Agnew v Transport Accident Commission
[2021] VCC 107
•22 February 2021
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00721
| GARY JAMES AGNEW | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 16 and 17 November 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 22 February 2021 | |
CASE MAY BE CITED AS: | Agnew v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 107 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – serious long-term impairment of the right shoulder – serious long-term impairment of the right knee
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Rowe v Transport Accident Commission [2017] VSCA 377
Judgment:Leave granted to the plaintiff to bring proceedings to recover damages as a result of a transport accident which occurred on 30 July 2006.
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| For the Plaintiff | Mr S J A Jurica with Ms N Crowe | Stringer Clark Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms F C Spencer | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 On 30 July 2006, the plaintiff was at home when he was contacted by his son, who was involved in a motor vehicle accident at a roundabout at Ballarat-Carngham Road and Wilshire Lane in Delacombe.
2 The plaintiff and his wife drove to the scene of the accident. The plaintiff checked on his son and then proceeded to return to his parked car. It was evening, dark and raining. The plaintiff was walking across Wiltshire Lane, north of the roundabout. There were lights from a car coming towards him. He was waiting on the white line in the middle of the road, and that is all he can remember. The plaintiff’s evidence was that the doctors at the Ballarat Base Hospital (“the Hospital”) informed him that the injuries he sustained were due to a vehicle hitting him from behind. The driver of the vehicle who struck the plaintiff did not stop and was never found.
3 The plaintiff’s evidence was that he woke at the Hospital. He had pain in his right shoulder, ribs and right knee and underwent x-ray and scans.
4 The plaintiff said he suffered the following injuries from the accident:
· fractures to his first and second right ribs
· fracture in his left leg
· right shoulder injury
· right knee injury
· loss of consciousness; and
· a cut on his head which was sutured.
The application
5 This is a serious injury application. The plaintiff seeks leave to issue proceedings at common law. The body functions said to be lost or impaired are the right knee and the right shoulder.
6 The plaintiff relied upon five affidavits: three sworn by the plaintiff on 3 July 2018, 27 July and 12 November 2020; an affidavit affirmed by the plaintiff’s wife, Julie Agnew, on 10 September 2020, and an affidavit affirmed by the plaintiff’s employer, Brett Anthony Graham, on 17 September 2020. I have not summarised the affidavits of the plaintiff, his wife and his employer, however, I will refer to their relevant evidence in my reasoning.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Issues
8 In respect of the right knee injury, counsel for the defendant conceded that the consequences of the plaintiff’s injury amounted to a “serious injury” but disputed that the right knee injury was caused in the transport accident. Accordingly, I must consider whether the transport accident was a cause of the plaintiff’s knee injury.
9 In relation to the right shoulder injury, the issue was whether the consequences of the injury were “serious”. Counsel for the defendant submitted they were not.
Credit
10 The plaintiff finished Year 9 at school. He had a consistent work history. At the time of the accident, he had been working for himself for approximately three to four years as a self-employed truck driver delivering bread. He was a subcontractor for Sunicrust. At the time of the injury, he was working six days a week, ten hours a day. Prior to that, he was working as an employee of Sunicrust, as a truck driver for approximately six years.
11 The plaintiff was a straightforward, simple man who answered questions as best he could. Mr Miller described the plaintiff as a pleasant and co-operative person who was clear and was a straightforward historian.
12 I formed the view that at times in cross-examination, the plaintiff had difficulty answering questions. He did not seek clarification or elaboration of questions asked. The plaintiff did not exaggerate his symptoms. He made concessions. I concluded he was limited by his education and had difficulty with the legal process. I formed the view that he was a man of few words. He impressed me as a responsible family man who was hardworking. I accept the plaintiff was a witness of truth.
13 The plaintiff’s wife, Julie, answered questions as best she could. On occasions, she seemed confused. I formed the opinion that she was confused by the questions asked in cross-examination. In cross-examination, she was inconsistent with her evidence as to which leg was being treated for a fracture, immediately after the transport accident. In re-examination, she said regardless of which knee was fractured, the bruise was behind the plaintiff’s right knee, her husband iced the right knee and since the accident, he had problems with the right knee. She said the plaintiff complained of right-knee pain from the time of the accident. She conceded she could not recall which leg was fractured; she thought it was the right leg. I place little reliance on her evidence. I accept that she was trying to recall evidence of matters which occurred fourteen years ago. I concluded she had difficulty with the legal process.
