Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group

Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group - [2020] NSWDC 371 - NSWDC 2020 case summary — Zoe

[3]

Cross-examination

In cross-examination the plaintiff agreed that he had found it difficult to find work in the financial year ending 30 June 2015. He agreed that he had similar difficulties in finding work for other periods during the course of his working life and that he had received social security benefits during those periods. The plaintiff agreed that he received workers compensation payments from the date of the incident up until 12 September 2019. In that period, he only worked for Christies when they offered him light duties.
The plaintiff gave evidence that he could not now work on a building site where there was uneven ground and if he was required to undertake constant heavy lifting. He gave evidence that uneven ground gives him pain in his ankle. He agreed that heavy lifting was usually restricted to items of 20 kgs or less and he could lift those types of weights for up to an hour and a half but if he was carrying them back and forth he would need to rest. He gave evidence that his usual work on a building site would involve walking about 10 kms per day and that he would not be able to do that now.
He agreed that he had a forklift driver's licence in the past but it had now expired. He did not renew his licence because in his discussions with the rehabilitation provider, it was recommended that he go into alternative industries where forklift driving was not required. The plaintiff gave evidence that driving a forklift for eight to 10 hours a day would cause him pain because of the constant braking and accelerating. He believed it would be the same as driving a car for that length of time. The plaintiff previously had an Elevated Work Platform (EWP) Licence, which had also expired. He gave evidence that there was no particular role as an EWP operator on a building site, but it was a piece of equipment that would be used from time to time when required, like using a ladder.
The plaintiff gave evidence that he obtained his present position with the assistance of the rehabilitation provider after obtaining a security licence. He believed that the security industry was a sensible choice by reference to the restrictions that had been put on his ability to work by Dr Pathirana and others. The plaintiff gave evidence that his restrictions included no lifting weights of 10 - 15 kgs for a prolonged period, no driving for longer than 30 minutes without taking a break and no standing for prolonged periods of time. He was also restricted from walking on uneven surfaces.
The plaintiff agreed that there were no uneven surfaces in the warehousing industry and lifting heavy loads was done with mechanical assistance but there were occasions when manual unloading and loading were required. The plaintiff did not agree that he could return to work in the warehousing industry because there was a considerable amount of physical exertion required in his previous positions. He did not believe that he could be on his feet all day for eight hours per day, five days per week.
The plaintiff gave evidence that he found his current job boring but a necessity because he needed to pay the bills. He had previously aspired to being a supervisor on a construction site and going back to TAFE to finish his course. He described himself as not having any aspirations at the moment. He agreed that he could go back to TAFE full time but he also needed to work to support himself. He accepted that there was nothing physically preventing him from returning to study. He was unsure as to whether his aspiration to be a construction supervisor was realistic because it was not something that the rehabilitation provider had recommended to him. They recommended that he obtain a security licence and work in the security industry and he has been successful in finding a position to accommodate his restrictions.
He has given some thought to becoming an insurance claims assessor because that is what his partner does. He did some research into that position but then obtained his present position and has concentrated on the training necessary to maintain that position.
The plaintiff gave evidence that Dr Davé recommended that he obtain a second opinion. He did not accept that Dr Davé told him to do so because Dr Davé could not see any reason why he was still complaining of pain. The plaintiff said that Dr Davé told him he was not sure what to do about his problem and that the plaintiff needed someone with more expertise and experience to have a look at it.
The plaintiff did not accept that his first complaints of pins and needles on the medial side of his ankle were made to Mr Martin, a rehabilitation expert, in December 2019. The plaintiff gave evidence that he made this complaint to Dr Davé, Dr Kuo and Dr Pathirana as well as the medico-legal doctors.
The plaintiff said that the weakness in his right ankle is demonstrated at the gym when he does one leg exercises, in that he cannot match the strength of his left leg with the strength of his right leg. The plaintiff said that when using a leg press machine, one leg at a time, he could not do the same weight with his right leg as he could do with his left leg. The plaintiff gave evidence that he still tries to do that exercise but with less weight and not through the same range of movement that he had been able to achieve prior to the injury.
The plaintiff gave evidence that he is now restricted in using the leg press machine to between 150 - 200 kgs when using both legs. The plaintiff gave evidence that he could do up to 300 kgs before his injury. He agreed that a leg press exercise involved putting a lot of force through his right ankle. The plaintiff stated that weight training was something that he enjoyed and he only trained his lower body about once a week or once a fortnight. The plaintiff said that he could do about 60 kgs of weight on a leg extension exercise.
The plaintiff also described a free bar squat as an exercise involving a weight loaded bar bell held across the back of the shoulders and bending the knees to go as low as you can whilst keeping your back straight. The plaintiff accepted that a squat involved a lot of force through ankles, knees and the lower back. He described a full squat as involving taking his backside as close to the floor as possible and involving the knees going below a 90 degree angle. The plaintiff described a half squat as taking the knees to just above 90 degrees.
The plaintiff gave evidence that on a good day he could perform a free bar squat with about 80-100 kgs of weight on the bar. He would do four sets of eight repetitions with the first set being a warm-up set, using a lower weight.
The plaintiff disagreed that his ability to do free bar squats meant that he was fit to undertake work as a labourer on a building site because those exercises take about four or five minutes in total, once a week or once per fortnight. The plaintiff said, "I love lifting weight, it makes me feel good, I like to stay in shape and I don't just want to train my upper body and leave my legs out of it". The plaintiff said that Dr Pathirana had told him it was alright to do his weight training even if he experienced a bit of pain to do so. The plaintiff said that whilst he was in constant pain during a workout, that pain was always there and he pushed through it because he liked to workout. He agreed that undertaking a leg workout causes him pain which he needs to recover from on the night of his workout. He did not agree that a leg workout would incapacitate him for any longer period. He has not been training at the gym because it has been closed during the COVID-19 pandemic. He does most of his upper body workout whilst seated. The plaintiff did not accept that he had to carry weights around the gym in order to do a workout. The plaintiff gave evidence that as he understood his doctor's advice, he could go back to the gym and do what he could.
The plaintiff gave evidence that he finds driving for longer than 20 to 30 minutes difficult and he needs to take a break as a result of discomfort. He does not need to take a break if he was using cruise control on the freeway. He said that he does not continue to drive with discomfort as he believes this would put himself at risk of having an accident.
He described himself as having slight pain in the witness box and that he believed that if he stood up for 20 minutes he would definitely suffer increased discomfort.
The plaintiff gave evidence that he sometimes experienced difficulty in carrying shopping up the two floors to his apartment. He gave evidence that he can no longer carry as many shopping bags as he used to in the past. He gave evidence that he suffered pain in his right ankle when carrying shopping bags in both hands up to his apartment. He believed that his partner was more capable of carrying shopping bags up the stairs than he was at present.
His current partner enjoys doing the housework. The plaintiff said that he would have difficulty cleaning on his hands and knees if that was required. He has only used a mop on a few occasions and accepted that it was not as difficult as cleaning from his hands and knees. He does not need to do much cleaning because his partner does it for him. He accepted that he could vacuum if he chose to do so. He experienced some difficulty with carrying a full laundry basket of clothes to the balcony to hang it out because he had to negotiate a small step and furniture in getting the laundry basket out to the balcony. He thought that a wet basket of washing weighed about 10 - 15 kgs and that he probably needed to walk about 10 metres to get to the balcony. He gave evidence that this type of activity would cause him discomfort because most things do. He accepted that he was capable of undertaking most activities around the house but that if he did so, he would undertake them with pain.
The plaintiff was then shown some surveillance footage taken in the period 28-30 May 2019. The footage mostly depicted the plaintiff on his balcony getting some sun and otherwise walking to and from his car. [3] The plaintiff accepted that after the injury that he had sat on his balcony for lengthy periods of time enjoying the sun. His evidence was that he was looking for gainful employment, filling in forms and sending them in through the rehabilitation provider and following up with them on a fortnightly basis. He said that he was applying for work on his own during that period as well as through the rehabilitation provider. His evidence was that he did not get invited to any interviews in that period.
He accepted that the footage taken at 4.14pm on 28 May 2019 showed him putting out the rubbish outside his apartment and that he was carrying his gym bag and he was on his way to the gym. He accepted that he would usually go to the gym four or five times per week. The plaintiff accepted that on 28 May 2019 that he went to a gym in Merrylands that he had previously been a member of. He accepted that he did, on occasions, train his legs by undertaking weighted exercises.
The plaintiff accepted that at that time it was possible that he could have undertaken 10 repetitions of free bar squats with 120 kgs on the bar. He said that he was capable of doing those types of weights when he felt up to it and not week in and week out. He accepted that there were occasions in 2019 when he did undertake 10 repetitions of free bar squats with 120 kgs on the bar. The plaintiff rejected that he could do free bar squats with 180 kgs loaded on the bar.
He accepted that it was possible that he may have done 15 repetitions of a leg press at 240 kgs. He accepted that it was also possible that he could have undertaken 10 repetitions of a leg press at 280 kgs. He did not recall the specifics of any weights that he may have used in performing leg exercises on any particular date. He gave evidence that it depended on how he felt on the day and that he was not able to do those weights regularly. He denied trying to mislead the Court by saying that his maximum ability in the leg press was between 150 kgs and 200 kgs. He accepted that he was capable of transferring a large amount of weight through his legs, his ankles and feet for a short period of time, with a set of repetitions lasting for about 40 to 50 seconds. He denied that he could perform leg presses at those weights because there was nothing wrong with his ankle. The plaintiff's evidence was that he enjoyed going to the gym but not as much as he did before the incident.
The plaintiff accepted that in May 2019 he also did leg extensions and calf raises involving weight. He said that a leg extension was a seated exercise where his ankles were placed underneath a bar and his legs were extended by straightening the leg to isolate the quadriceps muscle. The plaintiff gave evidence that he usually used leg extensions as a warm-up exercise. The plaintiff described the calf raise as loading a bar bell with weight and holding it over the back of the shoulder, similar to a free bar squat and raising the heels off the ground to isolate the calf muscle. The plaintiff accepted that he was capable of lifting quite heavy weights during a calf raise. He accepted that it applied a great deal of pressure through his ankle joints. He would usually do a calf raise on a pin-loaded machine and could achieve around the maximum. He was unaware of what weight that actually involved. The plaintiff said that he was capable of lifting about 150 kgs in a leg extension but at that weight it was not a warm-up exercise.
The plaintiff gave evidence that he told the rehabilitation providers and Dr Pathirana that he was going to the gym. He said he was never asked what his gym training involved and in particular, he was not asked if he could undertake leg presses of up to 280 kgs.
The plaintiff did not accept that his ankle had returned to normal after each of his three surgeries. He did not accept that he consulted Dr Pathirana because he thought that it would be easier to obtain doctor's certificates from him or because Dr Pathirana was more sympathetic towards him. The plaintiff said that he always found Dr Pathirana to be professional and to make decisions after discussing his position with him and presumably on the basis of his surgeries, his MRI results and the opinions of other doctors.
The plaintiff gave evidence that he was told in about July 2019 that his workers compensation payments were to cease. From that point of time onwards he thought that he was on his own and expected that he would not get any further support from the rehabilitation providers.
The plaintiff gave evidence that on the day of the incident he was operating a petrol operated rolling machine to roll road base prior to it being sealed with asphalt (pedestrian roller). The machine was operated by walking behind it and directing it by using hand-operated controls. The pedestrian roller was self-propelling and did not require much force to be applied to it by the operator. He also undertook manual work as required from time to time including using a shovel to dig trenches and fill sand bags. He did not accept he could still do that work because the sand bags were extremely heavy, he thought more than 20 kgs each, and the work needed to be done repetitively over extended periods of time. He found that even prior to the injury, doing that work and stacking five pallets was extremely taxing. He accepted that he could still operate the pedestrian roller now. He said that he would still find the work at the site difficult to do now because it required walking on uneven ground which causes him discomfort.
The plaintiff accepted that he signed the accident report form as filled in by Mr Miller. He said that at the time he signed the form he was in extreme pain, was incapacitated and had taken medication. He had never been injured at work and was not sure what the document was for. He accepted that he was capable of reading the document and that in any event Mr Miller had read it out loud to him prior to him signing it. The plaintiff did not accept that that form actually conveyed what happened to him in the incident. He said that the story was fabricated by Mr Miller so that they would not get into trouble and so that the plaintiff would still be covered by insurance for the injury.
The plaintiff accepted that on 20 April 2016 that he went to see Dr Allan Laughlin at a local medical centre. He did so because he was told that he would need to get a continuing doctor's certificate to be off work. At the time, he was taking Endone but still suffering significant pain. He accepted that he gave a similar history to Dr Laughlin as had been contained on the accident report form. He accepted that he had lodged a workers compensation claim about that time. He did not accept that he was setting out to deceive the workers compensation insurer by doing so.
He accepted what was put to him that he had given a similar history at Campbelltown Hospital. He said he stuck to the same story because he did not want to get into trouble. He did not recall what history he had given to Mr Rugless, the rehabilitation provider. He did not recall what history he had given to Dr Davé. The plaintiff believed that he had given the correct history to the case manager at the rehabilitation provider.

