Arthur v TAC
[2020] VCC 1980
•14 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05560
| Susan Anne Arthur | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2020 | |
DATE OF JUDGMENT: | 14 December 2020 | |
CASE MAY BE CITED AS: | Arthur v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1980 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury; left hip injury; total left hip replacement; osteo-arthritis
Legislation Cited: Transport Accident Act 1986 (Vic); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited: Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr A Moulds QC with Ms J Clark | TAC |
HER HONOUR:
On 14 July 2009, Anne Arthur had an altercation with her drunk husband as he tried to drive away from their house in his four-wheel drive. Mrs Arthur was either pushed or fell to the ground. Her husband then put the car in motion and drove over Mrs Arthur’s legs, before driving away (“the incident”).
On 21 September 2018, some nine years after the incident, Mrs Arthur had a total hip replacement of her left hip.
The critical issue in this case is whether the osteo-arthritis which lead to this total hip replacement is an injury suffered by Mrs Arthur as a result of the incident. The defendant submitted that it was not. Mrs Arthur submitted that it was either an injury suffered as a result of the incident or, alternatively, was aggravated or accelerated by an injury suffered as a result of the incident.
A second issue is whether, if I find in favour of Mrs Arthur on causation, Mrs Arthur has suffered a serious injury.
For the reasons which follow, I have found in favour of Mrs Arthur on both of these issues.
Is the osteo-arthritis an injury suffered as a result of the incident?
In order to resolve this issue, I must make determinations of fact in relation to the onset of Mrs Arthur’s symptoms in her left hip. This turns significantly on Mrs Arthur’s credibility as a witness.
Having made these findings, I must then decide which of three different expert opinions by orthopaedic surgeons I prefer:
a) Mr Russell Miller, an orthopaedic surgeon called by Mrs Arthur, who expressed the view that Mrs Arthur had pre-existing asymptomatic disease but that that disease “was aggravated by [the incident]…and further superimposed injury has occurred…[the incident] is a significant contributing factor to the evolution of the disease in the left hip and the requirement for the hip replacement surgery”;
b) Mr Thomas Kossmann, a second orthopaedic surgeon called by Mrs Arthur, who expressed the view that the incident caused Mrs Arthur’s osteo-arthritis of the left hip; and
c) Mr Michael Dooley, an orthopaedic surgeon called by the defendant, who expressed the view that Mrs Arthur suffered constitutional degenerative osteo-arthritis that did not result from any injury suffered in the incident.
Onset of symptoms in Mrs Arthur’s left hip
In her affidavit, Mrs Arthur says she had hip pain in both hips immediately following the accident, but that it was “distracted” by the pain in her fractured left ankle and leg. Mrs Arthur also told Mr Kossmann that she had told the medical staff at the hospital that she was suffering from pain in her left hip but it was not investigated further. Under cross-examination, Mrs Arthur confirmed that she told Western Hospital about left hip pain “at the time” at the hospital.[1]
[1]T128, L2-8.
Senior counsel for Mrs Arthur submitted that I should reject this evidence and find that Mrs Arthur did not experience any significant hip pain until approximately 12 months after the incident.
10. Senior counsel for the defendant submitted that I should accept Mrs Arthur’s evidence and that I should find that Mrs Arthur experienced onset of hip pain immediately after the incident.
11. I will first set out the chronology of the onset of symptoms in Mrs Arthur’s left hip before considering in more detail my findings in relation to Mrs Arthur’s credibility.
12. The incident occurred on 14 July 2009. After the incident, Mrs Arthur, who at the time was a registered nurse working in the emergency department of the Western Hospital, made it inside and called the police. She was taken to the police station. She returned home, took some painkillers and went to bed.
13. Early the next morning, she took herself to the emergency department of the Western Hospital. When she was eventually seen, at around 1.20pm, she lied to the medical staff, saying she had been run over by a ute in the supermarket carpark.
14. The clinical records of the Western Hospital state that she reported pain in her right foot, ankle and knee and left ankle and that her right knee was swollen with a tender fibular head, her right ankle was swollen and contused medially, her right foot was swollen and contused dorsally and her left ankle was tender with a swollen medial malleolus. It was suspected that she had suffered fractures at multiple sites. She was referred for an x-ray, which disclosed a transverse left medial malleolar fracture.
15. Mrs Arthur says that she also reported left hip pain to the medical staff at the hospital. However, there is no written record of this in the clinical records of the hospital.
