Storto v DJW Management Pty Ltd
[2015] VCC 1759
•7 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03516
| ANDREW NICHOLAS STORTO | Plaintiff |
| v | |
| DJW MANAGEMENT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 October 2015 | |
DATE OF JUDGMENT: | 7 December 2015 | |
CASE MAY BE CITED AS: | Storto v DJW Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1759 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – disfigurement – injury to left lower limb – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering v McKenzie [2014] VSCA 67; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Baranadurage v Waverley Forklifts Pty Ltd [2013] VSCA 307; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Transport Accident Commission v Garcia [2015] VSCA 225; Baker v Transport Accident [1997] 1 VR 622
Judgment:Applications dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D C Dealehr | Nowicki Carbone |
| For the Defendant | Mr B R McKenzie | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 20 October 2009 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) and (b) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
…
(b) permanent serious disfigurement.”
4 The body function relied upon in this case is the left lower limb. The plaintiff also brings an application for permanent disfigurement to his left lower limb.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. His partner, Stephanie Kyriacou, also swore an affidavit in October 2015. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged twenty-nine, having been born in November 1986. He currently resides with Stephanie, his partner of two-and-a-half years.
14 Having completed VCE, the plaintiff then obtained cooking qualifications and worked in hospitality until 2007.
15 On or about 13 October 2008, the plaintiff commenced employment with the defendant as a leading labourer. He then worked as a leading hand.
16 The defendant was predominantly involved in installing guard rail safety systems. As part of his job, the plaintiff was often required to work on multiple sites per day. His duties involved assembling and dismantling guard rail safety systems on the gutter line of domestic homes under construction.
17 On the said date, whilst attending a residential home in Point Cook, the plaintiff suffered injury when the top pole of a temporary fence crashed to the ground, striking the back of his left leg, severely lacerating it (“the incident”).
Treatment
18 Following the incident, the plaintiff was driven to Werribee Hospital. He was then transferred to Sunshine Hospital, where he was admitted for surgery (“the surgery”) and remained an inpatient for about a week.
19 The surgery involved re-attaching the skin, muscles and nerves which had been ripped from the plaintiff’s leg in the incident. He also underwent skin grafts to the affected area. The plaintiff’s calf was repaired with skin flaps and his severed muscles.
20 Post-surgery, treatment consisted mainly of leg elevation and regular dressings.
21 After discharge from hospital, for the next two months, the plaintiff was visited regularly at home by nurses who dressed his calf. During that time, he gradually mobilised with the aid of crutches.
22 Staples were removed from the plaintiff’s leg at Sunshine Hospital in November 2009.
23 Thereafter, the plaintiff first saw his general practitioner, Dr Rose, in January 2010. She referred him to physiotherapist, Tony Flanagan, whom he first saw later that month. Regular treatment involved muscle manipulation and a strengthening regime. Initially, attendances were weekly but then monthly or so.
24 In March 2010, Dr Rose noted the plaintiff was progressing well with regular physiotherapy.
25 On 4 May 2010, the plaintiff told Dr Rose he had started a new job which was less labour intensive. He was working 30 to 50 hours a week. However, he advised her she was still experiencing left calf pain and tightness, accompanied by regular and sharp shooting pains. She suggested he use magnesium to help relax his muscles and massage his calf with cream.
26 In June 2010, the plaintiff saw Dr Rose complaining of stiffness in his left thigh, and he was experiencing regular sharp spasms. She advised ongoing physiotherapy.
27 Dr McHenry, at the same clinic, referred the plaintiff to a neurologist, Dr Saul Mullen, whom the plaintiff first saw in November 2010. He thought the most important thing for the plaintiff to do was TO stop forcefully inverting the ankle and provide it with general support. He advised the plaintiff to use mid-calf lace-up boots with some ankle support. He also told him that he did not realistically believe nerve functioning would return to normal.
28 In March 2011, Dr Mullen noted the left leg nerve had continued to deteriorate, giving the plaintiff pain. Dr Mullen thought further surgery may be necessary.
29 When he swore his first affidavit in March 2014, the plaintiff was then seeing general practitioner, Dr Carol Chaivachirasak, regularly and he was also seeing Mr Flanagan a few times a year. The plaintiff believed he saw Mr Flanagan more than twice for physiotherapy.[3] He was pretty confident he had seen him after June 2010 a few times.
[3]Transcript (“T”) 52
30 Following the surgery, the plaintiff was reliant on Nurofen, Panadeine Forte and morphine. As of March 2014, he did not take medication and he had remedial deep tissue massage. Because of his sensitivity to medication, having had acute kidney dysfunction, the plaintiff had been advised not to take anything with Ibuprofen which affected his kidneys.
31 On occasion, Dr Chaivachirasak has prescribed painkillers but the plaintiff very rarely consistently take them.
32 Dr Mullen prescribes Sinemet for the plaintiff’s nerve condition which has been diagnosed as restless leg syndrome. He also prescribed Codeine for a short time to test whether the nerve symptoms related to the syndrome.
33 At other times, the plaintiff has taken Panadol and Panadeine Forte to manage pain. He does not want to become too reliant on heavier medication because it is addictive and not good for him and his body does not respond well to it.[4]
[4]T48
34 The plaintiff has been seeing Dr Mullen regularly since about November 2010. He has also seen him for consequential back pain which the plaintiff attributes to the incident injury.
35 In February-March 2014, the plaintiff was referred by his general practitioner for an MRI scan of his low back. He was advised it did not show any significant disc injury, and ongoing physiotherapy was recommended.
36 Recently, the plaintiff started seeing physiotherapist, Tamsen Osbourne, at the Ivanhoe Clinic. He attends every two to three weeks. She continues to perform nerve stretching, mainly to the left leg, and also gives the plaintiff low back treatment. He has been given a series of exercises which he attempts to follow most days.
37 The plaintiff continues to see a masseuse for remedial deep massage on an irregular basis.
38 In 2015, the plaintiff attended Mr Sharma, an occupational therapist, on two occasions for advice on how to manage his injury, lifestyle and work activities.
39 The plaintiff continues to attend Dr Chaivachirasak regularly. She continues to encourage him to attend physiotherapy and, on occasions, has also prescribed painkillers.
40 The plaintiff last Dr Chaivachirasak for his leg condition about a month ago. She might have referred him to Dr Mullen because he was asking her advice about the medication. He has seen Dr Mullen in the last month or so. At that consultation, the plaintiff was not referred for any testing or further treatment.[5]
[5]T53
41 The plaintiff saw Ms Toussaint, chiropractor, in early 2015. He stopped seeing her the chiropractor because he has found it better to self-manage his pain and recovery with physiotherapy.
Pain
42 At the time he swore his first affidavit in March 2014, the plaintiff then suffered from constant ongoing left leg pain with accompanying stiffness, weakness and regular sharp spasm. He also had occasional numbness over the lateral side of his left foot going down to the sole of his foot, as well as reduced sensation in his left calf. He found it difficult to stand for prolonged periods, as putting his weight on his leg caused it to ache and he experienced shooting sharp pain.