14 Mr Graham, the plaintiff’s employer, was cross-examined. His evidence was that prior to 2012, in approximately 2006/2007, at the depot, he had seen the plaintiff “hobbling around and struggling to push dollies”. He was not aware of the specific injuries the plaintiff sustained in the transport accident. He did not know the year of the plaintiff’s transport accident but said he had seen the plaintiff having issues with his knee since 2006/2007. In re-examination, he said the plaintiff favoured his right knee when lifting crates and pushing dollies. His evidence was of limited value.
15 I place little reliance upon the evidence of the plaintiff’s wife or his employer with respect to whether the plaintiff’s right knee injury was sustained in the transport accident.
16 I accept that all witnesses were credible.
The motor vehicle accident
17 The plaintiff’s evidence was that he woke up at the Hospital, where he underwent x-rays and scans, including an x-ray of the left leg, right shoulder, chest and cervical spine, and a CT scan of the brain and cervical spine. The plaintiff said he suffered injuries, including a fracture to the first and second right ribs, fractures to the left leg (fibula), right shoulder injury and right knee injury, loss of consciousness and cut to the head.
18 The Ambulance report was before the Court which recorded that the plaintiff was conscious. The plaintiff could not recall talking to the officers. He could not recall reporting any complaint to his right knee.
19 The medical records of the Hospital record that the patient was unable to remember the accident. Further, the records make no reference to a right knee injury. They record the patient complained of right shoulder range of movement, left knee pain, headache, no neck pain, no back pain, no chest pain or abdomen pain. The plaintiff had no recollection of talking to someone at the Hospital. In cross-examination, he said he had no memory of the car hitting his leg. There are no x-rays or investigations conducted at the Hospital relating to the right knee. Further, the Surgical Registrar specifically examined both right and left legs and recorded:
“Legs R normal power? Sensation
L tender knee
normal sensation.”
20 In addition, on 1 August 2006, on the day of discharge, the physiotherapist recorded:
“[P]atient advised to increase decrease to steps at home by hopping on right leg – wife to assist patient.”
21 The plaintiff agreed it would be unlikely, if he complained of a right knee injury, he would be advised to hop on his right foot.
22 On 7 August 2006, the plaintiff’s general practitioner, Dr Hemming, completed a TAC Medical Certificate. The Certificate is difficult to read, however, the sites of pain are marked on the body map, which does not refer to pain in the region of the right knee.
23 On 17 August 2006, the plaintiff completed a TAC Claim Form in relation to the transport accident. He listed the injuries he suffered in the transport accident as follows:
· fractured rib(s) right side
· fractured fibula
· facial laceration
· loss of consciousness
· multiple bruises
· spinal cord injury.
24 There is no reference to an injury to the right knee.
25 The records of the Newington Physiotherapy Clinic were before the Court. The records confirm that the plaintiff attended on 18 August 2006. The records are handwritten notes which are difficult to decipher and interpret. They consist of significant abbreviations which are difficult to read. Overall, I am not able to place great reliance on the records of the physiotherapist. Counsel for the plaintiff suggested interpretations of the physiotherapist records. Having reviewed the records, I am not in a position to accept counsel for the plaintiff’s submission as to the interpretation of the physiotherapists’ notes.
26 The medical records of the treating general practitioner make no reference to a right knee injury until March 2008, when an x-ray of the left elbow and an x‑ray of the right knee were ordered.
27 The plaintiff’s evidence in Court was that he had a large bruise on the back of his right knee which increased in size. The plaintiff’s wife confirmed the evidence of the bruise but said it was on his left leg. The plaintiff said his wife had taken a photograph of the bruise, but they no longer had a copy of the photograph, as they had sold their computer. This was not referred to by the wife in her evidence or in her affidavit. There is no evidence to suggest that the plaintiff reported the bruising at the back of his right knee to any of the medical witnesses.
