving, the plaintiff  needed two days to recover from his foot pain.  He had also started driving taxis in Hamilton to provide further income.  He struggled to sleep when he got home due to pain in his foot.

118     Mrs Roscarel was frustrated when she saw how the plaintiff struggled to help her with the gardening and he just sat inside.

119     They had not had sexual intercourse since the conception of Mia.  The plaintiff struggled to orgasm.  The affection in their relationship had declined dramatically.  She had sought counselling.

120     Mrs Roscarel closed the plant nursery in the winter of 2010 due to the drought and also the plaintiff’s inability to help her.  She observed him getting more and more annoyed and depressed because she was outside doing things relating to the business and he struggled to look after himself.

121     The plaintiff helped her shift and move the earth, having hired a digger.  He required increased medication and was in pain when doing this activity.

122     Due to the plaintiff's inability to climb ladders and walk on uneven ground the renovation was not finished and it was causing them both a deal of stress.

123     Since the incident, the plaintiff had put on a considerable amount of weight due to his inability to exercise.  His social life had become very restricted and he no longer saw many of his friends as he struggled to walk and stand for lengthy periods.  He was a member of Apex in which he participated for the social aspect, however he struggled with community work as he could not  stand for long periods.  He was not able to help with the delivery of hampers and that caused him distress.

124     The incident has had a profound impact on the plaintiff’s life.  Mrs Roscarel had observed he was limited in what he could do with work and attempted to develop his own business in order to provide an income for the family.  He was severely restricted in his ability to undertake work around the garden and in renovations, and that caused him to be significantly frustrated and was having a devastating effect upon their relationship and his role as a father.

Plaintiff’s Medical Evidence

125     On 20 April 2008, Mr Mitchell performed a left plantar fascia release (“the surgery”).

126     Dr Ford at the Hamilton Medical Group referred the plaintiff to Mr Rice, orthopaedic surgeon, in July 2008.  At that stage, the plaintiff presented with lateral column pain and pain over the fourth and fifth metatarsal shafts, and less so over the heads of the fourth and fifth metatarsal six months after surgery.

127     Dr Ford noted since the surgery the plaintiff had developed gradually worsening column pain and had been put off work.  He had moderate to severe pain along the shafts of the fourth and fifth metatarsals with a full range of fore foot, mid foot and hind foot motion.  He was neurovascularly intact.

128     Mr Rice organised an MRI scan to delineate a stress fracture from a stress reaction from intermetatarsal bursitis or a neuroma on the lateral column of the foot.

129     In August 2008, Mr Rice advised Dr Ford that the MRI revealed no stress fracture.  The plaintiff had some minor intermetatarsal bursitis between the first, second and third intermetatarsal spaces but no fibrosis.  Mr Rice therefore advised he did not have surgery to offer the plaintiff but had organised to send him to an orthotist for an accommodative insole.

130     Mr Rice advised Dr Ford in January 2009 that on review there was some improvement in the plaintiff’s condition with the MBT rocker shoes.  He also noted that the plaintiff was returning to the Geelong orthotist to have insoles modified.  Review was planned for three months.  The plaintiff filled out a return to work plan with appropriate modifications and was keen to do a gym membership with swimming and cycling to lose weight in an effort to assist taking the pressure off his fourth and fifth metatarsals.

131     In March 2009, Mr Rice advised Dr Ford that further review demonstrated the plaintiff still had ongoing lateral column pain.  It improved significantly in the shoe and Mr Rice was therefore happy for him to have a trial of work using the shoes.  He advised he had also referred the plaintiff to Dr Blombery for assessment of his chronic foot pain.

132     On 23 June 2009, Mr Rice reported that he first saw the plaintiff on 28 July 2008 with lateral column pain. 

133     Since the surgery, the plaintiff had complained of increasing pain over the lateral column and lateral aspect of the heel, and of a neuralgic type pain in the lateral sole of the foot particularly bad at night.  Mr Rice reported the plaintiff had pinpoint tenderness along the portion of the fourth and fifth metatarsal shafts.  Noting the plaintiff’s extensive treatment and despite multiple injections, Mr Rice reported the plaintiff still had significant lateral column pain which was compromising activities of daily living and preventing him from doing his work, and caused a prolonged period of sedentary duties. 

134     Mr Rice then thought the plaintiff’s prognosis was guarded, not having offered the plaintiff any corrective surgery apart from delineating lateral column overload, which could be a consequence of the surgery and the non operative mobilities tried so far such as injections, referral to Dr Blombery and appropriate medication from a physician and the use of orthotics.  He did not have any appropriate modalities for the plaintiff.  

135     Mr Rice then thought the plaintiff was unable to carry out his physical duties with the first defendant which involved carrying basins of water, driving a car, walking varying distances and walking on uneven slopes on the rim of various water catchment and storage areas.

136     Mr Rice reported again in June 2010 following examination in March of that year.  On examination, there was consistent tenderness along the head, shaft and base of the fourth and fifth metatarsals.  The plaintiff had a preserved range of ankle dorsiflexion of ten degrees and plantar flexion of thirty degrees, a non irritable and mobile subtalar joint with a good range of movement of inversion and eversion.  He demonstrated some irritability with supination and pronation through the mid foot.  There was a palpable dorsalas pedis and posterior tibial pulse and increased callosities over the lateral aspect of the foot consistent with a lateral column overload and the plaintiff’s altered gait pattern since the surgery. 

137     Mr Rice noted the plaintiff weighed one hundred and twenty five kilograms and ambulated with an antalgic gait, favouring the left hand side, and he had mild wasting of the left calf compared to the right and had a full range of low back movement.

