Wilson v Victorian WorkCover Authority
[2022] VCC 1283
•17 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00249
| JOHN FRANCIS WILSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022 | |
DATE OF JUDGMENT: | 17 August 2022 | |
CASE MAY BE CITED AS: | Wilson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1283 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left ankle injury – two incidents - causation – whether first incident a cause of subsequent incident - pain and suffering – loss of earnings
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Peak Engineering v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Acir v Frosster Pty Ltd [2009] VSC 454; Rowe v TAC [2017] VSCA 377; Altona Bus Lines v Lococo[2002] VSCA 159; Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Ingram v Ingram & Anor [1996] 2 VR 435; Baker v Transport Accident Commission & D’Alberto [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSCA 225
Judgment:Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with Ms S C Bailey | Arnold Thomas & Becker |
| For the Defendant | Mr B R McKenzie | IDP Lawyers |
HIS HONOUR:
1The plaintiff, John Francis Wilson, is a 61‑year-old maintenance manager who injured his left ankle in the course of his employment on a development site in Plumpton, Victoria.
2Mr Wilson was employed by Inglobo Pty Ltd, trading as Villawood Properties, to maintain various sites pending their development and handover to the council, and his duties included cutting grass, erecting temporary fences, fixing fences and putting up signs. On 30 September 2014, he was slashing the grass at the Plumpton site along a fence-line with a whipper snipper when he stepped on something and fell to the ground.
3He felt immediate and severe pain in his left ankle. After taking a few moments to deal with the pain, he looked to see what he had stepped on and saw a truck rut which had been obscured by the long grass.
4Over the course of the following weeks, he experienced significant ongoing pain and instability in his left ankle, and strapped the joint, but did not seek medical advice or treatment.
5On 31 October 2014, working on the same development site in Plumpton, his ankle still painful, unstable and strapped, he drove a tractor onto a trailer. As he swung his right leg over the seat to disembark from the vehicle, his left ankle collapsed from under him, and he fell. He injured his back and re-injured his left ankle in the fall.
6The injury to the left ankle is very significant, involving five surgeries, and several further surgical procedures in the context of pain management to alleviate his ongoing pain and symptoms, which have developed into a chronic regional pain syndrome.
7The plaintiff’s application is for leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Act) to institute proceedings for damages against his employer in respect of injuries sustained by him in the course of his employment on 30 September 2014, under both paragraphs (a) and (b) of the relevant definition of ‘serious injury’, both for pecuniary loss and for pain and suffering consequences.
8The central issue in the case is causation. That is to say, was the first incident on 30 September 2014 (the “first incident”) a sufficient cause of the subsequent incident on 31 October 2014 (the “second incident”); alternatively, did the first incident[1] give rise to consequences that are serious?
[1]An issue estoppel arises following a Magistrates’ Court proceeding for statutory benefits. The issue determined in that court is that the first incident involving the plaintiff’s left ankle arose out of and in the course of his employment on 30 September 2014
9Mr Wilson does not rely on the second incident independently of the first incident.
10The Victorian WorkCover Authority (“Authority”) opposed the application on the basis that the second incident was not caused in any material way by the first incident but occurred in circumstances causally independent of it. In particular, that Mr Wilson’s ankle did not collapse, causing him to fall; rather he twisted the ankle in a fall as a consequence of him misjudging his step as he was getting off the tractor. The Authority’s case was put fairly to Mr Wilson in the course of its counsel, Mr McKenzie’s, careful and fair cross-examination:
COUNSEL:Now, I suggest to you that your left ankle had nothing to do with the incident on 31 October 2014, and it was a separate incident unrelated to your left ankle condition. What do you say?
MR WILSON: No.
COUNSEL:And I suggest it was as described by Dr Thomas, that you - when you saw Dr Thomas on 14 February 2019 that you were getting off the tractor, you misjudged, fell backwards, twisting and striking a side barrier to the trailer, in addition to injuring - "to twisting his left ankle as he fell." That's … what really happened on 31 October 2014, isn't it?---
MR WILSON: No.
COUNSEL:You misjudged.., you fell backwards twisting and striking a side barrier to the trailer. And you twisted your ankle as you fell, your left ankle as you fell. That was what happened on 31 October 2014, wasn't it?
