Glavocevic v Issa

Glavocevic v Issa - [2022] NSWDC 202 - NSWDC 2022 case summary — Zoe

[3]

Evidence for the Plaintiff

Mr Glavocevic was born in 1966 in Bosnia, in what was then Yugoslavia. He completed high school to Year 12 level in Sarajevo. This included some trade training as an auto electrician. In 1985 and 1986 he was conscripted into the army for 18 months. Between 1988 and 1991 he worked as an auto electrician in Sarajevo. He married there in November 1988. He and his wife had a son born in March 1991.
In 1991 Mr Glavocevic moved to Austria to work as a mobile plant operator and truck driver. He moved without his family, for the purpose of earning more money to support them. In 1995 the family was reunited and they moved to Australia. Mr Glavocevic is of Croation origin and spoke that language, as well as German. When he came to Australia he studied English.
In 1997 Mr Glavocevic worked as a security guard for Chubb for one year doing static and patrolling work. In 1998 he commenced work as a truck driver for CTI transport driving a palletised truck. He did this work for six years.
In 1999 Mr Glavocevic had an operation to repair a right inguinal hernia.
After leaving CTI in 2004 Mr Glavocevic worked for Blue Line as a truck driver for one year. This was work driving special oversized loads.
In 2006 Mr Glavocevic commenced work for K & S Transport as a truck driver. Most of the loads were deliveries of aluminium for Capral Aluminium. There were often multiple deliveries as part of a single load on the truck. In 2007 Mr Glavocevic had a second operation for a right inguinal hernia repair. By October 2007 he was back to his full pre-injury duties.
In 2016 Mr Glavocevic commenced work for TNT Transport (which took over K & S Transport) as a truck driver. Prior to the accident he was working about 70 hours per week and earning about $1,400 nett per week. On a typical day doing deliveries for Capral Aluminium, there were 30 to 40 individual deliveries. Each involved Mr Glavocevic getting down from, and back up into, the cabin of his truck.
On 30 November 2017 Mr Glavocevic was driving an 8-tonne truck in the course of his employment when he was involved in a motor vehicle accident on Wonderland Drive at Eastern Creek. He saw a tipper truck, which was towing a dog trailer behind it, out of control and coming towards him. The tipper truck passed the cabin of Mr Glavocevic's vehicle, but the dog trailer swung out and collided violently with the front corner of his truck on the driver's side.
Photographs of the damaged truck taken at the scene (PX 1, pp 16-20) show Mr Glavocevic trapped in the driver's seat of the truck. The photographs show that the driver's side door has been almost completely torn off and is hanging by its lower hinge. They also show that the front windscreen is smashed and the front right pillar has been obliterated. It is obvious that there was considerable force involved in the accident.
Mr Glavocevic gave evidence that he saw the tipper and its trailer coming towards him with smoke coming off the tyres. He saw the trailer swing out and he threw his body to the left, although he was restrained by the seat belt. This meant that he was not hit in the head and chest. However, his right leg was trapped between the damaged side of the truck and the steering column. In particular, his knee was jammed between pieces of metal and he could not get out of the truck. Mr Glavocevic remembers little after the impact until he heard the noise of a helicopter which had attended to provide medical treatment. The helicopter could not land and so he was taken to Westmead Hospital by ambulance.
At Westmead Hospital Dr Fox carried out an open reduction and internal fixation of the right tibial plateau with bone grafting. This operation was performed on 5 December 2017 and Mr Glavocevic was discharged from Westmead Hospital on 7 December 2017. He was completely non-weight bearing and returned home to convalesce. He was wearing a hinged knee brace.
On 23 January 2018 Mr Glavocevic was reviewed by Dr Fox (PX 1, p 135). Dr Fox found that pain was not a major issue but there was some swelling. Mr Glavocevic was using two crutches and was touch down weight bearing. Dr Fox advised him to discontinue the use of the knee brace. He recommended that Mr Glavocevic limit the motion in his knee to 90 degrees for another four weeks and gradually increase his weight bearing by 20% per week. Dr Fox certified Mr Glavocevic as unfit for work from 30 November 2017 to 20 February 2017. He recommended physiotherapy.
On 25 February 2018 Mr Glavocevic commenced physiotherapy treatment with Ms Shanice Gabriel at St Clair Physiotherapy (PX 1, p134). He attended twice per week.
On 1 February 2018 there was a CT scan of the right knee. This showed a centrally impacted articular fragment within the tibial plateau which was depressed compared to the adjacent bone.
On 1 February 2018 Mr Glavocevic was reviewed by Dr Fox who found a small but not significant amount of subsidence in the knee joint. Conservative treatment was advised.
By 7 February 2018 Mr Glavocevic could reach 90% flexion when he saw the physiotherapist (PX 1, p 134). He reported quite significant pain with sustained knee flexion. Physiotherapy continued twice a week and Mr Glavocevic commenced a hydrotherapy pool program.
On 21 February 2018 Mr Glavocevic was seen by Dr Kanawti, as Dr Fox was unavailable. He reported mild pain around the knee (PX 1, p 131). He complained of a moderate amount of swelling. Dr Kanawti advised Mr Glavocevic to increase his weight bearing and start to wean himself off the crutches.
On 13 February 2018 the physiotherapist Ms Gabriel reported to Dr Fox (PX 1, p 123). He had been seen twice a week and was doing daily hydrotherapy. There had been fourteen treatments by that date.
On 22 March 2018 Mr Glavocevic was reviewed by Dr Fox (PX 1, p 119). He was still using a crutch when he was out, but around home he could manage a bit of mobility without it. He did not have pain at rest but on stairs he had anterior based knee pain. Mr Glavocevic was complaining also of left knee pain, which Dr Fox described as a "transfer phenomenon" arising from relying so much on his left leg after the injury. Dr Fox noted that Mr Glavocevic was very keen to return to work.
