IN THE COUNTY COURT OF VICTORIA Revised AT MELBOURNE …€¦ · registered roof plumber and, later...

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

!Und efined Boo kmark, I

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

SERIOUS INJURY LIST Case No. CI-15-04557

WAYNE KOLLEN Plaintiff v PIROTTA ROOF PLUMBING PTY LTD Defendant

---

JUDGE: HER HONOUR JUDGE K L BOURKE

WHERE HELD: Melbourne

DATE OF HEARING: 25 August 2016

DATE OF JUDGMENT: 5 September 2016

CASE MAY BE CITED AS: Kollen v Pirotta Roof Plumbing Pty Ltd

MEDIUM NEUTRAL CITATION: [2016] VCC 1425

REASONS FOR JUDGMENT

--- Subject: ACCIDENT COMPENSATION Catchwords: Damages – serious injury – impairment to the left leg – pain and suffering

only Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38) Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v

Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; State of Victoria v Glover [1998] VSCA 93

Judgment: Leave granted to bring proceedings for damages for pain and suffering.

--- APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr A Saunders Maurice Blackburn For the Defendant Mr J Valiotis Russell Kennedy

VCC:LM/AS

1 JUDGMENTKollen v Pirotta Roof Plumbing Pty Ltd

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 11 April 2013 (“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 primarily pursuant to clause (a) of the

definition of “serious injury” to be found in s134AB(37) of the Act. There,

“serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4 The relevant body function is the left lower limb.

5 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”.

6 I have applied the principles identified by the Court of Appeal in Barwon

Spinners Pty Ltd & Ors v Podolak1 and Grech v Orica Australia Pty Ltd2 in

reaching my conclusions.

7 The plaintiff relied upon two affidavits and gave viva voce evidence. 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

8 The plaintiff is presently aged forty-eight, having been born in July 1968. He is

1 (2005) 14 VR 622 2 (2006) 14 VR 602

VCC:LM/AS


separated and has two children, the eldest twelve and the youngest ten.

9 Having finished Form 5, the plaintiff did an apprenticeship as a roof tiler. He

worked in that field and later worked as a roof plumber. He then became a

registered roof plumber and, later still, a licensed roof plumber.

10 In October 1998, the plaintiff started work for the defendant as a roof plumber.

11 On the said date, the plaintiff suffered injury when he slipped and badly gashed

his left lower leg when installing roofing at a Carrum Downs factory (“the

incident”).

12 The plaintiff lodged a WorkCover Claim which was accepted.

13 The plaintiff underwent surgery at Frankston Hospital (“the first surgery”) and,

thereafter, had an extensive period of rehabilitation with a local physiotherapist.

14 As the plaintiff still had footdrop and restricted ankle and foot movement, his

surgeon, Mr Lee, recommended further surgery, which the plaintiff underwent

in December 2013 (“the second surgery”). Thereafter, he again had extensive

rehabilitation.

15 As of 9 May 2015, when he swore his first affidavit, the plaintiff was seeing his

local doctor, Dr Fox, monthly. The plaintiff wore a brace from time to time, but

found it uncomfortable, so tried to do without it.

16 The plaintiff had about five or six months off work before returning on a part-

time light duties basis. After the second surgery, he was again off work for a

similar time before, again, returning to work, eventually graduating to full-time

modified duties. He was made redundant in December 2014.

17 The plaintiff started another job as a roof plumber in February 2015. He worked

in a factory for a short period, before starting to work for himself again as a roof

plumber. Working full time in employment after the incident, the plaintiff could

VCC:LM/AS


get all the jobs done.3

18 In his first affidavit, the plaintiff described suffering footdrop, numbness in his

toes, a tingling sensation with his foot, which he found most uncomfortable, and

swelling around his foot and ankle, together with a feeling of sensitivity over the

wound site.

19 The plaintiff’s ankle was also very stiff. His left lower leg cramped, especially

at night, which often disrupted his sleep. The wound site was also swollen and

badly scarred.

20 The plaintiff could not run because of the footdrop. He had difficulty kneeling,

squatting, standing on one leg, or for long periods, and walking on uneven

ground because of a loss of strength and function in his lower leg.

21 As a consequence, the plaintiff had difficulty doing a range of things, including

some daily activities but, more particularly, a range of social and recreational

activities, most of which revolved around keeping fit, which was very important

to him.

22 Before the incident, the plaintiff was a keen power lifter. He regularly entered

competitions and trained four or five times a week. However, he was now

limited in his ability to power lift as a result of loss of leg function. He was not

able to compete.

