Singh v Roan Services Pty Ltd
[2012] VCC 1743
•7 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04419
| HARJEET SINGH | Plaintiff |
| v | |
| ROAN SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2012 | |
DATE OF JUDGMENT: | 7 December 2012 | |
CASE MAY BE CITED AS: | Singh v Roan Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1743 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury – whether the consequences of the injury were fairly described as being more than significant or marked and at least very considerable.
Legislation Cited: Accident Compensation Act 1985.
Cases Cited:Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Ltd [2011] VSCA 52
Judgment: For the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Henry Carus & Associates |
| For the Defendant | Mr S Smith | Hall & Wilcox |
HIS HONOUR:
1 Harjeet Singh suffered injuries in the course of his employment with the defendant on or about 18 March 2009. He seeks the leave of this Court to issue proceedings to recover damages for pain and suffering in respect of those injuries.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as a “permanent serious impairment or loss of a body function”. The body function the subject of this application is that of the right ankle.
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18]−[19]
5 The term “serious” is to be satisfied by reference to the consequences to Mr Singh of any impairment or loss of function of his right ankle with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
6 The Act provides that impairment or loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable.[4]
[4]Section 134AB(38)(c)
7 The issue to be determined in this application is whether the consequences of Mr Singh’s injury to his right ankle can fairly be described as being more than significant or marked and as being at least very considerable. The defendant admits that he suffered a crushing type injury to his right ankle involving fractures, but denies that the consequences for him of that injury are at least very considerable.
Background
8 Mr Singh is aged thirty-one years. He was born in India and attended school there. He completed a three-year Diploma in Electronics and Communication Engineering and worked in India installing electrical components in washing machines.
9 He came to Australia in April 2006.
10 On arrival in Australia, his qualifications in electronics were not recognised. He has completed a one-year commercial cooking course at the Brighton Institute and worked during that course and for a time afterwards at a bakery.
11 In January 2009, he commenced employment with the defendant as a labourer/sorter at its recycling factory. It was not a job that he planned to continue on a long-term basis. He had hoped that he would be able to find work using his cooking qualification. In the months that followed his course, he applied unsuccessfully for some cooking jobs.
12 In the course of his employment with the defendant, he worked eight hours per day. His work involved him being on his feet all the time, working alongside a chest-high conveyor belt.
13 On 18 March 2009, his right ankle was caught between a forklift, driven by a co-worker, and a pole.
Aftermath of Injury
14 Mr Singh was taken to the Northern Hospital. X-rays showed fractures of the ankle. He was an inpatient at the hospital for some six days. He underwent surgery consisting of an open reduction and internal fixation by way of four screws.
15 Following discharge from hospital, he underwent physiotherapy with Ms Susan Thomas. For some weeks he used a cam boot and crutches.
16 In July 2009, Mr Singh returned to work with the defendant on reduced hours and on modified duties. Over a period of about two months, he increased his working hours and duties, and by the end of that period had resumed normal duties on a full-time basis.
17 In March 2010, he commenced seeing a physiotherapist, Mr Richard McGlynn. He embarked upon a functional restoration program for some months. Mr McGlynn taught him exercises, which he performed at home.
18 He saw his general practitioner, Dr Uluca, in April, October and December (twice) of 2009 and on 10 May 2010 for unrelated matters. Dr Ulica’s clinical notes on those dates contain no reference to his ankle. He saw him for the first time in relation to his ankle on 13 May 2010, and again in relation to the ankle in August and October 2010. On the latter occasion, Dr Uluca referred him to an orthopaedic surgeon, Mr Raphael Hau, who he saw in November 2010. Dr Uluca had not seen Mr Singh in relation to his ankle since October 2010 save for a review on 9 October 2012 for the purpose of providing a report to his solicitors.[5]
[5]PCB 45
19 In March 2011, Mr Hau surgically removed the four screws from his ankle. Mr Hau reviewed him on 11 April 2011 (about two weeks after the procedure), when he removed sutures and prescribed antibiotics. On that date, Mr Hau wrote to Dr Uluca advising that he planned to see Mr Singh again in six weeks. However, Mr Singh chose not to re-attend on him.
20 It follows that Mr Singh has not seen his general practitioner (other than on a medico-legal basis) since October 2010. He has not seen his specialist since April 2011. He has not had physiotherapy or other treatment since June 2011.
21 Following his return to work and build up to full-time, normal duties, he continued working for some fifteen months until November 2010, when the defendant’s factory was destroyed by fire. For some time thereafter, he was not employed. In late 2010, he travelled to India for a time and married whilst there.
