Stone v Freight Victoria Limited
[2009] VCC 308
•25 March 2009
125
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01132
| STEVEN STONE | Plaintiff |
| v | |
| FREIGHT VICTORIA LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 February 2009 |
| DATE OF JUDGMENT: | 25 March 2009 |
| CASE MAY BE CITED AS: | Stone v Freight Victoria Limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0308 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB – serious injury application – pain and suffering – impairment of function of the right foot.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC and | Shine Lawyers |
| Mr I D McDonald | ||
| For the Defendant | Mr R P Gorton QC and | Herbert Geer Lawyers |
| Ms C Boyle | ||
| HIS HONOUR: |
1 In this proceeding the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover pain and suffering damages for injury suffered by him arising out of the course of his employment with the defendant on 26 May 2004.
2 The body function which the plaintiff relies upon in making this application is the right foot.
3 The following evidence was adduced during the hearing:
(i) The plaintiff gave evidence and was cross-examined. (ii) Mr Harry Rainbow gave evidence and was cross-examined. (iii) The plaintiff tendered his Court Book (“PCB”) pages 1 to 49. (iv) The defendant tendered its Court Book (“DCB”) pages 4 to 76.
The Statutory Scheme
4 The application is brought under the definition of “serious injury” contained in sub-s.(37)(a) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
5 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which she suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-s.(38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(f)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
The Plaintiff’s Evidence on Affidavit
6 The plaintiff is twenty-nine years of age, having been born on 19 January 1978. He attended the Footscray Primary School and thereafter the Footscray City Secondary College where he completed his Year 10. Although he commenced his Year 11, he did not successfully complete that year. After leaving school, the plaintiff undertook a TAFE course and thereafter went out into the workforce. Since that time he has been engaged in a number of occupations, each of which involved generally unskilled work.
7 The plaintiff commenced employment with the defendant as a trade’s assistant on 5 March 2001. On 26 May 2004, he suffered the injury the subject of this application when his right foot was struck by a motorcycle which had been dislodged from a truck.
8 The plaintiff was initially treated for injuries to his right arm and foot at the Sunshine Hospital. He subsequently came under the management of Dr Andrew Woodard, a general practitioner, who practised at the West Group Health Centre in St Albans.
9 By reason of the lack of progress of the injury to the plaintiff’s right ankle he was referred by Dr Woodard to Dr M Patel, an orthopaedic surgeon, who, after investigating the cause of the plaintiff’s symptoms, performed surgery on the plaintiff’s right foot on 4 March 2005. Following this surgery, the plaintiff was confined to crutches for approximately three months. Thereafter, by reason of the presence of continuing symptoms of pain in his right foot and ankle, the plaintiff was referred to Mr Ian Henderson, an orthopaedic surgeon, who undertook surgery upon the plaintiff’s right foot on 30 March 2006. Following this surgery, the plaintiff received physiotherapy treatment until approximately August 2007. At around that time the plaintiff’s physiotherapy treatment was ceased and he commenced receiving massage treatment, which treatment is continuing.
10 In a further affidavit dated 21 November 2001, the plaintiff deposed as to the circumstances in which he came to cease his involvement with the Richmond Union Cricket Club. The plaintiff deposed that as a result of an on field altercation in which he was involved towards the end of the season, he received a formal suspension which disqualified him from playing in the grand final. Subsequently his registration within the Eastern Cricket Association was revoked until the commencement of the 2008-9 cricket season. The plaintiff deposed that but for his injuries it had always been his intention to resume playing cricket and continue playing football and that he had given up both of these sports which constituted his primary source of exercise and entertainment by reason of the injury to his right foot.
11 The plaintiff described the pain in his right foot as being there most of the time and as being aggravated by activities such as prolonged walking and standing. He said at the end of a working day he has to sit down for an hour or so when he arrives home by reason of foot soreness. He said that his current employment was not ideal but that he had to manage it the best that he could as “I want to earn income and be a breadwinner”.[3] The plaintiff further deposed that he continued to receive remedial massage on the basis of one half-hour session per week, which he described as being really not enough.
