OWNERS- STRATA PLAN 156 v GRAY

Background facts 2 On 2 September 2000, at 4 am, the plaintiff tripped and fell on stairs at the premises where she lived which were owned and occupied by the defendant. As a result, she injured her ankle. At the time she was on her way to work as a dealer at the Star City Casino. Although the plaintiff was in considerable pain, she managed to drive to work. After working for about half an hour she found she could not stand any more and sought medical attention. Her ankle was swollen. She left work and went home. On the same day she saw her general practitioner, Dr Peter Blatchford, who practised at the Warringah Mall 24 Hour Medical Centre. Examination revealed soft tissue injury involving the lateral ligaments of the left ankle. X-rays of the ankle were performed and reported as normal. According to Dr Blatchford she was seen on 6 and 13 September 2000 and it was noted her condition was settling. However, on 25 September 2000 her left Achilles ligament was found to be involved and she was referred to Dr Steel for further management. A bone scan was ordered. On 5 October 2000, she saw Dr Blatchford and said she had been assessed by Dr Steel. It was agreed that Dr Steel would take over management of her injury. Her last consultation with Dr Blatchford was on 17 October 2000. 3 On 31 July 2001, at the request of her solicitors, the plaintiff was examined by Dr Patrick. Dr Patrick described the present symptoms as ongoing pain of the left ankle mainly laterally and referred to the inability of the plaintiff to wear all types of shoes. She was not able to run on the beach or walk distances along the beach. She was tentative about walking around the rocks. She could not play physical sport involving running or twisting/turning. Previously she had played basketball for Australia Under 16s. She described herself as still being fit but restricted significantly by the left ankle. She was able to swim and was training for a 111 km kayak paddle. Apart from this type of activity, recreation was mainly non-physical. Dr Patrick reported that there was local tenderness at the left ankle laterally, distal to lateral malleolus and in the antero-lateral gutter with the foot inverted. There was also tenderness to palpation over the distal medial malleolus. There was some 5 degrees loss of dorsi-flexion. Dr Patrick observed no undue swelling. In his opinion, the plaintiff had sustained significant ligamentous injury to the left ankle as a result of the fall. It was likely there had been some deltoid ligament strain medially, with development of some degree of post-traumatic synovitis at the ankle joint. Dr Patrick believed her continuing symptoms, as described, were genuine and consistent with the injuries sustained on 2 September 2000. 4 Dr Patrick re-examined the plaintiff on 30 October 2002. In his report he noted that her last day of work with Star City Casino was 28 June 2002 when she resigned. Dr Patrick observed: "She has been given good references however and she tells me they would take her back at any time. The main reason she resigned was to look after her mother for a period." 5 Dr Patrick noted the present symptoms as ongoing swelling intermittently about the lateral left ankle with some discomfort laterally at the left ankle. Dr Patrick stated that the plaintiff had never been able to return to basketball and did not involve herself in team games. She was on no regular medication. Physical examination revealed ongoing mild tenderness of the left ankle laterally, distal and anterior to lateral malleolus and in the antero-lateral gutter with the foot inverted. There was no undue swelling. There was no evidence of significant reflex sympathetic dystrophy. Dr Patrick was of opinion that the plaintiff did continue with ongoing symptoms at the left ankle but that surgical intervention was not likely to be indicated. Re-examination did not cause Dr Patrick significantly to alter the opinion expressed earlier. His assessment of impairment/loss of the left leg below the knee, including loss of use of the foot, was unchanged at 16 per cent. 6 At the request of her solicitors, the plaintiff saw Dr Cecil Cass, an orthopaedic surgeon, on 29 October 2002. Referring to the incident, Dr Cass said: "After twelve days [the plaintiff] was able to return to light duties at the Casino in the administration department where she could sit down. She was very good at administration work and rapidly became a very competent computer IT worker. She was made a permanent employee in administration and she worked in that position from December 2000 until 28 June 2002 when her mother was discharged from hospital. Miss Gray commenced full time caring work looking after her mother in her further physical improvement and progression to independence from medication. Miss Gray herself continued her regular programme of exercises including bicycle rides daily of 2 kms. Whilst there has been a steady improvement in the function of her left foot and ankle she still does find she has marked limitations in its functional efficiency compared to her previous abilities, especially with sports games." 7 Dr Cass described those limitations. He observed that the plaintiff did not feel comfortable when walking and standing and preferred using low-heeled shoes. She used a handrail when going up and down stairs. She could not jump any distance in height unless she landed with both her feet simultaneously on a flat surface. On examination, he observed that she walked without a limp. There was soft tissue swelling which was tender in the lateral gutter just in front of the distal end of the fibula at the ankle joint. There was a good range of movement of the left ankle. Dorsi flexion was 10 degrees above a right angle in plantar grade position and her range of flexion was 25 degrees beyond the plantar grade position. Inversion was 25 degrees and eversion 15 degrees. Pain was felt at the limit of both these movements and the pain was located at the antero-lateral side of the ankle joint. There was local tenderness overlying the anterior band of the lateral ligament and also the inferior band of the ligament, from the fibula to the talus anteriorly and the lateral side of the calcaneus inferiorly. Inversion accentuated the pain felt over the site of these ligaments and eversion also caused some discomfort in these areas. There was good power in the invertor muscle function. There was moderately strong resistance indicating some loss of efficiency in these muscles. The toe flexors and extensors were strong. At the limit of the plantar flexion there was tenderness with some discomfort over the antero-lateral aspect of the ankle joint. There was an increased anterior draw sign indicating some stretching of the anterior capsule and some inefficiency of the antero-lateral ligament at the ankle joints. 8 Dr Cass expressed this opinion: "Miss Gray does have persisting symptoms and signs of anterior capsuloligamentous injury with inefficiency in function affecting her left ankle. Because this has existed for three years and she is a keen sportswoman who feels significant restrictions in both her leisure and work activities. Miss Gray does need to be seen by an experienced foot and ankle surgeon such as Dr Les Grujic, who has rooms in Chatswood and works at Royal North Shore Hospital. I think she does warrant an arthroscopic examination to accurately examine the ankle followed by a repair of her anterolateral ligament complex, if the persisting laxity is confirmed. I do not think Miss Gray will achieve a full return to efficient sporting activities with continuation of conservative measures only." 9 On 8 July 2003, Dr Cass examined the plaintiff and gave a further report which although not included in the appeal books was in evidence. Dr Cass noted that the plaintiff was not able to work in the upright position as a casino dealer. She did not feel that there had been any real significant improvement since she last saw Dr Cass in October 2002. Dr Cass reported: "The acute ligamentous injury has been followed by healing of the torn ligament and soft tissues with elastic fibrous tissue, which is longer than the original ligament and does leave some increased laxity in the length of this ligament resulting in instability at the ankle when this ligament is put on stretch. There will be no improvement in this situation now unless there is surgical intervention with an attempt to repair the torn ligament in its approximately normal length.