The right knee injury
28 The plaintiff’s evidence was that when he woke at the Hospital, he had pain in his right shoulder, ribs and right knee.
29 The plaintiff’s evidence is that in February or March 2007 while at work, he was struggling with nagging right knee pain, which worsened over time.
The medical evidence
Dr Hemming
30 In March 2008, the plaintiff saw his general practitioner, Dr Hemming, and reported an ache in his elbow and right knee. Dr Hemming’s examination showed no clinical signs. He organised an x-ray of his elbow and right knee and prescribed anti-inflammatory medication. The report on the x-ray of his knee suggested no significant clinical signs.
31 Dr Hemming provided two medical reports dated 10 and 11 November 2020, attended Court and was cross examined. He confirmed that he retired from medical practice in 2012.
32 In the first report of 10 November 2020, Dr Hemming said the plaintiff consulted him in August 2006 following the transport accident. He had no report of right knee pain in his records and had x-rays and a CT scan performed at the hospital, following the transport accident, but no record of x-rays of the plaintiff’s right knee. His notes recorded that the plaintiff attended the Hospital with a fractured left fibula, fractured right first rib and lacerations to his right parietal area. He could find no record in his notes of right knee pain. He reviewed the plaintiff on 14 August 2006 when he complained of ongoing left leg pain, which Dr Hemming presumed related to the left leg fracture. The records indicate the plaintiff was seen by other doctors within the practice in September 2006 and February 2007. In May 2007, Dr Hemming saw the plaintiff in relation to right shoulder pain, for which he prescribed anti-inflammatory medication.
33 In March 2008, the plaintiff returned and reported improving pain in his right shoulder but complained of right knee pain and elbow pain. Dr Hemming examined the plaintiff’s right knee which showed no specific clinical signs. He ordered x-rays of the elbow and right knee and prescribed anti-inflammatory medication. The x-rays of the right knee suggested no significant clinical signs.
34 In cross-examination, Dr Hemming said he had no history of the plaintiff having difficulty getting in and out of his truck at work with respect to his right knee. He said he would have noted it if he had been told. He said his notes did not record an injury to the plaintiff’s right knee in the transport accident until 12 March 2008. He had not recorded, nor could he recall being told which body part had been struck in the accident.
35 In his first report, Dr Hemming said it was possible that the plaintiff’s right knee injury was caused by the accident but the focus at the time was on his more serious and obvious injuries.
36 Dr Hemming was asked questions about his second report dated 11 November 2020, in which he refers to the reports of Mr Mitchell, Mr Brearley and Mr Miller. He said the reports assisted him because they provided more detail about the injury, the severity and surgical intervention. He said, on the basis of all the history and following the course of his right knee injury, it was very likely that the motor vehicle accident on 30 July 2006 has been a major cause of the plaintiff’s right knee injury and his ongoing subsequent knee condition. He agreed the factual matters were not consistent with his clinical records, namely that the plaintiff made no complaint of right knee injury until March 2008, and then, according to the medical records, in April 2010.
37 In his second report, Dr Hemming said the plaintiff’s right knee injury was consistent with the plaintiff being struck by the motor vehicle from behind. He said he was prepared to say that it was likely that the accident was a major cause of the plaintiff’s right knee injury and his ongoing subsequent knee condition. He agreed he was not provided with the reports of Mr English, the surgeon who performed the surgery.
38 Dr Hemming was informed of the problems Mr English found at the time of surgery, namely a degenerative arthritic right knee in the medial compartment and a meniscal tear in the knee. He agreed that those problems can arise in individuals irrespective of trauma to the knee. He was informed that Mr Menz, an orthopaedic surgeon, specialising in knees, had examined the plaintiff and reported that he had no doubt that there was pre-existing arthritis of the knee which worsened with the passage of time, and was not related with the transport accident. Dr Hemming agreed he was not provided with Mr Menz’s report. Dr Hemming said he could only go on the evidence he had at the time – that is in 2006 – and the x-ray of March 2008 which did not mention anything further.