[3] PCB 38
12 In support of the plaintiff’s application, Mr Harry Rainbow swore an affidavit dated 19 February 2009 in which he deposed that he had known the plaintiff for some years and had played football with the plaintiff for Seddon, and cricket with the plaintiff at Richmond. He described the plaintiff as being passionate about his cricket and described both football and cricket as the plaintiff’s most important hobbies. He said that he had not known the plaintiff to play cricket or football since his accident.
The Plaintiff’s Sworn Evidence
13 In evidence-in-chief, the plaintiff gave evidence as to his employment history between the time at which he ceased employment with the defendant and he commenced with his current employer in approximately July 2008. During that time the plaintiff said that he applied for over fifty jobs. He described his current employment as requiring to be on his feet most of the day and that these duties aggravated his symptoms.[4]
[4] T16, 22-31
14 In cross-examination:
(i)
The plaintiff conceded that during the period between ceasing employment with the defendant and commencing his present employment in July 2008 he had been in fairly regular employment. He denied any suggestion that his evidence-in-chief had been designed to give the impression that he had been largely out of work during this time. I accept the plaintiff’s evidence on this issue and I do not accept the submission made on behalf of the defendant that the plaintiff was deliberately seeking to mislead me when giving evidence as to his employment history since the accident.
(ii)
The plaintiff stated that he suffered from constant unrelenting pain in his foot which was exacerbated by activity.[5] He said that he had seen Dr Woodard until early 2008 and that he ceased seeing him when Dr Woodard commenced practicing from a different location.[6] Between the time he ceased seeing Dr Woodard and the end of the 2008 calendar year, the plaintiff said that he had seen Dr Woodard’s replacement who provided him for two referrals for massage, and that subsequently he commenced seeing a new general practitioner, Dr Roushdy. The plaintiff said that whilst he had been prescribed and had taken Tramadol for pain control his symptoms had never really been ameliorated by the use of painkilling medication and accordingly, this prescription was discontinued. The plaintiff confirmed the evidence in his affidavit that in recent years his treatment had involved consultations with Mr Jefferys, who was managing his depression and referrals by Dr Woodard, Dr Woodard’s replacement and subsequently, Dr Roushdy for massage.[7] The plaintiff said that he had been referred by Mr Henderson, his treating orthopaedic surgeon, to Dr Peter Blombery, vascular physician, for pain management. He explained the decision to attend Dr Blombery on only one occasion as follows:
[5] T22-6
[6] T23-4
[7] T23-27
“I think my expectations were a bit too much of a pain management specialist and it was just like seeing another doctor, in my opinion, so I chose not to go back to him.”[8]
(iii) The plaintiff said that his psychiatrist, Mr Jefferys, had provided him with the name of a pain specialist which Mr Jefferys recommended, only last weekend, and that that recommendation had not yet been followed up.[9]
(iv) The plaintiff agreed that he was able to engage in shopping, that he attended football matches as a spectator and that during 2007 he undertook the duties of an assistant coach for the North Sunshine Football Club.[10] The plaintiff said that his weight had increased considerably by reason of his inactivity and he was vehement in denying any suggestion that there were reasons other than the injury to his foot for his decision to give up football and cricket.
[8] T27-18
[9] T28-30
[10] T31-32
15 Whilst it was asserted by counsel for the defendant that I should not be satisfied that it was indeed the plaintiff’s injury which caused him to cease his participation in football and cricket, I accept the plaintiff’s evidence that that was indeed the case. In particular, I find that the evidence given by the plaintiff as to his reason for not playing cricket during the 2003-2004 season was convincing on that issue.[11]
[11] The reason being his wish to allow some time to pass between the incident which had estranged him from his cricket club and his resumption of the sport.
