Rusic v Acecrete Victoria Pty Ltd
[2025] VCC 442
•22 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-04394
| HAMISH AUSTIN RUSIC | Plaintiff |
| v | |
| ACECRETE VICTORIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 March 2025 | |
DATE OF JUDGMENT: | 22 May 2025 | |
CASE MAY BE CITED AS: | Rusic v Acecrete Victoria Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 442 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – right lower limb impairment – pain and suffering only – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Reyes v Tusk Group Pty Ltd [2025] VSCA 20
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Shine Lawyers Pty Ltd |
| For the Defendant | Ms L Burke | IDP Lawyers Pty Ltd |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff on 12 March 2021 (“the said date”) while working for the defendant, Acecrete Victoria Pty Ltd.
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the right lower limb/right ankle.
5Apart from being a “serious injury”, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(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”.
9Section 325(2)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I 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.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Haden Engineering Pty Ltd v McKinnon[2] and Ellis Management Servies Pty Ltd v Taylor[3] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] [2010] VSCA 69
[3] [2013] VSCA 326 (“Ellis Management”)
12Further, in Stijepic v One Force Group Aust Pty Ltd,[4] the Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. All things being equal, impairment consequences which a man would have to put up with for forty years might well be judged more serious than the same consequences which he may have to put up with for a much shorter period of time.
[4] [2009] VSCA 181 (“Stijepic”) at paragraph [43]
13The plaintiff affirmed two affidavits and was cross-examined. He also relied on an affidavit affirmed by his mother, Flora Rusic, on 30 January 2025. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
14Range and the plaintiff’s reliability were in issue.[5] The defendant’s case was the plaintiff does not have a serious injury; his right ankle strain is resolved; he has made a near or full recovery; he has stopped all treatment; he has been in full-time work for about three years; he normally works fifty hours a week and one week, he worked over sixty hours. There is not much, if anything, by way of restrictions outside of work. Given the level the plaintiff is working, there cannot be much by way of disabling effects of pain given his significant retained capacity.[6]
[5] Transcript (“T”) 5
[6] T57
15The main focus of the plaintiff’s application was his loss of career as a concreter and loss of the ability to do unrestricted physical work.[7] He is still a young man who was previously energetic and fit, who had lost his ability to engage in a number of sporting and recreational activities because of his right ankle injury.[8]
[7] T93
[8] T92
Plaintiff’s evidence
16The plaintiff is currently aged twenty-eight, having been born in July 1996. He is single and he lives with his mother.
17He attended school until Year 12, before commencing work at Plaster Products in about 2014 as a factory hand. The following year, he obtained a forklift licence for this job. In 2016, he started work with the defendant on a full-time basis. There was then no concreting apprenticeship. He believed there might be one these days.[9]
[9] T48
Left ankle
18In about 2015, he suffered a left ankle fracture. He returned to work after seeking treatment and continued to have some issues with that ankle thereafter.
19In early 2020, he had a further x-ray and an MRI scan due to ongoing left ankle pain and instability. He recalls having some further physiotherapy which helped to resolve this complaint. Despite the issues with his left ankle, he continued working with the defendant performing his normal hours and duties without any difficulty.
The incident
20On about 12 March 2021, the plaintiff suffered injury while working for the defendant at a Moonee Ponds construction site. After stripping pieces of timber from a recently poured concrete slab, he attempted to step down from the slab onto the ground whilst holding several pieces of timber when his right ankle gave way. He immediately felt a sharp pain (“the incident”).
21He reported the injury, before hobbling to the car, where he remained until the end of the day.
22He was unable to see his general practitioner (“GP”) at Broadford until about three days later. He had an ultrasound of his right ankle/hindfoot the same day. He was also advised to remain off his right foot. After reviewing the scan, his GP referred him to orthopaedic surgeon, Mr David Shepherd, for review.
23The plaintiff subsequently lodged a WorkCover claim which was accepted. Thereafter, the defendant terminated his employment.
24On about 5 May 2021, the plaintiff saw Mr Shepherd, who referred him for an MRI scan of his right ankle. He was also referred to Complete Care Medical Centre, where he commenced physiotherapy on 6 May 2021.
25Following the May 2021 MRI scan, the plaintiff returned to Mr Shepherd, who recommended right ankle surgery. Physiotherapy continued.
26On about 19 June 2021, Mr Shepherd operated on the plaintiff’s right ankle, removing loose bones and stabilising the joint (“the surgery”).
27Following the surgery, the plaintiff continued to suffer ankle discomfort, and returned to see Mr Shepherd for reviews periodically for a couple of months. After a few sessions, he was discharged from Mr Shepherd’s care (July 2021) and advised to continue physiotherapy to strengthen his right lower leg and ankle. He last had physiotherapy in late 2023.[10]
[10] Complete Care Physio report dated 30 November 2024
28The plaintiff agreed that he had seen his GP ten times since March 2022 and on those visits, did not mention any ankle issues to him – “There was not much else he could do for it.”[11]
[11] T31
29The plaintiff is not currently receiving any treatment for his right ankle. He is not taking any painkilling medication.[12]
[12] T29
Job aspirations
30Prior to the right ankle injury, the plaintiff had hoped to continue working as a concreter into the future. He enjoyed the work and was paid well for his level of experience. He had hoped to progress through the industry as he got older.
31Although he had an interest in outdoor well-paid jobs, pre injury, he was pretty set on concreting; it was his passion and that was where he was looking to stay.[13]
[13] T9
32However, his injury prevents him from being able to progress any further as a concreter. He is no longer able to pour slabs and has been prevented from further developing his skills as he is now not able to learn to screed – a skill he was working towards when he was injured. With the appropriate retraining, he would be able to use a screed to level out poured concrete.[14] If he were to be regarded as a full-time concreter, he would need to be able to screed. He is unsure that his ankle would be able to withstand the requisite training that is required to develop that skill.[15]
[14] T48
[15] T49
33The role of a concreter is now somewhat unbearable due to the injury. He is unable to walk around on the steel mesh all day. Jumping in and out of deep trenches and also carrying timber all day is not ideal for his ankle. “As a pure concreter, (he) can’t do like, slabs any more.”[16]
[16] T49
34The physical and rigorous nature of the job as a concreter in situations where there is rugged terrain, gives him the feeling that his ankle could just slip out at any point.[17]
[17] T50
35His passion for concreting stems from the time he arrives at a jobsite when there was nothing there, to then building the foundation from the ground up for dreams to be built on. This is no longer a possibility for him. He is prevented from working with slabs due to the instability in his ankle as it fatigues easily. He is also unable to tolerate climbing in and out of big trenches as well as moving reo into the slabs.[18]
[18] T28
36In addition to problems working on uneven ground, concreting involves rigorous work such as heavy lifting over rough terrain. These job requirements, together with the feeling of instability in his right ankle, have prevented him from returning to concreting.[19] He is adamant he could not try to return to concreting in the future.[20]
[19] T39
[20] T42
37He can repair concrete driveways. If he had some concrete with him and the requisite machines, he could pour some concrete, but he would not be able to screed it.[21] The inability to screed is a result of not having the required skillset. It is not due to his injury. If he had the training he could do it but he did not know whether his ankle would be able to withstand doing it. [22]
[21] T47
[22] T48
Pain
38Since suffering injury, he has continued to suffer from pain in his right ankle. He is in pain most of the day and finds his pain worsens with activity. It is at its worst after the day’s work, normally in the afternoon and into the evening.[23]
[23] First affidavit affirmed 4 April 2024 (“first affidavit”)
39His pain is located on the outside of his ankle and down at the bottom of his foot. Generally, the pain is worse in the cooler months. When the pain comes on, he experiences feelings of tightness and fatigue in his right foot.
