Thomas v Victorian WorkCover Authority
[2021] VCC 399
•15 April 2021
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00535
| LUISA THOMAS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 15 March 2021 | |
DATE OF JUDGMENT: | 15 April 2021 | |
CASE MAY BE CITED AS: | Thomas v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 399 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to left ankle – consequential back injury – whether pain and suffering consequences are “serious” under the Act – credit of the plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising out of an injury to her left ankle on 12 November 2014 in the course of her employment with Mercy Education Limited.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds QC with Ms C Kusiak | Minter Ellison |
HIS HONOUR:
1This is an application brought by Originating Motion whereby the plaintiff applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) to bring proceedings to recover damages suffered by her arising out of her employment with Mercy Education Limited at Sacred Heart College in Kyneton. The plaintiff alleges she was injured in the course of her employment on 12 November 2014.
2The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering. The plaintiff seeks leave pursuant to the definition of “serious injury” or a serious long-term impairment or loss of body function to her left ankle and consequential injury to her back.
3The following evidence was produced during the hearing:
· The plaintiff tendered the following exhibits:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”) pages 1 to 25.
· The plaintiff gave evidence and was cross-examined.
· The defendant tendered the following exhibits:
§Exhibit 1, the Defendant’s Court Book (“DCB”) pages 2 to 31 inclusive
§Exhibit 2, thirteen pages of progress notes of Dr Rohan Kapoor, chiropractor.
4The following matters were identified as issues in this application:
(a) The injury to the plaintiff was to her left ankle and a consequential injury to her back caused by an altered gait;[1]
(b) There is no ongoing treatment received by the plaintiff. The treatment by Dr Kapoor, chiropractor, is not for the lower back or ankle;[2]
(c) There was some treatment for the left ankle, but not for the back;[3]
(d) The plaintiff was not taking any ongoing medication in respect of her complaints of pain;[4]
(e) The plaintiff’s credit was in issue between the parties, particularly related to her medication regime; and
(f) The application is a “range” case.
[1]Transcript (“T”) 2
[2]T44
[3]T45
[4]T47
The statutory scheme
5The application is brought under the definition of “serious injury” contained in s325(1) of the WIRC Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of body function”.
6The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 1 July 2014;[5]
(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”;[6]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(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 be fairly described as being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[7] 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 ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[5] See s1 of the WIRC Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[6] Barwon Spinners (ibid) at paragraph [33]
[7] ibid
7I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
8The plaintiff was born in 1973 and is now forty-eight years old. The plaintiff has lived and worked in Australia her whole life.[8]
[8]PCB 1
9The plaintiff is a divorced woman and lives with three of her four children. Her children range from twenty-four to eighteen years old.[9]
[9]PCB 1
10The plaintiff completed Year 12 and went on to study a Bachelor of Business, Finance and Law, at Swinburne University.[10]
[10]T5
11The plaintiff’s work history was that she had previously worked in administration and accounts prior to having her children. The plaintiff worked in a full-time manager role at the cafeteria at Sacred Heart College in Kyneton between December 2011 until mid-2015.[11]
[11]T6
12Subsequent to her work at Sacred Heart College in Kyneton, the plaintiff worked for Sandhurst Homes in a sales role for a couple of months.[12] The plaintiff then conducted a family day care service at her family home for approximately one year.[13] The plaintiff then commenced a role as a property manager with Jellis Craig in Woodend. She continued in that capacity for a two-year period.[14]
[12]T6
[13]T7
[14]T8
13The plaintiff then commenced her own business of real estate property photography. The business was known as Open2view.[15] As a result of the closedown in the property market due to the COVID pandemic, the plaintiff’s business was ultimately closed.
[15]T9
14In November 2021, the plaintiff commenced work at Evolution Pools as a retail sales assistant.[16] The plaintiff continued in this employment up to the date of the hearing.
[16]T10
The injury with the Defendant
15The plaintiff initially commenced work with the defendant in 2011. The plaintiff’s work was originally a part-time job, but it advanced to a full-time cafeteria manager role.[17]
[17]PCB 2
16The plaintiff set out the circumstances of the injury to her left ankle in the following terms.