23 Pre-incident, in competition, the plaintiff squatted 200 kilograms, bench pressed

130 kilograms and deadlifted 230 kilograms. He competed in the Masters at

the State and National championships, and held some records. He thought he

came second in the State titles and in the National bench press competition.4

24 The plaintiff held records from 2010 to 2012, with Masters records for most lifts.

He held those records at the time of the incident.5 The last State titles in which

3 Transcript (“T”)16 4 T19 5 T42

VCC:LM/AS


he competed were early in the year of the incident, and he competed in the

National championships the previous year.6

25 The plaintiff still powerlifts at the gym, trying to compete again. He fell over

about a month ago, doing a 120-kilogram squat, because of his left leg. He now

manages to comfortably squat 100 kilograms. He has been told by his coach

that when he squats, he shifts his weight to the right to take most of the lift, and

that was how he recently fell backwards and dumped the bar. He had fallen for

this reason a couple of times.7

26 Pre-incident, the greatest weight the plaintiff could deadlift was 230 kilograms

and the best he had done since was 160 or 170 kilograms. He would now need

to lift 250 kilograms to get into competition.8

27 The plaintiff does powerlifting once a week in the three to four times a week he

attends the gym.9 Despite being able to do perform heavy lifts after the incident,

he still has difficulties at work.10 Whilst he could deadlift up to 170 kilograms,

he still has difficulty walking on uneven ground.11

28 The plaintiff was also a keen social kick boxer before the incident, and this

activity was a regular part of his gym routine. However, he is no longer able to

kick box and he can no longer kick with, or balance, on his left leg.

29 The plaintiff was a keen jogger before the incident, running once or twice a

week. He is no longer able to run as a result of his leg injury.

30 The plaintiff could run if he had to, say if his child was stranded in the middle of

the road, but his leg does not work how it used to. He cannot go for a run.12 It

is just like he is “hopping”. He cannot get the roll from his heel off his toes to

6 T22 7 T24 8 T22 9 T22 10 T23 11 T25 12 T25

VCC:LM/AS


kick off, because he cannot retract his foot high enough.13

31 Pre incident, the plaintiff used to run 10 kilometres and did sprints for general

fitness. He had trained since the age of twelve, was a fourth degree black belt

and had boxed competitively.14

32 Pre incident, the plaintiff weighed about 84 kilograms but he now weighs 99

kilograms, as he has not been able to do his routine cardio exercise to burn

fat.15

33 The plaintiff is no longer able to play actively with his children who, before the

incident, he used to regularly take bike riding, swimming and otherwise play

actively with them. He is very limited in what he can do because of his lack of

mobility and inability to run. He cannot ride a bike with them as long as they

would like.16

34 The plaintiff’s son used to box, as did the plaintiff. The plaintiff trained with him

to give him a bit of encouragement, but he is now unable to do so because of

the limitations with his leg. The plaintiff cannot box, as it is awkward to skip and

he has lost his timing. His leg fatigues very quickly and starts aching.17

35 In 2015, the plaintiff had difficulty driving anything other than short distances,

as he found it difficult to operate the clutch with his left leg. Now, driving his

automatic car, his leg aches and throbs.18

36 In his second affidavit, sworn 2 August 2016, the plaintiff stated he continues to

see Dr Fox every two to three months.

37 The plaintiff agreed, since seeing him the week before the hearing, it was

maybe a year since he had seen Dr Fox specifically for his leg, but he did

13 T26 14 T20 15 T5 16 T42 17 T44 18 T40

VCC:LM/AS


discuss it when he saw him for other issues.19 He sees Dr Fox to obtain

referrals to a psychologist, which he requires under his Mental Health Plan.20

38 The plaintiff attends a myotherapist fortnightly and a chiropractor, James

Mawby, monthly, the latter for general wellbeing, as well as for his left leg

condition. He pays for these treatments, as the defendant refuses to do so.

39 The plaintiff explained he now also has chiropractic treatment for his leg, having

initially had it for his back only. His leg makes his back go out because he

cannot walk. He has always got a limp or he cannot walk properly, so his hips

go out and that transfers through his lower back.21 The chiropractor adjusts his

hips now to correct this. The plaintiff has seen a chiropractor for eighteen years

for back-related issues.22

40 The plaintiff takes Ibuprofen, two tablets most days, together with magnesium,

daily, for cramping. He takes this level of Ibuprofen when he is working. He

takes it if he has some discomfort when his leg is sore.23

41 The plaintiff does not take any prescribed painkillers and is given Lexapro by

Dr Fox. He also sees a psychologist and takes Loxalate.

42 The plaintiff still wears a brace from time to time; however, it is uncomfortable,

so he tries to do without it.