43 The plaintiff continues to suffer ongoing constant left leg pain. It is best described as a dull aching pain. He also has been diagnosed with restless leg syndrome, particularly in the left leg, which has been treated. The plaintiff demonstrated this scribed this twitching sensation in his calf (fasciculations) in the witness box.[6]
[6]T49
44 It is very difficult for the plaintiff to get to sleep, He is very restless and moves a lot. When he is still, he just feels a burning sensation of pain and it keeps him awake from time to time. The plaintiff disagreed with Dr Mullen’s description that it was more of a case of the plaintiff’s leg moving rather than this leg being in pain.[7]
[7]T54
45 That condition is more prominent in the left leg but the plaintiff agreed he also had a problem with his right leg. Sometimes there are vibrations or twitching on the right. Although it might have been picked up on testing, he could not really feel this sensation in his upper body.[8]
[8]T50
Activities
46 In his 2014 affidavit, the plaintiff deposed that his left leg continued to hamper his lifestyle, work, social and recreational activities.
47 Pre-injury, the plaintiff prided himself on maintaining an active and fit lifestyle, regularly attending the gym, swimming, running walking and hiking. Since then, however, he found those activities unmanageable, predominantly because weight bearing exacerbated his pain. Whilst he still tried to maintain fitness levels by exercising at least four to five days a week, the plaintiff now fatigued easily and was not able to function to his full pre-injury capacity.
48 The plaintiff did not run as frequently as he used to and experienced fatigue and soreness for days after exercising, as well as immediate cramping which prevented him from pushing himself fully as he did previously.
49 The plaintiff was still running when he swore his first affidavit in March 2014, but not very regularly.[9]
[9]T40
50 Prior to the incident, the plaintiff was heavily involved in and enjoyed sports regularly on a recreational basis with his friends, such as basketball and soccer. He played socially to maintain his fitness, add to his self-development and to aspire to personal goals.
51 While the plaintiff still tried to participate in sports, he did so infrequently, as his ankle was constantly strapped to prevent inversion and eversion. When he pushed himself, he subsequently experienced fatigue and soreness for many days thereafter.
52 In his recent affidavit, the plaintiff deposed that he continues to exercise and go to the gym. If he does any gym work where he has to stand for prolonged periods, his left leg becomes very painful and starts to tremble. He has to be very careful, with too many activities placing stress on his left leg.
53 The plaintiff continues to do exercises provided by his physiotherapist. He tends to avoid ones which require his left leg to take a lot of weight. He also avoids performing activities such as running or jogging, as he finds his left leg becomes very painful, trembles and becomes cramped, and he feels very uncomfortable, particularly around the ankle region.
54 Immediately after the surgery, the plaintiff tried to return to running and jogging. However, this was short lived, as he found the consequences were a lot of extra pain and fatigue in his left leg, together with tremors.
55 Cross-examination focussed to a large extent on the plaintiff’s level of physical activity since the incident.
56 The plaintiff confirmed that he had tried to maintain a fairly active lifestyle and do what he was doing before the injury.
57 Two or three years before his injury, the plaintiff played indoor soccer. It was more of a recreation and he filled in for friends. He last played indoor soccer in about 2012.[10]
[10]T30
58 The plaintiff played in a work basketball team a year or so before his injury but has not played since.[11]
[11]T29
59 Post incident, the plaintiff could probably only play a half game of soccer and did not play regularly.[12] Before he went to Europe, he tried to play a season with Ivanhoe Old Boys. Pre incident, the plaintiff did a lot of filling in in an indoor soccer team put together by his family.
[12]T64
60 The plaintiff had attempted indoor soccer since the incident. He did not do too badly. There were frequent breaks when he could substitute. He was getting a lot of ankle problems and his foot was causing him pain and it would take a bit of time to recover.[13]
[13]T66
61 The plaintiff still goes to the gym four or five times every week. It is situated at his workplace. Before the work gym was available, the plaintiff did light stretching. He now works quite a lot on his upper body and his core.[14]
[14]T32
62 Pre-injury, the plaintiff did quite a lot of running and he had also tried leg weights. The plaintiff was a member of the YMCA gym when he was a teenager. Pre-incident, he had some dumbbells at home.[15]
[15]T30
63 Pre-injury, the plaintiff was not too much of a swimmer. He did laps every few weeks with friends at Ivanhoe Pool.[16]
[16]T33
64 In cross examination, the plaintiff agreed he was at ‘Tough Mudder’ in 2013. He was wearing a t‑shirt from this competition when he saw Dr Mullen in August 2013.
65 The plaintiff agreed that when he participated in that competition, he had crawled under electrified fences, almost like army training. “Tough Mudder” involved running through the bush and rough terrain, crawling and jumping. It was very hard going. The plaintiff participated with a group of friends. They were able to go at their own pace over the 18 to 20 kilometre courses. It took most part of the day. The plaintiff was involved in this activity at a time in his life when he was frequently trying to run and increase his fitness level.[17]
[17]T35
66 The plaintiff thought he may have first done ‘Tough Mudder’ in 2012 before he went to Europe. He did it again in Perth in 2013.[18] When it was suggested he would not have been able to participate in this competition with the level of pain he complained of, he said he had been trying to do the right thing. He had been going to the physiotherapist and seeing a neurologist. They advised him to persist with physical activity, so he felt he wanted to push his boundaries and see what he was capable of. It was quite painful a lot of the time and the plaintiff “suffered quite a lot after that in terms of pain management.” [19]
[18]T36
[19]T37
67 The plaintiff agreed he was training, running 6 to 10 kilometres multiple times a week for Tough Mudder in 2013; maybe not that frequently, but that could have been the sort of training he did as Dr Mullen noted.[20]
[20]T38
68 The plaintiff was also taken to the history taken by Mr Goldwasser in September 2013 that he was running 6 to 10 kilometres twice a week. It was accurate as Mr Goldwasser noted that he was aware of discomfort in his left leg, more noticeable the next day when he had recovered. It was not a long-term thing for the plaintiff. He could not maintain that level of running training for long.[21]
[21]T38
69 The plaintiff was not really that fit leading up to the 2013 Tough Mudder. He just came back from Europe and threw himself into it. It was more of a kind of “gag” with his friends. They took the whole day to do it.[22]
[22]T40
70 The plaintiff has not run much at all this year. He has tried a couple of times but it has caused too many hassles. He does not have any intention of doing too much running the rest of this year because it is too hard to manage the pain.
71 There were a couple of activities in ‘Touch Mudder’ the plaintiff could not do.[23] Climbing was pretty uncomfortable, as was carrying logs. He could do the activities at his own pace. It took more than three hours to complete the course on both occasions.[24]
[23]T66
[24]T67
72 On the second occasion, there were a few more limitations. The plaintiff walked quite a lot. He did not have to run or jog all the time. He could go at his own pace and he dodged some of the obstacles.[25]
[25]T68
73 After both competitions, the plaintiff’s training was pretty limited and he probably did not get back to any exercise for quite a while because he would have been in a lot of pain.[26]
[26]T69
74 The plaintiff just wanted to be normal and positive and persevere in assisting his rehabilitation, that is why he did ‘Tough Mudder’.[27]
[27]T72
75 The plaintiff enjoyed walking and hiking pre-injury, but has not done much hiking since. He has not been for a walk for a long time. Probably a couple of months ago he walked his partner’s dog at a local park.