16. Mrs Arthur’s foot was placed in a plaster cast.
17. That evening she went to see a general practitioner (“GP”), Dr Harsha Dias. His clinical notes record that “someone ran over her feet in car park yesterday and has fracture left medial malleolus and severe bruising in feet, in a lot of pain and needing better pain relief”. Mrs Arthur was not run over by “someone” in “a car park”. This was another lie by Mrs Arthur. Dr Dias prescribed Mrs Arthur with opioid pain relief.
18. After a couple of weeks Mrs Arthur reported an increase in pain in her calf muscle. She was ultimately diagnosed with a deep vein thrombosis. Eventually, she was provided with a CAM boot.
19. On 30 July 2009, Mrs Arthur signed a Transport Accident Commission (“TAC”) claim form. That described the incident as follows:
“My husband was driving out of the driveway & I was at the door & slipped at the driveway & he kept driving as he was going out & didn’t realise that I had fallen.”
20. A handwritten annotation by Mrs Arthur adds “He subsequently ran over my legs/feet”.
21. Mrs Arthur listed her injuries in this claim form, handwriting additions to the typewritten “(soft tissue injury)” as follows:
“to R leg & Foot/knee. # [fracture] to left ankle & soft tissue injury to foot & lower leg. Deep Vein Thrombus to left calf”
22. The earliest written record of any report by Mrs Arthur of hip pain is in the clinical notes of GP Dr Shalini Wickramasinghe on 7 July 2010. Dr Wickramasinghe records:
“1. Had a car accident about a year ago. Had a broken left ankle. Since then had pain left knee and ankle. Now pain in the left hip. Sever [sic] and unable to sleep at night…..
Examination:
left [sic] hip/knee good range of movements
rt [sic][2] hip restricted movements and painful
[2]Mrs Arthur suggested under cross-examination that the doctor here must have had left and right confused given their subsequent action of requesting diagnostic imaging to the left hip. I agree.
…
Actions
Diagnostic Imaging requested: Left hip – Pain with limited movements”
23. The x-ray of Mrs Arthur’s left hip requested by Dr Wickramasinghe showed no evidence of degenerative change involving the hip joint and no bone or joint abnormality.
24. A few weeks later, Mrs Arthur went on a holiday to Cairns. On 23 July 2010, she reported to the emergency department at the Cairns Base Hospital with left hip pain on and off for a week. An x-ray of her left hip demonstrated articular space well preserved and the femoral head of normal contour. There were no signs of acute bony injury or focal lesion.
25. A whole body bone scan was performed on 27 July 2010. It provided the first objective indication of abnormality in Mrs Arthur’s left hip. The radiologist stated in his report that: “Delayed phase planar views of the pelvis and hip joints show raised bone tracer uptake in the left acetabulum and left femoral head with appearances most consistent with arthritic degenerative changes”.
26. On 23 November 2010, she saw Dr John G King, a psychiatrist retained by the TAC. He records that she intermittently had pain in both hips, usually one at a time.
27. On December 2011 she attended an appointment with Dr Michael Baynes an occupational physician, retained by the TAC. He records the following history:
“Ms Arthur advises that on the 14/7/2009 she was in the driveway of her property and was attempting to stop her drunken husband from driving away in a car. She attempted to remove the keys from the car however she slipped and fell and her husband drove over both her legs before driving off.
Ms Arthur advises that she had pain in both legs but thought it was bruising only and went to bed. She woke up with severe pain and was taken to hospital the next day. X-rays revealed a fracture of the lateral malleolus of the left ankle. She was placed in a plaster. She had soft tissue bruising to the right foot. After 2 or 3 weeks she reported increasing pain in the calf muscle in the plaster and was ultimately diagnosed with a DVT. She was warfarinised however had difficulty controlling the levels and she was put on heparin. Mrs Arthur advises that the plaster was removed after around eight weeks and she was in a CAM walker for three months….