43 There has been no real change in the plaintiff’s condition and he continues to

suffer the same symptoms and ongoing lower leg cramps, especially at night,

which disrupt his sleep. The wound site remains sensitive, swollen and badly

scarred.

44 In the witness box, the plaintiff said it felt like his left foot was swelling and he

wanted to take off his shoe. His foot was tingling and there was numbness in

19 T12 20 T13 21 T8 22 T9 23 T15

VCC:LM/AS


his three outer side toes. His foot felt stiff and uncomfortable.24

45 The plaintiff’s symptoms are such he often has to rest his leg for an hour or two

in the evening.

46 The plaintiff wakes most nights, say two or three times, because of the cramping

disrupting his sleep. At least once a night, he has to get up and stretch, and

sometimes in the morning he has to stretch his legs out or he struggles to get

out of bed. As a result, he invariably wakes feeling unrefreshed and often feels

tired during the day.

47 Otherwise, the plaintiff continues to suffer the functional limitations described in

his first affidavit. He cannot run, except the shortest distances, and has

difficultly kneeling, squatting on one leg, or for long periods, and walking on

uneven ground. As a consequence, the plaintiff is no longer able to do a

number of things and has difficulty doing a range of others, including intimacy,

and other things previously deposed to. He also has some difficulty dressing,

socks being a particular problem because of his footdrop.

48 The plaintiff denied any improvement since the second surgery. He did not

think there was any change in his ability to run since he swore his first affidavit.25

49 The plaintiff copes reasonably well, especially now that he is self-employed, as

he is able to work around his limitations. He does find it very difficult being up

and down ladders all day.

50 After performing certain tasks at work one day such as squatting, going up and

down ladders, doing penetrations though roofs, having to retract his foot, he

has trouble doing things at work the following day. Going up and down ladders

was a problem because of the lack of strength in his foot. The following day,

after doing these tasks, he is fatigued and he might have time off as a

24 T40 25 T39

VCC:LM/AS


consequence.26

51 The plaintiff is still performing all the tasks of a roof plumber to his ability.27

52 With his own business, the plaintiff can do the wide range of tasks involved as

a roof plumber, with some discomfort.28 He then contracts to another two

companies for whom he works, if they need labour.29 He possibly can do all the

jobs that are required when he does a job by himself, but he still has

discomfort.30 He works on his own about 70 per cent of the time.31

Surveillance

53 Film was shown of the plaintiff working on a roof on 6 August 2015. He worked

on that job for about 11 hours.32 He agreed he was carrying a grinder up a

ladder, climbing the ladder with one hand.33 He was engaged in roof removal.

He agreed he had more weight on his left leg on occasion, but at times his

weight was actually on his right.34

54 The plaintiff agreed he was shown going up and down a ladder several times

during the course of that day. He agreed he seemed to be negotiating walking

up and down the roof quite well. He was shown doing a bit of drilling.35 He

thought he was putting his weight on his right leg. All the job was hard

physically.36

55 The plaintiff agreed he was shown squatting. He was on his right leg with his

left leg actually more forward.37

56 On 2 July 2016, at a worksite in Frankston, the plaintiff agreed he was shown

26 T6 27 T7 28 T16 29 T17 30 T18 31 T29 32 T35 33 T27 34 T28 35 T29 36 T30 37 T31

VCC:LM/AS


squatting, bending and adopting bent-over positions to access both installation

and removal of the roof. He agreed, viewing the film, there was nothing that

showed he undertook any of those tasks in a restricted manner.38

57 The plaintiff has sometimes worked a five-day week, but usually worked three

to four days. He did have some self-imposed restrictions. He walked away

from jobs, such as steep pitched roofs, which were too high to access. He has

adapted his leg, otherwise, to lower height jobs, because he has been doing

that type of work for many years so he can continue working. If a job has to be

done, he does it, but he still has discomfort.39

58 The plaintiff avoids higher storey jobs as he would have to climb up too high

and set up more scaffolding to make it safe for himself because of his foot, and

he did not want to be standing on a high ladder for too long. Where access to

a job was awkward, he would have difficulty carrying materials around a site.