MR WILSON: No.[2]
[2] Transcript of hearing (“T”), at page 33
11By its counsel, the Authority concedes that if the 30 September 2014 incident was sufficiently causative of the second incident, it accepts that the plaintiff has established a serious injury for the purposes of paragraph (a), in terms of both pecuniary loss and pain and suffering.[3]
[3] T57, Lines (“L”) 14-19.
12For the reasons set out below, I am satisfied that there was a sufficient causal connection between the first incident and the second incident, and accordingly grant the plaintiff’s application for leave to commence a proceeding for pain and suffering and loss of earning capacity damages against his employer.
13An issue arose at trial as to whether the Authority is bound by an admission made by the claims agent in a letter from EML to Mr Wilson’s solicitors dated 6 April 2021,[4] by which liability is accepted for injuries to the left ankle and lower back sustained on 31 October 2014, with an impairment assessment determined at 0 per cent:
“Given Professor Buzzard’s opinion that the problems with your left ankle arose when you rolled your left ankle stepping on a truck rut and the subsequent event (stepping off your tractor) did not give rise to the injury, but rather, gave rise to the diagnosis of the injury, EML has apportioned the 27% whole person impairment to the truck rut incident. Therefore, there is a 0% whole person impairment to the 2nd incident when you stepped off your tractor.”
[4]Defendant’s Court Book (“DCB”) 19
14This determination was based upon an examination by independent impairment assessor, Associate Professor Anthony Buzzard, on 18 March 2021,[5] and his subsequent report dated 30 March 2021.[6] Given my findings below, there is no need to resolve this issue.
[5] Plaintiff’s Court Book (“PCB”) 145
[6] PCB 154
Evidence
15As is usual in applications of this type, Mr Wilson tendered affidavits sworn 14 September 2020 and 20 May 2022, a lay affidavit of his wife, Julie Wilson, sworn 14 October 2021, and other materials from the separate Court Books filed by the parties. After adopting his affidavits with minor corrections, Mr Wilson was cross-examined by counsel for the Authority. Both parties tendered medical reports and other documents.
Legal principles
16The relevant legal principles in applications of this type are well known and not in dispute.
17Mr Wilson bears the onus of demonstrating that his impairment and/or disfigurement is permanent, and that the consequences of the first incident are serious.
18He must establish that by reference to the consequences to him with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, respectively, are fairly described as being more than significant or marked, and as being at least very considerable, in accordance with the narrative test set out in s325(2)(b) and (c) of the Act.
19Whether an injury is "serious" depends upon the extent of the impairment or loss of a body function resulting from the injury.[7] Where separate injuries resulting from separate incidents impair one body function, it is not permissible to aggregate the effects of the injuries to determine whether the impairment amounts to a serious injury. Each injury and the impairment of a body function resulting from it must be considered separately.[8]
[7] Humphries v. Poljak [1992] 2 V.R. 129 at 134, 137, 140
[8]Altona Bus Lines v Lococo[2002] VSCA 159, at [7], citing Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511
20The question of causation is to be approached in accordance with the principles in March v E & M H Stramare Pty Ltd,[9] applying common sense, asking the question, “Would the plaintiff not have sustained injury on 31 October 2014 if he had not sustained injury on 30 September 2014?” It is not enough that the plaintiff’s employment gives rise to the occasion of injury: it must be the reason for it.[10]
[9](1991) 171 CLR 506
[10]See Acir v Frosster Pty Ltd [2009] VSC 454, at [245] to [250], and the cases referred to in those paragraphs; and Rowe v TAC [2017] VSCA 377
Background
21Mr Wilson was born and raised in Melbourne. Educated to Form 3, he went on to complete a carpet laying apprenticeship in the family carpet laying business, before commencing work as a truck driver. Over the years he also worked in vehicle repairs and maintenance.
22In about 2001, he started working as a builder’s assistant before being offered a role as a maintenance manager with Villawood Properties. He commenced working for Villawood Properties on 5 May 2004 on a full-time basis, responsible for indoor and outdoor maintenance work on various Villawood Properties’ development sites. Many of the sites for which he was responsible were undeveloped, so the role included maintenance of empty lots.
23For all of his working life he has only ever performed manual labouring type jobs and has only the most basic of computer skills.
24As set out above, and is not in dispute, Mr Wilson injured his left ankle at work during the first incident and injured it again in the course of his employment in the second incident whilst disembarking from a tractor.
