Chatzikiriazis v Transport Accident Commission
[2018] VCC 324
•23 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03139
| EFSTRATIA CHATZIKIRIAZIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2018 | |
DATE OF JUDGMENT: | 23 March 2018 | |
CASE MAY BE CITED AS: | Chatzikiriazis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 324 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – paragraph (a) of the definition of “serious injury” – injury to spine and injury to left knee – disentanglement
Legislation Cited: Transport Accident Act 1986, s93(4)(d); Limitation of Actions Act 1958 (Vic), s23A; Health Records Act 2001
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2001) 1 VR 79; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: The plaintiff’s application to bring proceedings for damages in relation to the injuries sustained in the transport accident on 21 November 2006 is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr P Lamb | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G Lewis QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for the injuries suffered by her arising out of a transport accident which occurred on 21 November 2006 (“the transport accident”).
2 In addition, the plaintiff sought an abridgement of time pursuant to s23A of the Limitations of Actions Act 1958 (Vic) from 21 November 2012 to the date of the Originating Motion. Counsel for the defendant conceded that application. Accordingly, I will not address that issue.
3 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
4 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There, “serious injury” means –
“(a) serious long-term impairment or loss of a body function.”
5 The loss of a body function relied upon in this application is the left knee and in the alternative, the spine. Counsel for the plaintiff accepted that both body functions had to be considered separately.
6 The plaintiff seeks leave to issue proceedings at common law.
7 The plaintiff relied upon three affidavits sworn by the plaintiff on 18 October 2016, 19 December 2017 and 9 March 2018. I have not summarised the plaintiff’s affidavits or her evidence; however, I will refer to the relevant evidence in my reasoning.
8 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
9 The Court must not give leave unless it is satisfied on the balance of probabilities:
(a)That the injury suffered by the plaintiff was as a result of the transport accident;
(b)That the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
10 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[1][1992] 2 VR 129
[2]Humphries & Anor v Poljak (supra) at 140
11 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function.[3]
[3]Richards v Wylie (2001) 1 VR 79
12 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
13 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
14 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6](Supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
15 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[7] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve serious long-term impairment of that body function.
[7](Supra) and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
16 Where the claimant has an injury with numerous consequences, he or she must establish, at the time of applying for leave, that the injury which has been caused by or is the result of the accident is a serious injury.
The issues
17 Counsel for the defendant submitted that the following issues arise.
(a) There is an issue of disentanglement. The plaintiff claimed injuries to the left shoulder, left knee, right knee and the spine. Any spinal injury impairments are interwoven with the impairments from the other physical injuries;
(b) The spinal impairment taken alone does not meet the test of seriousness; and
(c) Whether the injury to the left knee is constitutional and age-related or relates to the transport accident. If related to the transport accident, an issue of disentanglement is required. In any event, the consequences of the left knee injury do not meet the test for seriousness.
Background
18 It was not in dispute that the plaintiff was involved in a transport accident in which she was the driver of a motor vehicle in Blackburn Road on 21 November 2006. In her affidavit, the plaintiff swore that the transport accident occurred when she was driving north along Springvale Road. It was accepted by all parties that the transport accident occurred in Blackburn Road as per the police report.
19 The plaintiff’s evidence was that she and her mother-in-law were taken by ambulance to the Box Hill Hospital.
20 Counsel for the defendant submitted that there was no record of the plaintiff’s attendance at the Box Hill Hospital, and relied upon a letter from Eastern Health (Box Hill Hospital) dated 10 January 2017, which stated there were no records held by Eastern Health for the plaintiff. Further, that a police report prepared around the time of the transport accident indicated that the plaintiff’s mother-in-law was taken to the Austin Hospital. There was no record of the plaintiff being taken by ambulance to any hospital.
21 I accept the submission of counsel for the plaintiff that the relevant legislation, the Health Records Act 2001, in Schedule 1, requires that medical records be retained for a period of seven years. In this case, seven years would have expired in 2013. Further, I place reliance on the Transport Accident Commission form completed by the plaintiff immediately after the transport accident, and dated 11 December 2006, where she was asked and answered the following questions:
“28. Were you transported by ambulance from the accident scene?