39 In re-examination, Dr Hemming said it would not be unusual for other things to come to notice within a year or two. He said it was certainly possible that the plaintiff’s condition could have been aggravated by the transport accident. I note that the plaintiff’s first recorded report of right knee pain was within twenty-four months.
Mr David Mitchell
40 In 2010, the plaintiff returned to the UFS Medical Centre and reported a sore right shoulder, and right lower leg pain from the knee down. Following an x‑ray, he was referred to Mr David Mitchell, orthopaedic surgeon.
41 Mr Mitchell obtained a history of progressive pain of the right shoulder and right knee following the transport accident in 2006. The plaintiff reported a painful right knee posteriorly which is exacerbated by driving, squatting and kneeling. An examination demonstrated a small effusion. Mr Mitchell said there is intra-articular pathology which the plaintiff relates to his original injury.
42 Mr Mitchell said that it seems absolute that there is intra-articular pathology which the plaintiff relates to his original injury. He thought the plaintiff may have a lateral meniscal tear or maybe chondromalacia patella but an MRI scan would be required. Mr Mitchell sought approval to conduct an MRI scan.
43 In August 2010, the MRI report concluded:
“Medial compartment osteoarthritis with full thickness cartilage loss in the mid third femoral articular surface and multiple areas of subchondral bone oedema.
Suggestion of synovitis with increased signal along synovial recesses.”
44 The MRI report also noted:
“… Intrameniscal degeneration is observed in the posterior horn of the medial meniscus but no tear is identified within it.”
45 Mr Mitchell said the MRI demonstrated loss of articular cartilage on the medial femoral condyle and the media patellar facet. He said the posterior lateral pain is probably a stretching phenomenon of the posterior lateral corner as a result of his anteromedial arthritis. It is plausible that the pathology occurred in the other order, that in the motor vehicle accident he sustained a strain of his posterolateral corner, which has now set him up to develop a varus alignment. Mr Mitchell said either way, the motor vehicle accident has either initiated this process in his right knee or at least exacerbated it.
46 Mr Mitchell provided the plaintiff with written advice on the non-operative management of osteoarthritis of the knee. He said there is a chance that the plaintiff will require future treatment such as an unloader brace, a knee arthroscopy, a tibial osteotomy or even a knee replacement. He said given the plaintiff’s age, he should adopt a conservative approach.
Mr Shaun English
47 In October 2013, the plaintiff was referred to Mr Shaun English, orthopaedic surgeon, who understood the plaintiff had an existing TAC claim with regard to his right knee problem. He was aware the plaintiff suffered a minor fracture in the shoulder but no bone injury in his right leg. Mr English referred the plaintiff for an MRI scan.
48 The MRI revealed a couple of pathologies, a degenerative tear in the posterior horn of his medial meniscus and advanced degenerative arthropathy of the medial joint compartment with early changes in the patellofemoral.
49 On 31 October 2013, Mr English reported that the tear in the posterior horn of the medial meniscus was a degenerate tear. He said the good news was that the lateral compartment of the plaintiff’s knee appears to be in good shape. He recommended a stepwise approach to the plaintiff’s problem and proposed an arthroscopy and resection of the meniscal tear to see how the plaintiff responds. He said if this did not take away the plaintiff’s pain, he would be recommending a high tibial osteotomy.
50 In December 2013, Mr English performed a right knee arthroscopy, meniscectomy and chondroplasty. Mr English diagnosed a complex tear of posterior horn of medial meniscal tear of the right knee, with chronic cartilage damage to the tibial plateau and femoral condyle.
51 In November 2014, the plaintiff returned to see Mr English with regard to his right knee pain. Mr English reported that the plaintiff has fairly consistent pain in the medial aspect of his right knee. He referred the plaintiff for imaging.
52 In December 2014, Mr English reported that the plaintiff has isolated medial compartment osteoarthritis with no major malalignment. He said that a realignment osteotomy is likely to give incomplete resolution of pain. He recommended a medial compartment joint replacement and sought approval from the TAC for the procedure.
53 On 16 March 2015, Mr English performed a right knee medial unicompartmental knee replacement.
54 In July 2018, Mr English said the prognosis was for good function and normal daily activities for the immediate future. He anticipated in ten years, the knee prosthesis would wear and revision surgery is likely.