25Mr Wilson completed an injury claim form on 16 December 2014, nominating the date of injury of 31 October 2014 (the date of the second incident). This claim was accepted on 18 December 2014.[11]
[11] DCB 4 and 8
26It is also not in dispute that the injury to his left ankle is serious, requiring no less than five operations involving orthopaedic surgery, and a further six surgical procedures in the course of treatment of his pain in the ensuing years.
27He saw his general practitioner, Dr Kazi, at the Point Cook Medical Centre in early November 2014, and was referred to Mr Audi Widjaja, a lower limbs, trauma and general orthopaedic surgeon. Following various radiological investigations, on 22 December 2014, Mr Widjaja performed the first surgery on Mr Wilson’s left ankle, being an arthroscopy.
28On 6 May 2015, after magnetic resonance imaging (MRI) disclosed significant rupture and tearing of ligaments together with osteoarthritis on the medial aspect of the ankle, another orthopaedic surgeon, Dr Geoffrey Tymms, performed the second surgery at the Epworth Hospital in Richmond, being left ankle lateral ligament reconstruction with a debridement of the posteromedial ankle. Following a further MRI, Dr Tymms performed a third surgery to the left ankle on 7 November 2015 by way of further arthroscopy and debridement.
29Thereafter, Mr Wilson’s ankle was the subject of further radiological investigations and further conservative measures including cortisone injections, plasma injections, and another form of blood-based treatment, before Dr Tymms performed a fourth surgery on the left ankle on 31 May 2017 by way of arthroscopic arthrodesis, fusing the left ankle joint.
30Mr Wilson was left with pain in the residual lateral gutter of the ankle due to worsening arthritis, which required excision of the distal end of the fibula. Accordingly, on 18 April 2018, Mr Wilson underwent a fifth surgical procedure by way of resection of the left distal fibula, and removal of screws inserted during the course of the fourth operation.
31The left ankle then developed nerve related symptoms, and Mr Wilson was referred to the Dorset Rehabilitation Centre for treatment under Dr Clayton Thomas; and to Dr Diarmuid McCoy, a pain specialist, who diagnosed chronic regional pain syndrome (CPRS). In order to treat the pain in the left ankle, Dr McCoy performed further surgical procedures as follows:
(a) on 8 August 2018 and 9 January 2019, lumbar sympathetic blocks;
(b) on 26 June 2019, percutaneous trial of spinal cord stimulation by temporary surgical placement of epidural electrode wires;
(c) on 22 July 2020, insertion of a dorsal root ganglion stimulator implant;
(d) on 16 December 2020, insertion of further leads and an IPG; and
(e) most recently, in October 2021, a ketamine infusion.
32In addition to the spinal stimulator for treatment of pain, Mr Wilson takes Targin, Endone and Palexia daily.
33During the course of the hearing, I conducted a view of Mr Wilson’s left ankle. For this to occur, Mr Wilson removed a moon boot, and a further supportive brace over his sock. The scarring on the lateral aspects of the left ankle relating to the various surgical procedures was evident. Mr Wilson also demonstrated to me the nature of the prone or fixed fused ankle and the difficulties he has with placing his foot flat. In order to do so, his left leg must extend out to the left side of his body. When standing upright, I was able to observe that weight-bearing is restricted to the lateral aspect of the little toe and the left heel, and that he moved with a pronounced limp.
Causation
34I accept the evidence of the plaintiff, who appeared, although at times agitated, to be a straightforward witness who did his best to answer questions directly and honestly. He made a number of frank concessions, and was consistent otherwise in his sworn evidence as to the circumstances of the first incident and, in particular, the sequence of events giving rise to the second incident.
The first incident
35The plaintiff described the first incident in his affidavit sworn 14 September 2020 as follows:
“14.On or about 30 September 2014 l was booked in to slash the grass along the fenceline (sic) at the Plumpton site. The grass was extremely long and overgrown.
15. ln fact, the grass was so high and there was so much land to cover that usually the Development Manager would have gotten a slashing company to do it. However I was told that they could not come for six weeks, and the Council had sent notices requiring the works to be completed, so I was given the job.
16. As I was cutting the grass with a whipper snipper I stepped on something peculiar and fell to the ground ("the incident”).
17. I felt immediate and severe pain in my left ankle. After taking a few moments to deal with the pain I looked to see what l had stepped on, and saw when the gras was pulled to the side that I had stepped on a truck rut which had been obscured by the long grass.