138     The plaintiff said he had a walking distance between ten and twenty minutes.  He could go up and down stairs with difficulty.  He could not go up and down ladders.  He could carry weights between five and ten kilograms.  He could drive a car with minimal discomfort.  He had been unable to keep working with the first defendant.

139     Examination of the plaintiff’s lower back revealed no tenderness and no neurological signs in the lower extremities, with normal reflexes and loss of power.  There was some tenderness of the right foot underneath the second metatarsal head and between the 2/3 and 3/4 intermetatarsal space with a positive squeeze test but negative click test.  Examination of the remainder of the right foot demonstrated an intact dorsalas pedis and posterior tibial pulse with normal capillary return with a full range of ankle dorsi and plantar flexion, and a mobile and non irritable subtalar range of eversion and inversion.  It was noted the plaintiff had mild pes planus on both sides.

140     Mr Rice thought the prognosis was still guarded.  He noted the plaintiff was overweight and was putting a huge amount of force through both feet and his lower back.  His gait had been disturbed because of the lateral column overload in his left foot, contributed to by both the endoscopic surgery and the weight he carried.  Mr Rice noted unfortunately there was no effective treatment.  He considered the plaintiff’s left foot pain with lateral column overload had exacerbated the pain in the right foot with overload of the metatarsals, particularly the second, which would predispose the plaintiff to potential stress fractures in his right foot or an exacerbation of existing constitutional conditions such as a Morton’s neuroma.  He noted the plaintiff had an altered gait pattern and lack of activity would also predispose him to a worsening of this lower back pain.

141     Mr Rice commented while there was a relationship between the right foot pain and the back pain, the plaintiff had not sustained any specific injury in those areas and he therefore considered that employment with the first defendant had been a significant contributing factor to the plantar fasciitis in the left foot which eventually resulted in lateral column overload of the left foot and subsequent wasting of the left calf, and paresthesia and dysesthesia in the lateral plantar nerve in the left foot.

142     Mr Rice thought the activity modification in terms of bus driving and a serious reduction in weight coupled with the use of orthotics and dual intensity shoes including the MBT rocker bottom style shoes, was the best way for the plaintiff to manage the pain in his left foot.

143     Dr Joyce reported on 22 September 2008 noting the surgery.  He advised the plaintiff still suffered from pain and had consulted Mr Rice.  Dr Joyce noted the plaintiff was very despondent and currently suffered from depression.  He was seeing a psychologist in Warrnambool and taking medication.

144     On 25 September 2009 Dr Joyce reported the plaintiff still suffered from chronic pain in his foot which was operated on.  He suffered from depression and was on medication.

145     Due to his painful foot the plaintiff also suffered from muscular pains in his lower back and legs.  He had gained a lot of weight and was not motivated to do exercises due to pain in his foot.

146     On 14 December 2009, Dr Joyce reported that the relationship between the plaintiff’s initial injury to his left foot and the development of symptoms in his lower back, legs and right foot was most likely due to overuse resulting from his abnormal gait.  He thought these secondary problems had to be treated with physiotherapy and supported Dr Fish’s opinion.

147     Ms Schjeflo, psychologist, reported on 3 January 2009 having treated the plaintiff on eight occasions from 22 August 2008 following referral by Dr Joyce.

148     Ms Schjeflo noted the plaintiff's medical history following the incident and his continuing frustration with medical treatment.  He developed depression and anxiety and had difficulties relating thereto with his marriage.  The plaintiff’s weight had increased by twenty two kilograms which exacerbated his pain and contributed to a general loss of self confidence.  It was noted that during his ordeals the plaintiff remained positive about a return to work, taking into account his need for more sedentary duties and undertaking some study. 

149     Ms Schjeflo noted the plaintiff’s struggle with the physical and mental demands of his injury and his life situation contributed to his elevated state of anxiety.  She thought the plaintiff’s prognosis depended on his ability to manage his chronic pain and its effects on his quality of life.

150     Dr Blombery wrote to Mr Rice in April 2009.  The plaintiff had told him there had been deterioration in his pain since the surgery.  He developed back pain as a result of the way he walked.  He had some pain under the second metatarsophalangeal joint in the right foot from excessive weight bearing.  He had a burning pain in his left foot, worse at night after a lot of weight bearing.

151     The plaintiff was taking ten milligrams of Lexapro per day.

152     On examination by Dr Blombery, the plaintiff was very tender over a particular point over the left fourth and fifth metatarsals which made him jump.  There was no sensory disturbance or differences in temperature or colour and there was a full range of movement of his feet.

153     In Dr Blombery’s view the plaintiff’s symptoms and localised area of tenderness suggested a mechanical factor.  However, he thought the burning nature of the plaintiff's pain sounded more neuropathic and his MRI scan really did not help very much.  He advised he was giving the plaintiff an empirical trial of a combination of Lyrica and a reducing course of oral Prednisolone to see what impact that had.

154     Dr Blombery thought the plaintiff did not fulfil the criteria for Complex Regional Pain Syndrome Type I (“CRPS”), but rather neuropathic type pain if this indeed was what was making a contribution.

155     Dr Blombery advised Mr Rice on 18 May 2009 that since being on Lyrica, the plaintiff’s burning pain was a little less than previously, but the pain on the lateral aspect of the foot was more severe.  As the plaintiff had not yet been able to take Prednisolone, Dr Blombery increased the dosage of Lyrica to 150 milligrams which he hoped would further improve the burning pain and would be assisted with the Prednisolone when it was available.