16 Mr Harry Rainbow gave evidence and was cross-examined. Essentially, Mr Rainbow confirmed the evidence contained in his affidavit. Whilst I accept that Mr Rainbow’s opportunities to assess the effect of the plaintiff’s injuries upon him and their relevance in his decision to discontinue his involvement in cricket and football were limited, I found the plaintiff to be a truthful witness, and my assessment of Mr Rainbow’s evidence is that it tended to reinforce my assessment of the plaintiff as a truthful witness rather than to dissuade me from that position.
The Medical Evidence Relied Upon by the Plaintiff
17 The plaintiff’s treating doctor, Dr Woodard, who has provided a number of medical reports.[12] In his initial report, Dr Woodard sets out the plaintiff’s presentation with a tender right ankle on 28 May 2004.
[12] PCB 50-64
18 In August 2005, Dr Woodard commented that the plaintiff:
“is a young man with quite debilitating symptoms that appear genuine.”[13]
[13] PCB 54
19 On 28 February 2007, Dr Woodard noted that the plaintiff had had a significant weight gain as the result of impaired mobility due to his foot and arm.[14]
[14] PCB 55
20 On 20 March 2007, Dr Woodard noted that there had been minimal change in the symptoms affecting the plaintiff’s foot and that he continued to experience pain in the foot, worse with activity, and associated with swelling by the end of the day. He commented in this report:[15]
“All activities involving use of his lower limbs are restricted, including walking, standing, climbing stairs and the like. He has been unable to wear work boots. A recent pair of custom made work boots were inappropriate at the body of the boot laced up above the ankle and resulted in pain and swelling in the foot.”
[15] PCB 59
21 In the body of his report, he described the plaintiff as being very motivated to work and expressed the following prognosis:
“It has been almost three years since Mr Stone sustained the injuries to his right foot and forearm. He has made very little progress symptomatically for over eighteen months now and he continues to experience disability related to the injuries. Two operations on his foot have not successfully relieved his symptoms. It is likely that he will continue to experience pain and loss of function on a permanent basis. There does not appear to be any further surgical options immediately available to him.”[16]
[16] PCB 60
22 Dr Woodard reviewed the plaintiff on 17 February 2009,[17] at which time he commented that the plaintiff suffered from chronic pain in his right foot which limited the amount of time he could spend on his feet, the distances he can walk and his ability to wear safety shoes. He opined that these restrictions would continue on a permanent basis.
[17] PCB 62
23 Mr M Patel, orthopaedic surgeon, commenced treatment of the plaintiff in November 2004. An MRI scan undertaken of the plaintiff’s right foot at this time revealed the presence of diffuse tendonosis along the peroneal tendons which was initially treated conservatively with anti-inflammatories and injection into the peroneal sheath. Subsequently Mr Patel performed a decompression and debridement of the peroneal tendons of the foot at the Epworth Hospital on 4 March 2005. On 19 May 2005, Dr Patel discharged the plaintiff from his care. At that time he expressed the opinion that there were no restrictions as to the duties which the plaintiff could perform in employment, and commented that the plaintiff seemed to attribute “even the most minor pain or discomfort in his foot or forearm or indeed anywhere else to his injuries”.[18]
[18] PCB 69
24 Mr Patel has not reviewed the plaintiff since May 2005. While it was urged upon me by the defendant that the comments made by Mr Patel supported a finding that the plaintiff had developed an abnormal injury behaviour which would require me to “disentangle” any organic effects of the plaintiff’s injury from symptoms which might be caused by the presence of this behaviour, I do not find that I should use the report of Mr Patel for this purpose. The fact that within twelve months of being discharged by Mr Patel, the plaintiff was undergoing another bout of surgery and that Mr Patel has not seen the plaintiff since 2005, leads me to the view that the report of Mr Patel provides little assistance in assessing the consequences of the plaintiff’s injury upon him at the present time.