40He also suffers from swelling in his right foot after a long day on his feet, and his ankle generally feels unstable. He does not trust his ankle and has to be careful when he walks. Wearing work boots also restricts his ankle and it increases the pressure, which in turn causes further pain.
41Although he experiences constant pain, he avoids taking medication and will only use ointments like Deep Heat a few times a week. He tries to get on with it and not let it bother him.[24]
[24] Second affidavit affirmed 25 February 2025 (“second affidavit”)
42In addition to the pain, each morning the ankle joint is particularly stiff and sore and then it warms up a bit during the day. By the afternoon, he is normally suffering severe and sharp pain in his ankle.[25]
[25] Second affidavit
43He has found that he has lost mobility generally as his ankle is stiff, his knee is stiff, as is his hip. Because of his ankle, he has trouble squatting, and finds that if he is on his feet all day or walks on uneven surfaces, his ankle pain worsens.
44He agreed he told Dr Altaf in December 2024 that there were minimal reductions in his range of ankle movement. He felt like his ankle was not moving with the full range of movement – “It is more of a sharp pain that shoots up through the ankle, like on the inside to the outside of the ankle. A bit of discomfort.”[26]
[26] T40
45He confirmed he is generally pain free during the day. He then went on to say that he is not always pain free. He does experience discomfort and fatigue towards the end of the day with some mild pain, however, that pain is “bearable”.[27]
[27] T32
46He accepted that what he experiences is mild pain and discomfort. The mild discomfort generally only occurs in the right foot. After he rests at night, the pain “just subsides to a lesser degree”. As Dr Altaf recorded, his symptoms are of mild discomfort, typically easing by the next morning.[28]
[28] T33
Hobbies
47Prior to suffering the injury, he loved riding motorbikes. This was his passion. His problem since the incident is with stability when stopping the bike, which requires him to put his right foot on the ground. He has great difficulty maintaining stability when trying to balance the bike with his right leg.[29]
[29] T8
48He has not ridden his dirt bike since the incident. He is afraid he might hurt his ankle again. He had tried to jump on the bike once. He had been able to put his leg over the bike but has not ridden it. He would not attempt riding it.[30]
[30] T35
49Prior to the incident, he was riding his dirt bike every weekend or second weekend whenever he had spare time. His left ankle did not stop him riding his bike.[31] He disagreed with Mr Shepherd’s view he would have no difficulty riding a motorbike.[32]
[31] T37
[32] T38
50Pre injury, he also loved to box for fitness however, he now finds that the repetitive movement and footwork is too difficult for him because of his right ankle injury.
51He tries to maintain his fitness by working out in the garage, but he is limited in what he can do. He no longer goes on runs and he avoids high impact movements. From time to time, he will skip for a few minutes but otherwise he tries to stay off his feet.
52Whilst he is still living at home with his mum,[33] he does not have to worry about many chores around the house; however, he fears that this will become a problem for him as he gets older, as he now struggles with heavy lifting tasks because of his ankle pain and instability.
[33] T14
53Due to his difficulties on uneven surfaces, he now avoids going on hikes or to the beach as these activities cause his ankle pain to flare. He is anxious about the future and the condition of his ankle. He wishes this injury had never happened to him.
54While he deposed he spends more time at home and less time socialising, his social life has somewhat returned to normal, albeit he is unable to ride motorbikes with his friends.[34]
[34] T42
55When he sees his young nephews, he avoids playing with them due to his ankle injury. He fears that if he has his own kids, he will not be able to engage with them the way other fathers do due to his injury.[35]
[35] Second affidavit
Work post injury
56After his employment with the defendant was terminated in about May 2021, he recalls dropping off food to his older brother at his concreting business a few times. His brother had asked him to assist on a few occasions, prior to the surgery, when he was short on workers.
57Since the surgery, the plaintiff has further assisted his brother on occasion when asked, although it would only be a few times per year. He assists where he can.
58He does not recall being paid by his brother. He assisted his brother with the tasks that he could manage given his injury.[36] This would not even constitute work. He was “just floating around and handing him the odd tools and that”.[37]
[36] T20
[37] T21
59The plaintiff was photographed in May 2021 at a Fairfield construction site run by his brother. He was shown holding up some poly so the concrete “does not below out”.[38] He accepted he was doing a bit more at the site than he had previously told the Court. “Just that day”, he was hands-on at the site. He did as much as he could as one of the normal labourers but he was “handicapping”.[39]
[38] T23
[39] T25
60In about late 2021, he commenced casual work with Mandalay Golf Club as a gardener.[40] He started with a few days per week before commencing full-time hours.
[40] T10
61He was required to assist with the maintenance of the golf course. His duties were primarily to mow the lawns and rake the bunkers. He was on his feet for a large portion of the day which was broken up by his time spent on the various machinery.[41]
[41] T11
62After leaving Mandalay Golf Club, he then secured employment with Tahbilk Winery from late 2022/early 2023 in a similar role while he waited for an employment opportunity in an industry he was interested in.
63Throughout 2022 and into 2023, he continued with physiotherapy treatment. Whilst working as a gardener, he found work to be challenging and unenjoyable. During 2022, he obtained a truck driving licence. In about late 2023, he secured employment with Newnham Earthmoving on a full-time basis. The work was on new estate jobs near Broadford and involved anything to do with earthmoving.[42]
[42] T14
64He drove heavy machinery including trucks and excavators and performed some manual labouring roles.[43] The work would involve sometimes getting into a trench and placing electrical conduits in the right position. He was also doing some concreting work cutting kerb using a demo saw. Once it had been cut, he jackhammered the concrete and put the smaller pieces into a bucket. He would use the jackhammer for 20-30 minutes, depending on the amount of concrete to be cut. Some days he would be on his feet all day but predominantly he was on the backhoe.[44]
[43] T13
[44] T19-20
65He continued to work as a “civil labourer” with Newnham Earthmoving until late July/early August 2024 when his employment was terminated following a dispute regarding an incident involving the dry cutting of concrete.[45]
[45] T13
66From August 2024, he has been employed by Reinforced Concrete Pipes Australia on a full-time basis in production and operations at their warehouse. It is a light role and suitable for him given his ongoing right ankle pain and persistent discomfort. The ground in the warehouse is flat and stable. He is on his feet fifty per cent of the time, with the balance generally driving a forklift inside the warehouse.