On 1 May 2018 Ms Gabriel reported to the general practitioner (PX 1, p 113). Besides twice weekly physiotherapy and daily hydrotherapy, Mr Glavocevic was using an exercise bike every two days. There was a complaint of an increase in lateral hamstring pain near the knee.
On 2 May 2018 Mr Glavocevic returned to work doing sedentary duties. He worked two days a week for four hours a day. He changed from using crutches to using a walking stick at this time. He was still wearing a brace on his right leg. In oral evidence Mr Glavocevic said that when he started work he was limping and he noticed pain in his right foot for the first time. He said that this foot pain started "when I went back to work". Up until this time he had been on crutches and his wife had driven him around to work or to physiotherapy or medical appointments. After he returned to work and graduated from the crutches to the walking stick, he used to drive himself to work. There was no challenge to the evidence of Mr Glavocevic that while he had not suffered any right foot pain immediately after the accident, it came on for the first time when he returned to work in early May 2018. This was between five and six months after the accident.
Mr Glavocevic had experienced back pain ever since the instant of the accident. He was not challenged concerning this history. On 4 June 2018 he underwent a CT lumbar scan of his spine and pelvis, with nuclear medicine bone scan fusion. The report of this procedure (PX 1, p 318) said that at L5/S1 there was a right-sided pars interarticularis defect, with resultant 6mm of anterolisthesis (Grade 1). The evidence is that this was a pre-existing structural defect at the L5/S1 level of the lumbar spine. It was entirely asymptomatic prior to the motor vehicle accident.
In June 2018 Mr Glavocevic's employer became concerned about his state of mind and his behaviour. He was encouraged to see Ms Christine Webster, a psychologist. In oral evidence Mr Glavocevic said that at this time he felt lost, empty, useless and guilty. Ms Webster wrote to the general practitioner on 19 June 2018 (PX 1, p 320) saying that Mr Glavocevic appeared to be suffering from post-traumatic stress disorder (PTSD) after the motor vehicle accident. He felt numb and empty inside. He had flashbacks of the truck in the accident. He was experiencing physiological symptoms of anxiety when the flashbacks occurred or when he was talking about the accident. He avoided leaving the house. He had poor concentration and felt irritable and angry. Ms Webster proposed that intervention would primarily focus on prolonged exposure therapy.
On 5 July 2018 Mr Glavocevic had a CT scan of his right foot. The report of this scan (PX 3) said that Mr Glavocevic had moderate degenerative arthritis in the first MTP joint. There was no fracture of the bones forming the right foot.
On 30 August 2018 Mr Glavocevic first attended Dr Gray, an orthopaedic surgeon, for treatment of his lower back complaints. Mr Glavocevic was referred by Dr Fox. Dr Gray (PX 1, p 321) described the pain in the back as a background of pain that was aggravated with activity. There were some radicular symptoms radiating down the left leg on occasions. Dr Gray thought that the low back had been aggravated by the motor vehicle accident. He advised a conservative approach.
On 31 October 2018 the hardware was removed from the right leg by Dr Fox at Norwest Private Hospital. Until this time Mr Glavocevic had a plate and multiple pins to repair the fracture in the right tibia, which was adjacent to the knee joint (PX 2).
On 5 December 2018 Mr Glavocevic had a cortisone injection to his right L5/S1 area. On 15 January 2019 Mr Glavocevic increased his working hours to four hours per day for three days per week. He was still on light duties with his employer.
On 16 January 2019 Dr Gray reviewed Mr Glavocevic. He reported (PX 1, p 325) that he did not think that the right foot pain was arising from any lumbar pathology. Dr Gray recommended referral to a foot and ankle specialist. Dr Gray recommended that Mr Glavocevic continue to see the physiotherapist and continue with lower back rehabilitation exercises. There was a second L5/S1 cortisone injection in early 2019.
On 29 January 2019 Mr Glavocevic had an MRI scan of the right foot. The opinion of the radiologist (PX 1, p 328) was that the scan showed: "Freiberg's infraction second metatarsal head with associated synovitis of MTP J2. Early degenerative change of MTP J1."
The general practitioner referred Mr Glavocevic to Dr Newman, an orthopaedic foot and ankle surgeon.
Dr Newman examined Mr Glavocevic for the first time on 5 March 2019. In his report to the general practitioner (PX 1, p 271) Dr Newman said that Mr Glavocevic first began experiencing pain about the dorsal aspect of the right forefoot in May 2018. He noted that massage and physiotherapy had been given without benefit. The pain in the right foot had gradually worsened. It was now present with all weight bearing activities causing Mr Glavocevic to limp.
Dr Newman advised an operation as there was no chance of the problem spontaneously resolving.
On 20 March 2019 Mr Glavocevic underwent surgery for a right second MTP Joint hemiarthroplasty performed by Dr Newman at Lakeview Private Hospital (PX 1, p 291). Dr Newman provided a medical certificate for unfitness for work until 26 April 2019. In oral evidence Mr Glavocevic said that after the foot operation he felt angry and disappointed. He kept asking himself "Why did this happen to me?"
Mr Glavocevic continued to see Ms Webster, the psychologist. She reported on 2 April 2019 (DX 1, p 124) that Mr Glavocevic initially presented with symptoms consistent with PTSD. As time progressed he reported worsening depressive symptoms. He had low motivation, low mood, increased helplessness and hopelessness, and suicidal ideation but no current intent. Mr Glavocevic had been commenced on an antidepressant medication but this had not improved his depressive symptoms. Ms Webster thought that he should see a psychiatrist for further opinion regarding medication.
On 3 May 2019 the plaintiff returned to work after his foot operation. He worked four hours per day for three days a week.