Yes.
29. Were you taken to hospital?
Yes.
Hospital name
Box Hill Hospital
Date admitted
21/11/06
Have you been discharged from hospital?
Date discharged
21/11/06.
30. List all your transport accident related injuries
1. Back pain
2. Neck pain? whiplash
3. Bruising
4. R shoulder.”[8]
[8]Plaintiff’s Court Book (“PCB”) 32
22 For the abovementioned reasons, I accept counsel for the plaintiff’s submission that the proper inference to be drawn is that the plaintiff is not inventing her attendance at the Box Hill Hospital.
23 The plaintiff’s evidence is that she attended upon her general practitioner on 20 December 2006, when she reported the transport accident and complained of neck pain and stiffness, left shoulder pain and left lateral knee pain, and dizziness. Between December 2006 and August 2008, the plaintiff attended her general practitioner, Dr Malka Gordon, intermittently complaining of a range of issues unrelated to the transport accident. Between July until mid-August 2008, the plaintiff complained of spontaneous left knee pain to her general practitioner over three days. She was prescribed Mobic and Panamax. The plaintiff’s evidence was that on 29 July 2008, she attended the Emergency Department of Monash Medical Centre. The knee was x-rayed. No abnormality was detected and the plaintiff was prescribed Panamax and Nurofen. On 1 August 2008, in a letter to the plaintiff’s solicitor, Dr Gordon confirmed that the plaintiff had not presented to the surgery with any further complaints relating to injuries suffered in the transport accident following her report of 28 March 2007.[9] On 7 August 2008 and 11 August 2008, she reported pain in her left knee to her general practitioner. In late August 2008, she reported that she would be leaving Australia in ten days. The evidence is that the plaintiff emigrated with her husband to Greece, where they resided until 2015.
[9]PCB 129
24 The plaintiff’s evidence is that while she was in Greece she had ongoing pain in her neck and upper and middle back, into her left shoulder. The major problem was her left knee, and most of the treatment was for her knee.[10] She suffered a swollen left knee and when she was on her feet for a long period of time she suffered pain, which worsened on weight bearing. She received physiotherapy treatment approximately six times each year[11] for her knee, neck, upper and mid back, and attended the natural hot springs in Lesbos. She was hospitalised for a period of four weeks. She regularly took medication of Voltaren tablets, and a small green tablet which she believes was to assist with the pain. She returned to Australia in September 2015.
[10]PCB 21b
[11]PCB 21b
25 The plaintiff relied upon a medical report from Dr Doukas Zeimpekis, general practitioner, in Kalloni, Greece. Dr Zeimpekis confirmed that he monitored the plaintiff for her chronic health issues and her acute conditions for the period 2008 to 2015. He reported that the plaintiff attended for her nervous condition and the musculoskeletal system of her left upper and lower limb and cervical spine, which she reported were caused by a previous transport accident. She was prescribed anti-inflammatory and pain-relieving medication. The report makes no mention of the plaintiff being hospitalised for four weeks.
26 From 3 December 2015, the plaintiff continued to consult with her general practitioner, Dr Gordon, who prescribed medication for her complaints. In December 2015, Dr Gordon wrote to the plaintiff’s solicitor reporting that the plaintiff’s complaints related to her lumbar and cervical spine. There was no mention of the plaintiff’s knee injury. There is no record of the plaintiff complaining to her general practitioner in relation to left knee pain since her return from Greece until 13 October 2016, where the plaintiff complained of recurrent pain and stiffness in her cervical spine and left knee as a result of the transport accident.
Credit
27 The plaintiff gave evidence through a Greek interpreter and attended medico-legal appointments with the assistance of a professional interpreter, save for her first visit to Mr Charles Flanc, vascular and general surgeon, where her husband acted as the interpreter. Mr Flanc noted that she spoke limited English. In re-examination, the plaintiff confirmed that her husband acted as interpreter when she attended her general practitioner. However, the medical records of the general practitioner record that the plaintiff’s husband was in prison for a period in November 2007. There was no evidence as to who acted as interpreter at that time. I take into account, for a period, she probably attended her general practitioner without the assistance of an interpreter.
