Smith v Transport Accident Commission
[2015] VCC 661
•26 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-02249
| SCOTT JAMES SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26 and 27 February 2015 | |
DATE OF JUDGMENT: | 26 May 2015 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 661 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – impairment of the right lower limb – pain and suffering
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Richards & Anor v Wylie (2000) 1 VR 79; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan & Ors [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Ellis Management Services Pty Ltd Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident on 4 October 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Mr M Clarke | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Ms R N Annesley QC with Ms C Spitaleri | HWL Ebsworth |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 4 October 2011 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a), (b) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder...”
4 Counsel for the plaintiff abandoned the claims under paragraphs (b) and (c) of the definition of “serious injury”.
5 The loss of body function relied upon in this application is the impairment of the right lower foot/extremity.
6 The plaintiff seeks leave to issue proceedings at common law.
The issues
7 Counsel for the defendant submitted the following matters were in issue:
(i) The nature and extent of the injury, in particular whether the right ankle has healed and is not causing ongoing significant consequences;
(ii) That any current impairment to the right extremity is a result of bilateral plantar fasciitis which is unrelated to the transport accident;
(iii) The plaintiff is required to disentangle the pain and suffering consequences of the bilateral plantar fasciitis and low-back pain from any injury arising out of the transport accident;
(iv) To the extent the plaintiff suffers a current impairment to the right foot, it does not meet the test of “serious injury”;
(v) The credit of the plaintiff is in issue.
The evidence
8 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 1 October 2012 and 5 November 2014, and an affidavit of his domestic partner, Julia Williams, sworn on 5 November 2014.
9 The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits and evidence. However, I will refer to the relevant evidence of the plaintiff and Ms Williams in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
10 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
11 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“… we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?” [2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at 140
12 Accordingly, the Court must consider the impairment of body function suffered by the particular applicant but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[3]
[3]In Sabo v George Weston Foods [2009] VSCA 242
13 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
[4][2009] VSCA 181
“… The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[5]
[5]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [42]
And further:
“… ‘the significance of what has been lost, …, may be informed, to an extent, by what is retained’.”[6]
[6]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]. See also Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
14 While Stijepic[7] related to a serious injury under the Accident Compensation Act 1985, it is accepted that this authority is relevant to applications for serious injury under the Act.
[7]Stijepic v One Force Group Aust Pty Ltd (supra)
15 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[8]
[8]Richards & Anor v Wylie (2000) 1 VR 79
16 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[9]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[9][1998] 1 VR 702
17 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[10]
[10] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Investigations
Pre-accident investigations
The spine
18 On 6 July 2011, an x-ray of the full spine showed:
“AP view:
Very mild scoliosis of the thoracolumbar spine concave to the right. Vertebral bodies and disc spaces otherwise normal.”[11]
[11]Plaintiff’s Court Book (“PCB”) 83
19 On 6 July 2011, a bone scan was performed in respect of bilateral shin pain. The conclusion was no scintigraphic finding for active stress fracture; however, extensive shin splints were seen bilaterally, with somewhat more prominent findings on the right.[12]
[12]PCB 84
20 On 12 July 2011, investigations of the whole spine and pelvis reported:
“Long, erect views were obtained. No significant scoliosis is identified.”[13]
[13]PCB 85
Post-accident investigations
21 On 29 November 2011, an x-ray of the right ankle showed:
“Minimal soft tissue swelling about the ankle joint however no underlying acute bone or joint injury is seen. The ankle and subtalar joints are normal.
Right foot:
No old or new bone or joint injury.”[14]
[14]PCB 166
22 On 5 December 2011, an MRI scan of the right ankle concluded:
“1Extensive marrow oedema is seen over 5cm of the distal medial tibia extending into the medial malleolus with linear signal abnormality consistent with an undisplaced fracture. This fracture line does not extend to the articular surface and the talar dome and tibial plafond are within normal limits.
2Bone bruise without a fracture is demonstrated of the distal 2.5cm of the lateral malleolus with further bone bruise without fracture of the navicula and in the distal and to a lesser extent proximal cuboid and medial calcaneus. Alignment remains anatomic.
3There is a small effusion without a fracture in the subtalar joint. Minimal injury is demonstrated of the deltoid. There is minor fluid in the medial tendon sheaths but the tibialis posterior tendon is within normal limits.
4No definite abnormality is demonstrated in the plantar fascia.”[15]
[15]PCB 167
23 On 19 December 2011, an ultrasound of the right ankle concluded:
“Conclusion: Minimal hypervascularity of the deltoid ligament, otherwise normal. As there was no site to target for the cortisone injection it was not performed and Scott is off to test out his ankle with a bike ride. If he is still in trouble and clinically there is a clear target site I would be happy to perform a cortisone injection at a later date.”[16]
[16]PCB 168
24 On 18 May 2012, an MRI scan of the right ankle concluded:
“1.Near complete resolution is demonstrated in marrow oedema in the medial malleolus since the previous MRI dated 5/12/2011. Previously demonstrated fracture line is no longer visualised. There is a dramatic reduction in the amount of marrow oedema in the lateral malleolus in comparison to the previous examination.
2.Intact talar dome.
3.Minimal hyperintensity consistent with previous injury is demonstrated in the deltoid, this is unchanged. The medial and lateral tendons are within normal limits.
4.Minimal oedema is demonstrated in the fat deep to the Achilles. Achilles tendon is within normal limits. This is unchanged.”[17]
[17]PCB 169
25 On 18 May 2012, an MRI scan of the left ankle was performed. The clinical notes recorded:
“New injury. Inversion injury while running… The Achilles and plantar fascia are within normal limits … Intact talar dome… Recent minor injury is demonstrated at the deltoid associated with marrow odema in the adjacent medial malleous and medial talus. No definite fracture is identified… There is no peroneal tear.”[18]
[18]PCB 170
26 On 11 June 2013, an MRI scan of the right ankle concluded:
“1.No occult fracture is seen. In particular, the medial malleolus is intact.
2.The ligaments of the distal syndesmosis and the lateral ligament complex are intact. There is fluid in the tibialis posterior tendon sheath.
ULTRASOUND AND INJECTION – RIGHT PLANTAR FASCIA
History:
A 30 year old patient with plantar fasciitis presents for assessment and injection.”[19]
[19]PCB 171-172
27 On 24 June 2013, an ultrasound and injection of the left hindfoot was performed.[20]
[20]PCB 173
28 On 1 October 2013, ultrasound findings and injections of the left and right foot were administered. It was noted that due to the problems the plaintiff has had, the cortisone injections only provided moderate short-term relief. For that reason, it was suggested the plaintiff consider radiofrequency denervation of the medial calcaneal nerve to provide symptomatic relief of the plantar fascial pain.[21]
[21]PCB 173-174
Hand investigations
29 On 29 May 2014, x-rays of both hands concluded:
“No abnormality is seen on either side.”[22]
[22]PCB 118
30 On 2 June 2014, a CT scan of the scaphoid concluded:
“Normal bony alignment and appearances both wrists.”[23]
[23]PCB 119
The Plaintiff’s medical evidence
Other medical conditions – Bilateral Compartment Syndrome and scoliosis
31 On 3 April 2009, the plaintiff’s general practitioner referred the plaintiff to Dr Andrew Jowett, sports physician, for opinion and management of Bilateral Compartment Syndrome in his legs.
32 On 30 January 2010, the plaintiff’s general practitioner referred the plaintiff to LifeCare for opinion and management of recurrent bilateral calf pain with minimal exercise.
33 On 6 July 2011, the plaintiff’s general practitioner referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon, for opinion and management of his scoliosis.
The Transport Accident
Dr Trefor James
34 In December 2011 and on 12 January 2012, Dr James, sport and exercise medicine physician, examined the plaintiff on referral from the plaintiff’s general practitioner.[24]
[24]PCB 25
35 Dr James noted that the laceration over the lateral aspect of the ankle had been repaired, but the plaintiff had been troubled by distal medial shin and medial ankle pain since the accident. An MRI scan showed extensive marrow oedema in the distal medial tibia and medial malleolus, with a fracture line that did not enter the joint.