76 Ms Toussaint, the plaintiff’s chiropractor had the history of a heightening of leg symptoms after a fall of less than one metre. The plaintiff explained he went on a trampoline last New Year’s Eve, having had a bit to drink. When getting off, he landed directly on his feet and then hit his back on the aluminium side of the trampoline.[28]
[28]T44
77 When it was suggested that trampolining meant he did not have much problem with his foot, the plaintiff said at the end of the day, he always tries to be normal with things and always gives everything a go. It does not mean it does not cause him a lot of pain to do so. He was just trying to enjoy himself and be normal.[29]
[29]T45
Domestic activities
78 The plaintiff moved house in 2014. He then had to maintain the entire household on his own, attending to general maintenance and household and gardening duties, with shopping, cleaning and performing odd jobs. Since the injury, his ability to perform such tasks had become limited and decreased due to pain and fatigue. Thus, at that time, those tasks were neglected and often took him longer to perform, which was frustrating and draining for him.
79 The plaintiff is now living with his partner, Stephanie. When he saw Mr Goldwasser in 2013, the plaintiff was living with his mother and was doing household tasks.[30]
[30]T55
80 The plaintiff now does work around the house and gives housework a go. He does his share of cleaning duties, but does not really need to do any house maintenance.[31]
[31]T56
81 At the moment the plaintiff’s social life has taken a little bit of a backseat and he spends a lot of time at home.[32] His social life is like a normal person with a job, going to the usual places a young person does. If he is feeling tired, he does not go out. He is sometimes not well and feels tired.
[32]T32
82 The plaintiff’s injury has had a big impact on his emotional wellbeing. He continues to suffer from ongoing pain on a daily basis, which tends to wear him down emotionally.
Work
83 Post injury, the plaintiff was unable to work for about three months. He then returned to work in January 2010 on light office duties. He worked in that capacity for a few weeks until he moved to modified duties in late January when he was again assigned to perform activities such as working on roofs.
84 The plaintiff confirmed after an early period of modified duties, he returned to normal duties with the defendant. There was only a brief time of office duties at the start of January, as he was too restless and could not sit for too long.[33] He then had a bit of a break and went back to light moderate duties, basically labouring and carrying materials around. It was not roof work. He took it easy and had breaks when necessary. That would have been for about a month. He was progressing okay, it was causing a lot of pain but he slowly persevered.[34]
[33]T23
[34]T24
85 In about mid-2010, the plaintiff started work with a new employer, Buildsafe Pty Ltd (“his current employer”) as a leading hand installer. That job involved similar work to that performed with the defendant but it attracted the plaintiff because of the higher regard for safety, the level of training, and the wider range of potential duties which the plaintiff found more interesting and mentally stimulating.
86 When the plaintiff obtained the job with the current employer, he did not have any pre-employment medical. He warned his employer of his injury. He obtained that job in about mid-2010, less than a year after this injury. He took on the duties that he had previously been doing with the defendant before the incident.[35] He did not tell them he needed any special restriction. He worked on a casual basis with similar hours. He confirmed he worked 30 to 50 hours a week without any medical restrictions.
[35]T15
87 The plaintiff was running his own truck, could work at his own pace and he was very pleased with how he was working. He worked and rested as much as he wanted to.[36]
[36]T16
88 The job involved driving to various sites during the day and installing some of the scaffolds himself with either a team of two or three. There was driving between jobs. This was similar work to what he had done with the defendant.
89 There were instances when the plaintiff was offered more than 50 hours a week and he worked those hours as he needed the extra money.
90 The plaintiff progressed into a sales representative role that involved measuring and estimating in relation to domestic construction and renovation jobs.[37] He started in that role on 20 January 2012.
[37]T17
91 Whilst that role is largely non manual, there have been times when he has do some manual work such as lifting building materials and assisting in implementing and installing safety systems for scaffolding.
92 The sales job was stressful at times, and it was not necessarily such an easy transition. The plaintiff agreed he had been a success in that role.[38] He confirmed his earnings of $90,563 in the 2014-5 financial year.[39]
[38]T18
[39]T19, 2014-5 taxation return, occupation “scaffolder”
93 The plaintiff probably went to full time at the start of 2014 when he obtained the sales job, and he has continued in that role. He agreed his payslips for this year indicated he had a total of 24 hours’ sick leave for unrelated conditions.[40] He did not need to take any time off because of his leg.
[40]T21
94 Some days, the plaintiff works 8 to 12hours. This is not overtime. He did what he had to do in the office. He also had to drive to suburban homes all around Melbourne. Work is allocated according to where sales representatives live.[41] The plaintiff does not do country driving. When he drives, his calf cramps up when he is using his clutch foot. He took a break if his leg was hurting when working as a labourer and in his present job as a sales representative.[42]
[41]T22
[42]T63
95 The plaintiff continues to wear high-top boots to support his ankle and his calf whilst at work.
96 The plaintiff believes his injury has also restricted his employment opportunities and sees his future employment as being confined to non-manual jobs. He is not fit to do his old job and is not able to work on a full-time basis performing installation labouring work.
Travel
97 The plaintiff took leave from his work and went to Europe in 2012/2013 for a seven-month trip. He moved around with a backpack, taking a variety of modes of travel. It was a part of his life when he needed to have a lot of down time and relax and get away from reality a little bit.[43]
[43]T25
98 The plaintiff did not see all he wanted to when he was overseas because he was fatigued. He could not do some of the things his friends accompanying him there were able to do such as the Cinque Terre long walk. He attempted to do one of the towns but had to quite frequently stop as it was pretty painful on his heel and ankle.[44]
[44]T64
99 The plaintiff probably had the odd massage here and there whilst overseas, but did not need to see a doctor.[45]
[45]T52
100 Recently, the plaintiff we went to Tasmania for a holiday. Whilst there, he did not do any sporting activities or bushwalking. He went to Palm Cove in Queensland at the end of last year. During that holiday, he went to the Barrier Reef and did some snorkelling. He did not wear flippers because it was too uncomfortable. He went for little swims around the boat.[46]
[46]T27
Scarring
101 The plaintiff has been left with a visible scar on his left calf, as well as wasting, with a 3-centimetre difference in the circumference to the right. As a result, he often feels self-conscious.
102 Since the surgery, the plaintiff has increased sensitivity in his skin. If it is accidentally bumped or touched, the scar tissue is painful and he experiences a corresponding tingling sensation in the affected area. When pressure is applied to the central portion of the scar, which has a dimpled appearance, he experiences an altered sensation, as well as a tingling numbness in the area. As a result, he is often self-conscious and he avoids social settings or situations where his leg is put in a vulnerable position.
103 Since the incident and the surgery, the plaintiff now covers up his leg for support and wears high-top boots to support his ankle and calf. Without these, his leg invariably buckles and he has pain. The types of clothing and footwear he can wear are limited accordingly. Still being young, he feels self-conscious and that his youth has been cut short in its prime.
104 The plaintiff continues to suffer from muscle definition problems in his leg and it appears as though his calf muscle has dropped and has different definition to the right leg. He has also noticed his left calf seems to have dropped and the muscle has worn away. The skin is particularly tight and worn away at the site of the scar tissue.
105 The plaintiff has also noticed the muscle has become caught up in the scar tissue and when he flexes his calf, it causes an irregular bump in the skin at the scar site.
106 The plaintiff has also become self-conscious about the scars. He prefers to wear long pants and in the warmer weather when he wears shorts, he is always self-conscious about people observing his scar, in particular, people close to him.
107 The plaintiff confirmed he typically wears long pants and he has worn shorts in the hot weather. He was self-conscious about his family and friends close to him and had copped a bit of flak from his sister.[47]
[47]T58
Scar viewing
108 The plaintiff rolled up his trouser leg and showed his scar to the Court. He pointed to an indentation at the bottom of the scar. He experienced a burning-like pain in that area. That sensation is constant.