67His current job with Reinforced Concreting Pipes is not as a concreter as Dr Altaf reported. His job is not concreting, it is production operating.[46] Day to day, he is required to move pipes with a forklift onto a table in order to clean them. He cleans the pipes with a sander, standing for about 30 seconds, then the pipes get taken to be put in a stack to be loaded on a truck. He uses a forklift to lift heavy plates. He is now not doing any concreting on that job.[47]
[46] T26
[47] T27
68Prior to undertaking those duties with his current employer, he had to fill culvert moulds then trowel them off. Again, this, too, is not considered to be concreting. It could somewhat be regarded as concreting; however, he would not call it concreting. It is concreting to a degree, but what he considers to be concreting is the pouring of slabs and doing footpaths, which are regarded as forms of decorative concrete. He calls concreting pouring slabs and dealing with concrete all day.[48]
[48] T28
69Generally, he now works about fifty hours a week – five days of ten hours, including two hours’ overtime. Working more hours, “it starts to get a bit strenuous”.[49]
[49] T9
70He also was able to work about fifty hours a week in his earthmoving job. Even if he did not have any issue with his right ankle, he would be tired after working these hours.[50]
[50] T45
71For the pay period 6 to 12 November 2024, he worked about sixty-one hours.[51]
[51] T44
Plaintiff’s Taxation Return Summary
Financial Year Payee Gross Amount 2018 Defendant $66,729.00 2019 Defendant $69,769.00 2020 Defendant $58,670.00 2021 Defendant $44,393.00 2022 Defendant
Victorian WorkCover Authority
Avid Sports (Mandalay) Pty Ltd
Total
$25,893.00
$8,587.00
$9,897.00
$44,377.00
2023
Victorian WorkCover Authority
Tahbilk Proprietary Limited
Tahbilk Proprietary Limited
Avid Sports (Mandalay) Pty Ltd
Total
$3,154.00
$5,486.00
$3,410.00
$47,315.00
$59,365.00
2024
Newnham Earthmoving Pty Ltd
Tahbilk Proprietary Limited
Total
$64,466.00
$5,320.00
$69,786.00
Lay evidence
72The plaintiff’s mother, Flora Rusic, affirmed an affidavit on 30 January 2025.
73Prior to the incident, the plaintiff was energetic, active and fit. He was always coming and going from home, whether it was to meet up with mates or go to the gym.
74He often told her that he loved his job and that he wanted to have his own concreting business in the future.
75He is able to help out around the house with a few tasks here and there, but he is limited in what he is able to achieve. She does most of the requisite chores as it often appears that he struggles enough working full time. She still asks him to do the lawn but she knows that he still struggles with this task.
76Since the incident, she has observed a noticeable change in his personality. He seemed to struggle after the surgery and whilst undergoing rehabilitation. There were stages where she could not recognise him; he seemed flat and sad.
77After he returned to work, there was a noticeable improvement in him; however, he still encountered difficulties with his right ankle. He would still come in after work some days and complain of right ankle pain.
78She saw him walking around with a limp and often, after work, having his right foot elevated. He had gone through several work boots over the past few years as he has said that a lot of pairs cause his right ankle pain to worsen. At times, she has had to purchase the new pairs as he could not afford them.
79It is difficult watching the plaintiff struggle with his right ankle injury.
Plaintiff’s medical evidence
Broadford Doctors
80The plaintiff’s solicitors have been unable to obtain a report from Dr Nikdoost, the plaintiff’s GP, having been advised that the GP no longer works at this clinic.
Complete Care Physiotherapy, Mr Al Talib
81The plaintiff commenced physiotherapy in May 2021, on referral from his GP.
82The plaintiff was diagnosed with a high-grade ATFL tear, leading to a lateral ligament reconstruction in March 2021.
83When the plaintiff last attended in July 2023, he reported no pain in his right ankle, but described it as feeling unsteady and unstable.
84On discharge, the plaintiff did not have capacity to perform his pre-injury duties consistently due to physical limitations. He was suited for modified duties that avoid repetitive crouching, kneeling, climbing and prolonged standing/walking- aligning with his current role as a greenkeeper. Work as a forklift operator was also suitable.
85The plaintiff was fit for full-time work without additional strain inducing duties.
Mr David Shepherd, orthopaedic surgeon
86He first saw the plaintiff on 5 May 2021 on referral from Dr Nikdoost. He then sent him for an MRI scan to exclude cartilage defect, and recommended physiotherapy.
87On 12 May 2021, he discussed the MRI scan findings with the plaintiff – intact cartilage but a loose bony fragment at the distal fibula that was in the lateral gutter. He diagnosed a right ankle lateral talar osteochondral defect and lateral ligament sprain. He recommended arthroscopy, removal of the fragment and subsequent ligament stabilisation.
88The plaintiff underwent the surgery on 19 June 2021.
89When seen on 27 July 2021, the plaintiff had a good prognosis but in general his work as a concreter and placing heavy demands on an ankle that has had a cartilage injury could well place him at risk of slowly developing degenerative changes and it would be reasonable to explore less high impact work options in the future. The work would need to be of a more light impact but with no restrictions on activity, apart from heavy repetitive loading, heavy lifting of objects or heavy impact.
90Mr Shepherd thought the plaintiff’s condition was very good. He had made a good recovery, with indication of a full return to function of the ankle. As at the end of July, the plaintiff’s prognosis was very good. He had a stable ankle with features of cartilage regrowth.
91He did recommend, in the setting of an injury to adult cartilage, despite good evidence that the plaintiff had stabilised from surgery, that as he had injured his cartilage and to prevent degenerative change, he might move away from work that involved heavy impact:
“To our best understanding in relevant literature [the cartilage injury] will grow back with a fibrocartilage which is a different characteristic to articular cartilage which is the normal lining of the joint.
We do know that curettage of a lateral defect and stabilisation can provide at least good to excellent outcomes measured 5 to 10 years postsurgically in studies.
Literature also shows that ankle arthritis develops in ongoing instability or cartilage defects.
There is not good literature that gives the latency. All the incidence of the development of arthritis in a patient who has shown a good outcome from surgery. There is no good long-term studies on this in the literature.”[52]
[52]Report of Mr David Shepherd dated 27 December 2024, Plaintiff’s Court Book (“PCB”) 68-69
92As such, he did not preclude the plaintiff from any activities as it appeared he had made a good recovery from his injury and had a stable ankle and it appeared his cartilage had healed:
“In the setting of our understanding of injury to adult cartilage and the fact that it might cause arthritis in the long-term, but not necessarily, I recommended that [the plaintiff] might look at work that did not involve heavy repetitive loading of the joint.”[53]
[53]Ibid, PCB 69
93The plaintiff had full capacity to perform pre-injury duties based upon his last consultation. There would be no restriction on work hours. It was important to note that he did not make any restriction on sporting activities.