…Ms Arthur advises that she developed right hip pain whilst using the CAM walker and shortly after this was removed developed left hip pain which has been ongoing. [emphasis added]”
28. By 2014, signs of abnormality in Mrs Arthur’s left hip were just beginning to become apparent in x-rays. An x-ray on 24 June 2014 revealed that the joint space in the left hip was slightly narrowed but there were no other changes that may suggest degenerative arthritis. The right hip was normal. An x-ray on 15 August 2014 revealed mild loss of joint space in the hip joints bilaterally with subchondral sclerosis. However, the articular surfaces were observed to be well preserved in the femoral heads and no femoral bony fractures or lesions were identified. An ultrasound of Mrs Arthur’s left hip was also performed on 30 October 2014. It revealed that the cartilaginous labrum of the acetabular fossa was thickened and that slight cortical irregularity was seen in the femoral neck. The radiologist said that the findings were suggestive of femoral acetabular impingement and that the trochanteric bursa was mildly thickened consistent with bursitis.
29. On 31 October 2014, Mrs Arthur’s GP referred her to Mr Raymond Crowe, an orthopaedic surgeon. In writing the referral, her GP described her presenting problem as “Four years left groin/hip pain following MCA where as pedestrian she was struck on right side of body and landed on cement driveway and sustained left ankle fracture and soft tissue injuries to left knee + hip”. Under cross-examination, Mrs Arthur could not explain why the GP did not record that she had been run over by her husband.
30. Mrs Arthur did not attend Mr Crowe, she says because the referral was as a public patient and the waiting list was very long.
31. On 26 October 2015, a further x-ray was performed which revealed moderative degenerative change involving the left hip joint. The radiologist also observed that there was now substantial loss of joint space superiorly with associated subchondral sclerosis and modest periarticular spurring.
32. On 5 April 2017, Mrs Arthur had an MRI of her left hip. The radiologist concluded that Mrs Arthur had moderate hip joint degenerative change with significant full thickness chondral loss of the anterosuperior femoral head and acetabulum; and that there was also an anterosuperior labral tear with multilobulated paralabral ganglion; mild iliopsoas bursitis; and ligamentum teres degeneration.
33. On 28 November 2017, Mrs Arthur saw Mr Russell Miller, one of the medico-legal orthopaedic surgeons called by Mrs Arthur. He recorded that Mrs Arthur stated that she was standing beside a car having an argument with her husband when he pushed the door open, causing her to fall to the ground and that the husband drove off and the car ran over her legs. Mr Miller records, under the heading “Relationship to Accident”:[3]
[3]PCB 46.
“This is a complex situation. This lady clearly suffered left ankle injury as a directly result of the accident outlined above. She has effectively recovered from that.
The client developed symptoms in the left hip. The onset of those symptoms occurred following the accident. I believe it is likely there was pre-existing disease in the left hip. This has been rendered symptomatic by that accident and further superimposed injury occurred.”
34. On 13 July 2018, Mrs Arthur had her first appointment with Mr Francis Ma, her treating orthopaedic surgeon. Mr Ma recorded that she reported a long history of left hip troubles since 2009, with symptoms worsening. No mention is made in either of his reports that Mrs Arthur told Mr Ma about the incident. He diagnosed end stage osteo-arthritis of the left hip. Given Mrs Arthur was on substantial pain relief and the pain was affecting her day-to-day activities and work, he recommended a total hip replacement.
35. On 15 August 2018, Mrs Arthur saw Mr Michael Dooley, the medico-legal orthopaedic surgeon called by the TAC. Mr Dooley recorded her description of the incident as follows:
“Mrs Arthur stated that on July 14, 2009 her ex partner was driving out of their driveway drunk. She said that she tried to remove his car keys from the vehicle. Mrs Arthur said that her ex partner punched her. She said that she fell under the car. She said that her legs were run over. Mrs Arthur said that the police were contacted. The following day she was taken to Western General Hospital.
She was diagnosed with a fracture of her left ankle. Mrs Arthur said that a plaster was applied to her left leg. She said that subsequently she developed a deep venous thrombosis of her left leg and was placed on blood thinning medication…. Mrs Arthur said that in time she noted increasing pain in her left groin and left buttock areas. Her pain became much more significant from around April of 2017 onwards. [Emphasis added].”
36. The left hip replacement took place on 21 September 2018.
37. Ms Arthur had a review appointment with Mr Ma on 12 November 2018. He recorded that she was making a good recovery.
38. Ms Arthur had another review appointment with Mr Ma on 17 December 2018. He recorded that she was doing great, walking the best she had for some time, wearing high heels and feeling very comfortable.
39. Ms Arthur saw Mr Ma again on 27 March 2019. He recorded that her left hip was very very good, but that over the preceding three or four months she had noticed an increase in right groin pain. He said that Mrs Arthur was keen to consider right total hip replacement. A total right hip replacement was initially booked for 16 May 2019 but this was subsequently changed to 11 July 2019.