[5]

Dr Davé's Report

The plaintiff tendered a report of Dr Jay Davé, Orthopaedic Surgeon, dated 20 August 2019. The content of Dr Davé's report can be summarised as follows.
Dr Davé performed an open reduction and internal fixation of the plaintiff's right ankle on 16 April 2016. He was placed in a CAM boot and allowed to mobilise non-weight bearing and discharged from hospital the following day.
The plaintiff saw Dr Davé post-operatively on nine occasions. His initial recovery was good and his wound healed quite well. The plaintiff reported he had a stiff ankle with a range of motion of 20 degrees of dorsiflexion with a very stiff subtalar joint and only a jog of movement possible there. He commenced weight bearing on about 26 May 2016 when the CAM boot was unlocked and he was allowed to weight bear as tolerated. At subsequent visits there was improvement on the lateral side of the ankle but on the medial side he had quite specific and pin point tenderness just distal to the medial malleolus over the front of the ankle joint. These symptoms were suggestive of either a neuroma or an ankle ligament injury possibly from fibrosis of the synovial tissue or irritation of the saphenous nerve. He was treated with a cortisone injection that provided little relief.
The pain and tenderness over the medial malleolus area were affecting his gym-based training and his work activities. He was keen to have this sorted out because the degree of pain and irritation on the medial side was unacceptable for him. Later x-rays showed a small fleck of bone adjacent to the medial malleolus which could have represented a small avulsion fracture from the medial deltoid ligament. The other possibility was that of soft tissue impingement over the anteromedial aspect of the ankle joint. The lateral side had gone on to heal uneventfully.
Dr Davé performed the second surgery on 11 March 2017 being an arthroscopy of the ankle along with debridement of the impingement lesion of the anteromedial aspect of the ankle joint, removal of the plate and screws and excision of a lump that was on the medial aspect of the ankle on the right side. The findings were that of mild degenerative changes in the tibial plateau and the talus. Good views of the ankle were obtained and the lesion over the anteromedial aspect was debrided. The medial malleolar was explored and some granulation tissue was removed. The plate was removed through the old scar.
On 15 June 2017 an MRI scan of the ankle showed some scar tissue correlating to the tenderness over the medial aspect just below the medial malleolus. The plaintiff had hypersensitive scars and the scar on the lateral aspect was also highly sensitive. The plaintiff had extensive physiotherapy, deep tissue massage and desensitisation of the scar. He then obtained a second opinion from a foot and ankle surgeon.
Dr Davé opined that there were no restrictions with the plaintiff's return to work. Dr Davé opined that the plaintiff's prognosis was guarded. Dr Davé thought the plaintiff might go on to develop some osteoarthritis of the ankle joint and have some remaining stiffness of the ankle in the future.

[6]

Associate Professor Kuo's Report

The plaintiff tendered a report of Associate Professor Kuo dated 29 October 2019. The content of that report can be summarised as follows.
Dr Kuo first saw the plaintiff on 5 September 2017. He complained of right ankle pain on the medial side after sustaining a fracture on 13 April 2016. He continued to have problems with his right ankle after removal of the plate and screws on 11 March 2017. An MRI scan dated 12 June 2017 showed some scarring over the medial malleolus. On examination Dr Kuo noticed some tenderness over the scar and at a point over the ununited ossicle of the deltoid ligament avulsion. Dr Kuo noted a good pain free range of movement.
Dr Kuo opined that the plaintiff had a painful non-union of the deltoid ligament avulsion fracture of the medial malleolus in his right ankle and that he would benefit from an arthroscopy and excision of the non-union with a repair of the deltoid ligament.
Dr Kuo performed arthroscopic surgery on 6 November 2017. During the course of the operation he noted a lot of synovitis and adhesions in the medial gutter of the ankle with an anterior tibial plafond chondral lesion and medial talar dome chondral lesion and these were debrided during the operation.
After six weeks the plaintiff was still complaining of some mild discomfort in the medial ankle and Dr Kuo recommended a scar massage programme. After seven months the plaintiff was still complaining of scar sensitivity and he was referred for a further MRI scan that showed some anteromedial impingement and scarring. He was referred for scar massage and desensitisation with a physiotherapist.
Dr Kuo reviewed the plaintiff 12 months after surgery. On examination the ligaments felt stable but the plaintiff was still complaining of anteromedial impingement symptoms and was taking anti-inflammatory medication for this. Dr Kuo arranged for the plaintiff to have a cortisone injection which provided only short term relief.
Dr Kuo last reviewed the plaintiff on 27 January 2019 which was 15 months post-surgery. He was still complaining of medial ankle pain and requiring anti-inflammatories on an "as required" basis. Dr Kuo noted the plaintiff looked extremely fit and was managing to go to the gym. Dr Kuo advised the plaintiff to try and learn to live with the problem or undergo further cortisone injections or a possible repeat arthroscopy.
Dr Kuo opined that the plaintiff was not fit for his pre-injury activities. Dr Kuo thought that he was best suited to a sedentary occupation or office type duties for the avoidance of prolonged lifting, standing, walking or climbing. Dr Kuo thought that the plaintiff's prognosis was fair to good. He thought that he may need further cortisone injections or possibly an arthroscopy. Dr Kuo opined that the plaintiff was at risk of developing post-traumatic osteoarthritis in the long term as a consequence of his ankle fracture sustained at work on 13 April 2016.

[7]

Dr Bodel's Evidence

The plaintiff tendered a report of Dr James Bodel, Orthopaedic Surgeon, dated 5 April 2019. The plaintiff saw Dr Bodel for the purpose of preparing a medico-legal report. The content of Dr Bodel's report can be summarised as follows.
Dr Bodel received a history of the injury consistent with the plaintiff's evidence. Dr Bodel noted that the x-rays taken on the day of the incident confirmed a spiral fracture of the right fibula but there was no definite confirmation of a fracture on the medial side of the tibial plafond. Dr Bodel noted that over time the lateral border of the foot over the fibula had healed but on his return to work and walking, the plaintiff developed increasing pain in the medial side of the foot together with a catching and locking sensation. A cortisone injection gave him temporary benefit and then he had an MRI scan done. The MRI scan had to be delayed until after the plate and screws were removed to get a better view of the area. Dr Bodel recorded that the MRI scan showed evidence of the damage to the tibial plafond on the left hand side which was confirmed when the plaintiff underwent an arthroscopy.
Dr Bodel noted that the plaintiff was then referred to Dr Kuo for treatment. Dr Kuo conducted a further arthroscopy on 6 November 2017 and the report from that surgery confirmed there was significant synovitis and the development of adhesions in the medial gutter of the ankle that were cleared arthroscopically. Dr Bodel reported that 16 months after this operation, at the time of his consultation, there had been no improvement in clinical function.
Dr Bodel reported that the plaintiff complained of pain anteromedially, a painful clicking sensation in that region, the propensity of the ankle to lock and some intermittent bruising. At the time of the consultation the plaintiff was taking some anti-inflammatories but not seeking other treatment.
Dr Bodel noted that the plaintiff was a very well-muscled individual. He used to attend the gym six days a week and did heavy weight training but is now attending about four days a week and doing mostly upper body work. Dr Bodel noted that the plaintiff had modified the way in which he did squats. Dr Bodel noted a limited driving tolerance of about 20 minutes and some difficulties with household maintenance and cleaning activities.
On examination, Dr Bodel noted a flat-footed gait pattern on the right hand side. He had a restricted range of ankle movement on the right side and there was some wasting of the right calf which was 1.4 cm smaller than the left. Dr Bodel observed a Grade III sensory loss involving the sural nerve on the lateral border of the right foot but no other neurological abnormality in the lower limbs. Dr Bodel noted the scarring as significant, particularly over the medial side of the ankle where there had been an open arthrotomy. He noted some pigmentation and hypertrophy but no tethering to the underlying deep structures. There was also pigmentation over the lateral scar over the fibula which was somewhat disfiguring.
Dr Bodel opined that the most recent MRI scan of the right ankle dated 30 May 2018 showed that there was still scarring in the anteromedial gutter and that the fibula on the lateral side had healed in a satisfactory position. There was some damage to the deltoid ligament on the medial side and there was scarring on the syndesmotic ligament. Dr Bodel noted that the operative report from Dr Kuo dated 6 November 2017 confirmed that there was scarring in the medial gutter and that there was a small chrondral medial talar dome lesion which was debrided by chondroplasty and there was a similar tibial plafond chondral lesion. Dr Bodel opined that there was no present further treatment that could be offered to the plaintiff.
Dr Bodel opined that the plaintiff's prognosis remained guarded because of the intra-articular nature of the injury which increased the risk of post-traumatic osteoarthritis. Dr Bodel accepted that the plaintiff had an incomplete resolution of symptoms. He expected that if the pain became unbearable he would need to consider an ankle fusion but that should be avoided, if possible, for at least 15 to 20 years.
Dr Bodel opined that the plaintiff was fit to return to work but not heavy labouring work or work that required him to stand, squat, climb or walk on uneven surfaces. Dr Bodel opined that he did not believe that the plaintiff would be fit for security patrolling work. Dr Bodel recommended the use of domed metatarsal insoles to manage his foot pain and properly constructed foot wear.
Dr Bodel was cross-examined by telephone.
Dr Bodel confirmed that his observations of a restricted range of ankle movement were as a result of him asking the plaintiff to move his ankle in certain ways, in accordance with the Australian Medical Association WorkCover Guidelines. The range of movement was observed and measured by Dr Bodel. He could not recall if he used a goniometer to measure the angles, but would usually do so.
Dr Bodel gave evidence that he measured the plaintiff's calf muscles at the widest point. Dr Bodel opined that it was very unusual for the right calf, on the plaintiff's dominant side, to be smaller than the non-dominant side in the absence of injury. He explained that this was because humans are bi-pedal and it is difficult to develop leg muscles of uneven size, in the absence of injury.
Dr Bodel did not accept that his neurological testing on the lateral border of the right foot involved a subjective interpretation or required a subjective response on behalf of the plaintiff.
Dr Bodel did not accept that it was likely that the plaintiff would achieve a very good outcome from the last of his surgeries performed by Dr Kuo because the chondroplasty involved removal of cartilage from inside the joint that does not repair itself and it is likely to lead to post-traumatic osteoarthritis.
Dr Bodel was then asked about the plaintiff's ability to perform exercises at the gym. Dr Bodel agreed that a significant amount of force will be placed through the ankle in a free bar squat depending on the amount of weight on the bar. Dr Bodel accepted that the plaintiff would have a significant amount of strength in the ankle if he could perform free bar squats involving a weight of 120 kgs. Dr Bodel did not accept that this would invalidate some of his findings. On the assumption that the plaintiff could conduct a free bar squat with 180 kgs of weight on the bar, Dr Bodel gave evidence that he would not change his opinion. Dr Bodel accepted that if the plaintiff could do a free bar squat with 180 kgs of weight on the bar that he would have very good use of the right ankle.
Dr Bodel accepted, on the assumption that the plaintiff was able to leg press 280 kgs of weight, that he would have significant powerful use of the ankle. Dr Bodel did not believe that a leg extension involved any use of the ankle.
Dr Bodel accepted, on the assumption that the plaintiff could perform a calf raise with 150 kgs weight on the bar, that he had very good strength in the use of his right ankle.
Dr Bodel did not accept that even if the plaintiff could perform those exercises at the weights he was asked to assume, that the plaintiff was fit to return to pre-injury labouring work on a building site. Dr Bodel gave evidence that he did not think that the plaintiff should be doing labouring work because of the underlying pathology that was known to exist in his ankle. Exposure to uneven surfaces and performance of labouring work over a lengthy period was likely to rapidly accelerate the post-traumatic arthritis process which is already demonstrated in his right ankle. Dr Bodel drew a distinction between labouring work and doing exercises in a gym in a controlled environment. Dr Bodel gave evidence that the plaintiff should avoid squatting. Dr Bodel accepted that the plaintiff was capable of carrying weights required by labouring activities because he was capable of doing that at a gym but he should do so in a way that protects his ankle so as not to damage it at a more rapid rate than otherwise would be the case.
In re-examination, Dr Bodel opined that the plaintiff's gym activities were probably aggravating his ankle. Dr Bodel gave evidence that he thought that the plaintiff would struggle to carry out warehousing work for the same reasons that he would struggle with labouring work on a building site. He would be better suited to a sitting or sedentary position or semi-sedentary position to avoid being on his feet all day and carrying heavy weights. Dr Bodel believed that the fact that the plaintiff has modified the way in which he does squats probably indicates a problem with his ankle that means that he cannot do it the way he used to.
Dr Bodel gave evidence that the flat-footed gait pattern meant that the plaintiff would have difficulty pushing off on the right hand side which is indicative of an ankle injury.