36 Examination revealed some restriction in ankle dorsiflexion and plantar flexion, pain on hopping, and tenderness over the medial malleolus and tibialis posterior tendon.
37 A further ultrasound examination was performed to assess the tibialis posterior tendon, which was normal.
38 Dr James said the plaintiff’s symptoms appeared to be due to the fracture of the medial malleolus.
39 On review in January 2012 following the MRI scan, the plaintiff reported significant improvement consistent with a healing fracture. Dr James said the plaintiff had some weakness and stiffness, and was referred to physiotherapy.
40 On 9 February 2012, the plaintiff’s general practitioner certified that the plaintiff should be able to return to full duties as an A-Grade Electrician from 14 February 2012.
Dr Damian Polioudakis – Victoria Harbour Medical Centre
41 In November 2014, Dr Polioudakis of the Victoria Harbour Medical Centre confirmed that the plaintiff had been a patient at the Centre since October 2008. He confirmed the plaintiff was previously under the care of Dr Quoc Duong, who was no longer employed at the Centre.[25]
[25]PCB 63
42 Dr Polioudakis said the plaintiff sustained a right ankle injury following a motorbike accident in October 2011. His injuries consisted of laceration over the lateral aspect of his right ankle which required repair and grafting.
43 Between late October and early December 2011, the plaintiff sought treatment for ongoing pain related to his injuries. An MRI scan of his right ankle was performed. He was seen in December 2011 and referred to Mr Hamish Curry, orthopaedic surgeon, and Dr Trefor James, sport and exercise medicine physician. Dr James managed the right ankle injury. However, the plaintiff was consulting the Centre throughout 2012 for his right ankle injury.
44 In May 2013, the plaintiff was seeking treatment for right ankle pain and plantar fasciitis in the right foot.
45 In June 2013, an ultrasound-guided cortisone injection was performed to manage right plantar fasciitis. The plaintiff consulted the practice in October 2013 and May 2014 regarding ongoing chronic right ankle pain issues. Referrals were provided to the plaintiff.
46 Dr Polioudakis was aware that the plaintiff was seeking treatment from doctors in country Victoria in respect to his injury. He had not seen the plaintiff since May 2014 in respect to ongoing management of his right ankle chronic pain issues. The Clinic records confirm that Lyrica was prescribed in May 2014 for neuropathic pain, and again in June 2014.
47 On 6 May 2014, the plaintiff’s general practitioner referred the plaintiff to Mr Andrew Beischer, foot and ankle surgeon, and Mr Hamish Curry, orthopaedic surgeon, for second opinions in respect to ongoing issues with the right ankle.
48 The medical records of the Victoria Harbour Medical Centre confirm that, prior to the transport accident, the plaintiff sought treatment for the following conditions:
· Erectile dysfunction and depression (2008, 2009 and March 2011), for which he was prescribed medication;
· Opinion and management of Bilateral Compartment Syndrome in his legs which resulted in referrals to Dr James and Mr David Young (2009, 2010 and 2011);
· Depression.
Dr Michael Makdissi
49 In February 2015, Dr Makdissi, sports medicine physician, confirmed that he treated the plaintiff on referral from the plaintiff’s physiotherapist with bilateral foot and ankle pain in October 2012.[26]
[26]PCB 165k-165m
50 The plaintiff reported ongoing pain in the anterolateral aspect of his right ankle, as well as underneath his foot. The pain around the back of the lateral malleolus had improved over time.
51 Dr Makdissi said the plaintiff’s ongoing symptoms were unclear. It was possible the pain was due to underlying inflammation/synovitis. Other possible diagnoses included a subtle chondral injury to his ankle or subtalar joint, or a functional Pin Syndrome. He requested a review with the plaintiff with his previous scans to try to differentiate between a structural or functional injury/pain syndromes; however, the plaintiff did not return to see him.
Dr Paul J Kornan
52 In November 2012 and February 2014, the plaintiff was medically examined by Dr Kornan, psychiatrist, at the request of the plaintiff’s solicitors.[27]
[27]PCB 26
53 In November 2012, the plaintiff reported problems with his libido and a phobia about having another accident, yet he was still attempting to attend the gymnasium every second day for twenty minutes and use the pool for thirty minutes. His general practitioner prescribed 20 milligrams of Lovan, two a day, in the last three months, as well as sleeping medication, which he took very rarely.
54 Dr Kornan said there had been a marked loss of enjoyment in the plaintiff’s lifestyle, particularly for someone who was attempting to be an elite athlete, and is now totally frustrated with his lifestyle. He said there had been a significant loss of libido in his relationship, which was likely to lead to ongoing significant tensions. There has been a total loss of enjoyment of life, given he was unable to achieve the physical fitness he had previously attained. Dr Kornan said the psychiatric condition will persist at current levels into the foreseeable future. He said, generally, the plaintiff has much of his self-image involved in his ability to attend pre and post-work physical exercise and his ambition to continue involvement in competitive triathlon events. He said his inability to pursue his dream had led to significant psychiatric difficulties. There had been a major loss of enjoyment to his lifestyle which affected his self-confidence, self-esteem, libido and his personal relationship.
55 In February 2014, Dr Kornan said, from a psychiatric viewpoint, the plaintiff presented with:
· Post-Traumatic Stress Disorder;
· An Adjustment Disorder with Mixed Anxiety and Depressed Mood;
· Specific phobia; phobia of a further accident.
56 Dr Kornan said the plaintiff will be left with a chronic psychiatric ill health condition which will persist for a number of years. It is likely to cause difficulties in his relationship with his partner, and in him being able to present himself in a positive way at work. Dr Kornan said he would not be surprised if the plaintiff missed out on significant promotion possibilities. If he was to apply for further employment, he suspected he would function less well in job interviews, and recommended treatment from a psychiatrist, as well as commencing on high dosage psychotropic medication.[28] Further, the plaintiff’s psychiatric condition will persist at current levels into the foreseeable future.
[28]PCB 60
Mr Peter N Mangos
57 In November 2012[29] and February 2014,[30] Mr Mangos, general surgeon, examined the plaintiff at the request of the plaintiff’s solicitors.
[29]PCB 35-39
[30]PCB 49-52
58 In 2012, Mr Mangos reported that the plaintiff had a double compartment syndrome on both legs as a consequence of regular running. These were operated upon, and decompressed, with excellent results. The plaintiff complained of pain and weakness in the right ankle which lets him down, difficulty running, jumping, climbing and walking quickly. He cannot run in triathlons. On occasions, the right ankle gives way. On one occasion, he fell and twisted his left ankle, which is now a problem.
59 In February 2014, the plaintiff reported the right ankle was still the major problem. He reported weakness and pain, which tends to let him down. He has difficulty in mobilising, running and jumping, climbing and walking. He had similar problems with his left leg, which was not as bad as the right. He could not perform triathlon activities as he did previously, as his right ankle gives way.
60 Mr Mangos was aware the plaintiff had two ultrasound-guided cortisone injections into his feet for diagnosed plantar fasciitis and was taking “a good deal of medication which sounded rather excessive”.
61 Mr Mangos said, on examination, the plaintiff’s legs had not altered since he was last seen. He said the plaintiff’s condition had stabilised and it is most unlikely that there will be improvement in the future.
62 Mr Mangos said the plaintiff’s injuries have been totally caused by the accident. He noted that the plaintiff was working full time as an electrician, but was performing the work under a good deal of difficulty, and his ability to continue such work into the future must be guarded. He accepted that the plaintiff’s injuries interfered with his social, domestic and recreational activities. The plaintiff reported progressive difficulty in working at the level he has been; accordingly, Mr Mangos said his future should be guarded. He said the plaintiff’s injuries would affect him pursuing unrestricted employment in the future.
Mr John Anstee
63 In December 2012, Mr Anstee, plastic and reconstructive surgeon, examined the plaintiff at the request of the plaintiff’s solicitors.[31]
[31]PCB 40-45
64 Mr Anstee diagnosed an ankle wound with orthopaedic injuries on the right side. He believed the plaintiff’s scar was stable. He considered the plaintiff’s fitness for work was slightly reduced by the scarring, in that some protection might be wise when he is working on site. He said his future incapacity will endure unchanged. He did not require further treatment for the scarring.