On 16 May 2019 Mr Glavocevic commenced treatment with Dr Pearson, a psychiatrist. Dr Pearson reported (PX 1, p 330) that there was no acute stress disorder in the early days after the accident, but around the five month mark Mr Glavocevic was confronted by the narrowness of his escape and the fragile nature of life. He began to struggle emotionally. He developed goosebumps when he talked about the accident and was triggered whenever he observed a white tipper truck. Dr Pearson described Mr Glavocevic as having a pre-morbid personality as a hardworking, goal-focussed man. Mr Glavocevic was close to tears when discussing his current state of futility. The PTSD appeared to be in partial remission. Dr Pearson thought that Mr Glavocevic had a major depressive disorder that had failed to respond to Cymbalta.
On 22 July 2019 Mr Glavocevic was examined for medico-legal purposes by Associate Professor Robertson, a consultant psychiatrist. He reported (PX 1, p 35) that Mr Glavocevic had suffered periods of intense depression, although the current symptoms were part of the depressive component of PTSD. Mr Glavocevic had a combination of physical and psychological restrictions to employment. He had significant problems with concentration, persistence and inter-personal resilience. Associate Professor Robertson thought that he should not work more than 20 hours per week because of these issues.
On 26 July 2019 Dr Newman reviewed Mr Glavocevic three months after his foot surgery (PX 1, p 298). Mr Glavocevic reported an improvement in pain but had residual discomfort when walking. He continued to walk with a limp. Dr Newman told Mr Glavocevic that it does take some time for symptoms relating to the procedure to completely resolve. He thought it was safe to continue working in a light duties capacity.
On 29 July 2019 Mr Glavocevic was examined for medico-legal purposes by Dr Peter Giblin, an orthopaedic surgeon (PX 1, p 45). He was having physiotherapy twice a week and prescription medication provided through the general practitioner. Mr Glavocevic complained of constant aching and pain over the left side of his low back, his right knee and right foot. He could walk slowly for about 200 metres and stand and sit for 15 minutes. He could no longer mow the lawns or do the gardens.
Dr Giblin thought that Mr Glavocevic was permanently unfit to use his right leg for repetitious impact activities, constant squatting and kneeling, pivoting and twisting, stair or ladder climbing, working at heights or any heavy duty labouring work. Dr Giblin thought that Mr Glavocevic would in the future face a right total knee replacement, which had all up hospital, medical and ancillary costs of at least $25,000. There would be three months off work.
On 30 July 2019 Mr Glavocevic was examined for medico-legal purposes by Dr Davis, an occupational physician. He reported (PX 1, p 53) that Mr Glavocevic was permanently unfit to return to his pre-injury duties and was not capable of any form of full-time employment. Dr Davis thought that his maximum work capacity was no greater than 15 hours per week. He thought that Mr Glavocevic would have to seek early retirement by the age of 60 years.
On 15 August 2019 Mr Glavocevic increased his working time to four hours a day for four days a week of light duties performing basic administrative and office tasks.
Ms Webster, the psychologist, reported to the general practitioner on 22 August 2019 (PX 1, p 333). She said that Mr Glavocevic appeared to be managing his anxiety well and had increased his hours of work. He was now a passenger in trucks at work. She thought that the depressive symptoms were still of concern when mood was low. Mr Glavocevic was not future oriented.
Mr Glavocevic was examined by Dr George, a psychiatrist, on 1 October 2019. He made a diagnosis (DX 1, p 1) of chronic PTSD and major depression with anxiety. Dr George thought it was quite possible that Mr Glavocevic might not be able to extend his work beyond 20 hours a week in the long term. He thought that he may not be able to get back to driving a truck again.
On 3 October 2019 Mr Glavocevic was examined by Dr Rowe, an orthopaedic surgeon, for medico-legal purposes. Dr Rowe said (PX 1, p 70) that the motor vehicle accident precipitated symptoms from a pre-existing but apparently symptom-free degenerative change at the lumbo sacral level of the spine. Dr Rowe thought that the accident had precipitated symptoms in the right foot. Dr Rowe said that Mr Glavocevic was not likely to return to truck driving and he would be permanently restricted to selected duties.
In November 2019 Mr Glavocevic increased his work hours to four hours a day for five days a week. He was still doing light duties.
On 6 November 2019 Mr Glavocevic attended Dr Pearson. He reported (PX 1, p 311) that Mr Glavocevic had been moved into a new area where the supervisor bullied him. Mr Glavocevic gave evidence that the supervisor did not accept that he had restrictions. The supervisor tried to insist that Mr Glavocevic should do heavy work moving boxes.
On 12 November 2019 Ms Webster reported (PX 1, p 377) that besides PTSD, Mr Glavocevic now had a major depressive disorder in the context of the accident and recent workplace bullying and harassment. Mr Glavocevic reported feelings of guilt, anger and sadness. Ms Webster thought that the depression was getting worse.
On 9 December 2019 Mr Glavocevic again attended Dr Pearson who reported (PX 1, p 311) that Mr Glavocevic had changed his work duties and was now in a truck with a co-driver for four hours a day instead of being in the office with the bully.
On 26 February 2020 Dr Pearson reported (PX 1, p 310) that Mr Glavocevic was working four hours a day for four days a week and was soon moving up to five days a week. Mr Glavocevic felt that he had no life beyond this work and no sense of meaning in life.
On 5 March 2020 Mr Glavocevic was assessed by Dr Truskett, an occupational physician, for the Medical Assessment Service (PX 1, p 339). I will deal in greater detail with this report below.