94Based on his last clinical consultation and his recommendations, he did not expect there to be any restriction on sleep, car driving, personal care, household duties, motorbike riding and boxing.
95If the plaintiff had further deterioration of cartilage, then future treatment could be repeat arthroscopy, cartilage grafting, and if he developed arthritis, then treatment on its merits of arthritis with either arthroscopy, ankle fusion or replacement. He then did not recommend any further treatment.
96He has not seen the plaintiff since 27 July 2021.
Investigations – radiology
97On 15 March 2021, the plaintiff underwent a MSK ultrasound and x-ray on his right ankle and hindfoot.
98The x-ray was reported to show no acute fracture line within the lateral or medial malleolus and the talar dome was also intact. The appearances seemed to suggest bipartite medial sesamoid.
99On ultrasound, appearances suggested a ruptured ATFL/tear where there is heterogenous hypoechoic abnormality with increased vascularity and loss of the fibrillary pattern.
100On 13 November 2024, the plaintiff underwent an MRI scan of his right ankle. That scan was conducted in response to a previous repair of the anterior talofibular ligament. The ATFL repair appeared to remain solid and intact. Minor chondral thinning of the lateral talar dome was reported, around 2-millimetres in width. The rest of the articular cartilage was within normal limits. The peroneal tendons were in a normal position. Both the calcaneofibular ligament and syndesmosis were also reported to be intact. The deltoid ligament was also within normal limits, along with the long flexor tendons and long extensor tendons.
101Both the talonavicular calcaneocuboid and subtalar joints were reported to be within normal limits. The plantar fascia and Achilles tendon were also within normal limits.
Medico-legal evidence
Dr Joseph Slesenger, specialist occupational physician
102Dr Slesenger saw the plaintiff at the request of the insurer in September 2021 via Telehealth to assist in considering his weekly payment entitlements and return to work.
103He listed the job demands described by the plaintiff in his work with the defendant, who specialised in concrete slabs, pathways and driveways in the residential sector.
104The plaintiff‘s job required him to excavate and remove topsoil, lay metal reinforcements, pour concrete, lay formwork, perform some finishing tasks, and work in all weather conditions. The job demands required him to squat, bend, forward reach, over-shoulder reach, lift weights in excess of 30 kilograms, and use power tools and hand tools.
105The plaintiff advised of a gradual improvement in his symptoms post the surgery, and that his orthopaedic surgeon was satisfied with his progress.
106The plaintiff described residual discomfort in the ankle. Whilst the pain had settled, the ankle felt unstable. He advised of residual restriction to his range of movements to around 50 per cent. His foot generally swelled towards the end of the day.
107The plaintiff could walk for between 30 to 60 minutes, although avoided uneven ground and generally avoided climbing up and down stairs. He had difficulty squatting.
108The plaintiff had not returned to work since the injury and had had no contact from the defendant, and there was no agreed return-to-work plan in place.
109The diagnosis was an ATFL tear (to which the plaintiff had undergone arthroscopic repair) and chronic right ankle instability.
110The plaintiff could not return to unrestricted duties, although he retained capacity for work with restrictions, namely: avoid push, pull, carry or lift over 5 kilograms; avoid squatting and prolonged standing and walking on uneven ground; limited stair climbing; and four hours a day, four days a week, graduating to pre-injury hours.
111The plaintiff retained capacity for work, taking into account his current symptoms, functional limitations, past employment history, qualifications, residential location, and driving capacity. He had been supported by a return-to-work coordinator.
112The plaintiff could return to performing modified duties immediately, and should be reviewed in three to four months to address his progress.
Dr Umberto Boffa, occupational physician
113Dr Boffa examined the plaintiff on 7 March 2023 on behalf of the defendant.
114Following the March 2021 x-ray and ultrasound, the diagnosis was of a right ankle which showed a high-grade ATFL tear or rupture.
115He thought the plaintiff was fit for pre-injury hours but not pre-injury duties. He had a current work capacity for full-time duties that avoided repetitive climbing, crouching, kneeling and prolonged walking and standing.
116The plaintiff was fit for the greenkeeper and forklift roles listed in the vocational report but not for the light delivery driver role because of unsuitable repetitive boarding and alighting from a vehicle. The sales assistant and meter reader roles were unsuitable because of prolonged standing and walking.
Dr Graeme Doig, orthopaedic surgeon
117Dr Doig examined the plaintiff on 19 September 2023 on behalf of the insurer.
118The plaintiff then complained of pain and swelling with activity, and restricted movement.
119The diagnosis was a lateral collateral ligament disruption at the right ankle, including a talar dome osteochondral lesion, treated by ligamentous stabilisation surgery.
120The plaintiff’s prognosis was poor with respect to returning to pre-injury employment in view of the physical demands.
Dr Ash Moaveni, orthopaedic surgeon
121Dr Moaveni examined the plaintiff on 29 November 2024. He was provided with the report of the November 2024 MRI scan.
122The plaintiff advised that he was currently experiencing flare-ups in his right ankle, including aching, pain and swelling. This typically occurs approximately twice per month with prolonged walking. The ankle can also feel unstable or give way on uneven ground. At times, his right lower extremity feels tight.
123The plaintiff stated that he can tolerate walking for more than one hour, but doing so can cause swelling and tightness in his right foot. He also reported moderate difficulty with bending and twisting. With modification and difficulty, he is able to lift heavy objects. There was also moderate difficulty when ascending and descending steps, as well as walking on uneven surfaces.
124On examination, there was some restriction of dorsiflexion and plantar flexion.
125The diagnosis was a right ankle soft tissue injury, including rupture of the anterior talofibular ligament, high-grade tear of the calcaneofibular and talar dome chondral injury.
126The plaintiff does not currently have the capacity to perform his full pre-injury employment duties on a consistent and reliable basis. His pre-injury role involved heavy physical labour including lifting weights in excess of 30 kilograms and squatting and bending, which would likely aggravate his right ankle condition.
127The plaintiff is currently engaged in suitable alternative employment, working full time with pre-cast concrete at Reinforced Concrete Pipes Australia. His duties involve climbing in and out of the forklift and lifting pre-fabricated steel cages. He is able to manage these work duties. This capacity is likely to continue for the foreseeable future.
128The plaintiff is likely to be precluded or restricted in relation to social, domestic and recreational activities. He is no longer able to participate in his recreational pursuits, including boxing, motorcycle riding and going to the gym.
129The plaintiff’s prognosis is guarded. He will need to modify activities to accommodate symptoms and avoid pain exacerbation. He is not at risk of further deterioration.
Dr Khayyam Altaf, occupational medicine
130Dr Altaf examined the plaintiff on 17 December 2024. He was provided with the report of the November 2024 MRI scan of the right ankle.
