Salisbury v Victorian WorkCover Authority
[2015] VCC 1627
•20 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02899
| JONATHAN SALISBURY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 September 2015 | |
DATE OF JUDGMENT: | 20 November 2015 | |
CASE MAY BE CITED AS: | Salisbury v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1627 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left foot injury – surgical amputation of left little toe – paragraph (a) “serious injury” – pain and suffering only – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005)14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a left foot injury suffered by him on or about 11 March 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr S Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr P B Jens QC with Ms M Tait | Minter Ellison |
HIS HONOUR:
1 By way of Originating Motion filed on 17 June 2014, Jonathon Salisbury (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his left foot suffered by him during the course of his employment with McIntyre Steel Industries (Vic) Pty Ltd[1] (“the defendant”) on or about 11 March 2009 (“the injury”).
[1]Although the Victorian WorkCover Authority has been pleaded as the defendant on the Originating Motion, I will for convenience refer to McIntrye Steel Industries (Vic) Pty Ltd as the defendant. There is no issue that McIntyre Steel Industries (Vic) Pty Ltd was the employer of the plaintiff at the time of the injury.
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering” damages only, within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[2]
[2]See Annexure “A”
Relevant legal principles
4 The Court must not give leave, unless it is satisfied on the balance of probability, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]Section 134AB(19)(a) of the Accident Compensation Act 1985
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left foot of the plaintiff.
7 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)“the injury” suffered by him arose out of or due to the nature of his employment with the defendant on or after 24 October 1999;[4]
(b)“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)the “consequences” of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function is “when judged by comparison with other cases in the range of possible impairments … or of disfigurements … may be, fairly described as being more than significant or marked, and as being at least very considerable”.[6]
This test is sometimes referred to as the “narrative test”.
[4]See s134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[5]Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[6]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard;[8]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[9]
(d)notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value-judgment.[10]
[7]See s134AB(38)(h) of the Act
[8]See s134AB(38)(j) of the Act
[9]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23] – [36]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
9 Senior Counsel for the defendant informed the Court that there was no issue that the plaintiff had suffered a compensable left foot injury, giving rise to some organic impairment of the left foot. The critical issue was whether any consequences of the impairment satisfied the narrative test – in this sense, counsel highlighted that although the plaintiff had seen doctors on many occasions since the occurrence of his left foot injury, he last saw a doctor in relation to the foot no later than about 2009.
Evidence of the Plaintiff
10 The plaintiff relies on two affidavits – one sworn on 20 January 2014 (“the first affidavit”) and one sworn more recently, on 26 August 2015 (“the second affidavit”).[11]
[11]See exhibit 1 at pages 13 – 21 PCB
11 The plaintiff gave evidence that he had recently read over both affidavits, and the contents of such affidavits were “absolutely true”.[12]
[12]T11, L14 – 15
12 By way of the first affidavit, the plaintiff gave the following pertinent evidence:
· He is a twenty-six year old (born in October 1989) single man, who was born and raised in Melbourne and attended school to the end of Year 9.
· On leaving school, he commenced employment with the defendant as an apprentice boilermaker, and the apprenticeship was completed after four years.
· On or about 11 March 2009, during the course of his employment with the defendant, and in the later months of his fourth and final year of his apprenticeship, the plaintiff suffered an injury to his left foot. He describes the circumstances of the injury in the following terms:
“On the above occasion I was cutting an ‘H beam’ with an oxy-acetylene cutter. The offcut of the beam fell from the workbench I was using and onto my left foot. The offcut would have fallen about 1 metre and probably weighed about 30 kilograms or so.
I was wearing steel capped work boots but these didn’t really protect the foot much at all. I was in a lot of pain. I tried to take a step onto the left foot but couldn’t. It was clear to me that I had caused a serious injury to my foot.”[13]
[13]Exhibit 1 at pages 14 – 15 PCB
· He was conveyed to the Sunshine Hospital where he was diagnosed with a fractured or shattered left little toe and also a fracture of the end of the fourth toe of the left foot. The left toe was initially splinted and taped to the next toe and he was advised to walk on his heel and go home and elevate the left foot.
· About a week later, after his little toe had turned black, the plaintiff returned to the Sunshine Hospital and after a further couple of consultations, the left little toe was amputated approximately three weeks after the initial injury.
· He had expected to come back to work carrying out some form of limited or light duties but found he was required to go back to his full duties. After two days back at work, his left foot started to ache and also became swollen, causing him to attend his general practitioner, Dr C Tan, who certified him to go off work in order that a special sole be made for his left shoe. When off work, the plaintiff was sacked by the defendant on or about 3 June 2009.
· Since then, he has picked up other work as a boilermaker or welder with various employers, although struggles with that type of work due to left foot pain and instability. He describes having a “difficult time”.
· He describes the various ongoing problems with his left foot:
– He gets intermittent aching in the left ankle, and also phantom pain from where the left little toe would have been.
– He has some instability with walking and standing also, with the left foot seeming to roll outwards. He attempts to roll the foot back but this also puts strain on the foot and can often lead to increasing muscular-type pain.
– He finds it difficult to balance properly when standing on the left foot alone.
– He has difficulty using ladders or climbing when strain is placed on the left foot and finds that he will often stumble and trip, as the left foot feels clumsy.
– He has difficulty driving his car, which is a manual transmission vehicle, and in particular, finds that using the clutch repetitively in traffic will cause the left ankle, and then the whole left foot, to become painful.
– He was active in football and basketball prior to suffering the injury but has had to give away those activities. Also, he cannot run properly or be as agile on the left foot.
– He does not like to wear thongs or walk barefooted as he is self conscious about the amputation and disfigurement of the foot. He prefers to wear a shoe that covers the whole foot.
13 By way of his second affidavit, the plaintiff gives the following pertinent evidence:
· He describes that things have not improved since swearing his previous affidavit and “in fact nothing has really changed at all”.
· In particular:
– He continues to feel “phantom” pain where the amputated toe should be, and that sensation is always there.
– If he knocks the foot in the area of the amputation, it can be very painful. Indeed, he has to wear closed shoes to protect the foot, give extra stability and hide the scarring (of which he is self conscious).