18. Given there was no one around to help me I sat on the gras for some time before hobbling back to my car.
The aftermath of the first Incident:
19.The next day I strapped my ankle myself and went to work. I have never been one to go running to a doctor, and I thought in a few days it would get better. I also am not one to miss a day of work.
…
21.Despite my ongoing pain and weakness in my ankle causing me to hobble around, I just got on with the job.
22.About a month or so later, on or about 31 October 2014, I was working on the same development site in Plumpton. At this time my ankle was still very painful and unstable. I had my ankle strapped. …”[12]
[12]PCB 17-18
36Mr Wilson was not challenged about his evidence as to the circumstances of the first incident, and I accept that is what occurred.
37Nor was his evidence challenged that, as a result of the first incident, his ankle was still painful, and strapped at the time of the second incident.
The period in between the two incidents
38Mr Wilson was cross-examined in some detail about the extent of his symptoms in between the two incidents. That cross-examination established the following:
(a) he continued to perform his normal duties after the first incident, by reference to his description of those duties in paragraph 12 of his first affidavit. Those duties included “cutting grass, erecting temporary fences, fixing fences, putting up signs. The sites (six or seven different estates) varied in size, some were relatively small or others were larger. I was responsible for maintaining the sales office and its surrounds. This could involve general gardening duties, painting, hanging pictures, furniture removal and more”;[13]
(b) he did not seek any medical attention until he saw his treating general practitioner, Dr Kazi, on 7 November 2014;
(c) although he did not mention it in his affidavit, he may have taken Panadol or something in terms of medication between the first and second incidents, but he could not recall taking it and could not say for certain that he had;[14]
(d) at the time he first saw a doctor on behalf of the insurer on 6 June 2018, a Dr Joseph Slesenger, Mr Wilson stated that between 30 September 2014 and 31 October 2014 he was involved in all aspects of property maintenance which included mowing, fence building, trench digging, as well as supervising contractors on site, albeit “very gingerly”, working on a full-time basis from 7.00am to 4.00pm, Monday to Friday and on call;[15] and
(e) at the time of the second incident, he was not on light duties as he had never seen a doctor, and was travelling between one and three hours by car to get to and from particular estates for work each day.
[13] Paragraph 12 of the plaintiff’s first affidavit; T 24
[14] T22
[15] T24-25
39Mr Wilson told Dr Slesenger that his work required constant standing, forward reaching, and climbing up and down tractors, and involved repetitive bending and twisting, and lifting weights up to 50 kilograms, for example, flagpoles. He did not know, however, if he had performed these specific duties in between the first and second incidents. His employment involved work on different estates, and he did not accept that he in fact performed those specific duties during this period, as he did not have access to timesheets which recorded work actually done on each estate on a particular day.[16] He also gave evidence as follows:
[16] T24
COUNSEL:You continued to perform your normal duties, whatever was required you did it; is that right?
MR WILSON: Where - what I could do, and the subcontractors, with who I organised the work for, to go - because each estate I'm allocated hours on each estate each day, from a development manager, so I allocate their hours and my hours to what I'm - I've got a block of hours to be done. So whether I've done it, or I've organised someone else to do it.[17]
[17] T24, L19-26
…
COUNSEL:And you'd been doing normal duties and normal hours up until 31 October 2014, is that right?
MR WILSON: No. I was at work organising my normal duties and doing what I can. I wasn't doing exactly what you've got there on paper between that date and that date. Like you've stipulating. You know, I was at work doing the best I could, organising everything as I was hobbling around. You're suggesting that I'm doing all this flat out like I was doing beforehand.
COUNSEL:That's what I was trying to clarify with you before as to what you were doing between - - -?
MR WILSON: I said to you I done it really gingerly and you keep throwing it back that I was –
COUNSEL:You were doing it, weren't you? You were doing your normal work?
MR WILSON: No, I wasn't.[18]
[18] T28-29
The second incident
40The evidence as to the circumstances of the second incident includes the following:
(a) in Mr Wilson’s first affidavit (sworn 14 September 2020), at [22]:
“… on or about 31 October 2014, I was working on the same development site in Plumpton. At this time my ankle was still very painful and unstable. I had my ankle strapped. After spending the day slashing, I drove the tractor onto the trailer and turned the engine off. As I swung my right leg over the seat to disembark my left ankle collapsed from under me and I fell. As I fell I hit my back first on the side of the trailer and then fell to the ground. I then lay on the ground unable to breath (scil breathe). I was winded and in pain. I had severe pain in my back and my ankle.”
