Spencer v 1300Rubbish Pty Ltd (ABN 18 108 407 816)

[2021] VCC 1030

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-00367

CALLAN PHILLIP SPENCER	Plaintiff
v
1300RUBBISH PTY LTD (ABN 18 108 407 816)	Defendant

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JUDGE:	HIS HONOUR JUDGE O’NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2021
DATE OF JUDGMENT:	30 July 2021
CASE MAY BE CITED AS:	Spencer v 1300Rubbish Pty Ltd (ABN 18 108 407 816)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1030

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – injury to left ankle in workplace incident – nature and extent of injury and whether resolved – underlying psychological condition – whether left ankle injury aggravated that condition – disentanglement from other injuries including to right knee, right ankle, neck and underlying psychological disorder – credibility of the plaintiff – pain and suffering and economic loss – whether consequences “very considerable” for physical injury and whether “severe” for psychological injury – whether 40 per cent loss of earning capacity

Legislation Cited:      Accident Compensation Act 1985, s134AB

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person	-
For the Defendant	Mr J L Batten	Thomson Geer

HIS HONOUR:

Preliminary

1Sadly, Mr Callan Spencer has had many adverse issues in his life, amongst them, the breakup of his marriage and the effect of that upon his relationship with his now eighteen-year-old daughter, a long history of mental health problems, including admissions to psychiatric institutions, and abuse of alcohol and illicit drugs from an early age.

2Mr Spencer undertook an apprenticeship as a fitter and turner.  He worked for a considerable period in retail furniture stores.  He started working for the defendant, 1300Rubbish Pty Ltd, in 2007.  His work involved driving a truck and removing rubbish.  That employment was terminated on 30 May 2012.

3Over the time of his employment, he suffered a number of injuries.  As best as I am able to work it out, they are as follows:

·        In 2010 (or possibly 2008 according to Mr Spencer), he rolled his right ankle at work.  He went to the Maroondah Hospital and had physiotherapy for a period.  He was able to continue to work as a truckdriver.  When asked about the current situation with his right ankle, Mr Spencer said that it was exactly the same as his left ankle.[1]

·        On 20 February 2012, he was standing on the rear tray of his truck when he fell about 2 metres.  He suffered an inversion injury to the left ankle (“the incident”).  He was taken to Maroondah Hospital.  An x-ray showed no evidence of fracture.[2]  He had physiotherapy treatment from Ms Amy Cusworth over a period and was certified as fit to return to normal duties from 24 May 2012.[3]  Upon his return to work, he was dismissed because of unsatisfactory workplace conduct from before the incident.  The dismissal was not related to his injury.  There is no record of Mr Spencer having any treatment to the left ankle from any practitioner from that time on.[4]  In  evidence, he said at the present time, he took no regular pain medication, but took Nurofen Plus and Panadol on an “as needs” basis.[5]

·        On 9 February 2013, he had an accident involving a motorcycle he was riding.  He suffered an anterior cruciate ligament (“ACL”) rupture of the right knee.  Mr Eden Raleigh, orthopaedic surgeon, performed reconstruction surgery in May 2013.  At that time, he had been working as a furniture removalist.  In evidence, he said that since the knee reconstruction, his right knee had never been stable, particularly on uneven ground and inclines.[6]

·        At some point, possibly before the incident, Mr Spencer started to suffer problems with his mid to lower back, which has persisted to the present.  He described it as being much the same as his left ankle, and that it took half a day to warm up and have free movement.  He said he suffered every single day.[7]

[1]Transcript (“T”) 14, Lines (“L”) 26

[2]Joint Court Book (“JCB”) 118

[3]JCB 52

[4]        There is no report from any treating practitioner

[5]T12-13

[6]T14, L21

[7]        T14 L13

4Mr Spencer is now self-represented.  He has sworn three affidavits in support of his application, dated 16 October 2019, 3 July 2020 and 27 July 2020.  Those affidavits were prepared by his former solicitors.

5The affidavits depose as to a very significant left ankle injury in the incident leading to chronic pain and restriction of movement, the loss of a range of recreational, sporting, domestic and social activities, and the total loss of employment capacity.  He deposes as to the taking of significant quantities of medication, treatment by his long-term general practitioner, Dr Shanmugam, and symptoms of anxiety and depression as a result of the pain in the left ankle.

6However, the reality of the injury to Mr Spencer’s left ankle, and the consequences which flow, are vastly different from the picture painted in those affidavits.  I am not satisfied that the consequences of the physical injury to the left ankle meet the statutory criteria either as to pain and suffering or economic loss.  I am further not satisfied that the consequences of any psychological disorder related to the incident meet the statutory test.