“On or about 12 November 2014 I injured my left ankle/foot when I rolled my ankle on a spoon drain. I was at school after hours to meet the Year 7 Co-Ordinator. It had been raining. I was wearing thongs as it was warm and my Cafeteria duties had finished for the day. As I was walking forward my left foot slipped and I rolled my left ankle in the spoon drain. I understand the spoon drain has now been replaced with level rocks for drainage as the spoon drain was dangerous.”[18]
[18]PCB 2, paragraph [6]
17The plaintiff did report the accident the following day. The defendant accepts the plaintiff was injured as a result of the slipping accident described by her in her affidavit.
Medical treatment
18The plaintiff originally attended at the Campaspe Medical Clinic in Kyneton and an x-ray was taken of her left ankle.[19] The original x-ray of the plaintiff’s left foot was performed on 13 November 2014 and was reported as follows:
“‘No acute fracture or dislocation detected. The ankle mortise is intact. No acute fracture or dislocation. Mild degree of plantar spur noted.”[20]
[19]PCB 2, paragraph [7]
[20]DCB 25
19The plaintiff continued to experience pain and swelling in her left ankle and was subsequently directed to have the following investigations:
(a) An ultrasound of the left ankle was performed on 9 December 2015. The report of that investigation was as follows:
“Please note only the lateral aspect of the ankle was examined and this shows normal peroneus longus and brevis tendons, as well as normal anterior talo-fibular ligament and calcaneo-fibular ligament. Inferior tibio-fibular ligament is also normal.”[21]
[21]DCB 25
(b) On 14 December 2015, the plaintiff underwent a CT scan of her left foot. That was reported as follows:
“All the bones in the tarsal region appeared normal, with no old or new fracture. No bony injury is shown. There is a moderate sized plantar spur and there is a traction spur at the insertion of the Achilles’ tendon.”[22]
(c) An MRI scan of the plaintiff’s ankle was performed on 18 January 2016 and it was reported as follows:
“No MRI features of antero-lateral impingement. In particular, there is no evidence of synovitis or chondral damage.”[23]
[22]DCB 25
[23]DCB 25
20On 15 February 2016, the plaintiff attended upon Mr David Shepherd, orthopaedic surgeon. On that day, Mr Shepherd diagnosed the plaintiff as suffering from a left ankle anterior soft-tissue impingement and he injected the plaintiff’s ankle with anaesthetic and cortisone.[24]
[24]PCB 14
21The plaintiff then returned to Mr Shepherd for further treatment on 24 June 2016. On that occasion, the plaintiff underwent a left ankle arthroscopy and stabilisation. At the time of the surgery, Mr Shepherd noted that there was synovitis in the medial and lateral gutters. Chondral surfaces of the plaintiff’s ankle were intact. When the plaintiff was examined under anaesthetic, she had an increased anterior draw, and such the ankle was stabilised.[25]
[25]PCB 14
22On 19 April 2017, the plaintiff had a further MRI scan of her left ankle. The findings on that examination were as follows:
“‘1. No ankle joint osteo-chondral lesion or evidence of ankylosis.
2. Thickening heterogenous ATFL other antero-lateral guttural tissues, likely represent scarring result related to surgery. This may predispose to antero-lateral impingement.”[26]
[26]PCB 25-26
23On 7 July 2017, the plaintiff underwent further arthroscopic debridement by Mr David Shepherd. At the time of that surgery, there was extensive arthrofibrosis throughout the joint with a plica running over the lateral shoulder of the talus. Mr Shepherd debrided surgically.[27]
[27]PCB 15
24The plaintiff has not had any further surgery and now undertakes some chiropractic and sports physiologist treatment to strengthen and stabilise her left ankle.
Medical opinions
25In this case, the plaintiff did not rely on any general practitioner’s report to support her application for serious injury. The plaintiff relied upon a report from her surgeon, Mr David Shepherd, orthopaedic surgeon, and a medico-legal report from Mr William Edwards, orthopaedic surgeon.
