Schulzeff v Tailored Workforce Pty Ltd
[2010] VCC 515
•19 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No.CI-09-03559
| BRENDAN SCHULZEFF | Plaintiff |
| v | |
| TAILORED WORKFORCE PTY LTD | Defendant |
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| JUDGE: | His Honour Judge Misso |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 May 2010 |
| DATE OF JUDGMENT: | 19 May 2010 |
| CASE MAY BE CITED AS: | Schulzeff v Tailored Workforce Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0515 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - whether the pain and suffering consequences of an injury to the left ankle were at least very considerable: section 134AB (37)(a) and (38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Moore QC | Shine Lawyers |
| Mr I McDonald | ||
| For the Defendant | Mr P Jewell SC | Lander & Rogers |
| Ms E James | ||
| HIS HONOUR: |
Introduction
1 Before the court is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr J Moore QC appeared with Mr I McDonald of counsel for the plaintiff and Mr P Jewell SC appeared with Ms E James of counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is his left ankle.
5 The following evidence was adduced during the hearing:
• the plaintiff gave evidence and was cross-examined. • the plaintiff tendered his Court Book ("PCB"), pp.5 to 36: Exhibit A • the defendant tendered its Court Book ("DCB"), pp.7 to 14: Exhibit 1
6 The application is brought under the definition of serious injury contained in sub-s(37)(a) of the Act which requires the plaintiff to prove that he has suffered a permanent serious impairment or loss of a body function.
7 The relevant considerations which apply to such an application are as follows:
(a)
the plaintiff must prove that he has suffered a compensable injury, that is an injury he suffered arising out of or in the course of his employment on or after 20 October 1999.
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(b)
the injury and the impairment must be permanent, that is permanent in the sense that it is likely to last for the foreseeable future.
(c)
sub-s (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which when judged by comparison with other cases in the range of possible impairments or losses of a body function may fairly be described as more than significant or marked and as being at least very considerable.
(d)
sub-s (38)(h) provides that the psychological or psychiatric consequences of the physical injury that have been taken into account only for the purpose of paragraph (c) of the definition of serious injury and not otherwise.
(e) in conformity with Barwon Spinners Pty Ltd & Ors v. Podolak,[1] I must identify the injury and the impairments said to have been produced in consequence of the injury, whether the impairment is permanent that it is likely to last for the foreseeable future and whether the consequences for the plaintiff are such as to satisfy the very considerable test contained in sub-s(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application. [1] (2005) 14 VR 622 at paragraph 11
8 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Incident and Injury
9 The plaintiff commenced employment with the defendant on 20 June 2005. He was employed as a truck driver. The defendant had a contractual relationship with a large trucking company known as K & S Freighters Pty Ltd. That company in turn had a contractual relationship with Smorgon ARC to provide transport services. The contractual relationships between each of the parties just mentioned saw the plaintiff driving a truck carrying freight for Smorgon ARC.
10 On 1 September 2005 he went to the premises of Smorgon ARC at about 6 a.m. He was pulling down on a ratchet binder in order to tighten the strap over a load on a 40 foot bogey trailer when the strap snapped. As a consequence of the incident he suffered all of the weight of his body on his left leg. He felt a snapping sensation in the lower part of his left leg just above his left ankle joint. He suffered immediate and severe pain in his left lower leg.
11 The plaintiff reported the incident. He was taken to Dr Salimi, general practitioner. He was referred to have an x-ray which showed a fracture. He was then taken to the Epworth Hospital where a plaster cast was applied. He was subsequently referred to Mr Bourke, orthopaedic surgeon at Ballarat. The plaintiff preferred to see Mr Bourke because at that time the plaintiff was living in Melton which is closer to Ballarat than Melbourne.
12 The plaintiff first saw Mr Bourke on 6 September 2005. Mr Bourke diagnosed fracturing of the lower end of the left fibula and the posterior malleolus of the tibia. The plaintiff was admitted to the St John of God Hospital in Ballarat on 7 September 2005 when Mr Bourke undertook an open reduction and internal fixation of the left fibula and a manipulation of the fractured posterior malleolus. The plaintiff was discharged from the hospital on 9 September 2005 with his left foot in a plaster cast.
