Kalinic v Acron Engineering Pty Ltd & Anor [2013] VSCA 341

Kalinic v Acron Engineering Pty Ltd & Anor [2013] VSCA 341 - VSCA 2013 case summary — Zoe

[54]

Whilst in mid 2010, medico legal examiner, Dr Poppenbeek, considered this was the appropriate diagnosis, the plaintiff's current treater, Dr Blombery, a specialist in the field of CRPS, who has seen the plaintiff on a number of occasions, as recently as March 2012, has resiled somewhat from that diagnosis and was more inclined to diagnose an organically based non specific Pain Syndrome as being the cause of the plaintiff's ongoing complaints, with some features of CRPS.

Although Mr Behan and Dr Sutcliffe found signs consistent with this diagnosis, other medical examiners, Mr Battlay, Mr Kierce, Mr Jones, Mr Dooley and, most recently Mr Anstee, in May 2012, found no signs of CRPS.

Significantly, no signs of CRPS have been found by the plaintiff's general practitioner, whose clinical notes largely set out subjective complaints rather than clinical findings. Further, there is no real explanation as to how the swelling found on recent examination relates to the incident injury.

Other examiners have found no abnormality on examination or have had difficulty explaining the level of the plaintiff's complaints.

On examination in early 2011, Mr Jones thought the plaintiff's pain was disproportionate to the condition and he was unable to explain the level of the impaired function in the foot, noting the ankle joint and the left leg were clinically normal.

In 2012, Mr Anstee thought there were no physical problems sufficient to account for the plaintiff's complaints and inactivity and his description of himself as 'being like under house arrest'. Mr Anstee noted there was no swelling and no inflammation and the injury had substantially recovered.

Mr Kierce diagnosed a laceration of the left lower leg without any impairment other than the fact that the plaintiff had an ugly scar. He thought the plaintiff had recovered from the laceration and regained good function and strength. In Mr Kierce's view, none of the plaintiff's symptoms were attributable to functional exaggeration, psychological or psychosomatic matters.

Mr Dooley found no serious underlying damage, noting the large widened laceration had healed but possibly may be subject to further breakdown.

Plastic surgeon, Mr Behan, considered the plaintiff displayed evidence of neural damage and possible neuro formation attached to the scar tissue. However, Mr Jones thought there was no evidence of a neuroma when he examined the plaintiff.

Taking into account all the medical evidence, I accept that the plaintiff continues to suffer some left leg pain and discomfort in the area of the scar. Further, there has been a finding of mildly reduced dorsiflexion by Dr Caric on a number of occasions, and by Dr Poppenbeek and Mr Dooley in 2009, although Mr Kierce found no restriction on examination that year.[20]

[59]

I accept the submission by Counsel for the defendants that the level of activity shown and the plaintiff's ability to engage in walking, particularly on 16 May 2011, was totally inconsistent with the picture painted by him to doctors of constant pain and a very restricted lifestyle - "like house arrest," as he told Mr Anstee.

Prior to cross examination, the plaintiff had told doctors his walking tolerance was thirty minutes, after which he had to rest. The plaintiff had never told any doctor he could walk forty five minutes or so a couple of times, as he was later shown doing on film. Thus examiners such as Mr Jones and Dr Sutcliffe were under a misapprehension as to the plaintiff's walking tolerance when expressing their views as to the plaintiff's capacity.

There was not just one isolated occasion on which the plaintiff was engaged in prolonged walking without apparent difficulty. There was film of extended duration on several dates.

On 29 June 2011, the plaintiff was filmed walking for nearly an hour with his dog. Although he started somewhat slowly, the plaintiff at times walked at a brisk pace and was not shown to have any restriction.

The plaintiff was shown walking with an elderly friend for about forty minutes on 8 November 2011. The plaintiff displayed no restriction and at times, was striding out on what appeared to be a fitness walk as he was wearing his runners and shorts and the compression bandage.

Some of the May 2012 footage showed more prolonged walking, again without apparent difficulty or restriction.

On 10 May 2012, the plaintiff agreed he walked four kilometres from his home to Sunshine Railway Station and then to Mr Anstee's rooms, twenty five minutes away. He agreed he then walked back to Hawthorn Station and caught the train. He may have then walked home, as he sometimes walked home from the station.