Newington Physiotherapy
55 In May 2019, Newington Physiotherapy reported that the plaintiff had received treatment since 2006. Initially, the plaintiff was treated in 2006 and 2007 by a clinician who has been away and could not complete a report. The records were before the Court but were difficult to read.
56 Ms Jessica McIver, physiotherapist, reported that the plaintiff presented following left non-compartmental knee replacement surgery on 16 March 2015 and again, he presented post a right non-compartmental knee replacement on 6 December 2017. The medical reports indicate that the plaintiff’s right knee surgery was conducted on 16 March 2015. Accordingly, I consider this is an error in Ms McIver’s records.
57 In May 2019, Mr Newland, physiotherapist, confirmed that the plaintiff was receiving treatment for his right shoulder and right knee pain, as well as treatment for neck and upper back pain.
58 The records of Newington Physiotherapy were difficult to decipher and of limited value in determining the issue of causation for the plaintiff’s right knee injury. The physiotherapists do not express an opinion in relation to whether the plaintiff’s right knee injury was sustained in the transport accident. Accordingly, I place no reliance on the records of Newington Physiotherapy with respect to causation of the right knee injury.
Mr Kenneth Brearley
59 In June 2018, the plaintiff was medically examined by Mr Brearley, surgeon, for the purpose of providing an impairment assessment. The plaintiff reported to Mr Brearley that he injured his right knee in the transport accident of July 2006. Mr Brearley was aware of the injuries recorded by the Hospital at the time of the accident. Mr Brearley obtained a history that following the transport accident, the plaintiff had ongoing problems with his right knee and was referred to Mr Mitchell, who organised an MRI scan, which showed medial compartment osteoarthritis with full-thickness cartilage loss.
60 Mr Brearley was aware the MRI scan results of 2013 ordered by Mr English which showed a degenerative tear of the posterior horn of the medial meniscus and some changes in the femoral condyle. He was aware of both surgeries the plaintiff underwent on the right knee and more recently on the left knee,
61 As a result of the transport accident, Mr Brearley diagnosed the plaintiff suffered an injury to his right knee.
Mr Russell Miller
62 In September 2020, Mr Miller, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Miller was provided with the ambulance record, Ballarat Health discharge summary, the records and reports of Dr Cruickshanks, Mr Mitchell, Dr Anderson, Mr English, Mr Brearley, Ms McIver, Mr Newland, Dr Menz and the Ballarat Community Health progress reports. He was also provided with the majority of the radiological reports.
63 Mr Miller said the relationship between the accident and the right shoulder, right knee and left knee symptoms is a complex and multifactorial issue which includes:
(i) pre-existing disease, although he noted there were no pre-existing symptoms;
(ii) the described injury;
(iii) the significant physical work over a protracted period; and
(iv) overuse of the left knee to protect the more severely symptomatic right knee.
64 Mr Miller concluded that the right shoulder, right knee, and left knee could be regarded as being substantially accident related.
65 I accept that that Mr Miller was provided with substantial radiological reports from 2006 through to 2019. In addition, he was provided with the report of Mr Menz, orthopaedic surgeon, specialising in the lower limbs, who expressed a different view to that of Mr Miller, and upon which he did not comment upon.
Dr Anthony Menz
66 Dr Menz, orthopaedic surgeon, examined the plaintiff on 17 January 2019 at the request of the defendant, and provided a supplementary report dated 14 February 2020.
67 In January 2019, the plaintiff rated his right knee pain as 5 to 6 out of 10, and his left knee pain as 8 out of 10. On examination of the right knee, Dr Menz reported that the plaintiff had a natural incision and had a medial unicompartmental knee replacement of the right knee. The x-rays showed he had medial compartment arthritis of the right knee. Examination of the left knee revealed a midline incision. Both knees had a range of movement from 0 to 110 degrees and alignment was normal. He was not provided with post-operative x-rays of either knee.