These tasks were never a problem before the incident.40

59 The use of the beam shown in the film was one of the modifications the plaintiff

had put into place. He tried to use more planks if he was placing pieces of

gutter, rather than standing on a rung of a ladder.41

60 The plaintiff was shown on the film carrying a ladder. He had brought his own

ladder to the Frankston site so he could put a beam across his ladder and the

ladder at the worksite, so he would not have to work on the ladder. He could

do the work from the beam comfortably. He agreed he was shown walking up

and down the ladder multiple times.42

61 Towards the end of the film, the plaintiff was shown kneeling, not just with his

left leg on the ground.43

38 T32 39 T33 40 T43 41 T43 42 T36 43 T37

VCC:LM/AS


62 The plaintiff agreed this film was an accurate representation of his roof plumber

duties. He agreed an observer would say he was in no obvious discomfort,

watching that film. That is how it “appeared from the outside”.44

The Plaintiff’s earnings

63 In the financial year ending June 2015, the plaintiff’s taxable income in his own

business was about $90,000. In the previous three years, he earned in the

range of $65,000 to $85,000 per annum.

The Plaintiff’s medical evidence

Treaters

64 The plaintiff’s general practitioner, Dr Fox, recently reported in August 2016.

65 Dr Fox diagnosed a significant tendon injury to the anterior compartment

tendons of the plaintiff’s left lower leg, all requiring general anaesthetic and

plastic surgery. There was a second procedure on 2 December 2013 to release

scar tissue to loosen up the tendon, which was restricted in movement due to

the scarring.

66 Current treatment is ongoing home-based exercises.

67 Dr Fox noted the plaintiff was highly motivated to improve his situation and

exceptionally diligent in attending the gym and trying to improve the strength

and mobility of his left leg.

68 Dr Fox noted the plaintiff was struggling to safely perform tasks required in his

job as a roof plumber. While he had a capacity to work full time, the plaintiff

continued to face difficulties and had a lag in his tibialis anterior function,

causing his foot to drop somewhat, particularly if he had been tired or on his

feet a lot.

69 That was a major issue for the plaintiff, as his work involved ladders and walking

on roofing and joists. Dr Fox noted there continued to be an element of risk in

44 T38

VCC:LM/AS


the plaintiff being on a roof, as he had an increased capacity to trip and stumble

and this he expected to be ongoing in the future, and he could not see that

improving.

70 While the plaintiff has a capacity to perform his prior duties, which he is currently

doing, Dr Fox thought it unlikely that was a long-term option for him and he had

considerable concerns about the plaintiff’s safety on a roof, and thought his

future should really be on level ground.

71 Since Dr Fox reported on September 2014, he noted there had been little

improvement in the plaintiff’s function. He cannot run or hop on his left leg and

the anterior compartment muscles and dorsiflex in his foot tire at the end of the

day, and he has to be very cautious not to trip.

72 Dr Fox thought the plaintiff had achieved the maximum function he was going

to get in his leg.

73 Dr Fox noted the plaintiff worked very diligently in the gym in strengthening. He

did not think he had had a patient who had worked as hard as the plaintiff to

return to normal function.

74 Dr Fox thought there is little in active medical treatment now, or in the future,

and the plaintiff is now at the stage where he will need to continue with balance

and strengthening to maintain his level of function.

75 Dr Fox noted myotherapy helps the pain and swelling in the compartment of the

plaintiff’s lower leg and certainly this has shown significant benefit over time.

He thought this treatment should be continued to aid the plaintiff’s function and

help him maintain a good working function and enhance his quality of life.

76 Dr Fox noted the plaintiff was significantly affected by his injury. He could not

run with his children or play team sports. He could continue body building but

is limited in lower limb work because his left ankle and foot is not totally stable.

Dr Fox noted the plaintiff has always been an active and fit person who commits

VCC:LM/AS


a lot of time to exercise and activities and, as a result, this injury has been quite

devastating for him.

77 Dr Fox noted the plaintiff’s leg was a significant contributing factor in his

depression.

78 Dr Fox thought the plaintiff would need to continue and maintain an exercise

program to maintain strength and enable him to walk and function as well as he

can, therefore, he suggested an ongoing self-managed gym. He thought the

plaintiff may require an alternative job to roof plumbing, as his functioning on a

roof does put him at risk.

79 Mr Lee, plastic and reconstructive surgeon, first saw the plaintiff at Frankston

Hospital on 11 April 2013. Surgery was then performed to explore the left leg

laceration.

80 Subsequent recovery from surgery was unremarkable and the plaintiff’s plaster

was subsequently changed to a CAM boot.

81 Three months after that surgery, Mr Lee thought the plaintiff’s improvement had

reached a plateau and he was left with a residual defect in the leg of being

unable to lift the forefoot off the ground. Toe function recovered, however the

deficit was enough to make him trip over the foot when walking. Thus, it was

recommended the plaintiff avoid working on a roof for safety reasons. At that

time, tethering of the tendon repair at the injury site scar was noted to be

impairing tendon excursion.