22 From 2009, he has taken non-prescription Panadol tablets from time to time. Apart from short periods whilst in hospital, he has never been prescribed any stronger pain medication. His evidence was that over the last year he has taken Panadol every one to two months. He last took Panadol on one day about two months ago.
23 Since May 2011, Mr Singh has been employed as a taxi driver. He works six days per week and on each of those days works an 11 or 12-hour shift.
24 He is earning approximately the same income as he did whilst working for the defendant, but is working longer hours.
Medical Evidence Concerning the Injury
25 X-rays taken on the day of the incident revealed a fracture through the medial malleolus extending into the articular surface, with several millimetres of separation of the fragment. There was also a fracture line extending up from this level into the lateral aspect of the lower tibia, with no significant displacement. Above this level, there was a fracture through the fibula, with no displacement. At surgery, four screws were inserted.
26 No report had been obtained from Mr Hau, although a number of letters from Mr Hau to Dr Uluca were tendered as part of Exhibit A. In November 2010, Mr Singh had reported to Mr Hau that he suffered intermittent antero-medial ankle pain and discomfort at the end of the day. At that time, he was taking no analgesia and had no pain at rest.[6] At that time, Mr Hau had recommended removal of the screws from his ankle and this was done on 24 March 2011. On review two weeks later, Mr Hau wrote, indicating that he had referred Mr Singh for physiotherapy and that he expected to see him again in six weeks to monitor his progress. In fact, Mr Singh never returned to see him.
[6]PCB 36
27 Mr McGlynn, physiotherapist, treated Mr Singh on eight occasions over seven weeks in May and June 2011. He initially noted a stiff painful ankle and a tight posterior calf. He reported that treatment was said to have improved the ankle range of movement, reduced pain, and improved overall lower limb function. He noted continuing morning stiffness. Mr McGlynn reported that his prognosis appeared to be good and that his only concern was that if there was continued morning pain and stiffness, this might suggest ankle chondral damage or irritation which, in the long term, would predispose him to development of ankle osteoarthritis. He has not seen Mr Singh since June 2011.[7]
[7]PCB 43-44
28 On 9 October 2012, Dr Uluca examined Mr Singh and noted he was walking without limping. On examination, he found no evidence of muscle wasting. He took a history from Mr Singh of some numbness over the right ankle, together with pain which was said to limit his mobility. Dr Uluca took a history that Mr Singh could not run or squat on his right ankle, could not walk on uneven surfaces and suffered ankle pain in cold weather. Dr Uluca considered that, at this stage, Mr Singh’s prognosis was good but that later he may develop degenerative changes in his ankle.[8] In a supplementary report, Dr Uluca noted that prolonged standing or walking was likely to accelerate degenerative changes and that in the future, depending on the severity of degenerative changes, he may require surgery to improve symptom control.[9]
[8]PCB 47
[9]PCB 48
29 Mr Russell Miller, orthopaedic surgeon, saw Mr Singh on 27 August 2012 at the request of his solicitors. On examination, he found calf muscle wasting of 1.5 centimetres.[10] He reported that Mr Singh had suffered a significant crush injury to his leg and ankle and had undergone appropriate surgery for this with removal of the metalware, but had ongoing symptoms due to associated soft-tissue and bony injury. He thought the prognosis was only fair.[11]
[10]PCB 52
[11]PCB 53
30 Mr Miller reported that Mr Singh was at moderate risk of developing arthritic disease in the right ankle and hind foot but that on the balance of probabilities, he was unlikely to do so to the point where he would require intervention.[12]
[12]PCB 54
31 Mr Miller considered that Mr Singh would have difficulty with work that involved large amounts of prolonged standing, prolonged walking, twisting, turning, kneeling, squatting and right leg agility. He did not believe that Mr Singh could return to his pre-injury duties but considered his work as a taxi driver to be appropriate for him.[13] Mr Miller did not appear to be aware that Mr Singh had in fact returned to his normal pre-injury duties on a full-time basis for fifteen months until the factory fire resulted in the closure of the defendant’s business.