109 Occasionally, the plaintiff suffers pain that goes down from the bottom part of the scar into his ankle and foot. This is more like a sharp pain. It happens quite regularly after he has been standing for a long time or when manipulated in a certain way. It is very numb. There is tingling going down towards his ankle into his foot.
110 The skin is scrunched up and causes a sharp stabbing pain. When the plaintiff knocks it, that pain goes down to his foot.[48] When he puts pressure on his toes and he notices a nervy feeling going down into his foot. The area around the Achilles can become quite tired quite often, and there is usually a dull, aching pain in that area.
[48]T10
111 Sometimes the plaintiff has muscle fasciculations, like a nervous twitch. It tends to happen when his legs are overworked.
112 There is muscle wasting on the left compared to the right in the area of the indentation down towards the bottom of the calf.[49]
[49]T13
The back
113 The plaintiff agreed he had some pain in his back, which was more nerve associated. The pain starts in his leg and travels up to his back.[50]
[50]T41
114 In recent times, the plaintiff has been treated by Tamsen Osbourne and Nadine Toussaint.[51] He had spoken to Dr Mullen and his general practitioner about some back pain. The plaintiff asked Ms Toussaint for a second opinion prior to seeing her on 3 January 2015.
[51]T41
115 The plaintiff agreed he told Ms Toussaint about left-sided lower back pain with associated paraesthesia or pins and needles and a deep aching pain on that side, extending to the posterior thigh. She noted the plaintiff’s symptoms are aggravated by prolonged sitting and that he told her he had had these low back symptoms since the incident.
116 The plaintiff was not sure of the date of onset of his back symptoms. He believed they started to come on only in the last couple of years, so not straight after the incident.[52]
[52]T42
117 Ms Osbourne thought the plaintiff still needed physiotherapy and he sees her currently every two to three weeks.[53] The insurer is now paying for that treatment. The plaintiff believes that her treatment is mainly due to his leg.[54]
[53]T46
[54]T47
118 Sitting down for prolonged periods does not make the plaintiff’s back painful so much. It is just a moment for his body has to catch up with all the pain he is experiencing and he constantly feels the burning pain through his calf and hamstring.[55]
[55]T60
119 Dr Mullen may have reported in June this year that the plaintiff was having a lot of back pain but the plaintiff meant his pain comes and goes. His main concerns are not his back. He can manage his back, that is not the extent of most his back pain. Recently, his back pain has become very manageable with physiotherapy.[56]
[56]T60
Wage details
120 Payslips from the current employer indicated that so far this year, the plaintiff has had a total of 16 hours’ sick pay. The plaintiff did not attribute these absences to his left leg injury. His gross weekly wage was usually $1,462.50.
Lay evidence
121 The plaintiff’s de facto partner, Stephanie Kyriacou, swore an affidavit in October 2015. She resides with the plaintiff and they have been together for about two-and-a-half years. She currently works as a primary school teacher.
122 On a daily basis, she sees how the plaintiff’s injuries impact on his life. He frequently complains of ongoing constant pain in his left leg, more often at the end of the day.
123 When going to bed, she observes the plaintiff having difficulty going to sleep due to his pain and, on occasions, he wakes up during the night. The following morning he looks tired. Sometimes when in bed, she sees his leg spasm.
124 Ms Kyriacou has observed the plaintiff to be self-conscious about his scar, particularly when it is exposed. She can see he feels uncomfortable wearing shorts when he is with his friends and family, and prefers long pants.
125 The plaintiff is limited in his exercise due to his injury and pain. He does stretches and movements to help strengthen his leg but will not do any heavy weights that may aggravate his left leg or do any strenuous physical activity. At times, he has told her how much he wants to go for a run. She can see his physical limitations bother him and he becomes frustrated.
126 The plaintiff has told her how much he enjoyed soccer and basketball prior to his work injury. She does not see him engage in those recreational activities. He now struggles to be the energetic and active person he once was and she can see this breaks him down mentally.
127 Ms Kyriacou observes the plaintiff avoid manual work, as it places a lot stress and pressure on his leg. When they moved house not long ago, the plaintiff had difficulty lifting household furniture and he filled boxes. They had assistance from other family members in the move.
128 Since moving, the plaintiff has avoided doing much by way of gardening due to his pain and limitations. Certain activities take him a long time, as he requires frequent breaks. He does things in small doses. When they do the grocery shopping together, they usually rely on a trolley.
129 The plaintiff is no longer able to drive for long periods due to his ongoing symptoms. On a recent trip to Tasmania, they drove from the airport to the hotel, about a two to three hour-drive, during which the plaintiff needed to stop the car to stretch his legs.
130 Ms Kyriacou is aware the plaintiff’s work-related injuries have restricted his work capacity. Despite his change in work roles, she has observed him to become stressed in his current role because he is less active and has targets to meet. It is different to his old job and she can see he misses physical labour and exerting physical energy.
131 Ms Kyriacou confirmed the plaintiff wears high-top boots to support his ankle and calf at work.
132 Ms Kyriacou has observed the plaintiff take pain medication for ongoing symptoms. More recently, there has been an increase in medication due to his left leg pain. Before going to bed, she sees him take medication to ease his nerve pain in his lower back and, in the morning, he complains of feeling groggy.
133 The plaintiff’s emotional wellbeing has been affected by his injury. He has become more irritable and short tempered and she observes him to look sad at times. She can see him become frustrated that he can no longer do the things he once did or do things at the same pace.
The Plaintiff’s treaters
134 Dr Rose first saw the plaintiff on 5 January 2010. He was then walking unaided with mild discomfort and his wound was healed. There was significant wasting of the left calf. The plaintiff was due to return to light duties on 11 January.
135 Dr Rose referred the plaintiff to Tony Flanagan, physiotherapist, in January 2010 to assist in restoring left calf muscle function. In that referral, Dr Rose noted the plaintiff started modified duties on 11 January 2010 with no roofing, no ladders and no carrying of anything over 10 kilograms.
136 On 1 March 2010, the plaintiff he had some good and some bad days since returning to work. He was back on full time duties working back on the roof but not if he was having a bad day.
137 On 4 May 2010, the plaintiff Dr Rose that he had a new job and was working as a casual 30 to 50 hours a week with a less labour-intensive job. His left calf was sore and tight, with some shooting pains after a day at work, and she suggested he use magnesium and some gel. She noted the plaintiff had had three attempts at playing soccer but he was very sore the next day.
138 On the last attendance in June 2010, the plaintiff complained of his left thigh feeling stiff, and Dr Rose referred him to Mr Flanagan for physiotherapy.
139 Dr Rose felt the plaintiff had had a good outcome considering the severity of his injury. He was working full time and he was playing soccer. The physiotherapist had advised the plaintiff to continue with calf strengthening exercises and his walk/run routine.
140 Dr Rose noted her colleague, Dr McHenry, referred the plaintiff to a neurologist, and now her colleague, Dr Chaivachirasak, sees the plaintiff.
141 Dr Chaivachirasak reported in May 2015.
142 The plaintiff consulted with her on 7 April and 26 May 2015 regarding symptoms which she was not certain were related to his leg injury and she referred him back to Dr Mullen for an opinion.
143 Mr Flanagan wrote to Dr Rose in January 2010 thanking her for the referral.
144 On examination, the plaintiff had marked wasting of his left calf with a 3‑ centimetre difference in circumference at the mid-calf level. He had mild discomfort on calf stretching but his range seemed to be reasonable.
