Russell v W Osborne and Son Pty Ltd
[2022] VCC 425
•5 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-01314
| SCOTT RUSSELL | Plaintiff |
| v | |
| W OSBORNE & SON PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 July, 2, 3 and 4 August 2021 | |
DATE OF JUDGMENT: | 5 April 2022 | |
CASE MAY BE CITED AS: | Russell v W Osborne & Son Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 425 | |
REASONS FOR JUDGMENT
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Subject:NEGLIGENCE
Catchwords: Truck driver – fall from truck – liability admitted – Damages – assessment – Where pre-existing injuries – prospects of continuing to work until age 67 – application of Malec principles
Cases Cited:Amaca Pty Ltd v King (2011) 35 VR 280; Bucic v Arnej Pty Ltd [2019] VSC 330; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Jones v Dunkel (1959) 101 CLR 298; Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Purkess v Crittenden (1965) 114 CLR 164; Sahin v Victorian WorkCover Authority [2017] VSCA 13; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Smith v Gellibrand Support Services Inc (2013) 42 VR 197; Tabet v Gett (2010) 240 CLR 537; Watts v Rake (1960) 108 CLR 158; Wearne v State of Victoria [2017] VSC 25; Willett v Victoria (2013) 42 VR 571; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2016] VSCA 187
Judgment: For the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr JP Brett QC with Mr B House | Henry Carus & Associates |
| For the Defendant | Mr M Clarke with Mr L Howe | Wisewould Mahony |
HIS HONOUR:
Introduction
1The plaintiff’s employment with the defendant commenced on 19 April 2011.[1] He delivered bulk grain to customers. He suffered injury at work with the defendant on 13 October 2014 when he slipped off a truck whilst replacing windscreen wiper blades (“the 2014 incident”). My task is to assess an appropriate award of damages for the plaintiff’s pain and suffering consequences as well as any past and future loss of earnings that have been caused by the 2014 incident.
[1] Transcript (‘T’) 29.
2The defendant has admitted liability for the injury suffered at work.
The injury
3The plaintiff’s injury resulted in a left foot fracture involving the 2nd, 3rd and 4th metatarsals, where the 2nd and 3rd metatarsals fractures extend into the tarsometatarsal joint. Bony fragments in the plantar aspect of the 1st (metatarsal) were observed, described as undisplaced fractures of the superolateral corners of the intermediate and lateral cuneiforms (midtarsal joint). As well, the plaintiff suffered injury to the cervical spine at C4 to C6 levels, with film noting severe foraminal exit narrowing to the left at C5/6. Scarring is visible at the neck and left foot. As well the plaintiff points to and relies upon the development of a psychiatric condition described as a major depressive disorder and anxiety that has developed into a somatic symptom disorder together with injuries to both the plaintiff’s hips with an altered gait, fracture of the left ankle, aggravation of the injuries to the right and left shoulders and arms, aggravation to discs at C5/6 and C6/7 and a sleep disorder.
The plaintiff
4Mr Russell was born in Melbourne in 1962. He was schooled to 14 years of age. He commenced a saddlery apprenticeship. He worked on the family farm. At age 18 he commenced work as a truck driver. He has laboured as a truck driver his adult life, aside from approximately two years when he was employed as a machine operator crushing rock in Alexandra. His father, older brother and uncle were all truck drivers. The plaintiff said he was destined to be a truck driver. His wife, who testified, said it was truck driving or nothing for her husband.[2] They have one child, an adult daughter.
[2] T354, Line (‘L’) 1.
Representation
5The plaintiff was represented by Mr Brett QC together with Mr House of junior counsel. The defendant was represented by Mr Clarke leading counsel together with Mr Howe.
State of the plaintiff’s health prior to negligent injury
6There is no shortage of unfortunate injuries and health conditions that have beset the plaintiff over his adult life, some of which he suffered prior to commencing work with the defendant. The extent and effect of them on the plaintiff was the subject of much debate and some speculation.
The defence
7The defendant relied on medical evidence that prior to the 2014 incident the plaintiff already had suffered a number of injuries including being beset with significant degenerative disease in his left ankle, cervical spine and lumbar spine. The defendant contended that as a result of a prior left ankle fusion performed in 1993, and a prior anterior cervical discectomy and fusion at C5-6, these body parts were rendered vulnerable to further injury and were also likely to continue to deteriorate with the passage of time irrespective of the 2014 incident. Therefore, so the defendant argued, save for the occurrence of the 2014 incident, the plaintiff’s prospects of continuing employment to 67 years of age as was his expressed desire, was not realistic, such that there should not be any award of damages for past and future economic loss but if I was satisfied of the entitlement to either, then the amounts should not be significant and ought to reflect this reality.
The plaintiff’s counter argument
8In responding to the defendant’s arguments, the plaintiff submitted that before the 2014 incident, he was fit and well enough to perform long hours at work, with the best estimate identified in the course of evidence of a working week of approximately 38 hours but with regular overtime, on occasions, up to 50 hours per week. As well, the plaintiff was able to undertake outdoor maintenance and gardening and provide general assistance to his wife. The plaintiff’s recreational pursuits he shared with his wife, and their daughter when she was younger, although seemingly modest by some standards, included fishing and golf and attending truck and car shows. Since the 2014 incident, according to the plaintiff, these activities have been lost to him.
The plaintiff’s evidence
9The plaintiff led the following oral evidence in addition to his own testimony:
· Dr Robert Wood
· Dr Jacob Mathai
· Cheryl Ann Russell
10The plaintiff tendered the following written evidence:
· Radiological Investigations;[3]
[3] Exhibit P1, Plaintiff’s Court Book (‘PCB’) 22 – 59.
· Barwon Health Pain Management Unit - 8 December 2014;[4]
[4] Exhibit P2, PCB 60-61.
· 3 Reports of Dr D McCoy dated 29 September 2015,[5] 23 February 2016,[6] and 23 July 2018;[7]
[5] Exhibit P3, PCB 62-63.
[6] Exhibit P3, PCB 65.
[7] Exhibit P3, PCB 143-146.
· Report of Dr Samir Redzepagic dated 3 June 2016;[8]
[8] Exhibit P4, PCB 66-67.
· Report of Dr Xin Jin dated 17 October 2016;[9]
· 3 Reports of Dr Robert Wood dated 1 June 2017,[10] 16 July 2018,[11] and 6 February 2019;[12]
· Discharge summary dated 10 August 2017;[13]
· 2 Reports of Emma Howarth dated 28 November 2017[14] and 7 July 2018;[15]
· 4 Reports of Dr Mathai dated 11 December 2017,[16] 10 July 2018,[17] June 2020[18] and Supplementary report – undated;[19]
· Report of Associate Professor Singh dated 6 August 2018;[20]
· 3 Operation Reports dated 14 December 2105,[21] 21 June 2016[22] and 8 August 2017;[23]
· Medico-legal report by Dr Epstein dated 17 September 2020;[24]
· Medico-legal report by Mr Edwards dated 19 November 2020;[25]
· Employment wage documents.[26]
[9] Exhibit P5, PCB 68.
[10] Exhibit P6, PCB 75-85.
[11] Exhibit P6, PCB 125-140.
[12] Exhibit P6, PCB 154-157.
[13] Exhibit P7, PCB 90-92.
[14] Exhibit P8, PCB 95-101.
[15] Exhibit P8, PCB 117-120.
[16] Exhibit P9, PCB 102-105.
[17] Exhibit P9, PCB 121-124.
[18] Exhibit P9, PCB 158-164.
[19] Exhibit P9, PCB 165-167.
[20] Exhibit P10, PCB 147-150.
[21] Exhibit P11, PCB 168.
[22] Exhibit P11, PCB 169.
[23] Exhibit P11, PCB 170.
[24] Exhibit P12, PCB 226-242.
[25] Exhibit P13, PCB 243-251.
[26] Exhibit P14, PCB 275-280.
The defendant’s evidence
11The defendant led no oral evidence.
12The defendant tendered the following written evidence:
· 3 Reports of Mr Rodney Simm dated 5 August 2020,[27] 24 August 2020[28] and 16 November 2020;[29]
[27] Exhibit D1, Defendant Court Book (‘DCB’) DCB 5-14.
[28] Exhibit D1, DCB 15-18.
[29] Exhibit D1, DCB 19-23.
· Extracts of Corio medical clinic;[30]
[30] Exhibit D2, DCB 32-98, Defendant Supplementary Court Book (‘DSCB’) 42, 53-92.
· Extracts of Alexandra Medical Centre;[31]
[31] Exhibit D3, DCB 99-115.
· Serious Injury Affidavit sworn 12 August 1999;[32]
[32] Exhibit D4, DCB 305-312.
· Worker’s Claim for compensation form and Claim for Compensation for permanent disability;[33]
[33] Exhibit D5, DCB 116-117, 118.
· Report of Dr Louis dated 14 May 1998;[34]
[34] Exhibit D6, DCB 299-302.
· Report of Dr Louis dated 10 January 2002;[35]
[35] Exhibit D7, DCB 303-304.
· Report of Dr Owen Compton dated 29 April 2003;[36]
[36] Exhibit D8, DSCB 4.
· 2 Reports of Mr Tim Schneider dated 12 May 2003[37] and 20 May 2003;[38]
[37] Exhibit D9, DSCB 5.
[38] Exhibit D9, DSCB 6.
· 2 Reports of Mr D’Urso dated 17 October 2007[39] and 27 November 2007;[40]
[39] Exhibit D10, DSCB 7-8.
[40] Exhibit D10, DSCB 9.
· Chronic Diseases GP Management Plan dated 12 March 2010;[41]
[41] Exhibit D11, DSCB 10-11.
· Barwon Health Outpatient Report dated 1 July 2010;[42]
[42] Exhibit D12, DSCB 14.
· The Geelong Hospital record of attendance dated 31 December 2010;[43]
[43] Exhibit D13, DSCB 17-18.
· Barwon Health Outpatient Report dated 20 January 2011;[44]
[44] Exhibit D14, DSCB 19-20.
· The Geelong Hospital Emergency attendance dated 22 May 2011;[45]
[45] Exhibit D15, DSCB 21-22.
· The Geelong Hospital Emergency attendance dated 25 May 2011;[46]
[46] Exhibit D16, DSCB 24-26.
· Report by Dr Makas dated 17 December 2012;[47]
[47] Exhibit D17, DSCB 27.
· Barwon Health letter and history dated 22 May 2013;[48]
[48] Exhibit D18, DSCB 28-32.
· The Geelong Hospital Emergency dated 20 February 2014;[49]
[49] Exhibit D19, DSCB 33-35.
· Barwon Health Surgical Discharge Summary dated 5 September 2014;[50]
[50] Exhibit D20, DSCB 36-41.
· Corio Medical Clinic referral 27 April 2014;[51]
[51] Exhibit D21, DSCB 42.
· 2 Reports by Ms S Cartwright, Pain management unit dated 16 June 2014[52] and 8 July 2014;[53]
· Report by Chris Hare, Chronic Pain Unit dated 28 June 2014;[54]
· Barwon Health Emergency Department discharge notification dated 4 September 2014;[55]
· Report by Dr J Malone dated 1 February 2016;[56]
· Plaintiff affidavit sworn 31 July 2019;[57]
· Report by Mr H Lao dated 6 December 2010;[58]
· CT Lumbar spine and right hip dated 13 August 2013;[59]
· Report of Dr Jeremy Cailes 12 April 2017;[60]
· Report by Mr Brian Davie dated 10 March 1998;[61]
· Report of Dr T Malios;[62]
[52] Exhibit D22, DSCB 43.