– The left foot continues to roll outwards and he has to consciously try to roll the foot back in, and this has been giving a lot of ankle pain over recent times, causing him to frequently sit down and elevate the foot.
– He often feels clumsy or unbalanced, and this is the particular case when not wearing shoes.
· Since swearing the first affidavit, he has picked up some occasional work at his father’s automotive business and sometimes has been advanced money by his father.
· He has since moved out of home after having a falling out with his father and his family more generally. After being effectively homeless for a couple of weeks, he moved to his present address in Sunshine North, where he lives with his girlfriend and two others.
· Leaving home the way he did was very upsetting and he has not coped well with his injury, and being asked to leave was “the final straw”.
· At that time, he took an overdose of analgesic tablets and just wanted to “escape”.
· He has come to realise that he has been mentally unwell for quite some time and together with the accident, loss of toe and his livelihood, it has hit him harder than he wanted to admit.
· He has tried anti-depressant medication in 2014 but suffered significant side effects, causing him to feel unwell and quite sick in the stomach. He no longer takes the medication but realises he probably should, and has resorted to cannabis.
· He has disturbing dreams of the accident time now, and they continue to happen a few times each week. Such dreams are disturbing and often upsetting.
· He has recently started going to the gymnasium, having realised that he is not going to be able to get back to football or basketball and the gymnasium is at least some sort of outlet for him. In particular, he misses being able to participate in sport and it upsets him that he can no longer do so.
· He is worried about his future, and his day-to-day activity is limited by how the foot and the ankle feel. He is concerned that he would have difficulty in committing to regular and sustained hours of employment.
14 The plaintiff also gave viva voce evidence that he was eighteen or nineteen when he suffered his injury. Prior to the injury, he was Vice Captain of the Under 18 Albion Football Club which is part of the Western District Football League.
15 The plaintiff had played in such team during 2008 and at the time of the injury, was involved in pre-season training. He had played competitive football since the age of twelve.
16 After the injury, he attempted to return to football in what he believes was 2010 but it may have been the subsequent year. In particular, the following evidence was given:
HIS HONOUR:
Q:“What happened?‑‑‑
A:It was just – I started preseason, my foot started swelling up again, it never stopped.”
MR McGARVIE:
Q:“So what was involved in preseason?‑‑‑
A:A lot of running.
Q:And what was the experience when you attempted to do a lot of running in that way?‑‑‑
A:A lot of pain.
Q:And how long did the – did you ever get back to playing a football match?‑‑‑
A:I – no, I couldn't make it.
Q:All right?‑‑‑
A:Sorry.
Q:How have you felt about that since? Did you enjoy – how much did you enjoy playing football prior to your injury?‑‑‑
A:It was a big part of my life football, yes.
Q:And what is your feeling about not being able to play since that injury?‑‑‑
A:I feel lost, if that makes sense Your Honour.”[14]
[14]T13, L16 – 30
17 The plaintiff also gave evidence that from when he commenced school at the age of five or six, throughout the years at primary school and secondary school, he had played basketball for a school team. Furthermore, he also played basketball for a team called Aberfeldie Heights, commencing from about eight years old. In particular, the following evidence was given:
MR McGARVIE:
Q:“Were you still playing basketball at the time you were injured when you were 18, or 19?‑‑‑
A:I was just playing in my local league.
Q:So in the district team that was from the age of eight until what age?‑‑‑
A:Sixteen.
Q:After that you were playing in your local league?‑‑‑
A:Yeah, local men’s league.
Q:And was that a weekly game?‑‑‑
A:Yes.
Q:And what was the team that you were playing for there?‑‑‑
A:You just make up your own team.
Q:So it was a group of friends?‑‑‑
A:Group of friends, yeah.”
HIS HONOUR:
Q:“And a group of friends coming together on a night to playing a competition, or just a group of friends going to basketball and having an ad hoc match?‑‑‑
A:No it was competition, Your Honour.
…
Q:Was that something you enjoyed?‑‑‑
A:Sure.
Q:What sort of sense of satisfaction did it give you being able to play in those – firstly, the district team and then with a group of friends in the local team?‑‑‑
A:It gave me a lot of satisfaction playing in a team, it makes you feel part of a team and all that, a lot of satisfaction.”[15]
[15]T14, L26 – T15, L15
18 After the injury, the plaintiff ceased playing basketball save for one attempt during which time he played for one quarter, after which his foot started to swell up, causing him pain, and he was unable to continue.
19 When queried about the degree of satisfaction from playing basketball, the plaintiff stated that he was good at basketball, playing in the Victorian Championship, which he misses very much now.
20 The plaintiff also gave evidence that he has been able to get back to some gymnasium work involving his upper body but he does not gain the satisfaction he obtained when playing competitive sport.
21 The plaintiff also described that at the time of his injury, he weighed between 90 and 95 kilograms, mostly made up of muscle, but presently weighs 72 kilograms. The plaintiff explained that prior to the injury, he was working out every day, whereas most of that is behind him and he has no real motivation for performing these types of activities.
22 The plaintiff explained that prior to his injury, he used marijuana occasionally but since the injury, he has increased his use of marijuana, with the hope that his pain and lack of sleep would be improved. However, he described to the Court that although the marijuana use has increased, there has been no benefit.
23 When describing generally his work experience since ceasing with the defendant, the following evidence was given:
MR McGARVIE:
Q:In relation to your work history since the accident, you attempted to do some boiler making?‑‑‑
A:Yes.
Q:What has been the experience when you have attempted to do that?‑‑‑
A:A lot of pain. I can’t really tell most of my jobs that I’ve been through an accident because they wouldn’t even hire me if I did. Just – it’s just hard – it’s very hard. I’ve got to try to hide the pain.
Q:You did some work for your father for a time in the motor mechanic industry?‑‑‑
A:Yes.
Q:Have you since had a falling out with your father and has that employment ceased?‑‑‑
A:Yes.
Q:So what has been the recent pattern? Are you seeking work or working?‑‑‑
A:Yes.
Q:What have you been doing recently?‑‑‑
A:I just search for ten jobs every day.”
HIS HONOUR:
Q:“How long since you have actually been employed for money?‑‑‑
A:A month.