[8]

Dr Assem's Evidence

The plaintiff tendered a report of Dr Mohammed Assem, Rehabilitation Specialist, dated 22 July 2019. The plaintiff consulted Dr Assem for the purpose of preparing a medico-legal report.
The plaintiff gave a history of the incident consistent with his evidence.
Dr Assem was given a history that after the first operation that the plaintiff developed increasing discomfort at the medial aspect of his right ankle with a catching/locking sensation. He was given a cortisone injection that provided temporary relief. On 11 March 2017 he underwent arthroscopic surgery for debridement of impingement lesions and removal of the plate and screws. The surgery was performed by Dr Davé.
The progress MRI scan dated 12 June 2017 showed scarring to the deep fibres of the deltoid ligament. The plaintiff was referred to Dr Kuo who diagnosed a painful non-union of a deltoid ligament avulsion fracture of the medial malleolus of the right ankle. The plaintiff was admitted to the Northwest Private Hospital on 6 November 2017 for an arthroscopic debridement and chondroplasty of the right ankle, excision of the ossicle and deltoid ligament repair of the right ankle. In surgery, Dr Kuo found a chondral medial talar dome lesion. The plaintiff told Dr Assem that he did not obtain any benefit from the third surgical procedure. He had obtained his security licence and had been seeking employment at the time he saw Dr Assem without success.
The plaintiff complained of intermittent discomfort around the medial aspect of his right ankle on weight bearing. He had difficulty standing or walking for more than 20 minutes. He had difficulty in repetitively negotiating stairs. He was unable to negotiate slopes or uneven ground. There was an associated clicking sensation and intermittent numbness at the medial aspect of his right foot. He reported a limited ability to drive up to 30 minutes at a time. The plaintiff told Dr Assem that he attended a gym regularly but avoided full squats due to pain and stiffness in his right ankle.
On examination, Dr Assem noted a healed, thickened, longitudinal surgical scar of the medial aspect of his right ankle. Dr Assem could not measure any difference between the circumference of his calves. Dr Assem noted a restricted range of ankle movement and slight sensory loss on the medial border of his right foot.
Dr Assem noted the results of an MRI scan conducted on 12 June 2017 to include soft tissue scarring, scarring of the syndesmotic ligaments, scarring of the deep fibres of the deltoid ligament and an interosseous cyst suggesting chronic stress across the synchondrosis. Dr Assem noted the findings of an MRI scan dated 30 May 2018 to include scarring of the syndesmotic ligaments, scarring of the deep fibres and anterior tibiotalar, tibionavicular and tibiospring components of the superficial fibres of the deltoid ligament, scarring of the flexor retinaculum and scarring of the medial aspect of the anterior ankle joint capsule.
Dr Assem opined that the plaintiff would be able to perform any sedentary, semi-sedentary or light manual work that does not involve lifting items weighing more than 15 to 20 kgs repetitively, repetitively negotiating steps, slopes or uneven ground. He opined that the plaintiff was able to work as a static security guard providing he could sit and stand every 30 - 60 minutes if necessary. The plaintiff would also be able to work as a security guard in a controlled room setting, forklift driver or delivery driver provided that he was able to comply with these restrictions. Dr Assem opined that the plaintiff did not possess any transferrable skills and that he would probably have difficulty in securing suitable employment that he was capable of performing in a regular and reliable manner.
Dr Assem opined that the plaintiff's ongoing incapacity was a direct result of the injury he had sustained and that he was likely to continue to have ongoing symptoms and limitations in the foreseeable future.
Dr Assem opined that there was no present treatment suitable for the plaintiff. In the long term, he had an increased risk of accelerated degenerative change in the right ankle due to the presence of the talar dome lesion that will manifest with increasing pain and stiffness. It is possible that he may eventually require further debridement or intervention which may include an ankle fusion if his symptoms worsen. The estimated cost of an ankle fusion within the next 20 to 30 years, including hospital and associated charges, is $15,000.
Dr Assem was cross-examined by telephone.
Dr Assem accepted that his conclusions were partly based on the history of complaints given to him by the plaintiff.
Dr Assem was asked to assume that the plaintiff could do a free bar squat with 120 kgs of weight on the bar. He was asked if the plaintiff's ability to complete that exercise would be evidence of greater capacity in the right ankle joint than he had demonstrated at the time of Dr Assem's examination. Dr Assem gave evidence that he knew that the plaintiff was very fit and that when he examined him, he expected him to be going to the gym and doing occasional heavy lifting which would involve some impact on his ankle. Dr Assem opined that continuing to do so was likely to lead to further deterioration in his ankle. Dr Assem accepted that the plaintiff may have improved a bit since he saw him but that he did not impose many restrictions on the plaintiff's ability to work. Dr Assem thought that the nature of his injury, the fact that he had three operations and continuing definite pathology indicated that his pathology would gradually progress over time and that the performance of heavy manual work, including lifting, was likely to accelerate the degenerative changes in his ankle. Dr Assem did not accept that the fact that he could do such an exercise may indicate that he had very little pain or restriction in his ankle. Dr Assem gave evidence that doing a half squat was not that surprising, but the weight was more than he expected.
Dr Assem was then asked to assume that the plaintiff was capable of doing a calf raise with weights of up to 150 kgs. Dr Assem gave evidence that he would be surprised if the plaintiff could perform that exercise. Dr Assem said that if the plaintiff could do so then Dr Assem would review the restrictions he had placed on his ability to stand but that he would still not give the plaintiff an unrestricted ability to do manual work even if he was asymptomatic. Dr Assem gave evidence that the nature of the pathology in the plaintiff's ankle was progressive and that whilst he could do heavy manual work in the short term, it was likely that that would lead to long term deterioration at a rapid rate. Dr Assem gave evidence that carrying heavy weights around a building site is likely to put three to 10 times of his body weight on his ankle. Dr Assem said it was important to draw a distinction between working on a construction site compared to doing controlled exercises in a gym and the fact that someone could lift 50 kgs in a gym did not necessarily translate to them not having trouble lifting 20 kgs on a construction site.
Dr Assem gave evidence that in his opinion it was still important that the plaintiff did not work on uneven ground and do repetitive heavy lifting on a construction site. Dr Assem said that even if he was asymptomatic he would recommend to the plaintiff not to do anything that is going to aggravate his ankle because his only option for treatment would then be an ankle fusion, which would be undesirable in a man of his age and would lead to an inability to work for the rest of his life.
In re-examination, Dr Assem was asked if he would relax the restrictions placed on the plaintiff if he was capable of doing a calf raise with 100 kgs of weight. Dr Assem said that he would relax the restrictions to some extent.
Dr Assem gave evidence that there was a big difference between doing controlled exercises in a gym and heavy work on a construction site. The regularity of the gym work was an important consideration as well as the strength of the plaintiff's desire to go to a gym.

