Simms v Sakaem Pty Ltd
[2014] VCC 2058
•11 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01684
| GAYE MAREE SIMMS | Plaintiff |
| v | |
| SAKAEM PTY LTD (TRADING AS MADDERN’S IGA EVERYDAY) | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2014 | |
DATE OF JUDGMENT: | 11 December 2014 | |
CASE MAY BE CITED AS: | Simms v Sakaem Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2058 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave under section 134AB(16)(b) to institute
proceedings for pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, Peak Engineering Pty Ltd & Victorian WorkCover Authority v McKenzie [2014] VSCA 67, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Stijepic v One Force Group Pty Ltd [2009] VSCA 181
Judgment: Plaintiff’s application for leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.J. Ruddle | Nowicki Carbone |
| For the Defendant | Mr D. Myers | Minter Ellison |
HER HONOUR:
Introduction
1 The plaintiff is 61 years of age. She lives with her partner in rural Victoria.
2 The plaintiff completed her education to Year 10 level. In the years between leaving school and her employment by the defendant, she has had a varied history in the workplace. She commenced in factory work as a machinist, followed by a 12 year hiatus while bearing and raising children. Thereafter, the plaintiff owned and managed a motel for approximately 5 years. She next spent 5 to 6 years as a Department Manager in a supermarket, another year as a soil lab tester, a further 4 to 5 years as a cook and kitchen hand at a Hostel for the elderly and, finally, the plaintiff owned and managed a Milk Bar business for approximately 5 years.
3 From early 2004, the plaintiff commenced employment at Maddern’s IGA Everyday as Produce Manager, Retail Assistant and Cashier.
4 In her first affidavit, sworn on 19 November 2012, the plaintiff deposed she injured her left foot and ankle on 22 September 2009. By her account, as the plaintiff removed stock from a freezer at the back of the supermarket store, she slipped on a wet floor, twisting her left ankle (the left ankle injury).[1]
[1] Plaintiff’s Court Book (PCB) 10
5 As to the initial response to injury, the plaintiff continued to work for approximately 2 weeks and iced her foot and ankle at night in the expectation that pain would improve. However, worsening pain prompted the plaintiff to seek treatment for her injury on 7 October 2009 from general practitioner, Dr Luscombe, at the Mostyn Street Clinic.
6 According to her affidavit evidence, the plaintiff’s injury was treated with anti-inflammatory medication and she was referred for X-ray of the left ankle. If, as claimed, the plaintiff also underwent x-ray investigation, the results were not tendered.
7 Regular physiotherapy treatment of what physiotherapist, Ms Pullar understood involved a severe left ankle inversion strain, commenced from 8 October 2009 until this was discontinued in early 2011.[2]
[2] PCB 64
8 In the meantime, a CT scan was obtained on 10 November 2009. This, the radiologist said, suggested a minimal ligamentous injury at the level of the distal tibia fibular joint.[3]
[3] PCB 84
9 The plaintiff was referred to orthopaedic surgeon, Mr McCullough, by another general practitioner from the Mostyn Street Clinic, Dr Hope.
10 Having examined the plaintiff for the first time on 14 December 2009, the specialist concluded that the slow progress made since the incident was indicative of significant soft tissue injury involving either the ankle or mid foot or both.[4] He prescribed the anti-inflammatory medication, Mobic, and organised MRI investigation. The imaging took place on 20 January 2010. The radiologist reported normal findings, other than a small ankle joint effusion.[5]
[4] PCB 43-44
[5] PCB 85
11 On reviewing the plaintiff’s condition on 21 January 2010, Mr McCullough advised Dr Hope in the following terms:[6]
[6] PCB 45
· the plaintiff had reported a good response to the medication and greater comfort during the Christmas break from work;
· the MRI scan had not shown evidence of major soft tissue disruption;
· he had encouraged the plaintiff to continue with the Mobic and her physiotherapy treatment; and
· surgery was not indicated.