40. On 20 June 2019, Mrs Arthur saw Mr Miller for the second time. He records that after the incident Mrs Arthur “attended Western Hospital. Her left leg was placed in a plaster cast for a period of approximately 6 weeks. She states that she has ongoing problems with the left hip and left leg since that time. [Emphasis added]”.
41. Somewhat puzzlingly, given the apparent success of the total left hip replacement as described by Mr Ma, Mr Miller recorded that the left hip continued to be Mrs Arthur’s major problem. He said Mrs Arthur had ache, discomfort and intermittent pain in the left buttock, groin and thigh and that this causes some difficulty with standing and walking and difficulty walking long distances. He said that Mrs Arthur stated that there had been moderate improvement following her left surgery.
42. Even more puzzlingly, given Mrs Arthur had been recently booked by Mr Ma for a total right hip replacement which was then scheduled to occur in a matter of weeks, he also records that she “has only minor symptoms in the right hip”, that “the symptoms are at the minor end of the spectrum and at this time not requiring treatment” and she is “unlikely to require any surgical intervention for her…right hip”.
43. On 11 December 2019, Mrs Arthur saw Mr Kossmann, the other medico-legal orthopaedic surgeon called by Mrs Arthur. He recorded that she reported the following history:
“Ms Arthur told me that she tried to prevent her husband from driving who was intoxicated, during which, she was hit by the 4-wheel drive driven by her husband on 14 July 2009. She fell heavily on her left side. She went to Footscray Hospital….Ms Arthur told me that she told the medical staff that she also suffered from pain in her left hip, however, her left hip was not investigated further and no x-rays were performed at this point in time….
…Ms Arthur told me that since the accident on 14 July 2009 she had increasing pain in her left hip joint [Emphasis added].”
44. As to present complaints, Mr Kossmann recorded that Mrs Arthur “had only minor pain issues affecting her left hip. Since she received the left total hip replacement she can walk pain free again. Mrs Arthur now complained about pain issues in her right hip and right groin. She complains that she is limping and has a changed gait.”
Ms Arthur’s credibility
45. My findings in relation to Mrs Arthur’s credit are somewhat complicated. In giving oral evidence she presented as a straightforward woman who was doing her best to tell the truth. In particular, I accept without hesitation that she was run over by her husband on 14 July 2009, despite a sustained attack on the truthfulness of her account of the incident by senior counsel for the defendant in cross-examination. I observed her to be genuinely surprised, distressed and confused by the suggestion that she had not been run over by her husband. Although Mr Kossmann said he would have expected more severe injuries from such an incident, he did not say that it could not have occurred as Mrs Arthur described. Whilst Mrs Arthur plainly lied on several occasions about this incident to others, I accept that this was because of her reluctance to disclose a very private and traumatic event to strangers and have herself subjected to gossip, particularly (but not exclusively) at her workplace, the Western Hospital.
46. However, there are other reasons to doubt the reliability of the evidence she gave in this proceeding.
47. First, she struggled with dates and to clearly remember events of even one or two years ago. She was also easily confused about years and any questions concerning chronology. For example, she denied any specific recollection of any conversation with Mr Kossmann, who she saw less than a year ago in December 2019, even when reminded of his distinctive German accent.
48. Secondly, the histories she gave to the various doctors she has seen over the last ten years were variable and inconsistent in many respects, in relation to both the precise sequence of events during the incident and in relation to her symptoms afterwards. Partly, this may be explained by her reluctance to describe the incident in full to strangers. Partly, it may be explained by her focus on what she or the doctors considered to be relevant at the time, to the exclusion of other matters. Partly it may be explained by errors in doctors’ record-keeping or understanding. However, given the number of inconsistencies outlined above, a significant part of the explanation must be that Mrs Arthur is not always a reliable historian.
49. Thirdly, despite her lack of recall and confusion at other times, there were times under cross-examination, particularly when she felt challenged or defensive, when she expressed her evidence with complete certainty. For example, she insisted under cross-examination that she had told Mr Miller of her impending right hip surgery and that she could remember doing so,[4] despite at other times insisting she had no recollection of individual conversations with the doctors she had seen in recent years. This assertion was not believable in the context and directly conflicted with Mr Miller’s recorded history. Senior counsel for Mrs Arthur submitted that Mrs Arthur was confused and was referring to a different doctor on a different occasion. This does not meet the point – Mrs Arthur insisted, under oath, that she remembered telling Mr Miller that she was lining up for a hip replacement in the near future. This was not true.