[13]PCB 54
32 Mr Singh was seen by Professor John Hart, orthopaedic surgeon, at the request of the defendant’s solicitors in August 2011 and September 2012. On the earlier occasion, Professor Hart was of the view that Mr Singh had sustained a fracture to the right tibia involving the medial malleolus and the distal end of the tibia, and fractures of the distal and proximal ends of the fibula, together with multiple abrasions and lacerations. He considered that he had a mild partial neuropraxia of the saphenous nerve which could have occurred with the crush injury or as a result of some post-operative complication. He found a “slight limitation of ankle and hind foot movement”. He thought that the chance of Mr Singh developing osteoarthritis in the joint was relatively small. He thought that there would be no significant long-term effect from the soft-tissue injuries apart from minor scarring. His ability to walk and stand should not be significantly affected in the long term. He noted that Mr Singh experienced difficulty in squatting due to the slightly limited dorsiflexion of his ankle, and noted that he was unable to run. He did not consider that Mr Singh was incapacitated for work, noting that he was able to return to his normal duties and work after the accident full time for some fifteen months until the factory closed.[14]
[14]Defendant’s Court Book (“DCB”) 15
33 In September 2012, Professor Hart reported that Mr Singh told him that he was not, at that time, doing any self-managed exercise program because he did not have the time. He had reported intermittent pain in the right ankle in cold weather and on attempting to run. He had reported no pain on walking and was not complaining of any swelling, knocking, catching or giving way of the ankle. Mr Singh had reported that he was unable to jog or run because of discomfort, but could stand for one hour. He was able to drive a motor vehicle without difficulty and could ascend and descend stairs.
34 Professor Hart considered that Mr Singh had achieved a very good result since the fracture of his ankle and that he had regained good function of the ankle and hind foot with no wasting observed.[15] He thought Mr Singh had a good prognosis, although the fracture involved the articular surface and therefore there was potential for degenerative changes to develop in the longer term. He considered that the anatomical restoration of the bone fragments reduces the chance of developing osteoarthritis, but this could occur in the longer term.[16] He noted that Mr Singh was working full time as a taxi driver but was reluctant to go back to his previous job because of the prolonged standing involved. He considered that this situation was likely to improve as time proceeded and that Mr Singh only had very minimal restriction of dorsiflexion of the ankle and inversion of the hind foot, not sufficient to interfere with his work capacity. He noted that the main factor in limiting his work capacity is the ache that he develops after standing for an hour. He thought this situation might also improve with further time. Although there was a possibility of him developing arthritis in the long term, he thought Mr Singh should continue to improve and be able to perform all work. He may have difficulty with work involving walking on uneven ground or very prolonged periods of standing.[17]
[15]DCB 23
[16]DCB 25
[17]DCB 25
35 It is not in issue that Mr Singh suffered the injuries described in the x-ray report dated on the day of the incident.[18] Further, I accept that, as a consequence, Mr Singh is at risk of development of osteoarthritis of the ankle joint.[19] Mr Miller described this as a moderate risk. On the balance of probabilities, he considered that it was unlikely to reach the point where he would require intervention. Professor Hart described the risk as relatively small.
[18]PCB 25
[19]Dr Uluca at PCB 48; Mr Miller at PCB 54; Mr McGlynn at 44; Professor Hart at DCB 15 and 25.
36 I note Mr Miller’s findings of wasting of Mr Singh’s calf is contrary to the findings of Dr Uluca, who found no evidence of muscle wasting when he examined him a little over a month later. Professor Hart made no finding of wasting when he examined Mr Singh in August 2011 and September 2012. I am not satisfied there is presently wasting of any significance.
Consequences of Injury
37 Counsel for Mr Singh submitted that the consequences of the injury for Mr Singh were:
(a) The injury had interfered with his pursuit of his chosen career in cooking.
(b) There was a prospect of development of osteoarthritis in the future.
(c) He is no longer able to play social cricket with his friends because he had difficulty running.
(d) He has on-going pain and discomfort in the ankle.
38 In addition, the evidence indicates that Mr Singh experiences some difficulty standing for prolonged periods.
39 I note the history taken by Mr Hau on 21 March 2011 that Mr Singh was experiencing pain over the right medial malleolus over the metalware, especially when walking over uneven ground. Since the removal of the metalware, Mr Singh has not complained of such symptoms to Mr Hau or Dr Uluca.
40 Mr Singh completed a short cooking course in 2008.[20] In his affidavits he made no mention of ever having applied for a cooking job. He had worked during the course, and for a time after it, in a bakery. In his oral evidence, he said that he had applied for some cooking jobs but had been unsuccessful. In any event, he had never actually worked as a cook. His evidence as to applications for such work between the end of 2008 and the date of the injury was vague.
[20]PCB 11
41 In any event, I am not satisfied that Mr Singh has established that he is not capable of working in a job which involves him being on his feet for most of the time. He did perform such a job for fifteen months after his return to work and only ceased for reasons quite unconnected with his injury. I am not satisfied that he was committed to obtaining a cooking job, notwithstanding that he had worked in a bakery part time and completed a short cooking course.