12 As to the plaintiff’s fitness for work, after consulting her general practitioner, the plaintiff was off work for approximately one week. The plaintiff said she had been unable to return to working 37.5 hours per week or to her former managerial role. Removal from her managerial role by the defendant was, the plaintiff said, particularly upsetting.[7]
[7] PCB 15
13 The plaintiff deposed she returned to alternative and modified duties and, having over a period of time gradually increased her hours to 30 hours (six hours per day, five days per week), the plaintiff said she had not been able to sustain full-time hours. The plaintiff had, she said, continued with alternative and modified duties on reduced hours.[8]
[8] PCB 15
14 In addition to ongoing pain and disability due to work-related ankle injury, in her first affidavit the plaintiff alleged she had developed right knee injury as a result of overcompensating to protect the injured left foot and ankle.[9]
[9] PCB 12
15 It appears that, at some later stage, the plaintiff was referred to another specialist, Mr Williams, for assessment of her right knee condition. Radiology apparently revealed degenerative changes, that is to say some degree of chondromalacia patellae affecting the right knee.[10]
[10] PCB 36 and 40
16 Apart from referring to and repeating the content of her first affidavit, however, right knee injury was not directly mentioned in the supplementary affidavit sworn shortly prior to the hearing.[11]
[11] PCB 16A
17 The drafting of the supplementary affidavit left a great deal to be desired. The tenor of the later affidavit, nonetheless, suggested that the matters mentioned were all related to the left ankle injury, notwithstanding various statements made in the first affidavit to the effect that both the left ankle injury and the right knee condition contributed to a number of these consequences.
The application
18 The plaintiff sought leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for inversion and lateral ligamentous strain injury to her left ankle arising out of or in the course of her employment with the defendant. [12]
[12] Transcript (TN) 2, 5 and 11.
19 Leave was sought under paragraph (a) of the definition of “serious injury” to recover damages for pain and suffering only in relation to permanent serious impairment of the plaintiff's left ankle.
20 “Permanent” refers to impairment of the left lower limb that is: "likely to last for the foreseeable future".[13]
[13]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
21 The determination of whether injury is 'serious' is assessed by reference to the consequences to the plaintiff of impairment of her left ankle, which would not meet the test unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable”.[14]
[14] Section 134AB(38)(c)
22 A claim made under paragraph (c) for permanent severe mental or behavioural disorder was not pursued. In accordance with section 134AB(38)(h) of the Act, any adjustment disorder or depression for which the plaintiff has been treated in association with the injury, was not relied on in the assessment of the consequences of impairment of the plaintiff’s left lower limb.
The dispute
23 At hearing, the plaintiff appeared to accept that the onset of the right knee condition was unrelated to the ankle injury. The plaintiff’s medico-legal specialist, orthopaedic surgeon, Associate Professor Love, nonetheless, considered it reasonable to assume that impairment of the left ankle had amplified symptoms associated with the right knee condition.[15]
[15] PCB 90
24 As I understood the report of the defendant’s specialist, general surgeon, Associate Professor Buzzard in July 2011, he simply rejected the suggestion that the knee condition was secondary to the left ankle injury because the plaintiff had been sparing the left ankle.[16] However, unlike Associate Professor Love and the plaintiff’s current treating general practitioner, Dr Rowland (also from the Mostyn Street Clinic),[17] Associate Professor Buzzard had not also turned his mind to whether the action of sparing the left ankle amplified pain in the right knee. On balance, I concluded it was appropriate to make some allowance for the likely amplification of right knee pain due to preferential weight bearing. I propose to discuss this matter and the related issue of disentanglement of the consequences of the concurrent condition in greater detail shortly.
[16] DCB 10
[17] PCB 36
25 The defendant conceded compensable injury in the nature of a strain and possibly some ligamentous damage.[18] The issues were:
· whether and to what extent any concurrent unrelated condition affecting the plaintiff’s right knee contributed to the consequences alleged;[19] and
· whether the consequences of the ankle injury met the narrative test for serious injury under the Act.