28 In Court, the plaintiff was attempting to recall events that occurred twelve years ago. I took the view that she could not possibly remember what she was telling her general practitioner at medical appointments twelve years ago. I am heavily reliant upon what records were maintained by the general practitioner at the time of consultations.
29 The plaintiff gave her evidence in a straightforward manner. She agreed that she had only spoken to Dr Robert Lefkovits, consultant physician, about her left knee and her left shoulder. Given the elapsed period of time, I concluded she was doing her best to give an honest account of her recollection of events.
Analysis of the evidence
30 It was not in issue that the plaintiff was involved in a transport accident on 20 November 2006. In March 2007, Dr Gordon reported to the plaintiff’s solicitor that the plaintiff had presented on 20 December 2006 complaining of neck pain and stiffness, left shoulder pain, left lateral knee pain and dizziness. She diagnosed a soft-tissue injury, and symptomatic analgesia was prescribed. It was her view that the long-term prognosis was expected to be good.
31 The plaintiff’s evidence was that the left knee injury was the most significant of her injuries. I shall now consider whether the left knee injury is a “serious injury”.
The left knee injury
Current medical evidence
32 The current medical evidence is expressed by Dr Gordon, general practitioner, Mr Flanc, Mr Thomas Kossmann, orthopaedic surgeon, and Dr Lefkovits.
33 In July 2008 and June 2016, Mr Flanc examined the plaintiff at the request of the plaintiff’s solicitor. In June 2016, he said the exact diagnosis is a little uncertain, but her clinical examination suggests she has a mild to moderate arthritis affecting the left knee. In particular, there was a slight flexion contracture (she was unable to fully straighten the leg), and the left knee felt quite bulky when compared to the right knee. He noted there was 1.5 centimetres of wasting of the muscles of her left lower leg, which would be consistent with disuse. He suggested that the clinical notes of her admission on the day of the accident at the Box Hill Hospital should be obtained to determine whether there was evidence of trauma to the left knee. He was aware the plaintiff had been admitted to the Emergency Department at the Monash Medical Centre in July 2008 and the notes referred to a painful swollen knee. It was suggested she be referred to a rheumatologist if her symptoms continued. There was no evidence that the plaintiff consulted a rheumatologist.
34 Mr Flanc did not have access to any radiological investigations of the plaintiff’s left knee. It was his view that the plaintiff sustained a blow to the left knee, causing some local bruising and an aggravation of pre-existing arthritis, in the sense that it became symptomatic, and remains symptomatic. He said the diagnosis was not quite clear because of the flare-up of severe pain in July 2008 when the plaintiff attended the Emergency Department at the Monash Medical Centre. He recommended that additional information be obtained and he would comment further on the relationship between the transport accident of 2006 and the condition of her left knee.[12] Mr Flanc was not provided with the MRI scan performed in October 2016.