Application

7This is a serious injury application in relation to injuries suffered in the incident.

8Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.

9The body function said to be lost or impaired is the left ankle.

10Mr Spencer also claims to have suffered a severe mental disorder in the nature of an aggravation of an underlying anxiety and depressive condition; alternatively, an Adjustment Disorder.

11Mr Batten, Counsel for the defendant, identified the issues in the application as:

·        to the extent Mr Spencer had suffered any injury in the incident, it was an ankle sprain for which he had sought little treatment and which had largely resolved.  To the extent there were ongoing consequences of the injury, they did not meet the “very considerable” test;

·        Mr Spencer has had a long-standing serious underlying psychological disorder with anxiety and depression, which related to other issues in his life and was not exacerbated to any extent by the incident.  The consequences of any aggravation did not meet the “severe” test;

·        Mr Spencer had suffered other injuries, including to his right ankle, right knee and neck.  The consequences of those injuries had not been disentangled from the consequences of the claimed injury;

·        the plaintiff’s credit was in issue;

·        in relation to loss of earning capacity, the plaintiff had not suffered a loss of 40 per cent or more, in accordance with the statutory formula in relation to either the physical or psychological condition.

Credit

12Mr Spencer conducted himself in a respectful and appropriate manner throughout the hearing.  In my view, he attempted to be responsive to questions put in cross-examination.  However, as the evidence unfolded, it became clear the nature and extent of the left ankle injury as presented in his affidavits, was far from accurate.

13The first issue is as to the termination of Mr Spencer’s employment with the defendant.  He claimed he was unable to work for a year following the incident and when he attempted to return to work with the defendant in January 2013, that return to work was unsuccessful as he could not cope with the pain.[8]  He claims to have lost the ability to work, the implication being that was as a result of the injury to the left ankle.  The affidavits make no mention of the circumstances under which his employment ended in May 2012. 

[8]JCB 12

14It is clear from correspondence from the defendant[9] that he was reprimanded because of workplace incidents, including the use of his truck to collect scrap metal without authorisation and turning up late to work, including a day or two before the incident.  His employment was to be terminated at that time, but he sustained the injury, and termination was delayed until he was fit to return to work.

[9]JCB 198-199

15In April 2013, Mr Spencer obtained employment with Maroondah Removals & Storage as a furniture removalist/truckdriver.  He claimed he was on light duties.  He worked for a period of only three weeks and stopped only because he had the motorbike accident.  There is no reference in his affidavits to this work with Maroondah Removals & Storage.

16In neither of his first two affidavits, nor in the histories to any doctors, did Mr Spencer state that between 23 August and 21 December 2018, he worked as a machine operator for a company, KCS Plastics and Engineering.  According to an affidavit of Ms Caron Phillips,[10] a representative of KCS Plastics and Engineering, Mr Spencer worked thirty-eight hours a week, earning over $1,000 gross per week over that period.  It was said Mr Spencer operated an extruder machine, assisted in maintenance and repairs and performed general production work.  Mr Spencer did not advise that company of any physical restriction prior to commencing employment and the Health Assessment Questionnaire he completed on 28 August 2018[11] made no reference to a left ankle injury. 

[10]JCB 53-4

[11]JCB 61-2

17The only reference to this period of employment was in Mr Spencer’s final affidavit, sworn 27 July 2020.[12]  It is clear that affidavit was prompted only because of the disclosure of this employment in the affidavit of Ms Phillips.  Mr Spencer was able to provide no satisfactory explanation as to why details of this employment had not been disclosed.  I am satisfied this was an attempt to hide this information from the Court and the medical practitioners.

[12]JCB 28

18There were a number of medical practitioners who examined Mr Spencer in 2019. To Mr Russell Miller, orthopaedic surgeon, and Associate Professor Abdul Khalid, psychiatrist, he gave a history of an injury to his left ankle in 2010 and to his right ankle in 2012.[13]  While this does not affect Mr Spencer’s credit, it affects his reliability as an historian.

[13]Report of Mr Miller dated 1 April 2019 at JCB 65-6; report of Associate Professor Khalid dated 1 June 2019 at JCB 74

19By reason of these matters, I am of the view Mr Spencer’s credibility and reliability are significantly impeached.  I have reservations about relying upon the contents of his affidavits.  Wherever possible, I should look for objective evidence of his claims as to the consequences of the left ankle injury.  There is very little objective evidence to that effect.