[18] TN 21, 23-4.
[19]Peak Engineering Pty Ltd & Victorian WorkCover Authority v McKenzie [2014] VSCA 67, [24]
26 Somewhat unusually, the plaintiff was not required for cross-examination. Her credit was not challenged.
27 Both parties tendered extracts from their Court Books.[20]
[20] Exhibit P1 and D1.
28 The plaintiff relied on her affidavits sworn on 19 November 2012 and 23 October 2014, respectively.
29 Other material tendered by her consisted of correspondence and reports from Dr Rowlands, dated 12 August 2011, 18 October 2011, 12 March 2012, 2 July 2012, 10 April 2013 and 1 May 2014, reports from Mr McCullough, dated 16 December 2009 and 15 February 2010, reports from treating physiotherapists, Ms Sheahan dated 23 March 2012 and Ms Pullar dated 15 November 2011 and 22 August 2014, as well as medico-legal reports from Associate Professor Love, dated 4 June 2013, 26 July 2013 and 15 April 2014.
30 The defendant’s tender comprised an independent medical report from Associate Professor Buzzard, dated 14 July 2011 and reports from another general surgeon, Mr Troy, dated 21 September 2012 and 20 January 2012.
Later investigation, treatment and assessment
31 Later radiology of the left ankle obtained on 29 June 2012 by Dr Rowland, reported finding: “No arthropathy or local bony abnormality”.[21]
[21] PCB 41
32 Assessment by a podiatrist at the request of Dr Rowland during 2011 apparently confirmed his belief that a major degree of pes planus was contributing to pain. Orthotics were fitted.
33 Medical opinion tendered by the parties has confirmed compensable left ankle injury. Their findings and prognoses are summarised in the following paragraphs.
34 In his only report addressed to Xchanging, Associate Professor Buzzard advised the insurer in the following terms:[22]
[22] Defendant's Court Book (DCB) 4-11
· he examined the plaintiff once on 13 July 2011;
· examination revealed a slightly irregular gait, some swelling just below the left ankle lateral malleolus, tenderness and restriction in the range of movement;
· the plaintiff was asked about and apparently reported she had not played sport in recent years. She was, she said, still able to perform self-care tasks such as dressing, washing and feeding herself;
· in his opinion the plaintiff had suffered left ankle injury involving a partial tear of the lateral collateral ligament with consequent continuing pain and restriction in range of movement;
· as to ongoing physiotherapy treatment, this should not continue indefinitely, although a course of physiotherapy aimed at teaching the plaintiff appropriate exercises was, Associate Professor Buzzard said, reasonable. Associate Professor Buzzard’s opinion at the time was that withdrawal of this treatment probably wouldn’t affect the plaintiff’s ability to undertake the necessary activities of daily living or to stay at work;
· he recommended conservative treatment including medication, such as Panadol Osteo, exercises and ongoing use of an orthotic the plaintiff had been using for only a few days when seen by Associate Professor Buzzard in July 2011;
· he was informed the plaintiff was not aware of the reason for her demotion from her managerial role on her return to work, although she attributed the 7 ½ hour reduction in her working hours to her left ankle condition. I could not tell from the report submitted the extent of the enquiry made, if any, of the plaintiff about whether and the extent to which non-managerial work duties, such as prolonged standing at a cash register, impacted on ankle pain and symptoms. In my view the likely limited enquiry made with regard to the ankle injury alone probably accounted for Professor Buzzard’s advice that the plaintiff was capable of performing her pre-injury work, notwithstanding the plaintiff’s evidence that her ability to sustain some of these duties as before the left ankle injury had been impaired.