Mr Glavocevic saw Dr Pearson again on 29 April 2020 (PX 1, p 310). He said that his emotions were all over the place. He was doing five hours a day of work. He felt numb and didn't care. He felt much anger inside and small things annoyed him.
On 27 May 2020 Mr Glavocevic attended upon Dr Pearson and reported that he had started driving trucks in the yard (PX 1, p 310). He was moving and parking trucks in the yard in the hope that he could drive on the open road. Mr Glavocevic reported that his leg and foot felt a bit weird.
On 20 June 2020 Mr Glavocevic upgraded his work hours to five hours a day for five days a week doing light duties.
On 30 June 2020 Ms Webster reported that Mr Glavocevic continued to experience low mood, increased helplessness and hopelessness and vague suicidal ideation (PX 1, 366).
In November 2020 Mr Glavocevic went out on the road driving a truck, together with a driving instructor. He sought to drive past the accident site. Mr Glavocevic reported to Dr Pearson (PX 1, p 309) that this ignited panic and hyperventilation. It frightened his driving instructor. Mr Glavocevic said in oral evidence that the instructor told him to pull over and get out of the truck. He was shaking and crying. He has not driven a truck on the road since that time. Mr Glavocevic said that he continued to move trucks around in the yard.
In December 2020 Mr Glavocevic had his last attendance for physiotherapy treatment.
On 23 December 2020 Mr Glavocevic was assessed by Dr Samuels, a psychiatrist, for the Medical Assessment Service. Dr Samuels thought that anxiety was limiting his return to truck driving (PX 1, p 368).
On 8 April 2021 Ms Webster reported (PX 1, 376) that Mr Glavocevic continued to report low mood. He said that he felt empty, he was avoiding life and that everything was against him. Ms Webster thought that Mr Glavocevic remained isolated and withdrawn from family and friends.
On 1 July 2021 Mr Glavocevic increased his working hours to seven hours a day for five days a week, on light duties. That level of work has continued until the hearing. He starts at 5.30am and finishes at 12.30pm. He first helps organise keys and paperwork for up to 250 drivers. By 9 am the sub-contract drivers arrive. Mr Glavocevic prints out the paperwork for them.
On 7 September 2021 the defendant obtained a report from Dr Doig, a consultant orthopaedic surgeon, based on a case file review without a consultation with Mr Glavocevic (DX 1, p 9). I will refer in more detail below to that report.
On 28 October 2021 Mr Glavocevic was assessed by Ms Whitley, a vocational psychologist, for medico-legal purposes (DX 1, p 14). Mr Glavocevic told Ms Whitley that his current duties involve office work, including making phone calls, delivering internal mail, checking workers' temperatures, giving directions to drivers over the phone and simple computer work. Mr Glavocevic reported that his psychological symptoms were more significant to him than his physical problems. Ms Whitley thought that it was to the credit of Mr Glavocevic that he had returned to work for 35 hours a week. She thought that he had an inability to drive trucks outside of the yard due to severe anxiety. Ms Whitley described the incident with the driving instructor as a panic attack.
Ms Whitley said that in her opinion the pre-injury job as a truck driver was no longer appropriate for Mr Glavocevic. He remained highly anxious when driving trucks despite years of treatment. Ms Whitley acknowledged that at age 55 Mr Glavocevic may find it difficult to obtain employment on the open labour market.
On 9 November 2021 Mr Glavocevic was seen by Dr Home, an occupational physician, for medico-legal purposes (DX 1, p 31). I will deal with that report in more detail below.
On 8 December 2021 Mr Glavocevic was re-assessed by Dr Davis, occupational physician, for medico-legal purposes (PX 1, p 85). I will deal with that report in more detail below.
On 14 February 2022 Mr Glavocevic was re-assessed by Dr Peter Giblin, orthopaedic surgeon, for medico-legal purposes (PX 1, p 91). I will deal with that report below.
Mr Glavocevic's last attendance upon Dr Pearson before the hearing was on 7 April 2022 (PX 1, p 307). Dr Pearson continued to prescribe the drug Pristiq, which is used to treat depression and anxiety. In oral evidence Mr Glavocevic said that his mental state has not changed much in recent years. He cannot control his anger. He still feels unhappy and down and he does not know why.
In cross-examination Mr Glavocevic was asked about the possibility of doing work in the future. He had a forklift ticket but did not know whether he could presently drive a forklift. Mr Glavocevic was asked about his old Chubb security job and whether he could do that now. He said he did that job standing not walking, and that would be a problem for long periods of time.
Mr Glavocevic was asked whether he could drive a utility or a pantechnicon if the job did not involve any heavy lifting. Mr Glavocevic said that he could not do such a job as those sorts of drivers often did 70-80 deliveries a day and 20-30 pick-ups. He said that there was too much walking and these kind of drivers have to do their work at a fast pace.
Mr Glavocevic was asked whether he could drive an escort vehicle. While he has no difficulties driving a car now, there are problems in sitting for long periods.
Mr Glavocevic said that his right foot was painful all the time when he was walking. The brace made it more comfortable to move around. He limped all the time. He was putting less weight on his right leg.
Mr Glavocevic was asked about correspondence in September 2021 when the insurer wrote to his solicitors offering further driver training. Mr Glavocevic said that he was still hopeful of getting back to truck driving.
Mr Glavocevic said that he could use a computer and a scanner. He was moving trucks around the yard. He had been a passenger with other truck drivers in order to train them.
Mr Glavocevic said that he could not bend and that he had difficulty climbing into and out of trucks. This caused pain.
In re-examination Mr Glavocevic said that forklift driving did not involve just driving the vehicle. It was necessary to prepare pallets. This involved lifting loads on and off pallets and then wrapping the pallets before lifting them onto a truck using the forklift.