Mr David Shepherd, orthopaedic surgeon
26Mr Shepherd prepared a report dated 8 May 2018 in respect of this application. In his report, Dr Shepherd set out the treatment for the plaintiff, commencing with the injection of cortisone on 15 February 2016.[28]
[28]PCB 13-14
27Mr Shepherd then examined the plaintiff on 13 March 2016. Upon examination, he found that the plaintiff was tendered in the anterolateral gutter of the left ankle joint. In respect of stability, he noted the ATFL and CFL were intact with the endpoints, with slightly softer endpoint compared to the other side. He noted that the plaintiff had failed in respect of physiotherapy and the injection, and suggested that an arthroscopy be performed to debride the soft tissue. On 24 June 2016, Mr Shepherd performed a left ankle arthroscopy and stabilisation and found there was synovitis in the medial and lateral gutters.[29]
[29]PCB 14
28After an MRI examination and review on 24 April 2017, Mr Shepherd was of the opinion that there was thickened scar tissue around the margin of the lateral gutter. He noted a large degree of capsular thickening consistent with arthrofibrosis in the anterior margins of the joint. On 7 July 2017, the plaintiff underwent arthroscopic debridement to ameliorate those problems.
29In 2018, Mr Shepherd’s diagnosis was as follows:
“Left ankle functional instability and impingement. She had undergone arthroscopic stabilisation and arthroscopic debridement for arthrofibrosis.”[30]
[30]PCB 15
30Mr Shepherd’s opinion was that the injury had stabilised. In his opinion, the plaintiff’s future capacity would be minimal. He was of the opinion that the plaintiff would have persistent mild discomfort at the margins of the left ankle joint, but that she could return to all activities.[31]
[31]PCB 16
Mr William Edwards, foot and ankle orthopaedic surgeon
31Mr Edwards prepared a report dated 25 June 2020, for the purposes of this application by the plaintiff. When the plaintiff attended upon Mr Edwards for examination, she was working as a photographer in real estate.[32] She gave a history that she was occasionally taking Nurofen, perhaps twice, for maybe three months.[33] Mr Edwards noted that the plaintiff was wearing runners with orthotics. On examination, Mr Edwards noted that there was some swelling of the hindfoot and anterior ankle.[34] In his examination, Mr Edwards noted the following:
“… There is altered sensation distal to the distal third of the calf. This is variable but involves the dorsum and plantar aspects of the foot. There is an epicentre of altered sensation around the anterior lateral ankle arthroscopy portal where there is tingling and Luisa Thomson (sic) says some burning.”[35]
[32]PCB 20
[33]PCB 20
[34]PCB 20
[35]PCB 21
32Mr Edwards’ opinion was as follows: That the plaintiff had an unstable ankle and that she had arthrofibrosis. He noted that the plaintiff suffered from neuritic pain and injury to the superficial perineal nerve.[36] He noted that it was difficult for the plaintiff to be active due to pain. He noted that the plaintiff’s gait was essentially normal. That the plaintiff would benefit from seeing a pain management physician, with such interventions as a ketamine infusion or a nerve stimulator.[37]
[36]PCB 21
[37]PCB 22
The Defendant’s doctors
Associate Professor Bruce Love, consultant orthopaedic surgeon
33Associate Professor Love examined the plaintiff on two occasions and prepared two reports, dated 31 May 2016 and 9 March 2021.
34In his report dated 31 May 2016, Professor Love noted that the plaintiff suffered from well-localised tenderness over the lateral aspect of the subtalar joint anterior to the lateral malleolus.[38] In his opinion, at that time, the plaintiff had suffered from an injury to ligamentous structures adjacent to the subtalar joint of the left ankle.[39] In 2016, Professor Love’s opinion was that the precise nature of the pathology is ill-defined and exploration by either open or arthroscopic means may provide more accuracy as to the nature of the pathology. He found that the plaintiff’s condition was not resolved.[40]
[38]DCB 5
[39]DCB 5
[40]DCB 6
35In his report dated 9 March 2021, Professor Love noted that the plaintiff was using Nurofen daily, although she feels there are some minor systemic side effects from Nurofen. He noted the plaintiff was using orthotics for the last eighteen months.[41] Professor Love stated it is probable that her left ankle is contributing to an aggravation of her lower-back discomfort, but there are probably underlying constitutional factors contributing:
“I do not see any strong indication for investigating her lower back with radiology at this point. She might be best being given a supervised exercise program for the lumbar spine.”[42]
[41]DCB 13
[42]DCB 14
36Professor Love noted the plaintiff’s condition of “ongoing pain in the left ankle which has been unresolved by surgery, the most recent which was in July 2017”.[43] He noted that there was some deterioration of symptoms with the change of occupation due to the requirement to stand throughout the working day.