35 The plaintiff apparently returned for a further period of physiotherapy with Ms Pullar between July and November 2011. According to the report submitted by this physiotherapist on 22 August 2014: [23]
[23] PCB 65-66
· physiotherapy was discontinued in November 2011 because it was believed no further gains could be achieved;
· in November 2011 the plaintiff was working full-time standing on her feet for most of the day, she walked with a limp due to pain and pain-induced weakness, she reported ankle aching and swelling by the end of the day at work and wakefulness at night due to aching and she required anti-inflammatory medication and ice to settle the aching and swelling each evening;
· the physiotherapist recommended intermittent short courses of physiotherapy;
· the physiotherapist envisaged restrictions on employment if this involved a lot of walking and increasing restrictions on sporting activity or recreational walking with the passage of time;
· the physiotherapist envisaged a gradual worsening of chronic synovitis and pain induced ankle and foot dysfunction in the future.
36 The plaintiff continued to report left ankle and lower leg pain despite using orthotics. This prompted Dr Rowland to obtain approval of funding for referral to another physiotherapist, Ms Sheahan. Her report dated 23 March 2012 relevantly indicated the following matters:[24]
[24] PCB 54-55
· the plaintiff was referred from October 2011. By arranging for adjustment of the plaintiff’s orthotics, Ms Sheahan appears to have addressed some of the problems reported with both right knee and left ankle pain;
· following a two week trial in February 2012 of a low intensity pulsed ultra-sound soft tissue and bone stimulator (LIPUS) the plaintiff reported reduction in night pain to 5/10;
· in March 2012 the plaintiff’s day pain was reported at a consistent 3/10. With treatment there had been improvement in the range of ankle movement, in the stability of her leg stance on the left side and gluteal strength and in proprioception and strength around the ankle;
· she understood the plaintiff had consistently followed a solid home exercise program;
· apart from further LIPUS treatment for another month to promote healing and reduce night pain, Ms Sheahan informed Xchanging she no longer needed to see the plaintiff for physiotherapy treatment.
37 Mr Troy submitted two reports to Xchanging, having examined the plaintiff and assessed impairment on 17 January 2012 and re-examined her on 19 September 2012. He reported in the following terms: [25]
[25] DCB 13-25
· the plaintiff described aching, pain and swelling, pain ascending and descending stairs, a preference for walking on the inside of her left foot, an inability to climb ladders or wear high heel shoes and difficulty using a manual clutch on a 4WD, difficulty when squatting and swelling by the end of a working day. These problems were all directly attributed to the ankle injury, rather than the right knee complaint;
· when examined on the last occasion the plaintiff was taking anti-inflammatory medication, a Voltaren tablet at night to counter left ankle pain and she reported exercising every morning. The plaintiff had been taking antidepressant medication, Cymbalta, for more than a year in the treatment of secondary depression;
· examination apparently revealed good mobility in the ankle with one area of “minor” pain;
· notwithstanding her complaints of pain, Mr Troy noted the plaintiff had retained the capacity to walk up or down stairs, to drive an automatic vehicle and to perform normal domestic activities;
· he diagnosed a strain pattern to the anterior tibia and fibula ligament of the left ankle;[26]
[26] DCB 21
· in his opinion the work-related injury had stabilised;
· Mr Troy predicted the plaintiff’s condition would remain as is;
· as to ongoing treatment, Mr Troy considered physiotherapy unnecessary. He recommended the plaintiff continue taking her medication as needed, exercise in her own time, use her orthotics indefinitely and undergo some hydrotherapy.