Records of the Ararat Medical Centre
65 Between September 2013 and July 2014, the plaintiff, while working at the Ararat Prison, presented at the Ararat Medical Centre with ongoing bilateral feet issues.[32]
[32]PCB 46-48d
66 The records confirm that in September 2013, the plaintiff reported the transport accident and the fact that he had ligament injury, skin grafts and was non-weight bearing on the right foot initially, but returned to weight bearing, and had been seen by a physiotherapist in Melbourne. The left foot injury was due to strain with the non-weight bearing right foot. There had been recent imaging and plantar fasciitis, fluid on ligaments but within normal limits. The main issue with the right foot was the arch had collapsed and the plaintiff wore orthotics. The plaintiff was walking at work on uneven ground. He had increasing pain levels, was undergoing ongoing follow-up in Melbourne but presented requesting analgesia. His current daily analgesia was Panadol, usually eight to ten per day, and Nurofen, usually four to six per day. The plaintiff reported that he “tripped out” on Tramadol, and that Panadeine Forte had done nothing. The records indicate that the doctor was not happy to jump straight to Endone, but would trial the plaintiff on Mobic, Panadeine Forte and refer to physiotherapy. Further, that the plaintiff was swimming, not running, and doing all plantar fasciitis exercises.
67 In October 2013, the general practitioner prescribed Panadeine Forte, two tablets every six to eight hours for pain, which was repeated two weeks later for his plantar fasciitis.
68 At the end of November 2013, the plaintiff reported that he was “just managing” with analgesia, and prescriptions for Codeine, Endone and Panadeine Osteo were prescribed.
69 On 10 December 2013, the plaintiff attended, reporting the effects of Endone and the level of medication. He took a day off work due to pain, and a medical certificate was given.
70 In April 2014, the plaintiff presented with dizziness and headaches, and further prescriptions for Codeine, Endone, Mobic and Panadeine Osteo were prescribed.
71 In May 2014, the plaintiff reported a fall at work, falling on his outstretched hand. X-rays and a CT scan were normal.
Mr Douglas Gardiner
72 In January 2015, Mr Gardiner, orthopaedic surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitors.[33]
[33]PCB 165a-165e
73 Mr Gardiner obtained a history that the plaintiff was an extremely good athlete prior to the incident. He was off work until February 2012, when he commenced on light duties, and then returned to full duties. He was aware the plaintiff complained of ongoing pain in the right foot and ankle, with no significant improvement from analgesia or Lyrica. He reported his right ankle gave way in early 2012 and he strained his left ankle. He had been treated with multiple steroid injections based on a diagnosis of plantar fasciitis.
74 Mr Gardiner diagnosed a significant crush injury to the whole of the right foot and ankle, with a possible small fracture of the medial malleolus and plantar fasciitis of the right foot. He said the plaintiff’s prognosis was guarded; he would require conservative treatment.
75 Mr Gardiner said the plantar fasciitis is not a major component of the injury but may be just a simple part of the general trauma to the right foot and ankle.
76 Mr Gardiner said the plaintiff will require conservative treatment in case he suffers from pain issues in the right foot. He said, in the long term, the plaintiff may develop osteoarthritic changes in his right foot, which may require further treatment. The treatment will be directed by his symptoms and pathologies, should such an event occur. He considered the plaintiff’s condition had stabilised.
77 Mr Gardiner said the plaintiff was restricted, in that he was unable to walk on uneven ground or ladders, which is an integral part of his life as an electrician. He cannot run or play any sport.
78 Mr Gardiner was provided with diagnostic investigations and medical reports of Mr Anstee, Dr Kornan (two reports) and Mr Mangos (two reports).
Dr Peter A Blombery
79 In January 2015, Dr Blombery, consultant physician (vascular disease), examined the plaintiff at the request of the plaintiff’s solicitors.[34] Dr Blombery referred to medical reports provided by the plaintiff’s solicitor which he said he read and had taken into account, but did not specify which reports he had access to.
[34]PCB 165f-165j
80 The plaintiff complained of ongoing pain in the right ankle, present all the time, particularly on weight bearing. The pain was bad in the mornings but the plaintiff was not kept awake by the pain. He developed swelling of the ankle on long flights. There was no colour or temperature change and no pins and needles. The plaintiff reported that, on one occasion, his right ankle gave way and he fell, landing on his left ankle and twisting it. He reported that he had some depression initially, but this had also resolved.
81 On examination, the plaintiff had a full range of movement of the ankle and hindfoot, and minimal tenderness over the medial malleolus. There was no evidence of significant sensory disturbance.
82 Dr Blombery accepted the plaintiff suffered a direct trauma to his right ankle and has ongoing pain in the area. He said there was pain in the nature of a non-specific Pain Syndrome where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.
83 Dr Blombery diagnosed a Pain Syndrome complicating fracture of the right medial malleolus, and bone bruising of the right lateral malleolus. He thought the plaintiff would require ongoing treatment, possibly in the form of anti-inflammatories and acupuncture. He said the plaintiff had significant limitations at work and has difficulty in using ladders, which is an important part of his job, and will remain the same in the future. He has a capacity for ongoing employment with limitations. He said the plaintiff’s prognosis for recovery was moderate to poor. He was aware of the plaintiff’s problems with the left ankle as a result of the instability in the right ankle.
Dr Helen Sutcliffe
84 In February 2015, Dr Sutcliffe, occupational physician, medically examined the plaintiff at the request of the plaintiff’s solicitors.[35]
[35]PCB 165n-165v
85 The plaintiff reported pain levels at an intensity of 4.5 to 9, on a visual analogue scale of zero to 10, which is stabbing in nature when more severe and sharp. He reported aching pain as well.
86 Dr Sutcliffe said the plaintiff had persistent pain, particularly on the plantar aspect of the midfoot, and also hypersensitivity to touch at the lateral aspect of the right ankle. The pain continues, and is severe at times.
87 It was Dr Sutcliffe’s opinion the plaintiff had lost his capacity for his occupation as an electrician as he has no ability to perform repeated use of ladders, scaffolds, walk on rough ground, walk over the rough steps he is required to access in construction sites, and move in crawl spaces. She considered he could continue working as a project manager.
88 In assessing the plaintiff’s capacity for alternate occupations, he would need to avoid prolonged standing and sitting, use of ladders, walking over rough ground and use of stairs in the course of his occupation. It was her view that there had been a very substantial adverse impact on the plaintiff’s occupational capacity as a result of the injuries sustained, and an adverse impact on his capacity for leisure and social activities.
89 In conclusion, Dr Sutcliffe believed the limitations on the plaintiff’s capacities will continue into the foreseeable future.
The Defendant’s medical reports
Dr Timothy J Entwisle
90 In December 2013, Dr Entwisle, consultant psychiatrist, examined the plaintiff at the request of the defendant’s solicitors.[36]
[36]Defendant’s Court Book (“DCB”) 1-5
91 Dr Entwisle diagnosed an Adjustment Disorder with Depressed Mood in remission. He noted the plaintiff was not undergoing any psychological or psychiatric treatment. He said there was a relationship between his injuries and his depressive reaction, which was brief and settled following some treatment over a six-month period. He said there was no sign of any pre-existing symptoms. He considered the prognosis was excellent.
Mr Michael J Shannon
92 In January 2014, Mr Shannon, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s solicitors.[37]
[37]DCB 6-13
93 The plaintiff reported the circumstances of the accident, and a painful right ankle which gives way frequently, up to once or twice per week. On examination, there was a normal range of movement of the ankle and subtalar joint and no significant pain on lateral ligament stress nor any clinical evidence of instability. The plaintiff had a one-centimetre wasting of the right lower leg. He had vague tenderness in the plantar fascia attachment to the heel bilaterally and this tenderness is extending into the arch of the foot. He used orthotics in his work shoes.
94 The plaintiff reported requiring medication of Panadol Osteo every day and he frequently takes 30 milligrams of Codeine, up to four a day, and sometimes Endone for pain.