131On examination, there was no visible swelling or reduction in the range of ankle movement.
132The diagnosis was an ATFL tear with an osteochondral defect requiring surgery, with ongoing mild activity-related mechanical discomfort.
133He detailed the progress of the plaintiff’s medical condition after the injury, describing his various jobs since.
134He noted that the plaintiff currently works as a concreter in a factory setting, though it is not a typical concreting position. His work now involves preparing precast moulds, operating a forklift to transport concrete and performing some light labour tasks. The plaintiff reported that his ankle has been manageable in that role, although on particularly demanding days or in cold weather, he experiences some swelling and mild tenderness.
135The plaintiff advised that he experiences stiffness in the mornings that requires some stretching, after which he feels fine and is generally pain-free during the day; however, he reported that on heavier workdays, his ankle becomes “tired” and swollen, with mild discomfort by the end of the day.
136This discomfort occurs at least three to four days a week. The symptoms typically ease by the next morning, though some residual discomfort may persist. The discomfort tends to build up over the workweek and then improves during rest days. When away from work, the plaintiff prefers to rest the ankle but can manage his other activities of daily living without issue. There was stiffness, like tightness, in his right hip which did not affect his day-to-day activities.
137The plaintiff’s sleep remains unaffected, apart from avoiding placing a blanket on his ankle for comfort. He reports feeling well rested in the mornings.
138The plaintiff’s sitting and standing tolerances are good, and he can walk on flat ground without issue; however, walking on hills or uneven terrain can be more challenging and strenuous. He does not require any walking aids.
139Mowing the lawn can be challenging, particularly on uneven ground with obstacles such as rabbit burrows.
140Regarding work, the plaintiff has avoided traditional concreting roles due to the physical demands of uneven worksites. In his current role, he works on flat ground in a factory setting, driving a forklift and pulling concrete out of moulds for storage.
141He also fabricates prefabricated cages and occasionally lifts heavy plates, though he finds this manageable. The rest of his tasks, such as trailing off moulds, are less physically demanding.
142Socially and recreationally, the plaintiff has had to give up motorbike riding and boxing which were his two main interests. He recommended the plaintiff avoid boxing. He recommended the plaintiff did not ride a motorbike for extended periods because of strain on his ankles.
143The plaintiff appeared to have reached the maximum level of improvement, a state that has remained unchanged for at least the past two to three years. There are no additional treatment options available to further improve his condition.
144He did not expect there to be any increase in pain or deterioration in the range of movement of the right ankle unless the plaintiff experiences significant progressive deterioration within the joint or re-injury.
145Given his ongoing challenges with uneven ground, the plaintiff does not have the capacity to consistently and reliably perform his full pre-injury duties. The primary restriction for the plaintiff would be avoiding uneven ground. Factory or warehouse-based activities would be considered suitable for him, as he has the physical capacity to perform such roles.
146Dr Altaf reiterated that the plaintiff should avoid uneven ground as well as prolonged or repetitive twisting movements of the right ankle, particularly at the extremities of its range of motion.
147The plaintiff has demonstrated the capacity to perform full-time duties, including overtime, and there is no reason to believe that he would be unable to sustain this level of work over an extended period.
148From a skills and work experience perspective, the plaintiff has developed factory-based skills, and his injury would not pose any issues in a safely controlled indoor environment. This is in contrast to outdoor, field-based work where uneven ground could exacerbate his ankle condition.
149Having considered Dr Allen’s opinion and the October 2024 vocational assessment report, roles such as forklift driving, order picking and truck driving appear suitable; however, he has concerns regarding garden labouring jobs, as while the plaintiff may be able to perform some tasks, the risk of exacerbating his ankle condition could affect his ability to provide consistent and reliable service.
150For an onsite road traffic controller role, suitability would depend on the specific site conditions. Such a role would be appropriate if restricted to current roads and does not require work on uneven ground or construction sites.
151He did not anticipate any future improvement in the plaintiff’s right ankle condition; however, there may be a potential risk of accelerative degeneration in the ankle joint given the presence of a loose body that required debridement and also an increased risk of re-injury. Overall, he did not expect this to significantly impact the plaintiff’s work capacity in the future unless there was a notable re-injury.
Defendant’s medico-legal evidence
Dr Charles (Phil) Allen, orthopaedic surgeon
152Dr Allen examined the plaintiff on 25 June 2024.
153The plaintiff said that after the June 2021 surgery, there had been some benefit insofar as his range of motion had improved and his pain had decreased.
154The plaintiff reported that his ankle is uncomfortable in cold weather and sometimes he gets a sharp pain at the top of his foot and laterally over his right ankle. There was no instability reported and no swelling.
155On examination, there was a full and normal range of ankle motion.
156The diagnosis was an ankle sprain.
157The plaintiff’s condition is stable and stationary, has healed and no further treatment is indicated. The prognosis is for gradual further incremental symptomatic improvement with the effluxion of time.
158The plaintiff has a current capacity for pre-injury employment. He can undertake suitable employment without restrictions, noting he was then working full time as a machine operator and labourer for an earthmoving company.
159Dr Allen provided a supplementary report dated 24 October 2024. Having reviewed the list of suitable employment duties that was provided by the defendant’s solicitor, he reiterated his view that the plaintiff had a full unrestricted work capacity.
160He considered the employment opportunities noted, including traffic controller, forklift driver, order picker, truck driver, garden labourer, and similar employment were within the plaintiff’s capability and scope.
161He was of the strong view that the plaintiff does have capacity for pre-injury duties.
162Having been provided with reports from Mr Moaveni, Dr Altaf, Mr Shepherd and Dr Kaplan, he did not change his initial opinion in any way. The report of the November 2024 MRI scan of the right ankle confirms the previous surgical treatment to the ankle and notes some early degenerative change with chondral thinning. There is no other major pathology noted here and other than demonstrating some chondral thinning and the previous surgery, there is no residual pathology noted. This report did not lead him to change his opinion in any way.
Vocational evidence
163Recovre reported in October 2024 that while not all job roles in the suggested positions would be suitable for the plaintiff to perform, job roles can and do exist within the nominated occupations which are vocationally and physically suitable for him to perform – forklift driver; order picker; onsite road traffic controller; truck driving; garden labourer and with retraining, road traffic controller.
Consequences and what is retained
164Counsels’ submissions focussed largely on the plaintiff’s reported level of pain and restriction and the employment consequences claimed by him.
165The defendant also relied on the decision of Stijepic,[54] where the Court noted:
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained’.”[55]
[54] Supra per Ashley AJ and Beach AJA at paragraph [44]
[55]See Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]
Pain
166In Haden Engineering v McKinnon,[56] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors) and what the plaintiff does about the pain (for example medication, rest, seeking medical treatment).