156     In July 2009, Dr Blombery advised Mr Rice the plaintiff had ongoing pain and was now taking one Lyrica daily as the higher dose caused side effects.  Mr Blombery advised his next approach would be to use an epidural infusion of Clonidine and Morphine, but noted the plaintiff was a little reluctant about it at that stage in view of its proximity to the spine.  Although the pain was fairly under control, Dr Blombery advised he was giving the plaintiff him a Norspan 5 patch trial and also suggested the plaintiff have some TENS treatment.

157     The plaintiff first saw physiotherapist, Tania Aitken, on 6 May 2008.

158     Treatment initially consisted of soft tissue techniques and dry needling to the calf and left foot with only a minor reduction in symptoms.  The plaintiff was referred for orthotics and he underwent specialist review from Mr Rice.

159     In about July 2008, the plaintiff started to complain of mirror pain in his right foot and neural mobilising techniques were added to his treatment as well as local treatment to the right foot.  In September 2008, the plaintiff started complaining of lumbar pain on the left side and lumbar techniques were added to treatment. 

160     The plaintiff stopped treatment from November 2008 to February 2009 whilst he had ultrasound guided injections.  Ms Aitken noted the plaintiff began at the gym on 21 April 2009 in an attempt to improve general fitness and flexibility.

161     The plaintiff saw Ms Aitken on a further eight occasions after April 2009, last seeing her on 13 October 2009.

162     Ms Aitken developed a special exercise program for the plaintiff.  During May 2009 the plaintiff had sporadic visits to the gym only complaining of sore lumbar and left calf pain.  In July 2009, a TENS machine was trialled.  The plaintiff had two more appointments in October when he stated his low back was becoming a severe problem and making driving difficult.  Treatment was then focussed at reducing his low back pain. 

The Plaintiff’s Medico-Legal Evidence

163     The plaintiff was examined on two occasions by surgeon, Mr Kenneth Brearley, initially on 26 November 2009, and more recently in April 2012.

164     On the first examination, the plaintiff described a constant sensation of burning discomfort in the sole of the left foot and a similar sensation over the outer side of the foot worsened by long standing or sitting.  He was then taking Avanza for depression and no analgesics.

165     On examination, the plaintiff weighed one hundred and forty kilograms.  Mr Brearley noted there was no obvious exaggeration.  The plaintiff could stand on his tip toe but was unable to walk like that.  There was marked flattening of the longitudinal and transverse arches of the left foot.  There was no significant tenderness over the sole of the foot.  There was an area of quite marked tenderness over the lateral side of the dorsum of the left foot.  Pressure in that area gave pain and dysesthesia in the web between the fourth and fifth toes.  There was no palpable lump in the plantar fascia. 

166     There was slight restriction of eversion and inversion of the ankle.  There was some wasting of the calf musculature measuring forty five centimetres in circumference compared to forty seven for the right.  There was some tenderness over the second metatarsal head in the sole of the foot.

167     Mr Brearley noted the MRI of the left foot of 28 July 2008 and the bone scan carried out in October 2009.

168     Following the first examination, Mr Brearley thought the plaintiff suffered a physical injury to the sole of the left foot in the form of plantar fascia with development of chronic plantar fasciitis.  He noted the plaintiff had a good result from the surgery and the pain in the sole of his foot resolved.  However, the plaintiff was left with a fresh symptom, namely pain over the lateral side of the dorsum of the left foot and a tender area where pressure caused pain radiating to the web between the fourth and fifth toes, which was the plaintiff’s  ongoing complaint – presumably due to some cutaneous nerve involvement.  Mr Brearley then thought the plaintiff’s impairment would persist for the foreseeable future.  He considered the plaintiff was fit for suitable work but not fit for work he was doing at the time of the injury.

169     On re-examination in April 2012, the plaintiff advised that he had constant low grade pain on the outer side of the sole of the foot between the fourth and fifth metatarsal made worse by putting pressure on the foot when walking and standing.  At times he had some pain in the right forefoot under the second metatarsal but the pain was quite intermittent.  The plaintiff was taking one Tramal, perhaps two or three times a week at night.  He could stand on tip toes but with some pain and difficulty but was unable to walk in that way. 

170     On examination, there was marked limitation of dorsiflexion of the left foot.  Plantar flexion was normal.  There was slight restriction of mid tarsal joint movements.  There was marked tenderness over the lateral side of the dorsum of the foot between the fourth and fifth metatarsals and that tenderness extended the whole length of the metatarsal space.

171     Mr Brearley diagnosed left sided plantar fasciitis.  He noted following surgery the plaintiff had had persistent pain resulting from lateral column overload on the left foot.  Mr Brearley thought the precise mechanism of production of the plaintiff’s pain was not clear, but it appeared to be certainly related to the plantar fasciitis and its release.  He noted there had been no alteration in the plaintiff's symptoms despite his recent weight increase from one hundred and ten kilos initially when he had the pain, to one hundred and thirty kilos now as a result of inactivity, although in Mr Brearley’s view that was clearly a minor contributing factor.

172     Mr Brearley noted the plaintiff had some low back pain and occasional pain in the right foot.  These were not primarily injured and they were secondary effects of the altered gait as a result of the left foot injury.

173     As a consequence of the lateral column overload, Mr Brearley thought the plaintiff was certainly restricted in regard to employment to a very large extent.  He was unable to do any labouring type work or work involving him standing on his feet for long periods of time or any significant lifting.  Mr Brearley thought that impairment was permanent.  He thought the plaintiff was not fit to carry out his pre-injury duties at all because that work involved considerable walking and standing and often walking on irregular terrain.

174     Mr Brearley considered the plaintiff had some capacity for suitable employment, noting he was driving buses now.  He thought the plaintiff was very restricted in all activities, being unable to walk for exercise or run and he could not play golf or swim.  He also could not do any significant home maintenance.