Q:A month?‑‑‑
A:Yeah.
Q:And you say you are looking for jobs now?‑‑‑
A:Sorry?
Q:Are you looking for jobs?‑‑‑
A:Do you mean on the Centrelink or - Centrelink?
Q:Sorry?‑‑‑
A:I’m on Centrelink.
Q:Yes, I understand that?‑‑‑
A:Sorry.”[16]
[16]T19, L6 – 28
24 At the end of his evidence-in-chief, I raised with Senior Counsel for the plaintiff that I was concerned that the plaintiff appeared to be in an agitated state. In such circumstances, I queried whether the plaintiff was in an appropriate state to continue giving evidence. After a brief adjournment, I was informed by Senior Counsel for the plaintiff, and more particularly, the plaintiff, that the lead up to the proceeding had been a “stressful experience”, building up to the plaintiff feeling extremely stressed that morning. In particular, since conferring with Counsel the day before, the plaintiff only had had three hours of sleep over the ensuing 24 hours.[17] On the following day, the plaintiff had his mother in attendance at Court.
[17]See generally T20, L20 – T26, L22
The cross-examination of the Plaintiff
25 When it was put to the plaintiff that he had not seen a doctor in relation to his left foot since about 2009, the plaintiff responded that he could not recall, but considered that he had seen a doctor about his foot after 2009.[18] In particular, the plaintiff gave evidence that he had no recall of the names of doctors and or dates of attendances.
[18]See generally T30, L12 - 21
26 The plaintiff accepted that one of his treating practitioners has been Dr Cesar Tan, who is situated at the Sunshine City Medical Centre. Although not too sure, he believed if he attended a doctor it would have been Dr Tan up to when he moved out from his parent’s address (Burnside Heights). The plaintiff believed that he moved out of his parent’s home approximately two or three months prior to the hearing.
27 The plaintiff did give evidence that since moving to his present address (Sunshine North), he was attending the Watervale Medical Centre.
28 The plaintiff also gave evidence that at the present time, he does not have a particular general practitioner but in recent times when he has attended a practitioner, it is Dr Hany Hanna at the Watervale Shopping Centre at 2/14 Calderpark Drive. When it was put to him that the records would suggest that he first attended Dr Hanna on 3 March 2014 and as at April 2015, was still attending such doctor, the plaintiff considered that would probably be “accurate”.[19] The plaintiff also accepted that the various attendances related to ear infections, insomnia and anxiety but there were no attendances in relation to his left foot.
[19]T39, L28
29 Furthermore, the plaintiff accepted that he had seen other doctors at the Watervale Medical Centre but he could not recall attending any such doctor back to 2012.
30 The plaintiff also accepted that at some time he had attended a doctor for back pain and prior to that, he had been doing some fencing work with a company called “T P Pickets”. When it was put to him that work with such company may have prompted the back pain, the following evidence was given:
Q:“Did that result in your getting back pain?‑‑‑
A:No not really.
Q:Do you recall what it was when you started getting back pain?‑‑‑
A:Ever since my accident. I’ve always had my foot like that and that runs up my leg, so the bottom – I don’t know what the last two discs are in your spine – they were starting to separate.”[20]
[20]T41, L12 - 17
31 The plaintiff also gave evidence in cross-examination that he tends to get a second opinion for any medical condition, although he could not recall as to whether or not he got a second opinion and, if so, from whom, in relation to his left foot.
32 Ultimately, Senior Counsel for the defendant put to the plaintiff as to why he did not attend a doctor for his left foot from 2012, and the following evidence was given:
Q:Yes, well why can’t you go in 2012 to see a doctor about your foot?‑‑‑
A:I didn’t know I could.
Q:You didn’t know you couldn’t?‑‑‑
A:I thought I couldn’t. I thought the matter was quashed. I thought this case was over.
Q:The case hadn’t started. What I am suggesting to you is you could have easily have mentioned to a doctor when you go in and say, ‘Look, I’ve got a bad back, and by the way my foot’s hurting’?‑‑‑
A:Why would I tell him that?
Q:If it was. Just like if your back was hurting?‑‑‑
A:Well my foot was hurting but I can’t tell my work that.
Q:I am not suggesting you tell your work, I’m suggesting you tell your doctor?‑‑‑
A:No. I don’t know why I didn’t tell him.
Q:Sorry?‑‑‑
A:I don’t know why I didn’t tell him.
Q:You were working?‑‑‑
A:M’mm.
Q: Being a fencer?‑‑‑
A:Yeah, I wouldn’t want to tell my work I’ve been in a work accident to lose my job again.”[21]
[21]T44, L15 - 31
33 The plaintiff accepted that it was probably right that the last time he attended the hospital for treatment was on 26 March 2009 when the wound had healed and the sutures were to be removed.
34 When queried as to whether he attended a podiatrist on referral from Dr Tan,[22] the following evidence was given:
[22]See exhibit 2 at page 24 PCB
Q:“So then can you recall did Dr Tan, as best you can recall, did he refer you to anyone else for treatment for your foot?‑‑‑
A:Just the – I can’t even pronounce it ‑ ‑ ‑
Q:Podiatrist?‑‑‑
A:Yeah, podiatrist, yeah.
Q:And did you go?‑‑‑
A:It’s – I had to take that letter back to my work to ask them to pay for a special sole for my boot ‑ ‑ ‑
Q:Yes?‑‑‑
A:And that’s when I lost me (sic) job.
Q:And did you go to the podiatrist after that?‑‑‑
A:I couldn’t afford it. Work had to pay for it.
Q:So is the answer no?‑‑‑
A:Yes.”[23]
[23]T48, L9 - 21
35 The plaintiff accepted that he had solicitors acting for him at some stage and, in particular, October 2009, when a claim was made for permanent impairment of the foot.
36 When told of the contents of the records of Dr Tan, the plaintiff accepted that it was probable that he did not attend Dr Tan for any treatment after 1 June 2009, although he did attend Dr Tan in 2010 for issues seemingly related to bronchitis and the like. Furthermore, in or about 2011, he commenced seeing Dr Tan for anxiety and depression, amongst other things, and during that time, Dr Tan prescribed Pristiq. After some further questions, the plaintiff then stated that he was “pretty sure” he had not seen Dr Tan for anxiety and depression problems. The plaintiff accepted that he was treated for anxiety and depression but thought it may have been at the Sunshine Clinic, but he was not sure.