38 The plaintiff’s first affidavit was sworn on 19 November 2012. In this affidavit, among other things, the plaintiff described the various consequences she attributed to her work-related injuries, without separately delineating the impact of one injury or the other on pain levels or disability. For instance, the plaintiff deposed that due to the work-related injuries (that is the left ankle and the right knee injuries) she experienced difficulties and/or pain in climbing up and down stairs, walking up steep surfaces, walking her dog for prolonged periods and dancing.[27]
[27] PCB 13-14
39 In a report dated 10 April 2013 (largely repeated in his final report dated 1 May 2014), Dr Rowland, whom the plaintiff has attended since 20 May 2011, reported to her solicitors in the following terms:[28]
[28] PCB 36-42
· in his opinion the plaintiff had sustained an inversion sprain injury of the left ankle with likely lateral ligament injury compounded by the lack of correction of what Dr Rowland thought was probably a pre-existing pes planus of the left foot. The plaintiff had developed chronic pain of the left lateral ankle, as a result of which she suffered loss of income, ongoing disability and secondary depression;
· chronic left ankle pain was the sole cause of the reduction in the plaintiff’s working hours. He noted the plaintiff reported difficulty in standing in one place for more than an hour and managed her work by rotating her duties every hour, she had difficulty negotiating a small flight of stairs at work and avoided other tasks which provoked ankle pain, as for example, pushing trolleys up a ramp and squatting to ticket groceries;
· chronic left ankle pain also impacted on the plaintiff’s social and domestic functions. The examples mentioned included her inability to stand on a ladder to wash windows, curtailment of gardening activities because of restrictions on squatting and walking and her inability to take long walks or go dancing;
· there had been no significant change in the plaintiff’s condition or management of her condition in the 12 months preceding Dr Rowland’s report dated 1 May 2014. I understood from this evidence that the plaintiff still required anti-inflammatory medication, Voltaren, as needed, in the treatment of exacerbations of pain (nothing in the treating doctor’s reports suggested that Voltaren medication was prescribed for or regularly required in the treatment of any unrelated condition), she still undertook exercises and she still iced her leg and foot at the end of the working day, although with rest during periods of holiday the plaintiff had reported pain settled well;
· Dr Rowland predicted the plaintiff’s left ankle condition would remain unchanged for the long-term and the restrictions on her work and domestic activities were, he said, permanent.
40 Having examined the plaintiff at the request of her solicitors twice, on 4 June 2013 and 15 April 2014, Associate Professor Love reported in the following terms:[29]
[29] PCB 87-89 and 92-93
· x-ray and CT and MRI scans of the left ankle viewed by him had not revealed any abnormality;
· examination in April 2014 revealed some increased inversion and forceful inversion produced pain with lateral tenderness;
· whilst the reason for the failure of the condition to resolve was not obvious, Associate Professor Love’s “working diagnosis” was of a chronic lateral ligament strain of the left ankle, which was unlikely to change significantly in the foreseeable future;
· in his opinion the plaintiff’s condition had stabilised;
· Associate Professor Love could not conceive of any other treatment which was likely to make a meaningful difference to the plaintiff’s condition;
· in his opinion the plaintiff was fit for her pre-injury employment, albeit for reduced hours and her capacity to engage in physical activities involving standing or walking distances was, Associate Professor Love said, permanently restricted.
41 As mentioned, Associate Professor Love also examined and reported on the right knee condition, which he concluded had been marginally influenced by the symptoms affecting the plaintiff’s left ankle. His reports, which included a report dated 26 July 2013 in which the professor discussed the probable cause of the right knee condition, nonetheless, focused on the pain and disability and treatment associated with the left ankle injury.
The injury suffered and current status
42 Whilst I accept that the earliest radiology and Associate Professor Buzzard’s report suggested an initial injury involving a partial tear of the lateral collateral ligament, on balance, I have relied on the diagnoses of the treating general practitioner, Dr Rowlands (he has treated the plaintiff over some years now) and of Associate Professor Love. Their reports provided an up-to-date analysis of the current status of the physical injury, which probably had resulted in a chronic lateral ligament strain of the left ankle and either caused or materially contributed to the range of consequences reported by the plaintiff from time to time.
Current treatment and work activities
43 Since the date of the injury, the plaintiff has continued to work restricted hours and in non-managerial duties with the defendant. In her first affidavit the plaintiff deposed her duties then involved filling a trolley with stock, pushing the trolley up and down the supermarket aisles to restock shelves and returning the trolley back down a ramp to the stockroom/shed. Other duties involved working as a Cashier, which the plaintiff rotated every hour by relieving other staff members in different departments because standing caused pain in her left foot and ankle.[30]
[30] PCB 15
44 Based on her supplementary affidavit, it appears that the plaintiff has continued to perform similar duties, although she deposed she also performed additional duties, special ticketing and repricing. The plaintiff made clear, however, she now pushed herself to work 30 hours per week because she had a mortgage to pay and needed her holiday breaks to rest and reduce the pain levels in her left foot.