175     Mr Brearley thought the plaintiff would simply require physical treatment with regard to his feet, such as orthotics and rocker style sole shoes.  He considered no intervention or operative treatment was likely to be required in the foreseeable future.  He thought the plaintiff’s prognosis was not good and his condition would persist and there was no likelihood of any spontaneous improvement now or in the foreseeable future.

176     The plaintiff was examined by Dr Robyn Horsley on 12 January 2011. 

177     On examination, the plaintiff weighed one hundred and thirty five kilograms.  Examination of his lumbar spine revealed a mild loss of lumbar lordosis but no specific loss of range of movement.  Thigh circumference was sixty centimetres bilaterally.  Calf circumference was forty five centimetres on the right and forty two on the left.

178     On general palpation, there was discomfort over the metatarsal heads of the fourth and fifth metatarsals on the dorsum.  There was no discomfort on palpation over the plantar surface.  There was also a specific trigger point of the mid aspect of the medial arch of the left foot.

179     Dr Horsley found no evidence of complex regional pain syndrome.

180     Peripheral nervous system examination was normal.  The plaintiff had an absent ankle reflex both on the left and the right.  Straight leg raising was to eighty degrees bilaterally and slump test was to ninety degrees bilaterally.

181     Dr Horsley noted the plaintiff’s gait was mildly antalgic.  He had bilateral pes planus, more so on the left than the right.  He had difficulty walking on his toes, reproducing discomfort in the heel of the foot.  Dr Horsley thought the plaintiff presented with left plantar fasciitis that did not respond to conservative management and required surgery.  He also presented with ongoing disability related to lateral column pain, affecting the fourth and fifth metatarsals. 

182     In her view, the plaintiff had also developed a chronic Adjustment Disorder with depressed and anxious mood which appeared to have resolved considerably on her assessment.  She also thought he suffered from intermittent secondary mechanical back pain.

183     Given the duration of the plaintiff's symptoms, Dr Horsley thought it was likely they were going to persist.  In her view, further medical management was not specifically required.

184     Dr Horsley believed the events as described in the clinical presentation were consistent.  She thought work had been a significant contributing factor on a background of predisposition to pes planus.  She advised it would be in the plaintiff's best interests to pursue weight reduction and she thought he needed to be provided with orthotics.

185     Dr Horsley considered the following work restrictions should apply based on the plaintiff’s current functional tolerance – avoiding walking for greater than fifteen to twenty minutes without taking a rest break, avoiding dynamic standing for greater than forty five minutes without changing position and avoiding static standing for greater than fifteen to twenty minutes without changing posture. 

186     In her view, there were no specific sitting restrictions and the plaintiff’s driving tolerance was for a couple of hours with a rest break every one and a half to two hours.  Ideally she thought the plaintiff should be driving an automatic bus and he should avoid repetitive stair climbing, running and jumping.

187     Dr Horsley noted the plaintiff had appropriately relocated into his own business as a coach driver and would be best placed in an automatic but was coping with the manual bus.

188     Dr Horsley believed the plaintiff was permanently unfit for his previous work as a water treatment officer because of the walking over unstable and uneven surfaces to retrieve samples.  She also considered he was permanently unfit for his previous roles as a drainage technician and labourer.

189     Mr Kossmann examined the plaintiff in April 2012. 

190     Mr Kossmann diagnosed left plantar fasciitis with ongoing pain issues, back pain as a result of altered walking pattern, bilateral pes planus, pain over the lateral collateral ligament of the left knee and metatarsalgia fourth and fifth metatarsals on the left.

191     In Mr Kossmann’s opinion, the plaintiff may suffer from pain in his left foot for the rest of his life.  There had been no complete resolution of his injury.  He supported Dr Rice’s opinion the plaintiff should wear inlays as he was suffering from a congenital bilateral flat foot, and also take care to wear comfortable shoes.

192     Mr Kossmann thought the plaintiff was restricted in relation to employment or related activities.  He noted the plaintiff was not able to walk long distances or over uneven ground or uphill or downhill.  Furthermore, he had difficulties climbing ladders and going up and down stairs.

193     Mr Kossmann thought the plaintiff had no capacity to perform his pre injury duties as a water controller.  He thought that impairment was permanent.

194     Mr Kossmann considered the plaintiff had the capacity to work as a self employed bus driver three hours a day, five days a week.  He thought there was a possibility the plaintiff could extend his working hours to full time. 

195     In Mr Kossmann’s view, the plaintiff should be treated conservatively.  He did not think the plaintiff required further surgery and advised that the plaintiff would be in need of orthotics most likely for the rest of his life.

Claim Documentation

196     There was an injury form completed on 21 June 2007 which set out the plaintiff suffered injury to his left foot when he slipped and jarred it taking water samples at the reservoir, -“slipping on wet rocks jarred instep of left foot on rocks.”

197     The plaintiff’s initial claim for compensation set out an injury in June 2007 when he “slipped on wet rock and his foot landed on rock at the front of his heel instep”.  He was then working thirty eight hours a week at $20.38 an hour.  It was noted the plaintiff returned to work on 17 September 2007.

198     The plaintiff lodged a claim for impairment benefits in relation to his left foot, legs, right foot, back and psychiatric condition on 27 May 2009.

199     By letter dated 28 September 2010, CGU advised the plaintiff that his claim pursuant to s.98C had been accepted in relation to his left foot and psychiatric condition in relation to which he was awarded a lump sum of $12,934.00.

The Defendants’ Medical Evidence

200     When Mr Troy examined the plaintiff in November 2008, the plaintiff told him his foot was still painful on the sole and between the metatarsal heads.  It was painful on the lateral left calf and when he was walking, it was also painful in his back.  He was then using Panadol, Nurofen and some cold water and having physiotherapy weekly.