[10]

Report of Craig Martin - Vocational Capacity Assessment Report

The plaintiff tendered a report of Craig Martin dated 19 December 2019. Mr Martin has 23 years' experience as a rehabilitation counsellor and as the proprietor of a workplace rehabilitation provider. Mr Martin was not required for cross-examination. The content of his report can be summarised as follows.
The plaintiff was referred to Mr Martin by his solicitor to compile a vocational capacity assessment. The plaintiff was seen once by Mr Martin on 5 November 2019 for the purpose of preparing his report. Mr Martin took a history of the accident and noted that the plaintiff's prognosis on the medical opinion of Dr Bodel was guarded. The plaintiff told Mr Martin that he had functional restrictions with sitting, standing, walking, squatting, kneeling, stair climbing, lifting and carrying, accessing and working at low levels, pushing and pulling in a standing position and driving.
Mr Martin noted that the plaintiff had previously worked as a builder's labourer and that he did not have the functional capacity to perform those duties as a result of the incident.
Mr Martin opined that the plaintiff had a reduced capacity to earn an income on the open labour market as a result of the injury. He opined that but for the incident the plaintiff could have continued working in the construction industry, obtaining the position of a civil construction labourer, site foreman or site supervisor and thereby incurring a nett loss of income of between $220 to $1,200 per week.
The plaintiff told Mr Martin that but for the injury he intended to continue working in the construction industry and to obtain further trade qualifications in that industry.
Mr Martin assessed the plaintiff's computer skills as basic to intermediate and his English language and literacy skills in the upper range of average. He was assessed as having a moderate difficulty with activities of daily living requiring the use of his lower extremities.
The plaintiff was assessed by reference to the Foot and Ankle Outcome Score (FAOS) which is used to assess patients with a variety of foot and ankle related problems. The results indicated the plaintiff had on average a moderate level of disability performing tasks using his right ankle. Mr Martin stated that the FAOS results were indicative rather than conclusive. The plaintiff scored in the high range of a questionnaire relating to musculo-skeletal pain.
Taking into account that information, Mr Martin opined that the plaintiff has permanent restrictions that will not enable him to perform his pre-injury duties as a builder's labourer. Mr Martin opined that whilst he had obtained a security licence he was not suited to working as a static security guard because of the amount of standing and weight bearing activity required for that position.
Mr Martin opined that the plaintiff was able to obtain employment by reference to his qualifications, education and experience but, as a result of his injury, assessed those prospects as fair.
Mr Martin opined that the plaintiff was suitable for his current employment as an alarm monitor and that he could probably earn $982.00 nett per week on the open labour market in that position. Mr Martin opined that the plaintiff was likely to sustain a 35% loss of earning capacity because of his need for suitable employment and the resulting disadvantage that he would incur on the open labour market. This resulted in a probable residual earning capacity of about $696 per week nett.
On the basis of advertised positions for a civil construction labourer in Sydney, Mr Martin opined that the plaintiff could earn between $918 nett to $1,106 nett per week in that position. On the same basis, as a site foreman, Mr Martin opined that the plaintiff could have earned between $1,169 nett per week and $1,521 nett per week. On the same basis, as a site supervisor, Mr Martin opined that the plaintiff could have earned between $1,293 nett per week and $1,873 nett per week.

[13]

Mr Dale's Evidence

The defendant called Darren James Frederick Dale. Mr Dale is a private investigator and his evidence can be summarised as follows.
In or about May 2019 Mr Dale was instructed to conduct surveillance of the plaintiff. His surveillance commenced on 28 May 2019 at about 5am at the plaintiff's residence. In or about the early afternoon of that day Mr Dale, with another private investigator, followed the plaintiff to a gym in Merrylands. Mr Dale observed the plaintiff enter the gym and he paid for access to the gym for the purpose of observing the plaintiff's activities. Mr Dale observed the plaintiff perform a number of lower body exercises, particularly using his legs.
Mr Dale gave evidence that he was not a regular attendee of a gym. He prepared a report of his observations of the plaintiff that contained a number of descriptions of the exercises that the plaintiff was doing. Mr Dale was not familiar with the names of the exercises and he sought input from another private investigator for the purpose of compiling his report. He gave evidence that he described the movements that the plaintiff was undertaking and based on that information, he was told by the other private investigator the names of the exercises that the plaintiff was carrying out.
Mr Dale gave evidence that he compiled contemporaneous notes by using his mobile telephone whilst he was in the gym. After the completion of his report those notes were disposed of. It is fair to say that Mr Dale had a very limited recollection of what he saw the plaintiff doing on the day that he observed him. He gave evidence that he compiled his report on the next day because that would have been the first opportunity he had to do so. The report was undated.
Mr Dale gave evidence that he observed the weight of particular weight plates to be written on the face of each plate. He gave evidence that he ascertained the weights lifted by the plaintiff on the day of his observations by making a note of how many plates of each weight the plaintiff loaded onto a bar bell. Mr Dale was unable to ascertain all of the weights that the plaintiff used on the day because on occasions, he was unable to make those observations discreetly.
Mr Dale described the plaintiff as carrying out a free bar squat. He could not recall how far the plaintiff was squatting. Mr Dale said that the weight plates were of different sizes but he could not remember how much each plate weighed.
Mr Dale's report alleged that the plaintiff conducted one set of 10 repetitions of 120 kgs free bar squats followed by one set of 10 and one set of eight repetitions of 180 kg free bar squats. The report also noted one set of 15 repetitions and one set of 12 repetitions of 240 kgs leg press and one set of 10 repetitions of 280 kgs leg press. The report also noted "weighted quad raises" which I interpolate to be leg extensions. Mr Dale could not identify the weights being used during the course of that exercise. The report also noted weighted calf raises, again of unknown weights.
In cross-examination Mr Dale could not recall if any of the machines that the plaintiff used were machines operated by a pulley system that were pin-loaded. He could not recall if the leg press exercise to which he attributed the weights of 240 kgs and 280 kgs were conducted by putting weight plates onto a machine.
It was suggested to Mr Dale in cross-examination that the leg press machine was a pulley-based machine operated on a pin-loaded system. Mr Dale replied that he did not recall but accepted that could have been the case. Mr Dale could remember the movement involved in the leg extension exercise but could not say on what type of machine it was performed, apart from the fact that the plaintiff was seated during the course of it.

[14]

Associate Professor Miniter's Reports

The defendant tendered three reports of Associate Professor Paul Miniter dated 23 July 2019, 11 September 2019 and 6 May 2020. The plaintiff saw Dr Miniter on 18 July 2019 at the request of the defendant for a medico-legal assessment.
For the purposes of preparing his first report, Dr Miniter was provided with the clinical notes of Dr Davé and Dr Kuo, but not their medico-legal reports. He was also provided with the medico-legal report of Dr Bodel but not Dr Assem.
Dr Miniter obtained a history of the incident which he described as follows: [The plaintiff] and a colleague had been to lunch and as they were coming back onto the job site, he and his colleague had a playful interaction causing him to fall and the colleague to fall in turn onto the inner aspect of Mr Ajia's right ankle.
Dr Miniter described Dr Davé as being "somewhat puzzled" by the plaintiff's recovery. He did not provide a reference in Dr Davé's notes for that statement, although Dr Davé did report to Dr Pathirana that the cause of the plaintiff's pain was not immediately clear and that the findings in the MRI scan of 12 June 2017 did not seem to correlate to his pain, before referring him to obtain a second opinion from a foot and ankle surgeon.
Dr Miniter referred to the operative report of Dr Kuo. He described the operation as the removal of a "tiny ossicle of bone from the medial malleolus" and that Dr Kuo opined that the plaintiff may have had a chondral lesion involving the anterior portion of the tibial plafond but that there were no arthroscopic photographs to confirm this. Dr Miniter commented that Dr Kuo did not "provide any evidence of the size of this lesion or its chronicity".
Dr Miniter then referred to the investigations of the plaintiff's ankle. He accepted that there was some degree of medial gutter scarring and that this was confirmed in the operative report of Dr Kuo. He described the latest MRI scan as demonstrating "miniscule pathology". He did not explain how he came to that conclusion by reference to the findings in the report of that MRI scan. He then stated: Whilst Dr Kuo felt that there was a significant chondral lesion of the anterior tibia, I could see only a very small area of partial thickness involvement of the tibial chondral surface. There appears to be a very small anteromedial impingement lesion but this is not duplicated on the talar side. I could see no evidence of medial gutter scarring. Dr Kuo also mentioned the possibility of a talar chondral lesion but I could see no evidence of this on the investigations provided. You will note that these chondral lesions can be difficult to identify. It is however noted that none of these chondral lesions are full thickness and none are associated with bone oedema.
Dr Miniter opined that the plaintiff's injury appeared to be minor. He opined that there was no cogent reason for the plaintiff not to have returned to work without restrictions. He continued: Please note that the comment by Dr Kuo that he performed a medial ligament reconstruction is not consistent with the investigative findings prior to that time. Perhaps he needed to partially reflect the medial ligament to gain access to the ossicle of bone which was said to have been present over the medial malleolus but he certainly did not perform a full and complete medial ligament reconstruction.
Dr Miniter opined that the plaintiff had suffered a fracture of the lateral malleolus and that it was possible that he sustained a minor chondral injury to the medial gutter, but there was no evidence of a major injury. He stated that it was possible that these injuries occurred in the incident described by the plaintiff, but accepted it was likely that they were causally related to the incident.
Dr Miniter opined that the plaintiff had not fully recovered from the incident but had only very minor persistent issues. He stated that the plaintiff's complaints of being unable to stand for long periods or to return to heavy physical activity are not underpinned by direct observation or investigative findings. Dr Miniter opined that the plaintiff's prognosis was excellent, that he should be certified to return to work without restriction and that he did not require any domestic assistance.
Dr Miniter accepted that the treatment provided to date was reasonably necessary. He continued: I am not certain that there was a real need for the latest surgical procedure performed by Dr Kuo particularly in terms of exploration of the medial gutter. He has had no benefit from this and it could be reasonably argued that further exploration of the area which was causing him pain is not an unreasonable expectation.
Finally, Dr Miniter stated that Dr Bodel's opinion that the plaintiff had lasting impairment and permanent restrictions was an "inappropriate estimation of the matter". In this respect, Dr Miniter relied on his experience as a specialist ankle and foot surgeon who regularly deals with complex and difficult ankle procedures, stating that "[The plaintiff] has had a relatively minor injury from which virtually full recovery is guaranteed". Dr Miniter stated that he could not find a grade 3 sensory loss in the lateral border of the plaintiff's foot.
In his second report, Dr Miniter opined that the plaintiff would have been unfit for work and domestic duties for between six and 12 weeks following the first surgery. After that, Dr Miniter would have expected his return to unrestricted full-time duties. In Dr Miniter's opinion, light duties may have been appropriate for the period between six weeks and 12 weeks after the first surgery, but not otherwise. Dr Miniter noted that the plaintiff had responded poorly to treatment and thought that the advisability of the second surgery performed was questionable, even though it found an anomaly on the distal tibia. He opined that the anomaly did not explain his claimed inability to work at present.
For the purposes of preparing his third report, Dr Miniter was provided with surveillance video of the plaintiff and the undated report of Mr Dale. The surveillance material may have contained video footage of the plaintiff working out at the gym, which was not tendered in evidence, so I must exercise some caution because any opinion of Dr Miniter based on that material is not maintainable. It should also be noted that I do not accept the observations of Mr Dale as to the weights involved in the leg press or free bar squat exercises.
Dr Miniter noted that Mr Dale observed the plaintiff to be "performing particularly heavy physical activity with his lower limbs". Based on the material Dr Miniter opined: I do believe that the surveillance material, both in terms of his general ability to walk and conduct his personal matters as well as his ability to participate in heavy gym activity, indicates that his functional level is more than adequate to perform everyday activities. … In my opinion, the surveillance material is more than convincing. He functions particularly well in the general community and should be able to return to work without restrictions.
Dr Miniter was not required for cross-examination. As a consequence, the defendant submitted that his evidence was unchallenged and that I should accept his opinion. The plaintiff submitted that there were discrepancies on the face of Dr Miniter's reports to justify the finding that his opinions could not be accepted or that they should be afforded less weight. I will return to this issue in making findings on the evidence.