[56] Supra at paragraph [11]
Plaintiff
167Counsel agreed the plaintiff was an honest, straightforward witness who did not embellish or overstate. Counsel accepted the plaintiff gave a very moderate description of his pain and discomfort; however, the pain never fully subsides and he is always aware of it, and it is more of a case of him modifying his activities. He does not take medication, he is not having treatment, but he does modify or restrict his activities – “So putting aside pain, he’s obviously coping with the injury with the pain that is bearable by just limiting himself.”[57]
[57] T92
Defendant
168In terms of the experience of pain, “early on there was not much and now there is not much,” charting the history through to six weeks after the surgery when Mr Shepherd then reported an indication of full return to ankle function.
169When seen by his physiotherapist in July 2023, the plaintiff reported no ankle pain, his only complaint being instability and unsteadiness.[58] Dr Altaf, in December 2024, noted that at worst, the plaintiff had some swelling and mild tenderness at work and mild discomfort.[59]
[58] T58
[59] T58
170In November 2024, the plaintiff told Mr Moaveni there were flare ups twice a month which consisted of aching pains and swelling – seemingly even less than was reported to Dr Altaf.[60]
[60] T58
171The plaintiff accepted he is now generally pain free during the day. There seems to be some confusion whether what he experiences is pain or discomfort, those words having been used interchangeably by him.[61]
[61] T60
172The plaintiff agreed with the description of mild discomfort and the accuracy of his various histories to doctors. This was a differed experience than he had deposed. His affidavit evidence cannot be reconciled with his minor complaints to doctors or his candid concessions in the witness box.[62]
[62] T61
173The Court should prefer what the doctors have recorded and what the plaintiff had said freely in the witness box about his level of pain. This issue had been explored in depth in cross-examination and the plaintiff did not change this evidence in re-examination.[63]
[63] T61
174There is no compelling evidence about any destabilising effects of pain.[64]
[64] T71
175Further, medical examiners have found a full range of right ankle motion in multiple examinations.[65]
[65] T80; Dr Altaf, Dr Allen and Mr Moaveni
176The plaintiff readily accepted he has not seen his GP about his ankle since March 2022 and that visit was to arrange an MRI scan for medico-legal, not therapeutic, purposes. He attended his GP ten times in that period, but had not needed to complain to him of any ankle issues.[66]
[66] T59
177The plaintiff has stopped all treatment and is working consistently full time, normally fifty hours a week. It makes sense that, at most, he has only mild discomfort. It is not constant pain, he has not sought treatment and he has been able to work consistently full time.[67]
[67] T62
178In Hawkins v DHL Express Australia Pty Ltd,[68] Tate JA stated:
“The analysis in Haden Engineering Pty Ltd v McKinnon, as applied in Sutton v Laminex Group Pty Ltd, demonstrates that, in determining the pain and suffering consequences of an injury, it is necessary to consider not only ‘what the plaintiff says about the pain (both in court and to doctors)’ but also ‘what the plaintiff does about the pain (eg medication, rest, seeking medical treatment)’ as well as ‘what the doctors say about the extent and intensity of the plaintiff’s pain’ and ‘what the objective evidence shows about the disabling effect of the pain’. The judge was correct to consider all these matters and, in doing so, she did not fall into the error of regarding the failure to take medication, or continue with treatment, as in itself evidence that the pain and suffering consequences of the impairment were less than very considerable. Her Honour properly considered what the worker had done about the pain in the context of his own evidence about its intensity and effect and in the context of what the objective evidence said about the disabling effect of the pain. She was clearly alert to the need, when considering the disabling effect of pain, ‘to identify the extent to which the pain limits the [worker’s] physical functioning, and interferes with the [worker’s] enjoyment of life’, that is, the extent to which ‘an area of work which [the worker] had enjoyed had been closed off to him’. The worker had retained a capacity for the general type of work he had always done, albeit in diminished form, without medical restrictions, and this had proved to be sustainable despite his pain.”
(Footnotes omitted.)
[68] [2013] VSCA 26 at paragraph [63]
179This passage sits squarely with the plaintiff’s current situation, which is nothing like constant pain.[69]
[69] T62
180There is no current treatment, no painkilling medication, no evidence of side effects or any particular problems taking medication, discharge from physiotherapy about two years ago and then so little time with the GP. There is no pain management program. The surgery outcome was good.[70]
Work
[70] T6
Plaintiff
181The plaintiff’s focus was mainly on work consequence.[71] Concreting was a career that the plaintiff had lost. Further, even leaving aside concreting, there is an inability to do unrestricted physical work as a result of his ankle injury.[72]
[71] Ellis Management
[72] T93
182The plaintiff’s loss of career as a concreter is a devastating consequence for a young man who was only twenty-four when the incident occurred.
183The treating orthopaedic surgeon’s advice is a pretty good starting point.[73] Mr Shepherd’s view about the injured cartilage and moving away from heavy work was stressed, as were his comments about ankle instability – an issue described by the plaintiff.[74]
[73] T88
[74] T86
184Mr Shepherd thought the plaintiff should not be going back to concreting – a view shared by the treating physiotherapist and occupational physicians, Dr Altaf, and Dr Slesenger, who was very helpful describing what a concreter does.[75]
[75] T83
185Dr Slesenger was the best analyst, having taken a very detailed history of all the plaintiff’s pre-injury job demands, concluding the plaintiff cannot return to unrestricted duties, although he retained capacity for work within the restrictions he suggested.[76]
[76] T85
186While the plaintiff had demonstrated a capacity for heavy work since the incident, Mr Shepherd’s view was that work as a concreter would place heavy demands on his ankle and could well place him at risk of slowly developing degenerative change. Dr Boffa and Dr Doig also thought the plaintiff should not resume concreting.[77]
[77] T83
187It was clear from what Dr Slesenger and Mr Shepherd were saying, that concreting involved repetitive work, constant standing and putting pressure on the ankle. The plaintiff could probably do that work, but what it was going to do to his ankle over time was of concern.[78]
[78] T86
188Dr Altaf thought working as a concreter did involve heavy and repetitive loading, heavy and repetitive lifting of objects and heavy impact on the right ankle joint.[79]
[79] T87
189The plaintiff’s current jobs are lighter than concreting. He did not accept he was on his feet all the time; he did not accept he was getting in and out of trenches all the time. He said he could not work on the metal formwork because of his balance and placing a lot of stress on the joint, “and if you could not do that, you could not be a concreter”.[80]
[80] T87
190In his current job, the plaintiff is not on his feet as much as he was. He is not repetitively getting in and out of trenches, or engaging in the heavy lifting he was doing in other jobs, or constantly walking over uneven ground.[81]
[81] T84
191Concreting is a career. The plaintiff’s brother ran a business as a concreter. It can therefore be accepted the plaintiff would have had that ambition and now he cannot follow his brother in going into concreting and setting up his own business.[82]
[82] T89
192While there was a lack of evidence from the plaintiff’s family, particularly his brother, it is enough that the plaintiff said he wanted to be a concreter.[83]
[83] T90
193To his great credit, the plaintiff is clearly stoical, going into other jobs, some of which he did not enjoy that much and he moved on, but what he cannot go back to is the career as a concreter. When the whole of the evidence is considered, it gives a clear picture that the plaintiff cannot go back to unrestricted heavy work which places a great deal of stress on his right ankle.[84]
[84] T90
Defendant
194Concreting is not a long-term career, and the plaintiff has not been doing it forever. He was only twenty-four when he was injured. At that time, he had done concreting for one employer and was still learning to do screeding.[85]
[85] T77-78
195It should not be accepted that the plaintiff has lost a particular passion concreting. His ultimate explanation about the difficulty concreting boiled down to his concern about instability of the ankle, which “does not amount to much”.[86]
[86] T66
196While the plaintiff relied on Mr Shepherd’s view that a return to concreting was undesirable, Mr Shepherd thought the plaintiff had full capacity to perform pre-injury duties in mid 2021. He then considered the plaintiff had made a full recovery, he had a stable ankle and it appeared the cartilage had healed. Dr Allen also thought the plaintiff could do his pre-injury duties.[87]
[87] T76
197The plaintiff worked for his brother in his concreting business both before and after the surgery. Before, he worked a few times and after the surgery, he worked six-hour days about five times. He accepted he was working as one of the normal labourers.[88]
[88] T70
198Further, this was not a case where there was evidence of what was involved in a concreting role. There has been no analysis by the plaintiff about precisely what his pre-injury duties or concreting involves.[89]
[89] T75
199As the Court stated in Stijepic:[90]
“In our opinion, the appellant did not establish, on the totality of the evidence, that he was precluded from a career in graphic design and computer design work. Amongst other things, he never put his asserted incapacity to the test. But if our conclusion was unsound, we consider in any event that he failed to establish that the loss of that field of employment was a serious consequence for him.”