201     On examination, the plaintiff weighed one hundred and thirty five kilograms, up from one hundred and thirteen at the time of the surgery and one hundred and seven when he got married.  The plaintiff walked with no obvious limp.  He had flattening of the longitudinal and transverse arches.  He had normal movements of his toes.  He had pain between the metatarsal heads to the left third and fourth toes.  He had no abnormal sensation colouring such as cyanosis, sweating or hypersensitivity to touch, as one would see in a variant of CRPS.  He could take his weight on his heels, tiptoes and invert and evert the hind foot. 

202     Mr Troy noted the MRI scan of 29 July 2008 which showed metatarsal bursitis between the first and third web spaces and, to a lesser degree, the second.  It was reported there was no evidence of inter metatarsal fibrosis or tenosynovitis.

203     Mr Troy thought the plaintiff had plantar fasciitis to the left foot in the past.  He now continued to have pain which Mr Troy considered to be metatarsalgia (Morton’s neuroma) particular between the left fourth and fifth toes.  He noted the plaintiff appeared to have no relief of symptoms following the surgery.  Mr Troy noted the very nature of the plaintiff’s foot had flattening of the longitudinal and transverse arches which had not been property addressed by his treatment.  There continued to be deterioration of a pre existing injury, namely plantar fasciitis and the work component had not clinically resolved. 

204     Mr Troy thought treatment at that time with insoles was totally inadequate and they needed to be completely refashioned.  He thought the plaintiff should then not be on his feet for more than half an hour at a time and should not be expected to run up and down ladders or stairs for any particular length of time.  He thought part of his treatment would also be a considerable loss of some thirty kilograms in weight.  He thought the plaintiff should be able to work four hours a day, five days a week, noting he was doing office work and should increase to those hours.

205     On re-examination in April 2009, the plaintiff told Mr Troy that he still had pain in the middle of his left foot and the surgery had not helped him.  It was still painful to walk.  He was not taking any painkillers.  He had seen Mr Rice the week before, who advised him he could go back to four hours field work.

206     On examination, the plaintiff weighed one hundred and thirty five kilograms.  He stated there was tenderness over the metatarsal arches and the metacarpophalangeal joints of the left fourth and fifth toes and also tenderness on the flat and medial arches of the foot.  Flexion of the metatarsal heads produced no evidence of Morton’s neuroma.  The plaintiff had normal ankle movements.

207     The plaintiff continued to have pain in the medial posterior heel and anterior left foot.  He had plantar fasciitis and subsequent to treatment, he was continuing to experience symptoms of pain of a soft tissue nature.  Mr Troy thought the fact the plaintiff was grossly overweight and had flattening of the arches of both feet was contributing to the continuation of those symptoms, particularly his left foot. 

208     Mr Troy considered there was a soft tissue injury to a pre existing flattening of the arches.  He thought the incident had given the plaintiff the symptoms he described in the left which had not been resolved from cooperative management and surgery.  Mr Troy thought employment had been a contributing factor to the initial injury and the continuation of symptoms related to the anatomy of the foot, the fact the plaintiff was overweight and also that he not have adequate footwear.

209     Mr Troy thought the plaintiff could go out in the field for four hours a day and work in the office four hours a day.  He thought the plaintiff was fit for his pre injury employment but there was always the risk he would hurt himself no matter what he did.  He thought the plaintiff’s condition was one of chronic pain which would improve with improvements to his footwear, weight reduction and exercise programs.

210     Mr Troy was then provided with a list of duties and documents in terms of the suitability of the plaintiff returning to his pre injury employment without restriction.  He noted the plaintiff stated there was only one site he would not be able to walk up, as it was some four metres high, going up a vertical ladder.  Mr Troy thought the plaintiff was capable of pre injury work involving standing and walking up to eight hours a day, walking on uneven and rough ground, bending and squatting to take water samples, being placed in awkward situations for retrieval of water situations, lifting, climbing stairs and ladders and walking around gantries.  He thought that was all within the plaintiff’s capabilities, if he was so motivated. 

211     Noting details provided by the first defendant, Mr Troy commented the plaintiff may have some minor discomfort in his feet, but he reckoned that would not prevent him working if he so desired.  There was just the one restriction the plaintiff stated he would not be able to do, where he was required to go up a four metre high vertical ladder.

212     Professor Marshall examined the plaintiff in October 2009.  The plaintiff told him that right foot pain had developed between the second and third toes in the web and ball of his foot over the joint of the second toe.  He had pain in the outer side of his left foot extending to the ball of the foot and over the instep.  The pain in the front of the heel was improved after surgery but he had also developed tightness in the calf. 

213     On examination, the plaintiff weighed one hundred and forty kilograms.  Gait was antalgic with a slight limp favouring the left leg.  The plaintiff had a full range of thoraco lumbar spinal movements.  He had flattening of the arches on standing on both feet.  In the left foot, he had evidence of metatarsalgia with pain in the forefoot over the lateral two toes over the two metatarsal heads and web spaces.  On the right side he had sharply localised discomfort and tenderness over the second toe metatarsal head and the web between the second and third toes. 

214     Neurological examination showed no sensory or motor abnormality.

215     Professor Marshall diagnosed plantar fasciitis with left heel pain – endoscopic release now substantially resolved, persisting significant foot pain left and right, left foot metatarsalgia affecting the two outer toes, right foot metatarsalgia second toe, and overweight status.  He thought the prognosis was stable.

216     Professor Marshall would accept the plaintiff sustained a work strain injury as described, the effects of which continued to contribute to his condition and symptoms.  Professor Marshall thought the plaintiff did not have a capacity for pre injury work and that was likely to be permanent and he had a capacity for lighter alternative duties avoiding prolonged standing.  No non work related factors apart from the plaintiff’s overweight status were apparent.  Professor Marshall thought there was no evidence of functional overlay or over exaggeration.