(b) history to Dr Kazi, 7 November 2014, recorded in the progress notes: “when he was putting the tractor in trailer he fell and twisted his back and right ankle”;[19]
[19] PCB 88
(c) Worker’s Injury Claim Form dated 16 December 2014, filled out by Stuart Verner, the COO of the plaintiff’s employer, Inglobo Pty Ltd, and signed by Mr Wilson:[20]
[20] DCB 4
“John stepped down from loading the tractor onto the trailer and overbalanced when his ankle gave way. He was unable to grab the grab bar in time and fell onto the ground twisting his ankle and landing on his back.”
(my emphasis)
(d) Employer Injury Claim Report dated 16 December 2014 signed by Mr Verner,[21] on the basis of information supplied by Mr Wilson.[22] In response to the question, “What happened and how was the worker injured?”, the claim report records:
[21] DCB 7
[22] T32
“John stepped down from loading a trailer and his ankle collapsed. He was unable to reach the grab bar and fell onto the ground on his back.”
(my emphasis)
(e) history to Dr Kazi, 9 December 2020, recorded in the progress notes: “his left ankle was strapped and he was getting off the tractor which was on top of trailer and he lost the balance as his ankle gave way (left) side and he … hit the edge of the trailer with his lumbar spine…”;[23]
[23] PCB 91
(f) history to Associate Professor Anthony Buzzard recorded in the independent impairment assessment report dated 18 March 2021:
“… he was at work getting off a vehicle on the back of a trailer when his left ankle ‘gave way’”;
(g) history recorded in the report of Mr Peter Lugg to IDP Lawyers dated 11 April 2022,[24] that:
[24] DCB 59 at 60
“Mr Wilson said that he then injured the left ankle again in late October, he thinks it was 31st, when, as he was getting off a tractor, his left ankle collapsed and he fell, striking the trailer that the tractor was on, and then falling to the ground.”
(h) at the hearing on 31 May 2022:
(i)during cross-examination, “I went down with my ankle off the tractor”;[25]
[25] T25, L16
(ii)in a further exchange with Mr McKenzie -
COUNSEL:Then [the Worker’s Injury Claim Form dated 16 December 2014] says: "He climbed down off the tractor and as he stood on the side step of the tractor, his ankle collapsed and he overbalanced." Did you supply that information?
MR WILSON: Yeah, but that's been worded – like I don't know how you – "He climbed down off the tractor, then stood on the side step". So the side step's here, climbing down's down there, you know what I mean? I stood on the side step, I went to turn, and then collapsed.[26]
…
COUNSEL:Then it says: "What task were you doing when you were injured?" "Loading a tractor onto a trailer, then stepping down onto the ground." Who supplied those words, or who supplied that description?
MR WILSON: I was not there when this was filled out. They've taken – I've described that description, but your word that I stepped down to the ground. I didn't step down to no ground, I collapsed as I got off the truck. As I lifted my leg over the seat to get off the truck, there's the grab rail you just mentioned, there's the steering wheel, there's the grab rail – as I've grabbed the grab rail, my left foot's onto the side step. As I've lifted my right leg over the seat to get off, like you have to, my ankle's collapsed and I've gone straight down and folded over the trailer with my back, and then hit the ground. Rolled actually onto the ground.[27]
[26] T31
[27] T29
41In the course of cross-examination, Mr Wilson disputed the accuracy of a number of histories to doctors recorded in various reports in relation to the second incident, including:
(a) Dr Clayton Thomas in his report of 14 February 2019,[28] where the sequence of events in relation to the second incident was recorded as follows:
“He then put the tractor onto the back of the trailer on 31 October 2014. As he was getting off the tractor he misjudged, fell backwards, twisting and striking a side barrier to the trailer, in addition to twisting his left ankle as he fell.”