[15]

Report of John Burchett, Vocational Psychologist, dated 10 February 2020

The defendant tendered a report of Mr John Burchett, Vocational Psychologist dated 10 February 2020. The plaintiff consulted Mr Burchett once on 4 February 2020 for the purpose of preparing his report at the request of the defendant. Mr Burchett was not required for cross-examination. The content of his report can be summarised as follows.
Mr Burchett obtained a history from the plaintiff that was consistent with his evidence and the medical evidence, such that it is unnecessary to repeat it. The plaintiff gave some more detail about his current position. He presently works three 12 hour shifts per week for a total of 36 hours per week. He is responsible for monitoring alarms throughout the country. During the recent bushfires and abnormal weather, especially in Victoria, he has been required to work more shifts per week for a total of about 50 hours per week, which includes some overtime. The plaintiff gave a history that he is very busy at work and monitors alarms relating to armed robberies as well as unauthorised entry to property. He is required to notify the police and to get in contact with the customer to provide details and support relating to the incident. He uses specialist computer software to undertake his work. He usually receives between $850 and $900 per week nett. He is still employed on a casual basis.
Mr Burchett administered psychometric testing demonstrating that the plaintiff's intellectual ability was in the upper part of the average range but higher in spatial and mathematical reasoning. This latter finding reflects his suitability to the building industry. He was in the upper part of the average range for clerical speed and accuracy, grammar and spelling. He had above average numeracy skills.
Mr Burchett opined that the plaintiff was likely to enjoy employment providing opportunity for interacting and influencing others. He opined that the plaintiff was still psychologically suited for the building industry but was not qualified to comment on his physical incapacity to undertake that work. Mr Burchett noted that the plaintiff had been ready to take advantage of the opportunity for re-training and that he was keen to make enquiries about opportunities that may further his career. Mr Burchett opined that the plaintiff was motivated and possessed strong work focus and was capable of working full time in an appropriate job.
Mr Burchett opined that in addition to his current employment, the plaintiff was also suited to work as a control room operator or radio despatcher, facilities manager or building manager, a warehouse administrator, an insurance consultant or clerk, a sales representative in business services or building supplies and a purchasing officer. Mr Burchett opined that the plaintiff may, with some further re-training, be suitable to work as a supply and distribution manager or a customer service manager.
Mr Burchett set out the respective salaries for those occupations. For the most part, those salaries were not vastly different to what he was currently earning.
It should be noted that there were no vacancies advertised for a radio despatcher and only two vacancies advertised for a sales representative in building and plumbing supplies in the Sydney area. There were about 100 vacancies advertised for a purchasing officer.

[16]

Reports of the Rehabilitation Providers

The defendant tendered a bundle of reports from the rehabilitation providers seen by the plaintiff at the direction of the workers compensation insurer. It was not apparent from the defendant's submissions what use it sought to make of them. However, they were a further contemporaneous record of the plaintiff's progress through the rehabilitation process. My review of these reports revealed the following.
The plaintiff was referred by the workers compensation insurer to Accelerate Occupational Rehabilitation (Accelerate), a rehabilitation provider on 16 May 2016. On 18 May 2016 the plaintiff was first assessed by Tristan Rugless of Accelerate. In a report dated 3 June 2016, Mr Rugless noted that Christies had short term sedentary duties available such as gate-keeping or office duties in order to facilitate the plaintiff's gradual return to work. It was expected that it would be three months before the plaintiff had recovered sufficiently to undertake those duties. The Accelerate records contained a notation that a workplace assessment took place on 13 July 2016. This supports the inference that the plaintiff returned to work on suitable duties with Christies on that date. This inference was also supported by the plaintiff's pay records and the notes of his first consultation with Dr Pathirana on 13 September 2016, which contained the history that the plaintiff had returned to work performing suitable duties.
On 25 May 2017 the plaintiff was referred to Rehabilitation Injury Management Australia Pty Ltd (RIM) by the workers compensation insurer for assistance with his return to work. He participated in an initial interview with Ray McGhee of RIM on 23 May 2017 and a return to work plan was forwarded to Dr Pathirana. On 24 May 2017 RIM conducted a workplace visit and observed the plaintiff performing light duties for normal hours and confirmed that those duties were suitable to his post-injury limitations. The return to work plan noted that the plaintiff was continuing to perform gate-keeping duties with Christies and that his capacity for standing, using stairs, squatting or kneeling and driving were restricted. On 25 May 2017 the plaintiff commenced gate-keeping duties at Warriewood.
On 17 August 2017 in Progress Report No 3, the rehabilitation provider noted that the plaintiff was experiencing ongoing discomfort in his foot whilst driving, making it difficult for him to perform his duties. The plaintiff reported he was due to attend an appointment with Dr Kuo for a second opinion on 5 September 2017.
On 18 August 2017 a case conference was conducted with Dr Pathirana. Work options that were reviewed included personal training, sports instruction, security officer and call centre operator.
Subsequently, the plaintiff told the rehabilitation provider that Dr Kuo had recommended surgery which was scheduled for 6 November 2017. The rehabilitation provider arranged an occupational therapy report to assess if the plaintiff would require domestic assistance after the surgery from Dr Kuo. That report, dated 24 October 2017, recommended some provision be made to the plaintiff for assistance following the surgery. In particular, the report noted that the plaintiff complained that he was restricted in performing domestic duties that required him to be on his hands and knees. The provision of rehabilitation services to the plaintiff was put on hold until December 2017.
In January 2018 RIM ascertained that Christies could provide further light duties at their Balmain office. At a case conference conducted on 16 March 2018 the plaintiff was assessed as being capable of working 25 hours per week on restricted duties. On 3 May 2018 it was decided at a case conference that the plaintiff was unable to return to his pre-injury duties as a result of his condition following the surgery performed by Dr Kuo.
On 17 May 2018 RIM referred the plaintiff for a functional capacity evaluation report prepared by Leanna Gale, Occupational Therapist. That report concluded that the plaintiff was unable to return to construction labouring work but was fit for duties where he could largely sit with intermittent periods of standing and walking without being required to lift weights below thigh level. The plaintiff was considered to have functional capacity to undertake administrative duties, call centre work or security work within a control centre on a full time basis.
On 15 June 2018 RIM decided that the plaintiff should undergo a vocational assessment and be provided with job seeking assistance.
On 14 August 2018 in Progress Report No 14, the rehabilitation provider assessed that the plaintiff could lift or carry 10 kg weights at waist high level, stand for 20 minutes, drive for 30 minutes and should minimise climbing steps or stairs in accordance with the WorkCover Certificate of Capacity issued by Dr Pathirana. RIM was to co-ordinate for the plaintiff to undergo training to obtain a security licence. That training had been approved by the workers compensation insurer.
On 20 August 2018 the plaintiff commenced training courses to obtain his security licence. He completed those courses on 7 September 2018.
On 12 October 2018 in Progress Report No 16, it was noted that RIM was to provide job seeking assistance to the plaintiff. The plaintiff had submitted his security licence application but had not been issued with a licence which was waiting the completion of a background check by NSW Police. From this time, the plaintiff commenced to regularly submit records of his job seeking activities to RIM during the course of each review.
On 22 February 2019 the plaintiff advised RIM that he had received his Security Licence.
The reports indicated that from 12 October 2018 onwards the plaintiff applied for a large number of positions, making more than 100 applications for employment.
On 30 April 2019 in Progress Report No 22, the plaintiff informed the rehabilitation provider that he had undertaken three days unpaid work as a spotter for an EWP operator on a construction site. This work was arranged through a friend that had indicated to the plaintiff that other opportunities were available. Mr McGhee reported advising the plaintiff that he should not undertake work trials that had not been fully vetted and that any work trial must be aligned with the goal of undertaking static security work or in sales because work on a construction site presented a risk of aggravating his ankle injury. Mr McGhee commended the plaintiff for his initiative but told him that any work experience must be arranged in collaboration with RIM through approved and formal processes.
On 7 June 2019 in Progress Report No 23, RIM identified that most security roles required an applicant to also hold a Responsible Service of Alcohol Certificate (RSA) and a Responsible Conduct of Gaming Certificate (RCG). Approval was given for the plaintiff to undertake the necessary training to obtain those certificates.
RIM ceased to provide assistance to the plaintiff in or about July 2019. By that time he had not received an offer of employment.

[19]