95 The plaintiff stated he walks like a cripple at the end of the day.
96 Mr Shannon diagnosed:
· Laceration lateral aspect right ankle; and
· Possible undisplaced crack fracture of the right medial malleolus.
97 Mr Shannon considered the plaintiff had fully recovered from the fracture. He said there was no evidence that the plaintiff suffered a significant ligamentous injury to the ankle and the MRI scans have shown that his lateral ligaments are intact. He anticipated a full recovery from the orthopaedic injury. He noted that the plaintiff performed his occupation as an electrician for the last two years, although he had ongoing symptoms which developed in both heels at an indeterminate time, at least a year or more after the accident. Mr Shannon said the plaintiff had mild bilateral plantar fasciitis which developed a year or more after the accident which suggested it would not be regarded as related to the transport accident. He could not establish any injury that would warrant the large doses of narcotic medication. It was his view the prognosis for his ankle fracture was excellent. He said the skin graft is vulnerable to injury but should not cause him major problems in the future.
Ms Lucy Maher Awad
98 On 4 September 2013, Ms Awad, podiatrist, reported that she had been treating the plaintiff for classic symptoms of plantar fasciitis for both feet.[38] Foot orthotics were prescribed to correct biomechanics and aid in release of tissue stress, as well as a more even distribution of plantar pressure to help with pain management.
[38]DCB 126
Dr Quoc Duong
99 In October 2013, Dr Duong, general practitioner, referred the plaintiff to Mr William Edwards, orthopaedic foot and ankle surgeon, for management of ongoing pain issues of his right heel and ankle.
Laverton Medical Centre - November 2007 to February 2011
100 In February 2011, the plaintiff reported breaking up with a girlfriend after two-and-a-half years. He felt depressed, was tearful, had poor concentration and was prescribed Cymbalta.
Altona Podiatry Centre
101 In September 2008, the podiatrist, Mr Yacono, referred the plaintiff to Dr James for examination and assessment regarding bilateral posterior leg pain.
Clinical Notes of Dr Trefor James – 29 September 2008 to 12 January 2012
102 The clinical notes confirm that in September 2008, the plaintiff consulted Dr James for an opinion in respect to bilateral leg pain induced by running. He recommended anterior and lateral compartment fasciotomies with release of the posterior medial border of both tibii. This would hopefully help the plaintiff’s medial tibial stress syndrome, and also be a partial fasciotomy of the deep posterior compartment. He expected that this relatively minor intervention would be able to relieve the plaintiff’s leg symptoms.[39]
[39]DCB 134
103 In February 2010, Dr James referred the plaintiff to Mr David Young, orthopaedic surgeon. Dr James reported that he had organised a bone scan which showed some features consistent with medial tibial stress syndromes, but said the history was more suggestive of an exertional compartment syndrome involving the anterior and deep posterior compartments. In December 2011 and January 2012, the plaintiff consulted Dr James in respect to the transport accident. He reported left ankle sprain in January 2012.
Mr David Young
104 In April 2010, Mr Young, orthopaedic surgeon, in a letter to Dr James, recommended the plaintiff undergo what he described as a relatively minor intervention, being a release of the posterior medial border of both tibii which will help his medial tibial stress syndrome and be a partial fasciotomy of the deep posterior compartment. The plaintiff was subsequently referred to Mr Young twelve months post the release procedure, because of bilateral anterior shin pain.
Back injury – Mr Wilde – April 2014
105 The plaintiff injured his back at work. He was referred to Mr Wilde, orthopaedic surgeon, who arranged an MRI scan, which was normal. Mr Wilde advised that the plaintiff’s problem was muscular in origin.
Video surveillance
106 The defendant included video surveillance of the plaintiff in the index to its Court Book. The defendant’s counsel admitted that the plaintiff was under surveillance for seven days. No surveillance was shown. I infer that the surveillance did not assist the defendant’s case.
107 A video was shown of the plaintiff and his partner participating in an ‘EdgeWalk’ on the CN Building in Toronto in 2013. The plaintiff’s evidence is that the building is approximately 356 metres high. The plaintiff was supported by two harnesses. He performed a ‘Superman’ manoeuvre, whereby he was outwards-standing on the platform, leaning forward at about a 45 degree angle over the edge of the building with his arms free. He said there was less weight on his feet wearing a harness than if he was not wearing a harness. He was also shown standing facing inwards. He said the harness doubles as a seat which takes up almost all of his body weight. He was shown moving backwards towards the edge in a seated position. He was seated on the harness and said the weight on his feet was minimal.
108 I accept the ‘EdgeWalk’ video showed the plaintiff performing a fun-seeking activity, supported by a harness with the result that weight distribution on his feet was greatly reduced.
Internet and Facebook material
109 The defendant relied upon many photographs from the plaintiff’s partner’s blog. The blog was maintained as a diary and for business purposes, together with pictures from her Facebook page. I accept that the photographs showed the plaintiff riding on a jet ski and standing as he was about to dismount. The plaintiff’s evidence was that he used the jet ski on two occasions and it had not been used for eighteen months. He was seen at the rear of a speed boat. The plaintiff agreed that in June 2012, he went to the snowfields at Mt Hotham for a friend’s 30th birthday. He attempted to ski one run, but because of the pain, he could not ski. He agreed that he could kayak on a river. There were photographs of the plaintiff at hotels and bars on holidays in Australia and overseas. He was seen sitting on a motorbike in the driveway of a house wearing a helmet and in shorts. He was pictured on a pushbike, and fishing into a river from a jetty.
110 The plaintiff was photographed performing a star-jump alongside his partner, which he described as the couple’s “signature move”. He gave evidence that this move caused him pain.
111 I take the view that the photographs are of limited use. They show the plaintiff enjoying himself on those particular occasions depicted. Further, I take into account that photographs are posted on his partner’s blog, which is operated as a business and geared towards attracting an audience.
Credit of the Plaintiff
112 The plaintiff attempted to answer questions as best he could. At times, he was not articulate and had difficulty in expressing his emotional and personal issues. The plaintiff was cross-examined for almost two days in great detail in relation to his personal life and what he had told medical witnesses relating to events stretching back to October 2008. On occasions, he became frustrated with the process. He had a reasonably good recollection of events. He made concessions. He said he could not remember what he told medical witnesses at specific consultations. Given he was cross-examined about consultations stretching back to 2008, I take the view that his failure to recall what he told medical witnesses was not unreasonable.
113 Counsel for the defendant submitted that the plaintiff was not a reliable witness. He was not candid with the Court or doctors, in that he did not disclose the extent of his pre-injury difficulties with the compartment syndrome and the effect on his running. Further, he did not disclose his pre-existing depression and his pre-existing sexual dysfunction. He did not disclose his pre-existing back injury.
114 The credibility of the plaintiff as a witness and as a historian of his symptoms to medical practitioners is of central importance. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[40] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[41]
[40]For example Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [46]; Dordev v Cowan & Ors [2006] VSCA 254 at paragraphs [14]-[19]
[41]Dordev v Cowan & Ors (supra) at paragraph [19]
115 In Franklin v Ubaldi Foods Pty Ltd,[42] Ashley JA said:
“Concerning the history as recorded, two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Second, in the present case it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.” [43]
[42][2005] VSCA 317
[43]Franklin v Ubaldi Foods Pty Ltd (supra)
116 In Cakir v Arnott’s Biscuits Pty Ltd,[44] the Court of Appeal said an adverse finding concerning the plaintiff’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should be had to analysing and giving appropriate weight to all the evidence, including objective evidence.[45]
[44][2007] VSCA 104 at paragraphs [49]-[58]
[45]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
117 In the plaintiff’s first affidavit sworn on 1 October 2012, he disclosed that immediately prior to the transport accident, he was of generally in much better health. He did not suffer from any disability in respect to his ability to fully and freely engage in all aspects of daily living, work and recreation.[46] The plaintiff deposed to the fact that in September 2008, he presented to his doctor with bilateral calf tightness causing intermittent pain.