[53] Exhibit D22, DSCB 46.
[54] Exhibit D23, DSCB 44-45.
[55] Exhibit D24, DSCB 48.
[56] Exhibit D25, DSCB 52.
[57] Exhibit D26, DSCB 93-97.
[58] Exhibit D27, DSCB 98.
[59] Exhibit D28, DSCB 99-100.
[60] Exhibit D29, DSCB 101-102.
[61] Exhibit D30, DCB 121-123.
[62] Exhibit D31, DCB 148-153.
13I have read all the documentary and medical evidence upon which the parties relied, and I have paid regard to each of the witnesses and read the transcript of the hearing and considered the final addresses of counsel.
14The substantial amount of medical material tendered in the trial was largely explicable due to the extensive period of time the plaintiff’s health and injury related conditions have embraced. In order to appreciate the relative arguments advanced by the parties, it is necessary that I address a series of historical events, however, I intend to refer only to that history that the parties made submissions about and to such of those exhibits that I consider relevant to my assessment of the plaintiff’s damages and to explain my path of reasoning.
The pleaded injuries
15In his Statement of Claim, the plaintiff relied on the following particulars of injury:
(a) Injury to the left foot involving fractures resulting in pain, weakness and disability;
(b) Injury to the cervical spine involving changes in the cervical spine C4-6 region and severe narrowing in exit foramina on left C5/6 area resulting in pain, weakness and disability;
(c) Scarring to the neck and left foot;
(d) Major Depressive Disorder with anxiety and Somatic Symptom Disorder;
(e) Injury to left and right hips;
(f) Altered gait;
(g) Fracture to left ankle;
(h) Aggravation of injury to right and left shoulders and arms;
(i) Aggravation of damage to discs at C5/6 and C6/7;
(j) Sleep disorder;
(k) Pain and suffering.[63]
[63] PCB 10-11.
The identity of and treatment for previous injuries
16Of the other injuries and illness related conditions from which the plaintiff has suffered that predate the 2014 incident, I will address them from a largely chronological standpoint although there will inevitably be some overlap.
1993 left ankle fusion
17The plaintiff suffered childhood horse riding injuries, a legacy of which was that he experienced increasing pain, discomfort and instability in his left ankle as he aged. He underwent a left ankle fusion in 1993. Following the fusion and after about one year of recovery he was able to return to full time employment[64].
[64] T59 and T65.
1997 re-injury and lengthy period off work
18About 4 years later on 24 October 1997, the plaintiff suffered a re-injury whilst employed by Alexandra Freighters as a truck driver. By all accounts this was a significant incident. The plaintiff was loading a vehicle when he was struck by timber and pushed off the load on which he was working. He fell through a vertical height of about 15 feet. The plaintiff said that because of chronic pain and associated disability it was not until perhaps late 2003 or early 2004 that he was able to return to employment.[65] On any view, this was a considerable period of time away from work and reflects the significance of the pain and disablement the plaintiff suffered.
[65] T79, L8-10.
1997 re-injury treatment and consequences
19The plaintiff sustained injuries to his lower back, right knee, left ankle, right ankle, right hip as well as suffering a consequential psychological reaction to the 1997 injury. He was taken by ambulance to the Alexandra Hospital where he was x‑rayed and attended to by his local doctor. He was referred to the Monash Medical Centre for further investigation and then returned to the Alexandra Hospital where he remained in hospital for about two weeks under the care of his treating doctor, Greg Louis. He gradually got back on his feet with the aid of a walking frame.
In patient pain management
20On 23 December 1997 the plaintiff was admitted for 10 days as an inpatient at Bethesda Hospital for pain management. There he came under the care of Mr Brazenor. He underwent both MRI and a bone scan. The bone scan was consistent with recent fractures of L3 and 4 transverse processes. It showed changes throughout both feet related largely to subchondral bony damage plus avulsion fracture. MRI of the thoracic spine showed T7-9 plate irregularity, most compatible with old Scheuermann’s disease, and mild associated kyphosis. The plaintiff’s spinal cord was normal, with no evidence of a recent fracture. MRI of the lumbar spine showed early degenerative changes affecting the L4-5 disc, with normal cord and no evidence of fracture.
March 1998 Arthroscopic surgery
21On 23 March 1998 the plaintiff was admitted for arthroscopic surgery. He was reviewed by Mr. Williamson on 7 May 1998. No further intervention was planned. He was referred for rehabilitation with the aim of increasing his mobility and endurance. He was commenced on a programme including physiotherapy, hydrotherapy and occupational therapy.
Pain and mood changes
22At about this time, the plaintiff was taking six to eight Panadeine Forte per day and Naprosyn 1000SR one daily. Dosage of Amitriptyline that he had been prescribed was increased to 150 mg for depression and he was also taking Temazepam for sleep. He was reporting deterioration in his mood.
23He was attending Dr. Greg Louis on a regular basis from whom he received regular counselling.
June/July 1998 Bethesda treatment
24By now approaching a six month history of chronic pain affecting his back, right knee and left ankle, and because of significant mood problems, a formal pain management program at Bethesda was recommended.
25On 2 June 1998 the plaintiff was assessed by the pain management team at Bethesda but it was felt that he had significant decreased functional activity with associated depressive symptoms and that he needed to seek treatment for his depression before commencing a programme. The plaintiff was commenced on Zoloft and a low dose of Kapanol. By 27 July 1998 he was considered suitable for admission to Bethesda Hospital. He was discharged on 7 August 1998. On discharge he was prescribed MS Contin 20 mgm x 2 per day and Zoloft 200 mgm.[66]
[66] Referred to in report of Dr Jeanet Hofland dated 24 November 1998, DCB 130.
26Unfortunately, the plaintiff did not appear to benefit much from the pain management programme at Bethesda Hospital and made only minimal functional gains. The recommendation by the pain management team was for him to be reviewed by his original surgeon, that he be referred for a psychiatric opinion, that he be managed by Miss McBain, CRS, who had already been involved with him and that he be provided with an orthosis after review of his left ankle fusion.
27On 14 October 1998 the plaintiff was seen by Dr. Peter Ryan[67] a rheumatologist.
[67] Referred to in report of Dr Jeanet Hofland dated 24 November 1998, DCB 131.
April 2003 referral to Mr Schneider and return to work
28Moving on by some number of years, and on 29 April 2003, the plaintiff was referred by his then general practitioner, Dr Owen Crompton to Mr Schneider, orthopaedic surgeon, due to ongoing issues with the plaintiff’s left ankle and left foot. The referral read in part, “I shall be pleased for your opinion concerning Scott left ankle/foot which is painful all the time, worsened when walking on uneven ground”.[68] The referral related a “past history of multiple fractures of the left ankle as a child horse riding, left ankle fusion 1992 and then squashing type injury in 1997 when the timber pack fell off truck landing on left foot.”[69]
[68] Exhibit D8, DSCB 4.
[69] Exhibit D8, DSCB 4.
29Mr Schneider has provided two reports dated 12 May 2003 and 20 May 2003.[70] He recorded a history involving the plaintiff experiencing “ongoing pain around the left hindfoot and midfoot”[71] since the 1997 reinjury accident. Mr Schneider thought the plaintiff was developing osteoarthritis in his subtalar and talonavicular joints. He arranged for a CT guided injection into the subtalar joint and also recommended surgery by way of a fusion of the subtalar joint of the plaintiff’s left foot.[72]
[70] Exhibit D9.
[71] Exhibit D9, DSCB 5.
[72] Exhibit D9 (Report dated 12 May 2003).
30Despite the concerns raised by Mr. Schneider, the plaintiff reengaged with work. The plaintiff’s wife testified to witnessing a slow progression in the amount of work her husband undertook as a truck driver.[73] The plaintiff had purchased his own truck out of monies he received from court proceedings brought as a result of the 1997 injury. Mrs Russell did not think her husband returned to full time work until he commenced as a contract driver for Andrew Peters[74] in 2007.
[73] T351-352
[74] Plaintiff, T92, L9-12.
31The plaintiff experienced intermittent pains following on from his 1993 left ankle fusion. Mr Wood in the course of his evidence suggested that this was to be expected[75].
[75] Mr. Wood, T210, L14-21.
July 2007 cervical spine injury
32On 16 July 2007 whilst working the plaintiff suffered an injury to his cervical spine when he slipped on the floor of his van and landed heavily. On 17 October 2007 he attended Mr Paul D’Urso neurosurgeon who thought he had significant cervical spondylosis. In a report dated 17 October 2007, Mr D’Urso wrote “that the repetitive vibration in long distance truck driving is probably going to exacerbate his cervical condition and, in the long run, he might need to change occupation”[76].
[76] Exhibit D10 DSCB 7.
33On 27 November 2007, the plaintiff returned for review with Mr D’Urso. In view of worsening symptoms, and the plaintiff’s quality of life being adversely affected, Mr D’Urso recommended a C5-6 cervical discectomy and fusion, although it was a procedure he thought could accelerate degenerative change at C4-5[77].
[77] Exhibit D10, DSCB 9.
2009 Chronic Obstructive Pulmonary Disease
34In approximately 2009 the plaintiff was diagnosed with Chronic Obstructive Pulmonary Disease (COPD)[78].
[78] T101.
35On 12 March 2010, he was provided with a chronic disease management plan from the Corio Medical Clinic that was designed to address his conditions of COPD, ankle fusion, cervical canal stenosis and bilateral parotidectomy. At the time the plaintiff was being prescribed Indocid capsules 25 mg (50) and Seretide MDI (250/25) Inhaler, one spray twice per day.[79]
[79] Exhibit D11.
August 2010 Anterior Cervical Discectomy and Fusion
36On 26 August 2010, the plaintiff underwent a C5-6 anterior cervical discectomy and fusion.
37On 6 December 2010, the plaintiff attended Mr Hui Lau neurosurgeon, at the Royal Melbourne Hospital, who noted on MRI scan, multi-level foraminal stenosis, particularly the left C4/5 level. Mr Lau observed that the plaintiff complained of lower back pain and difficulty walking, which he thought was suggestive of spinal canal stenosis. Mr Lau recommended an injection at the C4/5 level as well as anticipating that the plaintiff might be a candidate for further surgery, “for example a foraminotomy at that level”.[80]
[80] Exhibit D27.
38On 30 December 2010, the plaintiff attended the Emergency Department of the Geelong Hospital for “Rt knee and ankle pain and swelling”[81]. He received an injection.
[81] Exhibit D13, DSCB 17-18.
Complaints between 2011 – 13 October 2014
39On 22 May 2011, the plaintiff attended the Emergency Department of the Geelong Hospital with left chest pain, right arm and leg pain.[82] Three days later he again attended the Emergency Department with sharp chest pains[83].
[82] Exhibit D15.
[83] Exhibit D16.
Previous right hip condition – March 2012
40Based on clinical records the plaintiff’s right hip condition appears to have been first identified as an issue of concern on 16 March 2012. There followed various consultations in regard to his right hip until 23 August 2012.