The circumstances of the plaintiff's injury

The defendant alleged in its written submissions that the plaintiff had given 11 versions of the incident to various people following the incident and that as a result I should disbelieve his evidence. I will deal with each version in turn describing them as the defendant did in its written submissions as numbered versions, bearing in mind the reasons why such inconsistencies may not be determinative of the issue, that were set out in Container Terminals Ltd v Huseyin [2008] NSWCA 320 at [8], to include the following: (a) the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that the he or she will have any real recollection of the circumstances in which the record was made); (b) medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort; (c) the histories did not make reference to the questions which elucidated the replies; (d) the material recorded was a summary of the answers rather than a verbatim recording; and (e) there may be a range of factors, including fluency in English, the practitioners' knowledge of the background circumstances of the accident and the patient's understanding of the purpose of the question, which will affect the content of the history.
Version 1 was contained in the accident report form that I have set out in full at [14] above. The plaintiff provided an explanation for this false version, which, based on all of the evidence and my assessment of the plaintiff as a witness, I accept. The plaintiff's evidence that Version 1 was false was corroborated by Mr Miller's statement which recanted the content of the accident report form, a few days after it was prepared, in the following terms: 27. I acknowledge that the incident form reflects that I tripped over the curb and gutter and now concede that this is not a true statement and does not reflect what actually occurred.
The defendant did not seek to call Mr Miller to put to him that Version 1 was true.
I pause to note that the Employer Injury Claim Form prepared and submitted by Christies contained the false version. It is unclear how Christies were informed as to how the incident occurred, but it is possible that they were provided with the accident report form prepared by Mr Miller. There was no evidence of any communication between the plaintiff and Christies or the plaintiff and the workers compensation insurer as to the circumstances of the incident. The defendant alleged in cross-examination and submissions, that the plaintiff had used the false version to deceive the workers compensation insurer in order to receive compensation payments, but the defendant did not set out to prove the truth of that allegation.
Version 2 alleged that the plaintiff said at the hospital that "[the plaintiff] held his co-worker who was falling and had the whole weight of his foot fall with inversion of the right foot". It is not clear when this history was given in the course of his attendance at the hospital because it was contained in the discharge summary. The plaintiff did not recall the history that he gave at the hospital but accepted in cross-examination that it was given to keep the story straight.
Version 3 was a history given to Dr Laughlin, general practitioner, a few days after the incident to the effect that a "fellow worker fell over an outstretched leg". The plaintiff again accepted in cross-examination that it was the false version and that he lied to Dr Laughlin, but I am not sure that it is compatible with the false version which involved tripping over a kerb. Dr Laughlin was not called to give evidence and I am not satisfied that his note was an accurate note of what the plaintiff told him or that it should be relied on for the purpose of determining liability. In any event, the plaintiff immediately made the concession that he had lied to Dr Laughlin and that concession was consistent with his evidence-in-chief.
Version 4 alleged that the plaintiff told Mr Rugless that he had "lost balance collapsing on his leg". The plaintiff did not recall what he told Mr Rugless but accepted that he stuck to the false version. Mr Rugless was not called to give evidence and I am not satisfied that his note was an accurate note of what the plaintiff told him or that it should be relied on for the purpose of determining liability.
Version 5 recorded by Dr Pathirana was that the plaintiff's leg got caught in a trench and he twisted his leg at the same time. The plaintiff could not recall the history he gave to Dr Pathirana. Dr Pathirana was not called to give evidence and I am not satisfied that his note was an accurate note of what the plaintiff told him or that it should be relied on for the purpose of determining liability.
Version 6 alleged that the plaintiff told Ms Gale, an Occupational Therapist, that he had "twisted his ankle at work". The plaintiff was not asked any questions about Version 6 in cross-examination. Ms Gale was not called to give evidence and I am not satisfied that her note was an accurate note of what the plaintiff told her or that it should be relied on for the purpose of determining liability.
Version 7 alleged that the plaintiff had told Dr Davé that he was injured lifting equipment when a co-worker stumbled. The plaintiff did not recall what he told Dr Davé but said that he stuck to the story that it was an accident. I note that there was no entry in Dr Davé's notes about how the incident occurred. The first time Dr Davé recited any history was in the medico-legal report dated 20 August 2019. In the absence of a contemporaneous note by Dr Davé, I am not satisfied that his recital of any history more than three years later was reliable or in fact provided by the plaintiff. In addition, Dr Davé was not called to give evidence and I am not satisfied that his note was an accurate note of what the plaintiff told him or that it should be relied on for the purpose of determining liability.
Version 8 alleged that the plaintiff told Mr Burchett that he was in a group of workers "mucking around" when he was grabbed from behind and fell to the ground with the supervisor on top of him. In cross-examination, the plaintiff accepted that there were other workers present but not that there were a group of workers involved in the incident. In my view, this history was entirely consistent with the plaintiff's evidence-in-chief. The criticisms alleged were that there was no mention of a "bear hug" and that the plaintiff denied telling Mr Burchett that other workers were involved in the incident, but I am not satisfied either rises above pedantry.
Version 9 alleged that the plaintiff told Dr Miniter that he had a "playful interaction" with a colleague that caused them both to fall. Again, the defendant made the same criticism about the lack of the use of the term "bear hug". In my view, Version 9 is entirely consistent with the plaintiff's evidence-in-chief and the criticism is unwarranted.
Version 10 alleged that Mr Miller's description of the wrestling did not conform to the use of the term "bear hug" and that it conveyed that they were both participating in the wrestling. The fact that there are inconsistencies between the plaintiff's evidence-in-chief and Mr Miller's statement is to be expected and that is not a proper basis to reject the evidence of both the plaintiff and Mr Miller. Mr Miller's evidence was given against his interest or at least his employer's interest which is generally an indicator of reliability. Mr Miller's evidence corroborated the plaintiff's evidence-in-chief and was given at a time before it was clear that the plaintiff would rely on it to his benefit in curial proceedings. It was open to the defendant to call evidence from the other people that were present at the time of the incident. It had available to it statements from two witnesses, Shaun Matthew and Matthew Gilmore, whom it did not call to give evidence.
Version 11 was the plaintiff's evidence-in-chief that I do not need to repeat.
If I accept the plaintiff's evidence then it follows that he signed a document containing a false version of the incident. The fact that it was a false version and that Mr Miller was involved in promulgating it are corroborated by Mr Miller's statement that was signed a few days later.
At the time that the plaintiff signed the accident report form he was in a disadvantaged position. He was in hospital, in pain and had been given medication. He had not been injured at work previously and did not understand the process. He was coerced into acting in a way which he understood would keep Mr Miller out of trouble, keep him in work and entitled to compensation payments. His position with the defendant as a labour hire worker was tenuous, compared to Mr Miller's positon. It is likely that he did not understand the legal significance of the defendant being at fault for the incident. I accept that he may have continued to repeat the false version for some time after the incident.
My overall impression of the plaintiff was that he was a witness trying to do his best to tell the truth. On a number of topics, including this one, his evidence was corroborated by contemporaneous documents, in particular the statement of Mr Miller. There was nothing about the way that the plaintiff gave his evidence that caused me to doubt his veracity. He became frustrated on a few occasions in cross-examination by reference to some of the questions he was asked, but at these times my impression was that he was at cross purposes with the cross-examiner through no fault of his own and not by reference to a desire to avoid the question or to mislead the Court.
The defendant contended that the Court was left in a position to determine which of the plaintiff's "dishonest accounts" are to be believed. It was submitted that at best the plaintiff was a "prolific liar" who maintained a story for years that he now claims was fabricated and that he lied to gain financial advantage. For the reasons given, these submissions should be rejected.
I am satisfied that the plaintiff's version of the incident should be accepted and that his evidence is consistent with the content of Mr Miller's statement.

[20]

The extent of the plaintiff's injuries and disabilities and his consequent fitness for work

The defendant's attack on the plaintiff's evidence continued in relation to the alleged extent of his injuries. The defendant contended that the plaintiff's ability to perform lower body resistance training in the gym indicated that he had good use of his injured ankle and that he was fit for his pre-injury employment as a construction labourer. These submissions were based primarily on the observations of Mr Dale and the expert opinion of Dr Miniter, which I will now turn to.
I do not accept Mr Dale's evidence as to the weights lifted by the plaintiff in the gym at the time the observations were made of him for the reasons that follow. First, the only evidence of those weights is contained in Mr Dale's report. The report is undated and I am not satisfied that it was prepared on the day after the observations were made. Mr Dale's evidence was that he "would have" compiled the report on the next day because he was busy in the surveillance of the plaintiff between 5am and 5pm on the previous day. That evidence suggests to me that it is reconstructed and there is no evidence of what Mr Dale did on the following day to confirm that he was in fact available to prepare the report as he said he did. Mr Dale did not say that it was his usual practice to compile a report the next day or as soon as possible after the observations were made.
Second, the report was compiled with considerable input of another private investigator who was not called to give evidence. It is difficult to tell how much of the content of the report in fact belonged to Mr Dale.
Third, the allegations of the weights lifted by the plaintiff contained in the reports could not be tested because Mr Dale had disposed of his contemporaneous notes of the observations. In cross-examination, Mr Dale had an extremely poor recollection of what had occurred. He alleged that he counted the number of weight plates of different denominations, but there was no recording of the number of plates or the relevant denominations such that the evidence could be tested, mathematically or otherwise.
Fourth, from Mr Dale's cross-examination I do not understand how he could allege that he observed the weight plates being placed on the leg press machine. He could not describe the configuration of the leg press machine. His evidence failed to convince me that he could observe weight plates being placed on the leg press machine.
Fifth, I accept the plaintiff's evidence that he could not perform a free bar squat of 180 kgs. Accordingly, I would reject the observation noted in Mr Dale's report and that calls into question his calculation of the other weights contained in it.
In cross-examination the plaintiff conceded that in May 2019 that he could do a free bar squat of 120 kgs. His evidence was that it was "possible" that he could perform the exercises at the other weights put to him (apart from a 180 kg free bar squat), but that he could not recall the specifics of any weights he used on any particular day. I do not take that evidence as a concession that he used the weights referred to in Mr Dale's report. Further, I do not accept that he in fact performed calf raises using 150 kgs. His evidence was that he was capable of performing that exercise with the maximum weight possible with the pin-loaded machine but that he did not know how much weight that involved. His estimate of 150 kgs was no more than a guess and I do not accept that evidence as establishing that weight.
This finding must be applied to assessing the evidence of Dr Bodel and Dr Assem who were asked to assume some of the weights which I have found not to be established.
After careful consideration of Dr Miniter's evidence, I have come to the conclusion that I prefer the opinions of Dr Kuo, Dr Bodel and Dr Assem for the reasons that follow. First, Dr Miniter's summary of Dr Kuo's operative report does not fairly or accurately reflect its content. The impression conveyed by Dr Miniter in his first report was that Dr Kuo thought that it was possible that the plaintiff may have had an anterior tibia plafond chrondral lesion and a chondral medial talar dome lesion. Dr Miniter's report implied that he was not satisfied that either condition existed in the absence of arthroscopic photographs to confirm this to be the case. Contrary to Dr Miniter's view, Dr Kuo stated in the operative report, based on his observations during the surgery: There was a prominent anterior tibial plafond chondral lesion which was causing impingement and a chondroplasty was performed. There was a small chondral medial talar dome lesion.
It is unclear where Dr Miniter's description of the ossicle as "tiny" came from. It is possible that this was his own interpretation of the size of the ossicle from the radiology, but he did not state that to be the case. Dr Kuo described the ossicle as "small" and did not provide any measurements of it. Not much turns on this because Dr Kuo's opinion was that the ossicle was not the source of the plaintiff's pain.
Finally on this point, Dr Miniter stated that Dr Kuo's comment in the operative report that he had performed a "medial ligament reconstruction" was not consistent with the MRI scans which did not demonstrate a full thickness tear, but accepted that some repair of it may have been necessary during the course of the surgery. There was no such reference in the operative report. The report referred to a deltoid ligament repair and there was no reference to the medial ligament or to the reconstruction of any ligament.
Second, Dr Miniter's description of the MRI scan demonstrating "miniscule" pathology was unhelpful, because there was no explanation of why the findings recorded in the MRI scan should be considered as being so insignificant, that they were miniscule. He seemed to rely on the latest MRI scan as not demonstrating the pathology that Dr Kuo had observed during the surgery, whilst recognising that the chondral lesions can be difficult to identify on MRI scans. This evidence was contradictory, but supports my view that the best evidence as to the existence of these conditions were the observations made by Dr Kuo during surgery.
Third, Dr Miniter expressed a number of opinions that appear to be internally inconsistent. Whilst Dr Miniter sought to prefer his own experience as a specialist surgeon over that of Dr Bodel, he did not make the same allowances for the experience of Dr Kuo. In fact, Dr Miniter second guessed Dr Kuo on matters that he had the opportunity to observe during surgery. Further, I was left confused by Dr Miniter's comments on the reasonableness of the surgery performed by Dr Kuo, which I have set out at [155] above. Dr Miniter seemed to be saying that the surgery performed by Dr Kuo was not warranted because the plaintiff obtained no benefit from it. This does not explain how Dr Kuo knew or should have known that the plaintiff would obtain no benefit from the surgery. The balance of the quote at [155] suggests the opposite, that the surgery was not unreasonable because it involved exploration of the site of the plaintiff's pain.
Fourth, after his first report, Dr Miniter was not provided with the other medical reports when they became available, including the medico-legal reports of Dr Davé, Dr Kuo and Dr Assem. It is apparent that all of Dr Miniter's opinions have been proffered on an incomplete version of the evidence.
Fifth, Dr Miniter's opinions expressed in his third report are unconvincing. I do not understand how the observations of the plaintiff walking bear on the conclusion reached by Dr Miniter, because none of the surveillance video shown in Court demonstrated that the plaintiff could walk for longer than he said he could. Further, Dr Miniter has not analysed the movements involved in the plaintiff's gym training to identify any impact it may have on his injured ankle before concluding that he is capable of performing "everyday activities". Dr Miniter does not place any specific reliance on the weights involved in the plaintiff's gym exercises, as reported by Mr Dale. I am also not sure how the functional ability to undertake "everyday activities" translates to working as a labourer on a construction site, except to say that Dr Miniter's view is that the plaintiff is fit for work without restriction. I do not know how Dr Miniter could reach the conclusion, based on the surveillance material, that the plaintiff "functions particularly well in the community" or even what is meant by that.
Sixth, Dr Bodel and Dr Assem were impressive witnesses who gave similar evidence that was consistent with the reports of the plaintiff's treating specialists, Dr Kuo and Dr Davé. I had the advantage of having Dr Bodel and Dr Assem justify and reconsider their opinions in cross-examination. Dr Bodel explained his evidence by reference to the objective findings on examination and by reference to the MRI scans and the type of surgery performed on the plaintiff. Dr Assem gave evidence that the plaintiff was at risk of future aggravation of his condition and he should avoid work as a construction labourer, even if he was asymptomatic.
The plaintiff's evidence was that his injured ankle gives him constant pain which is exacerbated by being on his feet or driving for extended periods and by walking on uneven ground. He needs to have the ability to be off his feet and to elevate his injured leg at work when necessary. He is capable of performing resistance exercises involving his injured ankle in the controlled environment of the gym, but that aggravates his ankle for the night that follows those exercises. He did not believe that he could return to work on a construction site because that involved a lot of walking, walking on uneven ground, standing and repetitive manual tasks such as filling and stacking sand bags, and all of those activities would cause an exacerbation of his pain.
The plaintiff's evidence was significantly supported by the contemporaneous records relating to his complaints of symptoms, the objective evidence including the MRI scans and Dr Kuo's observations during surgery and the weight of the medical opinion. Based on all of the evidence, I am satisfied that the plaintiff's ankle causes him discomfort at rest that can be exacerbated to the extent that it is painful by the types of activity that he referred to. The MRI scans demonstrate that he has early degenerative change present in his ankle that was caused by the injury and based on the opinions of all of the doctors, except for Dr Miniter (which I do not accept), it is likely that he will develop post-traumatic arthritis.
I have taken into account that the plaintiff is capable of undertaking resistance training using heavy weights in the gym and that he does so to maintain a muscular physique. I am satisfied that he has modified his training to account for his condition by reducing the number of sessions dedicated to his lower body to once a week or once a fortnight and that he has modified the way he performs some exercises. I accept his evidence that he followed Dr Pathirana's advice to go back to the gym because it is something that he has done for a long time and he enjoys it. I am satisfied that the plaintiff told the doctors when asked that he was undertaking resistance training in the gym. I am satisfied that none of the doctors asked him for the full detail of his lower body workouts. I accept the plaintiff's evidence that Dr Pathirana advised him to get back to the gym and do what he could even if it caused him some discomfort. I accept the evidence of Dr Assem that the leg press and calf raise exercises are likely to aggravate his injured ankle, but I am not satisfied on the evidence, that the plaintiff has been given that advice by a doctor. I accept the evidence of the plaintiff, Dr Bodel and Dr Assem that a distinction should be drawn between performing resistance training in the controlled environment of the gym and the heavy work required of a labourer on a construction site and that the plaintiff's ability to perform lower body exercises does not demonstrate that he is fit for his pre-injury employment.
I am satisfied that the plaintiff has an ongoing incapacity to undertake work involving prolonged time on his feet, walking on uneven ground and repetitive lifting and carrying and as a result he is no longer fit for his pre-injury employment as a construction labourer or for work involving these activities.
At present, the plaintiff is not prevented from undertaking any domestic task as a result of his condition, but I accept that he may experience some difficulty with some rare tasks such as those that are performed on hands and knees.
It is likely that the plaintiff's condition will deteriorate to the extent that he requires some form of surgical treatment in about 15-20 years. This will probably be an arthroscopic procedure or an ankle fusion, but the latter is less likely.