13 Mr Bourke reviewed the plaintiff on a number of occasions, namely on 4 September 2005, 25 October 2005, 22 November 2005, 17 January 2006 and lastly on 9 May 2006. In the course of those reviews Mr Bourke was
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satisfied that the fractures had been returned to their anatomical position. However, he recorded complaints made by the plaintiff of numbness over the top of his left foot associated with a burning sensation.
14 On 25 October 2005 Mr Bourke removed the plaster cast. He considered that the altered feeling over the top of the plaintiff's left foot was due to a neuroma on the superficial sensory branch of the common peroneal nerve. On that occasion Mr Bourke also noted that the plaintiff had stiffness in his left ankle and hind foot. He referred him to have physiotherapy.
15 As a consequence of persistent complaints of altered sensation over the top of his left foot Mr Bourke referred the plaintiff to Mr Sheen, plastic and reconstructive surgeon.
16 The plaintiff first saw Mr Sheen on 20 February 2006. On examination, Mr Sheen found a lump in the scar which was tender. It exhibited signs of a neuroma of the superficial peroneal nerve. Mr Sheen advised the plaintiff to have surgery, which he undertook on 2 March 2006, translocating the neuroma. The surgery was complicated by the development of a haematoma which Mr Sheen drained on 14 March 2006 under general anaesthetic.
17 Mr Sheen was of the opinion that the neuroma developed as a result of the orthopaedic procedure undertaken by Mr Bourke to repair the fractures.
18 Subsequently, the plaintiff was reviewed by Mr Bourke on 9 May 2006. At that stage Mr Bourke advised the plaintiff to undertake exercise, stretches and to use ice to treat ankle inflammation, stiffness and limping, and that he use anti- inflammatory medication which the plaintiff informed Mr Bourke he was not keen to do.
19 Mr Bourke was ultimately of the opinion that the plaintiff suffered a significant injury to his left ankle which required internal fixation. He described the fractures being to the plaintiff's lateral, medial and posterior malleola. He
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considered that the fractures had healed satisfactorily. He referred to the neuroma which he understood to have been buried in the muscle by Mr Sheen in order to overcome the unpleasant feeling which the plaintiff was experiencing over the top of his foot.
20 The plaintiff candidly admitted that he has not had any other medical treatment since he last saw Mr Bourke. He has not had any further physiotherapy. He does not take any pain killing or anti-inflammatory medication. In the latter case he described having a previous addiction of alcohol and prescription medication which he overcame resulting in him being abstemious both with respect to alcohol and prescription drugs.
The Other Medical Evidence
21 The plaintiff was examined by Mr Brearley, orthopaedic surgeon, on 24 February 2010 and also Mr Miller, orthopaedic surgeon, on 24 March 2010. Both examined him on referral by the plaintiff's solicitors.
22 Both Mr Brearley and Mr Miller came to the same conclusions as to the nature of the injury suffered by the plaintiff which were the subject of treatment by Mr Bourke and Mr Sheen. Both Mr Brearley and Mr Miller were aware of the fact that the plaintiff had returned to work as a truck driver. Both were of the opinion that he was not capable of undertaking that employment, and both were of the opinion that he was undoubtedly unable to engage in physical activities which the plaintiff described to them of a recreational nature. I will refer to these in more detail later.
23 The plaintiff was also examined be Dr Fish, consultant occupational environmental physician, on 26 May 2008. Dr Fish's opinion is also consistent with the other medical evidence regarding the nature of the injury suffered by the plaintiff. However, he made little reference to the consequences to the plaintiff of the injuries. His attention was directed more to an assessment of permanent impairment rather than directed to the issues raised by an
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application of this kind.
24 Dr Fish is the only examining medical practitioner who considered that the plaintiff would suffer the secondary consequence of arthritic change in his left ankle. The X-rays to which Mr Jewell referred me do not point to any such changes to the ankle joint.