45 The plaintiff deposed she continued to consult Dr Rowlands on a monthly basis, she was prescribed both antidepressant medication and Voltaren (the latter taken at the rate of 1 to 2 tablets per day), she consulted a psychologist (this therapy was funded by Medicare) and her doctor continued to certify the plaintiff unfit to work her normal hours.[31] As mentioned, in his reports Dr Rowland unequivocally attributed the ongoing reduction in the plaintiff’s working hours and the constraints she reported on her other activities to her physical ankle injury.
[31] PCB 16A
Pain and suffering and loss of enjoyment of life consequence
46 I now turn to consider the pain and suffering and loss of enjoyment of life consequence.
47 The Court of Appeal decision in Haden Engineering Pty Ltd v McKinnon,[32] instructs that the pain and suffering consequence of compensable injury encompasses both the plaintiff’s experience of pain and the disabling effect of pain on her physical capabilities (including her capacity for work) and enjoyment of life.
[32] [2010] VSCA 69 [9]-[17]
48 As to the plaintiff’s experience of pain, this was broadly articulated in the plaintiff’s affidavits in the following words:[33]
[33] PCB 12 and 16A
In her first affidavit –
“24. As a consequence of my work related injury I suffer pain in my left foot, left ankle and as a result of overcompensating on my right leg so that I can protect my injured left foot and left ankle as much as possible, I have subsequently developed a right knee injury.
…
26. As a consequence of my work related injuries I also tend to have a burning sensation ion (sic) my left foot and ankle. It especially aches when the weather changes and to assist me with the burning sensation I tend to regularly ice my left foot and left ankle to cool them down.”
In her supplementary affidavit –
“I continue to have continuous pain in my left foot and ankle and it is worse at the end of the day. After a stand on it for any lengthy period, my left foot and ankle swell up and I have to put an ice pack on it. Furthermore, I feel a burning sensation in my foot.…”
49 The plaintiff deposed her pain was worsening. This particular claim finds some support in the prediction by physiotherapist, Ms Pullar, some years after she last treated the plaintiff, that the left foot condition would probably gradually worsen. The reason for any deterioration in the condition of the left ankle was not evident, however, from the report submitted or supported by the prognostications made by Dr Rowland or the specialists, whose reports were tendered. Accordingly, whilst I accept the plaintiff was probably genuine in her belief that her ankle condition was worsening, in the absence of a clear physical explanation for this circumstance, I have not allowed for this additional factor in my assessment of the pain consequence.
50 I have, however, accepted the plaintiff’s description of the constancy of left ankle pain, the level of which was likely exacerbated by her work duties or similar activities undertaken in a domestic or social setting. Firstly, neither her credit nor her evidence in this regard was challenged through cross-examination. Secondly, in the years since the work-related injury, the plaintiff has consistently reported to treating and medico-legal doctors alike, chronic pain and disability affecting the left ankle, which still probably required daily use of anti-inflammatory medication and, when aggravated by work activity, produced physical symptoms such as swelling. This, in turn, required treatment with an ice pack. In their reports dated 10 April 2013 and 15 April 2014 respectively, Dr Rowland and Associate Professor Love have also recorded recent clinical evidence of ongoing tenderness in the lateral ankle joint.
51 As to the intensity of the pain experienced, this is best gauged from the evidence of the disabling effect of pain and the extent to which the evidence showed pain and loss of function associated with the ankle injury interfered with the plaintiff’s employment, domestic, social and recreational activities.
52 In making my assessment, as required, I have considered all of the pain and suffering consequences relating to the ankle injury and to the right knee condition at the date of hearing and, where necessary, I have also considered whether, and to what extent, the knee condition contributed to a particular consequence.