Mr Wilson’s evidence was that:
“I wouldn’t have explained it like that. I - my ankle collapsed as I turned around to get off the trailer. I did not fall backwards. I collapsed and come straight down. I didn't fall off something.”[29]
(b) the history recorded in the report of Dr Joseph Slesenger dated 6 June 2018,[30] that the sequence of events in relation to the second incident was “he was manoeuvring out of a truck, he twisted, lost his balance and his left ankle collapsed.” This was emphatically denied by Mr Wilson;[31]
(c) Mr McKenzie’s suggestion, based on the history recorded in the report of Mr Peter Lugg to IDP Lawyers dated 11 April 2022,[32] that following the 30 September 2014 incident there “no further problems, apart from some ongoing discomfort”. Mr Wilson described this as “wrong, that is outright lie … an absolute lie”.[33]
[28] Supplementary DCB 25
[29] T32
[30] DCB 35
[31] T43
[32] DCB 59 at 60
[33] T41-42
42Mr Wilson was also cross-examined about his Worker's Claim for Impairment Benefits Form dated 3 December 2019, which specified the date of injury to his left ankle as 31 October 2014, but which did not mention the first incident. Mr Wilson gave evidence that:
“…when I'm talking about my incident, I'm talking the whole incident. When I hurt myself in September and then I hurt myself in November. You're only talking about the one incident. When I'm talking about my WorkCover claim, well – to anybody, I'm talking about the incident.”[34]
“I didn't realise the significance of when I first rolled my ankle until Mr Timms [sic] told me that I damaged the ligaments in the first – when I first rolled my ankle. That's what he stipulated. …
Yeah. And again I'm talking about one – the whole thing to me is one incident. I hurt myself at work. And no use to go stipulating dates and so forth, I hurt myself at work.”[35]
[34] T36
[35] T37
Findings
43The Worker’s Injury Claim Form dated 16 December 2014 is the first detailed account of the circumstances of injury sustained in the second incident and seems to me, considering all of the evidence, to record the essence most fairly of what occurred. It is consistent with Mr Wilson’s sworn evidence in his first affidavit.
44Although the initial Worker’s Injury Claim Form completed 16 December 2014 does not refer to the earlier incident in September 2014, Mr Wilson’s explanation was that:
(a) he was called in to work after the second incident, before the first surgery on his left ankle (arthroscopy performed by Mr Widjaja on 22 December 2014) to sign the WorkCover Claim Form;[36]
(b) the Claim Form dated 16 December 2014 was filled out by his employer on the basis of his history of the circumstances of the second incident,[37] and he was not asked by his employer about the first incident at the time.[38]
[36] T29-30 and 35
[37] T30 and 33
[38] T29
45I accept that explanation. In fact, Mr Wilson did not lodge a claim in relation to the 30 September 2014 incident until 12 May 2021, being a claim for weekly payments and medical and like expenses under the Act.[39] It is consistent with Mr Wilson’s general approach in that he had a number of other incidents at work in the past involving stitches and other injuries, and had never made a claim for compensation; further that initially it was not his intention to make a claim for compensation following the first incident, or indeed the second incident.
[39] DCB 31
46I also accept that whilst the plaintiff returned to “normal duties” after the first incident, he was only able to perform his duties “gingerly” during the period of about a month before the second incident. Whilst he continued to perform quite heavy work at times, and was able to drive to and from work - which took between one and three hours depending upon the location of the estate he was working at - after the first incident Mr Wilson was compromised in that he was unable to complete all of his usual pre-injury duties, instead performing those duties he could manage, and allocating other work to contractors.[40] Although he did the best he could, hobbling around with his ankle strapped, Mr Wilson was unable to undertake his duties in the same manner as he did before the first incident as a consequence of the injury to his left ankle.
[40] T25
47Mr Wilson understandably gave evidence that without the benefit of his time sheets, which recorded his duties on a daily basis, he did not now recall the precise tasks he performed during those dates, being eight years ago. However, I accept, particularly having regard to the affidavit of his wife, that he was compromised in this period, and strapped the ankle.
48Mrs Wilson’s evidence, unchallenged, was as follows:
“12. Over the next month or so I helped John strap his left ankle most mornings before he left for work. I would also pull off the strapping at night and make John keep his boots off and his foot up to take some pressure off his ankle. His ankle often appeared to me to be swollen in the weeks after the truck rut incident. Again I suggested to him that he should see a doctor but he told me to stop making such a fuss.
13. During that month or so John continued to limp around the house.”[41]
[41] PCB 31
49I accept that he did not seek any medical treatment prior to the second incident and could not recall whether or not he took any Panadol for his pain in that period.
50There was no evidence as to the efficacy of the strapping employed by Mr Wilson after the first incident, in particular whether or not it would have prevented the plaintiff’s left ankle from collapsing under him in the manner alleged. However, it was not put to him in cross-examination that, if strapped, it could not have occurred. I draw the inference, it being strapped, that his left ankle was symptomatic with pain, functional restriction and instability in the weeks after the first incident.