41The plaintiff was treated with medications including Lyrica, Targin and Endone. He was referred to a pain clinic because his pain was unable to be brought under control with medication or cortisone steroidal injections, three of which were administered to his right hip on 30 October 2012[84], 6 December 2012[85] and 24 November 2013[86] On 22 December 2013 the right hip was reported as “better after CSI”.[87] Injections were administered on 23 August[88] and 12 November 2012.[89] The plaintiff had 7 sessions of physiotherapy between February and May 2013.
[84] Exhibit D2, DCB 88.
[85] Exhibit D2, DCB 87.
[86] Exhibit D2, DCB 83.
[87] Exhibit D2, DCB 83.
[88] Exhibit D2, DCB 89.
[89] Exhibit D2, DCB 88.
42On 4 September 2014 the plaintiff attended the Emergency Department of the Geelong Hospital complaining of (amongst other things) abdominal pain and right hip pain.[90] On 7 December 2014 the plaintiff reported right hip area pain and wanted to see a physio as “did feel better when had physiotherapy”[91].
[90] Exhibit D24.
[91] Exhibit D2, DCB 82.
43Despite attendance and treatments and suffering pain there is no record of time off work related to the plaintiff’s right hip prior to the 2014 incident.
Attendances for other ailments
44On 22 May 2013, the plaintiff attended the Neurosurgery Access Clinic with constant pain in the iliac crest and gluteal region.[92]
[92] Exhibit D18.
45A Barwon Health Surgical Discharge Summary dated 5 September 2014, recorded that on 20 February 2014, the plaintiff attended the Emergency Department of the Geelong Hospital with issues associated with a diagnosis of diabetes.[93]
[93] Exhibit D20.
46A report by Ms Cartwright, a Clinical Fellow in Pain Management, Barwon Health dated 16 June 2014, recorded that the plaintiff had been referred by Dr Makas, and was reviewed in the Barwon Health Pain Management Unit. He complained of abdominal pain, sleep disturbance, paraesthesia right leg and low back pain – right side predominant.[94]
[94] Exhibit D22.
47On 26 June 2014, the plaintiff was reviewed by gastroenterologist, Chris Hair[95] who reported a diffuse and mildly tender liver, but he did not believe it was contributing to the plaintiff’s abdominal pain. He pointed out that the plaintiff was significantly overweight. He recommended improvement in dietary restriction and an exercise program.
[95] Exhibit D23.
48On 8 July 2014, the plaintiff was reviewed in the Barwon Health Pain Management Unit by Ms Cartwright.[96]
[96] Exhibit D22.
49On 4 September 2014 the plaintiff attended the Emergency Department of the Geelong Hospital with a “provisional diagnosis of: Abdominal/Flank Pain/Cramps/Intestinal Colic”. [97]
[97] Exhibit D24.
Diabetes and Diverticulitis
50The clinical notes in late 2014 leading up the 2014 incident,[98] appear largely concerned with the plaintiff’s diabetes and of abdominal pain. There was a period of uncertainty of diagnosis leading up to the plaintiff being assessed as suffering from diverticulitis. The plaintiff said that since losing weight his diverticulitis is no longer an issue.[99] There is nothing in the evidence to gainsay the plaintiff’s assertion.
[98] DCB 73-76.
[99] T250, L30-251, L14.
51As to his diabetes, it appears to have been effectively controlled with dietary measures. Dr Mathai said in the course of giving his evidence that the plaintiff’s diabetes can be expected to remain under control into the future and with medication.[100] I have no reason on the evidence to suppose otherwise.
[100] Dr. Mathai, T323-324.
Chronic Obstructive Pulmonary Disease
52The plaintiff was seen by Dr. Malone, a respiratory physician on 1 February 2016,[101] following respiratory difficulties experienced post-anaesthetic.[102] He was also seen by Dr Kale, Consultant Thoracic and Sleep Physician on 13 April 2017.[103] The plaintiff’s current treatment for his airways disease is the use of an inhaler.
[101] Exhibit D25, DSCB 52.
[102] See also Mr. Wood, T.170, L4-19.
[103] Exhibit D29, DSCB101.
53Dr Mathai said in his evidence that the plaintiff’s COPD is stable.[104] Once again, there is no reason to think otherwise.
[104] Dr Mathai, T288, L11-23.
Pseudo Gout
54There were four attendances by the plaintiff between, 5 October 2010 and 24 December 2010 at CMC, and he was also seen at the Geelong Hospital on 30 December 2010,[105] however, no significant treatment was required for this condition.[106]
[105] Exhibit D13, DSCB 17-18.
[106] Plaintiff, T33, L31.
Chest Pain
55The plaintiff attended at Geelong Hospital between 22-25 May 2011 for chest pain.[107] Mr Clarke submitted that it is a relevant fact that the plaintiff has been an extremely heavy smoker, having commenced as a child of about 12 years of age and only ceasing in about 2012[108] although the plaintiff testified that he still smokes occasionally.[109]
[107] Exhibit D15, D16.
[108] A period of approximately 38 years
[109] T243
Subject Injury & treatment and progress
56Following the October 2014 incident, although initially no fractures were diagnosed,[110] a CT scan demonstrated fractures of the 2nd to 4th metatarsals,[111] as well as possible tarsometatarsal joint disruption. Dr Wood explained in the course of giving his oral evidence that the injury the plaintiff suffered was to a very important joint.[112] The plaintiff was treated with a CAM walking boot and then with an ankle brace. Subsequently he was fitted with a permanent rigid ankle foot brace.[113]
[110] Dr. Mathai, Exhibit P9, PCB 158; x-ray left ankle, Exhibit P1, PCB 32.
[111] CT left foot, 21 October 14, Exhibit P1, PCB 33.
[112] Wood, T167, L5-14.
[113] See Dr. Mathai, Exhibit P9, PCB 159-160.
57A lack of progress and the development of pain caused Chronic Regional Pain Syndrome (CRPS) to be suspected.[114]
[114] Dr. D. McCoy, Exhibit P3, PCB 63. Also Report of Mr Wood Exhibit P6, PCB 151.
58Surgery was advised and was performed by Mr Wood on 14 December 2015 at Geelong Private Hospital.[115] An infection followed and the plaintiff that was treated with antibiotics and a week of in-patient care. The plaintiff experienced a respiratory reaction to anaesthesia.[116]
[115] Exhibit P6.
[116] Plaintiff, T40; Wood, T169-170.
January 2016 crutches fall
59On 22 January 2016 the plaintiff having been discharged home from hospital to further recover from his surgery was using crutches when he suffered a fall. He landed on his left side, hurting his shoulder and neck. He was diagnosed with a soft tissue injury to the left shoulder and required cervical spine surgery. Liability was accepted by the insurer. X-ray and CT scan identified changes in the cervical spine in the C4 to C6 region and a narrowing of the exit foramina to the left at C5/6.
60The cervical injury suffered in his 2016 crutches fall caused a re-emergence of pain in the cervical spine.
June 2016 left foot surgery
61On the 21st of June 2016, Mr Wood performed a second operation on the plaintiff’s left foot. Screws from both the fusions the plaintiff had undergone were removed. The plaintiff underwent a further ostectomy and extensive bone grafting, harvested from the tibia to regraft the subtalar and talonavicular joints, fixed with screws through the tibia and calcaneum and separate screws to reapproximate the talonavicular fusion. Mr Wood’s Operation Report notes: “Ongoing issues with left subtalar fusion, failure of left talonavicular fusion. Tibialis posterior and flexor digitorum tendons, flexor digitorum repair, tibialis posterior debridement and repair, removal of screws from both fusions with re-bone grafting of both with significant osteotomies through the talar navicular, in particular, and restitution of fixation supported in a plaster, non-weight-bearing with the use of crutches.”[117]
[117] Report of Dr Middleton, PCB 192 quoting Operation Report of Mr Robert Wood dated 21 June 2016. See also Exhibit P6, PCB 128.
62The plaintiff described his mental health during this period as “horrible”[118].
[118] T47, L15-16.
63A lack of progress led to further surgery to regraft[119] following which the plaintiff required appropriate footwear. Requests were made for its provision by Mr Wood but a period of more than two years elapsed before suitable footwear was provided. According to Mr Wood this period of time caused the plaintiff’s “very poor gait technique”[120]. Mr Wood said that the plaintiff’s right hip had flared up due to his altered gait[121], initially to the exterior of the hips but later to the groin area, and this was attributed to labral tears.[122] This opinion was contested by the reporting of Mr Simm.
[119] Exhibit P6, PCB 126.
[120] Exhibit P6, PCB 133.
[121] Wood, T.176, L3-7.
[122] T178, L5-18.
August 2017 surgery
64Further surgery was performed on the plaintiff on 8 August 2017 at the Royal Melbourne Hospital by way of a cervical laminectomy at C4/5/6 together with bilateral C5/6 foraminectomy and left-sided C4/5 foraminectomy. The plaintiff was discharged after some two days post operatively. A Discharge Summary from the Royal Melbourne Hospital dated 10 August 2017 records a diagnosis of cervical canal stenosis with left greater than right pain and a clinical synopsis of “Left-sided neck and bilateral upper limb pain and weakness from a fall while using crutches.”[123]
[123] Report of Dr Middleton, PCB 197 quoting Discharge Summary – Royal Melbourne Hospital dated 10 August 2017.
January 2018 surgery
65On the 3 January 2018, because of discomfort from the protruding stabilisation screws, an operation to the plaintiff’s left ankle to remove the four screws and the bone grafting of the screw holes, together with a further ostectomy, was performed by Mr Wood with steroid injections in the 2nd tarsometatarsal joint in the left foot and the left hip.
66Infection followed that led to wound debridement and an ostectomy that was performed on 15 May 2018 to remove sequestered bony fragments in the left foot.[124]
[124] Exhibit P6, PCB 135-6.
The plaintiff
67I have already referred to a number of aspects of the plaintiff’s evidence in the course of these reasons and there is limited probative worth to be gained in delving too much further into it. Nonetheless, in appreciating the basis for the award of damages I have arrived at, it is appropriate that I address some additional evidence of the plaintiff.
68The plaintiff said that following the ankle fusion in 1993 he was laid up for about six months but then able to return to work. He acknowledged that the effects of the fusion resulted in some limitation to the movement to his ankle.[125] However, he said that the movement he retained allowed him still to be able to run.[126] He also said that he was capable of walking around a golf course.[127]
[125] T23.
[126] T23.
[127] T24.
69The plaintiff acknowledged that the 1997 accident was a serious occurrence that resulted in him being off work for a very long time. In his words, “Life wasn’t real good after the accident, put it that way… I had a lot of pain, physically trying to get yourself going again.”[128]
[128] T26, L15-16.
70The plaintiff had scant memory of medical attendances in 2003, including on Mr Schneider, orthopaedic surgeon because of problems with his left ankle. For example, he had no recollection of an injection into his foot despite it being reported to have provided him with significant relief.[129]
[129] T26.
71The plaintiff said he did not make a workers’ compensation claim for the work injury in 2007 when he slipped on a frozen floor in a refrigerated vehicle and hit his head and hurt his neck. He thought he only had a couple of weeks off work before returning. He was driving interstate as part of his work. The plaintiff said that his neck began to worsen following the 2007 injury and over time.