[21]

The extent to which the plaintiff has mitigated his loss

The defendant contended that the plaintiff had failed to mitigate his loss by falsely maintaining that he was incapacitated, receiving compensation payments and failing to obtain employment, in the period between the incident and when he obtained work with his current employer.
As to the first aspect of this argument, I have concluded on the evidence that the plaintiff has established a loss of earning capacity. Thereafter the onus of demonstrating a failure to exploit a residual earning capacity was on the defendant, taking into account all of the circumstances that apply to the plaintiff: South Western Local Health District v Sorbello [2017] NSWCA 201 at [74] and Mead v Kearney [2012] NSWCA 215 at [16] and [25].
The plaintiff's evidence that he undertook appropriate steps to re-train and find alternative employment in the relevant period was substantially corroborated by the records of the rehabilitation providers that were tendered by the defendant. Based on all of the evidence, I am satisfied that the plaintiff took appropriate steps to mitigate his loss for the reasons that follow.
First, the plaintiff undertook light duties with Christies whenever they were offered to him.
Second, the plaintiff had limited qualifications and experience in occupations other than as a construction labourer. The defendant suggested that the plaintiff could have continued in the construction industry as a supervisor. I do not accept that was a likely outcome because of the plaintiff's lack of qualifications and experience in construction. Further, he faced a significant barrier in undertaking further study to get the necessary qualifications because he needed to work to support himself. I accept the plaintiff's evidence that he could not return to work in a warehouse by reason of his physical restrictions.
Third, there was some unavoidable delay involved with the plaintiff's recovery and with finding alternative suitable employment. The plaintiff had his last surgery 19 months after the incident and required some further time after that to assess the final extent of his capacity. Further, the plaintiff's re-training in the security industry necessarily involved some delay in undertaking the necessary training, including the completion of the RSA and RCG certificates, and applying for a security licence. He then had to find employment in an industry in which he had no experience.
Fourth, the plaintiff was under the close supervision of the rehabilitation provider to achieve the aim of the workers compensation insurer to get the plaintiff to return to work. In particular, Mr McGhee was the plaintiff's case officer for the entirety of the period that he was involved with RIM. I am satisfied that the rehabilitation provider comprehensively assessed the skills of the plaintiff and his physical capacity in recommending the positions that it did for him. This was achieved through consultation with the plaintiff's treating practitioners and independent assessment of the plaintiff by RIM's nominated occupational therapist, Ms Gale. I am satisfied that the plaintiff followed the rehabilitation provider's advice by re-training in the security industry and that his decision to do so was a reasonable one. Further, the rehabilitation provider required evidence from the plaintiff that he was applying for work and in the relevant period the evidence demonstrates that he did apply for a large number of positions. The rehabilitation provider's advice was consistent with the expert reports of Mr Martin and Mr Burchett.
Fifth, the plaintiff needed to get back to work for psychological and financial reasons and that need was the subject of discussions between the plaintiff and Dr Pathirana over an extended period.
On all of the evidence, I am satisfied that the plaintiff took reasonable steps to mitigate his loss by obtaining his current employment and I am not satisfied that he failed to exploit his residual earning capacity in the period between the incident and when he secured his current employment.

[22]

Breach of Duty

The defendant conceded that it owed a duty of care to the plaintiff.
Section 5B Civil Liability Act 2002 provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
Section 5C Civil Liability Act 2002 provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
The question whether the defendant was guilty of breach of duty turns first on determining whether the risk in question is one of which the defendant knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, it is essential to determine the scope of the duty of care the defendant owed the plaintiff.
The inquiry about whether the defendant ought to have taken the precautions for which the plaintiff contends, turns on (amongst other relevant matters), the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] per Hayne J, but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31].
The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is also necessary to ask would it have been reasonable for the defendant to take those measures: Neindorf v Junkovic (2005) 80 ALJR 341 at [93] per Hayne J. In other words, the knowledge of how the injury was sustained has to be excluded when considering whether the defendant was obliged to take any precautions to prevent skylarking at the site: Neindorf at [96]-[97] per Hayne J.
The relationship between the defendant and the plaintiff at the site was analogous to that of an employer/employee relationship: TNT Australia Ltd v Christie (2003) 65 NSWLR 1 at [41].
The defendant had the control of the site and over the way the plaintiff performed his work. At common law, an employer has a duty to provide competent staff, a safe system of work and adequate supervision: Wilsons and Clyde Coal Co v English [1938] AC 57 at 78.
It is well settled that an employer's duty includes the removal of a source of danger to an employee posed by another employee who through his or her habitual conduct, poses a source of danger through skylarking or horseplay: Paterson v Kincora Enterprises Pty Ltd trading as Burwood Reinforced Plastics [2001] NSWSC 1006 and Hudson v Ridge Manufacturing Co Ltd [1957] 2 All ER 229.
In Macquarie Area Health Service v Egan [2002] NSWCA 26 Sheller JA described the content of the duty at [2] as follows: There could be no doubt that horseplay, a word connoting rough and boisterous activity, between two or more participants, is likely to carry with it the risk of injury to any of the participants. If the employer knows…or should have, that such activities occur in the workplace, particularly if they take the form of physical assaults upon employees, it is the duty of the employer to protect the employees from the risks of such activities…by appropriate counselling or instruction.
The risk of harm was the risk of injury occurring as a result of workers engaging in physical wrestling at the site.
The defendant had actual knowledge of the risk because its supervisor, who was in charge of the site on behalf of the defendant, had been involved in similar conduct with the plaintiff in the past and was the instigator of the conduct on the day of the incident. As the defendant's supervisor at the site, Mr Miller had a duty to receive information on the defendant's behalf and to communicate it or act on it, and thereby his knowledge was the knowledge of the defendant: Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [40]-[42].
In the alternative, the defendant ought to have known about the conduct of its employees and the workers on site because it could not have otherwise complied with the duties that it owed to them.
The risk of harm was not insignificant because the risk of physical injury that arose from skylarking was obvious, the practice of skylarking was known to take place at the site and it was capable of causing a serious injury, such as if a worker fell and struck their head on the ground.
A reasonable employer in the position of the defendant would have provided supervision of the workers on the site to prevent the occurrence of episodes of skylarking, and on authority was obliged to do so. The probability of the harm occurring from skylarking was low to moderate, but the potential consequences were serious and involved a risk of serious injury and possibly a risk of death. The precautions that could have been taken to prevent the harm were simple and inexpensive and included: 1. providing adequate supervision of the site to ensure that skylarking was not taking place; and/or 2. disciplining Mr Miller in relation to earlier episodes of skylarking; and/or 3. training Mr Miller in relation to his duty as a supervisor of the site particularly to ensure a safe system of work by eliminating or minimising skylarking.
The defendant owed a similar duty to its own employees working on the site as well as other workers on the site whose work it directed or controlled, such as other labour hire workers. Accordingly, the burden of taking precautions to prevent injury to the plaintiff was reduced, because those steps were required to be taken to also prevent injury to others to whom the defendant owed a duty of care.
Vicarious liability does not attach for every wrong done by an employee at work. It was not squarely contended by the defendant that Mr Miller acted outside the scope of his employment. In this case, it is appropriate that vicarious liability should attach to the act of Mr Miller because skylarking was an activity that Mr Miller, as the defendant's supervisor of the site, participated in and instigated and it was thereby impliedly authorised by the defendant: Egan at [15] (Powell JA).
An alternate way to look at the matter is that by placing Mr Miller in the position of supervisor at the site without adequately training him as to the dangers of skylarking, that the defendant breached its duty to provide competent staff.
I am satisfied on the balance of probabilities that the defendant breached the duty of care that it owed to the plaintiff.
The plaintiff amended its Statement of Claim during the hearing to include, in the alternative, particulars of negligence based on the version of the incident contained in the accident report form. For the reasons given, I have accepted the plaintiff's version of the incident that is corroborated by Mr Miller's statement and dealt with the issue of breach of duty accordingly. If my acceptance of the plaintiff's version of events is wrong, I would have decided that the defendant was not in breach of its duty of care for the reasons that follow.
The alternative version involved Mr Miller tripping over a gutter and falling into the plaintiff. The risk of harm was the injury that could be caused by a worker accidentally tripping on the site and thereby causing injury to another worker.
The plaintiff's alternative case is based on an isolated incident. There was no evidence that there was a danger to a worker at the site posed by Mr Miller or other persons tripping into others at the site. It would therefore be difficult to find that such a risk was reasonably foreseeable. Further, that type of risk exists whenever two people come into close proximity at a workplace, a shopping centre or on a busy street, but it rarely occurs so as to cause injury.
In my view, the risk was insignificant and accordingly the plaintiff's claim on the alternative case would fail.