51I find that the absence of reference to the date of the first incident in the 3 December 2019 claim form to be of little weight. Despite reference to 31 October 2014, it is unclear anyway to which incident he referred in this document, which records the duties performed when the injury occurred as “slashing area/clearing rubbish” without mentioning the tractor. Mr Wilson clarified in re-examination that the duties relevant to the impairment benefits claim form were “brush cutting fence lines”;[42] and confirmed that the incident he was referring to in the claim form was, “When I rolled my ankle in the truck rut”, all of which are consistent with his account of the first incident.
[42]T51
52On the evidence as a whole, I find that the plaintiff has established the necessary causal connection between the second incident and the original incident. But for the first incident, Mr Wilson’s left ankle would not have been swollen, painful and unstable, or strapped, and would not have collapsed from underneath him as he was alighting from the tractor on 31 October 2014 in the circumstances described by him, resulting in further insult to the ankle.
53Whilst the defendant’s counsel took me through a helpful excursus of the law in relation to causation, it seems to me that if I accept the evidence of the plaintiff as to the circumstances of injury on 31 October 2014, in particular that his injured left ankle gave way as he was attempting to disembark from a tractor, then the common sense test of causation is satisfied. I accept the plaintiff’s evidence of the circumstances of the second incident.
54I am fortified in this view, notwithstanding the absence of unequivocal medical evidence in much of the material in the Court Books, by the careful analysis of Associate Professor Buzzard in his reports dated 18 and 30 March 2021.
55In particular, Associate Professor Buzzard was of the view that:
“In my opinion, based on all the evidence that I have, I think that the pathology which led to Mr Wilson’s continued problems with his left ankle initially arose when he rolled his left ankle in a truck rut in October [sic] 2014. The problem was not diagnosed at the time. That is not uncommon in injuries such as this. My interpretation of the situation is that the subsequent event did not give rise to the injury but rather gave rise to the diagnosis of the injury.”
56That opinion is consistent with the plaintiff’s treating general practitioner, Dr Kazi, who states:
(a) in his report dated 8 August 2021, having recorded a history of the two separate incidents, that “Employment at lnglobo is significant contributing factor and directly related to work related injuries”, not identifying, relevantly, the second incident as being other than work related;[43] and
(b) in his report dated 26 August 2021 that:
(i)the “first incident was the significant contributing factor to the causation of injury diagnosed in question 1 of my report dated 8 August 2021”; and
(i)(in answer to the question: Do you agree with Associate Professor Buzzard that the first incident caused the left ankle injury detailed in question (1) of your report dated 8 August 2021?) “Mr Wilson’s pathology and continued problems are related to first incident.”[44]
[43] PCB 86
[44] PCB 98
57A medico-legal consultant engaged by the plaintiff, Dr Nathan Donovan, in his report dated 22 September 2021,[45] also states:
“Mr Wilson is a 60-year-old male who, on 30 September 2014, sustained an inversion injury to his left ankle when stepping in a truck rut at work. A second, related injury and the surgical intervention that followed has led Mr Wilson to now have complex regional pain syndrome in the setting of arthrodesis of the left ankle, refractory to prolonged pain specialist involvement including neuromodulation.”[46]
[45] PCB 137
[46] PCB 141
58Dr Donovan goes on to opine that:[47]
(a) “The first incident in September 2014, involving a truck rut, was a significant contributing factor to the causation of further injury a month later and its subsequent surgical management and complications”;
(b) “The first incident was likely the cause of the injury, and the second incident allowed for the diagnosis of this injury”;
(c) “The injury sustained from the first incident is a significant contributing factor for the occurrence of the second incident. In addition, I suspect the injury was exacerbated by the second incident.”
[47] PCB 142
59Other reports tendered do not assist, in that they relate the injuries to both incidents, without expressing a view as to any causal link between them.
60I accept Mr Wilson’s evidence as to the circumstances of the second incident, including the extent of his symptoms and joint instability following the first incident. I infer that he was wearing an ankle brace to guard against the very risk which eventuated, which was an elevated risk of injury to his left ankle at work as a consequence of the first injury.
61The Authority submitted that the plaintiff did not adduce sufficient evidence to establish the consequences arising from the separate incidents; alternatively that such consequences arose other than on the basis of an aggregation of the two, neither of which is permissible under Peak Engineering v McKenzie[48] and Petkovski v Galletti.[49] Its position was that the first incident was not causative of the second, that the evidence does not allow the Court to differentiate between symptoms and consequences arising from each incident, and the plaintiff’s claim in relation to the incident on 30 September 2014 must therefore fail. For the reasons set out above, I reject the submission that the first incident was not causative of the second.