[43]DCB 14
37Professor Love did not determine any obvious physical deterioration. Professor Love’s working diagnosis was that the plaintiff suffered from ankle dysfunction in view of the absence of obvious demonstrable pathology.[44]
[44]DCB 14
38Professor Love noted as follows:
“I am not of the opinion that future treatment of a surgical nature is likely to occur and such would only occur if there was deterioration of articular cartilage for which there is no such evidence of such based on the MRI of May 2020. The lesion that is present, that passes towards the neck of the talus, could be further investigated possibly by way of CT scanning and bone scanning to see if an explanation of that lesion can be obtained as it may have surgical potential.”[45]
[45]DCB 15
Associate Professor Miron Goldwasser, orthopaedic surgeon
39Associate Professor Goldwasser prepared a report dated 7 December 2018 for the purposes of this proceeding. Professor Goldwasser noted as follows:
“The Operation Report by Mr Shepherd indicated the pre-operative diagnosis was left ankle impingement and pain and the operation was left ankle Arthroscopy. The details of the operation included extensive fibrous arthrodesis throughout the joint.”[46]
[46]DCB 21
40In December 2018, Professor Goldwasser took a history from the plaintiff that she did not take any prescription medications for her ankle and is not taking any over-the-counter pain medications for her ankle, but that she was using ice packs occasionally. This is consistent with the plaintiff’s evidence in this case.
41At the time of his examination of the plaintiff, Professor Goldwasser noted that the plaintiff walked with a mild limp, favouring her left ankle.[47] Professor Goldwasser noted that the plaintiff had considerably-reduced lunging of her left leg. He went on to state as follows:
“There was visible scarring in her left ankle, with a curved 6cm scar behind the lateral malleolus and two Arthroscopy scars on antero-lateral and antero-medial aspects of her ankle. All scars were clearly visible but well-healed, not causing any problems and not needing any special treatment.
There was a positive Tinel’s sign in the upper left lateral calf, with tingling symptoms radiating down the lateral side of her calf and ankle. There was also hyper-sensitivity to touch in the lateral side of her calf and ankle. There was also hypersensitivity to touch in the lateral side of her calf, consistent with the territory of sural nerve. There was also some tenderness in the ankle itself, on the lateral aspect of the ankle.[48]
[47]DCB 24
[48]DCB 24
42Professor Goldwasser did a review of the radiology performed on the plaintiff’s left ankle.
43Professor Goldwasser set out his opinion as follows:
“Ms Luisa Thomas suffered a significant injury to her left ankle, which included ligamentous injury, giving ankle instability and that was treated surgically with an ankle stabilisation procedure in February 2016. Following that, she developed the symptoms of dysaethesia and tingling in the lateral part of her calf, in the territory of the sural nerve.
She still has significant restriction of movement in her left ankle and foot.[49]
[49]DCB 26
The credit of the Plaintiff
44At the commencement of the proceeding, Mr Moulds, on behalf of the defendant, stated that there was going to be an attack on the plaintiff’s credit, based on her history to medical practitioners concerning her ingestion of medication for pain relief. At the close of the evidence, that attack on the plaintiff was not pursued. The plaintiff, in the course of her evidence, accepted that she did not take any medication for pain relief in 2018, or a limited amount of Nurofen at the most. The plaintiff agreed in her evidence that when she saw Mr Edwards she was not taking much Nurofen. As she described to Mr Edwards, it was perhaps twice every three months or so.[50] The plaintiff also agreed that when she spoke with Professor Goldwasser she was not taking Nurofen on a daily basis. The plaintiff gave evidence that the reason she did not take pain medication was because it made her feel ill and she did not particularly want to be taking pain medication every single day of her life.[51] I accept the plaintiff’s evidence in this regard and that she is a person who would limit the amount of medication she ingested as best she could tolerate.