On 16 May 2012, the plaintiff went on a short walk in the morning. He left home at 9.16 am to attend an appointment with Mr Jones in Fitzroy - a trip which involved walking four kilometres from his home to Sunshine Railway Station, standing on the train for twenty to twenty five minutes and then walking another forty five minutes or so to Mr Jones' rooms. After the appointment, the plaintiff then walked back to Flagstaff Station, travelled by train on the return trip and then walked the four kilometres home from the station, via the shopping centre, arriving home at 2.12 pm.

I do not accept the plaintiff's explanation that he walked much of the way to this appointment because he did not know how to catch a tram, when clearly he could catch a train and he also could drive to the appointment, as he has a drivers licence.

Whilst it was true that the plaintiff had been advised by Dr Caric to walk and the plaintiff was never shown walking for more than an hour at a time, the plaintiff walked an extraordinary distance on 16 May 2012, even for a person without a leg problem.

Significantly, the plaintiff was observed to walk in a normal manner and was not seen to experience any pain or restriction when walking these distances. Nor was any problem seen when walking from the station after standing in one spot on the train - a problem he has told doctors would limit his ability to work.

Whilst the plaintiff suffers some discomfort and numbness in the area of the scar, having seen the film, I do not accept that he has constant pain and the significant restriction he has deposed to and described to examiners.

I am not satisfied that leg pain or the scarring affects the plaintiff's mobility in any significant way.

Given my view of the surveillance film, lay evidence supporting the level of restriction deposed to by the plaintiff must therefore be viewed with some caution.[25]

[119]

[352] What then are the consequences of the plaintiff's left leg condition?

[353] As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:

"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."

Further, at paragraph 11, President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise the following:

(a) what the plaintiff says about the pain (both in Court and to doctors);

(b) what the plaintiff does about the pain (e.g. medication, rest, seeking medical treatment);

(c) what doctors say about the extent and the intensity of the plaintiff's pain; and

(d) what the objective evidence shows about the disabling effect of the pain.

[355] The plaintiff's credit was directly in issue in this case.

[356] The plaintiff has told doctors that since the incident, his life has been one of constant leg pain and resultant inactivity. In particular, he described increased leg pain when walking for in excess of half an hour, such that he then had to sit down and rest.

[357] Counsel for the defendant relied upon surveillance film shown of the plaintiff on a number of occasions walking long distances and socialising with friends.

[358] I accept the submission by Counsel for the defendants that the level of activity shown and the plaintiff's ability to engage in walking, particularly on 16 May 2011, was totally inconsistent with the picture painted by him to doctors of constant pain and a very restricted lifestyle - "like house arrest," as he told Mr Anstee.

[359] Prior to cross examination, the plaintiff had told doctors his walking tolerance was thirty minutes, after which he had to rest. The plaintiff had never told any doctor he could walk forty five minutes or so a couple of times, as he was later shown doing on film. Thus examiners such as Mr Jones and Dr Sutcliffe were under a misapprehension as to the plaintiff's walking tolerance when expressing their views as to the plaintiff's capacity.

[360] There was not just one isolated occasion on which the plaintiff was engaged in prolonged walking without apparent difficulty. There was film of extended duration on several dates.

[361] On 29 June 2011, the plaintiff was filmed walking for nearly an hour with his dog. Although he started somewhat slowly, the plaintiff at times walked at a brisk pace and was not shown to have any restriction.

[362] The plaintiff was shown walking with an elderly friend for about forty minutes on 8 November 2011. The plaintiff displayed no restriction and at times, was striding out on what appeared to be a fitness walk as he was wearing his runners and shorts and the compression bandage.

[363] Some of the May 2012 footage showed more prolonged walking, again without apparent difficulty or restriction.

[364] On 10 May 2012, the plaintiff agreed he walked four kilometres from his home to Sunshine Railway Station and then to Mr Anstee's rooms, twenty five minutes away. He agreed he then walked back to Hawthorn Station and caught the train. He may have then walked home, as he sometimes walked home from the station.

[365] On 16 May 2012, the plaintiff went on a short walk in the morning. He left home at 9.16 am to attend an appointment with Mr Jones in Fitzroy - a trip which involved walking four kilometres from his home to Sunshine Railway Station, standing on the train for twenty to twenty five minutes and then walking another forty five minutes or so to Mr Jones' rooms. After the appointment, the plaintiff then walked back to Flagstaff Station, travelled by train on the return trip and then walked the four kilometres home from the station, via the shopping centre, arriving home at 2.12 pm.