25 On 24 August 2005, the plaintiff was seen by Mr I Henderson, orthopaedic surgeon, at the referral of Dr Woodard. Mr Henderson referred the plaintiff for a further MRI scan which demonstrated the presence of persisting tenosynovitis and tendinopathy in the peroneal tendons of the right foot. On 30 March 2006, Mr Henderson undertook a surgical exploration of the right foot which he reported as demonstrating the presence of a stenosing tenovaginitis of the peroneal tendon sheath with tenosynovitis. This was managed by the performance of a tenosynovectomy with tenolysis.
26 When reviewed by Mr Henderson on 15 June 2006, the plaintiff reported the presence of unrelenting pain in his foot. In his report dated 19 June 2006, Mr Henderson expressed the opinion that the plaintiff “could expect progressive resolutions of his symptoms over a period of time”.[19]
[19] PCB 67
27 In the course of submissions made on behalf of the defendant, the plaintiff was criticised for his failure to continue with the pain management referral made by Mr Henderson, I note that in his report dated 19 June 2006,[20] Mr Henderson commented:
“I do not believe a pain management program is indicated or would significantly improve his situation, however, he may wish to try that on an empirical basis. I do not consider at this time that he has an established chronic pain syndrome.”
[20] DCB 15
28 These comments made by Mr Henderson do not advance the defendant’s position that psychological factors were playing a significant role in the augmentation of the plaintiff’s symptoms or that his decision to discontinue pain management treatment was unreasonable.
29 The plaintiff has been treated by Professor Don Jefferys, a clinical and counselling psychologist. While it was submitted on behalf of the defendant that the plaintiff was presenting with significant symptoms of pain amplification secondary to his clinical depression, I find no support for this assertion in the reports from Professor Jefferys dated 23 October 2007 and 16 February 2009.[21]
[21] PCB 70-73
30 Dr C Castle, an occupational physician, examined the plaintiff on 26 November 2008.[22] He diagnosed the plaintiff as suffering from tenosynovitis of the peroneal brevis tendon and commented in the following terms as to the plaintiff’s capacity for work:
“He needs to be able to have a job with minimal standing and be able to sit or stand as he needs to. At present, he is able to manage his present job which does involve significant amounts of standing. However I am not sure how long that will continue.”
[22] PCB 80-86
31 He continued:
“Mr Stone has no capacity to play the football or cricket at present. He has a painful tender right forearm. He has a painful tender right foot which is swollen. His ability to walk is limited. His ability to carry is limited. He is depressed. These conditions will prevent him from playing football and cricket.”
32 I note that in Dr Castle’s report there is no suggestion of the plaintiff presenting with pain amplification as the result of his depression.
33 Mr Owen Deacon, an orthopaedic surgeon, examined the plaintiff on 24 January 2009. He expressed the opinion that the plaintiff had some restriction of his capacity to be on his feet for long periods and that he was limited in his ability to use steps, stairs, slopes, ladders and ramps. He concluded his report with the following comments:[23]
“Certainly the condition which your client suffers from involving his right foot and ankle does restrict him and is the cause of his inability to participate in sporting activities especially cricket and football which were your client’s main recreational interests prior to the injury occurring. I do expect some gradual improvement but I doubt it will lead [to] him regaining his level of sporting competence.”
[23] PCB 95
The Medical Material Relied on by the Defendant
34 Dr Graham Boothby, an occupational physician, examined the plaintiff on 11 December 2004, at which time he commented that the recovery of the plaintiff’s right ankle may be problematic and he recommended review by an orthopaedic surgeon. Subsequently in a report dated 22 January 2005 he stated that he anticipated a slow resolution of the plaintiff’s symptoms.[24]
[24] DCB 26
35 Mr Robin Williams, an orthopaedic surgeon, examined the plaintiff on 6 July 2005 and issued a report on that date.[25] In that report, although he commented that the plaintiff appeared frustrated and somewhat angry at the failure of his symptoms to settle down, Mr Williams made no comment that the plaintiff’s emotional state was affecting his presentation. In a subsequent report,[26] Mr Williams commented:
“There is an element of anxiety and resentment contributing to Mr Stone’s continuing sense of illness and it is difficult to know when there will be an improvement.”