[46]Plaintiff’s Affidavit sworn on 1 October 2012 at paragraph [13]
118 Further, that in February 2010, it was suggested that he suffered from compartment syndrome and in or around July 2010, he underwent release surgery. He also deposed that prior to the transport accident, his condition was controlled and did not have any significant impact on his ability to engage in employment or undertake activities of daily living.[47]
[47]Plaintiff’s Affidavit sworn on 1 October 2012 at paragraph [14]
119 The plaintiff’s evidence was that he had been a keen runner and had trained hard prior to the transport accident in order to travel to Thailand to compete in the Phuket Triathlon. I was referred to a letter from Mr Young of April 2010, who recommended and ultimately performed the surgery for the compartment syndrome. The letter confirmed that the plaintiff had ongoing issues with respect to the compartment syndrome. I accept that this matter goes to the plaintiff’s memory, rather than his credit.
120 Medical evidence in respect to the compartment syndrome was put before the Court. Accordingly, I am not satisfied that any complaint can be made about non-disclosure of this condition.
121 The only medical witnesses to refer to the compartment release surgery were Dr Kornan, Mr Mangos and Mr Shannon. They reported that the plaintiff achieved a good result from the release. Mr Gardiner’s report of January 2015 confirms that he was provided with the reports of Dr Kornan and Mr Mangos. Dr Blombery and Dr Sutcliffe were also provided with medical reports but did not list the reports they received from the plaintiff’s solicitor. Given that they examined the plaintiff in early 2015, I infer that they were provided with the same reports that were provided to Mr Gardiner in January 2015. I can infer that those witnesses (Mr Gardiner, Dr Blombery and Dr Sutcliffe) were aware of the plaintiff’s compartment syndrome. The fact that the medical witnesses did not address the issue, suggests that they did not consider it relevant.
122 The evidence is that the plaintiff sought treatment for anxiety and depression in February and March 2011, when he broke up with a former girlfriend around December 2010. He was prescribed anti-depressant medication of Lovan and Cymbalta. He gave evidence that the emotional impact resolved by about June of 2011. By October 2011, he was happy, enjoying life and pursuing a normal healthy lifestyle. The plaintiff agreed that he did not refer to his previous depression and medication of Lovan and Cymbalta in his first affidavit. He did not remember it at that time and it was brought to his attention when he read the medical records of the general practitioner. Further, he agreed he did not report his treatment for anxiety and depression and medication to Dr Kornan when asked about his past psychiatric history. I accept that the depression the plaintiff suffered was related to a significant event in his life. He recovered and got on with his life. I accept that he should have reported this to Dr Kornan. The plaintiff’s failure to report these matters to Dr Kornan means that Dr Kornan did not have full knowledge of the plaintiff’s psychiatric history which affects the reliance I place upon Dr Kornan’s opinion.
123 The plaintiff reported to Dr Kornan that he had suffered a significant loss of libido. From intimacy five or six times per week, it had reduced to once per week. Counsel for the defendant cross-examined the plaintiff on the medical records of the Victoria Harbour Clinic which record that in October 2008 and May 2009, he was reporting erectile dysfunction and was prescribed Cialis. The plaintiff looked embarrassed when questioned about this. He provided inconsistent and confusing evidence on this issue. Initially, he said he was simply trying something new. He agreed he told the doctor certain information in order to obtain the Cialis medication. He then agreed that sometimes when he worked long hours and trained a lot, he did have erectile dysfunction, but said the main reason for using Cialis was for experimental use. This occurred when the plaintiff was involved with another partner, two to three years prior to the transport accident. I accept that this evidence suggests that six-and-a-half years ago, the plaintiff was prepared to give wrong information to a medical practitioner to obtain medication. However, I accept that this was isolated to the use of Cialis with a former partner, two to three years prior to the transport accident.
124 The plaintiff’s evidence was that prior to the transport accident, he suffered a back injury at work. He sought a referral to Mr Wilde, orthopaedic surgeon, because his mother had a fusion with significant consequences.
125 Mr Wilde was consulted in respect to back injury in July 2011 following trauma at work. He organised an MRI scan, which was entirely normal. He suggested the pain was a muscular problem in origin. He recommended exercise and Pilates. There has been no ongoing complaint about his back to any of the doctors the plaintiff has seen, despite the many visits to general practitioners after he consulted with Mr Wilde.
126 Based on the state of the medical evidence, and the plaintiff’s evidence that the back injury was transient in effect and plays no role in his current presentation, the plaintiff cannot be criticised for not disclosing his pre-existing back injury to all doctors.
127 Counsel for the defendant submitted that the plaintiff exaggerated the level of triathlon activity to medical witnesses and to the Court. Further, he did not disclose his current sporting activities and the extent of his social life to medical witnesses and the Court.
128 The clinical records confirm that the plaintiff reported that he trained hard for long hours, that running was an important part of his life, and that he trained for triathlons.
129 The plaintiff reported his sporting activities to all medical witnesses. He was variously described by medical witnesses as:
· “a keen athlete and enjoys triathlons”;[48]
[48]Mr Wilde
· “an extremely good athlete; a high achieving athlete and marathon runner”;[49]
[49]Mr Gardiner
· “a triathlete and competed in triathlons”;[50]
[50]Mr Anstee
· “prior to the injury he played sport and used to run triathlons regularly”;[51]
· “he used to be a triathlete”.[52]
[51]Mr Mangos
[52]Mr Shannon
130 Mr Blombery reported the plaintiff used to run on a regular basis, and this was his favourite pastime. He now jogs a little. He no longer bike rides.[53]
[53]PCB 165h
131 All medical witnesses understood that running was a passion for the plaintiff. The plaintiff’s evidence was that he performed practise triathlons with friends prior to the transport accident. He competed in two triathlons but withdrew from triathlons before the transport accident. He could not manage the distances due to pain from compartments, which is why he had the compartment release procedure. At the time of the accident, he was training for the Phuket Triathlon, but was behind in his training schedule. His evidence was that once in Phuket he would have focussed on training. Even if he did not compete in that triathlon, he would have been in a good position to compete in further triathlons in Australia.
132 Some of the medical witnesses reported greater detail of his sporting activities. The fact that some medical witnesses obtained greater detail than others may have been due to the questions asked by the medical witnesses of the plaintiff. I am not prepared to draw any adverse inference because some medical witnesses reported more detail about his sporting activities. No doctor suggested that his complaints were unreasonable.
133 The plaintiff reported to medical witnesses the fact that his social activities were affected by his injury. For the same reasons as in the previous paragraph, I am not prepared to conclude that the plaintiff failed to disclose details of his social life when asked by medical witnesses.
134 The plaintiff reported his limitations in walking to some of the appointments with medical witnesses: general practitioner, Mr Mangos, Mr Gardiner and Dr Blombery.
135 In considering the credit of the plaintiff, I must consider the evidence as a whole. There was evidence in the plaintiff’s affidavits which was unchallenged. There was no challenge to his partner’s affidavit. Overall, I accept that the plaintiff made appropriate concessions and he was a truthful witness.
Analysis of the evidence
The nature and extent of the Plaintiff’s physical injury
136 The plaintiff’s claim is in respect of impairment of the right lower foot.
137 The defendant’s counsel submitted that the plaintiff did not suffer a significant crush injury to the right foot which is causative of any ongoing impairment. Further, the overwhelming medical evidence is that the plaintiff suffered an injury to his right ankle in the nature of the laceration and possible undisplaced fracture of the medial malleolus, both of which the defendant submits have healed well and are not causing any ongoing impairment.
138 As to that submission, the majority of medical witnesses expressed the view that the plaintiff suffered an injury to the right foot/ankle resulting from the transport accident which was permanent.
139 Mr Mangos said the plaintiff reported a weak and painful right ankle which was totally caused in the transport accident. Mr Mangos said the plaintiff was working full time as an electrician but was doing so under a great deal of difficulty, and his ability to continue this type of work in the future must be guarded.