37 The plaintiff did accept that at one stage, he was referred to a psychologist, Ms Joanna Letcher, who practised at the Watervale Medical Centre, and furthermore, the plaintiff accepted that he may have been referred to the psychologist in 2012.
38 When asked about the treatment from the psychologist, the following evidence was given:
Q:“What I suggest to you is that you didn’t see her at all for problems with your foot?‑‑‑
A:No, I went to see her for problems with my foot.
Q:I suggest you didn’t; you didn’t mention your foot to her?‑‑‑
A:I thought I did, sorry. I guess I didn’t.
Q:What I am suggesting to you is that when you were seeing the Sunshine Medical Centre in August 2011, there was no reference there to problems with your foot?‑‑‑
A:I don’t recall. I thought I’d always mentioned it.
Q:Because you know there’s been savage problems, if I could use that word, in your private life, not to do with your feet?‑‑‑
A:Correct.
Q:And problems that have caused you great distress, and I don’t want to cause you any more distress here?‑‑‑
A:Yes.”
HIS HONOUR:
Q:“Just frankly, I was going to ask something akin to that. Look, Mr Salisbury, obviously your anxiety and depression, unless it’s related to your foot, I am not that interested in it?‑‑‑
A:Yep.
Q:But just apropos of what counsel has asked you, and he has obviously got access to records, and I don’t want you to say anything too much, but the reason, as best you understand it, why you were being treated for anxiety and depression, you had some major upheavals in your life, did you?‑‑‑
A:Yes.
Q:The only other thing I want to ask you, you seem to be disagreeing with counsel when he said when you went to Letcher for some treatment, that had nothing to do with your foot and you disagreed with that. How do you say it was related to your foot at that stage?‑‑‑
A:Every time I’ve gone to a doctor, Your Honour, I’ve always mentioned - with the anxiety and these problems – I’ve always mentioned that it’s all started ever since my accident.
Q:Right?‑‑‑
A:That’s why I’m a bit confused with all this.
Q:But is the upheaval - and again I don’t want you to go into chapter and verse about it?‑‑‑
A:No, that’s fine.
Q:The upheavals in your life ‑ ‑ ‑?‑‑‑
A:Have all happened after this accident.
Q:But I take it the upheaval, was this something to do with when you moved out of home, was it?‑‑‑
A:Not really, no.
Q:Can you just give me some broad outline what you are talking about upheavals?‑‑‑
A:I really don’t know what they're talking about with upheavals in my life, just - just general ‑ ‑ ‑
Q:Well, to perhaps put it more bluntly, when you were being treated for anxiety and depression, as best you can say, what was the cause of that?‑‑‑
A:My toe. That’s where it all started.”[24]
[24]T64, L18 – T65, L27
39 The plaintiff gave evidence that when working in fencing, he worked probably two to three days a week in the Airport West area performing domestic fencing. In particular, the plaintiff gave evidence that he is not receiving any present treatment for anxiety and depression nor is he taking any medication for such a condition.
40 The plaintiff also gave evidence in response to a question from the Court that when he has performed labouring work since the accident to date, he wears industrial work boots with cushioning for his foot. The plaintiff also gave evidence that he wears “big work, cushioned puffy woollen socks” and has, on occasion, applied an ankle strap.
41 The plaintiff was cross-examined in relation to his attendance on the occupational physician, Dr Gary Davison, on 14 May 2009.[25] In particular, it was put to the plaintiff that:
[25]See report dated 22 May 2009, exhibit A at page 3 DCB
(a) He informed Dr Davison that he expected to return to work in or about a week after the examination – the plaintiff agreed with such proposition;
(b) He informed Dr Davison that had “a bit of soreness if he walks too long” – again, the plaintiff agreed with such proposition;
(c) When it was suggested to him that as at May 2009, he was not receiving any treatment, the plaintiff responded that he could not remember but it could be true;
(d) It was suggested to the plaintiff that when he attended such appointment, he was wearing “normal shoes”, to which the plaintiff stated “I had to”;
(e) When it was put to the plaintiff that at examination, Dr Davison found no “scar tenderness”, the plaintiff responded to the effect that the scar has always been sore.
42 Senior Counsel for the defendant also questioned the plaintiff in respect to his attendance on Dr Davison on 21 July 2015.[26] In particular, the plaintiff accepted that he told Dr Davison:
[26]See report of same date, Exhibit A at page 9 DCB
(a) that he has a “slight loss of balance” and “it feels funny when I run”;
(b) that although Dr Davison recorded that he has pain in his “right heel”, the plaintiff advised that he told Dr Davison he has pain in his left heel which he related to “walking funny”;
(c) that he told Dr Davison that he ceased football and basketball after the injury, to which the plaintiff agreed, and the plaintiff also agreed that he said to Dr Davison he was concerned that someone might stand on his left foot;
(d) the plaintiff accepted that at the time of the examination, he was not getting any treatment for his left foot and had received no treatment since the initial examination with Dr Davison;
(e) when queried that Dr Davison considered the scar to be well healed and non-tender, the plaintiff ultimately stated “It’s always been tender”.
43 The plaintiff was also questioned about his attendance on the psychiatrist, Dr Strauss, on 21 May 2015.[27] The plaintiff could remember that he was referred to a psychiatrist but had no memory of particularly attending Dr Strauss.
[27]See report of same date, Exhibit 3 at page 30 PCB
44 The plaintiff confirmed that he had “some issues” at home in May of this year which were unpleasant, causing him to move out and live with his partner and others. Furthermore, it was put to the plaintiff that he informed Dr Strauss that:
· he can run
· has played indoor soccer since the injury
· can walk reasonable distances; and
· climb ladders.
45 In response, the following evidence was given:
Q:“… I’ll take those one at a time. I suggest you told Dr Strauss that you can run?‑‑‑
A:Only for short periods.
Q:Where do you run for short periods?‑‑‑
A:I don’t run anymore. I’ve only started recently.