25 Mr Moore did not press the issue, however, I find that it is unlikely that the plaintiff has, or will have, arthritic changes in his left ankle.
Serious Injury
26 The only issue which I must determine in this proceeding is whether the pain and suffering consequences contended for by the plaintiff meet the relevant statutory test.
27 Mr Jewell submitted that the consequences might approach being significant or marked, but he emphasised that there is a very clear distinction between what might be significant or marked and what is within the range of being at least very considerable, and that the consequences contended for by the plaintiff fall short of that mark.
28 The plaintiff was born on 29 August 1970. He is now 40 years of age. He is a man of modest education. He left school midway through Year 8 when he was 15 years of age. After leaving school he was employed in manual work before obtaining employment as a truck driver.
29 The plaintiff swore two affidavits on 23 February 2009 and 18 March 2010. In his examination in chief he adopted the affidavits as being a true and correct account of the pain and suffering consequences which he has endured since suffered his injuries.
30 Whilst Mr Jewell cross-examined the plaintiff on a number of matters going to the issue of whether the pain and suffering consequences are at least very
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considerable, to a large extent he did not challenge the evidence deposed to by the plaintiff in his affidavits. Mr Jewell did not make any attack upon the plaintiff's credit, however, his cross-examination, and ultimately his submissions, dealt with aspects of the plaintiff's evidence which he submitted I should not accept and which he submitted detracted from the plaintiff's case.
31 The plaintiff gave his oral evidence in a straight forward manner and was responsive to questions put to him both in examination in chief and cross- examination. There was nothing in the manner in which he gave his evidence, nor its content, that suggested to me that he was being other than truthful. Therefore I accept the plaintiff's evidence deposed to by him in his affidavits and also his oral evidence.
32 In the course of the plaintiff’s evidence in chief I was invited by Mr Moore to view the plaintiff's left ankle. After the plaintiff removed his shoe and sock Mr Moore asked the plaintiff to identify where it was on his ankle that he experienced pain. Essentially what the plaintiff pointed to was as follows. Firstly, a 15 centimetre scar running down the outside of his left ankle. Secondly, at the top of the scar, a fleshy protrusion which is where the neuroma developed. The protrusion was obvious to me as I stood about a metre away from the plaintiff's ankle. Thirdly, the plaintiff ran his index and middle finger down each side of the scar and over the top of his foot, down to the point where his toes commenced to demonstrate the area over which he experiences persistent numbness.
33 Furthermore, in the course of his evidence he described that he experiences pain around the scar and over the top of his foot if he stands for too long. He said the pain can be unbearable depending upon how long he stands. He obtains relief from that pain by resting. He finds operating the clutch on a motor vehicle and a truck difficult because it produces pain in his ankle and I infer this to mean by the depression by his left foot upon the clutch and then its release.
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34 The plaintiff is presently employed by a trucking firm known as Chalmers. He works full-time. The truck he drives is fully-automated, which I understand to mean that his left ankle does not suffer the same degree of work which would ordinarily be required in a truck which was not fully-automated, such as a truck requiring the use of a clutch to change gear.
35 Mr Jewell cross-examined the plaintiff concerning the extent to which he is involved in physical activity while working as a truck driver. Principally, it was directed to the plaintiff's estimate that in a normal working day he would probably find himself standing for 25-30 per cent of the day while, for example, loading and unloading was undertaken.
36 Mr Jewell submitted that there were particular features in the plaintiff's case which pointed to the pain and suffering consequences being less than at least very considerable, and perhaps approaching significant or marked.
37 Firstly, the plaintiff no longer requires medical treatment. Secondly, the plaintiff no longer requires the use of medication, and by inferences is able therefore to tolerate the pain that he experiences in his left ankle.
Thirdly, the plaintiff is able to work fulltime, and in the course of an average working day is able to stand for a significant period of time. Lastly, the plaintiff has otherwise retained a reasonable degree of mobility being able to wear ordinary footwear, and his preferred footwear being thongs suggestive of ankle stability. It was my strong impression of the plaintiff that he was giving a good account of himself, and as I have already observed I consider that he gave a truthful account of the consequences he has suffered both in his affidavits, and in his oral evidence.