140 Mr Gardiner, orthopaedic surgeon, diagnosed a significant crush injury to the whole of the right foot and ankle, with a possible small fracture of the medial malleolus and plantar fasciitis of the right foot. In making that diagnosis, he had examined the plaintiff, obtained a history of the transport accident from the plaintiff (in particular, the mechanism of the bike falling on top of the right foot which was likely to have crushed it), and reviewed medical reports and imaging. Mr Gardiner said the plantar fasciitis is not a major component of the injury, it may be a simple part or the trauma of the right foot. He said the plaintiff’s prognosis was guarded and, in the long-term, he may develop osteoarthritic changes which may require further treatment. He was aware the plaintiff had been offered a more sedentary position by his employer. He imposed restrictions on his work and sport.
141 Dr Peter Blombery, consultant physician, diagnosed a Pain Syndrome complicating fracture of the right medial malleolus and bone bruising of the right lateral malleolus. He thought the plaintiff would require ongoing treatment. He said the plaintiff had significant limitations at work and said he had a capacity for ongoing employment with limitations.
142 Dr Sutcliffe, occupational physician, said the plaintiff had persistent pain, particularly on the plantar aspect of the midfoot, and also hypersensitivity to touch at the lateral aspect of the right ankle. She noted the pain is severe at times. She said he was limited in his capacity for employment, which would continue into the foreseeable future.
143 Mr Shannon, orthopaedic surgeon, was in the minority. He accepted the plaintiff had a laceration of the lateral aspect of the right ankle, and possibly an undisplaced crack fracture of the right medial malleolus. He thought the plaintiff’s prognosis related to his injuries was excellent. He anticipated a full recovery. Mr Shannon was alone in this view. Mr Shannon had a different understanding of the mechanism of the accident. He did not refer to the collision between the plaintiff’s bike and his right foot, which was discussed by Mr Gardiner. In addition, Mr Shannon believed the plaintiff suffered an undisplaced cracked fracture of the right ankle. In fact, the identification of the undisplaced fracture of the right ankle became apparent subsequent to the plaintiff’s period in hospital. Mr Shannon said the plaintiff continued to work on normal duties since the accident, but tries to avoid the use of ladders, rough surfaces and stairs. In fact, the plaintiff’s evidence was that he was employed as an electrician, and at times, he works as a foreman/supervisor, and at other times, he works ‘on the tools’. While working as a supervisor, he is required to do a lot of walking, and also climb up and down ladders. Given the above, I place greater weight on the evidence of Mr Mangos, Mr Gardiner, Dr Blombery and Dr Sutcliffe that the plaintiff suffered a right ankle/foot injury, the consequences of which are permanent.
144 In addition to the medical reports, the defendant accepted liability to pay impairment benefits for the plaintiff’s ankle and hind foot. In this context, Counsel for the defendant did accept that it was evidence of payment for the “right lower extremity”.[54] Accordingly, I take the view that there is evidence of payment of impairment in respect to the right lower extremity. Counsel for the plaintiff relied upon this admission that the impairment to the right lower extremity is permanent, and so the submission by the defendant that any condition affecting the right foot had resolved ought to be rejected. I accept that submission. I have already indicated that, based on the current reports of Mr Mangos, Mr Gardiner, Dr Blombery and Dr Sutcliffe, I reject the submission of the defendant that any condition affecting the right foot has resolved.
[54]T294, L31
145 Given all the evidence, I reject the submission of the defendant that any impairment from the transport accident affecting the right foot has resolved.
Plantar fasciitis
146 After the transport accident, the Victoria Harbour Medical Centre records confirm the plaintiff was attending complaining of ongoing pain in the right ankle and foot. By 1 December 2011, fasciitis was first raised. Imaging was ordered and, a week later, the plaintiff was provided with referrals to Dr James and Mr Hamish Curry.
147 In 2012, the plaintiff reported shooting neuropathic-type pain. Lyrica was prescribed. He reported injuring his left ankle whilst trying to jog to rehabilitate the right side; ongoing pain, and depression in the second half of the year.
148 In May 2013, the plaintiff reported increasing pain in the right plantar aspect, as well as the ankle, and by June 2013, complaints of symptoms of plantar fasciitis in the left foot were reported. The plaintiff was referred for ultrasound and cortisone injections, which were repeated until May 2014.
149 Counsel for the defendant submitted that the medical evidence is that the plaintiff suffers from recurring bilateral plantar fasciitis. Any current impairment of the plaintiff’s right lower extremity is as a result of the bilateral plantar fasciitis. Further, that condition is a separate condition and unrelated to the claimed injury.
150 Counsel for the defendant relied upon the medical report of Mr Shannon and the general practitioner records. Mr Shannon said the plaintiff suffered from mild bilateral plantar fasciitis which developed a year or more after the transport accident, which suggested it is unrelated. The plaintiff sought treatment for plantar fasciitis from his general practitioner from May 2013. Injections were administered, and there was a significant increase in pain medication prescribed by both the Victoria Harbour and Ararat Medical Centres.
151 As to that submission, the evidence confirms that the plaintiff was reporting to his general practitioner ongoing pain in his right ankle and foot from November 2011, a month after the transport accident. On 1 December 2011, the plaintiff reported “continued pain”. The general practitioner noted: “Fasciitis? Noticed early am and when go upstairs.” I accept that entry indicates the general practitioner had observed signs and symptoms that could be consistent with plantar fasciitis. The general practitioner organised an MRI scan of the right ankle and right foot and referred the plaintiff to Dr James for further treatment.
152 The records of Dr James were before the Court. He treated the plaintiff on 14 December 2011. He was aware the plaintiff had been in a motorbike accident. The plaintiff had a laceration and skin repair, and Dr James noted “since had pain distal skin medially and medial ankle and medial arch of foot distally”. I accept that on 14 December 2011, there were abnormal findings in the arch of the right foot. There is a reference to a condition that might well be understood as consistent with plantar fasciitis, even though the diagnosis may not have been made.
153 By May 2013, the plaintiff was complaining of increased pain in the right plantar aspect, as well as in the ankle again, and the general practitioner’s notes confirm “plantar fasciitis symptoms classic”. The plaintiff was referred for an ultrasound of the right plantar aspect of the foot and steroid injection if appropriate. Thereafter, the plaintiff was treated for the left foot, and bilaterally.
154 Mr Gardiner, orthopaedic surgeon, referred to the plantar fasciitis and said it was not a major component of the injury but it may be just a simple part of the general trauma to the right foot and ankle. Based on Mr Gardiner’s report, I accept that the plantar fasciitis in the right foot is a component of the general trauma as a result of the transport accident.
155 I also take into account Dr Cunningham’s clinical notes on 20 September 2013 at the Ararat Medical Clinic. Dr Cunningham noted that the left foot injury is due to strains with the non-weight bearing right foot, and she notes plantar fasciitis. To the extent the plaintiff suffered plantar fasciitis in the left foot, I find that the symptoms in the left foot relate to the injury in the right foot. The left foot injury came about as a consequence of falls the plaintiff suffered because of the right foot injury.
156 I accept that Mr Gardiner does not see the plantar fasciitis as contributing anything major to the plaintiff’s current presentation. This is consistent with Mr Shannon noting the plantar fasciitis as “mild”.[55] It is also consistent with the fact that the plaintiff last sought treatment from his general practitioner in Ararat for plantar fasciitis in October and December 2013.[56] In May 2014, when the plaintiff saw his general practitioner, Dr Polioudakis, he was being prescribed medication for the right foot.
[55]DCB 11
[56]PCB 48(a)
157 Dr Polioudakis, the general practitioner from the Victoria Harbour Medical Centre, has treated the plaintiff from May 2014. Dr Polioudakis, in his report, does not make or rely on the diagnosis of plantar fasciitis, even though he has access to Dr Duong’s records and the references by Dr Duong to plantar fasciitis. I accept that Dr Polioudakis has formed a view that the plantar fasciitis is not a relevant diagnosis from at least May 2014. He is diagnosing chronic ankle pain that is neuropathic in its basis. This is consistent with the views expressed by Mr Gardiner and Dr Blombery.
158 For those reasons, I accept the plaintiff’s submission that there is no requirement for the plaintiff to disentangle the effects of the bilateral plantar fasciitis from the injury sustained in the transport accident. I accept the plaintiff’s evidence that by far his greatest problem is the right ankle and right foot.[57] This is what the plaintiff is currently reporting to doctors.