82 After persistent physiotherapy and gym work, Mr Lee noted no further

improvement was observed and scar revision tenolysis and tenorrhaphy were

approved by the insurer to try and improve function further. This further surgery

was undertaken on 3 December 2013.

83 After that surgery, the plaintiff was again immobilised in a CAM walker and he

was compliant with all recommendations. There was further physiotherapy and

VCC:LM/AS


rehabilitation.

84 With significant patient effort in rehabilitation, Mr Lee noted further progress was

achieved, with improved dorsiflexion of the toes and foot, compared with pre-

operatively. Mr Lee found a small amount of residual limitation and lifting of the

forefoot continued to give the plaintiff problems with tripping, as demonstrated

on a trial of return to limited duration of normal roofing duties. He discussed

with the plaintiff seeking a new career path.

85 On the last review on 22 April 2014, Mr Lee noted the plaintiff had failed the trial

of return to work of roof work, due to fatigue in the leg and tripping.

86 Mr Lee thought the plaintiff’s ability to return to full active duties was limited by

the residual function loss in his ankle and foot dorsiflexion. He considered the

plaintiff was at risk of tripping and hence could not be recommended for rooftop

duties. All ground level activities were suitable, based on the findings at the last

review. He thought the plaintiff’s capacity to work was unlikely to change

significantly over the next two years.

87 Mr Lee expected the plaintiff to make small improvements with time, however,

full normal function of the ankle and foot was highly unlikely to return. He

considered complete recovery in the future was unlikely.

Medico-legal evidence

88 Dr George Wilson, occupational health physician, examined the plaintiff on

behalf of CGU in April 2014.

89 Dr Wilson then thought the plaintiff was making good progress since his last

surgery, but would not recover full pre-injury function. At that stage, the plaintiff

was on a return to work program, but his restrictions were going to be around

standing on ladders and roof safety. Because of his propensity to stumble and

difficulty with uneven ground, working on a construction site and roofs created

potential risk for further fall.

VCC:LM/AS


90 Dr Wilson thought it was unclear if the plaintiff was going to return to pre-injury

duties, noting his surgeon thought it unlikely, as did the plaintiff.

91 Dr Wilson considered the plaintiff was not going to get full recovery back to safe

function of his left ankle and foot on ladders and roofs.

92 Dr Wilson thought treatment was appropriate with myotherapy and the plaintiff’s

rigorous rehabilitation program. His treatment plan was predominantly a

rigorous exercise program that the plaintiff did daily. He noted the plaintiff had

no pain as such, so does not require any pain strategies.

93 Dr Wilson thought the plaintiff was, in fact, very motivated to regain his fitness

and improve his left foot and ankle function. While the plaintiff will regain good

functional capacity, Dr Wilson considered he was unlikely to regain all of the

capacity required to work as a roof plumber. He noted the plaintiff continued to

have ongoing restrictions of his left ankle and foot function.

94 The plaintiff was examined by Dr John King, neurologist, on 6 May 2016.

95 The plaintiff complained to Dr King of numbness of the outer three toes of the

left foot, extending up the leg to around the scar. He was aware of left ankle

weakness which prevented him from running. He had difficulty putting on his

socks with his knee flexed due to an inability to fully dorsiflex the left ankle.

96 The plaintiff had pain and cramps of the muscles of the anterior compartment

of the left leg and of the foot. The skin around the scarring over the top of the

foot was partly numb and also hypersensitive.

97 In terms of work, the plaintiff advised that on flat or low-pitched roofs, he had

little difficulty, but found high-pitched roofs caused some pain and fatigue at the

end of the day.

98 Dr King noted that the plaintiff had a very slight limp and was able to walk on

tiptoes and stand on his toes with either foot. There was a mild left footdrop

VCC:LM/AS


walking on his heels.

99 There was some swelling on the scar on the lower anterior aspect of the leg.

There was mild weakness of left ankle dorsiflexion extensor hallucis longus and

extensor digitorum longus, with normal power of left ankle inversion and

eversion. Reflexes were intact. There was an area of sensory loss in the

distribution of the left superficial peroneal nerve.

100 Dr King concluded the plaintiff had been left with mild weakness of ankle

dorsiflexion EHL and extensor digitorum longus due to tendon damage and

sensory loss due to division of the left superficial peroneal nerve. He noted the

effect of the plaintiff’s injury on his work caused him to become depressed, but

that had responded to treatment.

101 Dr King thought the plaintiff was capable of working full time on flat roofs, but

had some discomfort and fatigue if required to work on high-pitched roofs. He

considered that the plaintiff would find it more difficult to work as a roof plumber

in the future, particularly on such roofs.