[23]

Causation

Section 5D of the Civil Liability Act 2002 provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The defendant knew or ought to have known that its employee engaged in episodes of skylarking at the site. The failure by the defendant to prevent further episodes of skylarking by providing adequate supervision, discipline and/or training was a cause of the occurrence of the episode of skylarking in which the plaintiff was injured. The injury suffered by the plaintiff was caused by the negligence of the defendant and it was a necessary condition of the occurrence of the harm.
There are no relevant limitations to the scope of liability to be determined with respect to causation.
I am satisfied on the balance of probabilities that the plaintiff's injury was caused by the negligence of the defendant.

[24]

Contributory Negligence

Section 5R Civil Liability Act 2002 provides: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
The defendant pleaded that the plaintiff's claim should be defeated by the application of s 5S Civil Liability Act 2002.
In determining if a person is guilty of contributory negligence it is necessary to have regard to their personal responsibility for his or her own safety: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 at [67]-[68]. Contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the injured person knew or ought to have known at the time: Joslyn v Berryman (2003) 214 CLR 552 at [16].
In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, Beazley ACJ observed (Barrett and Gleeson JJA agreeing) that: 161 The effect of s 5R … is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. 162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew ...
When the court is determining whether a person has been contributorily negligent, the standard of care is that of the reasonable person in the position of the plaintiff: see s 5R(2). In Jurox Pty Ltd v Fullick [2016] NSWCA 180, Simpson JA (Rothman J agreeing), after referring to s 5R, stated at [85] that what was required for an assessment of contributory negligence was as stated in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532-533 as follows: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
The defendant pleaded that the plaintiff failed to take any precautions for his own safety, failed to request Mr Miller to stop "bear hugging him", failed to make an attempt to prevent the horseplay, courted the risk by engaging in horseplay with Mr Miller and exposed himself to an injury that could have been avoided by the exercise of reasonable care on his part.
In oral submissions, counsel for the defendant stated at T182 lines 26-31: [O]n Mr Miller's version…it's a version which informs the Court of two friends mucking around wrestling that leads to an injury. On that version, questions of vicarious liability would never have arisen at all. It would have to be seriously considered, but obviously, the defence of contributory negligence would be seriously engaged on that version…
The defendant did not make any submission on the issue of contributory negligence in its written submissions.
I am not satisfied that the plaintiff was guilty of contributory negligence for the reasons that follow.
First, the defendant had a duty to maintain discipline at the site to prevent a risk of injury from skylarking. This included providing proper supervision at the site, taking steps to discipline any worker involved in skylarking and to train its employees as to the need to eliminate or minimise the risk created by skylarking. Mr Miller was the defendant's supervisor with control over the workers engaged to perform work at the site, but he failed to do so. In fact, he participated in the skylarking thereby displaying a permissive attitude towards it. By comparison, the plaintiff had no control of the workers at the site to require or maintain discipline, so as to protect himself from the risk of injury that came home.
Second, I am satisfied that the whole interaction occurred quickly and that Mr Miller and the plaintiff lost balance and fell within a very short period of time after the initial contact by Mr Miller. The plaintiff's reaction to Mr Miller's unexpected grabbing him from behind was instinctive and a reasonable response to Mr Miller's contact. I do not think that in the circumstances that the plaintiff had an opportunity to ask Mr Miller to stop or that his actions were an active participation in skylarking or horseplay.
Third, I do not think that it was reasonable for the plaintiff to have taken steps to prevent the contact before it occurred. As I have already said, Mr Miller's position as the supervisor of the site and his participation in earlier episodes of skylarking condoned the practice. The plaintiff was a labour hire employee and was in a poor position to complain to Mr Miller about his own conduct. It was not reasonable for the defendant as a quasi-employer to have required a labour hire worker such as the plaintiff to have taken steps to have protected himself against failures of the defendant to comply with the duty that it owed him at the site: Grills at [204].

[25]

Non-Economic Loss

The plaintiff suffered a Weber B fracture of the right fibula with lateral subluxation of the talus. He has required three surgical procedures, being an internal fixation and reduction on 16 April 2016 and two arthroscopies on 11 March 2017 and 6 November 2017.
By the time of the second surgery there were mild degenerative changes in the tibial plateau and the talus. Dr Davé opined that the plaintiff's prognosis was guarded because the plaintiff may develop osteoarthritis in the ankle in the future.
Dr Kuo diagnosed the plaintiff in September 2017 with a painful non-union deltoid ligament avulsion fracture of the medial malleolus that required further surgical treatment. When last seen by Dr Kuo in January 2019, he opined that the plaintiff was unfit to perform his pre-injury duties and that he was best suited to a sedentary occupation and was at risk of developing post-traumatic arthritis.
Dr Bodel opined that there were objective signs of injury in the plaintiff including muscle wasting of the right calf, a flat footed gait and sensory loss in the lateral border of the right foot. He agreed that the plaintiff was not fit for his pre-injury employment and that he was at risk of post-traumatic arthritis because he had parts of his cartilage removed.
Dr Assem opined that the plaintiff had some restrictions on his ability to perform his pre-injury duties and gave evidence that even if the plaintiff's ankle was asymptomatic that he would not be fit for labouring work on a construction site because it would accelerate the degenerative change that is present in his ankle.
The plaintiff is currently restricted in walking for extended periods on uneven ground, standing, squatting and repetitive lifting. The plaintiff has re-trained and now works in the security industry in a sedentary position.
The plaintiff is unable to enjoy pastimes with friends to the same extent that he did before the injury. He still attends the gym but has modified the training he does and suffers pain and discomfort after performing lower body exercises.
The plaintiff is not presently seeking treatment but manages his condition with medication. It is likely that in time his ankle will deteriorate and he will develop post-traumatic arthritis. He may require further surgical treatment in the future being a further debridement or an ankle fusion, if his pain deteriorates to an extent that his pain becomes unmanageable. An ankle fusion will severely restrict the range of movement that he has in his ankle that will affect his ability to work and to perform activities of daily living.
The plaintiff contended that the appropriate award for non-economic loss was for 31% of a most extreme case. The defendant contended that the appropriate award was for 24% of a most extreme case. Based on all of my findings the appropriate award for non-economic loss is 29% of a most extreme case which amounts to an award of damages of $118,500.

[29]

Future Economic Loss

Section 16(1) Civil Liability Act 2002 provides: No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.
Section 13 Civil Liability Act 2002 provides: (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
I am satisfied on the evidence that: 1. the plaintiff cannot return to his pre-injury employment as a result of his injuries and that has resulted in a loss of earning capacity of approximately $200 per week. 2. the plaintiff would have, but for the injury, continued to work as a construction labourer and eventually would have been employed on construction sites in a supervisory capacity by reason of his accumulated experience. 3. the plaintiff will continue to work in the security industry in a sedentary or semi-sedentary role. 4. the plaintiff has lost the advantage of his accumulated experience in the construction industry and has commenced a new line of work for which he has no relevant experience. As a result, his opportunities for advancement in his current employment are limited or have been set back until he obtains the necessary experience. 5. the plaintiff is disadvantaged on the open labour market because of his restricted physical capacity for work because he is unable to apply for a large number of positions that would otherwise have been open to him. 6. the plaintiff will retire on 22 September 2053 at age 67.
The plaintiff has an ongoing economic loss of approximately $200 per week. Through to his expected age of retirement, the appropriate multiplier is 859.78 and less 15% for vicissitudes, the appropriate award for future economic loss is $146,163 (rounded to the nearest dollar).
The plaintiff also claimed a buffer of $50,000 to compensate him for his disadvantage on the open labour market caused by his ongoing incapacity. The plaintiff's claim was supported by the evidence of Mr Martin, that if the plaintiff had continued in the construction industry it is likely that he would have, through his accumulated experience, become a supervisor. The evidence of Mr Burchett did not contradict this position. Where Mr Burchett described the plaintiff's suitability for higher paying jobs, the evidence disclosed that these positions were in limited supply and it is therefore unlikely that the plaintiff could secure such a position. On this aspect and generally, I prefer the evidence of Mr Martin.
It is appropriate to assess damages by way of a buffer where the impact of the injury on the economic benefit from exercising earning capacity after an injury is difficult to determine: Penrith City Council v Parks [2004] NSWCA 201 at [5].
The impact of the plaintiff's lack of experience in the security industry and his loss of opportunity on the open labour market on the plaintiff's earning capacity are difficult to determine. In all the circumstances the plaintiff's claim is a modest one and I am satisfied that it is reasonable and should be part of the damages awarded for future economic loss.
The appropriate award for future economic loss is $196,163.

[31]

Past out-of-pocket expenses

The defendant contended that the plaintiff was not entitled to the past out-of-pocket expenses claimed by him because he had exaggerated his symptoms and that he was fit to return to his pre-injury duties within six to 12 weeks after each of his surgeries. For the reasons given I have rejected the factual premise for those submissions and to the contrary found that the plaintiff sought reasonable treatment for his injuries caused by the defendant's negligence.
In an action for personal injury, damages are awarded to a successful plaintiff by the payment of a sum of money to compensate them for the injuries caused. The general compensatory principle of damages has three elements, outlined in Todorovic v Waller (1981) 150 CLR 402 at 412: In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and for ever, and (in the absence of any statutory exception) must be awarded as a lump sum; the Court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the Court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it.
The fundamental aim in the compensatory principle is to put the party affected in, as far as possible, the position that they would have been had the tort not been committed: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 and Harriton v Stephens (2004) 59 NSWLR 694 at [7]-[8] per Spigelman CJ.
Medical, hospital, nursing and other treatment expenses, as well as pharmaceutical costs and incidental costs, are recoverable subject to the compensatory principle. Damages are to be awarded as fair compensation and past and future expenses should be allowed in response to needs created by the injury. The list of recoverable items is not closed so long, as they are not too remote: Teubner v Humble (1963) 108 CLR 491 at 507 per Windeyer J.
The amounts claimed by the plaintiff were paid on his behalf by Christies as compensation payable by them pursuant to s 60 Workers Compensation Act 1987. The workers compensation insurer did not dispute its liability to pay those amounts as compensation to the plaintiff as a result of his injury. The plaintiff is required to repay those amounts if he is successful in this action: s 151Z(1)(b) Workers Compensation Act 1987.
The amounts sought by the plaintiff as particularised in the schedule of payments made by the workers compensation insurer, were reasonably incurred by him as a result of his injuries. In addition the plaintiff has incurred a liability to repay Medicare in the sum of $86.40.
The appropriate award for past out-of-pocket expenses is $101,675 (rounded up to the nearest dollar).

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