Q:How do you know you can run?‑‑‑
A:Because I’ve started running, and then when I started, either swelling or aching would start, so I would stop and elevate my foot.
Q:You didn’t tell Dr Strauss about that?‑‑‑
A:I’m pretty sure I did.
Q:This is the doctor you’re seeing for your solicitors?‑‑‑
A:Yep.
Q:Dr Strauss?‑‑‑
A:Yep.
Q:‘He has played indoor soccer since the accident.’?‑‑‑
A:I tried playing indoor, just filling in.”
HIS HONOUR:
Q:“On one occasion, or more than one occasion?‑‑‑
A:Just once.”
MR JENS:
Q:“Was that the time when they pleaded with you?‑‑‑
A:I don’t understand.
Q:You said yesterday that one of the teams pleaded with you to play?‑‑‑
A:No, that was a basketball team.
Q:You can walk reasonable distances?‑‑‑
A:Not reasonable, but yeah.
Q:What do you mean not reasonable?‑‑‑
A:Only about 800 metres, and then I have to stop.
Q:‘He said he can climb ladders’?‑‑‑
A:If I have to climb a ladder, I’m going to do it.
Q:Sorry?‑‑‑
A:I can’t climb ladders all the time, up and down, but I can.
Q:The fact of the matter is that if you’re climbing a ladder, you don’t use your toes, I suggest. You climb a ladder on the ball of your foot?‑‑‑
A:But your little toe is like a pad so that your foot doesn’t roll out.
… .”[28]
[28]T91, L11 – T 92, L9
46 The plaintiff was also cross-examined about his attendance on the psychiatrist, Dr Weissman, on 13 November 2009[29] at the request of the solicitors for the defendant. It was put to the plaintiff that he told Dr Weissman that he experienced a little bit of pain that he described as an “annoyance in his left foot and around the amputation” and the plaintiff said that was correct.
[29]See report of same date, exhibit A at page 16 DCB
47 The plaintiff described that he “can’t” go down to Williamstown Beach, walk in up to his waist and have a swim. When queried as to why he could not do that, the plaintiff responded he did not know whether it was his anxiety or depression but “I just can’t do it”.
48 In response to a question from the Court as to why his foot condition would prevent him walking into water, the plaintiff went on to state:
“Just in – just in case I get bitten by a crab or something on that toe, I – I – this is the thoughts that go through my head before I even get to the beach, Your Honour. I mean, like I stand on something and stab it. That – that’s just the thoughts that go through my head, Your Honour.”[30]
[30]T98, L26 – T99, L2
49 The plaintiff stated that he hopes to resume gym work for his upper body and if the stressors are removed from his life, he could get motivated to resume such activity.
50 At the end of the cross-examination, at the suggestion of both parties, the plaintiff removed his left shoe and sock for the amputation site and scarring to be viewed.
51 During re-examination, the plaintiff confirmed that at some time in the past, he had solicitors acting for him and at that time, he received a lump sum by way of permanent impairment of the left foot. After the completion of that process, he thought that his case was “over”.
52 Furthermore, he was queried about the fence work that he has undertaken and about which he was cross-examined. In particular, the following evidence was given:
Q:“You were also asked You were also asked by Mr Jens about fencing work that you had been doing. In relation to that work, is that something that you can do easily with the foot as it now is, or not?‑‑‑
A:It’s never been easy with the foot. I just push through it.
Q:What is it that you have to push through, as you describe it?
‑‑‑A:Knee pain, calf pain, ankle pain. Just general pain of the foot.
Q:You also mentioned in your evidence yesterday that that’s something that you need to try to hide from those who are employing you?‑‑‑
A:Correct.
Q:Have you been successfully able to do that – to hide the pain?
‑‑‑A:Correct.
Q:Thank you. You were asked about your last attempt at boilermaking, and you said that you had a contract job for a month, and you had difficulties in doing so?‑‑‑
A:Correct.
Q:All right. You were asked about the methods you used to try and protect your feet when you are working, and you spoke of using Caterpillar boots ‑ ‑ ‑?‑‑‑
A:Correct.
Q:- - - with proper padding?‑‑‑
A:Yes.
Q:Proper padding, does that involve a number of pairs of socks, or ‑ ‑ ‑?‑‑‑
A:It’s just sometimes one or two woollen socks. That’s about it.
Q:All right. You also said that sometimes you wear an ankle strap?‑‑‑
A:Correct.
Q:Would you describe that to His Honour? What sort of – is it an elastic strap, or ‑ ‑ ‑?‑‑‑
A:Do you know the ones that footy players usually put on their knees and that?”
HIS HONOUR:
Q:“Yes?‑‑‑
A:Yep, the compression ones? That’s what I usually use on the ankle.”[31]
[31]T105, L8 – T106, L6
53 The plaintiff was also questioned about his ability to run and the following evidence was given:
Q:“You were asked about being able to run, and you agreed that you could, but said that it was only for short periods?‑‑‑
A:Correct.
Q:What do you mean by short periods?‑‑‑
A:Just probably the maximum I could run would be – I’ll try to run a kilometre, but that’s just me pushing through the pain and all that, and then I know I should be stopping. After that kilometre and I feel all that pain, that’s when I know.
Q:Do you have a particular route that you try to run?‑‑‑
A:Yes.
Q:How long is that? How far is it?‑‑‑
A:It’s approximately a kilometre, and it’s got hills, rough, rocky things. I’ve tested every level of surface, and yeah.
Q:Can you do that non-stop?‑‑‑
A:No.
Q:How many times in that kilometre would you have to stop?‑‑‑
A:If I was running a kilometre on the road, Your Honour, I might be able to do it – push through the pain, but if I was running up an incline and all that, I would have to – it would only be for 200 metres max. I’d have stop probably five times.
… .”[32]
[32]T107, L11 – 29
54 The plaintiff also described the one time that he tried indoor soccer. In particular, he played as “goalie”, so he was just getting the ball kicked near him. He was asked whether that was something he could do successfully or did he struggle with that, to which the plaintiff answered:
“I did struggle, yes.”[33]
[33]T108, L8
The medical evidence relied on by the Plaintiff
55 The plaintiff relies on a report dated 15 June 2013 from Professor Ian Brand, the Medical Administrator of the Western Hospital.[34] In that report, Professor Brand confirms that the plaintiff attended the Sunshine Hospital Emergency Department at 11.30:11.34 on 11 March 2009 with an injury to his left foot as a result of a large piece of “timber” falling onto the foot from approximately a one-metre height.