68 Dr Menz obtained a history of the injuries suffered at the time of the accident. He noted that there was no knee joint effusion. The plaintiff reported that he gradually felt increasing right knee pain over the years but only first complained of it in about 2009. Dr Menz noted that the plaintiff was seen by Mr Mitchell, orthopaedic surgeon, and treated conservatively. The plaintiff was referred to Mr Shaun English, orthopaedic surgeon, who, in 2013, performed an arthroscopy of his right knee and due to increased pain, in 2015, Mr English performed a medial unicompartmental knee replacement. In 2016, the plaintiff underwent a left medial unicompartmental knee replacement. The plaintiff reported severe knee pain bilaterally.
69 Dr Menz accepted the plaintiff had developed arthritis in his right and left knees which he considered was unrelated to the transport accident. He said on the left side, the plaintiff sustained a fracture of his left fibula, and x-rays at the time showed no knee effusion, indicating no damage at the time of the accident.
70 Dr Menz said that the right knee symptoms came on two to three years after the transport accident, were gradual in onset, and are age related and are not related to the transport accident.
71 Dr Menz said he had no doubt arthritis pre-existed the transport accident and gradually worsened with the passage of time. He said there were no inconsistencies between the radiology and his findings on examination. He said the plaintiff has significant knee pain, because the medial unicompartmental knee replacements did not address the degeneration in the patellofemoral joint and, to a lesser degree, in the lateral compartment of the knee joint. Dr Menz said the plaintiff is becoming significantly worse because he is developing arthritis in the other compartments of the knee joint. He said the only way to address the plaintiff’s knee problems is to proceed to a total knee replacement. He said the development of the arthritis was purely constitutional and age-related and as such, is not related to the transport accident. Dr Menz said the MRI scans he referred to were quotations from a report and he did not personally review them. His comments about the development of arthritis in the plaintiff’s right knee were from viewing the x-rays made available to him by the plaintiff.
72 In February 2020, Dr Menz provided a supplementary report. In this report, Dr Menz outlines that he reviewed his own clinical records from the IME conducted 17 January 2019, his report dated 17 January 2019, a supplementary request from the TAC and physiotherapy clinical records. There is no evidence to indicate which physiotherapy records were provided to Mr Menz or what period of treatment the clinical notes covered. Mr Menz said that the clinical records did not alter his opinion. I place no reliance on the supplementary report.
Causation – right knee
73 Counsel for the defendant submits that the plaintiff’s right knee injury was not caused by the motor vehicle accident.
74 There is no written record of the plaintiff complaining of right knee pain until 2008, when the plaintiff reported right knee pain to Dr Hemming and was referred for an x-ray. The plaintiff’s evidence is that he made reports of right knee pain when he was hospitalised.
75 The medical evidence was expressed by Dr Hemming, Mr Mitchell, Mr English, Mr Brearley, Mr Miller and Mr Menz.
76 In 2008, Dr Hemming recorded a complaint from the plaintiff of right knee pain. He examined the plaintiff and ordered radiology which did not reveal any pathology for a right knee injury. He retired from practice in 2012.
77 Dr Hemming gave evidence in Court and expressed the view that the plaintiff’s right knee injury is related to the transport accident. Dr Hemming was provided with the reports of Mr Mitchell, Mr Miller and Mr Brearley. He was not provided with the reports and records or Mr English or the reports of Mr Menz. He said on the basis of all the history and following the course of his right knee injury, it was very likely that the motor vehicle accident on 30 July 2006 has been a major cause of the plaintiff’s right knee injury and his ongoing subsequent knee condition.
78 I note that Dr Hemming has not treated the plaintiff since 2008. He is a general practitioner and not an orthopaedic specialist. According, I am more reliant on the evidence of the orthopaedic specialist.
79 The plaintiff consulted Mr Mitchell in 2010. Following radiological investigations, Mr Mitchell diagnosed the plaintiff with early osteoarthritis in the medial compartment of the right knee. He took the view that the plaintiff’s right knee injury was initiated due to the motor vehicle accident or at least exacerbated by it.
80 Mr Mitchell reported that the plaintiff was not treated for his right knee when he was hospitalised after the transport accident. He noted that:
“It has only been subsequently that the knee and shoulder have been particularly problematic.”