[50]T29
[51]T30
45I accept the plaintiff is a person of stoic disposition. She presented as a straightforward no-nonsense person who was anxious to get on with her life as best she could, given the limitations of her left ankle injury and the pain she suffers as a result of it.
The consequences of the left ankle injury to the Plaintiff
46The plaintiff relied upon two affidavits sworn by herself, dated 28 August 2019 and 17 February 2021. The plaintiff also relied upon an affidavit sworn by her daughter, Lauren Nyberg, on 10 March 2021. Ms Nyberg was not required for cross-examination by the defendant. The plaintiff, in those affidavits and in her evidence, set out a number of consequences as a result of the injury to her left ankle.
Sleep
47In her first affidavit, the plaintiff set out that –
“I can't sleep on my left side and I am woken at night if I have rolled that way. I am now a terrible sleeper and I was not prior to this injury.”[52]
[52]PCB 4, paragraph [11]
48In her more recent affidavit, the plaintiff stated:
“My sleep remains affected by left ankle pain. I get woken every night. I am still unable to sleep on my left side due to ankle pain. I sleep on my right side. I regularly feel tired during the day due to broken sleep.”[53]
[53]PCB 8, paragraph [15]
49In her evidence, the plaintiff was cross-examined about what was the cause of her sleep disruption. In particular, she was asked about whether it was the back or the neck which caused the interruption to her sleep. The plaintiff responded as follows:
Q:“- - - or is it your back or your neck or what is it?---
A:No, it’s my ankle. So I’ve got, like, an altered sensation down the left side of my - halfway down my calf muscle and down into my foot, so when my ankle is touching on things it gets extremely uncomfortable and then in turns into a pain. So, I can’t sleep on that left side with my ankle - with my ankle pushing on - on the mattress.”[54]
[54]T30, L19-25
50I accept that the plaintiff’s sleep is interrupted and disrupted by the pain sensation that she feels in her left ankle and calf as a result of the injury to her left ankle. This is consistent with the findings of the medical practitioners in respect of the neuritic pain in her left ankle and leg. I find that the fact that the plaintiff’s sleep is interrupted as a consequence of the injury to her left ankle is a very considerable consequences to her.
Pain
51In her affidavit dated 28 August 2019, the plaintiff sets out that when she wakes her left ankle is stiff. She stated if she had been walking the day before and she is walking then takes the weight of her foot, it would throb. In circumstances where she has been active, her ankle would swell. The plaintiff described that the pain is worse at the end of the day than at the start of the day due to her activities during the course of the day. She noted that the pain is in her ankle, foot and travels up her left leg.[55]
[55]PCB 3, paragraph [10]
52In her more recent affidavit dated 17 February 2021, the plaintiff stated that she continued to experience constant fluctuating left ankle pain. She described the pain as being generally throbbing and an aching pain. The plaintiff referred to her altered sensation from around the middle of her left calf down to the left foot. The plaintiff experienced constant swelling in the left ankle which varied with severity. This swelling was consistent with the findings of Mr Edwards in his report.[56]
[56]PCB 20
53I accept that the plaintiff suffers from constant pain in her left ankle as a result of the injury to it. I accept that the plaintiff suffers, and will continue to suffer, from pain, fluctuating, but of constant intensity. The plaintiff has undergone two separate surgical procedures to ameliorate the pain systems. I accept that given the plaintiff’s stoical disposition, the pain level that she is constantly suffering is a very significant and considerable consequence for her.
Medication
54I accept the plaintiff’s evidence that she is a person who tries to avoid taking medications as best she can.[57] I accept the plaintiff’s evidence that due to the circumstances of the COVID pandemic, she had to change the nature of her employment to her current role at Evolution Pools as a sales assistant. As a result of that employment, the plaintiff is on her feet most of the day and has limited capacity to alternate between sitting and standing. The plaintiff has given evidence that she takes Nurofen for left ankle pain, usually two to four tablets per day, due to that change in her working circumstances.[58] In the course of her evidence, the plaintiff was challenged about her histories of taking Nurofen for pain relief. The evidence was as follows:
Q:“That the evidence that you're giving about taking the Nurofen, or not taking the Nurofen before you had a job that put you on your feet most of the day is not right; that you would have said something about it in your affidavit if it was making you ill and that’s why you weren’t taking it. You didn’t need it?---
A:That’s not true. My ankle hurts me every single day, but I choose not to take the medication every single day because I don’t want to be taking medication every single day, and that’s why I wasn’t doing it. But now, with my job where I’m on my feet all day, the pain in my ankle is a lot worse and I do need to take it every day.”