217     Professor Marshall considered continuing physiotherapy was appropriate for another three months and a gymnasium and pool membership may also facilitate self management strategies.

218     Professor Marshall provided a supplementary report in November 2009.  He advised he thought the plaintiff’s low back pain was significantly contributed to by his overweight status and would regard his continuing back pain as being related to constitutional and age related factors rather than persisting work effects.  He noted Dr Fish’s report and his diagnosis of Morton’s neuroma was consistent with his findings.  Professor Marshall agreed on balance that condition of right foot metatarsalgia was more likely to be related to constitutional factors rather than the effects of his left foot condition.

219     Professor Marshall accepted that the back and right foot conditions were not compensable.

220     Dr Fish, consultant occupational and environmental physician, examined the plaintiff on 12 August 2009.  Dr Fish was provided with the CT scan of the left foot dated 28 July 2008. 

221     The plaintiff told him he still had pain between the fourth and fifth metatarsal spaces of the left foot.  He had lesser pain in the heel.  There was also accompanying numbness and dysesthesia over the fourth and fifth toes of the left foot.  The plaintiff felt his whole foot was as if it was burning at times.

222     The plaintiff was then taking Lexapro and using a TENS machine.

223     Examination of the right foot revealed tenderness over the second metatarsal head and a full range of normal motion in the foot.  In the left foot there was tenderness between the fourth and fifth metatarsal heads and also over the fifth metatarsal head.  There was mild dysesthesia in the distribution of the medial plantar nerve. 

224     There was a full range of normal motion in both ankles and great toes with normal extension of the lesser toes.  On walking, the plaintiff had mild pes planus but the arch reconstituted with rotation and toe standing.

225     There was mild wasting of the left calf of one and a half centimetres when compared to the right.  On the left, there was mild tenderness over the medial calcaneum consistent with plantar fasciitis.

226     Examination of the lower back revealed no tenderness and a good range of normal motion. 

227     In Dr Fish’s view the plaintiff had developed initial left plantar fasciitis which he had surgically treated following which there had been some reasonable resolution.  He had also developed secondary metatarsalgia of the fourth and fifth toes and there was a minor metatarsalgia of the second toe on the right foot. 

228     In conjunction with a limp, the plaintiff had developed some tightness and subsequent wasting of the left calf.  He developed some low back pain but there was no clinical evidence on examination.

229     In addition to left foot plantar fasciitis and metatarsalgia, Dr Fish considered the plaintiff had developed metatarsalgia of the right second toe but that was not due to the injury but secondary to Morton’s neuroma, being a constitutional condition.

230     Dr Fish thought the plaintiff’s employment was a significant contributing factor to the metatarsalgia of the left foot involving the fourth and fifth toes.  He thought the plaintiff's condition had stabilised.

231     Dr Gary Davison, occupational physician, examined the plaintiff in July 2010.

232     The plaintiff was then working two days a week in a charter bus service.  The plaintiff described stabbing pain present on weight bearing and localised over the dorsum of the left foot between the fourth and fifth distal metatarsals.  At other times he described a burning pain affecting the whole of his left foot together with soreness in the left calf.  He also reported pain in the right foot adjacent to the distal head of the second metatarsal and more recently he had experienced lower back pain, worse with prolonged standing.

233     On examination, no pain or illness behaviour was observed.  The plaintiff weighed one hundred and thirty kilograms.  On examination, there was evidence of marked bilateral pes planus and in-rolling of both ankles.  The left calf was two centimetres less in circumference than the right.  On palpation, there was complaint of pain in the left foot when compressing the metatarsal head.  That pain was located between the fourth and fifth metatarsal heads and in between the first and second metatarsal heads.  There was also slight tenderness noted over the sole of the foot just distal to the calcaneal attachment of the plantar fascia which was medially situated.  There was unrestricted movement of the left ankle.  There was tenderness on compression of the metatarsal heads on the right foot, located approximately between the first and second metatarsal heads. 

234     Dr Davison concluded the plaintiff presented with persisting left foot pain with some mild residual pain associated with the original condition.  There was evidence of metatarsalgia between the first and second toes and the fourth and fifth toes.  There was also evidence of that condition on the right side.  Dr Davison noted the presence of bilateral pes planus and in-rolling of both ankles and also the fact the worker was morbidly obese.

235     Dr Davison reported the original condition had been treated surgically and there were very mild persisting symptoms associated with it.  He thought the plaintiff’s other foot conditions were constitutionally based and unrelated to the original injury.  In his view, those conditions were caused by a constitutional predilection to pes planus with marked aggravation by morbid obesity.  In Dr Davison’s clinical opinion, the plaintiff’s employment was not a cause in the matter of the bilateral metatarsalgia.

236     Dr Davison thought the plaintiff could resume pre injuries and hours of work in regard to the original condition.  The metatarsalgia problem, in his view, would restrict the plaintiff’s standing and walking capacity and he suspected it would prevent the plaintiff from returning to those duties.  He thought the plaintiff should avoid prolonged standing or excessive walking and heavy manual handling greater than fifteen kilograms.  He considered the plaintiff was capable of doing his bus duties full time. 

237     Dr Davison could not find any evidence of a Morton’s neuroma on examination.  However, such a condition could not be excluded.  In Dr Davison’s view, the jobs of bus driver, tourism officer, credit officer, delivery driver and customer service officer were all suitable employment options.  He did not consider the plaintiff required any treatment for the original condition, but needed to lose a substantial amount of weight, noting he was forty five  kilograms overweight.