102 Dr King thought the plaintiff had achieved a good post-injury result due to

prompt surgery and an intense physical therapy program of weightlifting, which

had been his chosen sport and hobby. He considered the plaintiff was likely to

keep himself fit, which would help him maintain good health and a productive

life. He thought the plaintiff should be able to continue work for the foreseeable

future and should not develop any late complications of the left leg injury.

103 Dr King noted the plaintiff’s depression was under good control on treatment

with Lovan and monthly visits to a psychologist and he may need ongoing

treatment in this area.

104 Mr Felix Behan, Associate Professor of Surgery, saw the plaintiff on 26 May

2016.

105 Mr Behan diagnosed a penetrating injury of the left lower limb lateral third in the

VCC:LM/AS


peroneal compartment.

106 Mr Behan noted the plaintiff had a partial footdrop and symptoms related

thereto. His main problem was a partial footdrop of a neuromuscular and scar

aetiology.

107 Mr Behan provided a number of photographs attached to his report. One

showed restriction in the foot in dorsiflexion, possibly by the tendon glide

impedance because of surrounding tendon scar tissue.

108 Mr Behan thought the post-injury adhesion of the lateral ankle and peroneal

compartment was affecting the plaintiff’s normal motor activity.

109 Mr Behan noted sites of sensory loss or numbness of the pulps of the left

second, third and fourth toes. Dorsiflexion in the foot was restricted, making it

very difficult to put socks on.

110 There was a photograph of the plaintiff’s feet in runners, which showed the

amount of swelling on the left foot, preventing his shoe being laced, as was

possible on the uninjured right foot.

111 Mr Peter Scott, senior consultant surgeon, examined the plaintiff in July 2016

on behalf of the defendant.

112 The plaintiff then complained of some left ankle stiffness and some difficulty

with dorsiflexion. He tended to stumble, particularly if he was tired. Most

particularly, he still had trouble with steps and ladders, joists, and sloping roofs.

113 In addition, the plaintiff complained of numbness over the dorsum of the left

foot, particularly over the area from the lateral three toes extending up behind

the lateral malleolus of the ankle to the lower and outer aspect of the left leg.

114 The plaintiff told Mr Scott he no longer participates in jogging or kick boxing,

and he does some training with power lifting.

VCC:LM/AS


115 Mr Scott noted the plaintiff walked without a limp and there was no evidence of

any left foot drop. There was a loss of 10 degrees of dorsiflexion of the left

ankle. The other outstanding feature was numbness over the dorsum of the left

foot, particularly over its outer aspect, extending up laterally to the vertical scar

above the anterior compartment, over the peripheral distribution of the superior

peroneal nerve, a branch of the musculocutaneous nerve and possibly, also,

the cutaneous branch of the sural nerve aspect of the foot, in line with the fifth

metatarsal extending towards the heel.

116 Mr Scott thought the plaintiff had some mild reduction of dorsiflexion which

resulted in him stumbling, particularly when on uneven surfaces, such as

ladders, and scaffolds, and high-pitched roofs, together with a cutaneous

sensory loss over the dorsum and lateral aspect of the foot and lower leg in the

region of supply by the superficial peroneal nerve and the sural nerve.

117 Mr Scott noted the plaintiff had been limited in his ability to enjoy his leisure

hours, but he is working part time, running his own business. The plaintiff was

not having ongoing treatment.

118 Mr Scott considered the prognosis was one of ongoing discomfort in the left

lower limb, particularly with the loss of normal movements of the ankle joint,

reduced dorsiflexion and associated numbness over the dorsum and lateral

aspect of the foot and lower portion of the left leg.

119 In Mr Scott’s view, there was no Pain Disorder or Chronic Pain Syndrome, or

psychological magnification of the symptom complex.

120 Mr Scott considered the plaintiff was genuinely well motivated and had proved

to be keen to return to the workforce and was then working three or four days a

week, running his own business as a roof plumber, but with ongoing disability

of the type described above.

Surveillance

121 The defendant admitted there was 27 hours of surveillance in 2015 and 2016.

VCC:LM/AS


The Defendant’s medical evidence

122 Dr Fox’s Cranbourne Road Medical Centre notes set out the plaintiff’s last

attendance was 10 June 2015. There were further almost monthly earlier

attendances in 2015 for unrelated matters.

Medico-legal evidence

123 The plaintiff was examined by Dr David Fish, consultant occupational

environmental physician, in February 2015.

124 The plaintiff told him of current problems of lack of ankle extension, numbness

over the three lateral toes and dorsum of the foot, extending into the anterior

shin, tingling, and sharp pins and needle sensations over the same area

extending into the dorsum of the foot. The plaintiff reported that these

sensations would come and go and tended to occur at night, and lasted ten to

thirty minutes, and would occur once or twice a week.