[25] DCB 28
[26] DCB 32
Having regard to the fact that these comments appear inconsistent with the comments made by Mr Williams in his previous report and that they were made in the absence of a further examination by Mr Williams of the plaintiff, I do not find the opinions of Mr Williams persuasive.
36 On 10 July 2006, Professor George Mendelson, a clinical psychiatrist, who examined the plaintiff on behalf of the defendant, opined that the plaintiff was not clinically depressed but that he had developed some understandable emotional symptoms which were secondary to his physical injury. There is no suggestion in Mr Mendelson’s report that the plaintiff’s “emotional symptoms” were augmenting to any or any significant extent his perception of pain associated with his physical injury.
37 Dr Philip Mutton, occupational physician, examined the plaintiff on 20 December 2004 and reviewed him on 1 December 2005. His first examination appears to be confined to an examination of the injury to the plaintiff’s left shoulder. In the course of his second report, he expressed the opinion that the plaintiff, largely on the basis of his ongoing foot pain, presented with symptoms which would prevent him from returning to his work as a forklift driver. He concluded his report by observing that the plaintiff needed to appreciate that he primarily suffered from a painful condition and that his injuries were otherwise stable.
38 In a further report dated 29 January 2007, Dr Mutton confirmed his previous opinion as to the work restrictions imposed upon the plaintiff by reason of the condition of his right lower limb. He commented:
“I think the prognosis for return to unrestricted storeman type activities and forklift activities is rather poor. Mr Stone therefore requires some permanent restrictions in terms of a predominantly seated position and no more ambulation than two to three hours in an eight-hour working day. He should not be required to operate equipment with the right lower limb.”[27]
[27] DCB 62
39 He concluded his report with the comments:
“In relation to the right ankle he has now been subjected to a number of surgical procedures but the most recent MRI would suggest that he suffers from ongoing inflammatory responses in association with soft tissue trauma.”[28]
[28] DCB 64
40 Whilst Dr Mutton issued a further report dated 28 February 2007, he did not in the course of that report modify in any significant way his previous comments.
41 Mr David Conroy, orthopaedic specialist, undertook an impairment assessment of the plaintiff on 10 July 2007. Having regard to the limited purpose of Mr Conroy’s report, his comments do not provide me with great assistance in the task which I am required to undertake. I note however that Mr Conroy did express the opinion that the plaintiff’s impairment had stabilised and he did not suggest that there was any amplification or inconsistency in the level of the plaintiff’s reported symptoms.
42 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on 31 January 2008 and 22 January 2009. At the time of his first examination, Mr Jones commented that the plaintiff presented with functional symptoms and signs for which there was no organic explanation. He opined at that time that activities requiring prolonged standing, walking, squatting, stair or ladder climbing, or walking on uneven ground may have the capacity to aggravate the plaintiff’s right ankle symptoms but that in the longer term this will resolve.[29]
[29] DCB 72
43 In a subsequent report,[30] Mr Jones opined:
“In regard to the ankle, the restriction of movement currently displayed is likely to persist long-term. I would not anticipate any deterioration in ankle symptoms or function in the future.”
[30] DCB 76
44 He continued:
“In regard to his ankle, prolonged standing, squatting, stair or ladder climbing are likely to aggravate his right ankle symptoms. I would not anticipate any deterioration in this level of symptoms and function long- term and I do not think he will develop osteoarthritis in the ankle as a result of his injuries.”