[12]PCB 150
35 In October 2016, the radiologist described a multi-compartment osteoarthritis and a degenerative tear in the medial meniscus of the left knee.[13]
[13]PCB 199
36 In November 2017, Mr Kossmann examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported left knee pain which became more severe in July 2018. Mr Kossmann obtained a history that while in Greece, she had ongoing pain in her left knee. She consulted Dr Zeimpekis at the Health Centre of Kalloni, in Greece. In October 2016, the plaintiff underwent an MRI scan of the left knee. The radiologist described multi-compartment osteoarthritis and a degenerative tear in the medial meniscus of the left knee. The plaintiff reported taking Panadol or Panadeine Forte if needed.[14] On examination, he said the plaintiff had stable ligaments on the medial and lateral side, anterior cruciate ligament is stable, and the plaintiff has signs of a patellofemoral friction on the left side.[15] He diagnosed multi-compartment osteoarthritis in the left knee causing retropatellar pain and movement restrictions.[16] He said the plaintiff’s prognosis of the left knee is guarded and she will require further treatment in the form of pain medication and anti-inflammatories. He did not think physiotherapy or hydrotherapy will improve her condition. He said she was at risk that she may have to undergo a total knee replacement in her left knee.[17] He thought there was a direct relationship between the transport accident and the left knee injury.[18] He thought the plaintiff’s left knee injury had substantially stabilised.[19]
[14]PCB 183
[15]PCB 185
[16]PCB 187
[17]PCB 188
[18]PCB 190
[19]PCB 192
37 In December 2017, Dr Gordon reported that the left medial knee pain was due to medial compartment osteoarthritis which may be partially related to the transport accident in 2006. She reported that the knee pain had been symptomatic on and off, and is being treated conservatively. The prognosis for the left knee pain is guarded and may become a recurrent problem impacting on her quality of life.[20]
[20]PCB 134
38 In February 2018, Dr Robert Lefkovits, consultant physician, examined the plaintiff at the request of the defendant. On inspection of the left knee, he said there was no deformity or effusion. On measurement, there was no wasting of the lower limb 10 centimetres above the kneecap on the left compared to the right. He said she had a slight restriction of flexion of the left knee, but full extension. She was tender over the medial and lateral joint lines.[21] He noted that the x-ray of the left knee performed in 2008 at the Monash Medical Centre revealed no abnormality. The MRI scan performed on 20 October 2016 of the left knee confirmed multi-compartment osteoarthritis with no signs of bony injury, and a degenerate tear of the medial meniscus. It was his view that the plaintiff had suffered age-related degenerative changes in the left knee which are constitutional and in no way related to the traffic accident. He said it is unlikely that she suffered any significant injury to any major structures in the road traffic accident apart from soft-tissue bruising. Further, her current symptoms would be no different had she not been involved in the road traffic accident. It was his view there was a significant non-organic component to her complaints and disability.[22]
[21]Defendant’s Court Book (“DCB”) 2
[22]DCB 3
39 In summary, Dr Gordon said the left medial knee pain is due to the multi-compartment osteoarthritis, which may be partially related to the transport accident in 2006. Mr Kossmann said the plaintiff had a diagnosis of osteoarthritic changes in her left knee.[23] Mr Kossmann said there was a direct relationship between the transport accident and the diagnosed injuries,[24] but did not explain the relationship. Dr Lefkovits said the MRI scan of the left knee performed in October 2016 confirmed multi-compartment osteoarthritis with no signs of bony injury and a degenerate tear of the medial meniscus. It was his view that the plaintiff is currently suffering age-related degenerative changes in the left knee, which are constitutional, and in no way related to the transport accident. Mr Flanc was not provided with the MRI scan. Based on clinical examination, he suggested she had mild to moderate arthritis affecting the left knee. He accepted it was possible she sustained a blow to the left knee causing some local bruising and an aggravation of a pre-existing arthritis, in the sense that it became symptomatic and remained symptomatic.[25] She reported to Mr Flanc that she did not suffer from pain in the left knee before the transport accident. I accept the evidence of Mr Flanc. I acknowledge he did not have the MRI scan. He has obtained a detailed history, which is consistent with the history of the general practitioner and is supported by Mr Kossmann. Accordingly, I accept that the nature of the injury the plaintiff suffered is most likely an aggravation of a pre-existing arthritis, in the sense it became symptomatic, and has remained so. This is consistent with the general practitioner.
[23]PCB 187
[24]PCB 190
[25]PCB 150
Aggravation injury
40 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJ in Petkovski v Galletti,[26] said the task of the court is to analyse the extent of the impairment of the body function before and after the relevant injury. The court said:
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment … .”
[26](Supra) at 443
41 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a serious long-term impairment or loss of body function.
42 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the transport accident is serious and long term.