145 Mr Flanagan thought the plaintiff had residual calf and lower limb weakness secondary to his calf injury. He instructed the plaintiff in gait retraining and advised him regarding calf stretching and calf strengthening exercises.
146 Mr Flanagan wrote to Dr Rose in June 2010. The plaintiff was then back working on a casual basis with no restriction. He said his left leg felt a bit weak and he had some occasional shooting pain in the left ankle.
147 Mr Flanagan reported that clinically, the plaintiff had a full range of lumbar movements, slump testing was negative and he was able to hop on his left foot almost to the same level as his unaffected right leg.
148 Mr Flanagan thought the plaintiff had achieved a good outcome for the severity of his injury. He advised him to continue with calf exercises, more to build his strength, by a walk/run routine.
149 The plaintiff first saw Dr Mullen, neurologist, in November 2010 on referral from his general practitioner.
150 Dr Mullen described the plaintiff’s scar as quite impressive, a half-moon scar, about 3 centimetres above the Achilles and extending towards both malleoli.
151 The issue Dr Mullen then noted was that the plaintiff still had some numbness over the lateral foot and occasional pains in that region. Particularly when doing activities like climbing a ladder, he suddenly experienced a nasty pain shooting into the lateral foot, which lasted for a minute or so.
152 Dr Mullen described the scar as clearly over the upper part of the tarsal tunnel, extending down onto the lateral part thereof. There was reduced sensation through distribution of the lateral plantar nerve. He thought it sounded like a lateral plantar nerve palsy due to injury.
153 Dr Mullen considered it at least conceivable there were surgical options that would involve diving back into the scar and that would have significant risks. Whilst medication may have some role, realistically, Dr Mullen thought the most important thing was to stop the plaintiff forcefully inverting his ankle and to generally support it. He suggested a set of mid-calf lace ups with some ankle support would probably remove the most annoying symptoms.
154 Dr Mullen saw the plaintiff again in March 2011. The plaintiff then advised that with high-topped lace-up work boots he was a little better at work in terms of his symptoms, with less discomfort when climbing ladders.
155 Dr Mullen noted the plaintiff tried to get back into sport which was a very good idea. His favourite sport was indoor soccer and it was difficult to play with his ankle strapped to stop the ankle moving. The plaintiff complained his symptoms were unsurprisingly worse after a soccer game.
156 Dr Mullen noted the fixed symptoms were not worsening and there was no sense that it was progressing. It was a little difficult to be sure whether secondary osteoarthritis was going to occur. He considered getting on with his life was the best thing for the plaintiff to do. If the nerve problem progressed and there were constant fixed symptoms, Dr Mullins thought surgery was worth considering.
157 Dr Mullen next saw the plaintiff in August 2013 when he presented with an asymmetry of strength and bulk in his calf along with fasciculations.
158 Dr Mullen noted the plaintiff had thrown himself back into physical pursuits with gusto. He was wearing a Tough Mudder t shirt. He had been running 6 to 10 kilometres multiple times a week and spending large amounts of time in the gym.
159 On examination, the plaintiff had less bulk in his left leg around the calf and reported sensory symptoms were better but his left leg was weaker than the right. The plaintiff had also noticed there were consistent fine fasciculations which he first noted in that affected left leg probably because he was guarding it, but he had also noticed in the right leg.
160 Dr Mullen noted that if anything, weakness had been improving over the previous eighteen months, as the plaintiff had been gradually strengthening the area, and in the end, the major issue was the fasciculations rather than the weakness.
161 On examination, there were clearly relatively mild fasciculations in the calf on the left, although there were a few on the right and even some in the triceps bilaterally. There was clearly some wasting in the calf but not in excess of what would be expected for quite a nasty muscular injury. There was no neurological weakness in the lower limb and there was no sensory alteration apart from changes in sensation of skin around the actual scarring. In fact, if anything, that sensory change was better than when last seen. He thought there was probably benign fasciculations syndrome with injury related muscle wasting rather than anything more sinister.
162 Dr Mullen re-examined the plaintiff in March 2014 when tests pretty much conclusively diagnosed benign fasciculation syndrome. The nerve conduction study showed fasciculations not just in the slightly wasted muscle related to the injury, but all the other lower limb muscles sampled. Dr Mullen noted the condition was relatively common and is not a sign of any particular issue. It is benign, as the name sounded.
163 The MRI scan showed a completely normal lumbosacral spine.
164 Dr Mullen last saw the plaintiff in June 2015. He reported, unusual as it sounds, he thought the plaintiff was describing restless leg syndrome.
165 Dr Mullen noted the plaintiff had a peripheral nerve injury in his left foot and clearly, was having quite a lot of back pain managed by a physiotherapist. He thought the link between that back pain and the leg injury was tenuous.
166 Separately, the plaintiff had an unusual feeling in his left leg, mostly in the calf, but up to the hamstring, worse in the evening, which only occurred at rest. It was relieved on movement.
167 Dr Mullen noted the plaintiff also sounded like he probably had periodic leg movements of sleep, as he was waking up with an irritated partner, and waking up with the bed covers wrapped around his legs was a pretty normal phenomenon. It was quite a distracting thing at night, as the plaintiff was trying to get to sleep.
168 Dr Mullen noted the sensation was largely unilateral. The easiest way to diagnose restless leg syndrome was try the plaintiff on a little bit of codeine to see whether it settled the sensation. If the muscle pain disappeared with that medication, it could probably be concluded that it was restless leg syndrome and the plaintiff could be treated with some Sinemet.
169 Chiropractor, Nadine Toussaint, saw the plaintiff in January 2015. He then gave a history of left-side lower back pain with associated paraesthesia and a deep aching pain on the same side, extending to the posterior thigh.
170 The plaintiff stated these symptoms had been aggravating him since he had had an injury to his lower leg and were recently heightened after a fall of less than a metre.
171 Following examination, Ms Toussaint concluded the plaintiff had a chronic sacroiliac joint dysfunction concurrent with lumbar facet joint syndrome, piriformis syndrome and associated sciatica. She thought that may be the result of an altered movement pattern since the incident. She noted often when one area of the body was dysfunctional, the other joints and muscles reacted to compensate to the altered biomechanics.
172 Ms Toussaint highly recommended continuing a combined course of chiropractic treatment to correct the plaintiff’s joint dysfunction and enable optimum movement and posture.
173 The plaintiff attended Tamsen Osbourne, physiotherapist, in 2015, for treatment of his lower back pain, left posterior thigh and calf pain and tingling in his left buttock.
174 After the second examination, there was a provisional diagnosis of adherent nerve syndrome of the left sciatic and tibial nerves and perhaps the medial and lateral sural nerves, due to the calf injury. Ms Osbourne thought the prognosis was good and with stretches, massage and strengthening, the pain may be abolished.
175 Ms Osbourne thought the plaintiff was capable of doing all physical activities at work, depending on the amount thereof.
176 Ms Osbourne considered the plaintiff’s condition had certainly stabilised and the healing was complete but he needed advice and treatment currently to regain more flexibility and strength. She thought the plaintiff needed to be encouraged to use his calf as much as possible and as normally as possible. She did not think further investigations were required.
177 Mr Sushil Sharma, occupational therapist, assessed the plaintiff in June 2015 at the request of his general practitioner.