125 The plaintiff also described recurrent cramping in the tibialis anterior, which

occurred about four times a month and could last for about twenty minutes.

126 The plaintiff was able to walk, climb stairs and ladders, but suffered fatigue over

the tibialis anterior or anterior shin. His sleep was occasionally disturbed by

cramps. His driving was unimpeded, but he still suffered cramps and fatigue

over the tibialis anterior.

127 Dr Fish noted the plaintiff had no interference in his personal or domestic

activities of daily living, but said he had to cease his recreations, which included

powerlifting, karate and running. He also described difficulty in assisting his

son in boxing training because of his lack of agility in his feet.

128 Dr Fish thought there was a peripheral nerve injury in the distribution of the

common peroneal nerve, with blunting of pinprick sensation over the anterior

distal shin, extending to the dorsum of the foot and over the lateral two toes.

He thought the plaintiff suffered a severe laceration to his left lower leg with a

common peroneal nerve injury, which had persisted, and a tendon injury

VCC:LM/AS


surgically treated. In his view the plaintiff’s condition had stabilised.

Overview

129 It was conceded there was compensable injury to the left lower limb, in relation

to which surgery was required and a permanent impairment resulted.45

130 There is no suggestion of any pre-existing left leg condition.

131 There is also no argument that the plaintiff’s ongoing impairment lacks a

substantial organic basis.

132 Counsel for the plaintiff submitted that the plaintiff has been left with significant

symptoms in the form of footdrop, numbness in the toes, tingling sensation in

the foot, swelling around the foot and ankle, and some sensitivity around the

wound site and associated stiffness of the ankle.46

133 It was submitted that pre incident, the plaintiff was a very active man and fitness

was a very important part of his daily life. His ability to engage in sporting and

fitness activities is now significantly restricted by his incident injuries.47

134 It was also submitted that the plaintiff’s work had been affected by his injury

because a more limited range of work was now available to him and he had

limitations at work resulting from the injury itself.48 Reliance was placed on Dr

Fox’s view that he did not think he had ever had a patient who had worked as

hard as the plaintiff did to return to normal function.49

135 Effectively, the defendant’s position was the plaintiff had made a good

functional recovery. He had managed to return to full-time paid employment

where he does not lose much income, earning $90,000 in the 2015 financial

year.50 Any reduced days of work was probably due to the availability of work,

45 T46 46 T2 47 T3 48 T3 49 T4 50 T4

VCC:LM/AS


as the plaintiff’s counsel acknowledged.51

136 While conceding there were significant consequences in terms of sport, counsel

for the defendant submitted these did not meet the statutory threshold, given

what the plaintiff had retained.52

137 The plaintiff was commended as a stoic individual, as Mr Scott and Dr Fox

confirmed. The plaintiff still works as roof plumber and still undertakes body-

building activities. He may well have suffered some losses that are marked, but

they do not get to the level of very considerable.53

Credit

138 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:54

“… 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.”

139 Counsel for the defendant raised a number of issues as to credit in terms of the

plaintiff’s evidence about attending Dr Fox, his chiropractic treatment and

suggested inconsistencies in his two affidavits.

140 Counsel for the plaintiff submitted there should be no hesitation in accepting the

plaintiff’s evidence. The plaintiff was a frank and honest witness who gave

evidence in a “direct and unvarnished fashion without guile or artifice”.55

141 It was submitted the surveillance film was of no real moment. All the doctors

knew the plaintiff was working and he has not hidden it from them. Whilst roof

plumbing was probably not a safe job for him, as they noted, the plaintiff had

persevered.56

142 I accept that the plaintiff was an honest and frank witness who did not overstate

the level of his disability and restrictions. The film did not show a level of activity 51 T5 52 Dwyer v Calco Timbers Pty Ltd (No 2) (2008) VSCA at paragraph [27], per Ashley JA 53 T51 54 (2010) 31 VR 1 at paragraph [12] 55 T54 56 T54

VCC:LM/AS


inconsistent with the plaintiff’s evidence. He has candidly conceded that he

does a full range of duties, but with discomfort. He also conceded there was

nothing shown on the film that would show him in obvious discomfort but he still

had difficulties.

Pain

143 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,57 the evidentiary

basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff

says about the pain both in court and to doctors.