53 As mentioned in my summary of the various medical reports, in most instances, the doctors have separately identified the consequences attributable to the right knee condition. Dr Rowland, however, was more specific and through his reports he emphasised that the consequences noted by him were due to the ankle injury.
Pain and impairment
54 Pain and impairment were said to impact on the plaintiff’s gait. For instance, from time to time the plaintiff reported limping. I infer this was a factor in increased reliance on the plaintiff’s right leg. In this sense, the impaired functioning of the left ankle probably caused some amplification of pain in the plaintiff’s right knee.
55 Pain and impairment also impacted on the plaintiff’s standing tolerance such that, as claimed in her first affidavit, the plaintiff probably needed to change her stance and/or mobilise after approximately an hour.[34] The defendant correctly noted, however, that in this affidavit the plaintiff also stated that standing caused problems with her right knee condition, which, at the time the affidavit was sworn, the plaintiff believed was an injury caused by the work-related ankle injury.
[34] PCB 12
56 Pain and impairment also impacted on the plaintiff’s ability to climb and descend stairs, such that she deposed she needed to hold onto the railing and/or a wall.[35] This was a problem at the plaintiff’s place of employment where the plaintiff needed to negotiate stairs if she went to the office. The plaintiff said she called out if she needed something from the office, although at times she climbed the stair with difficulty.
[35] PCB 13
57 In her first affidavit the plaintiff described difficulties walking up steep surfaces, which she said caused pain in her left foot and ankle and right knee.[36]
[36] PCB 13
58 Based on the histories reported to doctors and, in particular, the treating general practitioner’s reports, I was satisfied that, if not the only cause, the ankle injury was probably the primary contributor to the reduction in the plaintiff’s standing and ascending and descending tolerances since the incident as described above.
Employment
59 I have already summarised the evidence relating to the plaintiff’s post-injury employment and, despite the pain and symptoms generated by work activities, her persistence with work, albeit at reduced hours, in order to meet her financial commitments. Leaving to one side the economic loss consequence of the plaintiff’s inability to engage in full-time work activities and having regard to her age, in assessing the plaintiff’s pain and suffering and loss of enjoyment of life consequence, I have made allowance for the likely regular endurance of work-related exacerbation of pain and symptoms in the left ankle and for the frustration experienced by the plaintiff in not being able to return to full-time duties over the balance of her likely working life.
Domestic/Self-Care/Social Activities
60 Allowing for the reports made to doctors from time to time, the plaintiff has a retained capacity for self-care and most domestic activities.
61 Consequences such as the plaintiff’s reported difficulty in climbing ladders to wash windows due to unsteadiness in her left limb were readily attributable to the ankle injury alone.[37]
[37] PCB 14
62 As mentioned, the plaintiff had not reported any sporting activities. In her first affidavit the plaintiff deposed that pain and disability from work-related injury (in context in many instances this appeared to reference both the left ankle injury and the right knee condition) had restricted or precluded particular activities.
63 For instance, the plaintiff deposed she had ceased attending her local gym, which she had previously attended on average twice weekly. Whilst I accept that the plaintiff probably had not returned to gym work, based on all of the evidence I was unable to discern the extent to which the right knee condition contributed to this circumstance.
64 In both affidavits, the plaintiff mentioned the impact of injury on her ability to walk her dog since the ankle injury. For instance, in her first affidavit the plaintiff deposed she had previously walked the dog one to one and a half hours daily, but since then, attempts to walk her dog for prolonged periods had caused pain in her left foot, left ankle and right knee.[38] In her supplementary affidavit the plaintiff deposed she no longer took her dog for a walk because her pain had worsened.[39] Rather, the plaintiff said she opened the back gate and let the dog run about. Evidently, the plaintiff’s inability to exercise by taking the dog walking had also led to weight gain.