43 I accept that prior to the transport accident, the plaintiff made no complaints of knee pain. I accept that as a result of the transport accident, the extent of the additional impairment the plaintiff has suffered is an aggravation of a pre-existing arthritis, in the sense that it has become symptomatic and remained symptomatic.
Consequences
44 It is now necessary for me to consider whether the additional impairment resulting from the transport accident to the plaintiff’s left knee is “serious”. I turn, now, to consider the consequences to this particular plaintiff. However, I am mindful that the plaintiff was complaining to her general practitioner, and to other doctors, of pain in her spine and left knee. There were occasional references to her general practitioner of left shoulder and right knee pain. In Peak Engineering & Anor v McKenzie,[27] the Court said:
“… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury … .
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary.”
[27][2014] VSCA 67 at paragraphs [24]-[25]
45 In this case, certain of the pain and suffering consequences were attributable to the left knee injury as well as the spine injury. However, adopting what the Court of Appeal said, there were a number of consequences which would be clearly distinct and separate from consequences of the other injury, which I will address below.
Pain
46 The plaintiff’s evidence is that she has an ache and stiffness in her knee all the time, but now gets more frequent sharp pains in the knee. This occurs, on average, every two to three days. The sharp pain usually takes about thirty minutes to settle. Rubbing the knee can help, and she sometimes uses extra Voltaren cream. The medical records of the plaintiff’s general practitioner were before the Court. They do not disclose the plaintiff reporting ongoing left knee pain as a result of the transport accident. In fact, the last mention of the transport accident was in October 2016. At that time, the plaintiff reported “recurrent pain and stiffness in cervical spine and left knee since the transport accident and takes Panadol and Endep”.[28] I accept the level of pain the plaintiff describes is clearly relevant to the left knee injury alone, which I accept is at the low end of the range.
[28]DCB 58
Treatment/medication
47 The plaintiff’s evidence is that she consults her general practitioner about once per fortnight. The medical records before the Court indicate that the plaintiff consulted her general practitioner in September 2017, and the reason for the visit was left shoulder rotator cuff tendonitis, for which she received a prescription for Panadeine Forte. Prior to that visit, the last visit in which she mentioned the transport accident was in October 2016, when she reported recurrent pain and stiffness in respect to her cervical spine and left knee following the transport accident in 2006. The plaintiff was referred to have a MRI scan on her cervical spine and left knee. She was taking Panadol and Endep. I accept that the plaintiff may attend her general practitioner once per fortnight; however, the records before the Court do not disclose that she is currently attending for left knee pain on a regular basis. In a report dated December 2017, Dr Gordon said of the knee, it is symptomatic “on and off” and is being treated conservatively. I accept any treatment the plaintiff received for her left knee is “on and off”. I rely on Dr Gordon’s report of December 2017.
48 The evidence is that Dr Gordon had prescribed Panadeine Forte on three occasions for unrelated conditions: in July 2016 for right trochanteric bursitis; in May 2017 for rotator cuff tendonitis, and in September 2017 for myalgia. Mr Kossmann obtained a history that the plaintiff takes Panadol or Panadeine Forte if needed. Mr Awad obtained a history of treatment of Panadeine Forte alternating with Panadol on a regular basis, and Endep prescribed by Dr Gordon for pain. The plaintiff swore, in her most recent affidavit, that she now takes Panadeine Forte at least several days a week for her left knee pain. She usually takes it in the evening to help her sleep. She uses a packet of twenty Panadeine Forte in about a month. She tries to avoid taking Panadeine Forte as it upsets her stomach and makes her constipated. The plaintiff deposed to taking six tablets of Panamax per day, which she substitutes for Panadeine Forte. I accept that the plaintiff takes Panadeine Forte, which has been prescribed for other unrelated conditions, on occasions, for the left knee pain. However, the plaintiff’s evidence in relation to the prescription of Panadeine Forte is confusing. Otherwise, the evidence is that her medication for the left knee injury is limited to Voltaren cream, Panadol and Panamax, as required.