[4]

Opinion of Orthopaedic Surgeons

Mr Glavocevic was seen by Dr Peter Giblin, an orthopaedic surgeon, on 29 July 2019 (PX 1, p 45). Mr Glavocevic complained of constant aching and pain over the left side of his low back, his right knee and his right foot. He could walk slowly for about 200 metres and stand and sit for 15 minutes. Dr Giblin on examination found the right knee to be "a bit noisy compared to the left" and be "unstable". Dr Giblin made the following diagnosis: "Based upon his history and examination, he has the provisional diagnosis of a primary bone and soft tissue injury to his right knee and low back consequent upon the motor vehicle accident and a second or compensatory injury to his right foot following the effects of the motor vehicle accident by virtue or an altered gait pattern."
Dr Giblin thought that Mr Glavocevic's injuries would deteriorate and there will be permanent physical limitations. He found him permanently unfit to use his right leg for repetitious impact activities, constant squatting and kneeling, pivoting and twisting, stair or ladder climbing, working at heights or any heavy duty labouring work. Dr Giblin thought that the low back was unsuitable for constant unrestrained heavy bending, lifting or twisting. Dr Giblin was of the view that a right total knee replacement would be required in the future at a total cost of at least $25,000. There would be three months off work. He thought that such surgery would be needed about ten years after the initial injury.
Dr Giblin saw Mr Glavocevic again on 14 February 2022 (PX 1, p 91). He noted complaints of recurrent episodic sharp stabbing pains in the low back as well as some burning and stiffness in the right knee and pain in the right foot which was recurrent in nature.
Dr Giblin had a history that the symptoms in the right foot commenced approximately 12 months after the initial injury (in fact it was six months afterwards). Dr Giblin said that the onset of symptoms was reasonably related to "repetitive micro-trauma as would occur, in a secondary or compensatory manner to a chronic altered gait pattern from his right knee".
The problem in the right foot involved avascular necrosis. Dr Giblin agreed with the opinion of Dr Doig (discussed below) that repetitive micro-trauma and increasing biomechanical stress can lead to the interruption of blood supply leading to the resulting phenomenon of avascular necrosis. He thought that there was "a reasonable causal relationship between the injury and the right foot problem".
Avascular necrosis is a disease that results from the temporary or permanent loss of blood supply to a bone. When blood supply is cut off, the bone tissue dies and the bone collapses.
Dr Giblin said that the injuries would always be susceptible to material aggravation from innocuous physical events. He thought that it was unlikely that Mr Glavocevic would reach normal retirement age.
Mr Glavocevic saw Dr Roger Rowe, orthopaedic surgeon, on 3 October 2019 (PX 1, p 70). Dr Rowe thought that there was some restriction of squatting and kneeling and noted that the knee caused difficulties going downstairs. There was an ache in the second toe of the right foot when weight bearing which caused Mr Glavocevic to limp at all times. Mr Glavocevic had a left-sided low back ache which only occurred when walking.
The diagnosis made by Dr Rowe is as follows: "As a result of the subject motor vehicle accident, Mr Glavocevic sustained a fracture of the lateral tibial plateau of the right knee for which he underwent open reduction and internal fixation. The motor vehicle accident also precipitated symptoms from pre-existing but apparently symptom-free degenerative change at the lumbosacral level of his spine for which he underwent surgical treatment. The accident seems to have precipitated symptoms in pre-existing but apparently symptom-free Freiberg's disease at the base of the second toe of the right foot for which he underwent surgical treatment."
Freiberg's disease is a condition where the head of a metatarsal (one of the long bones in the foot) becomes weak and fractures.
Dr Rowe thought that Mr Glavocevic may well be able to increase his hours of selected duties to full hours as tolerated. He said that it was likely that Mr Glavocevic would not return to truck driving and will be permanently restricted to selected duties. Dr Rowe noted that Mr Glavocevic had been mowing the lawn before the accident but he had not done so since then. This was a permanent restriction.
Dr Newman was the orthopaedic surgeon who operated on the right foot. He did not provide a medico-legal report but his notes and reports to the general practitioner were put into evidence (PX 1, Tab 16). In a report dated 5 March 2019 (PX 1, p 271) Dr Newman recorded the history of the right foot pain first appearing in May 2018. X-rays performed at the time revealed osteonecrosis affecting the central portion of the second metatarsal head. An MRI scan performed on 25 January 2019 confirmed these matters.
Dr Newman said that there was no chance of the problem spontaneously resolving due to the joint collapse and instability. He advised Mr Glavocevic that he needed an operation. The report to the general practitioner concluded as follows: "Mr Glavocevic is keen to proceed given the magnitude of his symptoms and I will make a formal approach to the insurance company for permission to go ahead."
The employer of Mr Glavocevic at the time (TNT) was a self-insurer for workers compensation purposes. Dr Newman wrote to TNT on 5 March 2019 seeking approval to proceed with the operation and setting out the fee of $3,180 (PX 1, p 273).
TNT confirmed that it was prepared to fund the reasonable costs of the procedure (PX 1, p 275).
As previously recited, there is no medico-legal report from Dr Newman. There is thus no opinion directly on the question of whether or not the right foot injury is related to the accident. However, the probable inference from the fact that Dr Newman wrote to the employer asking it, as the workers compensation self-insurer, to fund the procedure, is that Dr Newman was of the view that the right foot problem was related to the original motor vehicle accident.
The defendant in these proceedings engaged Dr Doig, an orthopaedic surgeon, to conduct a case file review (DX 1, p 9). Dr Doig never examined Mr Glavocevic.
On the question of whether the right foot was related to the motor vehicle accident Dr Doig said as follows: "With respect to your letter of referral you have requested an opinion as to causation of the right fore-foot condition and in particular the aetiology of the avascular necrosis of the second metatarsal head (Freiberg's disease). The cause of this condition in the medical literature is unknown and thought to be multi-factorial in origin, with a possible genetic pre-disposition. It usually presents in adolescence and has been noted in female athletes. The condition is four times more common in the female population. Increased length of the second metatarsal bone is thought to possibly result in increased stress through the metatarsal head in some patients, whereby repetitive micro-trauma and increased bio-mechanical stress can lead to an interruption of the blood supply resulting in the phenomenon of avascular necrosis. It is extremely rare for this condition to present in adulthood."
Dr Doig noted that there was no evidence of any acute trauma to the right forefoot at the time of the motor vehicle accident. On the balance of probabilities he thought that the condition was underlying and pre-existing and not causally related to the motor vehicle accident.
Dr Giblin and Dr Doig provided a conclave report dated 23 May 2022 (PX 1, p 21). In relation to the avascular necrosis in the right foot and whether it was related to the motor vehicle accident the experts offered the following opinion: "Both experts agreed that this is a very uncommon diagnosis in an adult and that the most likely explanation could be repetitive micro-trauma and based on the length of time between the motor vehicle accident and the onset of the symptoms, which were somewhere between 6-12 months post-accident. Both experts agreed that it was a relationship that could be described as greater than negligible."
The unusual phrase "greater than negligible" was explained by counsel for Mr Glavocevic in final submissions. It is a phrase which comes from cl 1.7 of the Motor Accident Permanent Impairment Guidelines under the MAC Act.
In relation to ongoing disabilities, Dr Giblin said that there were low back symptoms from time to time and that the injured knee was also symptomatic. There was thigh muscle wasting, knee ligamentous instability and some restriction of movement. Dr Doig said that he could not comment upon this opinion of Dr Giblin because he had not taken a direct history or examined Mr Glavocevic.
Both experts agreed that Mr Glavocevic did have a pre-existing mechanical defect in the lumbar spine which was asymptomatic prior to the accident. This represented a vulnerability and the disabilities in the low back were due to the motor vehicle accident.
Dr Doig said that he could not find a causal relationship between the motor vehicle accident and the subsequent injury to the foot. Dr Giblin said that in his view there was a relationship "based upon the current direction of the Motor Accident Authority guidelines" (being a reference to cl 1.7 previously referred to).
Dr Giblin expressed the view that the knee injury would deteriorate. Mr Glavocevic would get increasing pain and stiffness and would eventually be a candidate for consideration of further surgery. Dr Doig agreed. Dr Doig also agreed with the estimate of Dr Giblin that the cost would be about $25,000 and require three months off work and 12 months of rehabilitation.