[57]T341
The left foot injury
159 In May 2012, the plaintiff reported to his general practitioner that whilst trying to jog to rehabilitate his right side, he lost his footing and rolled his left ankle, with the result that his left ankle has been a problem for him. He reported this incident to a number of the medical witnesses. I accept that this is a consequence of the right ankle injury.
160 The plaintiff’s evidence was that he suffered several falls. Dr James diagnosed a capsular sprain of the left ankle. He did not attribute that to a fall. He simply noted there had been a left ankle sprain for three days.
Other injuries
161 The plaintiff’s evidence was that he suffered a back injury at work. He asked to be referred to Mr Wilde, orthopaedic surgeon, because his mother previously had a fusion with significant consequences. Hence he thought he should investigate the back injury.
162 I accept, based on the medical evidence and the evidence of the plaintiff, the back injury was transient in effect and plays no role in his current presentation.
163 The plaintiff had two hand injuries: the first a cut while working for the defendant at Ararat. The second was when he fell off a truck onto his hands and not his feet in the workplace. In both instances, those injuries were managed and there were no ongoing consequences.
Pain and suffering consequences
164 I will now consider the pain and suffering consequences for the plaintiff.
Pain
165 Presently, the plaintiff experiences pain in both feet. The right is worse than the left. The plaintiff’s evidence was that he works through constant, though varied, pain in the right foot. He tends to avoid using ladders where possible as this aggravates his ankle pain, even after a short period of time. He found that wearing the required short, steel-capped boots rubbed against his ankle and he was required to change his work shoes in order to complete his work. He suffered swelling to his right ankle which is restrictive in terms of the footwear he can wear. He twisted his left ankle as a consequence of instability of the right foot.
166 The plaintiff has constant pain under the right foot and frequent pain across the top of the foot.[58] When the pain under the right foot is really bad, it goes under the back of the heel and up the Achilles tendon. Even with medication, he experiences pain levels of 4 to 5 on the analogue scale in his right foot, with a constant level of pain at 2 to 3.[59] The plaintiff was consistent in reporting the pain he suffers to the medical witnesses.[60]
[58]Dr Sutcliffe at PCB 165q, PCB 9 and PCB 17
[59]PCB 17
[60]Mr Mangos at PCB 50; Mr Gardiner at PCB 165b; Dr Blombery at PCB 165g; Dr Sutcliffe at PCB 165q
167 The majority of medical witnesses accepted the plaintiff’s complaints of pain. There was no suggestion he exaggerated the level of pain he suffered.
168 Ms Williams, the plaintiff’s partner, gave affidavit evidence that when the plaintiff wakes up first thing in the morning, he limps and complains of pain in his right foot. When he returns from work, he is always tired and he spends a lot of time sitting down with his feet up, resting. He frequently complains of pain in his right foot. He is far less active. Ms Williams was not cross-examined on her affidavit. Accordingly, I accept the contents of her affidavit. It is consistent with the plaintiff’s evidence as to the pain that he suffers.
169 I accept that the level of pain the plaintiff suffers is constant, and is a consequence which I can take into account.
Medication
170 Currently, the plaintiff is taking Celebrex, 200 milligrams once a day; Lyrica, 75 milligrams twice per day; Panadol Osteo, two at a time, three times per day, and, on occasions, Panadeine Forte when the pain levels become too intense. He also takes Endone, very rarely, but has taken it on two occasions since November 2014.
171 The plaintiff’s evidence was the amount of medication varies depending on activity. He said he could reduce his medication if he was not walking around, for example when he was sitting in Court, but when he returns to work, he travels to Ararat and undertakes multiple site visits. At Ararat, he will be going up and down flights of stairs and ladders, and will require more medication. On a good day, he takes Celebrex and Lyrica and a slow-release Panadol at night. On a bad day, he will take Panadeine Forte, and on a very bad day, Endone. I accept the level of medication the plaintiff takes is significant and is reflective of the level of pain the plaintiff suffers. The level of medication is a significant consequence which I can take into account.
Time lost from work
172 The plaintiff’s evidence was he was initially off work for four months until February 2012. He resumed work on office duties and returned to physical work as an electrician on 14 May 2012. Currently, the plaintiff’s evidence was that he takes days off work because of the right ankle pain. He is not required to provide a medical certificate for every day off.[61] He reported this consequence to Dr Kornan. I accept that this is a consequence I can take into account.
[61]T93, L1-8
Impairment or loss of vocation
173 In Ellis Management Services Pty Ltd Taylor,[62] the Court of Appeal said:
“… the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[63]
[62][2013] VSCA 326 at paragraph [35]
[63]Ellis Management Services Pty Ltd Taylor (supra) at paragraph [35]
174 The Court of Appeal said the issue of pain and suffering consequences may be affected in the following ways:
· Pain may be experienced at work or while performing particular types of work.
· The inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
· A worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Any frustration of a worker at being unable to perform activity that he or she used to be able to perform, would be a pain and suffering consequence.
175 The plaintiff’s evidence was that he experienced pain when he performed particular types of work. For example, he experienced pain while on his feet for long periods of time, climbing ladders, and walking on uneven surfaces, in particular at construction sites.
176 The medical evidence was that the plaintiff will be restricted in engaging in work as an electrician.
177 Dr Sutcliffe, occupational physician, said the plaintiff had lost his capacity for his occupation as an electrician. He had no ability to perform repeated use of ladders, scaffolds, walk on rough ground, walk over the rough steps he is required to access in construction sites, and move in crawl spaces.
178 Dr Sutcliffe said the plaintiff had a capacity for alternate occupations, but imposed restrictions of prolonged standing and sitting, use of ladders, walking over rough ground and use of stairs in the course of his occupation. It was her belief that the plaintiff had a very substantial adverse impact on his occupational capacity.
179 Dr Blombery, consultant physician (vascular disease), said the plaintiff had significant limitations at work and has difficulty in using ladders, an important part of an electrician’s job. His limitations will remain the same in the future.
180 Mr Gardiner, orthopaedic surgeon, said the plaintiff was restricted in his work, in that he was unable to work on uneven ground or ladders, an integral part of his life as an electrician. He thought the plaintiff’s prognosis was guarded. He said, in the long-term, the plaintiff may develop osteoarthritic changes in his right ankle/foot, which may require further treatment. He did not think the plaintiff would require further surgery.
181 Mr Mangos, general surgeon, said the plaintiff was working full time but was doing so under a good deal of difficulty, and his ability to continue work as an electrician into the future must be guarded. He said the plaintiff’s injuries were certainly affecting his ability to pursue unrestricted employment.
182 In December 2012, Mr Mangos said the plaintiff was bound to have problems with long intervals of standing and mobilising, and was more prone to develop osteoarthritis in the future. He said his future employment in his current work was guarded with regards to work which involves regular standing, bending and mobilising, climbing, squatting and kneeling.
183 Dr Kornan, psychiatrist, said, from a psychiatric perspective, because of his chronic psychiatric ill health, the plaintiff was likely to experience difficulties in presenting himself in a positive way at work. He would not be surprised if he missed out on significant promotion possibilities. If the plaintiff was to apply for another job, Dr Kornan suspected he would function less well in job interviews. However, because Dr Kornan did not have a complete history of the plaintiff’s psychiatric condition, I place less weight on Dr Kornan’s evidence.
184 The plaintiff’s evidence is that he received a promotion with his employer. He now has a supervisory component to his work, but he still has to work ‘on the tools’ when there is no specific supervisory work to be done.
185 I accept that as a consequence of the transport accident, the plaintiff’s inability to engage in unrestricted employment, as outlined above, is a matter that may be properly taken into account in assessing pain and suffering consequences. To a degree, the plaintiff has suffered an impairment to his loss of vocation. This is a consequence that I can take into account in assessing pain and suffering consequences. Given the medical evidence, I consider this to be a significant consequence.