49 The plaintiff reported to Mr Awad that she attends the physiotherapist weekly. In her most recent affidavit, she swore that she attends a physiotherapist around once per week. Given the plaintiff’s failure to seek treatment for her left knee injury from Dr Gordon in the past, and the most recent report from him notes that her left knee is symptomatic “on and off”, I am reluctant to accept that the weekly physiotherapy and fortnightly attendances on him are a consequence of the left knee injury alone.
50 Given the evidence of Dr Gordon that the plaintiff’s left knee is symptomatic “on and off” and is being treated conservatively, I accept that the level of medication and treatment for the left knee injury alone is at the low end of the scale.
Exercises
51 The plaintiff’s evidence is she performs exercises for her ongoing left knee pain. She was shown the exercises by a physiotherapist in Greece. She performs her exercises daily, which involves sitting on a couch and putting her hands under her left upper leg, just above the knee, and then gently flexing the knee as far as she can. She does ten repeats of this exercise. I accept that the exercises she described are performed for the left knee injury alone. I accept that the level of exercise that the plaintiff performs is a consequence I can take into account, which I assess at the low end of the range.
Gardening
52 The plaintiff’s evidence was that her husband did most of the gardening, but that she enjoyed planting and picking flowers. She no longer can do this because of the knee pain. There was no evidence as to how often she performed this activity. I accept this is a consequence I can take into account, which I assess as at the low end of the range. I accept this is a consequence of the knee injury alone.
Hospitalisation
53 The plaintiff’s evidence is that while in Greece she was in hospital for four weeks. There is no medical report to support this evidence. There was a report from a general practitioner who treated the plaintiff while in Greece. There was no reference in the report to the plaintiff being hospitalised. As this is not a current consequence, I do not take it into account.
Household chores
54 The plaintiff’s evidence is that she gets assistance from the local council with the heavier household chores. She has assistance for two hours a fortnight, with the heavier vacuuming and cleaning the bathroom. I accept that this is a consequence that relates to her left knee alone, which I can take into account. I accept this is at the low end of the range.
Knee replacement
55 Mr Kossmann was the only medical witness to suggest that the plaintiff was at risk of requiring a total knee replacement. Given that the other medical witnesses did not address this as a risk, I accept that they consider it unlikely. In view of Mr Kossmann being the only witness to address it, I accept this is at the low end of the range.
Limping
56 Counsel for the plaintiff’s submission was that the plaintiff now limps. Certainly the plaintiff limped as she entered the witness box. The only medical witness to comment on limping was Mr Flanc, who reported, on both occasions, the plaintiff was not limping. Mr Flanc reviewed the plaintiff on 30 July 2008 and 14 June 2016. The report from Southern Health dated 29 July 2008, the day before the plaintiff’s attendance with Mr Flanc, noted:
“Presenting complaint: left knee pain and swelling for last 1/52. able to weight bear but limping on left side … .”[29]
57 Mr Awad said the plaintiff walked with a relatively normal gait.
58 I accept that the plaintiff limps on occasions. In light of the conflicting evidence, I assess this consequence relates to the knee injury alone and is at the low end of the range.
Sleep
59 The plaintiff says, when trying to sleep, she tries to avoid rolling onto her left side, as the pressure on the knee is uncomfortable. She tries to lie on her right side with a pillow between her knees to limit the right knee rubbing on her left knee. She wakes most nights because of left knee pain. When she wakes, she usually gets up and sits on the side of the bed and flexes and stretches the left leg to free the knee up, as shown by her physiotherapist in Greece. I accept that the plaintiff’s sleep is affected by the left knee pain alone. However, I note that the plaintiff was taking sleep medication prior to the transport accident and has been prescribed sleep medication subsequent to the transport accident, but for other conditions. I accept that this is a consequence that I can take into account. I accept that it is in the medium range.
Stiffness
60 The plaintiff’s evidence is that in the mornings her knee is stiff, but not so painful. She walks around the house to stretch the knee. It gradually worsens during the day and is worse in the evening. This is particularly so during the colder months. I accept that the plaintiff suffers stiffness in the knee which is a consequence related to the knee injury alone.