The incident and its aftermath

20The records of the Maroondah Hospital disclose a diagnosis of a sprain/strain to the left ankle following the incident.[14]  An x-ray showed no fracture.  There was significant swelling observed.  Mr Spencer was advised to put ice on the ankle and elevate it.  Crutches were provided and a WorkCover Certificate for two weeks off work was issued.  He was advised to see his local medical officer as needed.

[14]JCB 279-281

21Mr Spencer was treated at Lifecare Physiotherapy Clinic on about five occasions in 2012 and the left ankle condition was said to be improving over that period.  On 21 May 2012, the records note there was no pain in the ankle, with improved walking.  He was certified as being fit for a return to full duties from 24 May 2012.

22Mr Spencer’s treating general practitioner until recent times has been Dr N Shanmugam.  Clinical notes of his clinic at Mount Evelyn Medical Surgery over the period from October 2013 to August 2017 make no reference to attendances in respect of left ankle problems.  There is reference to right knee issues following the motorcycle incident and problems with Mr Spencer’s left knee.  Dr Shanmugam assisted in an application under a disability insurance policy with UHG Insurance and for Centrelink payments.  There is further reference to mental illness, anxiety and depression.  In a letter to UHG of 22 May 2015,[15] Dr Shanmugam refers to pain in Mr Spencer’s left ankle related to a work accident.  The letter notes Mr Spencer has received no treatment for this injury, nor seen a specialist.  There is reference in the notes to an application to Centrelink because of anxiety/depression and an injury to Mr Spencer’s right knee, but nothing to suggest that application was related to any left ankle injury.

[15]JCB 426

23There is no other evidence to suggest the involvement of any other medical or like practitioners, any treatment, referral to a specialist, or prescription of medication in relation to left ankle injury.

24While it might be argued that with all the various other issues in his life, particularly psychological issues, Mr Spencer may be distracted from the consequences of his left ankle injury.  Nonetheless, it is difficult to understand that if the pain, restriction and limitation of movement to the left ankle is as his affidavits suggest, he would not seek treatment in some shape or form.

Medical evidence

25The report of Mr Miller of 1 April 2019[16] is of little assistance because of the incorrect history as to the right and left ankle injuries.  Dr Iswadi Damasena, orthopaedic surgeon, in his report of June 2019,[17] said he would have expected Mr Spencer to make a full or near-full recovery from his left ankle injury.  Relying on the history provided, he said Mr Spencer suffered chronic ankle instability and that he possibly may have developed post-traumatic arthritis to the ankle.  He suggested further radiological investigation, which has not been undertaken.  He also noted moderate back pain.  He suggested vocational rehabilitation with the possibility of sedentary or desk-based employment as appropriate.

[16]        JCB 65

[17]JCB 81-89

26Mr Spencer was examined by Dr Joseph Slesenger, occupational physician, in May 2020.[18]  He diagnosed a soft-tissue injury to the left ankle.  He noted a history of significant lower back pain and diagnosed a mechanical injury to the lumbar spine.  He concluded, as a result of left ankle impairment alone, Mr Spencer would not be able to return to his pre-injury duties.  In a second report of 24 July 2020,[19]  when Dr Slesenger had been provided details of Mr Spencer’s employment at the extrusion plant, that practitioner noted Mr Spencer had told him he had not worked since 2012.  As a result of that disclosure, Dr Slesenger changed his opinion and said Mr Spencer had the capacity to return to pre-injury employment.

[18]        JCB 90

[19]        JCB 105

27Mr Spencer was examined by Dr Peter Blombery, consultant physician in vascular disease and pain medicine, in June 2020.[20]  As a result of a finding that Mr Spencer’s left foot was cooler by two degrees than the right, and slightly blue in appearance, Dr Blombery concluded he was suffering a Complex Regional Pain Syndrome Type 1.

[20]        JCB 112

28Dr Blombery is the only practitioner to come to this view, on the basis of only one examination finding.  I do not accept Dr Blombery’s opinion.

29Dr David Elder, occupational physician, examined Mr Spencer in November 2018 on behalf of the defendant.[21]  He received an incorrect history that Mr Spencer had suffered a small avulsion fracture to the left ankle.  Mr Spencer said he was not taking any prescription medication.  He said he had not worked since the motorcycle accident. De Elder diagnosed left ankle dysfunction.

[21]        JCB 119

30Mr Michael Dooley, orthopaedic surgeon, examined Mr Spencer in April 2020[22] and June 2021.[23]  When he first examined Mr Spencer, he found no swelling or tenderness to the left ankle and the joint was stable to examination.  He considered Mr Spencer had suffered a lateral ligament injury, a sprained ankle.  He said he would have thought the ankle injury would have recovered with some intermittent symptoms.  He noted a restriction in right knee movement because of right-knee pain.  He said the complaints of intense pain were greater than he would have expected.  Mr Dooley considered Mr Spencer would not be able to return to his pre-injury work, but had the capacity for suitable employment as a clerk, forklift driver, truckdriver or road traffic controller, within limitations.