[4]T59, L21-25.
50. Mrs Arthur appeared to genuinely believe that the incident caused her left hip osteo-arthritis. However, it seemed to me that over the years that some of her memories had been reconstructed, perhaps without any intention to deceive, in order to fit in with this belief. This process has no doubt been contributed to by the fact that she had to battle to be believed by the medical profession over the years about genuinely felt symptoms of left hip pain and her anger at their dismissal of her as engaging in drug seeking behaviour.
51. In light of this, I am not satisfied, on the basis of her uncorroborated evidence alone, that she experienced any significant hip pain immediately after the incident. If she had experienced any such pain, I would expect it to have been recorded by her in the TAC claim form; or reported to her GP prior to 7 July 2010. It certainly would have been clearly described to Dr Baynes, the occupational physician retained by the TAC in 2011.
52. However, I accept that onset of the left hip pain pre-dated her reporting it to the GP on 7 July 2010. It is likely that her hip pain commenced at least some time before she felt it necessary to report it to her GP on 7 July 2010. This is also supported by the objective evidence of the whole body bone scan on 27 July 2020. As said by Mr Miller under cross-examination, it is likely that the pathology of the hip pre-dated the bone scan by a period of time.[5]
[5]T91, L28-31.
53. It is also likely that her focus on her hip pain increased as her other symptoms, such as left foot and ankle pain, decreased and she started weight-bearing more.
54. Given the above, I accept that Mrs Arthur was experiencing left hip pain from around the time when her CAM walker was removed.[6] This is consistent with the description that Mrs Arthur provided to Dr Baynes in December 2011 of the onset of her hip pain, which was two and a half years after the incident, when her recollection was much more fresh. To Dr Baynes, she described becoming aware of first right hip pain and then left hip pain, but only after removal of the CAM boot. This appears from the history recorded by Dr Baynes to have been some 4-5 months after the incident.
[6]T132, L22-28.
55. I also accept that Mrs Arthur has had persistent, but variable, left hip pain from that time until her left total hip replacement on 21 September 2018. Complaints by Mrs Arthur of left hip pain are recorded in a number of medical records and reports over the years, including at the Cairns Base Hospital in July 2010; to TAC psychiatrist Dr John G King in November 2010 (albeit of pain in both hips); to Dr Baynes in December 2011; to GP Dr Leslie who wrote a referral to an orthopaedic surgeon in October 2014 and reported four years of left groin/hip pain; to Mrs Arthur’s acupuncturist Peter Ferrigno in 2015; and to GP Dr Wassan Dalaali at the Westgate Health Co-op between 2014 and 2017.
The conflicting opinions from orthopaedic surgeons
56. I turn then to consider the medical evidence, in light of these factual findings.
57. As I noted above, I have before me three different opinions from orthopaedic surgeons as to whether Mrs Arthur’s osteo-arthritis was a consequence of an injury arising from the incident:
a) Mr Miller, an orthopaedic surgeon called by Mrs Arthur, expressed the view that Mrs Arthur had pre-existing asymptomatic disease but that that disease “was aggravated by [the incident]…and further superimposed injury has occurred…[the incident] is a significant contributing factor to the evolution of the disease in the left hip and the requirement for the hip replacement surgery”;
b) Mr Kossmann, a second orthopaedic surgeon called by the plaintiff, expressed the view that the incident caused Mrs Arthur’s osteo-arthritis of the left hip; and
c) Mr Dooley, an orthopaedic surgeon called by the defendant, expressed the view that Mrs Arthur suffered constitutional degenerative osteo-arthritis. In his opinion, Mrs Arthur’s osteo-arthritis was not a consequence of any injury which was a result of the incident.
58. For the reasons which follow, I have concluded that I prefer the opinions of Mr Miller and Mr Kossmann to the opinion of Mr Dooley. As between Mr Miller and Mr Kossmann, I prefer the opinion of Mr Miller.
59. There was much that was agreed between the three orthopaedic surgeons. All the orthopaedic surgeons agreed that lifestyle factors such as trauma could contribute to the development of osteo-arthritis.
