Webb v Southern Generators and Electrical
[2015] VCC 1599
•16 October 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03340
| SHAUN WEBB | Plaintiff |
| v | |
| SOUTHERN GENERATORS & ELECTRICAL | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 October 2015 | |
DATE OF JUDGMENT: | 16 October 2015 (Revised) | |
CASE MAY BE CITED AS: | Webb v Southern Generators & Electrical | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1599 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – dramatic fracture of the left leg – dislocation of the left ankle – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for pain and suffering consequences of injury sustained by him in the course of his employment with the defendant on 1 June 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr G Chancellor | Slater & Gordon Limited |
| For the Defendant | Mr J Gorton QC with Ms C Spitaleri | Russell Kennedy |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding, claiming damages for the pain and suffering consequences of an injury suffered by him in the course of his employment with the defendant on 1 January 2010. The injury relied upon involves a traumatic injury to the left leg, together with the dislocation of the left ankle. The relevant impairment of function is that of the left lower limb.
2 Whilst there is no issue that the plaintiff suffered closed distal dysphasial fractures of the left tibia and fibula in the course of the subject incident, the defendant puts in issue whether or not the plaintiff also suffered a dislocation of his ankle in the course of the incident.
3 The plaintiff relies upon two affidavits sworn by him, and an affidavit sworn by his father. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise, the parties rely upon medical reports and records tendered by them.
4 The content of the plaintiff's affidavits and viva voce evidence is self-explanatory. I do not intend to refer to that content in detail other than where it is necessary to do so to give context to my findings.
5 I am satisfied, having regard not only to the frank nature in which the plaintiff presented in the course of his viva voce evidence, but also admissions which he made potentially against his interest when describing his capacity for activity and level of symptoms, the plaintiff presented as a truthful witness and a largely accurate historian and I accept his evidence.
6 Insofar as the defendant, in closing submissions, highlighted minor inconsistencies between the plaintiff's affidavit evidence and his viva voce evidence, I am satisfied that those inconsistencies amount to no more than the minor level of inconsistency which arises when a truthful witness attempts to give descriptions that are historical, and, for that matter, day-to-day events.
7 I am satisfied that the plaintiff, in preparing his affidavits and giving his evidence, did so making his best efforts to describe accurately the effect of his injury upon him and his lifestyle, and insofar as any minor inconsistencies arose in that process, I propose to base my findings upon the evidence least favourable to the plaintiff.
The Medical evidence
8 In a report dated 22 September 2015, Dr Peter Boys, an orthopaedic surgeon who has examined the plaintiff on behalf of the defendant, opined that the plaintiff presented with radiological evidence of post-traumatic osteoarthritis of the left ankle, that his symptoms did not limit his capacity for ordinary activity, but precluded the plaintiff from jogging and limited his recreational activities, such as to prevent him from wakeboarding and skiing. He described the plaintiff's disabilities as being permanent, opining that, with the passage of time, he may experience further restriction of movement of the ankle with associated pain.
9 In a note of conference dated 12 October 2015, Dr Boys opined that relevantly upon on the issue as to whether the plaintiff had suffered dislocation of his ankle, “It is unlikely that a person will develop osteoarthritis in the ankle in the absence of a dislocation of the left ankle or articular surface damage or a crush injury of the left ankle,” and further, that the radiology of the plaintiff’s left leg and ankle, dated 23 April 2013, was consistent with the presence of osteoarthritis of the left ankle.
10 It is appropriate that I observe, at this point, that in this instance, there is no issue here that the plaintiff has ever suffered a crush injury of the ankle.
11 In a report dated 20 August 2014, Mr Paul Kierce, an orthopaedic surgeon who examined the plaintiff at the request of the plaintiff's solicitors, opined that the plaintiff had suffered fractures of his left tibia and fibula, together with the dislocation of the left ankle joint in the accident of 1 January 2010. In a subsequent report, Mr Kierce opined that whilst the plaintiff had obtained good healing of his fracture, it was likely that he would develop premature arthritis in his ankle joint.
12 In the course of a series of reports, first dated 18 March 2015, Associate Professor Bruce Love, an orthopaedic surgeon, opined that the plaintiff had suffered a minimally displaced but complete fracture of the distal tibia, and that he was not fit for work which involved prolonged standing or heavy lifting.
13 In a further report of March 2015, Professor Love opined that whilst the plaintiff's fractured tibia had united, he may present with early changes of articular cartilage degeneration in his left ankle. Professor Love accepted the plaintiff's position that the condition of his lower limb was such that he could not run, jog or attend gymnasium, and that the status quo, in this respect, was likely to be maintained.