[34]Exhibit 2 at page 22 PCB
56 X-rays at that time, revealed a fracture involving the shaft and distal aspect of the left fifth proximal phalanx and, in particular, there was a vertically oriented and mildly comminuted shaft fracture with transverse transection of the distal end of the phalanx and a lateral and inferior displacement of the fifth toe distal to the transection.
57 The fracture was manipulated under a ring block and ultimately, the plaintiff was discharged and advised to walk on his heel and keep the foot elevated.
58 The plaintiff returned to the Emergency Department on 16 March 2009 because the little toe was black, dark and still painful.
59 On review on 20 March 2009, the diagnosis was made that the toe was necrotic, with dark gangrene. An amputation of the toe at the metatarsophalangeal joint occurred on 22 March 2009.
60 The plaintiff was seen in the Orthopaedic Clinic on 24 March 2009 and later, on 26 March 2009, when the wounds had healed and the sutures were to be removed in one week. Professor Brand says there was no further record of any attendance.
61 There is a proforma referral from Dr Cesar Tan dated 21 May 2009 referring the plaintiff to a podiatrist, because the plaintiff was experiencing ongoing pain in his left foot.
62 It will be recalled that the plaintiff was cross-examined based on the notes from Dr Tan, who seemingly ceased treating the plaintiff for his left foot injury from 1 June 2009.
63 There is also a report dated 27 August 2015 from Dr H Hanna from the Watervale Medical Centre,[35] wherein Dr Hanna recalls that he first saw the plaintiff on 3 March 2014 and the last consultation prior to the writing of the report was on 7 April 2015. Over that time, Dr Hanna treated him for various conditions, including ear infections, insomnia and anxiety, and that he was not treated for any WorkCover-related issues, nor was he treated by any other doctor at the Clinic for such work-related issues.
[35]Exhibit 2 at page 26 PCB
Medico-legal reports relied on by the Plaintiff
64 The plaintiff was medico-legally examined by the general surgeon, Mr Peter Mangos, on 24 July 2015.[36] Mr Mangos obtained the history of the injury to the left foot on 11 March 2009 and noted that at the time of his examination, the plaintiff had been performing intermittent work over the years since the injury. In particular, Mr Mangos noted the plaintiff took no tablets now and had no physiotherapy but complained of the following:
[36]See report of same date, exhibit 3 at page 27 PCB
(a) Continuous pain in the left foot;
(b) Ankle ache;
(c) Experiencing severe phantom pains from the little toe upwards towards the knee;
(d) Walking with instability and stands awkwardly;
(e) Having difficulty climbing a ladder or balancing on an uneven surface or slopes;
(f) Having difficulty driving a manual car but at that time, had been driving an automatic car;
(g) Inability to play sport which he “misses dearly”;
(h) Difficulty wearing sandals and thongs, because of embarrassment about his condition.
65 Examination, at that time, revealed no obvious swelling of the ankle and movements were full, with no loss of power. He was able to toe walk and heel walk on the left side. The left fifth toe was missing at the MP joint and there was a thick, long 2-centimetre scar on the site of the amputation which was tender. Sensation to pinprick and touch of the foot and, in particular, the toes, was normal. In particular, Mr Mangos was of the opinion that:
“I think this man has lost a toe and has lost a good deal of ability to mobilise and to stand especially for long intervals. He is capable of returning to work but it is doubtful whether he can perform pre-injury full duties as he did previously. He cannot work effectively and surely. He should be able to cope four days a week in a similar job if this work can be found. …
The limitations on this man’s future employment is to do with long intervals of standing, heavy lifting, working on uneven surfaces and heights.
… .”[37]
[37]See exhibit 3 at page 28 PCB
66 The plaintiff was also psychiatrically examined by the consultant psychiatrist, Dr N Strauss, on 21 May 2015.[38] Dr Strauss records that the plaintiff informed him that he can “run” and has played indoor soccer since the injury and can walk reasonable distances. Furthermore, he can climb ladders.
[38]See report of same date, exhibit 3 at page 30 PCB
67 Dr Strauss obtained a history of psychological problems, partly caused by the plaintiff falling out with his family. Dr Strauss considered that the plaintiff was mildly anxious and depressed and there was limited insight and judgment.
68 Dr Strauss considered the plaintiff suffered from some anxiety and depression, where his current psychiatric problems are two-thirds a result of personal issues and one-third a result of the injury. In particular, Dr Strauss was of the view that the plaintiff suffered no incapacity for work on psychiatric grounds.
Medico-legal reports relied on by the Defendant
69 The defendant relies on the following medico-legal examinations:
(a) Examinations by the occupational physician, Dr Gary Davison, who examined the plaintiff initially on 14 May 2009[39] and more recently on 21 July 2015;[40]
[39]See report dated 22 May 2009, exhibit A at page 3 DCB
[40]See report of same date, exhibit A at page 9 DCB
(b) The consultant psychiatrist, Dr David Weissman, who examined the plaintiff on 13 November 2009;[41]
(c) The occupational physician, Dr David Fish, who examined the plaintiff on 8 April 2010.[42]
[41]See report of same date, exhibit A at page 16 DCB
[42]See report of same date, exhibit A at page 28 DCB
70 When initially examined by Dr Davison, the plaintiff attended with his mother. Dr Davison described the plaintiff as a “pleasant and co-operative young man” with no pain or illness behaviour observed.
71 At that time, Dr Davison records that he obtained a history from the plaintiff that there was “just a bit of soreness” if he walks too long but with no specific restriction. He noted that the plaintiff did not play football and basketball after the injury.
72 The plaintiff was wearing normal shoes and on examination, there was a well-healed amputation scar over the anterior aspect of the left foot consistent with amputation of the fifth left toe at the metatarsophalangeal joint with no scar tenderness.