238     Dr Davison re examined the plaintiff on 3 June 2011, at which time the plaintiff told him he was pretty much the same as on the previous examination.  The plaintiff’s weight was unaltered. 

239     The marked bilateral pes planus was again noted, with in-rolling of both ankles.  The left calf was 1.5 centimetres less than the right.  There was mild restriction in active movement of the left ankle.  There was localised tenderness on palpation between the distal heads of the fourth and fifth metatarsals as before and also between the first and second.  There was slight tenderness in the mid portion of the medial aspect of the longitudinal arch and there was some slight tenderness in the right foot between the heads of the first and second metatarsals.

240     Dr Davison noted the left foot ultrasound of April 2011 and the x-ray of the same date.  He remained of the opinion, the plaintiff’s ongoing problems were related to constitutionally based conditions, unrelated to the original injury, and noted indeed the ultrasound indicated evidence of a minor bursal inflammation in the left foot. 

241     Dr Davison thought the plaintiff could resume pre injury duties and hours of work, purely in terms of the original injury.  However the other conditions causing bilateral foot pain continued to restrict his standing and walking capacities and would prevent the plaintiff from returning to pre injury duties.  He did not consider the plaintiff required any ongoing treatment for the original condition and thought he needed to lose a substantial amount of weight, as this would benefit his bilateral foot symptoms.  Dr Davison advised it would be appropriate to obtain an opinion from a specialist foot surgeon.

Certificates

242     There was a WorkCover certificate of 14 September 2007 following examination on that date by Dr Slabbert, describing an injured left heel when the plaintiff slipped on a rock and diagnosis of left plantar fasciitis.  The plaintiff  certified unfit for duties on 14 September.

Investigations

243     Mr Rice organised a bone scan of the plaintiff’s ankles and feet on 28 October 2009.  It was reported there was minor increase in tracer activity related to the inferior aspect of the posterior process of the left calcaneus consistent with minor plantar fasciitis.  Findings elsewhere on both sides were normal.

244     There was a left foot X-ray organised by Dr Renfrey on 12 April 2011.  It was reported there was no bone or joint abnormality demonstrated and no foreign body or evidence of recent trauma.  Note was made of spurring of the neck of the talus attributed to past ligamentous injury.

245     There was a left foot ultrasound organised on 12 April 2011 by Dr Renfrey following which it was reported there was minor bursal inflammation at the site of localised tenderness.

Vocational Evidence

246     Adam Larsen from Work Able Consulting carried out a vocational assessment  on 4 May 2009.

247     Identified suitable employment at that time in order of priority was - bus driver, tourism officer, credit officer, delivery driver and customer service officer.

248     When interviewed for that assessment, the plaintiff advised he had been told there was nothing more that could be done and there would be minimal improvement in his condition.  Despite that, the plaintiff stated he was optimistic about being able to return to pre injury work, although he admitted he would need to accept he would experience some persisting discomfort in his foot on an ongoing basis.  By phone on 4 May 2009, the plaintiff advised that he felt that his employer was impeding his return to work and was refusing to provide him with suitable duties.

249     There was a work site assessment on 13 May 2010 in terms of the plaintiff’s new business of bus driving.  The plaintiff was then currently certified fit for modified duties and his treating doctor was supportive of him undertaking the new role, although he had advised the plaintiff to avoid constant walking, standing and climbing ladders.

250     There was an NES refresher assessment report and plan in May 2010, at which time Dr Joyce was providing certificates noting chronic pain left foot.  The plaintiff was not then taking any medication.  He was certified as being fit for alternate duties such as bus driving.

Surveillance

251     There was fourteen minutes and fifty eight seconds of film taken on 25 May 2011.  On 9 and 10 February 2012, there was thirty three minutes and forty five seconds of film and on 27 and 28 April 2012, thirteen minutes and twenty seconds of film. 

Overview

252     I accept that the plaintiff suffered a compensable injury to his left foot in the incident on the said date.

253     I am mindful of the fact that the second defendant accepted liability for the payment of weekly payments and medical expenses.  This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

254     The plaintiff’s claim for pursuant to Section 98C was also accepted.

255     There is no dispute that the plaintiff suffered plantar fasciitis (“the original condition”) in his left foot as a result of the incident. 

256     Further, it was conceded by counsel for the defendants that employment is a significant contributing factor to the plaintiff’s present condition in that he seemed to have had pain since the surgery.

257     Whilst liability was accepted for the original condition, the plaintiff’s present situation is one where that condition has resolved to some extent following surgery, as the plaintiff acknowledged, and his ongoing problems thereafter have been of later column overload, burning in the heel, problems with the fourth and fifth metatarsals and consequent altered gait.

258     Mr Rice, the only specialist foot surgeon who has provided an opinion in this case, considered a consequence of the surgery was the lateral column overload causing pain on the outside of the plaintiff’s left foot, whereas the previous pain was located in the area of the heel.  Mr Brearley shared this view.

259     Whilst occupational physicians Dr Fish and Dr Davison considered the plaintiff’s present condition is largely constitutionally based, Mr Rice, the only specialist in this field who has opined in this case did not share this view.

260     The issue for determination is whether the consequences of the impairment of the plaintiff’s left foot are serious and permanent.  Whilst it was conceded the consequences to the plaintiff may be significant or marked, the defendants denied such consequences met the statutory test of seriousness.

261     In terms of the plaintiff’s evidence, as Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

262     I found the plaintiff to be a truthful and credible witness who did not overstate the level of his pain and restriction. 

263     In my view, there was nothing shown on the film which altered my view in this regard.  I reject the submission by counsel for the defendants that there was a marked contrast between the plaintiff’s affidavit evidence and what was shown on film.