[90] Supra at paragraph [46]
200Dr Slesenger’s report is a description of the plaintiff’s pre-injury job, not concreting at large, so the Court does not know whether the plaintiff is precluded from concreting. In any event, while Dr Slesenger thought, in 2021, the plaintiff could not return to pre-injury duties, the plaintiff “had done so much since then”. What the plaintiff is really doing is defying the restrictions that had been put on his work by a number of doctors and his evidence is that he is happy in his current role. He is not stoic; he is uninjured.[91]
[91] T94
201The plaintiff’s retained capacity for work is very significant, normally working fifty hours, and one week, sixty hours.[92]
[92] T65
202The plaintiff had demonstrated the capacity to retain full-time work since mid 2022. Some days at the golf club and also in his earthmoving job, he would be on his feet for eight hours. In the latter job, he was holding and moving heavy pipes, sometimes up to fifteen pipes a session. The ability to do these tasks was not indicative of an inability to do concreting as the plaintiff claimed. He was able to climb up and down a ladder into stormwater pits. He was also able to get in and out of trenches to put in electrical conduit and then climb out of the trench – up to three times a day. He was able to jackhammer for twenty to thirty minutes.[93]
[93] T68
203The plaintiff said candidly in the witness box that he can manage the physical demands of his current jobs well. He has not satisfied the Court that there is something about concreting that takes it out of all of his other demonstrated capacity with those other jobs.[94]
[94] T68
204It is not a case where the plaintiff is saying on occasion he does slightly heavier things, but if he does so, he pays later and has to get a medical certificate.[95]
[95] T69
205In re-examination, there was no comparison of what the plaintiff’s current job involves to how onerous and heavy and awful concreting work is.[96] He is physically doing a lot and, on his own evidence, managing reasonably well with those physical demands, with no time off work, no medication and no treatment.[97]
[96] T69
[97] T70
206The Court could not be satisfied what concreting work the plaintiff is excluded from. He has not tried to get back to concreting so he does not know. While he says he has problems with uneven ground, he is able to get in and out of stormwater pits, use ladders and climb in and out of trenches, so that evidence should not be accepted.[98]
Other consequences – hobbies and social life
[98] T79
Plaintiff
207Occupational physician, Dr Altaf, recommended the plaintiff did not do boxing, should not ride his motorbike, and not run at all. These are pretty serious restrictions for a young man when coupled with his work issues.[99]
[99] T92
208It should be accepted, as his mother said, that before the injury, the plaintiff was pretty energetic and fit, and he did not have any problems, and now he stays home most of the time. These are pretty serious consequences for a man who was twenty-four when the incident happened and is now twenty-eight.[100]
[100] T92
209The plaintiff is genuine and frank, he did not overplay his pain and he restricted his activities by not boxing, not running and not riding his motorbike, activities he previously enjoyed and cannot do anymore. He is going to have to get rid of his motorbike. It is too depressing to look at it and he knows he just cannot use it.[101]
[101] T93
Defendant
210The plaintiff’s own treating surgeon put no restrictions on his ability to ride a motorbike. The evidence does not go so far as to say the plaintiff cannot ride his motorbike.[102] He has not tried to ride it. He had never ridden it since the incident.[103]
[102] T72
[103] T71
211It should not be accepted the plaintiff had difficulty in terms of boxing because he could not move around on his feet as, plainly, he was moving around at work without difficulty and he was able to play golf. In any event, the plaintiff candidly accepted he was tired from work and he was not going to be doing recreational activities if he is working fifty hours a week.[104]
[104] T80
212Interference with riding a dirt bike and the ability to do boxing training, in all the circumstances, do not take the consequences to the level of “serious”.[105]
[105] T72
213The plaintiff’s claimed difficulties with his nephews deposed to are not substantiated by medical evidence. Concern about any difficulties the plaintiff will have about his own children in the future “goes nowhere”.[106]
[106] T81
214The plaintiff’s mother’s affidavit cannot be reconciled with the plaintiff’s evidence. She made no mention of a range of issues described by him, in particular, problems with sporting activities. She also described the plaintiff walking with a limp – not mentioned by him or any medical examiner. It cannot be correct that the plaintiff has any issue with household chores as he made no mention of any such difficulty and he is able to work consistently fifty hours a week.[107]
Prognosis
[107] T82
Plaintiff
215In the whole evidence there is a clear picture that the plaintiff cannot go back to unrestricted work that places a great deal of stress on his right ankle. He has that “sword of Damocles” over his head if he does. If he pushes himself, he is likely to get arthritis earlier and is looking at a potential fusion. That was placed fairly and squarely by Mr Shepherd, who has “opened up” the plaintiff’s ankle. There were osteochondral defects and loose bodies. There was damaged cartilage.[108]
[108] T91
Defendant
216There is no compelling evidence there is going to be a deterioration for this plaintiff.[109]
[109] T63
217Importantly, the treating orthopaedic surgeon, Mr Shepherd, thought the injury would not necessarily cause arthritis in the long term or anything else.[110] If the plaintiff developed arthritis, then it could be treated on its merits.[111]
[110] T77
[111] T64
218Mr Moaveni thought the plaintiff’s right ankle is not a risk of future deterioration.[112]
[112] T64
219Dr Altaf does not expect further surgery unless significant progressive deterioration. There is no indication that is going to happen, so future surgery is not contemplated, unlike in other cases.[113]
[113] T64
FINDINGS
220There is no dispute the plaintiff suffered a compensable injury to his right ankle in the incident.
