Coy v Transport Accident Commission
[2014] VCC 1764
•31 October 2014 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04456
| GABRIELLE COY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 September 2014 | |
DATE OF JUDGMENT: | 31 October 2014 (Revised) | |
CASE MAY BE CITED AS: | Coy v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1764 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the right hip – multiple injuries – impairment of the right hip – nature and extent of damage
Legislation Cited: Transport Accident Act 1986 s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards v Wylie (2000) 1 VR 79; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff pursuant to s93 of the Transport Accident Act 1986 to bring a proceeding claiming damages in respect of injuries suffered by her in a transport accident which occurred on or about 2 August 2009.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr D Seeman | Slater & Gordon |
| For the Defendant | Mr G A Lewis QC with Mr P J Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injuries suffered as a result of a transport accident which took place on 2 August 2009. On that occasion, the plaintiff was driving a vehicle which was struck heavily in the rear by another vehicle driven by her partner, Andrew Fereday. The force of the collision caused her vehicle to be a write-off, such damage including the driver’s seat being dislodged from its bearings.
2 The serious injury relied upon in this application is essentially an impairment to the right hip; alternatively, the entire spine. There were issues relating to pre-existing injury to the lumbar spine and to various other body parts associated with the accident. Ultimately, the plaintiff accepted that her application would stand or fall on an impairment to the right hip.
3 Of all the medico-legal examiners who have either treated or examined the plaintiff for medico‑legal purposes, only Mr Michael Dooley considered that the plaintiff had not suffered an ongoing injury to her right hip as a result of the motorcar accident.[1]
[1]Exhibit 6, Defendant’s Court Book (“DCB”)
4 On 18 July 2013, he took a history from the plaintiff that at the time of the accident, she was aware of pain in her neck, back and knees.[2] However, he took a further history that her physiotherapist referred her to a hip surgeon. Upon being referred to a second orthopaedic surgeon, she underwent further MRI scanning of her right hip and underwent injections therein under CT guidance. After undergoing another MRI scan, she was told there may have been a “tear in the acetabular labrum”.[3] Thereafter she underwent arthroscopathy of her right hip in 2011 and her recovery was slow. After the operation, she said the pain had gradually increased in time and was now returning to its pre-operative level. Thereafter, Mr Dooley undertook examination of the right hip and found:
“There are healed arthroscopathy scars. There is some pain felt in the groin with internal rotation although I felt there was a good range of rotation of the hip. Abduction inflexion is limited to around 30 degrees by pain.”[4]
[2]Exhibit 6, DCB 69
[3]Exhibit 6, DCB 69
[4]Exhibit 6, DCB page 70
5 On examining the radiology, he commented:
“MRI scanning of the right hip carried out on November 26, 2009 reports mild to moderate insertional gluteus medius tendinopathy with no other significant abnormality demonstrated. … MRI scanning of the pelvis and right hip in October of 2010 … stated that there is some thickening of the ligamentum teres consistent with a prior sprain. MRI scanning of the right hip in August of 2011 (post arthroscopic hip surgery) reports some oedema in the acetabular fossa. Thinning of the ligamentum teres consistent with prior debridement is noted.”[5]
[5]Exhibit 6, DCB page 71
6 Thereafter, Mr Dooley sets out his diagnoses as soft tissue injuries to the lumbar spine and cervical spine, together with an impact-type injury to both knees. It is not clear to me why he considers that the above evidence does not also implicate a right hip injury. Further, on documenting a history of organic injury to the right hip, he states:
“The reason that I point out all of the above is to outline that after the rear end collision that Mrs Coy was involved in, she has been diagnosed as having sustained soft tissue injury to the lumbar spine involving facet joint and disc damage, an injury to the right sacroiliac joint, pelvic instability, damage to the insertion of the gluteal tendons into the greater trochanter, injury to the ligamentum teres of the hip joint and synovitis of the hip joint. I accept that in clinical medicine there is often no right or wrong. I accept that an individual practitioner is entitled to make a diagnosis of their own volition. Taking all of this into account my view would remain firm that the clinical diagnosis in Mrs Coy’s situation is that of a soft tissue injury to the lumbar spine with some referred pain into the right buttock and groin regions.”[6]
[6]Exhibit 6, DCB 72 and 73
7 It would appear to me that this conclusion, not only being at odds with all of the other medical practitioners retained on behalf of the plaintiff and the defendant, but is also internally inconsistent, in the sense that no other explanation for the hip pain and the history of pathology is advanced by Mr Dooley.