60. The orthopaedic surgeons also agreed that whole body bone scans, such as the one Mrs Arthur underwent on 27 July 2010 were non-specific. As said by Mr Miller “the bone scans are useful in determining that something’s happening in the left hip…its says that there’s something happening in the acetabulum and femoral head.”[7] This “something” could have been due to arthritis in Mrs Arthur’s left hip, but it could also be consistent with inflammation from other causes.
[7]T85, L7-12.
61. The principal differences between the three expert orthopaedic surgeons seemed to be first, a difference as to whether there was in fact a relevant trauma to the left hip in this case; and secondly, a difference as to the extent to which lifestyle factors such as trauma could cause or contribute to the development of osteo-arthritis.
62. I have concluded that I prefer the opinions of Mr Miller and Mr Kossmann to the opinion of Mr Dooley on both these issues. It seems to me that they provide explanations for the genesis of Mrs Arthur’s symptoms that fit better with the facts as I have found them. Under their accounts, the ongoing pain in the left hip experienced by Mrs Arthur and the abnormal bone scan in July 2010 was either the original injury to her left hip caused in the incident but not yet healed, or the consequential osteo-arthritis that developed but had not yet become apparent in the x-rays.
63. There is no definitive evidence one way or the other as to whether there was a relevant trauma to the left hip caused in the incident. No radiology of the left hip appears to have been performed at the time. However, Mrs Arthur reported having fallen or been pushed to the ground in the incident. She also specifically reported histories on at least two occasions that were consistent with her having fallen on her left side, once to Dr Simon Leslie on 31 October 2014 and once to Mr Kossmann on 11 December 2019. I have also found that she suffered ongoing left hip pain from around December 2009 until her total hip replacement on 21 September 2018.
64. The earliest investigations of the left hip are the x-ray performed on 7 July 2010 at the request of Dr Wickramasinghe; the x-ray performed on 23 July 2010 at the request of the Cairns Base Hospital; and the full body bone scan performed on 27 July 2010. The x-rays were normal. The full body bone scan was abnormal – it was consistent with arthritic degenerative changes in the left hip, but also consistent with some other inflammatory process in the left acetabulum and left femoral head of the left hip.
65. Mr Kossmann relied in his reports on the history provided by Mrs Arthur that she told the medical staff of the Western Hospital, the day after the incident, about her left hip pain. I have found that I am not satisfied that this occurred.
66. However, in oral evidence Mr Kossmann provided two reasons why Mrs Arthur might not have immediately experienced left hip pain after the incident, consistently with his opinion as to causation:
a) there may have been a slow onset of inflammation; and
b) Mrs Arthur’s symptoms of her left hip may have only come to her attention as her other symptoms resolved.
67. I accept this evidence.
68. Mr Dooley accepts that it is possible that Mrs Arthur suffered an injury to her left hip in the incident. However, in giving his opinion, he assumes that the only relevant injury suffered in the incident was a soft tissue incident to the buttock and that onset of osteo-arthritis is “some years down the track”. As he puts it:
“Suggesting noting buttock pain after her fall correlates with the development of this arthritis nine-year down the track would be a little like saying that if one was to get subcutaneous and muscular bruising in the region of the chest consequent upon seat belt activation in an accident and if one-had a myocardial infarct eight or nine years later, then the two conditions are in some way related.”
69. Mr Dooley’s account seems to assume a soft tissue injury to the buttocks which resolved and then subsequent unrelated development of osteo-arthritis years later. However, this account does not provide an explanation for the continuity and progression of symptoms, which I have found occurred as a matter of fact, in Mrs Arthur’s left hip from at least late 2009 onwards. It also does not provide an explanation for the abnormal bone scan on 27 July 2010.
70. Mr Dooley also relies upon the bilateral development of osteo-arthritis. However, I prefer the evidence of both Mr Miller and Mr Kossmann on this point, to the effect that the lack of temporal nexus in the development of the osteo-arthritis lessens the significance of this factor.
71. I had the opportunity to observe both Mr Miller and Mr Kossmann under cross-examination. In my view their evidence was not shaken by cross-examination. I found them to be impressive and knowledgeable witnesses, who took care to explain the basis of their opinions and the uncertainties and assumptions involved in the formation of those opinions.