42 Although Mr Singh played cricket on a social basis with friends in the local park, he had not played in any team or competition. In fact, he has not attempted to play social cricket since the incident. It is likely that such cricket would be restricted to the summer months and I accept that he enjoyed this activity. However I note that he is currently working 11 or 12-hour shifts six days per week. He told Professor Hart two months ago that he was not playing cricket or jogging because work commitments prevented him from taking up other recreational activities. In any event, he is a married man and I am not convinced he would be playing regular cricket with his friends on his one day off each week. I am not satisfied that Mr Singh has established that he is unable to play cricket or that his failure to play cricket is a consequence of significance for him.
43 With regard to the prospect of osteoarthritis, Counsel for Mr Singh tendered a number of radiology reports relating to his right ankle, the most recent of which related to x-rays taken on 21 March 2011, some twenty months ago.
44 That x-ray was requested by Mr Hau three days before he removed the screws from Mr Singh’s ankle. In his letter of the same date to Dr Uluca, Mr Hau describes the x-ray as showing some beaking of the distal anterior tibia, possibly impinging on the dorsal talus. I am not sure of the significance of this finding and whether or not this is a reference to degenerative change.
45 Mr Miller saw Mr Singh in August 2012. He was provided with earlier radiology of 2009 but not the March 2011 x-ray. Professor Hart saw Mr Singh in August 2011 and September 2012. He makes no reference to that x-ray or any report concerning it. He does refer to an x-ray taken on 13 November 2010, the report of which was not tendered by either party.
46 Professor Hart observed that the radiologist on that occasion had reported that the joint space was well maintained and had made no reference to degenerative change or osteoarthritis.
47 Counsel for Mr Singh did not seek to persuade me that the November 2011 radiology report was indicative of existing evidence of osteoarthritic change, and I do not draw that conclusion.
48 I accept that there is a small to moderate chance of osteoarthritis occurring. I am not satisfied that there is evidence of its existence at this time.
49 In final submissions, both Counsel referred me to the decision of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon.[21]There, Maxwell P said:
[21][2010] VSCA 69
“[10] As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
[11] The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);7
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[12] As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
50 As to what Mr Singh says about his pain and suffering, I have noted the description of his pain in his affidavits and the recent histories provided to doctors.
51 In August 2012, Mr Miller took a history of ache, discomfort and pain in the ankle, difficulty with prolonged standing and walking, difficulty with uneven ground and stairs, symptoms being worse in cold weather and limping when attempting to run.
52 In September 2012, his description to Professor Hart was that he had intermittent pain in cold weather and on attempting to run. He said he had no pain on walking and had no swelling, knocking, catching or giving way. He said his movement was satisfactory.
53 He told Dr Uluca recently (when seeing him for the purpose of provision of a medico-legal report) that he could not run or squat on his right ankle, could not walk on uneven surfaces, that cold weather causes ankle pain and that he experienced numbness over the ankle.
54 On an objective basis, I note that he is able to drive a taxi in employment 12 hours per day, 6 days per week apparently with out problems. Inevitably, he would use his right foot repeatedly for acceleration and braking.
55 Further, I note that he has had no treatment at all since June 2011 and that his use of medication is minimal. I consider it particularly relevant that he was invited to re-attend upon Mr Hau in April 2011 following removal of his metalware but had chosen not to do so. I consider it likely that, if his ongoing symptoms had been of any real significance, he would have consulted Dr Uluca, Mr Hau or both of them.
56 I conclude that, in this instance, the nature of Mr Singh’s current employment, the minimal medication taken by him, and the absence of any treatment for a considerable time, point to the pain and suffering consequences of his injury as being relatively modest currently.
57 I have noted the indicia referred to by Maxwell P in assessing the extent to which pain interferes with a claimant’s life.[22] These indicia were cited with apparent approval by the Court of Appeal in Sutton v Laminex Group Ltd.[23] Whether his Honour’s listed indicia are relevant to a particular case will depend on the circumstances of the case. I accept the submission of Counsel for the defendant, that reference to these indicia do not assist Mr Singh’s case here.
[22]Haden Engineering at paragraph [16]
[23][2011] VSCA 52 at paragraph [50]
58 There is no doubt that Mr Singh suffered what would have been a very painful accident in March 2009. However, some three-and-a-half years later, it is my view that he has been appropriately treated and has made a relatively good recovery from his injuries. Although he is not completely symptom free, I am not satisfied that he has established that the consequences of his injuries are more than significant or marked.
Conclusion
59 For the reasons expressed above, I am not satisfied that Mr Singh has established that he has suffered as “serious injury” as that term is defined in the Accident Compensation Act 1958.
60 Accordingly, the application will be dismissed.
61 I shall hear the parties as to costs.
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