81 I also note that the MRI report of 14 August 2010 recorded intrameniscal degeneration in the posterior horn of the medial meniscus but no tear is identified within it.
82 Mr Mitchell accepted that the plaintiff’s right knee injury, which he diagnosed as early osteoarthritis in the medial compartment of the right knee, was transport accident related. He was aware of the plaintiff having difficulty with his right knee only subsequent to the accident. Mr Mitchell is an orthopaedic specialist who consulted the plaintiff early on. He was provided with an accurate history of the plaintiff’s condition. Mr Mitchell noted that the plaintiff’s condition may worsen. Accordingly, I accept his opinion that the plaintiff’s right knee injury is transport accident related.
83 Mr English was the plaintiff’s treating orthopaedic surgeon. He was aware that the plaintiff had previously seen Mr Mitchell. The material before the Court does not indicate whether Mr English was provided with the MRI reports from 2010 or the reports of Mr Mitchell.
84 Mr English sought an MRI scan of the plaintiff’s knee in October 2013. This MRI report recorded a star shaped degenerative tear of the posterior horn of the medial meniscus and advanced degenerative arthropathy of the medial joint compartment.
85 Mr English’s records indicate that he understood the plaintiff to have an existing TAC claim regarding his right knee problem. He had a history of the nature of the transport accident and recorded that there was no bone injury to the right knee identified at the time of the accident. He noted that the plaintiff’s right knee injury worsened. Mr English did not comment on the issue of causation. His reports suggest that he treated the plaintiff as having sustained an injury to the right knee in the transport accident and as having an accepted TAC claim. He did not indicate that the plaintiff’s condition is not accident related.
86 I accept that Mr English diagnosed the plaintiff with advanced arthrosis of the medial compartment of the right knee with a degenerate tear to the posterior horn of the medial meniscus. I note that the earlier MRI scan of 2010 ordered by Mr Mitchell showed early osteoarthritis and degeneration at the posterior horn of the medial meniscus with no tear. Mr English accepted the plaintiff’s right knee injury had worsened since the time he had seen Mr Mitchell.
87 Mr Mitchell and Mr English both diagnosed the plaintiff with osteoarthritis/ arthrosis of the medial compartment of the right knee which had significantly worsened by the time the plaintiff saw Mr English. At the time the plaintiff consulted Mr English, the plaintiff’s right knee condition had worsened to develop a degenerative tear of the posterior horn of the medial meniscus. Mr Mitchell accepted the plaintiff’s osteoarthritis was transport accident related. Mr English also diagnosed the plaintiff with arthrosis of the medial compartment of the right knee and a degenerate tear. Mr English did not comment on causation, however, given his diagnosis of the plaintiff’s right knee injury is consistent with the diagnosis made by Mr Mitchell, I accept that the plaintiff’s right knee arthrosis and degenerative tear to the posterior horn of the medial meniscus is transport accident related. Further, I take into account that Mr English did not express any views in relation to the right knee injury not being accident related. Rather, his records and reports all take into account that the plaintiff has sustained a transport accident-related injury to his right knee for which the plaintiff has an accepted TAC claim.
88 Mr Brearley examined the plaintiff for the purposes of an impairment benefit claim. In his examination, he noted a scar on the plaintiff’s right knee consistent with the plaintiff’s right knee surgeries. He diagnosed the plaintiff with an “injury to the right knee”. In his report he recorded that the over the ensuing years after the accident, the plaintiff has had ongoing problems with his right knee which were investigated with radiology and reported medial compartment osteoarthritis. Mr Brearley had a good history of the plaintiff’s right knee history at the time of writing his report. Mr Brearley did not make any comment with respect to causation of the right knee injury. He did not express disagreement in relation to the diagnoses and treatment provided by both Mr Mitchell and Mr English.
89 Mr Miller examined the plaintiff at the request of the plaintiff’s solicitor. Mr Miller was provided with the radiologically reports of the plaintiff. He referred to the MRI scan of 14 August 2010, which reported medial compartment osteoarthritis, the MRI scan of 23 October 2013, which concluded advanced degenerative arthropathy of the medial joint compartment with early changes in the patellofemoral joint. Mr Miller said the plaintiff has had some improvement following surgery and his prognosis is fair.