144 Counsel for the defendant submitted the absence of the word “pain” in the

plaintiff’s two affidavits was “remarkable.”58 It was submitted there was

therefore an absence of any “disabling effect of pain” as Maxwell P discussed

in Haden Engineering.59 It was submitted that what the plaintiff complains of

are symptoms, not pain.60

145 However, I accept the submission by counsel for the plaintiff that there is a

significant neurological injury with the usual constellation of symptoms. The

plaintiff may not describe frank pain, but there is discomfort, tingling and

stiffness and, most significantly, a neurological consequence of a footdrop.61

146 All medical practitioners accept that this situation results in the various

limitations the plaintiff describes, including an inability to stand for long periods,

an inability to run and to bend his left foot fully. These doctors have no doubt

the plaintiff is a genuine man and, some indeed, consider him to be a stoic.

Treatment

147 The plaintiff has undergone two surgical procedures and extensive

rehabilitation thereafter. No further treatment has been suggested by his

treating practitioners.

57 (Supra) at paragraph [11] 58 T46 59 Supra 60 T49 61 T50

VCC:LM/AS


148 The plaintiff requires ongoing myotherapy, which a number of medical

practitioners consider appropriate, and also chiropractic treatment which now

also addresses issues relating to his leg injury.

149 The plaintiff continues to require ongoing over-the-counter medication on a

regular basis.

150 In this regard, counsel for the plaintiff relied on the comments of Dodds-Streeton

JA in Kelso v Tatiara Meat Company Pty Ltd, 62 where her Honour said:

“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”

Work

151 Counsel for the defendant commended the plaintiff on his return to work, his

ability to continue in an “unrestricted manner” and to start up his own

business.63

152 It was submitted the film showed the plaintiff doing his normal work which he

himself agreed was heavy.64 This was not a case where the plaintiff has had to

change his career or cannot do heavy work.65

153 In response, counsel for the plaintiff submitted that the plaintiff is limited in the

number of days he can work and the type of work he can do, and he has had

to put in place modifications to enable him to carry out his duties.66

154 While the plaintiff continues in his own business as a roof plumber, he is cut off

from high roof jobs and those which require difficult access, carrying heavy

material. Although he has not suffered any pecuniary loss, he works with

discomfort, and has to be careful how he approaches jobs, and has made

modifications to enable him to perform his duties more safely.

62 (2007) 17 VR 592 at paragraph [199] 63 T46 64 T47 65 T47, State of Victoria v Glover [1998] VSCA 93 66 T52

VCC:LM/AS


155 In my view, the plaintiff is somewhat of a stoic, having returned to his pre-injury

employment and later, started his own business when experiencing ongoing

problems with his left leg, as all medical practitioners have confirmed.

156 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (No 2),67 he

suspected:

“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

Sport

157 Counsel for the defendant conceded that while the interference with the

plaintiff’s sporting activities might be significant, it is not serious.68 He still can

compete and has retained a lot.69 Further, if power lifting was such a major

interest of the plaintiff’s, why was there not more detail of it in his affidavit?70

158 However, the plaintiff was not really challenged as to the consequences in

terms of recreational and sporting activities, most of which involve him keeping

fit.71

159 Counsel for the plaintiff submitted that the interference with powerlifting would

be serious in itself, as the plaintiff is no longer able to compete in that sport.72

The plaintiff is also unable to box, kick box or run, activities which were an

important part of the his fitness regime before the incident.

160 I accept that pre incident, sport was a major part of the plaintiff’s life, particularly

powerlifting, and that his inability to fully engage in his sporting activities has

been devastating for him, as Dr Fox described.

67 (supra) at paragraph [4] 68 T49 69 T50 70 T48 71 T52 72 T53

VCC:LM/AS


161 The plaintiff was a very active man who has now put on weight because of his

inability to train in a variety of fields. He cannot kick box, he cannot box, he

cannot run and, while he can still lift weights which seem heavy, he is not able

to do so to a level which would enable him to participate in State and National

competitions, which he enjoyed previously and held records in relation thereto.

162 Further, the plaintiff is frustrated and disappointed he cannot participate fully

with his children in basketball, boxing or their other activities.73

163 The plaintiff has difficulty sleeping due to leg pain and he has problems with

intimacy as a result of his leg condition. His evidence in this regard was not

challenged in cross-examination.

164 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:74

“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”

165 Taking into account all the evidence, I am satisfied the plaintiff has a serious

injury in relation to his left lower limb and I grant leave to bring proceedings for

damages for pain and suffering.

- - -

73 T53 74 (Supra) at paragraph [45]

IN THE COUNTY COURT OF VICTORIA Revised AT MELBOURNE …€¦ · registered roof plumber and, later...

Documents

Transcript of IN THE COUNTY COURT OF VICTORIA Revised AT MELBOURNE …€¦ · registered roof plumber and, later...