72I have mentioned that on 17 October 2007 Mr D’Urso examined the plaintiff and took a history that included significant cervical spondylosis and he indicated that it would be a good idea if the plaintiff changed his occupation because repetitive vibration involved in long distance truck driving would likely exacerbate his cervical condition. The plaintiff said he could vaguely remember discussing his occupation as a truck driver with Mr D’Urso.[130]
[130] T93.
73The plaintiff saw Mr D’Urso again on 23 November 2007. It seems that by this time the plaintiff’s condition had worsened and Mr D’Urso arranged for an MRI scan of both the plaintiffs cervical and lumbar spine. Records relate that the plaintiff was complaining of low-grade chronic back pain which he rated at about 4/10.
74The plaintiff thought he was off work for about eight months following the anterior cervical discectomy and fusion surgery was performed at the Royal Melbourne Hospital on 26 August 2010. He described a good result from the surgery.[131] He said did not recall having any significant problems with his neck.[132]
[131] T29.
[132] T29.
75The plaintiff explained the various operations and manoeuvres he needed to execute in the use of the truck trailer he drove in his work for the defendant.[133] He said he enjoyed his truck driving.[134] He said, “No, I love the job. Like, it was good.”[135]
[133] T29-30.
[134] T31.
[135] T32, L6-7.
76He said from time to time he had seen his doctors working at the Corio medical clinic.[136]
[136] T32.
77He said that he developed pain in his right hip.[137] In Court the plaintiff described the area involved as on the outside of the right hip commencing from around the belt line and extending down about 6 to 7 inches from that point.[138] He thought that despite having been treated with cortisone injections and having some physiotherapy, he did not have any significant time off work because of the problem and perhaps only the very occasional day off work.[139]
[137] T32.
[138] T33.
[139] T33.
78He explained he had some problems with his right knee and he recalled some discussion about a possible diagnosis of pseudo gout.[140] However, he said he had no significant treatment for the condition.
[140] T33.
79The plaintiff said he had been prescribed Endep for a long time and he had a history of trouble sleeping.[141]
[141] T34.
80The plaintiff said he had experienced unwellness particularly in his abdomen in around 2014 and which he believes was diverticulitis.
81Concerning his diabetes diagnosis, he said that he had been given advice to lose weight, to exercise and to change his lifestyle, all of which he did with the result that he lost about 25 kg. He gave up junk food and started to eat healthily.[142] He said he no longer takes medication for diabetes and his diverticulosis has ceased to be an issue.[143]
[142] T35.
[143] T35.
82Throughout all of these travails I have detailed the plaintiff said he continued to work.[144]
[144] T35.
83The plaintiff said that the most substantial injury he suffered as a result of the fall on 13 October 2014 was to his left ankle. He said he heard “a crack and pop”.[145]
[145] T36, L27.
84He thought he wore a CAM walker for about six weeks. By the following June he had returned to office work for an hour a week and this arrangement continued for approximately six months.[146]
[146] T38.
85The plaintiff gave an account of having come under the care of Dr Wood on referral from Dr Mathai[147] and how Dr Wood thought he might have CRPS and referred him on to see Dr McCoy[148] whom he continues to attend.[149] Dr McCoy has treated the plaintiff with medication as well as with ketamine infusions. The plaintiff said he had had five.[150] The infusions required the plaintiff to be an inpatient at Epworth Hospital Geelong. He described the experience of the infusions as “Pretty horrible actually”.[151] He said they are “just a total mind altering experience”.[152] He said he obtained some relief from pain after each infusion.
[147] T39-39.
[148] T39.
[149] T42.
[150] T42.
[151] T42, L22-23.
[152] T42, L26-27.
86The plaintiff said that in the period of the year or so from the accident in October 2014 to undergoing the fusion of the subtalar joint surgery on 14 December 2015 he had been able to walk on his foot unaided but he was experiencing pain that he managed by taking pain relief medication. He said that he had been unable to return to truck driving because “I couldn’t get in the truck, I couldn’t push the clutch in.”[153]
[153] T39, L27-28.
87The plaintiff said that following the December 2015 subtalar fusion surgery he was discharged and was ambulating on crutches. He developed an infection in his foot. He returned to hospital. He was on antibiotics. He developed pneumonia. As the plaintiff put it, “I was feeling pretty lousy after the surgery with the infection and then having pneumonia, yeah.”[154] It was then just a day after having been released from hospital from the subtalar fusion surgery that he fell off his crutches and was readmitted.
[154] T40, L29-31.
88The plaintiff said he continued to see Mr Wood after the fall from his crutches in 2016.
89The plaintiff said it took a very long time for him to be provided with the footwear that Dr Wood had requested.[155] He said that in the period of about 15 months before the shoes were supplied his foot continued to give him problems. He said, “I couldn’t walk properly, no.”[156] He said he was having physiotherapy with Mr Jarman and he was also utilising a walking stick.[157]
[155] T44.
[156] T45, L7.
[157] T45.
90The plaintiff said he developed pain on the inside of both sides of his groin.[158] He finds that when his legs are parted it is painful making walking difficult.
[158] T45.
91He said following the fall from his crutches and the injury he had sustained to his neck he was left to his own devices on the public health system and that it was some 17 months later on 8 August 2017 that he had a C4/6 cervical laminectomy.[159]
[159] T47.
92The plaintiff described his mental health during this period as, “Horrible”.[160] He said, “Life was rubbish”.[161] He said he was “Heartbroken” by his inability to get back to work.[162] He said he was walking with the aid of a walking stick.[163]
[160] T47, L16.
[161] T47, L17.
[162] T47, L23.
[163] T47.
93He said he was under the care of a psychologist Miss Emma Howell.
94On 3 January 2018 Mr Wood removed the metalware that he had earlier put in after which the plaintiff said he developed an infection and was treated with antibiotics.[164] On 15 May 2018 the plaintiff had surgery to clean up the wound which had become infected as well as to remove diseased or necrotic bone fragments in his left foot.[165]
[164] T48-49.
[165] T49.
95The plaintiff said that Mr Wood had suggested the prospect of a further surgery by way of a mid-foot fusion but he said that he is reluctant to have such a procedure performed.[166]
[166] T49.
96The plaintiff has suffered some scarring as a result of the various surgeries. I inspected the plaintiff’s foot as well as the base of the back of the plaintiff’s neck leading down to his back proper over the midpoint which disclosed some scarring from the 2017 procedure. The scar at the front of the plaintiff’s neck is from the procedure in 2010.
97The plaintiff said that after the fusion in 1993 he retained some movement of his ankle but he now no longer has any movement of his ankle.[167] To put on trousers he has to wiggle them until he gets them up around his waist. He cannot move his foot from side to side. He cannot run. He cannot walk on uneven ground because it is awkward to do so as it is to climb stairs. He described how he needs to turn sideways when navigating stairs because his foot doesn’t bend.[168] He said he suffers from pain all the time.[169] He wear special runners with a carbon fibre plate to ensure the left shoe remains solid and does not bend or flex.[170]
[167] T51.
[168] T51.
[169] T51.
[170] T51.
98His current treatment consists of hydrotherapy in the swimming pool and exercises twice a week when he feels up to it. As reflected by the testimony of Mrs Russell, the plaintiff said he has tried driving “but it’s uncomfortable, I can’t do it.”[171] He said his neck movement is very limited and if he moves it to any degree “the pain starts to get overwhelming”.[172] His groin pain is uncomfortable.[173]
[171] T52, L11-12.
[172] T52, L17.
[173] T52.
99The plaintiff described his day to day life as lonely added to by his wife working full time. He watches television, plays with his dog, plays games on an iPad. He looks at truck groups on Facebook.[174] He described the use of a modified milk crate with a cushion on top that he deploys so as to enable him to sit lower when trying to pull some weeds from the ground of the garden.[175] He uses a stick all the time. On a good day he may walk up to three or four minutes but on a bad day he cannot manage much more than a minute.[176]
[174] T53.
[175] T52.
[176] T53.
100He takes Palexia for pain morning and night and on occasions a quick release tablet during the day. He takes Pristiq as an antidepressant and gabapentin for nerve pain. He takes Seroquel for sleep.[177]
[177] T54.
101The plaintiff said that if he had not suffered the injury in October 2014 he would have liked to have worked until retirement age.[178]
[178] T36.
Cross-Examination
102The plaintiff agreed that he had been on medication to assist with his sleep since the 1997 accident.[179]
[179] T83.
103He said he commenced smoking at about 12 years of age.[180] He stopped smoking probably in 2012 but still has a cigarette “every now and again.”[181] He still has need for the use of a puffer occasionally for his chronic obstructive pulmonary disease.[182] However, he is not under the care of a respiratory physician.[183]
[180] T57.
[181] T60, L8.
[182] T61.
[183] T61.
104The plaintiff agreed that leading up to his fusion in 1993 he was experiencing significant pain in his ankle and it was impacting his ability to walk properly and his capacity to work.[184] The 1993 fusion surgery culminated with a year off work and resulted in the fixing of his ankle into a semirigid position.
[184] T58.
105The plaintiff said he could not remember having told doctors that he had been unable to run because of the 1993 fusion and that he could run after the procedure although it was certainly not something he did regularly but rather, “only when I had to”.[185]
[185] T59, L24.
106The plaintiff was questioned about the contents of a report from Dr Elsner dated 18 March 1999[186] that included a history that he had not played any sport for many years and had not ridden horses for about 20 years. The plaintiff acknowledged that he hadn’t ridden horses for long-time.[187] As to playing sport, he said, “I used to play a bit of golf at Alexandra”.[188] Dr Elsner also wrote, “Prior to the October, 1997 accident, he was not able to run because of his fused left ankle.”[189] The plaintiff maintained that if he needed to run, he could - for a short distance.[190]
[186] DCB 163-170.
[187] T62.
[188] T62, L28-29.
[189] DCB 165.
[190] T63.
107It was suggested to the plaintiff that after the October 1997 injury and for years later he experienced and complained of pain and restriction associated with his left ankle. He said, “I can’t say yes, no.” [191] He guessed he had experienced pain in his right hip after the 1997 accident. It was put to him that the pain continued on for a number of years, but he said, “No, it went away.”[192] He said he didn’t recollect experiencing chronic pain for years after that accident.[193] He said he used a walking stick for years after that accident.[194] It was put to him that he was unable to drive for years after the 1997 accident and he said that he didn’t drive “because of the medication”.[195] He agreed he was heavily reliant on strong pain medication including morphine and methadone.[196]
[191] T68, L20.
[192] T68, L26-27.
[193] T69.
[194] T69, L16.
[195] T69, L18.
[196] T69.
108The 1997 injury gave rise to a worker’s claim for compensation as well as claim for permanent disability. The compensation claim form completed in March 1999, that is some 18 months after the accident, identified the plaintiff’s back, right hip, both knees and both feet as affected. In answer to the claim asking about any previously affected body parts, the response included, “Had ankle fusion in 1993. Since accident it has been totally no good at all”.[197]
[197] Exhibit D5, DCB 118.
109It appears too that the plaintiff made a claim on his superannuation policy for a TPD benefit. A letter was written by Dr Louis in March 2003 in relation to the same.[198]
[198] Exhibit D3, DCB 115.