[5]

Opinion of Occupational Physicians

Mr Glavocevic was seen by Dr Davis and Dr Home, who were both occupational physicians. In a conclave reported dated 26 May 2022 (PX 1, p 28), both experts agreed that Mr Glavocevic suffered an intra-articular fracture of the lateral tibial plateau of the right knee and a low back injury, being a lumbar spine injury aggravating underlying developmental and degenerative changes.
Dr Davis was of the view that the right foot condition was unlikely to have been caused by the accident but said that this could not be ruled out. He said that Freiberg's disease most commonly presents in teens in the second decade. He said that the right foot would have been subject to significant trauma at the time of the impact. Dr Home did not consider that there was a causal relationship and that there was no evidence of unusual load on the foot. Dr Home thought that the condition was constitutional. Both experts agreed that the avascular necrosis was not related to the motor vehicle accident.
Both experts agreed that Mr Glavocevic had ongoing disabilities arising from the injuries sustained in the incident. He had reduced sitting tolerance of between 40 minutes to an hour. He had a disability in relation to stair climbing due to his right knee condition. He had difficulty squatting due to his knee condition and was not able to maintain working in awkward spaces. He can only lift up to 10kg and should avoid repetitive or sustained flexion or semi-flexion. Both experts agreed that Mr Glavocevic had not been fit to undertake his full pre-accident employment duties. Both experts agreed that he could not return to the manual handling task associated with loading freight as a truck driver. This was a permanent incapacity. Such incapacity was described as relating to the mechanical pain in the back of right knee.
Both experts agreed that the right foot condition prevented work that involved significant walking or standing for more than several hours during the working day. Mr Glavocevic would also have difficulty with access and egress from a truck.
Dr Tuskett, occupational physician, assessed Mr Glavocevic on 5 March 2020 (DX 1, p 46). He described Freiberg's disease as "a poorly understood disease". He offered the opinion that the right foot condition was unrelated to the motor accident. There were no reasons set out in his report for that opinion.