Loss of recreational activities
186 In Ellis Management Services Pty Ltd Taylor,[64] the Court of Appeal said:
“Whether it be the loss of pleasure in doing something one used to be able to do or frustration in being unable to do something one used to be able to do, and whether or not the relevant activity is work related, such loss of pleasure or feeling of frustration falls to be considered when assessing the pain and suffering consequences of a particular injury. … .”
[64]Ellis Management Services Pty Ltd Taylor (supra) at paragraph [43]
187 The plaintiff’s evidence was that, before the transport accident, he was fit and strong. Running was his major sporting activity. He competed in two triathlons prior to the accident but was unable to manage the distances, which was the reason he had the compartment release procedure. He was training to enter the Phuket Triathlon, which was scheduled for November 2011. The triathlon involved an 1800-metre swim, a 12-kilometre run and a 55-kilometre bike ride. He trained in the gym for three to four sessions per week. Such a session could take between two and three hours. A typical session involved stretching and undertaking a run of 5 to 10 kilometres. He would then do further stretching and a weight program. He would ride his bike for 20 kilometres twice a week, or do a spin class in the gym under instruction from a trainer. He swam between 1.5 to 2 kilometres in the pool every second day. The plaintiff’s evidence was that prior to the transport accident, he was behind with his training for the Phuket Triathlon; however, he believed that once he arrived in Phuket, he would train regularly and it would set him up for the rest of the season coming into Australia. The plaintiff said it was a dream to pursue the Hawaiian Ironman which he could no longer pursue.
188 The plaintiff reported to the medical witnesses his inability to engage in triathlons and his difficulty with running and other physical activities. No medical witness suggested that he exaggerated this consequence. The plaintiff’s evidence is that he avoids running, he limits the walking he has to do and no longer does leg work at the gym.
189 The plaintiff conveyed to the Court the importance of running to his enjoyment of life. Running was a family activity that he had pursued with his father and sister.
190 I accept that the evidence is that the plaintiff can no longer participate in running activities in the same manner as he did prior to the transport accident. I accept this is a significant consequence to this plaintiff.
191 The plaintiff’s evidence was that he enjoyed kicking a football with friends or playing social basketball. He enjoyed rock climbing and trekking. He and his partner would rock climb. As a result of his injury, he cannot participate in these activities.
192 The plaintiff said he can no longer pursue travel activities such as climbing, hiking through Nepal or travelling in South America with friends. Whilst he can still travel, he can no longer pursue this form of travelling. The plaintiff’s evidence was that he cannot do a tenth of what he would normally do.[65]
[65]T217, L2-6
193 I accept that these are significant consequences to this particular plaintiff.
Impact on intimacy
194 The plaintiff’s evidence was that because he was unable to participate in sporting activity and train at the level he was training prior to the accident, he is now no longer as fit and strong. His self-image is much diminished. He feels unworthy and less of a person, and this has had a marked effect on his enjoyment of life, including his enjoyment of sexual intimacy. He now has sexual relations with his partner much less frequently than he did before the transport accident. The plaintiff reported this to Dr Kornan.
195 I accept that there has been an impact on the level of intimacy the plaintiff has with his partner. I am mindful of the fact that the plaintiff has been working during the week in country Victoria. Further, I place less weight upon this as a consequence, as there is no reference to this aspect in the affidavit of the plaintiff’s partner.
Mental response to physical impairment
196 The plaintiff’s evidence was that before the accident, he was very physically fit and strong and his self-image was good. He has gained weight. Now, he is less fit and strong. He has constant pain and his self-image is much diminished. The plaintiff’s partner said that the plaintiff is very sensitive about the fact he has put on weight, and he is not as fit as he was. He is less outgoing. These things have saddened him, and his self-esteem is much less. The plaintiff told the Court of these issues.
197 The plaintiff reported problems of body image, loss of self-esteem and loss of enjoyment of life to Dr Kornan.
198 I accept that these are consequences that I can take into consideration in accordance with Richards & Anor v Wylie.[66]
[66]Supra
The Plaintiff’s age
199 I accept that all the above consequences are especially significant given the plaintiff’s relatively young age (thirty-one).
200 In Stijepic v One Force Group Aust Pty Ltd,[67] the Court said:
“When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
[67](Supra) at paragraph [43]
201 I was referred to the medical opinions of Mr Mangos and Mr Gardiner regarding the prospects for deterioration in the plaintiff’s right foot condition. Mr Mangos said:
“… He is more prone to develop osteoarthritis in the future.”[68]
[68]PCB 37
202 Mr Gardiner said:
“… In the long term he may develop osteoarthritic changes in his right ankle/foot, which may require further treatment. … .”[69]
[69]PCB 165(c)
203 I accept the plaintiff’s evidence about the impact of the right ankle/foot on his capacity to participate in the recreational activities that he enjoyed prior to the transport accident. I consider it is a very considerable loss for a man aged thirty-one to be now effectively precluded from the physical activities that provided him with so much pleasure. Of itself, for a young, active man, this is a very considerable consequence.
Stoicism
204 The evidence was that the plaintiff returned to work in February 2012. Since then, he has worked on a full-time basis notwithstanding the fact that he has experienced significant pain and discomfort when working on construction sites, and required significant amounts of medication to maintain full-time employment. The plaintiff’s evidence was that he continues to try and remain active and engage in activities within the restrictions imposed by his right ankle/foot and pain. He said:
“Well what I’ll do is I’ll try something and if I can do it I’ll push on with it, with pain medication if I can do something and with the aid of pain medication and I can complete a task or I can do something well then I’ll push forward to try and do it. But if it becomes too hard or it’s too painful and it’s something that I can’t manage, well yeah, I rule it out.”[70]
[70]T155, L19-26
205 I accept that the plaintiff presented as a “stoic” in the terms referred to in Haden Engineering Pty Ltd v McKinnon.[71]
“The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. … .”
[71](2010) 31 VR 1 at paragraph [13]
206 The plaintiff was not given to exaggeration and he gave his evidence in an uncomplaining way. I took the view he was prepared to endure a fair amount of pain as he went about his work with his employer. I base my impression on the way he presented in the witness box and the comments made by the medical witnesses. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might be expected, given the level of pain.
Capacities retained
207 Counsel for the defendant referred to the fact that this particular plaintiff has retained an active social and sporting life, and he is able to travel, having travelled overseas every year since the accident, along the eastern coast of Australia and in country Victoria. I accept that photographs show the plaintiff enjoying himself, but as I have already indicated, I am not persuaded that photographs on a blog which is run as a business tell the full story. I also take the view that the plaintiff no longer engages in sport to an active level for this particular plaintiff. The plaintiff’s complaint is he can no longer run, which was his passion, his ankle is weak and he can no longer engage in sporting activities of the kind which he enjoyed because of the weakness and pain in his ankle. I accept that he has retained the ability to travel, albeit in a different manner. I am not persuaded that what the plaintiff has retained outweighs the very considerable consequences that he has suffered.
Internet material and Facebook
208 The defendant produced photographs from the plaintiff’s partner’s blog and Facebook page. The photographs showed the plaintiff undertaking certain activities, looking happy and relaxed. I accept the photographs represent a snapshot of a specific point in time to demonstrate enjoyment in an activity; however, they do not demonstrate the ‘before’ or ‘after’, or the vast majority of the plaintiff’s life. I accept that the photographs were contrived and are not reflective of a normal day, especially when the blog on which the photographs are posted is run as a business and geared towards attracting an audience.[72]
[72]T159, L18-22
209 As the plaintiff’s consequences have persisted for almost four years and the majority of the medical evidence suggests no improvement in the future, in my view, his impairment is long term.
210 Taking all the evidence into account – namely the plaintiff’s experience of pain, the treatment and level of medication the plaintiff takes, the recreational activities, the work consequences and the loss of self-esteem – I am satisfied that the consequences to the plaintiff can be described as “more than significant” or “marked” and can fairly be described as “very considerable” when judged by a comparison with other cases in the range of possible impairments. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in light of all the evidence and the surrounding circumstances. I also take into account the plaintiff’s age and the fact that his impairment and its consequences will be suffered over a significant part of his adult lifetime, all of which lead me to the conclusion that his impairment of the right foot/ankle satisfies the “very considerable” test.
211 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident.
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