178 The plaintiff told him that having a competitive nature and always striving to better himself, it was discouraging that he could not run further distances or as frequently as he used to. It was discouraging that he had not run since the start of the year and he had become more aware of his injury when he began to try and push his fitness levels as he frequently used to. It upset him he had lost an amount of potential in his fitness levels.
179 The plaintiff advised that he had constant pain of 6 to 8 out of 10 in his ankle, generalised weakness in the left leg, tightening in the left calf muscle and reduced and painful movement. At times, his left leg shook quite considerably.
180 The plaintiff advised of difficulty driving, particularly a manual, difficulty standing or walking for a prolonged period, any pressure on the scar causing pain and discomfort, and difficulty sleeping.
181 Mr Sharma noted the plaintiff had been involved in pain management, active and passive mobilisation and a strengthening exercise program. Noting funding had been ceased, he thought he needed ongoing treatment for the above-mentioned symptoms and for safe and independent future employment.
Medico-legal examiners
182 The plaintiff was examined by plastic and hand surgeon, Mr Murray Stapleton, in January 2015.
183 Mr Stapleton noted the scar and graft on the back of the left leg were all very tender. If the plaintiff worked in a manual capacity on a building site, he would be worried that the area would be bumped or abraded. The plaintiff was aware the skin graft was more susceptible to injury and he dressed it to prevent the skin graft being exposed to excessive sunlight. It was uncomfortable for him in the region of the injury if he attempted to climb a ladder.
184 Mr Stapleton described a 12-centimetre scar running around the back of the lower calf on the left side. On the outer aspect of that scar was a 5 x 4-centimetre split skin graft. The donor site scar on the front of the left thigh had settled reasonably well and extended over an area of 11 x 4 centimetres.
185 Mr Stapleton described the injury as a deep laceration and skin loss over the back of the left leg. He did not think the plaintiff needed any treatment in the future, provided the graft was not injured. He noted the scars very much interfered with the plaintiff’s activities of daily living for obvious reasons and that was a permanent situation.
186 Mr Stapleton provided two colour photographs of the scar site and one of the skin graft site on the thigh.
187 The plaintiff was examined by Mr Kenneth Myers, vascular surgeon, in September 2015.
188 The plaintiff told him he did not like the appearance of the back of his leg. He complained of a dull ache around the back of the left calf and there were shooting pains which went into the outer side of the left foot. Any knock to the region caused a sharp pain. His leg tired with use. It was painful driving a car. There was weakness, for example if he were to squat. There was impaired sensation over the lateral aspect of the leg and foot below the area of injury.
189 The plaintiff told Professor Myers that before his injury he went running regularly and played soccer and that had been impossible to resume. However, he still did gym exercises including light leg exercises.
190 Professor Myers noted a 4-centimetre circular scar which was well healed. There appeared to be reduced sensation below it on the posterolateral aspect of the left leg and foot and the distribution of the sural nerve. There was normal para-dorsiflexion and plantar flexion of the left ankle and normal ankle movements with the hind foot. He noted there was a 2-centimetre measured decreased circumference of the left calf compared to the right because of muscle wasting.
191 The plaintiff indicated ongoing disability from being self-conscious about the appearance of the scar, having difficulty in wearing appropriate footwear and being unable to return to sporting activities.
192 Professor Myers diagnosed soft tissue injuries to the back of the left calf associated with damage to the sural nerve leading to impaired sensation on the posterolateral aspect of the leg and foot. He considered future management would be with appropriate analgesics and there was no point considering any surgery on the sural nerve.
193 Professor Myers thought the plaintiff’s condition had stabilised and there would be restriction of social, domestic and recreational activities in the long term. He considered the plaintiff should be able to cope with his present work activities into the foreseeable future. He would not be unable to resume pre-incident heavy work activities.
The Defendant’s medico-legal examiners
194 The plaintiff was examined by orthopaedic surgeon, Mr M Goldwasser, in September 2013 for purposes of an AMA assessment.
195 Mr Goldwasser noted examination of the left calf revealed a scar in the distal calf which continued as a curved scar superiorly to the lower third of the calf area extending medially, with a total length of 15 centimetres.
196 The distal half of the scar was one-centimetre wide, soft and mobile. The proximal half of the scar was about 4 centimetres wide and 7 centimetres in length and had a central puckered area with a dimple. There was the skin grafted area with the donor site being taken from the anterolateral aspect of the mid left thigh. That site measured 9 centimetres in length and 5 centimetres in width and was not causing the plaintiff any problems. There was no wasting to measurement of the left thigh and left calf compared to the right.
197 Muscle power appeared satisfactory in both lower limbs.
198 There was a positive Tinel’s sign on percussing the mid portion of the irregular scar in the calf, with tingling and numbness extending to the lateral side of the calf and lateral half of the left hind foot, extending to the mid foot. The area of altered sensation extended for a longitudinal distance of 25 centimetres and a transverse distance of 10 centimetres and the distribution was consistent with the distribution of the sural nerve.
199 The plaintiff was able to walk on his toes and heels and able to do a single heel raise.
200 The plaintiff was then aware that his left leg and foot were still symptomatic and he had not made a full recovery.
201 Mr Goldwasser thought the plaintiff suffered a deep laceration to his left calf which involved the underlying muscles and also suffered damage to the sural nerve and had residual prominent scarring. The scars were stable and satisfactorily healed.
202 The plaintiff’s continuing symptoms were noticeable when he put stress onto his ankle. He liked to keep himself fit and engage in running about twice a week. After running 6 to 10 kilometres, he was aware of some discomfort in his left leg, but that was more noticeable the next day when recovering and it often took him a day to get over the extra fatigue that he was aware of. He was worse if he tried to run more frequently.
203 The plaintiff also did gym exercises for general fitness and noticed that there was a tendency for his left leg to cramp. He was also aware that when pressure was applied to the central portion of the scarred area which was dimpled, he felt an altered sensation and a tingling and numbness in the lower calf and outer half of his hind foot.
204 The plaintiff had used vitamin E cream regularly until about two years ago. The scar was visible and he was conscious of it and he used long socks at work to protect it from being traumatised. He also wore high-top boots for protection to support his calf and ankle. He was then not taking any medication.
205 Since returning from a seven-month trip to Europe, the plaintiff had seen his local doctor because he was still aware of abnormal sensations and fasciculations in his calf area.
206 The plaintiff advised he consulted his doctors at three-monthly intervals because of persistent concern about his left calf.
207 The plaintiff was then working more than 40 hours a week and sometimes more than 50, as he also did overtime. The job was similar to his previous one as a scaffolder but there were other aspects of work he found more interesting.
208 The plaintiff then lived at home with his mother and was helpful with the everyday maintenance of the home including shopping, cleaning and doing odd jobs.
209 Mr Goldwasser noted the plaintiff continued to suffer symptoms including relative weakness in the left leg and was aware of muscle fasciculations, as well as altered sensitivity in the region of the sural nerve. He was able to engage in normal work activities and noticed symptoms particularly with training and prolonged running. He thought the plaintiff’s condition had now largely stabilised.
Overview
210 There is no dispute the plaintiff suffered a compensable injury to his left lower limb in the incident. The lacerating injury required surgical intervention as a result of which there is further scarring at the site of repair and also the skin graft from his thigh.
211 The consensus of medical opinion is that the plaintiff suffered a deep laceration/ soft tissue injury to the back of the left calf associated with damage to the sural nerve leading to impaired sensation on the posterolateral aspect of the leg and foot. There was residual scarring at the injury site and in the thigh from where the skin graft had been taken.