[6]

Right Foot Injury: Consideration

As can be seen from the above summary of the expert opinions, there is a debate as to whether or not the right foot disability has resulted from the motor vehicle accident. It is plain on the evidence that there was no pain in the right foot until May 2018 (six months after the motor vehicle accident) when Mr Glavocevic graduated from crutches to using a walking stick and returned to work on limited duties and limited hours. From the time of the accident to May 2018 Mr Glavocevic had initially been non-weight bearing on two crutches and then had gradually increased his weight bearing in accordance with medical and physiotherapy advice.
During this period of six months the evidence shows that Mr Glavocevic would have had an altered gait pattern as he gradually put more weight on his injured right leg. I also take into account that Mr Glavocevic is by nature a stoic and is a person who was very keen to get back to work. If anything, he would have pushed himself to return as soon as possible. I accept him when he says that he was still experiencing disabilities and pain when he first returned to work.
I preferred the evidence of the orthopaedic specialists to the evidence of the occupational physicians. Freiberg's disease (being a disease of a bone) and its operative treatment is a matter within the particular expertise of orthopaedic surgeons rather than occupational physicians.
Both Dr Giblin and Dr Doig were of the view that: 1. Freiberg's disease is a disease usually of teen years or people in their twenties. 2. Freiberg's disease usually affects females rather than males. 3. It is most uncommon for Freiberg's disease to come upon a person in their fifties. 4. Avascular necrosis in a toe can be caused by repetitive micro-trauma arising from an altered gait pattern.
There is no evidence that there was direct trauma to the right foot in the accident and in any event the orthopaedic specialists do not attribute the right foot problems to any direct trauma. Rather, both Dr Giblin and Dr Doig accept that the altered gait pattern in the first six months after the accident could have led to micro-trauma resulting in avascular necrosis in the right foot.
It is unfortunate that a medico-legal report was not provided by Dr Newman, who performed the operation on the right foot. Nevertheless, the fact that a medical specialist asked the employer to approve payment for the operation leads to the most probable inference being that his view was that the right foot condition was related to the motor vehicle accident.
The opinion of Dr Rowe was the same as the opinion of Dr Giblin on this topic. He too thought that the right foot problems were precipitated by the motor vehicle accident.
I accept the opinion of Dr Giblin and Dr Doig that the altered gait pattern arising after the accident, and caused by the acknowledged injuries to the right knee and lower back, could have led to the development of the right foot problems. I accept the opinion of Dr Giblin, Dr Rowe and (by inference) Dr Newman that the right foot condition was caused by and is related to the accident. It is improbable that, being such a rare condition for a male in their fifties, there could have simply been a spontaneous development of the Freiberg's disease so close to the accident.

[7]

Psychiatric Evidence

As previously recited Mr Glavocevic has been treated by Dr Pearson, psychiatrist, and Ms Webster, psychologist. There were no medico-legal reports from those practitioners. Dr Pearson's clinical notes were put into evidence (PX 1, p 301) and Ms Webster's notes were also tendered (PX 1, p 320, p 337).
The notes of Dr Pearson record that Mr Glavocevic informed him as follows: 1. His emotions were all over the place and he could not figure out what was going on. 2. He is unable to feel anything and has no care or excitement and is completely unable to determine what it is he needs and desires. 3. He manages driving a car on the road well but becomes anxious when he sees a tipper truck. 4. He drove past the accident site and this ignited panic and hyperventilation. 5. He enjoys doing his light duties at work and would rather be there than being unproductive at home. 6. He is immensely frustrated with fleeting suicidal thoughts. 7. He is angry and explosive at times. 8. He does not think about the accident a lot although it remains in the back of his mind and is activated by minor stressors and triggers.
For medico-legal purposes Mr Glavocevic was seen by Associate Professor Robertson, a consultant psychiatrist (PX 1, p 35). He was examined on 22 July 2019. Mr Glavocevic reported that he had been emotionally labile with flat mood, diminished motivation, feeling numb or indifferent about life, with reduced capacity for enjoyment. He suffered self-reproach and felt demeaned by his duties and incapacities arising from his inability to work. He had periods of demoralisation and suicidal ideation. He was irritable with frequent outbursts of anger towards his wife and family. He was hypervigilant particularly around tipper trucks. He had nightmares and his sleep was frequently disturbed.
Associate Professor Robertson thought that Mr Glavocevic had had periods of more intense depression although the current symptoms related to the depressive component of PTSD.
Associate Professor Robertson thought that Mr Glavocevic had significant problems with concentration, persistence and inter-personal resilience which meant that he could only work for 20 hours per week. There was a guarded prognosis. The persistence of dissociative symptoms was a poor prognostic indicator in the long term for PTSD.
Mr Glavocevic was seen on 1 October 2019 by Dr George, consultant psychiatrist (DX 1, p 1). The history recorded by Dr George was almost exactly the same as that recorded by Associate Professor Robertson. His diagnosis was chronic PTSD and major depression with anxiety. Dr George noted that Mr Glavocevic was then working 16 hours a week and thought it was possible he may not be able to extend his work beyond 20 hours a week. He thought that he may not be able to get back to driving a truck again. Dr George said that people with PTSD have to learn to manage symptoms rather than have full resolution of their symptoms. He thought that from a psychiatric point of view Mr Glavocevic had reached maximum medical improvement.