73 When later seen on 21 July 2015, Dr Davison recorded that the plaintiff complained of a bit of soreness if he walked for too long. In particular, the plaintiff complained that:
(a) He still experiences ache-like pain at the site of the amputation if he walks for prolonged periods;
(b) That he experiences phantom pain in the toe, with the plaintiff commenting “I almost feel like the toe was still there”;
(c) The plaintiff does not like people seeing his feet;
(d) The plaintiff reported that he believed he had a slight loss of balance and it feels funny when he runs;
(e) That he experiences pain in his right heel (consistent with his evidence, I believe this should be his left heel);
(f) That he has not resumed playing football and basketball and this was “in case anybody stood on it”.
74 Again, Dr Davison noted that the plaintiff was a “pleasant and co-operative young man” and that the scar was well-healed and non-tender. Furthermore, the plaintiff was able to demonstrate a full and pain-free range of movement of the left side and this was equal to the right, with no evidence of any ankle instability.
75 Dr Davison ultimately was of the opinion that the worker had “acclimated to the amputation” and that he considered “that there is no adverse impact on the worker’s ability to undertake the listed social and recreational activities”.
76 When examined by Dr Weissman in 2009, he was of the opinion that the plaintiff was suffering from a Mild Adjustment Disorder with Anxious and Depressed Mood with mild symptoms and features of traumatisation which was caused by his work injury. At that time, he considered that any psychiatric symptoms had probably not stabilised.
77 Dr Fish examined the plaintiff in April 2010 for the purposes of a permanent impairment assessment. At the time of the examination, the plaintiff had been working as a boilermaker over the last four months. He gave a history to Dr Fish that:
(a) He has continuing problems of intermittent pain in the left ankle, mainly over the lateral ligaments;
(b) Phantom pains at the left fifth toe area;
(c) Some difficulty with walking, as he feels he is constantly everting his foot;
(d) Pain at the metatarsal head, causing some troubles with weight transfer;
(e) Although at that time, he had not attempted to run or hop since the injury, he had climbed a ladder and felt somewhat unstable;
(f) He had difficulty driving a car with manual transmission which leads to an aching sensation in the left ankle with some sensory loss and episodic tingling over the lateral aspects of the left foot, extending into the non-existent left little toe;
(g) He was experiencing embarrassment wearing thongs because of the scar.
Conclusion
78 As I have already recorded, there is no issue that the plaintiff suffered a compensable left foot injury on or about 11 March 2009 during the course of his employment with McIntyre Steel Industries (Vic) Pty Ltd. In particular, the plaintiff has suffered a crush injury to his left foot which has resulted in the surgical amputation of his left fifth toe at the MP joint. At the site of the amputation, there is a scar of approximately 2 centimetres in length. Obviously enough, the loss of the left little toe has caused permanent impairment of the left foot function and some organic consequences.
79 The critical issue is whether the plaintiff has discharged his onus in satisfying the narrative test – to wit whether such injury is “serious”. Again, as I have already recorded in this Judgment, the question whether an injury satisfies the definition of “serious injury” is largely a question of impression and value judgment.
80 It is perhaps apposite to make some comments about the credibility of the plaintiff. Obviously enough, the credibility of the plaintiff is an important issue, bearing in mind the extent of any complaints made by the plaintiff in respect to the injury.
81 After a consideration of all of the evidence, I have formed the view that the plaintiff was essentially a credible witness who was attempting to give accurate answers to the questions posed to him. However, I also formed the view that the plaintiff was, to some extent, an unreliable witness, particularly when attempting to recall when he has attended what doctors for which medical conditions over the years. There was also a tendency, in my view, for the plaintiff to tend to blame his left foot injury as the primary genesis for other issues in his life such as experiencing back pain and his psychological condition.
82 However, it must be stressed that at no time did I form the view that the plaintiff was attempting to mislead me in any way. Rather, I formed the view that the plaintiff was an unsophisticated witness who was anxious and agitated during the course of his evidence, particularly on the first day, and, to some extent, on the second day (when he had his mother with him).
83 I note that when the plaintiff was examined by the psychiatrist, Dr Weissman in 2009 (on behalf of the defendant), he considered the plaintiff to be suffering a Mild Adjustment Disorder with Anxious and Depressed Mood with mild symptoms and features of traumatisation caused by the work injury. Furthermore, when examined by the psychiatrist, Dr Strauss, more recently on 21 May 2015 (at the request of his solicitors), Dr Strauss was of the opinion that the plaintiff suffered from some Anxiety and Depression, two-thirds of which resulted from personal problems and one-third resulting from the subject injury.
84 I refer to this evidence for the following reasons:
(a) First, the psychological conditions described by Dr Strauss and Dr Weissman, may go some way to explain the plaintiff’s unreliability in relation to past events;
(b) That although his presentation to the Court clearly involved elements of anxiety, there was little difficulty in determining what organic consequences the plaintiff was suffering, given the nature of the impairment suffered by the plaintiff and the inherent likelihood of the type of problems he complains of. In this sense, there was no issue of disentanglement or indeed, was there any suggestion by any party that that task had to be undertaken by the Court;[43]
(c) Of course, to the extent that any consequences are of a psychological nature, they must be disregarded as not being an organic consequence.[44]
[43]See generally Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230
[44]See generally s134AB(38)(h) of the Act
85 After a careful consideration of the evidence, I make the following findings of fact:
(a) The plaintiff has had no direct treatment for his left foot injury since about 1 June 2009 when he last attended Dr Cesar Tan for treatment involving the left foot. Although I accept that the plaintiff may have mentioned his left foot injury to other doctors over the years, he has not attended such doctors expressly for that purpose or, as I say, received any treatment;
(b) Although over the years, the plaintiff has clearly sought and obtained medical treatment in relation to his low back, psychological condition and bronchial condition, I accept his assertion that he believed that his case was “finished” after the payment of the lump sum pursuant to s98A of the Act. In this respect, such is but an example of his lack of sophistication;
(c) The plaintiff is able to perform many aspects of boilermaking work, albeit suffering a degree of pain or discomfort in the left foot which requires him to wear Caterpillar boots and fluffy socks to give some protection to the toe area of his left foot, and on various occasions an ankle strap;
(d) That prior to the injury, the plaintiff had a great passion for sporting activities involving football and basketball which he had played over many years at a competitive level. I find that as a result of the injury to his left foot and, in particular, the loss of his left toe, such sporting pursuits have come to an end. Since the injury, he has tried to resume both basketball and football without success. The plaintiff gave direct evidence that he feels “lost” as a result of his inability to continue playing football and furthermore, gave direct evidence of experiencing a lot of “satisfaction” when he played basketball. Given his long history of involvement in such sports, I consider such evidence to be inherently likely;
(e) Consistent with his evidence and the evidence of Mr Mangos, I accept that the plaintiff experiences tenderness and discomfort at the site of the amputation scar. The plaintiff has been consistent about this complaint for many years and, accordingly, I reject the evidence of Dr Davison when he states there is no tenderness in that area;
(f) I accept the evidence of the plaintiff that he experiences “a slight loss of balance”, and “a funny feeling” in the left foot when he attempts to run. Again, the plaintiff has consistently referred to this problem over the years, sometimes referring to it as the left foot “rolling out”. Also, I accept that the plaintiff has difficulty climbing a ladder or balancing on an uneven surface or slopes, restrictions on his ability to walk any distance and difficulties driving a manual car which involves the use of his left foot;
(g) I also accept that the plaintiff does experience some degree of ankle ache, although this fluctuates, depending on the type of activity which he undertakes.