Mrs Russell
110Cheryl Ann Russell is the plaintiff’s wife. She works in palliative and rehabilitation care. Her husband was working as a truck driver in 1980 when they met. She said at that time he was in good health. Mrs Russell addressed her husband’s 1993 fusion operation to his left ankle. Mrs Russell said it went well. She said he had time off work to allow it to heal and subsequently returned to truck driving.
111Mrs Russell addressed her husband’s work accident in 1997 which she described as having mainly injured his back but also his knee and, as she put it, perhaps involving him having broken some toes. She thought he would likely never return to work. However, some five years later he received a payout following a legal claim and he bought a truck and trailer and he gradually came back to truck driving and eventually to full-time work.
112Mrs Russell said that prior to the fall in 1997 her husband had no restrictions in undertaking activities. When they resided in Alexandra, his weekend pursuits included fishing in Lake Eildon and rounds of golf, perhaps once a month, if he could. She said he fished once or twice a month, but later on, she did not think he did as much fishing. They would boat in summer.
113Mrs Russell said her husband had been working in the period of time up to the cervical fusion surgery and was then off work for a period of a couple of months to recover. His work with the defendant involved long hours, sometimes requiring him to rise at 4am, and not return home until 7pm. Around the house he mowed the lawns, making use of the whipper snipper. He helped with her horses, washed the car and helped around the house. She said he was capable of all of this up to date of the fall in 1997. He did not complain to her about his ankle.
114Mrs Russell could not remember her husband with a hip problem in about 2012. She did not recollect her husband attending Mr D’Urso. She said he had some stomach pain about 6-9 months prior to the 2014 incident. She said he was pushing his hand in the abdominal area. She remembered him going to the doctor but he told her it was for his stomach. He was instructed to lose weight. He was diagnosed with diverticulitis. Following his diabetes diagnosis, he and she regularly walked perhaps 20 to 30 minutes a day. She made his lunches in lieu of him consuming takeaway food. All up, he lost weight. She confirmed that he is no longer taking medication for his diabetes.
115Mrs Russell said she observed her husband developing depression. He became grumpy as a result of an inability to work. She said he was that character of a man whose ethos had been to work “unless he was really dying and had to stay home.”[199]
[199] T341, L1-3.
116Mrs Russell remembered that following the accident her husband used a moon boot and as well as various foot braces but he was not improving.
117Mrs Russell said that following her husband’s fusion in December 2015 and release home from hospital that he fell from his crutches. She returned home from work and he told her he had had fallen. He was bruised across his ribs. He said he had smacked his head on the wall as he fell.
118Mrs Russell said that her husband is not mobile. He has lost interest in everything. He suffers from mood swings. He is not the person he once was. She said he had tried to drive her automatic car once when she needed to attend hospital but his efforts to drive his manual transmission car failed.
119But for his physical condition Mrs Russell said that she and her husband had hoped to keep working and, when they retired, to travel around Australia.
120In cross-examination Mrs Russell agreed her husband had a number of significant health issues before the accident and had experienced long periods out of the workforce and had lost his driving licence twice.
121He returned to work truck driving after the ankle fusion in 1993. She recalls the back injury from the fall but doesn’t recall a right hip injury and both ankle injuries. He was reliant on heavy pain relief medication. She said that at one point in time he was prescribed methadone which she hated because of the effects it had on him. She said that for many years he was at home grumpy, depressed and his mood was low.
122She did not recall her husband having said that sitting in the truck aggravated his pain. She recalled him having an injection in his right knee.
123Mrs Russell was unwilling to agree with Mr Clarke that in the two years before the accident her husband had not been in good health. She described attendant “niggles” but he kept working.
124Mrs Russell said that following her husband’s diabetes diagnosis he may have had a couple of days off work.
125Mrs Russell agreed that her husband complained of TM joint pain in his jaw. She believed he had perhaps one injection for it and was prescribed Norspan patches. She also recalled that in the period of time leading up to about October 2014 he attended the Emergency at Geelong Hospital possibly with stomach pain.
126In re-examination, Mrs Russell said it was diabetes that caused her husband to gain weight and to visit the doctor quite a bit but that nonetheless he still worked around the house and went to work. She could not recall him complaining about pain in his hip joint and he had continued to work until he had the ankle fusion.
Making sense of the plaintiff’s medical evidence
127Of the substantial medical evidence tendered by the plaintiff, Mr Brett placed particular emphasis on the recent specialist opinions, notably of the plaintiff’s treating orthopaedic surgeon, Mr Wood, dated 1 June 2017, 16 July 2018, and 6 February 2019.[200] Mr Wood’s reports provide considerable detail of very substantial effects the 2014 injuries have had on the plaintiff.
[200] Exhibit P6.
128Mr Wood attended via Zoom for the purposes of cross-examination.
129The defendant pointed to the concession by Mr Wood that once an ankle fusion is performed it creates a vulnerability to further injury in other areas of the foot.[201] So too, the risk of vulnerability to further injury increases with the passage of time.[202] Mr Wood agreed that the longer a fusion is in place the greater the likelihood of complications.[203] Mr Wood explained that the extent of likely degeneration in an ankle following a fusion depends on a number of factors, including how long the fusion is in place, how active the person is, whether the person works in a manual or sedentary occupation and whether the person is overweight for an extended period of time.[204]
[201] T183, L29-31.
[202] T184, L1-4.
[203] T184, L5-7.
[204] T184, L25-31/T185, L1-5.
130It is noteworthy that the plaintiff was only 31 years of age when he underwent the left ankle fusion. Mr Wood agreed that the plaintiff’s relative youthfulness and his long working life as a truck driver meant it was very likely that the degenerative changes in the subtalar and talonavicular joints would progress to the stage where the plaintiff would experience difficulties with his foot.[205] Mr Wood also thought it very likely that those increasing difficulties would lead to the plaintiff requiring surgical intervention.[206] Because of the presence of subtalar joint disease, Mr Wood also recognised that the likely operative intervention in such circumstances would be a subtalar joint fusion and talonavicular joint fusion which is of course what the plaintiff came to by way of surgery.[207]
[205] T185, L29-31/T186, L1-4.
[206] T186, L5-7.
[207] T186, L8-12.
131Mr Clarke submitted that it was an important consideration in my assessment of damages to be awarded the plaintiff that Mr Wood had accepted that there was a significant risk that absent the incident of injury in October 2014, that at some point in time the plaintiff would come to the subtalar joint fusion and the talonavicular joint fusion.[208] Although Mr Wood said that the October 2014 incident brought forward the need for the subtalar joint fusion and the talonavicular joint fusion,[209] he was unable to predict how long it would have been absent that injury before the plaintiff would have come to need the fusion, but he recognised that it was a significant risk.[210]
[208] T186, L13-26.
[209] T186, L24-26.
[210] T188, L12-20.
132On this point, Mr Wood was directed by Mr Clarke to a letter of referral from Dr Compton to Mr Schneider dated 29 April 2003, and as well to Mr Schneider’s letters dated 12 May 2003 and 20 May 2003,[211] where he noted the presence of osteoarthritis in the subtalar joint and talonavicular joint and recommended that the plaintiff undergo a subtalar joint fusion. There then followed this exchange between Mr Clarke and Mr Wood:
“Q. Certainly, but what I am suggesting is that such was the level of pain for an extended period and such was the level of disease as at 2003, so that is 10 years after the original fusion, so when Mr Russell is 41, the very high likelihood is that in the future, perhaps in 10 years or more, he was going to come to the subtalar joint fusion?
A. A significant risk, yes, absolutely.
Q. When you say significant risk, are you saying it is very likely to have happened?
A. I would say – I would put, more likely to have happened than not.”[212]
[211] Exhibit D9.
[212] T194, L6-15.
133Mr Wood also gave evidence about the plaintiff’s current right hip condition. As his reports identify, and notably his report dated 16 July 2018, he attributed the hip condition to the plaintiff’s altered gait after having numerous surgeries performed to the left ankle. Under cross-examination by Mr Clarke Mr Wood said that:
(a) he was unaware of the plaintiff’s functioning prior to the accident in 2014;[213]
(b) he was unaware the plaintiff had suffered right hip pain after the accident in 1997;[214]
(c) he was unaware that in the 2½ years before the October 2014 incident the plaintiff was complaining of chronic right hip pain.[215]
[213] T196, L15-20.
[214] T198, L24-26.
[215] T198, L27-31.
134Despite these concessions Mr Wood remained of the opinion that the plaintiff’s right hip had become symptomatic in approximately February 2017 by virtue of his altered gait. Neither did Mr Wood accept the proposition that the plaintiff’s complaints of groin pain was highly unlikely to be caused by an abnormal gait because of the fact of the plaintiff’s limited physical activities since the post-accident surgery.
135Mr Wood accepted that MRI identified labral tears which he said are common constitutional problems and typically do not produce symptoms. He said that he thought that he would have conducted an examination to correlate the tears on the scan to the symptoms complained of by the plaintiff, however, Mr Clarke noted in the course of his final address that there was an absence of evidence that Mr Wood make such an examination. Although Mr Wood accepted that labral tearing can be associated with osteoarthritis, he did not believe osteoarthritis was present in 2017. However, Mr Wood agreed that arthritis in the hips is a very common constitutional issue and particularly so in overweight people[216] and that for a person of the plaintiff’s height of approximately 180cm, and who had spent a significant amount of time hovering around 100kg, this would approximately double the chance of osteoarthritis of the hips.[217]
[216] T202, L21-24.
[217] T202, L27-31/T203, L1-2.
136Mr Wood accepted that the plaintiff’s left ankle fusion at age 31 with issues he had experienced since that time, significantly increased the chances of a shortened working life.[218] However, he also said:
“… I can’t say that without the injury in 2014 that [pre-existing degeneration] would have progressed or that it would have stopped him working …”[219]
“… I would assume without the injury he would have kept functioning. For how long, I can’t say. It may have been decades, it may have – I don’t know …”[220].
[218] T209, L14-23.
[219] T200 L2-4.
[220] T209 L6-10.
137There followed this exchange in re-examination
“If he comes to 2013 or 2014, 21 years later and he’s still working full-time, in fact doing over time, what does that say about any impact it [the left ankle fusion in 1993] might be having on his working life? -To the point of that injury, I would say it’s had little impact”.[221]
[221] Wood, T210.9-13.
Dr Mathai
138Dr Mathai is the plaintiff’s treating general practitioner. The plaintiff tendered four reports from Dr Mathai dated 11 December 2017, 10 July 2018, June 2020 and an undated supplementary report.[222] Dr Mathia attended and was cross-examined by the defendant.
[222] Exhibit P9.
139Dr Mathai’s evidence encompassed certain of the plaintiff’s history of treatment.
140The plaintiff first consulted Dr Mathai on 13 October 2014 in connection with an injury to his left ankle. It was initially diagnosed as a soft tissue injury, and on review on 16 October 2014, it had improved such that it was considered the plaintiff could start light office duties.
141The plaintiff was next reviewed on 20 October 2014 by Dr Makas, another doctor at the clinic. The plaintiff’s left foot and ankle were still sore and not recovering. Dr Makas arranged for a CT scan, and in a report back to Dr Makas on 21 October 2014, it identified fractures to the 2nd, 3rd and 4th metatarsals, extending into the tarsometatarsal joints.