14 In a subsequent report of 29 May 2015, Professor Love opined that the degenerative condition present in the plaintiff's left ankle would probably deteriorate, and whilst that there was a likelihood of possible future surgical intervention, that risk was low.
15 I note that none of the doctors who have opined in this instance have taken any issue with the plaintiff's history that he had suffered a traumatic dislocation of his ankle joint, with the exception of Mr Gerald Moran, an orthopaedic surgeon, who described that injury as being associated with the presence of a possibility of the issue as to whether the plaintiff suffered a traumatic dislocation of his ankle.
16 The defendant puts in issue the causal relationship between the plaintiff's current symptoms and his subject injury.
17 It is put that:
· the plaintiff's current symptoms could only be explained by the occurrence of a traumatic dislocation of the ankle and that the medical evidence from The Alfred hospital contains no reference to the plaintiff having suffered such an injury.
· the plaintiff's evidence that he believed his ankle to have been reduced in the course of the operation undertaken some three days after admission is unlikely, having regard not only to the passage of time involved between the injury and the alleged reduction, but also the absence of any surgical record as to that reduction.
18 Whilst these points are well made, I note that the position agitated for by the defendant is not taken up unequivocally by any medical practitioner who has opined in the matter, and in that sense, is largely a lawyer’s point.
19 Be that as it may, I accept the defendant’s position that it remains an issue which the plaintiff must prove, but I approach the issue on the basis that the medical opinions assembled on the point are largely silent on the issue, and that the defendant chose not to challenge the medical experts, the majority whom have opined on the basis of acceptance of the plaintiff’s history that such an injury was occasioned to him.
20 I am satisfied, having considered all of the evidence, that a dislocation did occur for the following reasons:
(i)I accept the plaintiff's viva voce evidence as to the appearance of his ankle immediately following his injury which is consistent with the occurrence of a dislocation;
(ii)There has been a consistency in the plaintiff’s history as to the issue. I note in this respect, that as early as 19 August 2010, the plaintiff was reporting to his treating physiotherapist the fact that he had suffered a dislocated ankle and appears to have been managed with that condition in mind by Mr Park;
(iii)In November 2010, on his discharge from The Alfred hospital, the plaintiff’s only complaint was of the presence of ankle stiffness, which tends to lend credence to the fact that the plaintiff sustained some sort of trauma to his ankle;
(iv)I take into account the fact that in the absence of a dislocation, no other event has been identified as providing an explanation for the osteoarthritic now present in the plaintiff’s ankle.
(v)I accept the position put by counsel on behalf of the plaintiff that the opinion of Dr Peter Boys – namely that it is unlikely that the diagnosed presence of osteoarthritis in the plaintiff’s ankle would have arisen in the absence of a dislocation of the left ankle or articular surface damage – is supportive of the fact that such a dislocation occurred.
21 I accept the position put by the defendant that if the ankle was dislocated, the reduction of the ankle would probably have been undertaken well prior to the date upon which the plaintiff underwent surgery, and in that sense, the plaintiff’s viva voce evidence was mistaken as to this point. Given the nature of the injury, I would have expected the reduction to have been undertaken shortly after the plaintiff's admission to hospital.
22 I suspect the plaintiff’s confusion as to the timing of the reduction may well be explained by his memory of the event being clouded by the medication with which he was provided to deal with the severe pain in which he presented at the time of his admission to the hospital, as documented in the hospital report, dated 20 December 2012.
23 For these reasons, I am satisfied that the plaintiff’s current presentation, with pain and restriction of movement and tolerance for activity in his left ankle solely arises by reason of the incident and injury sustained by him in the course of his employment with the defendant on 1 January 2010.
24 There is no issue that the plaintiff has, throughout his life, been an active sportsman and that, within the province of motorcycle freestyle riding, he is in the extreme elite category.
25 Even at his current age of thirty-eight, he remains within the top thirty or so participants in the sport, notwithstanding he is well beyond the normal retirement age which is associated with that form of activity.
26 When account is taken of the physical activity undertaken by the plaintiff to execute the manoeuvres, the subject of the DVD evidence in this case, in the performance of which I accept the plaintiff’s evidence that there is a primary reliance upon upper body strength, it is clear that the plaintiff has continued to maintain his upper body strength and dexterity at levels well beyond the norm, and even those in the community who may be regarded as being extremely fit for their age.
27 In that sense, I am satisfied that the plaintiff presents in the rare category of elite athletes, for whom their ability to engage in sporting activity at high and competent levels tends to be important and defining aspects of their lifestyle and their character.
28 In making that finding, I rely upon the plaintiff’s evidence, and that of his father, that throughout the plaintiff’s life, physical fitness and his ability to engage in physical activity in sport, be it basketball, football, snow skiing, horse riding, wakeboarding or motorcycle riding, was a significant and defining feature of his life.