[22]        JCB 124

[23]        JCB 130

31I am satisfied from the medical evidence Mr Spencer suffered a sprain or strain to his left ankle in the incident.  This required little treatment and I am of the view that, to the extent there was damage to the ligaments of the left ankle, that damage has largely resolved.  While Mr Spencer may suffer some pain and restriction from time to time, particularly in cold weather, those symptoms are relatively modest.

32Further, from the medical evidence, I am satisfied, looking at the left ankle alone, while Mr Spencer may be restricted in more demanding manual activities such as heavy carrying, lifting and including manual work removing rubbish, I am satisfied, in accordance with the opinion of Dr Slesenger and Mr Dooley, that he has the capacity for more sedentary-based employment.  I note that for a considerable period he worked in the retail furniture industry and as a truckdriver.  I am satisfied from the perspective of the left ankle injury alone, he has the capacity to work in these areas.

33It was put to Mr Spencer in the course of cross-examination that a report from a vocational assessor suggested, based upon his education and work experience, he could work as a despatch clerk, stock clerk, radio clerk, road traffic controller, forklift driver, truckdriver or packer.  Mr Spencer agreed he could do that work “[i]f I had a licence and no criminal history”.[24]

[24]T77, L17

Disentanglement

34lt is clear Mr Spencer is suffering from symptoms and restrictions in his lower spine, right knee and right ankle.  In a frank admission at the commencement of his evidence, he said, in relation to these various injuries and conditions, that his whole body had deteriorated over the last ten years.  He said the problems with his right ankle were the same as with his left.  He suffered every day from problems with his lower spine, which, like his ankles, needed to warm up to move freely.  Also, his right knee was unstable and created difficulties when he was walking on uneven ground or inclines.[25]

[25]T14-15

35In his affidavits, Mr Spencer referred to the impact of his left injury with consequences, including problems with sleep and of the need to take medication, difficulty going up and down stairs, problems wearing safety boots, difficulties with standing for long periods, undertaking heavy or repetitive tasks, and a loss of  skiing, snowboarding and surfing.  He said he was unable to enjoy kicking a football as he had before, and had suffered an increase in symptoms of anxiety and depression because of pain in the left ankle.  However, in my view, these consequences, if they are accurate, are as much a result of his other injuries and conditions as the left ankle injury.

36I am not satisfied there has been any clear disentanglement as the authorities require.

Psychological issues

37From an early age, Mr Spencer had a problem with alcohol consumption and the use of illicit drugs.  He says he has now given up alcohol.  In more recent times, he has been convicted of various drug-related offences, had a short period of time in jail, and been the subject of a Community Correction Order. 

38As a result of the breakdown of his marriage, his relationship with his daughter has been adversely affected, although he sees her regularly now.

39At twenty-eight, he was diagnosed as suffering a Paranoid Personality Disorder.  He was admitted to a psychiatric institution over a number of days.

40He has suffered anxiety and depression for a long period, but has had very little psychiatric or psychological treatment.

41Shortly after the incident in August 2012, Mr Spencer was admitted to Maroondah Hospital, having experienced a psychotic episode in the context of using a range of drugs.  He has attempted suicide on a number of occasions.

42In April 2017, he was admitted to Box Hill Hospital following acute renal failure related to heavy alcohol and polysubstance abuse. 

43Associate Professor Khalid diagnosed Mr Spencer as suffering an Adjustment Disorder with Depressed Mood related to the ongoing symptoms in his left ankle.  He also said Mr Spencer had an unrelated Alcohol and Substance Use Disorder.  The Adjustment Disorder, said Associate Professor Khalid, did not affect his work capacity.

44There are so many issues in Mr Spencer’s life it is difficult to discern with any accuracy the extent to which his left ankle symptoms, such as they are, affect his psychological state.  I am not satisfied that those consequences meet the “severe” level.  I am not satisfied they have any significant impact on his work capacity.

Conclusions

45While I am sympathetic to Mr Spencer’s plight and to all the various difficulties life has dealt him in both his personal and working arenas, I am not satisfied the consequences of his left ankle injury meet the statutory test.  I am unable to rely upon the claims in his affidavit as to those consequences.

46I am not satisfied that either from a physical or psychological perspective, the injury caused in the incident has resulted in a 40 per cent loss of earning capacity.

47The application should be refused.  I will make consequent orders.

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