142Dr Mathai advised the plaintiff to use a CAM walking boot. He referred him to an orthopaedic surgeon for further management, and who appeared happy with the healing of the fracture.
143On 18 December 2014, a bone scan was arranged. It raised a concern of a delayed healing, and the period of time for the use of the CAM boot was extended for a further 6-8 weeks. Bone scan showed the possibility of delayed union and disruption of the Lisfranc ligament plus arthropathy of the midtarsal joints. The orthopaedic surgeon continued to recommend conservative treatment.
144An updated CT scan on 24 April 2015 identified healing of the fracture. A new brace was fitted and monitoring of the plaintiff’s recovery continued through to July 2015. On review on 30 July 2015, the pains in the plaintiff’s foot were persisting, mainly around the ankle and hindfoot and near the 2nd, 3rd and 4th toes.
145Dr Mathai pointed out that an IME doctor had told the plaintiff that he would not drive trucks again, prompting a second opinion to be obtained from Mr Wood. In September 2015, the insurer advised the plaintiff that he could not undertake his pre-injury duties but undertake work that avoids weight-bearing and forceful use of the left foot. At the same time physiotherapy treatment was withdrawn.
146Dr Mathai said the plaintiff became depressed. He was referred to Dr Samir Redzepagic, psychiatrist, who commenced him on Lexapro. Lexapro was changed to Effexor. A diagnosis of chronic pain in the left ankle together with depression was made.
147An updated MRI scan from 29 September 2015 revealed a moderate degree of osteoarthritic changes.
148The plaintiff saw Mr McCoy, a Pain Specialist, on 29 September 2015.
149The plaintiff found himself reliant upon a single-prong walking stick to ambulate. Mr Wood had recommended custom-made shoes and a continuation of regular hydrotherapy. MRI of both hips showed evidence of labral damage, and the plaintiff was treated with a CT guided corticosteroid injection.
150The plaintiff’s dose of Effexor was now 225mg daily, which was subsequently ceased and he was advised to take Cymbalta for his depression, moving from 30mg to 60mg daily.
151The plaintiff failed to experience a change in his pain levels in the left foot and both hips, and Mr Wood undertook a further surgical procedure at the Royal Melbourne Hospital for his cervical spine. Physical treatment consisted of hydrotherapy and ongoing psychological counselling. A request for further physiotherapy and myotherapy sessions was made for post-operative rehabilitation.
152Dr Mathai said that due to pain in December 2017 the plaintiff commenced on a series of ketamine infusions including in February 2018 but they did not greatly help. The plaintiff was suffering from poor sleep.
153Dr Mathai advised the plaintiff to wean himself off Cymbalta and to start Pristiq at 25mg daily. The plaintiff reported that Pristiq at 25mg daily was helping him, and so it was increased to 50mg daily. Dr Matthai further reviewed the plaintiff in April and May 2018 at which times his left foot and ankle remained unchanged.
154Mr Wood arranged an MRI scan of the left foot and identified some dead bone which he removed on 15 May 2018.
155Dr Mathai increased the plaintiff’s dosage of Pristiq to 100mg daily.
156The pains in the plaintiff’s hip, foot and neck remained unchanged and he continued to require a single pronged walking stick in order to walk.
157As to his opinion of the plaintiff’s work prognosis but for the 2014 incident, Dr Mathai said in his June 2020 report that:
“If it was not for the workplace injury, I would have anticipated Scott continuing in his job until he retired.”[223].
[223] Exhibit P9, PCB 164.
Mr Simm
158Mr. Simm examined the plaintiff on 4 August 2020. It was of necessity occasioned by Covid restrictions, a zoom examination.[224] He produced three reports stemming from examination of the plaintiff dated 5 and 24 August 2020 and 16 November 2020. He was furnished with the plaintiff’s clinical notes. Among the questions he was asked was to assess the effect of the plaintiff’s comorbidities on his working life.
[224] Exhibit D1, PCB 5.
159Mr Simm was provided with radiological martial namely a CT scan of the left foot dated 26 October 2017; an Operation Report dated 14 December 2015; and an Operation Report dated 23 June 2016 and a copy of the plaintiff’s serious injury application affidavit.
160Mr Simm considered that the plaintiff’s bilateral groin pain was most likely due to degenerative arthritis of the hips with symptoms presenting “a considerable time after the second fall in January 2015 (in his second report he corrected that date to 2016). He has been told that the MRI scans show labral tears. These are commonly found, age-related changes which may be present without causing symptoms. The most likely cause for bilateral groin pain would be degenerative arthritis of the hips, which is quite a common constitutional condition, and I note his body weight is 92kgs” [225]
[225] Exhibit D1, PCB 13.
161Moreover, in his second report, Mr Simm contested the inference that the plaintiff’s bilateral groin pain that came on in 2016 was related to his abnormal gait. Mr Simm wrote that considering the plaintiff’s “extremely reduced level of physical activity, this seems highly unlikely, and it is now evident that bilateral groin pain was pre-existing and particularly the right hip and groin region had been a major problem prior to the subject fall and had been treated with an injection of Steroid and chronic pain management…I would have anticipated that the diagnosis of his bilateral groin pain was osteoarthritis of the hips, but apparently an MRI scan of the hips showed some labral tears, which are an indication of early degeneration, but these changes are also present in a high percentage of the asymptomatic population.”[226]
[226] Exhibit D1, DCB 17.
162It is relevant to note that on the question of gait, and in the course of his cross-examination, Dr Mathai said that he did not “fully agree” with Mr Simm’s opinion concerning the altered gait but he acknowledged that after the 2014 incident the plaintiff had a significantly reduced physical activity although he said somewhat faintly in support of his opinion, that he “has to do other things by walking and he was already walking with offloading because of the left foot pain”.[227]
[227] T318.
163Mr Simm was not provided with the MRI scan of 2017 to which he referred in his second report. It identified for both hips, no established arthritis or convincing high grade chondral loss and no hip joint diffusion or synovitis. Dr Mathai said that it was “Unlikely” that if the scan of 2017 did not identify arthritis, it was present prior to that time.[228]
[228] T319.
164In Mr Simm’s third report he wrote that despite all the plaintiff’s previous documented problems, he was still able to drive the bulk grain tipper. He said that[229]:
“It would seem that it would only be a matter of time before his multiple musculoskeletal symptoms, depression and chronic pain syndrome would catch up with him and that he would cease work, but it is not possible to predict when that would have happened, if he had not suffered the injury to his left foot. There was reference in the medical notes between 2012 and 2014 that he did take occasional days off work, but these days off did not necessarily relate to his musculoskeletal system. He was also suffering from bilateral knee pain, particularly right knee pain, presumably also due to degenerative pathology.”
[229] Exhibit D1, DCB 22.
165Mr Simm recorded too, that[230]:
“He gave a history to me that he was still playing golf and fishing, leading up to the incident in October 2014, but I find this difficult to reconcile with the multiple entries in the medical practice record in 2012, 2013 and 2014, which recorded severe musculoskeletal symptoms and the need for specialised pain management, anti-inflammatory, opioid analgesic and antidepressant medication. In 2013 pain levels were recorded to be 8/10, which is severe pain, and I believe it would be difficult for him to continue in the workplace, in the presence of pain of such severity, in the longterm. Nevertheless, it is a matter of record that he was working when the incident occurred on 13 October 2014, and that the severe adverse pain response associated with that injury was the factor which triggered his cessation of employment”.
[230] Exhibit D1, DCB 22.
Plaintiff’s submissions
166Mr Brett submitted that no doctor was called on behalf of the defendant and nor was evidence led to support the proposition that the plaintiff was suffering from any condition which would or likely have incapacitated him and led to him needing to cease work prior to retiring age. Mr Brett commented that the plaintiff’s employer who may have been able to give evidence as to any difficulties that the plaintiff had in performing his employment had not been called and he invited a consideration of the principle expressed in Jones v Dunkel[231]. By virtue of my decision and my analysis of reasons for my award of damages, it has not been necessary for me to determine if a Jones v Dunkel inference arose. In any event, the point of any significance is less the plaintiff’s imposition from his pre 2014 incident conditions than the risk of their progression in the period thereafter and their capacity to have otherwise precluded the plaintiff’s continuing employment to age 67.
[231] (1959) 101 CLR 298.
167Mr Brett addressed the matter of the plaintiff’s TMJ problem that arose subsequent to his parotid surgery in about 2001. The pain was of sufficient severity to have prevented the plaintiff from working as a truck driver for a period of time in 2015.
168Mr Brett addressed what he characterised as Mr Simm’s “misdiagnosis” of osteoarthritis, and submitted that even making allowance for the diagnosis, Mr Simm could not predict when the plaintiff would cease work had he not suffered the injury to his left foot[232]. Moreover, Mr Brett submitted that the plaintiff’s work prognosis should be considered bearing in mind the diabetes/diverticulitis that had badly affected him in 2014, nonetheless, had not prevented him from working including substantial overtime but that at any rate the condition is under control.
[232] Exhibit D1, DCB 22.
169Mr Brett submitted that at most, any allowance for the plaintiff’s degenerative lumbar spine disease, his neck and right hip should be by way of a relatively minor adjustment by way of the vicissitudes and a deduction of no greater overall than 20 to 25%.
170Mr Brett addressed the criticism levelled at the plaintiff for not being frank and lacking candour in his account of the injuries that occurred in the 1997 accident, particularly injury to the right hip and injury to the left ankle. Mr Brett acknowledged that the 1997 accident was obviously a very serious accident and the plaintiff had suffered fractures but despite feeling at the time he was never going to get back to work, a belief that he had sworn to in his serious injury affidavit and did not resile from at trial, the plaintiff demonstrated initiative and determination and purchased a truck. He commenced slowly and gradually built up a working capacity which was then interrupted by the loss of his licence.
171Mr Brett in seeking to meet the criticisms levelled at the plaintiff’s credit referred to the plaintiff’s evidence at trial that he played golf occasionally. When questioned more closely by Mr Clarke the plaintiff responded that in the two years before October 2014 the number of times he played was ‘probably three, maybe four’.[233] Mr Brett submitted that it was a minor point of criticism that arose when Mr Edwards, orthopaedic surgeon, in response to the plaintiff mentioning golf as a hobby asked him how often he played, and the plaintiff said “About once a month”[234].
[233] T137.
[234] Exhibit P28, PCB 247.
172Mr Brett submitted that the effect of plaintiff’s deposition in his serious injury affidavit that previous to the 2014 injury he had been in “good health”[235] warranted an assessment in light of the fact that the affidavit detailed the previous ankle fusion, it addressed the cervical fusion, and it deposed to the subsequent pre 2014 incident fall. It revealed the existence of his diabetes. Mr Brett submitted that “it's quite clear that he did not recall, when he swore that affidavit, that the diabetes had not been cured at the time that he had this fall, it was in the process of being cured, so he was wrong to that extent and [he] accepted that he wasn't in good health at the time, but that's not to say he was trying to mislead anyone.”[236]
[235] Exhibit D26, Paragraph 9.
[236] T436, L6-11.