221The consensus of medical opinion is that he suffered an ATFL tear with an osteochondral defect requiring surgery. Dr Allen is an outlier, simply diagnosing an ankle sprain while also acknowledging the need for the surgery.
Credit
222As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[114]
“… 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.”
[114]Supra at paragraph [12]
223There was no real attack by the defendant on the plaintiff’s credit – rather a reliance on his frankness as to the relatively minor nature of his right ankle complaints, and noting his ankle issues were not as bad as he had deposed.
224It was submitted by the plaintiff’s counsel that the plaintiff was frank in his viva voce evidence, and he did not overplay his pain levels. He was an honest witness, straightforward and did not embellish or overstate; however, he restricts his activities by not boxing, by not running and by not riding his motorbike.[115]
[115] T93
225In my view, the plaintiff was a truthful witness who was prepared to make appropriate concessions as to his level pain and discomfort consistent with his reports to various examiners. He did not exaggerate or embellish his symptomatology in his viva voce evidence, giving a very moderate description thereof.
226The Court, in Stijepic[116] noted, as far as the appellant’s pain was concerned:
“… the burden of the evidence is that while he continues to suffer from episodes of pain, and will continue to do so, he does not suffer a continuous substantial level of pain. It is, we consider, confirmatory of this that the appellant’s pain appears to be controlled by moderate strength, non-prescription, medication.”
[116] Supra at paragraph [48]
227In the present application, the plaintiff does not suffer a continuous substantial level of pain. At its highest, his right ankle is a bit painful but it is more discomfort and it is not constant. His viva voce evidence as to his level and experience of pain is not of the magnitude deposed to.
228Confirmatory of his very moderate level of pain or discomfort, the plaintiff does not require painkilling medication or any ongoing treatment. He has not seen his GP for treatment for his ankle since March 2022, despite having attended on a number of occasions for unrelated matters. He has also not been sent back to Mr Shepherd for review, having last seen him four years ago.
229Medico-legal examiners, Dr Allen and Dr Altaf, who examined the plaintiff late last year, found a full range of ankle movement.
230The plaintiff is still a young man with a good work ethic. Since his injury he has been able to engage in full-time employment in a range of jobs, some involving concreting duties, without any need for treatment, painkilling medication or medical restriction. Further, he has not required any time off work as a result of any ankle issues. He has not suffered any further injury caused by ankle instability, although his jobs at times have involved walking on uneven terrain and heavy lifting.
231He has continued to work about fifty hours a week – five days of eight hours plus two hours’ overtime. He manages his duties reasonably well on his own admission. One week in late 2024, he was able to work more than sixty hours.
232This is not a case involving loss of a trade. There is no evidence to this effect. The plaintiff was unsure whether concreting now involves an apprenticeship but this was not the case when he started work for the defendant. At the time of the incident, he had been employed by the defendant for about five years as a concrete labourer and had yet to complete screeding training.
233There is little evidence of what is required in a true concreting role. Significantly, there is no evidence from the plaintiff’s brother, who runs a concreting business, as to what this role entails or of any difficulties the plaintiff may have had in performing concreting duties after the surgery.
234Further, the plaintiff described undertaking a range of concreting duties he has been able to do in his various jobs since the incident. He has also been able to undertake relatively physical work including carrying pipes, standing to operate a jackhammer and climbing in and out of trenches.
235While Dr Slesenger thought the plaintiff should not return to concreting/pre-injury duties, since he saw the plaintiff in 2021, the plaintiff has engaged in a significant range of duties, on a sustained full-time basis.
236When he last saw the plaintiff in mid 2021, Mr Shepherd thought he had a full capacity to do pre-injury duties. His injury “might” cause arthritis in the long term “but not necessarily”. His prognosis was good but work as a concreter placing heavy demands on his ankle “could well place him at risk of slowly developing degenerative change and it would be reasonable to explore less high impact work options in the future”.
237There was no up to date report from Mr Shepherd commenting on the plaintiff’s present condition and prognosis.[117]
[117] T84
238Since those examinations nearly four years ago, the plaintiff has been able to return to full-time work – with consistent overtime hours – doing some concreting duties and other physical work, defying the pessimistic outlook as to his work future and capacity when examined by Dr Slesenger at that time.
239I do not accept the plaintiff is a stoic.
240This is a case where there is a demonstrated capacity to perform physical work on a consistent, sustained basis without any difficulty or need for restrictions – the plaintiff is not working in a protected environment. It is not a case where he has tried to go back to his old job and cannot do it.[118] He has never put his asserted incapacity to the test.[119]
[118] T73
[119] Stijepic at paragraph [46]
241As counsel for the defendant submitted, outside of work, the plaintiff agreed he manages his activities of daily living, there are no problems with cognitive function, there are no sleep difficulties, save for avoiding putting a blanket on his foot, “which is not a big deal”.[120]
[120] T64
242What the plaintiff has retained is overwhelming: household chores outside of work are fine; sleep is unaffected; working 50 hours per week; doing ten-hour shifts; working five days a week.[121]
[121] T73
243There are no problems with housework and no restriction on household duties – despite his mother’s affidavit evidence to this effect. Given the plaintiff’s ability to engage in a range of duties in his full-time work, he would not have any issue with household tasks.
244Further, while his mother deposed the plaintiff now tended to stay at home and not socialise much, he accepted his social life has somewhat returned to normal, save of for his inability ride his dirt bike with his friends
245Driving is unrestricted.
246The plaintiff is able to do some mowing and there is no difficulty gardening.[122] He would not have any difficulties with these tasks domestically, given his ability to work full time in a largely gardening role at the golf club and the winery.
[122] T65
247I accept there is some interference with sporting activities such as boxing for fitness, dirt bike riding and running, although his treating surgeon placed no restrictions on these activities and there is no corroboration by his mother of this issue in her affidavit. In any event, any interference with these activities is not such that could be described as serious.
248There is no evidence that further deterioration/arthritis is likely or that future treatment will be required.
249The most recent MRI scan in late 2024 did not show any significant abnormality or deterioration in the condition of the plaintiff’s ankle. The previous repair of the ligament was intact. There was no mention of the loose fragment that was operated on. Mr Shepherd was not asked to comment on this recent investigation and no other examiner has commented on it.
250Taking into account all the evidence, the cumulative impact of the identified consequences fairly described do not satisfy the statutory test.[123]
[123] Reyes v Tusk Group Pty Ltd [2025] VSCA 20 at paragraph [51]
251Accordingly, the application is dismissed.
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