86 I also find that the plaintiff suffers a degree of embarrassment about wearing sandals and thongs because of his condition, and experiences phantom pains from the little toe upwards towards the knee. Although making such findings, I have not taken such findings into account in making an assessment as to whether the plaintiff has satisfied the narrative test, as indeed, the first finding would be appropriately dealt with under paragraph (b) of the definition of “serious injury” and not under paragraph (a), and the other finding may well be of a psychological nature rather than an organic consequence.
87 I refer to the following Court of Appeal decisions which give some assistance:
(a) Stijepic v One Force Group Aust Pty Ltd,[45] wherein the Court of Appeal (consisting of Ashley JA and Beach AJA) commenting on the decision of Sumbul v Melbourne All Toya Wreckers Pty Ltd,[46] stated:
[45][2009] VSCA 181
[46][2006] VSCA 292
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”[47]
[47]See Stijepic (op cit) at paragraph [47]
(b) Haden Engineering Pty Ltd v McKinnon,[48] wherein the Court of Appeal (Maxwell P, Buchanan and Nettle JJA) stated that the interpretation of “pain and suffering consequences” of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. Part of that process is for the Court to assess the intensity of the pain which the plaintiff experiences, together with frequency and duration of pain episodes.
[48](2010) 31 VR 1
The Court of Appeal made reference to the Court of Appeal decision in Dwyer v Calco Timbers Pty Ltd (No 2),[49] and thereafter stated:
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.”[50] .
[49][2008] VSCA 260
[50]See Haden Engineering (op cit) at paragraph [14]
88 Senior Counsel for the defendant relevantly highlights the absence of treatment undertaken by the plaintiff over the years and indeed, his capacity to perform reasonably strenuous work. Of course, this is all relevant to a determination of the seriousness of the injury.
89 Indeed, Senior Counsel for the defendant referred to the decision of Tatiara Meat Company Pty Ltd v Kelso[51] and, in particular, paragraph [46], which dealt with a worker suffering from the tip of his right thumb being cut off when it came into contact with a bandsaw. In particular, Counsel referred to paragraph [46], which states:
“Whilst complaint of pain, even repeated many times, does not establish the veracity of the complaint, I consider that the evidence overall supports a finding that the respondent suffers constant pain which varies in severity. It is more likely than not that Mr Kelso usually experiences mild pain or discomfort only, but that his pain increases in severity on exposure to cold or at the end of a days’ work. He takes Nurofen when his pain is more severe. I think it unlikely that Mr Kelso suffers severe pain on a regular basis.”
Senior Counsel for the defendant notes that the worker was unsuccessful in that application.
[51][2010] VSCA 12
90 After a consideration of all of the competing aspects in this matter, I do find that the plaintiff, who is a relatively young man, has discharged his onus in satisfying the narrative test. He has suffered a clearly demonstrable injury which has organic consequences which will continue indefinitely into the future. The injury, although only moderately impacting on his capacity for employment (in circumstances where he has to give some protection to the left foot), has impacted dramatically on his sporting interests which were of great joy to the plaintiff over the years leading up to his injury. Moreover, given my findings, the plaintiff will experience various organic consequences on a daily basis, whether it be some degree of discomfort or pain, difficulty walking long distances or running any distance, climbing ladders, or travelling over rough surfaces.
91 Accordingly, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a left foot injury suffered by him on or about 11 March 2009.
92 I will hear the parties on the issue of costs.
- - -
93
Annexure “A”
The plaintiff tendered the following material:
Exhibit 1
·Affidavits of the plaintiff sworn 20 January 2014 and 26 August 2015 (found at pages 13-21 of the Plaintiff’s Court Book (“PCB”).
Exhibit 2
·Medical report of Professor Ian Brand dated 15 June 2013
·Medical report of the general practitioner, Dr Cesar Tan, dated 21 May 2009
·Medical report of the general practitioner, Dr Hany Hanna, dated 27 August 2015.
(All such reports found at pages 22-26 PCB).
Exhibit 3
·Medico-legal report of the general surgeon, Mr Peter Mangos, dated 24 July 2015
·Medico-legal report of the consultant psychiatrist, Dr Nigel Strauss, dated 21 May 2015.
(All such reports are found at pages 27-39 PCB).
The defendant tendered the following material:
Exhibit A
·Medico-legal reports of the occupational physician, Dr Gary Davison, dated 22 May 2009 and 21 July 2015
·Medico-legal report of the consultant psychiatrist, Dr David Weissman, dated 13 November 2009
·Medico-legal report of the occupational physician, Dr David Fish, dated 8 April 2010.
(All such reports are found at pages 1-32 Defendant’s Court Book (“DCB”).
The plaintiff also admitted, at the request of counsel for the defendant, that at and around the time that the plaintiff lodged a claim for impairment benefits, he had instructed solicitors.
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12
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