Stairs
61 The plaintiff reported to Mr Flanc that she has difficulty climbing stairs. She reported no episodes of giving way of the left knee.[30] I accept that this a consequence to the knee injury alone.
[30]PCB 144
Squatting/kneeling
62 The plaintiff said she cannot fully squat on her left knee/leg and cannot kneel on her left knee at all because of increasing pain. When at home, she prefers to sit on the couch with her left leg on the couch so that the left knee is raised. It is better if the leg is straight, rather than the knee being locked. When she gets up from the sitting position she tries to take most of her weight on her right leg. In his report dated 14 June 2016, Mr Flanc notes that the plaintiff was able to squat both knees to 60 degrees.[31] I accept that these are consequences to the knee injury alone, which I can take into account, and I assess this consequence in the middle of the range.
[31]PCB 146
Showering
63 The plaintiff’s evidence is that she now sits on a stool to shower. The standing and balancing while washing would be too painful for her left knee. She worries about slipping and straining the knee. I accept this is a consequence to the knee injury alone, which I can take into account.
Walking
64 Mr Awad obtained a history of left knee pain with a maximum walking time of fifteen minutes. Mr Flanc obtained a history of severe pain in the left knee which is aggravated by walking for longer than five minutes. I accept that the plaintiff’s walking is affected by her knee injury somewhere between five and fifteen minutes. I accept that this is a consequence of the knee injury alone.
Application of Richards v Wylie[32] – mental component
[32](2001) 1 VR 79
65 The plaintiff’s evidence was that she has found it emotionally hard to cope with the difficulties she has encountered with her left knee.
66 The plaintiff was medically examined by Dr Kornan, psychiatrist. He noted that the quality of her life has diminished. There is quite a difference, now, with her experiencing significant problems in her confidence levels and her self-esteem.
67 In accordance with Richards v Wylie, a “serious injury” can have its “seriousness” measured, in part, by a mental response to a physical impairment. Accordingly, I accept that this is a consequence I can take into account.
68 Based on my above assessment, I accept that, as a result of the transport accident, there have been some consequences to this plaintiff of an impairment to her left knee. Taking all the evidence in account, I am not satisfied that the plaintiff has established that the consequences of her left knee injury meet the test. I accept the plaintiff has suffered an impairment to her left knee. I accept that the injury has had consequences to her which are significant or marked. However, I am not satisfied that when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being more than significant or marked, and as being at least very considerable.
69 Accordingly, I dismiss the plaintiff’s application in respect to a serious injury for the left knee. I will now consider whether the plaintiff can establish a serious injury in respect to the spine.
The Spine
70 In July 2016, the plaintiff underwent a CT scan of the lumbar spine which disclosed a mild annular disc protrusion with no significant canal narrowing at the L2-3 level, a mild annular disc protrusion at the L3-4 level, and a slightly thickened ligamentum flavum producing mild canal stenosis at L3-4 level. At the L4-5 and L5-S1 levels, the radiologist described annular disc protrusion, with the L4-5 disc protruding into the right L4-5 lateral recess.
71 In October 2016, an MRI scan of the cervical spine showed that the plaintiff was suffering from non-compressive disc bulges at C2-3, C3-4 and C4-5 levels. At the C5-6 level, the radiologist described a broad-based disc bulge contacting and minimally effacing the anterior margin of the thecal sac.
72 Mr Kossmann diagnosed:
“1. Lumbospondylosis in the form of multi-level degenerative changes with mild canal stenosis at the L3/4 level;
2. …
3. Cervical spondylosis in the form of non-compressive disc bulges at the C2/3, C3/4, C4/5 levels and broadbased disc bulge contacting and minimally effacing the anterior margin of the thecal sac at the C5/6 level;
… .”[33]
[33]PCB 187
73 It was Mr Kossmann’s view there was a direct relationship between the transport accident and the diagnosed injuries, as outlined above; however, he did not explain his reasons for this conclusion.