173Mr Brett further submitted that if the plaintiff’s intention was to mislead, it would have proved to be a fool’s errand and a risky one because the defendant would inevitably have obtained access to his clinical notes.
174Mr Brett addressed the probative worth of the documented history of medical attendances by the plaintiff between 2011 and 2014. In particular, Mr Brett undertook an analysis of the numerous attendances by the plaintiff of approximately just under 70 over that period of time. Mr Brett identified 49 attendances readily identified as consultations with doctors. On my own reckoning there may have been some additional attendances that should be included in that number, but the point of the exercise undertaken by Mr Brett, was that approximately 20 of the consultations related to the investigation of the plaintiff’s diabetes.
175Moreover, the plaintiff testified that if he was unwell, he attended his doctor. Putting aside mundane attendances for everyday and common problems such as sore throats, Mr Brett pointed to a pattern that was first and foremost concerned with the plaintiff’s right hip and first mentioned on 16 March 2012 and that is followed by various consultations up to August 2012. Injections were administered on 26 August and 12 November 2012. The plaintiff is referred for physiotherapy and undertakes approximately a half dozen attendances on Mr Harris for treatment concerning the right hip. By May 2013 there is no further mention of the right hip until November 2013. A corticosteroid injection was administered in December 2013. On attendance in early 2014, it is noted that the plaintiff wanted to see the physiotherapist as he “did feel better when had physiotherapy”.[237] Throughout this period of time the plaintiff continued to work. The plaintiff said of his right hip, “Yes, it was causing me pain when I performed activities such as climbing the stairs and so on, operating the controls of the truck.”[238]
[237] Exhibit D2, DCB 82.
[238] T419.
176The clinical notes through 2014 exhibit diagnostic uncertainty regarding the aetiology of the plaintiff’s presenting, but in hindsight, it is plain that not only did the plaintiff have trochanteric bursitis but was also suffering from emerging diverticulitis and it was also during this time that the plaintiff came to the diagnosis of diabetes.
177Although Mr Simm considered the plaintiff to probably have osteoarthritis of hips, Mr Brett contested Mr Clarke’s submission made in the course of final address that I should be bound by Mr Simm’s opinion because he was not challenged about it. Mr Brett submitted that expert opinion is informed by, among other matters, the extent of the material on which it is based. Mr Brett contended that Mr Simm was not provided with the plaintiff’s MRI which did not disclose arthritis in the hips and I should be satisfied of that state of affairs buttressed as it is by the opinion of Mr Wood and Dr Mathai, the latter of whom in addition to holding qualifications of general medicine is a fellow of the Royal Australian College of General Practitioners and a fellow of the Royal College of Surgeons with expertise in orthopaedics.
178I am not persuaded that in circumstances where there is opinion evidence that is in part based on radiological investigation, that I am bound by a contrary specialist opinion informed in part without the provision of the same radiology by reason that the author of the contrary opinion was not challenged on the point. Moreover, Mr Brett submitted that despite the plaintiff’s right hip condition, it had proved at no stage to be incapacitating.
179Mr Brett submitted that the plaintiff’s diabetes and diverticulitis were fully controlled with diet and continue to be capable of being controlled with medication.
180The subtalar fusion was something the plaintiff was very possibly to have come to in any event. Although Mr Wood was unwilling or unable to put a timeframe on it occurring, Mr Brett submitted that it was relevant in the overall assessment that the injury suffered by plaintiff was more than just an injury to the subtalar joint. Mr Brett by reference to the radiology observed that the plaintiff suffered a comminuted fracture involving the base of the second metatarsal extending to involve the second tarsometatarsal joint. “The fracture is undisplaced. At least two to three loose fragments are noted lying laterally. In addition, there's an oblique fracture involving the medial and plantar aspect of the fourth metatarsal base which extends to the fourth tarsometatarsal joint. At least two fracture fragments are noted the measuring up to about 3mm. Similarly involving the plantar and medial aspect of the third metatarsal base there are two 2mm fracture fragments which appear slightly displaced”.[239] In other words, the plaintiff suffered a significant disruption of the bones in the foot that was wholly a consequence of the 2014 incident. The results of that injury has included treatment with a CAM walking boot, and an ankle brace and a permanent rigid ankle/foot brace. Because of the lack of progress and there was development of pain and signs of CRPS, that warranted a referral to Dr McCoy, until eventually the plaintiff came to surgery on 14 December 2015.
[239] Exhibit P1, PCB 33.
181Mr Brett pointed out that the surgery performed in December 2015 resulted in an infection for which the plaintiff required treatment with antibiotics and hospitalisation and he experienced a respiratory reaction from anaesthesia. It was on his release from hospital and whilst on crutches that the plaintiff fell at home on 22 January 2016 that caused his cervical spine which had been asymptomatic to flare up and led to further surgery which was performed in August 2017.
$415,000 less 40% vicissitudes
Total past loss of earnings up to the time of trial = $249,000 including superannuation.
Future pecuniary loss
223The parties agreed that the appropriate rate for calculating future loss, if any, is $1,300 net per week including superannuation.
224For the reasons already canvassed, the defendant submitted that no damages should be awarded for future pecuniary loss. However, if satisfied that such an award should be made for future loss, then such amount should be reduced by at least 50 per cent for vicissitudes.
Plaintiff’s submissions - damages
225Mr Brett urged me to find that the state of medical evidence does not support the proposition that the plaintiff would have been required to cease work prior to the date of trial and nor does clear evidence exist countering the plaintiff’s expressed intention and desire to work to retiring age of 67 but that if I formed a contrary view on the evidence then then there should be at most an allowance by way of a deduction for the vicissitudes of 20 to 25 per cent.
226In terms of an assessment of the plaintiff’s pain and suffering damages Mr Brett pointed to the following matters as relevant. The plaintiff suffered an extremely serious injury. Formal diagnosis in relation to the plaintiff’s foot and ankle injury has been well described by Mr. Edwards[272] and Mr Wood[273] (including the CRPS[274]). Further, there has been significant psychiatric effects as diagnosed by Dr Epstein[275] [major depressive disorder of moderate severity with some passive suicidal ideation] and requiring treatment from Ms. Howarth. The plaintiff’s prior mental state had not rendered him incapacity for employment but that his mental state now would. The plaintiff’s current capacity is extremely limited. He is unable to work. He stays at home, does very little, requires a walking stick to undertake very limited walking and has no social life to speak of and cannot drive. He carries considerable surgical scarring.
[272] Exhibit P13, PCB 250.
[273] Wood, T166-167. Exhibit P6.
[274] Wood, T207, L1-14.
[275] Exhibit P12, PCB 240.
227Mr Brett submitted that an appropriate award of general damages for pain and suffering would be in the order of $400,000 to $450,000.
Findings
228I am satisfied that the plaintiff’s right hip pain was troubling to him but on the available evidence had not caused him to lose work. I am not persuaded of a diagnosis of osteoarthritis as Mr Simm’s reporting suggests. However, the fact that the plaintiff suffered injuries in the 1997 fall including to his right hip and that it was the source of ongoing pain and restriction for a good number of years thereafter has some work to do. The strength of its impingement on the plaintiff was not of that order as to have prevented him resuming work as a truck driver but its state would likely have been rendered increasingly symptomatic in the years ahead in light of the plaintiff’s line of work irrespective of the 2104 incident and that fact cannot be overlooked. In my judgement, it calls to brought into account as a risk in my overall assessment of the plaintiff’s damages assessment. I have done so.
229I am satisfied that the injury the plaintiff suffered to his cervical spine in 2016 also sensibly calls to viewed as an aggravation injury to a pre-existing spine condition that as well amounted to a risk to imposing at a future date and prior to age 67 an inability to continue working as a truck driver or to restrict that capacity and I have taken that into account in my assessment.
230I recognise that the plaintiff’s diabetes and diverticulitis were significant issues for a time. The plaintiff acknowledged as such. However, I am satisfied that they were brought under control by appropriate measures. I see no evidentiary basis for me to conclude that either condition would incapacitate the plaintiff or that I should take them into account as having a reasonable and proximate chance of doing so in the period since the 2014 incident and into the future.
231As to the plaintiff’s COPD, there are no pertinent clinical attendances to which I was directed other than the plaintiff having been prescribed a puffer and repeats in about 2012. The plaintiff was prescribed sufficient repeats for a period of about two years with no further prescriptions again until 2017. He saw Dr Malone, a respiratory physician in February 2016 as a result of the effects from an anaesthetic. He is not under the care of a respiratory physician. It is difficult to treat the plaintiff’s COPD as having an adverse impact on the plaintiff’s work capacity into the future.
232The pseudo gout condition required clinical attendances in late 2010 but no significant treatment was required and it does not appear to have nor been it likely to be an issue affecting the plaintiff’s working capacity had the 2014 injury not occurred.
233I consider that most impactful to the plaintiff is the risk that even had he not suffered the 2014 incident he would have come to the fusion surgery. Although Mr Wood accepted that the plaintiff had been degenerating for a long period of time and heading towards the operation he eventually underwent he was unable to say how long it would have been absent the 2014 incident that the plaintiff would have come to it but he accepted that the need for the fusion was certainly a significant risk.[276] Mr Simm was also uncertain on the period of time surgical intervention would have arisen.
[276] T188, L12-20.
234I am satisfied that the injury to the plaintiff’s left ankle aggravated the pre-existing degenerative changes to the plaintiff’s sub-talar joint and talonavicular joint that had arisen after the 1993 left ankle fusion.
235The defendant is not to be assessed as liable to compensate the plaintiff in damages irrespective of the possibility that pre-existing conditions would have caused the plaintiff the harm complained of in any event, but it must take account of the probability that some or all of the damage suffered by him would have occurred irrespective of the 2014 injury.
236The plaintiff’s wage documents [277] record that each week in the year preceding the 2014 incident, he was earning overtime in all but 3 weeks. Mr Brett identified that the weeks of 25 February 2014 and 26 March 2014, in which the plaintiff did not earn any overtime, coincided with the period in which the plaintiff’s diabetes was diagnosed and had not been brought under control.
[277] Exhibit P14, PCB 278-280.
237I am satisfied that it is relevant to my determination of the plaintiff’s but for work capacity that his pre-injury work history and ethic, despite the impositions occasioned by his many other health conditions and self-inflicted wounds by way of losses of licence, was commendable.
238In Sahin v Victorian WorkCover Authority,[278] the Court of Appeal said:
“The assessment of an injured plaintiff’s claim for loss of earning capacity suffered as a result of bodily injury involves questions of fact and degree, and requires estimates and judgments to be made, about matters upon which reasonable minds might differ. More often than not, in assessing an injured plaintiff’s loss of earning capacity, there is no one correct answer. One judge may take a more favourable approach to a party in respect of one issue upon which the assessment falls to be made, but a less favourable approach to the same party on another issue. As was said by the plurality in Husher:
The assessment of damages for loss of future economic capacity involves questions of judgment and estimation. Being an attempt to predict what would have happened, the process can never be exact. The fact that calculations are made by multiplying present values of net income by the expected duration of remaining working life should not obscure that the process is necessarily inexact.”[279]
[278] [2017] VSCA 13.
[279] Ibid [37] (citations omitted).