212 The defendant accepted liability for the payment of weekly payments and medical expenses. Liability was also accepted pursuant to s98C of the Act in relation to the left lower limb injury sustained on 20 October 2009.
Credit
213 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[57]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[57](2010) 31 VR 1 at paragraph [12]
214 Counsel for the plaintiff submitted the plaintiff was a witness of truth who sought to give unembellished evidence in respect of his post-injury life.[58]
[58]T93
215 It was submitted the plaintiff should not be prejudiced by his excellent work history and resumption of physical activities subsequent to the injury.[59] It is a considerable injury to the plaintiff. He has been very stoic, very strong, very proactive in this own treatment and he should not be prejudiced because of it.[60]
[59]T94
[60]T109, the “stoic plaintiff” per Nettle JA in Dwyer v Calco (No 2) (2008) VSCA 260 at para 4
216 Further, there was no film suggesting a level of activity inconsistent with that deposed to by the plaintiff, nor did any medical practitioner consider the plaintiff was exaggerating or embellishing his symptoms on examination.
217 Counsel for the defendant did not take issue with the plaintiff’s credit. Counsel commended the plaintiff for his post incident endeavours but submitted they were relevant when making an assessment of what the plaintiff had lost and what he had retained.[61]
[61]T90
218 In this regard, counsel for the defendant relied on the comments of the Court of Appeal in Dwyer v Calco Timbers Pty Ltd (No 2),[62] Aburrow v Network Personnel Pty Ltd[63] and Baranadurage v Waverley Forklifts Pty Ltd.[64]
[62][2008] VSCA 260
[63]Supra
[64]Supra
219 I found the plaintiff to be an honest young man who gave evidence truthfully.[65] Whilst his affidavit somewhat understated his level of post injury running, the did not hide his participation in “Tough Mudder” from his examiners.
[65]T93
Pain
220 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[66]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors).”
[66](supra) at paragraph [11]
221 I accept that since the incident, the plaintiff has suffered pain in the area of the laceration. There is some sensitivity and the feeling of a dull ache in the region of the ankle and the hamstring. It is painful when the injury area is knocked and the plaintiff has to protect his leg to prevent this.[67] He feels a sharp pain when putting pressure on his toes, and prolonged standing causes an increase in his left leg pain.
[67]
222 The plaintiff also experiences muscle twitching/ fasciculations in his left leg , diagnosed as restless leg syndrome. He feels these symptoms a little on the right but does not experience them in his upper body, despite tests confirming the condition at that level.
223 The plaintiff has difficulty with prolonged standing and weight bearing on his left leg.
224 It was submitted the plaintiff was experiencing progressively more pain and his level of activity had diminished noticeably. He does not run and just takes his girlfriend’s dog for a walk. However, I do not accept there was any medical evidence to this effect. Further, there has been no recent increase in medication or treatment or complaint to doctors by the plaintiff.[68]
[68]T99
Treatment
225 The plaintiff’s treatment involved an initial period of hospitalisation when the surgery was undertaken. He later attended hospital for the removal of staples from his leg.
226 Thereafter the plaintiff was under the care of Dr Rose, general practitioner who treated him until June 2010. Since that date, there appear to have been no attendances on a general practitioner for his leg injury. Dr Chaivachirasak who took over from Dr Rose, saw the plaintiff in April and May this year with symptoms she was uncertain related to his incident injury and referred him back to Dr Mullen for an opinion.
227 Dr Mullen is the only specialist to whom the plaintiff has been referred. Whilst four years ago Dr Mullen thought surgery may be worth considering if the plaintiff’s nerve condition worsened,[69] treatment thereafter has been conservative and surgery not mentioned.
[69]T105
228 In March 2014, Dr Mullen confirmed the diagnosis of benign fasciculation syndrome which involved little twitches of the muscle. On examination in 2013, there were a few twitches on the right with clearly some relatively mild fasciculations on the left. That benign syndrome was relatively common and not the sign of any particular issues. This description does not seem to fit with what counsel for the defendant submitted was uncontrolled twitching.
229 Most recently when the plaintiff saw Dr Mullen in June this year, the plaintiff described restless leg syndrome. Noting the peripheral nerve injury in the left foot, Dr Mullen also noted the plaintiff was clearly suffering quite a lot of back pain.
230 The plaintiff had some physiotherapy from Tony Flanagan in 2010.
231 The next hands on treatment was in 2015. Chiropractic treatment from Ms Toussaint followed the fall from the trampoline in January 2015. The predominant complaint in her report of June appears to be spine related with some reference to altered gait from the limb injury.
232 Physiotherapy recommenced early 2015. From Ms Obourne’s report, it also appears the focus of this treatment was the plaintiff’s back although the plaintiff stated it was mainly for his leg complaint.
233 The plaintiff takes limited medication at present. He takes Sinemet for the fasciculations and trialled Codeine for a limited time to enable Dr Mullen to ascertain a diagnosis in relation to this condition. Intake of painkillers is rare because the plaintiff does not like taking medication and his is allergic to Ibuprofen.
Consequences
Work
234 Save for about four months off work initially, and then a very brief return to office duties, the plaintiff resumed his pre-incident installing duties with the defendant and continued in that role for four years after the incident. During that time, there were no restrictions placed on his duties, nor did he require any time off work.[70]
[70]T87
235 The plaintiff changed his career direction with the defendant when, in January 2014, he was given a sales representative role, which he continues to perform.
236 There is no suggestion this change had anything to do with an inability to perform more manual duties because of ongoing problems with his leg.
237 After the initial period of recovery and modified duties, there has been no reduction in the plaintiff’s working hours with him working up to 50 hours a week in his manual duties before taking up the sales representative job in early 2014.
238 Whilst the plaintiff maintains problems with prolonged standing, his work is not interfered with. He has been able to take breaks when required both in his earlier manual role and more recently in his sales job with his current employer. There is some pressure on his foot if he is required to use the clutch excessively.
239 The plaintiff has succeeded quite well in his career change as he confirmed. He does not express any frustration or sense of loss at this change.[71] He can do his current job, where he earns in excess of $90,000 per annum, without any medical certification or restrictions and he has not required any time off as a result of his leg condition.[72]
[71]T86
[72]T88
Daily activities
240 Whilst in his first affidavit sworn in 2014, the plaintiff described some pain and tiredness doing housework, gardening and domestic tasks, he agreed he was able to do things around the house when he lived with his mother in 2013. This seems to still be the case since moving in with Ms Kyriacou a couple of years ago, although she deposes to the plaintiff having greater difficulties in this regard.
241 Save for having to be careful about his leg and being self conscious about his scarring with some family members, the plaintiff described his social life is that of a normal person with a job, working 12 hours per day, going to the usual places a young person does. If he is feeling tired or unwell, he does not go out.
242 The plaintiff’s problems with sleep seem to be related to restless leg syndrome rather than injury related pain as Dr Mullen explained. In those circumstances, any problems with sleep are not of the magnitude considered by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon.[73]
[73](Supra) at paragraph [45]
243 Pre injury, the plaintiff attended gym regularly. He went jogging and played soccer socially. He had last played basketball socially a year before the incident.