45 I note that in his second report, Mr Jones made no comment that the plaintiff’s presentation included “functional symptoms”. Having considered the two reports of Mr Jones, I take his concluded view to be that the symptoms with which the plaintiff presented at the time of his second examination were not being significantly augmented by any functional component and that they had stabilised.
Findings
46 It was accepted by the parties that the only task which I am required to consider in deciding this application is whether the plaintiff’s impairment of body function has consequences to him which, when considered objectively and judged by a comparison with other cases in the range of possible impairments or losses of body function, are more than serious or significant and at least very considerable.
47 There is no issue in the case that the plaintiff suffered what could be described as a soft tissue injury to the muscles and ligaments of his foot. In my view the severity of the injury is indicated by the fact that the plaintiff was required to undergo two operations in an attempt to alleviate his symptoms, these being undertaken by Dr Patel on 4 March 2005 and Dr Henderson on 30 March 2006.
48 It was submitted on behalf of the defendant that the application brought by the plaintiff should fail for the following reasons:
(i) The plaintiff was a witness who was not completely candid. If I could not be confident in accepting that the plaintiff was doing his best to honestly describe the level of his symptoms and the impact of those symptoms upon his life, this compounded the difficulty which the plaintiff had of persuading me that the consequence of the plaintiff’s impairment are such as to constitute a serious injury.
(ii) I should not be satisfied that the plaintiff’s injury has stabilised, in that the evidence suggests that there will be continued recovery of function and amelioration of symptoms.
(iii) Even in the event that I were to take the view that the plaintiff’s injury has stabilised, the consequences of the injury are not so severe that they satisfy the criteria established by the Act for constituting a serious injury.
(iv) The plaintiff presented with a combination of organically generated and non-organically generated symptoms and the evidence was such that it did not allow me to determine the dividing point between those symptoms. Further, that even if I were able to determine the dividing point, the plaintiff’s truly organic symptoms would not satisfy the serious injury test as laid down by the Act.
(v) The fact that the plaintiff is not able to satisfy the requirements of the Act with respect to economic loss should lead me to the conclusion that in the circumstances of the present case the pain and suffering consequences of the plaintiff’s injury are not “at least very considerable”.[31]
[31] Sambul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
49 I find it convenient in the course of expressing my Reasons for Judgment in the case to deal separately with each of the submissions made on behalf of the defendant:
Disentangling the Organic from the Non-Organic Symptoms
50 I am satisfied, on the balance of probabilities, that emotional factors, if they are present in the plaintiff’s presentation, are not playing a significant part in augmenting the symptoms which he is presenting. The balance of the evidence supports this proposition. In particular, I am of the opinion that the plaintiff’s treating doctor is best placed to express an opinion upon this issue, having regard to the period during which he managed the plaintiff’s condition. Taking into account his opinion, together with that of Mr Henderson;[32] Dr Castle[33] and Mr Owen Deacon,[34] I do not find that the plaintiff’s level of symptoms is influenced to any significant degree by non-organic factors.
The Reliability of the Plaintiff as a Witness
[32] Who did not believe the plaintiff suffered from a chronic pain syndrome.
[33] Who made no comment as to the presence of pain amplification in the plaintiff’s presentation.
[34] Who made no comment as to the presence of any significant non-organic factors in the plaintiff’s presentation.
51 The plaintiff impressed me as an unsophisticated person who was doing his best to give truthful answers to the questions put to him both in examination- in-chief and in cross-examination. I accept the plaintiff’s evidence as to the effect which his injury has had upon him. The fact that the plaintiff has returned to work and is undertaking duties which are not ideal having regard to his symptoms, reinforces my assessment of the plaintiff as a person who is not exaggerating his symptomology and is doing his best to accommodate the effect of his injury upon his life and lifestyle.[35]
Has the Plaintiff’s Injury Stabilised?