[38] PCB 13
[39] PCB 16A
65 As we know from the recent medical evidence of Associate Professor Love and Dr Rowlands, the plaintiff’s capacity to walk distances is now probably permanently restricted by particularly left ankle pain. In these circumstances I have accepted as plausible the claim made in her supplementary affidavit that she is no longer able to walk the dog and further that the reduction in her ability to exercise has led to weight gain.
66 In her first affidavit the plaintiff deposed she had been an avid gardener and, having moved house a month before the ankle injury, she had been keen to work in and develop her garden. According to the plaintiff she had difficulty gardening since the workplace incident, which I took to reference the ankle injury.
67 In her supplementary affidavit the plaintiff said she did as much work she could around the house and in the garden, albeit at a very slow pace. She deposed she could not do any heavy work in the garden and, having tried to do this, she could no longer use the mower because it was too painful.
68 In terms of her social activities, in her first affidavit the plaintiff spoke of having enjoyed socialising with friends and going dancing regularly prior to the ankle injury, as well as enjoying wearing high heel shoes when she socialised. The plaintiff deposed to difficulty in dancing due to pain in her left foot, left ankle and right knee and noted her inability to wear high heel shoes. The latter, she said upset her because she had previously enjoyed dressing up and wearing heels.
69 In her supplementary affidavit, the plaintiff deposed she had tried dancing but found this activity too painful.
70 In her supplementary affidavit the plaintiff deposed she suffered insomnia and sleep disrupted by pain, such that she regularly got out of bed at least 2 to 3 times a night. This, in turn, sapped her energy levels. Wakefulness at night caused by aching in the plaintiff’s ankle was a matter noted by treating physiotherapist, Ms Pullar in 2011. The second physiotherapist, Ms Sheahan further noted in 2012 that LIPUS treatment to the ankle had only reduced the level of the plaintiff’s reported night pain, not eradicated it.
71 The last mentioned matters supported a finding that the ankle injury probably remained the primary contributor to the disrupted sleep and insomnia reported by the plaintiff in 2014.
72 Counsel submitted the Court should infer from the evidence as a whole and, particularly from the supplementary affidavit, that left ankle pain and disability was probably the primary contributor to the consequences to which the plaintiff deposed above, if not the only contributor. I have accepted that when viewed as a whole, the evidence established the latter proposition.
Conclusions
73 To summarise, I was satisfied that:
· the plaintiff suffered compensable injury to her left ankle, resulting in a chronic lateral ligament strain of the left ankle; and
· the impairment consequences of the injury were as described above.
74 In assessing whether the pain and suffering consequence of the compensable left ankle injury met the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which this injury materially contributed.[40]
[40]Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [114]
75 The evidence relating to the impact of impairment of the plaintiff’s ankle on her day-to-day activities and enjoyment of life has been summarised. I have also summarised the evidence, which indicated the plaintiff regularly required anti-inflammatory medication, pain regularly woke her at night and pain interfered with the plaintiff’s work on a daily basis. The evidence also suggested that the plaintiff’s approach to particularly her work required some degree of fortitude in the face of regular work-related exacerbation of symptoms and pain.
76 The test is whether the plaintiff has established that the pain and suffering consequence of the left ankle injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained in the past, applying this test involves a value judgment in which matters of fact and degree and of impression all play a role.[41]
[41]Stijepic v One Force Group Pty Ltd [2009] VSCA 181, [41]
77 Section 134AB(38)(c) requires the Court to consider where, on its facts, the present case sits when compared with other cases in the range of possible impairments or losses of body function.
78 My summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff had lost was informed to some extent by what she had retained) was in my view consistent with a finding that the consequence in respect to the injury was at least very considerable. This conclusion was reached having considered all of the pain and suffering consequences relating to the ankle injury and the right knee condition at the date of hearing and, where necessary, having also considered whether, and to what extent, the knee condition likely contributed to a particular consequence.
79 The plaintiff has met the requirements of the narrative test. I propose to make an order granting leave.
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