244 The plaintiff still attends the gym regularly, going to the work gym three to four times a week, although the nature of his leg work has changed.[74]
[74]T91
245 Following his injury, the plaintiff has still been able to travel.
246 In 2012-2013, the plaintiff went backpacking for seven months in Europe. Save for the occasional massage, he did not require medical treatment for his leg during that time. He described some difficulty going on long walks with friends.
247 The plaintiff explained that the trip was just part of his life where he needed to have a lot of downtime and relax and get away from reality a bit.
248 More recently the plaintiff has been to Tasmania and snorkelling on the Barrier Reef. He was able to cope with the latter activity but was not able to use flippers. Pre injury the plaintiff was not a great swimmer having done laps with friends at the Ivanhoe Pool every couple of weeks. In any event, the plaintiff does not describe any particular problems swimming.
249 Whilst the plaintiff deposed that his running post incident was short lived, he did not mention his participation in the ‘Tough Mudder’ event in 2012 and in late 2013 after his overseas trip.
250 Prior to the trip, the plaintiff completed “Tough Mudder” for the first time. He had not been involved in this competition or any similar rigorous physical activity prior to the incident.
251 The plaintiff explained that this event took him longer than otherwise would have been the case, taking him over three hours doing it at his own pace.
252 The plaintiff explained that he did Tough Mudder’ because he wanted to be normal to his friends and wanted to be seen to be capable of participating without disability. He also claimed to have a long period of recovery of these events.[75]
[75]T98
253 Obviously there is no mention in the plaintiff’s affidavits of such extended periods of recovery as his affidavits were silent on the Tough Mudder activity. This issue was first mentioned in the plaintiff’s viva voce evidence.
254 Further, there is no evidence from any medical practitioner of any particular problems after participating in this event or of any deterioration in the plaintiff’s condition of recent times so he would not be able to run.[76]
[76]T97
255 I do not accept that with the level of pain complained of, and the pressure with weight-bearing, that the plaintiff would even have been able to contemplate entering an event of such a nature, which he conceded was an 18 to 20‑kilometre course. This is not an example of stoicism. In my view plaintiff’s participation in this activity shows a considerable physical capacity, despite his injury.
256 Further, it is significant that leading up to this event, the plaintiff was able to run 6 to 10 kilometres a couple of times a week in training, as he described to Mr Goldwasser and also Dr Mullen.
257 The ability to participate in this event on two occasions and do the necessary training, is inconsistent with the plaintiff’s claims to be restricted in various domestic activities. I am not satisfied, with the level of physical exertion demonstrated since his injury, that the plaintiff would have problems with various lighter tasks as his partner described.
258 Despite the plaintiff saying that his activity is limited to walking the dog, there is no explanation why he cannot run.
The back
259 Counsel for the defendant’s primary submission was that there are real consequences of the plaintiff’s present back condition. Any medication, according to Ms Kyriacou is for the plaintiff’s back. On that basis, the application “stumbled at that hurdle.[77]
[77]T82-83
260 Of recent times, the plaintiff has also had lower back pain. This has not been connected by any medical practitioner to altered gait following the injury. Dr Mullen describing any link as tenuous..
261 Counsel for the defendant relied on Peak Engineering & Anor v McKenzie.[78] Whilst the plaintiff’s back was not part of this application, it was submitted it featured quite prominently in the plaintiff’s current presentation and capacity.
[78][2014] VSCA 67
262 In Peak Engineering & Anor v McKenzie,[79] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[79]Supra
263 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[80]
[80]At paragraph [1]
264 Counsel for the defendant submitted there had been no attempt to undertake the delineation required.[81]
[81]T77
265 It is not clear from Dr Chaivachirasak’s one very brief report of June 2015 why she referred the plaintiff back to Dr Mullen. She simply noted two attendances earlier this year which she was not sure related to the plaintiff’s left leg injury.[82]
[82]T78
266 Dr Mullen, in his recent report of June 2015, described the plaintiff as clearly having quite a lot of back pain, managed by a physiotherapist, although not completely cured.
267 As noted earlier, chiropractic and physiotherapy earlier this year appeared to relate mainly to the plaintiff’s back.[83]
[83]T79
268 Despite Dr Mullen, the treating chiropractor and the treating physiotherapist, making mention of the plaintiff’s back complaint, there is no mention thereof in Ms Sharma’s report nor in Professor Myers report, both practitioners having seen the plaintiff in 2015.[84]
[84]T80
269 It was submitted in these circumstances, the plaintiff had not satisfactorily identified the separate consequences of the his leg injury from his back condition. A similar criticism was made of Ms Kyriacou’s affidavit.[85] She mentioned the plaintiff was experiencing some back pain at night, with increasing medication. Otherwise, there is no differentiation.[86]
[85]T81
[86]T82
270 In reply, counsel for the plaintiff submitted the plaintiff’s back is not a prominent feature of current treatment. The primary presentation has always been in relation to the leg. In any event, the MRI scan was normal.[87]
[87]T106
271 It was submitted there was not a great deal of hands-on treatment for the back in any event.[88]
[88]T106
272 In relation to the left leg alone, it was submitted the consequences thereof are “serious” and the delineation required by Peak Engineering has been carried out successfully.
273 Looking at the plaintiff’s current condition “globally,” taking into account all the evidence, I am not satisfied any impairment to the left lower limb meets the statutory test of serious. Therefore it is not necessary to undertake the “disentangling” required by the Court in Peak.[89] Accordingly, the plaintiff has a serious injury.
[89]Supra
274 Accordingly, the plaintiff’s application under clause (a) is dismissed.
Scarring
275 There was also an application pursuant to clause (b) in relation to the disfigurement of the plaintiff’s left calf.
276 In determining whether a permanent serious disfigurement is a serious injury, regard should be had as its location, size and degree of obviousness of the scar.[90]
[90]TAC v Garcia (2015) VSC 225 at para 27, Baker v Transport Accident Commission (1997) 1 VR 662 at 664-5
277 Mr Stapleton, the only plastic surgeon who has examined the plaintiff, described a 12-centimetre scar running around the back of the lower calf on the left side. On the outer aspect of that scar was a 5 x 4-centimetre split skin graft. The donor site scar on the front of the left thigh had settled reasonably well and extended over an area of 11 x 4 centimetres.
278 Other examiners have noted that the scar catches some underlying part of the substructure as the plaintiff described.[91] Further, the area of the scarring is sensitive to touch.
[91]T93
279 Whilst the scar is quite large and unattractive, in my view it is not a serious disfigurement.
280 The location points against it being serious with the scarring situated on the back of the plaintiff’s calf. It is not a part of the body that is readily visible and the lower leg is routinely covered up by typical business attire, and only exposed in summer.[92]
[92]T75
281 The scar itself was not red or raised and the area of the scar was not particularly discoloured. Whist there was some visible indentation of the skin on the lower calf, that was not more than significant or marked.
282 Although Dr Mullen talked about the possibility of further corrective surgery in 2011, he has not suggested this course since.
283 It is unclear whether I am entitled to take into account the mental consequences of the disfigurement for the plaintiff when considering his application pursuant to the Accident Compensation Act as I am permitted to do under the Transport Accident Act.[93] Relevantly, s134AB38(h) of the Accident Compensation Act limits consideration of psychological factors to applications pursuant to clause (c).
[93]Garcia (supra) at paragraphs [27] – [29]
284 In any event, any mental consequences of the disfigurement are not significant, with the plaintiff complaining of some self consciousness about the scar.
285 Accordingly, I am not satisfied the disfigurement is “serious”, and that part of the application is also dismissed.
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