29 I am satisfied that it was for that reason that the plaintiff’s father employed the unusually emotive statement in his affidavit that the effect of his son’s injury has been to ruin his life.
30 I accept the plaintiff’s evidence that his ability to engage in the spectacular activities involved in his freestyle riding is based primarily upon his skill in that activity, and that whilst the appearance of that activity to the uninitiated would suggest that it applies significant pressure on his lower limbs and feet and ankles, that is not the case, having regard to the structure and inclination of the platforms from which he launches himself on his motorcycle and lands.
31 For that reason, I am satisfied that the plaintiff’s ability to engage in the activity of freestyle motorcycling at its highest level in no way provides an insightful measure of the degree of pain or incapacity associated with his current injury, nor does it call into question the evidence by both the plaintiff and the plaintiff’s father on the latter issue.
32 Having regard to the plaintiff’s:
· plethora of sporting injuries;
· tendency to shrug off significant falls in the course of his training as demonstrated in the DVD, which is exhibited in this instance;
· return to freestyle within short periods of suffering significant injuries such as that involved in the fracture of his right heel; and
· action as he recovered from this injury, through his own perseverance, to stave off the development of a chronic regional pain condition;[1]
I am satisfied that the plaintiff has a high tolerance to pain and, for that reason, his lack of treatment and sparse use of medication in managing his symptoms with respect to the subject injury is no indicator that his symptoms are of any less significance than that described by him.
[1]See the report of Mr Park at PCB 41
33 Further, that upon the plaintiff presenting to Dr Olaniyi with symptoms of severe ankle pain in June 2014, he failed to act upon a referral to Mr Hamilton speaks, in my opinion, most probably attests to the plaintiff’s attitude of getting on with things, rather than lack of symptomology.
34 I accept the evidence of the plaintiff’s father, which was unchallenged, that the effect of the injury upon the plaintiff has been such to take from the plaintiff his ability to run, walk quickly, undertake activities such as pushbike riding or wakeboard riding, and that these losses to the plaintiff are very significant.
35 I am satisfied that the plaintiff is now restricted in his capacity to walk, such that he walks with a limp, and is unable to walk for periods of time in excess of an hour, without recourse to significant rest, and for much shorter periods, described by his father as being in the vicinity of five minutes, when engaged in physical activity which stresses his left leg and ankle, such as pushing a lawnmower on a steep slope.
36 Whilst it is clear that the plaintiff retains the capacity to engage in the sport of freestyle motocross riding, which is his first love, it is equally clear that at his age, this sport will soon be precluded to him by reason of his age, and he will, at that time, be denied the opportunity to fill the resultant gap in his sporting life by focussing on the various activities of a sporting nature which he used to participate in, and which have now been precluded to him by reason of his injury.
37 Whilst it is put on behalf of the defendant that the consequences to the plaintiff of the impairment with which he now presents do not meet the description of “serious”, as employed by the Accident Compensation Act, in that the plaintiff retains a capacity for a large range of employment, that his pain management involves the modest use of over the counter medication, and that he retains the capacity to perform most of the activities associated with normal life, I am satisfied that the effect upon the plaintiff’s injury is such that, with respect to an elite sportsman:
· it causes him to experience constant pain which, although varying in intensity, can be severe and interfere with his pattern of sleep
· it limits his capacity for employment to activities which do not require the plaintiff to stand for long periods of time on his feet
· it precludes him from engaging in numerous sports from which he derived considerable enjoyment, such as wakeboarding, snow skiing and running
· it restricts the ability of the plaintiff to engage in any activity which places substantial pressure or strain on his ankle, such as walking for long distances, or on uneven surfaces, engaging in strenuous gym work or playing casual ball sports with his nephew or friends
· it alters the plaintiff’s lifestyle from that of a fit, agile and extremely active elite sportsman, to a man who, for the rest of his life, will be confined to modest forms of activity, and the prospect of increasing symptomology, the progress of which has already been established and has commenced to declare itself by way of symptoms.
38 When account is taken of these factors, together with the plaintiff’s evidence, which I accept, that his symptoms have now reached a level in which they intermittently interfere with his sleep and restrict his level of activity such that he is unable, notwithstanding his appearance of a fit and strong young man, to match the activity level of his five-year-old niece, I am satisfied that the consequences of the plaintiff’s injury are appropriate described as being, for the plaintiff, “more than significant or marked”, and as being “at least very considerable”, and that for those reasons, the plaintiff is entitled to the relief which he seeks in this instance, namely to commence a proceeding claiming damages for the pain and suffering consequences of the injury sustained by him in the course of his employment with the defendant on 1 January 2010.
39 I will hear the parties as to the precise order which should be made in this instance, and also as to the issue of costs.
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