90 Mr Miller said the relationship between the right knee and the accident was complex and multifactorial.
91 Mr Miller concluded that the current status of the right knee injury was substantially related to the transport accident. I accept that Mr Miller was provided with an accurate history of the plaintiff’s right knee injury. Mr Miller did not disagree with the diagnoses of Mr Mitchell and Mr English. I accept that Mr Miller identified the plaintiff’s injury as being osteoarthritis of the medial compartment of the right knee which has progressively worsened. He did not dispute the treatment the plaintiff has undergone and considered his prognosis to be fair.
92 Mr Miller is an orthopaedic specialist; he had a complete history of the plaintiff’s injuries, as well as the plaintiff’s work history. He considered the issues affecting the plaintiff’s right knee injury, namely any asymptomatic pre-existing disease and the plaintiff’s work. Having regard to all the factors, he concluded that the plaintiff’s right knee injury is substantially accident related. I accept the evidence of Mr Miller.
93 Dr Menz examined the plaintiff at the request of the defendant. Dr Menz accepted the plaintiff had developed arthritis in his right and left knees which he considered was unrelated to the transport accident. He said that the right knee symptoms came on two to three years after the transport accident, were gradual in onset, and are age related and are not related to the transport accident. Dr Menz said he had no doubt arthritis pre-existed the transport accident and gradually worsened with the passage of time. Dr Menz was not provided with a complete history of the plaintiff’s radiology. He does not refer to the degenerative tear of the posterior horn in the medial meniscus identified by Mr English in 2013.
94 Dr Menz said that the plaintiff’s condition is significantly worse because he is developing arthritis in the other compartments of his knee and the only way to fix this is to proceed to a total knee replacement. He indicated in his report that the MRI scans he referred to were quotations from a report, and he did not personally review them. He said his comments about the development of arthritis in the knee were from viewing x-rays made available to him by the plaintiff. Dr Menz, does not outline the date of the x-rays he viewed.
95 Dr Menz was not provided with the report of Mr Miller or Mr Brearley. He did not have the MRI reports and gave his opinion based on quotations from a report. He did not personally review the MRI scans or reports. Dr Menz’s report indicates that he was provided with a surgery request by Mr Mitchell. I note that no surgery request was made by Mr Mitchell. Accordingly, it is unclear what material from Mr Mitchell was provided to Dr Menz. I accept that Dr Menz did not have a complete history. Further, Dr Menz is the only medical witness to be of the view that the plaintiff’s right knee injury is not accident related.
96 Counsel for the defendant relied on the Court of Appeal decision in Rowe v Transport Accident Commission.[1] Counsel submitted that the task of a judge when hearing an application under s93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is “serious” in the defined sense. Counsel for the defendant submitted that no doctor has identified an injury which relates to the transport accident and there is no evidence that there was an injury caused by the transport accident.
[1][2017] VSCA 377
97 I accept that the majority of the medical evidence is that the plaintiff’s right knee injury is osteoarthritis/arthropathy of the right knee. The majority of the medical evidence is supportive of the view that the plaintiff’s right knee injury is transport accident-related.
98 In viewing the evidence as a whole, I accept the majority of the medical evidence that the plaintiff’s right knee injury is accident-related. I accept there is no record of complaint of right knee pain until 2008. I accept the evidence of Dr Hemming, that at the time of the accident, the focus was on the more obvious and serious injuries sustained by the plaintiff. The majority of the medical evidence accepts that over the ensuing years after the accident, the plaintiff had ongoing right knee problems which progressively worsened. There is no evidence to suggest that the plaintiff had any right knee problems prior to accident. I have accepted the plaintiff as a witness of truth.
99 Counsel for the defendant accepted that the consequences for the plaintiff’s right knee injury meet the requisite test to be considered “serious”. Accordingly, I am not required to consider the consequences of the right knee injury. As I have found the plaintiff’s right knee injury to be accident-related which is accepted as “serious”, I am not required to consider the consequences of the plaintiff’s shoulder injury.
100 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages as a result of the transport accident.
101 I will hear the parties on costs.
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