38 Furthermore, the strong impression which I am left with is that the plaintiff suffered a dramatic, and very serious fracture in his left ankle. He suffered a serious consequence of the surgery in the development of a neuroma, which, on the basis of the medical evidence before me appears to be untreatable. I
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accept the plaintiff's evidence that he has a persistent level of throbbing pain in his left ankle; that the ankle pain is worsened by activities such as standing for a prolonged period of time, and that his capacity to undertake more testing activities such as hopping, running, ascending and descending stairs and the steps of his truck are difficult, and productive of pain.
39 The pressure on the neuroma causes pain often of a shooting kind down the outside of his left ankle through the scarring in the top of his left foot, and that it takes little pressure to produce that shooting kind of pain, for example, even the pressure of bedclothes on his left ankle, or the pressure of his body depending on which side he lies at night.
40 It is trite to say that a return to employment can of itself be persuasive evidence that the pain and suffering consequences cannot amount to being at least very considerable. Mr Jewell relied upon the plaintiff's return to work and his retention of employment in truck driving as evidence which militates against a finding that the pain and suffering consequences meet that mark. However, in my mind that would be to make a wrong estimate of the physical activity involved in the truck driving undertaken by the plaintiff at present.
41 The only evidence before me of the plaintiff exercising his retained mobility is when he uses his left foot to operate a clutch, or when he spends 25-30 per cent of his time standing in the course of his employment. The rest of the time is spent sitting in a truck where the pressure would be off his left ankle. In any event it was not my impression that the plaintiff spent long periods of time standing, but rather it was intermittent, in between for example, loading/unloading of his truck.
42 I do not accept that in this case the plaintiff's return to employment, and his retention of it, is persuasive of the issue that the pain and suffering consequences endured by him are or are not at least very considerable. In my value judgment the plaintiff at 40 years of age is a relatively young man.
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In the absence of any other evidence to suggest that he has, or will endure ill health, or will suffer an interference with his capacity for work, and his capacity to function generally, he has a working life of at least 20 years and an ordinarily life expectancy in excess of 30 years.
43 There is no evidence to suggest that the pain, limitation of movement and loss of the full, free and unrestricted use of his left ankle will reduce at any time in the future, and therefore, he is essentially faced with a pattern of pain and interference with his mobility, and capacity to engage in social and recreational activities for the balance of his life. Furthermore, I do not accept a suggestion made by Mr Brearley that surgery to remove the orthopaedic hardware might improve the plaintiff's situation with his left ankle.
44 There would need to be evidence suggesting that the surgery would probably be successful, and what successful outcome the plaintiff would probably achieve. There is no such evidence.
45 In addition to the pain which the plaintiff suffers he is no longer able to pursue trail bike riding. He is not able to engage in physical activities with his son which is something he describes amounting to a loss of his self esteem. He is not able to go camping.
46 He struck me as a man who enjoyed the outdoors and physical activity which has been greatly reduced by the nature and extent of his injuries and the loss of function in his left ankle and foot. It seems to me that to describe the pain and suffering consequences endured by the plaintiff as being significant, or marked is inconsistent with the whole of the plaintiff's evidence. I accept the submission made by Mr Moore that when one has regard to all the plaintiff's evidence it is clear that nearly every aspect of his social, recreational and working life have been affected by the injury to his left ankle, and the impairment of the function resulting from it.
47 It is for all of those reasons that I consider the pain and suffering
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consequences suffered by the plaintiff deserve the description at least very considerable. I have reached that conclusion by comparing the consequences suffered by the plaintiff with other cases in the range of possible impairments, or losses of the body function which may fairly be described as being more than significantly marked, and as being at least very considerable.
Conclusion
48 The order I therefore propose to make, on the basis of the foregoing reasons findings and conclusion, is that I will grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant.
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