72. Mr Miller and Mr Kossmann themselves had somewhat conflicting views. Mr Miller was of the view that there was a constitutional degenerative condition which was rendered symptomatic and worsened by the incident. Mr Kossmann was of the view that the osteo-arthritis was independently caused by the incident. Whilst Mr Kossmann’s opinion has the benefit of simplicity, between the two, I prefer the opinion of Mr Miller. He frankly recognised the uncertainties in his opinion and the complex and multi-factorial nature of the development of osteo-arthritis. His opinion seems the more realistic position in relation to the difficult issue of the impact of lifestyle factors on the development of osteo-arthritis. His opinion is also supported by the objective evidence, in that Mrs Arthur subsequently developed osteo-arthritis in her right hip.[8]
[8]Senior counsel for the plaintiff expressly disclaimed any reliance on the osteo-arthritis in the right hip having been caused by altered gait due to the left hip.
73. In conclusion, I accept that Mrs Arthur had a pre-existing but asymptomatic constitutional degenerative condition of her left hip. I find that the incident aggravated and accelerated that condition and triggered it to become symptomatic. In Mr Miller’s words “It is likely that that disease was aggravated by the accident outlined above and further superimposed injury has occurred”[9].
[9]PCB 54.
Has Mrs Arthur suffered a serious injury?
74. Mrs Arthur is 63 years old. In about February or March[10] this year she left Melbourne to travel around Australia with her 66 year old husband in a caravan. At the time of the hearing, she was working in Alice Springs as a critical care nurse in intensive care and emergency at the Alice Springs Hospital. She has a 12 month contract, but works variable hours, anything from zero to 40 hours per week.
[10]In her affidavit, she said it was February 2020. Under cross-examination she said it was March 2020.
75. Mrs Arthur returned to working as a nurse a few months after the incident. However, her evidence is that the pain in her left hip over the years reduced her capacity to work in her chosen profession. She found the distances which she had to walk increased her pain.
76. Mrs Arthur had a total left hip replacement in September 2018. She said that even after the left total hip replacement she is still not able to sustain full-time employment. She says that she has not worked more than 0.8 of full-time hours since the incident.[11]
[11]T137, L29-31.
77. Mrs Arthur said that her left hip symptoms continue to prevent her doing activities such as horse-riding and swimming and that they place limits on her ability to do house-work and gardening.
78. Senior counsel for the defendant submitted that Mrs Arthur had not suffered a serious injury. He submitted that at most what had occurred was an acceleration of the requirement for a total left hip replacement. He submitted that the total left hip replacement had been successful. He submitted that, in any event, the right hip replacement also limited Mrs Arthur’s work capacity and activities.
79. Senior counsel for the plaintiff submitted that before the incident Mrs Arthur’s left hip was asymptomatic and not incapacitated to any extent, but after the incident it was. The impairment to Mrs Arthur’s left hip was therefore a result of the incident.
80. In the end, Mrs Arthur must satisfy me that she has suffered an injury as a result of the incident and that the impairment consequences of that injury are serious in the relevant sense. In order to do so, I must compare the condition of Mrs Arthur’s hip with the condition of her hip before the incident and assess the additional impairment caused.[12]
[12]Petkovski v Galletti [1994] 1 VR 436.
81. I am satisfied that prior to the incident, Mrs Arthur had an asymptomatic degenerative condition in her left hip and that her left hip became symptomatic as a result of the incident. It has been held that in such circumstances the evidential burden rests upon the defendant to establish the probable future course of the pre-existing condition.[13] There is a paucity of evidence on this issue. As Mr Miller put it, the development of osteo-arthritis can be complex and multifactorial. We are concerned here with a hypothetical. However, Mr Miller accepted under cross-examination that there was a “likelihood that the left hip would have proceeded down that path at a variable rate, but I think it is also likely that the accident has caused a precipitation or aggravation of the disease…that accounts for the relatively earlier presentation of the left hip compared to the right hip.”
[13]Petkovski v Galletti [1994] 1 VR 436 at 443-444; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 at [5] (Winneke P).
82. On the basis of Mr Miller’s evidence, I accept that it is likely that Mrs Arthur would have “at some stage”[14] developed osteo-arthritis in her left hip of such severity that a total hip replacement would be required had the incident not occurred. The progression of osteo-arthritis in Mrs Arthur’s right hip provides some evidence of when this would have occurred. Mrs Arthur did not experience any significant pain in her right hip until 2019 (nearly ten years after the onset of pain in her left hip). Mrs Arthur subsequently had a right total hip replacement in January 2020. However, I accept Mrs Arthur’s evidence that she was keen to have the right hip replacement earlier than might otherwise have been required because of her negative experience with her left hip. Her evidence in this regard is corroborated by the report of her treating orthopaedic surgeon, Mr Francis Ma, that “Susan was then keen to consider right total hip replacement” and Mr Miller’s clinical observations in relation to the mild symptoms in Mrs Arthur’s right hip.