74 In June 2016, Mr Flanc examined the plaintiff. He considered that in relation to the cervical spine, the accident probably resulted in an aggravation of a pre-existing degenerative condition of the cervical spine, which became symptomatic. However, he noted the range of motion of her cervical spine is only slightly limited, and he recommended a plane x-ray of the cervical spine.[34] In respect to the lumbosacral spine, he noted that the plaintiff was treated for lower back pain in Greece in 2008, and she complained of back pain when she presented to Dr Gordon in December 2015.[35] However, there was no reference to lower back pain in Dr Gordon’s initial letter, which is consistent with the medical records. The plaintiff did not refer to lower back pain during her consultation with Mr Flanc. On the available evidence, he concluded it is unlikely she suffered a lower back injury as a result of the transport accident in November 2006.[36]
[34]PCB 148-149
[35]PCB 148
[36]PCB 151
75 In February 2018, the plaintiff was examined by Mr Mohammad Awad, neuro and spinal surgeon. The plaintiff reported constant neck pain and lower back pain which, she said, was not so constant, was on and off, and occasionally can be bad.[37] It was his opinion the plaintiff presented with an aggravation of cervical spondylosis and an aggravation of lumbar spondylosis. He said, in the absence of any previous history, and the nature of the road traffic accident in November 2006, he thought it more than likely she had aggravated her cervical and lumbar spondylosis. It was his opinion the plaintiff’s prognosis was poor, and she would suffer a degree of pain and disability into the foreseeable future.[38] I note that Mr Awad noted the plaintiff’s neck to have a restricted range of movement without giving any specifics.
[37]PCB 194
[38]PCB 195-196
76 In November 2016, Dr Gordon said in 2006m the plaintiff complained of neck pain and stiffness as well as left shoulder pain following the transport accident. In October 2015, upon returning from Greece, the plaintiff reported that whilst in Greece, she spent one month in hospital for low-back pain which the plaintiff attributed to the transport accident. Dr Gordon said that upon returning to Australia in 2015, she reported recurrent cervical and low-back pain without radiation. In December 2015, the plaintiff complained of cervical and lumbar back pain and stiffness but on examination, the range of movement was within normal limits and there was no neurological deficit detected. In December 2017, Dr Gordon said the plaintiff had pain and stiffness recurrently in her neck. She accepted it was most likely related to the transport accident of 2006. She accepted that it impacted upon the plaintiff’s quality of life. She said the plaintiff’s prognosis is poor and she will require symptomatic management.
77 The plaintiff was medically examined by Dr Lefkovits in February 2018. The plaintiff did not report any injury to her spine. This was despite specific questioning as to injuries other than her knee and shoulder.
78 The plaintiff’s evidence was that the worst pain is in her left knee. She continues to suffer intermittent pain in her neck and upper back, spreading into her shoulders and shoulder blades. The pain is made worse if she looks up or turns her head too quickly, which can make her dizzy. She can drive a car, but only drives locally to the supermarket. She is a more nervous driver since the transport accident. I accept that these are consequences that I can take into account and are related to the spine alone.
79 She performs exercises of ten slow rotations of her neck to the left and the right.
80 The plaintiff’s evidence is that she no longer wears pantyhose because of the discomfort she experiences in bending and stretching her neck when she puts them on. I accept this is a consequence I can take into account.
81 The plaintiff’s evidence is that washing dishes places strain on her neck and shoulder. I accept this is a consequence I can take into account.
82 Based on the above assessment, I accept that, as a result of the transport accident, there have been some consequences to this plaintiff of an impairment to her spine. Taking all the evidence in account, I am not satisfied that the plaintiff has established that the consequences of her spine injury meet the test. I accept the plaintiff has suffered an impairment to her spine. I accept that the injury has had consequences to her which are significant or marked. However, I am not satisfied that when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked, and as being at least very considerable”.
83 Accordingly, I dismiss the plaintiff’s application in respect to the spinal injury.
84 I dismiss the plaintiff’s application.
- - -
0
6
0