[8]

Vocational Capacity Evidence

The defendant tendered the report of Ms Whitley, psychologist, in relation to vocational capacity (DX 1, p 14).
Ms Whitley assessed Mr Glavocevic on 28 October 2021.
Ms Whitley administered some basic psychological tests. This showed that the non-verbal reasoning of Mr Glavocevic was below the average range. He would have difficulties with logical reasoning skills which would affect his ability to make decisions, solve problems, create new ideas and set goals. He would have some trouble with formal training courses. The word reading test showed that Mr Glavocevic is likely to struggle with the development of written documents, formal emails and correspondence. His numeracy score was in the average range.
Ms Whitley regarded Mr Glavocevic as highly motivated to work and is a somewhat stoic and determined man. That is an opinion held across the board.
Ms Whitley offered the following opinion: "…due to the diagnosed PTSD which has arisen since the accident in question, his pre-jury job as a truck driver is no longer considered vocationally appropriate for him. He remains highly anxious driving trucks despite years of treatment. The job will likely remain unsuitable unless significant improvement is made with further treatment and potentially with additional driving instruction."
In relation to future employment Ms Whitley said: "At present, it is most likely that Mr Glavocevic will continue working for his pre-injury employer for as long as he is able or as long as they can provide appropriate duties. It is acknowledged that at his age (55) that he may find it difficult on the open labour market if he were to seek work for which he is inexperienced and will be competing against younger and more experienced candidates. His job options and employability may be improved if he undertook some retraining, such as a short computer course or security training to upgrade his skills or if he were able to gain some experience on the job with his current employer."
Ms Whitley, as part of her report, also provided what she described as a "Job Match Report". This set out the rates of pay for the following occupations: dispatching and receiving clerk; stock clerk; radio dispatcher; truck driver's offsider; clerical and office support worker; alarm, security or surveillance monitor.
Ms Whitley acknowledged that evaluation of physical limitations was beyond her area of expertise.
While the report of Ms Whitley set out a list of jobs suitable from a psychological point of view, there was no evidence from the orthopaedic specialists or the occupational physicians as to whether Mr Glavocevic could perform these duties on a full-time basis. The report of Ms Whitley alone would suggest that Mr Glavocevic would have difficulty from an intellectual point of view in performing the job of dispatching and receiving clerk, stock clerk or clerical and office support worker. The medical evidence was that he could not be an offsider to a truck driver, as such people have to get into and out of the cabin of the truck, which is usually in an elevated position, dozens of times per day. Finally, the job of "radio dispatcher" is nowadays a quaint notion which belongs in the last century.
Counsel for the Mr Glavocevic submitted that there was no evidence called by the defendant to establish that such jobs were available to Mr Glavocevic. Even if such evidence had been called, it is hard to see why any employer (other than the current employer) would take on Mr Glavocevic. His present employer allows him to take a break and lie down at work whenever he wants. That is not what happens on the open labour market.
As counsel for Mr Glavocevic submitted, there are numerous cases in the Court of Appeal which say that it is necessary for a trial judge, guided by the evidence, to make a practical assessment of the likelihood of the plaintiff being able to obtain and retain the jobs that a defendant postulates would be suitable for him. The defendant bears the evidentiary burden of providing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity: Smith v Alone [2017] NSWCA 286 at [46]; Nominal Defendant v Lavaja [2011] NSWCA 121 at [65]; Mead v Kearney [2012] NSWCA 215 at [24-25]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74].
I reject the submission for the defendant that the jobs set out by Ms Whitley could be done by Mr Glavocevic, or are even available, should he have been able to do them from a physical or psychological point of view. The evidence shows that he would not be suitable for those jobs in any event.

[12]

Future Loss of Earning Capacity

Counsel for the plaintiff submitted that this should be calculated at $700 nett per week for the next five years to age 60 and then at $1,500 nett per week for an early retirement at age 60. This came to a total of $447,019. Senior Counsel for the defendant submitted that the ongoing loss should be calculated at $500 nett per week until retirement at age 67. The parties were agreed that future superannuation should be calculated at 14% of the nett figure for future economic loss.
For reasons set out above I propose to adopt an ongoing loss of $700 nett per week. I will not make an award based upon early retirement at age 60 years. This is for two reasons. Firstly, the plaintiff obtains great enjoyment from work and has indicated a strong desire to keep working as long as he can. Secondly, if the plaintiff does come to a knee replacement, his ongoing problems in the right leg will reduce rather than increase as a result of that operation, if it is successful.
Nevertheless, there are a number of contingencies which I have to take into account. Firstly, it is not certain that the plaintiff will be able to work until age 67 years. Secondly, Mr Glavocevic is presently doing light duties offered to him by his employer, which is a self-insurer for workers compensation purposes. While there is no evidence from the employer, there must be a real prospect that once this case is over, the employer may take a different attitude towards provision of light duties for Mr Glavocevic. Thirdly, Mr Glavocevic is unsuited to a large number of occupations because of the matters referred to in the psychological report testing conducted by Ms Whitley. He is only able to work a limited number of hours per week and must take rests while doing so. There would be many employers who would be unwilling to take him on at all under those conditions.
I do have to take into account that there will be a period of three months off work if a knee replacement operation is conducted.
If Mr Glavocevic could work until age 67 the calculation for his future loss of earning capacity would be: $700 x 444.1 x 0.85 = $264,239.50. I propose to increase that amount to reflect the need to be off work for three months after a knee replacement operation, the real prospect that he may not be able to work to age 67, and the difficulties he will face on the open labour market if his employer ceases to provide him with light duties. The award for future economic loss will be $330,000.
The award for future superannuation will be: $330,000 x 14% = $46,200.

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)