264     I accept, as the plaintiff explained, that whilst talking standing on the footpath in May 2011, he did take the weight off his left leg, turning it over slightly, and shifted his weight to his right foot.  Further, I accept that whilst he was cleaning under the bus earlier this year, kneeling on his right leg, he had his left foot extended totally behind him and was not putting any weight on it, although when he stood from that kneeling position, he did so on his left foot.  Further, at various times in the films, the plaintiff was seen walking with a slight limp.

265     Looking at the films as a whole, I am not satisfied there was any significant continuous walking or any activity shown which was inconsistent with the plaintiff’s evidence as to his level of pain and restriction.

266     In terms of other evidence as to credit, significantly, there was no comment by any doctor of any the presence of any functional overlay, abnormal illness behaviour, exaggeration or inconsistencies on examination.

267     Further, the plaintiff’s evidence was supported by an affidavit from his wife Cassandra.  Albeit somewhat outdated, referring to the situation whilst she and the plaintiff lived at Penshurst, her evidence confirmed the plaintiff’s level of pain and restriction and was not challenged. 

268     I am satisfied, as was conceded by counsel for the defendants, that the plaintiff now has some pain on the side of his left foot.  In addition to this pain, I accept the plaintiff also suffers pain on his 4th and 5th metatarsals and also tightness in his left calf, an area where there have been a number of findings of wasting on examination.

269     I accept that since the surgery, the plaintiff has experienced a burning type pain in the side of his left foot, the nature of which has been described by Mr Rice as paresthesia and dysesthesia in the lateral plantar nerve of the left foot and neuropathic pain by Dr Blombery.

270     Because of his left foot pain, the plaintiff cannot stand for extended periods without having to shift his weight onto his right foot.  He is unable to walk over uneven ground and he simply cannot run.

271     Due to his altered gait, the plaintiff also experiences low back and right foot pain.  As Mr Rice described, the altered gait pattern and lack of activity  predispose the plaintiff to a worsening of lower back pain.  Further, in his view, the left foot problem had exacerbated pain in the right foot with overload of the metatarsals particularly the second.

272     In Dr Joyce’s view, the plaintiff’s lower back and right foot pain were most likely due to overuse resulting from his abnormal gait.  As Mr Brearley described, these additional problems were secondary effects of the altered gait as a result of the foot injury.

273     The plaintiff has been compliant with all treatment regimes suggested to him by his treaters.  However, his foot problem has not been helped to any significant extent by extensive treatment including surgery and multiple injections.

274     There is no further treatment available to the plaintiff according to Mr Rice, save for the use of orthotics, which to date the plaintiff has not found particularly helpful. 

275     Whilst his requirement for medication is not great, the plaintiff still takes over the counter medication on a regular basis and requires Tramal for more severe pain.  He also required another course of physiotherapy to his left leg earlier this year having last received such treatment in 2009 whilst still in Victoria.

276     As he is still a relatively young man aged forty four, the plaintiff will experience pain and restriction due to his left foot condition for many years, having to cope with this problem whilst bringing up his daughters who are aged only three and five. 

277     In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

278     The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time. 

279     Whilst certified fit to return to four hours office work and four hours field work in the first half of 2009, the plaintiff was never given an opportunity to see if he could work those hours as his employment was terminated.  He has never been certified fit for unrestricted normal duties.

280     I accept that the plaintiff does not have an unrestricted capacity to walk and that he is not fit for his pre incident job with the first defendant or similar employment.  He can longer stand, climb or walk without significant pain.

281     The preponderance of medical opinion is that the plaintiff no longer has the capacity for his pre injury or similar employment.

282     The plaintiff is able to cope with his present job as it is one of limited hours, sitting and not requiring the use of his foot to drive the bus.  He works only two short shifts of just over an hour on week days where he is not required to do any lifting with the school children carrying their own bags on and off the bus.

283     The plaintiff does a small amount of charter work in which he admitted he does some lifting of luggage but could not do that on an extended basis. 

284     Whilst he has a history of bus driving before working for the first defendant, I am satisfied that the plaintiff no longer has an unrestricted capacity for this work or any other job requiring him to be on his feet all day and therefore his employment options are now limited. 

285     Although the plaintiff could not really be described as a sportsman before the incident, he now cannot do the most basic activities such as running or walking without pain and limitation.  His inability to engage in any significant physical activity is a particular problem for this relatively young plaintiff with two small children.  Further, the plaintiff is unable to swim because he cannot bend his foot backwards and forwards.

286     Whilst it has been suggested to the plaintiff that weight loss would improve his condition, lessening the pressure on his foot, his attempts at exercise and dieting have not been particularly successful to date.

287     Due to his foot condition, the plaintiff is restricted in the amount of home maintenance and gardening he can do.  Prior to the incident, he was very active in these areas, particularly as a home renovator, having installed a new kitchen at his Penshurst home.  Whilst he said he could still do some jobs in this regard, he would do so slowly and not to the same capacity as before he was injured.

288     The plaintiff continues to have significant discomfort and problems sleeping.

289     As Maxwell P said in Haden Engineering (supra) at paragraph 45:

“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.  …  [The plaintiff] often experiences multiple painful awakenings in the course of a single night.  As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”

290     Further, the plaintiff’s sexual relationship is inhibited by his experience of pain.

291     As the plaintiff’s condition has persisted, despite surgery, for nearly five years without any significant improvement, I am satisfied that the plaintiff’s left foot impairment is permanent.

292     Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury to his left foot.

293     Accordingly, I grant the plaintiff leave to bring proceedings for pain and suffering in relation to the injury suffered to his left foot, which occurred in the incident in or about June 2007.

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