[366] I do not accept the plaintiff's explanation that he walked much of the way to this appointment because he did not know how to catch a tram, when clearly he could catch a train and he also could drive to the appointment, as he has a drivers licence.

[367] Whilst it was true that the plaintiff had been advised by Dr Caric to walk and the plaintiff was never shown walking for more than an hour at a time, the plaintiff walked an extraordinary distance on 16 May 2012, even for a person without a leg problem.

[368] Significantly, the plaintiff was observed to walk in a normal manner and was not seen to experience any pain or restriction when walking these distances. Nor was any problem seen when walking from the station after standing in one spot on the train - a problem he has told doctors would limit his ability to work.

[369] Whilst the plaintiff suffers some discomfort and numbness in the area of the scar, having seen the film, I do not accept that he has constant pain and the significant restriction he has deposed to and described to examiners.

[370] I am not satisfied that leg pain or the scarring affects the plaintiff's mobility in any significant way.

[371] Given my view of the surveillance film, lay evidence supporting the level of restriction deposed to by the plaintiff must therefore be viewed with some caution.

[372] Further, examining doctors have relied on the restrictions described by the plaintiff in forming their opinions.

[373] I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff's credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff's credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[374] Accordingly, in this case what appear on their face to be medico legal opinions supportive of the plaintiff's claim, such as those of Dr Sutcliffe and Mr Jones, must be looked at in the light of my views as to the plaintiff's credit.

[375] Having been told by the plaintiff that he could only walk for thirty minutes, Dr Sutcliffe concluded the plaintiff had a substantial limitation of activities and no capacity for suitable employment.

[376] Mr Jones thought the plaintiff had a permanent incapacity for work involving prolonged walking or squatting, having been given a similar version of the plaintiff's walking and standing tolerance.

[377] Given the level of activity and free movement shown on film, I am not satisfied that the plaintiff has problems with mobility that significantly interfere with his work capacity and his ability to carry out his trade.[36]

[200]

[435] The plaintiff also relied upon paragraph (b) of the serious injury definition relating to permanent serious disfigurement.

[436] The scar is clearly ugly and large and covers an area measured by Mr Behan of 17 by 2 centimetres and described by him as apparent over the peroneal compartment with evidence of widening and scar separation throughout its length.

[437] The plaintiff deposed he did not like wearing shorts and was embarrassed by his scar and tended to keep it covered. He felt constantly concerned the skin around the scarring would break if it was knocked. The plaintiff gave a similar history to various medical examiners.

[438] In his _viva voc_e evidence, the plaintiff did not elaborate further on his affidavit evidence as to the effects of scarring.

[439] I did not find the plaintiff had a significant emotional response to the scar, a view shared by plastic surgeon, Mr Behan, who considered there was no sign of any behavioural or psychological changes in relation to the scarring.

[440] Further, the plaintiff was shown wearing shorts when walking on 8 November 2011.

[441] However, as Callaway AJA said in Ingram v Ingram & Transport Accident Commission, there was much to be said for the view that the psychological dimension of an injury, or at least it could be described as mental or behavioural, was primarily to be considered by reference to paragraph (c) and it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement, although he did not really decide the issue on the facts of that case.

[442] Whilst the plaintiff experiences aching and numbness in the area of the scar, I am not satisfied that the scar is much of an impediment to most activities of daily living, a view shared by Mr Anstee. The plaintiff obviously has to be careful of knocking his leg and wears a compression bandage for support and warmth, but otherwise his daily activities are unaffected.

[443] Limitation of movement in dorsiflexion as a result of the scar is more properly assessed pursuant to subsection (a) - see Dwyer and Calco Timbers Pty Ltd (No 2).

[444] In this case, the scarring, though extensive, is now well healed.

[445] Mr Behan thought there was a possibility of revision surgery but such a course was complicated by clinical features of ongoing sympathetic dystrophy. However, no steps have been taken by the plaintiff to undergo any further procedure. Mr Anstee doubted any treatment was indicated as far as the scarring was concerned.

[446] Whilst it is unsightly and causing the plaintiff some discomfort, when judged by comparison with other cases in the range of possible impairments, I am not satisfied that the scarring may be fairly described, at the date of the hearing, as being "more than significant" or "marked" and as being "at least very considerable".[64]

At a glance

Court

Decision date

Before

Source

Judgment (236 paragraphs)

Kalinic v Acron Engineering Pty Ltd & Anor [2013] VSCA 341 (28 November 2013)

Parties

Legislation Cited (1)

Cases Cited (6)