[48][2014] VSCA 67
[49][1994] 1 VR 436
62The agent, in accepting Associate Professor Buzzard’s view, and any other evidence it had at the time, whilst not determinative of the application before me, is also supportive of a resolution of the issue of causation in the worker’s favour. That is to say, applying common sense in accordance with the principles referred to above including in March v Stramare, and including the common experience of such injuries as referred to by Associate Professor Buzzard, I am satisfied that the first incident was a sufficient cause of the second incident.
Consequences
63Noting the Authority’s concession, by way of summary in terms of the consequences of his injury, Mr Wilson feels unrelenting pain in his left ankle, described as a continuous, never-ending ache. It is all over his ankle and extends up the back of his left calf. It is worse in the morning, with great sensitivity to touch. Some parts of his foot and toes have no feeling at all. His left foot gets easily inflamed and regularly swells; and sometimes his left foot and leg shudders. The left foot and ankle change colour from a bright red to a purple. Since the fusion surgery in 2017, he can only stand on his little toe and the back of his heel and can no longer stand with his whole foot flat on the ground. He walks with a very noticeable limp. Whilst he is able to manage walking around his own house, largely with the use of a crutch, anything more severely aggravates the pain in his left foot.
64The pain in his ankle continues to affect his ability to sleep severely. He now has to avoid his favourite hobby of fishing because of difficulties walking across a beach or any uneven surface to get to water, and he has difficulty standing for any length of time. He has not used his boat since 2015. He no longer attends football games to support his AFL team, the Kangaroos. He has had to stop building and fixing things around the house, and is no longer able to maintain his garden. As a result of his left ankle injury, he has not taken the rubbish bins out at home for years and is not able to mow the lawns.
65Mr Wilson says that apart from attending doctors’ appointments, he does not recall leaving his house since his fusion surgery in April 2018 as he finds it too painful to walk anywhere.[50]
[50] Affidavit of Mr Wilson sworn 14 September 2020 at paragraph 83
66At the time of his injury, Mr Wilson was earning approximately $56,000 gross. It is not in dispute that he has no current work capacity, and that this incapacity is permanent.
67The plaintiff has suffered, on any view, a very significant injury to his left ankle. The employer accepts that this injury has serious consequences to the plaintiff in the sense considered by the Act, both in respect of pain and suffering and loss of earnings.
Disfigurement
68As a consequence of my finding that Mr Wilson’s loss of function under paragraph (a) is serious to him, there is no need for me to determine the paragraph (b) claim. In deference to the submissions made by the parties, however, I make the following brief findings.
69The scarring and disfigurement are permanent, in an area which, provided he is wearing shoes and socks, is concealed, however his ankle deformity following fusion is apparent.
70Whilst I accept the scarring and disfigurement have significant consequences to him, I do not consider them to be “at least very considerable”[51] when judged by comparison with other cases in the range of possible disfigurement. Whilst the disfigurement is very obvious upon close inspection, I must be satisfied that it is, when judged by comparison with other cases, in the range of possible disfigurements, fairly described as being more than significant or marked, and as being at least very considerable.
[51]See Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702, at paragraph [13], per Callaway JA
71In reaching my decision, I have had regard to a number of authorities in which serious injury applications involving scarring and disfigurement have been considered, including Ingram v Ingram & Anor,[52] Baker v Transport Accident Commission & D’Alberto[53] and Transport Accident Commission v Garcia,[54] as well as more recent County Court cases.
[52][1996] 2 VR 435
[53][1997] 1 VR 662
[54][2015] VSCA 225
72I am not persuaded that the consequences of the disfigurement, having regard to the nature and breadth of those consequences, constitute serious disfigurement and scarring within the legislative requirements.
Conclusion
73For the reasons set out above, I am satisfied that:
(a) Mr Wilson’s impairment is permanent; and
(b) he has a serious injury by reference to both his pain and suffering and loss of earnings.
74Accordingly, I grant him leave under s335 of the Act to bring common law proceedings to recover pecuniary and non-pecuniary loss damages for injuries he sustained on 30 September 2014, arising out of or in the course of his employment with Inglobo Pty Ltd.
75I will hear the parties on the question of costs.
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