239It was not expressly submitted by the defendant on a Watts v Rake[280] and Purkess v Crittenden[281] basis that the plaintiff had reached a point where, as a matter of likelihood, he would not be able to work beyond a particular age but rather the defendant’s submission was grounded in the evidence of the existence of a number of significant risk factors to the plaintiff’s continuing employment and reflected in the defendant’s calculations of estimated loss. I am also not satisfied in reaching positive findings on the evidence of the ill effects to the plaintiff suffered during any period of acceleration caused by the defendant’s negligence such as to be able to disregard the ill effects suffered by him thereafter.
[280] (1960) 108 CLR 158.
[281] (1965) 114 CLR 164.
240In my judgment the fact of the plaintiff’s physical vulnerabilities prior to the work injury in 2014 incident impels less a consideration of assessing and valuing an acceleration of the state of the plaintiff’s pre-existing spine and ankle than it does a consideration of the principles in Malec v JC Hutton Pty Ltd[282] (‘Malec’). The concept of a discount for vicissitudes is subsumed in a Malec analysis in that it conceptually applies to both past and future pecuniary loss as well as pain and suffering damages. The defendant relied on the risk, the chance, the real prospect that those other things it has identified as risks can eventuate, and because they are relevant to a consideration of the vicissitudes of life, in my judgment, they therefore call to be taken into account.
[282] (1990) 169 CLR 638.
241In Malec the plurality of the High Court observed:
“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred ... But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring ... Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”[283]
[283] Ibid 642–3 (citations omitted) (Deane, Gaudron and McHugh JJ).
242Justices Brennan and Dawson, in their separate but concurring reasons, said:
“The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false — for the plaintiff has been injured — the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.”[284]
[284] Ibid 639.
243Further, and to like effect, their Honours said:
“In assessing the plaintiff's earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition[285] would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.”[286]
[285] Or mental condition.
[286] Malec (1990) 169 CLR 638, 640.
244The reasoning in Malec has been cited with approval including in subsequent decisions of the Trial Division of the Supreme Court of Victoria and the Court of Appeal.[287] In addition, the statement by Gummow ACJ in Tabet v Gett,[288] is often cited in which his Honour stated that:
“The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v JC Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example.”[289]
[287] See, for example, Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 [136]; Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197; Johnson v Box Hill Institute of TAFE [2014] VSC 626 [454]; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 [607]; Winky Pop Pty Ltd v Mobil Australia Refining Pty Ltd [2016] VSCA 187 [331]–[341]; Wearne v State of Victoria [2017] VSC 25 [357].
[288] (2010) 240 CLR 537.
[289] Ibid 557 [39]. See also ibid 535 [136] (Kiefel J).
245In Seltsam Pty Ltd v Ghaleb[290] Ipp JA (with whom Mason P agreed) on the application of Malec held, that the authority stood for the following propositions:
“(a) in the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;
(b) the Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;
(c) the Court must form an estimate of the likelihood of the possibility of alleged future events occurring; and
[290] [2005] NSWCA 208.
(d) these matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.”[291]
[291] Ibid [103].
246Justice Ipp went on to observe that:
“Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations—not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.”[292]
[292] Ibid [104]– [107] (citations omitted).
247The plaintiff is entitled to damages because injury was caused or materially contributed by the negligence of the defendant. Applying Malec, this is the resolved question of fact as to a past event. However, a different approach is required for future events, such as whether the plaintiff’s pre-existing conditions would have deteriorated and restricted him from work. Malec holds that I must assess this hypothetical event as a probability and the plaintiff’s damages must be reduced accordingly. Because I am satisfied that there was a percentage chance that the plaintiff’s non-compensable ankle was deteriorating on its own because of the vulnerabilities it presented with before the 2014 incident and that the plaintiff would have come to surgery at some point in any event, although at what point it cannot be known, then I must make that percentage reduction, regardless of whether the events would have occurred before or might occur after, the assessment of damages.[293] Like considerations apply to the plaintiff’s spine. Accordingly, I must make an adjustment to reflect the probability of this hypothetical state of events.[294]
[293] Malec (1990) 169 CLR 638, 642–3.
[294] See Bucic v Arnej Pty Ltd [2019] VSC 330 [290]– [294].
248In Club Italia (Geelong) Inc v Ritchie[295] the Court of Appeal observed that, as a rule of thumb, discounts for vicissitudes in personal injury cases are in the order of 15 per cent (but emphasising that each case will turn on its own facts) and it would be wrong of me to approach the matter on the basis that any general amount is the norm to be invariably applied. I have not done so.
[295] (2001) 3 VR 447, 464 [57].
249Having regard to the totality of the evidence of the plaintiff’s state of health and of being symptomatic with pain and restriction before the October 2014 incident from the ankle and spine, I cannot exclude the possibility that he would not have been able to continue in his work to age 67 and of the necessity to have progressed to the 2014 surgery at some later point in time irrespective of the 2014 incident. I have borne in mind the fact that the 2014 injury inflicted a series of insults to the pre-existing state of the left ankle such as to further complicate a simple assessment that the plaintiff was on an inevitable path to the surgery that was subsequently performed and would have resulted in an inability to continue work after 2014 irrespective of the negligent injury and at any time before the present date or prior to the plaintiff reaching the age of 67. I have given account to the evidence of the plaintiff and his wife that but for the injury he intended to have worked to retiring age.[296] I have no doubt that this was the plaintiff’s intention. There was a financial need to do so apart from anything else. Mrs Osborne certainly entertained no other expectation as regards her husband’s future. However, I have also given consideration and taken into account the fact that the medical and physical capacity of the plaintiff’s ability to carry through with his intention is a separate issue. I assess there should be seen to exist a lesser risk that this could have come to fruition before 2014, a greater chance of it transpiring before the present date and the greatest risk occurring some time before the plaintiff reached 67 years.
[296] Cheryl Russell, T345, Plaintiff, T36.
250In assessing the percentage that I should arrive at by taking account of the enhanced risks that the plaintiff’s pre-existing conditions would have overtaken his expressed desire and stated intention, I have also had regard to, and I am satisfied that, the plaintiff exhibited a significant capacity to work through health adversity. Following his ankle fusion, he returned to full-time work. Following his significant reinjury accident in 1997, and using funds available to him from a common law proceeding, he put himself back into the workforce, gradually but eventually achieving full-time work. After injuring his cervical spine in 2007, he continued to work through increasing pain until cervical fusion in 2010 and was working until some weeks prior to surgery being performed. Upon obtaining employment in April 2011, he worked on despite the presence of the matters pertaining to his health and upon which he was forensically cross-examined upon by Mr Clarke.
251The plaintiff said that injections for his TMJ pain had helped with the pain but he conceded that the TMJ pain “could have” prevented him working as a truck driver[297] during the course of an approximately eight month period in late 2015.[298] Elsewhere he said that that the TMJ would have resulted in reduction in work for “just parts of” the 8 month period.[299] I am satisfied that between April 2015 until the end of 2015, that the extent of the plaintiff’s TMJ pain itself would have incapacitated him working as a truck driver. The period of 8 months must be reduced in the calculations of damages for past loss I intend to award.
[297] Plaintiff, T238, L20-24; T239, L10.
[298] Plaintiff, T238, L28-30.
[299] Plaintiff, T24, L.3-6.
252I am not satisfied that the plaintiff would have been required to cease work at any particular time prior to retiring age because of the TM joint pain because as far as the pain associated with the TM Jaw condition is concerned, the plaintiff said it was something that he has had to learn to live with.[300] However, as I have already expressed, I am satisfied that the plaintiff’s left ankle and the previous state of his spine represents a real and significant risk to which assessment and an adjustment must be made.
[300] Plaintiff, T163, L26-27.
253In my judgement, having regard to all matters, and including my overall and favourable assessment of the plaintiff, and despite not being able to be satisfied of a precise or an approximate timeframe for a possible breakdown and loss of work capacity because of these other conditions, I am satisfied that the appropriate discount factor for the vicissitudes is 30 percent.
Pain and suffering damages
254In Willett v Victoria,[301] the Court of Appeal by majority agreed with the observations of a differently constituted Court of Appeal in Amaca Pty Ltd v King,[302] that over the course of time society has come to place greater value on the loss of enjoyment of life and the experience of pain and suffering than it did before. Salaries, too, have greatly increased. The Court said:
“Of course, an award of damages for loss of enjoyment of life and pain and suffering is not to compensate for loss of earnings or earning capacity. We do not suggest there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering. But in as much as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation) and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?”[303]
[301] (2013) 42 VR 571.
[302] (2011) 35 VR 280.
[303] Ibid 320-321 [177] (footnotes omitted).
255The plaintiff has lost his capacity to work. The sense of self-worth he derived from his work and bearing in mind his admirable work ethic that was reflected in his oral evidence and in of his wife leads me to be satisfied that it is a loss that has strongly resonated in the plaintiff’s life. Work was something that he loved.
256As a result of the physical injury sustained in the 2014 incident, I accept that the plaintiff suffers relatively constant pain. I am satisfied that the pain is inhibiting to most of the leisure and recreational activities he previously engaged in, other than some light gardening.
257The following considerations appear to me as relevant to my assessment. First, I am satisfied that as a result of the defendant’s negligence, the plaintiff suffered a very serious injury a consequence of which has resulted in an inability to work, something that was a significant if not defining feature of his life. He was in the later stages of his middle age when the injury was suffered. He has in consequence of the physical injury sustained in the 2014 incident experienced a substantial psychiatric effect that has necessitated treatment from Ms Howarth and, as well, Dr Epstein who has diagnosed the plaintiff as experiencing a major depressive disorder of moderate severity together with some passive suicidal ideation. The plaintiff has suffered substantial pain to an extent requiring five[304] ketamine infusions necessitating inpatient admission over the course of several days[305] which experience the plaintiff described as “pretty horrible” – a “mind-altering experience”[306]; and that his pain was so bad as to persuade him to undergo them.[307]. He suffered a fall on crutches he was required to use after surgery necessitated because of the negligent injury and consequent infection and further hospitalisation as a result.
[304] Plaintiff, T42, L15; T43, L2.
[305] Plaintiff, T42, L20-21.
[306] Plaintiff, T42.
[307] Plaintiff, T42-43.
258I am satisfied that whilst the plaintiff’s lifestyle was not of such high order that the defendant’s negligence has deprived him of a suite of leisure or sporting or recreational pursuits that he had otherwise pursued on an ongoing and regular basis, but that nonetheless, it has resulted in the destruction of that level of societal and recreational interaction from which he derived enjoyment and in which he was engaged before the 2014 incident. The plaintiff is now largely housebound and waits the return home of his wife at the end of her working day with the hours in between largely restricted to watching television and YouTube videos. For a man of whom the evidence speaks loudly of a hardworking ethos, the consequences have been considerable.
259Taking all matters into account, and after applying the discount that I have identified as appropriate, I assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life in the sum of $325,000.
Conclusion
260I award the plaintiff the sum by way of general damages for pain and suffering of $325,000.
261I award the plaintiff the amounts for past and future loss of earnings to age 67 excluding the period of 8 months between April and December 2015 inclusive.
262I apply a discount of 30 percent for the vicissitudes.
263I direct that the parties provide a minute of order that takes account of these reasons and the sums awarded together with any other orders required within 7 days of today.
264I grant liberty to apply.
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