[57]PCB 4, paragraph [10]
[58]PCB 8, paragraph [13]
55I accept that the plaintiff is taking medication of two to four Nurofen per day in order to ameliorate her pain symptoms currently. I accept that this is a change from the plaintiff’s previous approach to pain relief. I accept the plaintiff’s explanation that her pain is of such an extent and constant in nature that despite her preference for not taking medications, the plaintiff is currently taking that level of medication.
56I accept that the need for the plaintiff to take medication to deal with her pain symptoms is a very considerable consequence for her.
Ongoing treatment
57The plaintiff has very limited ongoing treatment. The plaintiff has attended chiropractor, Mr Kapoor, for both left ankle and lower back symptoms. The plaintiff gave evidence that she is currently attending an exercise physiologist at a gymnasium for the purposes of strengthening her left ankle and leg. There was no report from that exercise physiologist. The plaintiff does not undergo any physiotherapy treatment, as the accepted wisdom from the medical practitioners and the plaintiff herself is that the physiotherapy did not work for her.[59] The only ongoing treatment is that the plaintiff undertakes Nurofen medication to ameliorate her pain symptoms.
[59]T26
A lack of mobility
58The plaintiff gave evidence that she was stiff in the morning in her left ankle.[60] The plaintiff also complains of a limp and an altered gait. This has been observed by legal practitioners.[61]
[60]PCB 3, paragraph [10]
[61]DCB 24
59The lack of mobility in the left ankle has the impact of limiting the amount of walking, running or water skiing the plaintiff would engage in. The plaintiff has sworn evidence that she no longer engages in those activities.
60In her evidence, the plaintiff was challenged about missing out on water skiing. The plaintiff stated, “No, I’m not going because it hurts if I try to do it”.[62] The plaintiff later stated in her evidence as follows:
Q:“Have you tried water skiing since the incident?---
A:I’ve tried once since the - I can’t remember whether it was in between the first and the second surgery or just after the second surgery, but it was extremely painful and not something that I would like to try again.”[63]
[62]T17, L13-14
[63]T29, L3-7
61The plaintiff also gave evidence that she has been told by her surgeon not to engage in running or any impact sports after the surgery because it would aggravate the pain in her ankle.[64] The plaintiff was supported by her daughter’s evidence that she no longer went for runs with her mother because she was unable to due to the extreme pain caused by the left ankle injury.[65]
[64]T16
[65]PCB 11, paragraph [5]
62I accept that the plaintiff’s inability to continue with water skiing and engaging in water skiing activities generally, together with running or inability to run, are very significant consequences for the plaintiff, as she is unable to continue with sporting activities that she readily engaged in prior to the injury to her left ankle.
Activities of daily living
63I accept that the plaintiff’s activities of daily living in regard to gardening and like activities are limited by her left ankle injury. The plaintiff has been able to adapt her approach to these activities in order to continue with the domestic activities around the home. She is a single mother, with four dependent children living with her. As I have stated in the section on the plaintiff’s credit, she is a no-nonsense practical woman who is getting on with her life as best she can, despite the injury to her left ankle.
Conclusion
64I accept that the plaintiff’s consequences as a result of the injury to her left ankle are very considerable consequences for her. Based on all the medical evidence and the plaintiff’s evidence, together with the evidence from her daughter, I find the consequences of the left ankle injury to the plaintiff when considered in the range of possible consequences arising from that injury, are “more than ‘significant’ or ‘marked’” and are best described as being “at least very considerable”.
65The plaintiff’s application for leave to commence proceedings for damages for pain and suffering arising from and as a result of the injury to her left ankle on 12 November 2014 is granted.
66I will hear the parties on costs.
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