[14]T90, L23 (cross-examination of Mr Miller).
83. It is not possible state with precision if and when Mrs Arthur would have required a total left hip replacement had the incident not occurred. However, in light of the onset of pain in the left hip in late 2009 and the fact that Mrs Arthur had the right total hip replacement in January 2020, but earlier than she might otherwise have had, I am satisfied on the balance of probabilities that the incident had the effect of accelerating the need for a left hip replacement by at least a few years.
84. Having made this finding, I have concluded that the impairment consequences suffered by Mrs Arthur are very considerable and certainly more than significant or marked, for the following reasons:
a) Firstly, I have found that Mrs Arthur has suffered pain in her left hip since late 2009. This pain has increased over the years to the point where it was constant and severe enough to justify a total left hip replacement. Mrs Arthur did not report any significant right hip pain until early 2019, after her total left hip replacement. Although it is not possible to state with precision when Mrs Arthur if and when would have commenced to suffer left hip symptoms if the incident had not occurred, I am satisfied on the balance of probabilities that she has suffered at least nine years of pain in her left hip as a result of the incident. Senior counsel for the defendant accepted that this past pain should be taken into account in determining whether Mrs Arthur’s injury was serious;
b) I accept that the pain in Mrs Arthur’s left hip was severe enough at times to require significant pain-relieving medication; and to limit her capacity to perform activities such as swimming, horse-riding, driving, gardening and house-work and to interfere with her intimate relations with her current husband;
c) I also accept that the pain was significant enough to limit her capacity to work full-time in her chosen profession. The Transport Accident Act 1986 (Vic) does not require the formulaic approach of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) to the comparison of income earning capacity with and without injury. I am satisfied that Mrs Arthur’s left hip impairment her prevented her working more than 0.8 of full-time hours for many years, and that this has been a considerable pecuniary disadvantage to Mrs Arthur;
d) The osteo-arthritis in Mrs Arthur’s left hip was serious enough to require a total left hip replacement on 21 September 2018. This was at least a few years earlier than she would otherwise have had to have a total left hip replacement. The bringing forward of significant surgery by a few years, at Mrs Arthur’s age, is a significant consequence for Mrs Arthur. It has also increased the chance that she will need a second left total hip replacement in her lifetime, with the increased risks that a second total hip replacement entails;
e) The total left hip replacement was very successful and lead to a significant reduction in the pain experienced by Mrs Arthur. However, I also accept that Mrs Arthur continues to experience limitations on her activities as a result of ongoing pain specifically in her left hip (and the threat that the pain will worsen) and will do so for the foreseeable future. She has now also had a total hip replacement in her right hip, but I accept that it is the left hip, and the threat of worsening pain in that hip, that causes Mrs Arthur’s ongoing limitations. This includes limits on activities such as house-work, gardening, dancing, horse-riding and swimming. Mrs Arthur may be 63 years old, but she clearly remains energetic and determined to experience life to its fullest. She quite reasonably objected to senior counsel for the defendant’s description of her as a “grey nomad”. I accept that the condition of Mrs Arthur’s left hip creates a frustrating limitation on Mrs Arthur’s capacity to enjoy her preferred lifestyle; and
f) I also accept that her left hip, specifically, continues to prevent Mrs Arthur from working consistent full-time hours as an emergency department nurse. Mrs Arthur’s evidence in this regard is supported by the evidence of Mr Miller and Mr Kossmann in relation to the likely ongoing restrictions of someone who has undergone a total hip replacement, and their clinical observations. It also finds support in the comment by Mr Dooley (albeit prior to her total hip replacements) that “I do not believe that she is exaggerating her presentation in any way.”[15] This reduction in her capacity to work consistent full-time hours has in turn interfered with her capacity and flexibility to work (and fund her travels and retirement) as she wishes in what may be the last few years of her working life.
[15]DCB 8.
84. Having considered all of the above matters, I am satisfied that Mrs Arthur has suffered a serious injury as a result of the incident. I will hear from the parties on the question of costs.
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Certificate
I certify that these 21 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 14 December 2020.
Dated: 14 November 2020
Jane Le
Associate to her Honour Judge Tran
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