[35] On this issue, contrary to the submission put to me on behalf of the defendant, I accept Dr Castle, in his report dated 26 November 2008, as expressing the opinion that the activities required of the plaintiff in his present employment are most probably beyond his capacities, reinforces the opinion I formed to which I have referred to above and previously in the course of these Reasons for Judgment.
52 In determining this issue I am most assisted by the opinions of the doctors who have seen the plaintiff recently as I consider those doctors best placed to assist me in undertaking the task which I am required to perform, namely to assess the plaintiff’s recovery from his injury and surgery at this time and form an opinion as to his prognosis.[36]
[36] These doctors are Dr Castle, who examined the plaintiff on 26 November 2008; Dr Woodward, who last examined the plaintiff on 17 February 2009; Mr Deacon, who examined the plaintiff on 24 January 2009 and Mr Jones, who examined the plaintiff on 22 January 2009.
53 The period of four years and nine months has now elapsed since the plaintiff suffered the injury the subject of this application. Whilst initially Dr Patel was confident that the surgery undertaken by him on 4 March 2005 would result in a recovery, it is clear that this did not eventuate, Mr Henderson having been required to perform further surgery twelve months later. Although some fifteen months after undertaking that surgery Mr Henderson expressed the opinion that the plaintiff’s condition would resolve over time, the plaintiff continues to present with symptoms which are a little different in severity or in the restrictions which they impose upon his life when compared with the symptoms with which the plaintiff first presented to Mr Henderson in August 2005. Whilst Mr Deacon clearly took the view that there would be some gradual improvement in the plaintiff’s symptoms,[37] Dr Woodard expressed the view that the plaintiff’s restrictions would continue on a permanent basis. I interpret Mr Jones in his most recent report[38] and Dr Castle to be expressing opinions similar to that of Dr Woodard.
[37] PCB 95
[38] Whilst in his initial report Mr Jones spoke of the prospect of improvement in the plaintiff’s condition, in his subsequent report he opined that it was unlikely that there would be further deterioration. I interpret the change in his analysis to be an acceptance by Mr Jones that the plaintiff’s condition had stabilised.
54 On balance, taking into account all the evidence before me, I am satisfied that the plaintiff’s condition has stabilised and that there is unlikely to be any significant improvement in the function of his ankle.
The Relevance of the Plaintiff’s Employment
55 I accept that the fact that the plaintiff is presently able to engage in full-time employment is a matter which I should take into account in assessing the consequences of the plaintiff’s impairment upon him. Accepting as I do however the plaintiff’s evidence that he has difficulty performing his present duties by reason of the presence of pain in his ankle, and combining that finding with the opinion of the occupational physician, Dr Castle, which questioned the plaintiff’s ability to continue to manage his present employment, I am not persuaded that in the circumstances of the present case the plaintiff’s ability to engage in full-time employment should influence, to any significant degree, my determination of the issue as to whether the plaintiff has suffered a serious injury pursuant to the provisions of the Act.
Consequences of the Plaintiff’s injury
56 For the reasons previously outlined I accept the plaintiff’s description of the effect of his injury upon his life and lifestyle. I am cognisant of the fact that the plaintiff’s impairment (affecting as it does his ability to stand and walk) is such that it has an adverse impact upon a myriad of activities of daily life which involve the use of the plaintiff’s right foot for other than relatively brief periods of time. In my opinion the consequences to the plaintiff’s life by reason of the impairment of the function of his right foot, including as they do the matters to which I have referred to previously in these Reasons for Judgment, and in particular, the considerable restrictions described by the plaintiff upon him in his ability to walk, play sport and stand for any length of time and engage in unrestricted employment without symptoms of pain, are such that they constitute an impairment which satisfies the description of being “at least very considerable” and I make that finding after having made the relevant comparison which I am required to do pursuant to the statutory scheme.
Conclusion
57 By reason of the foregoing reasons and findings, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant on 26 May 2004.
58 After discussion with the parties, I will pronounce formal orders and will deal with the question of costs.
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