8 Further, although Senior Counsel for the plaintiff opened the case on the basis that the alternative impairment was to the combined lumbar and cervical spine, it was virtually conceded in final address that his client’s case would stand or fall on establishing the right hip impairment as a serious injury.
9 The issues identified by Senior Counsel for the defendant can be summarised as follows:
(a) Whereas the plaintiff may have suffered soft tissue injuries to her cervical and lumbar spine, together with her sacroiliac joint, such injuries must be “disentangled” from the right hip pathology, unless it could be said that any of the former pathologies were both a result of the motor car accident and contributed to the right hip impairment.
(b) In the factual context of this case, only the right hip pathology could be said to be contributing to the right hip impairment.
(c) In any event, the right hip impairment does not meet the required threshold of serious injury.
(d) The plaintiff’s histories to various doctors have been either misleading in material matters or, alternatively, are so unreliable as to render the opinions expressed in favour of the plaintiff nugatory or unreliable, such that the onus of proof has not been discharged.
10 Senior Counsel for the defendant, in a methodical and skilful cross-examination of the plaintiff, did highlight a number of inconsistencies which could be said to support the submissions referred to above. In particular, the plaintiff’s claim that she suffered significant weight gain as a consequence of the accident does not seem to be borne out by examination of the clinical evidence. Further, the plaintiff had not related to a number of doctors, nor in her affidavit, that she had suffered a work-related back injury approximately one week prior to the motorcar accident, the former resulting in the need to attend a general practitioner and undergo physiotherapy. Other matters included a claim that the motorcar accident had prevented her playing netball, whereas it appeared that a knee injury had led to a cessation of that activity some considerable period of time prior to the motorcar accident. Broadly speaking, Senior Counsel for the plaintiff countered the attacks on his client’s credit by submitting that any omissions were innocent in their intent and consistent with problems with memory which formed part of the histories to various doctors. He submitted that I should find that the plaintiff was doing her best to tell the truth at all material times and that I should regard her evidence in that light. In this regard, it is fair to take into account that a relatively unsophisticated plaintiff can be shown in a poor light by experienced, skilful but fair cross-examination. Without descending into great detail, however, I would accept the defence position that the plaintiff’s evidence with respect to historical and factual matters were, on a number of occasions, thrown into doubt. I am not prepared to find that the plaintiff was dishonest, but there were certainly times when her evidence of factual matters in the past were unreliable and could be perhaps interpreted as trying to “put her best foot forward”.
11 In any event, when considering whether the plaintiff has discharged the onus of proof, I have approached the task on the basis that it would be important to find corroborative evidence of the essential ingredients of her claims. There are also occasions where her assertions, and those of her husband, have been unchallenged in cross-examination and, accordingly, the need for corroboration is considerably diluted.
12 Further, insofar as the plaintiff has suffered soft tissue injury to her cervical and lumbar spine as a result of the motorcar accident, the evidence does not disclose that any consequential impairment is “serious”, either in terms of the pathology demonstrated or in terms of separating out any impairment that may have resulted from the work-related low back injury approximately one week prior to the motorcar accident.
13 A similar finding, I believe, should be made about injury to the sacroiliac joint, even though injections were directed to this particular injury site and even though such pathology is probably related to the motorcar accident. As stated earlier, I will proceed on the basis that the plaintiff must prove that the pathology in the right hip, although probably related to the motorcar accident, has produced a serious long-term impairment in terms of the relevant legislation.
Legal principles
14 The test for determining whether an applicant has suffered a “serious injury” within the meaning of s93(17)(a) of the Act was prescribed in Humphries & Anor v Poljak,[7] which was subsequently approved by the Court of Appeal in Mobilio v Balliotis.[8]
[7][1992] 2 VR 129
[8][1998] 3 VR 833
15 In Humphries & Anor v Poljak,[9] Crockett and Southwell JJ, stated as follows:
“… the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. 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’? Beyond such guidance it is, we think, not possible to go. … .”
[9](Supra) at 140
16 A plaintiff who has suffered a physical injury may develop a mental or psychiatric response to the pain associated with the physical injury. In a case where a plaintiff claims that she has suffered a “serious injury” within subparagraph (a) of the definition, in assessing the seriousness of the impairment of the relevant body function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[10]
[10]Richards v Wylie (2000) 1 VR 79
17 The defendant in this action, subject to the opinion of Mr Dooley referred to above, has conceded that the plaintiff has suffered an impairment to the right hip as claimed, but submits that the impairment does not reach the “very considerable” stage. Ultimately, the test in this matter is whether the plaintiff has established that the pain and suffering consequences of her right hip injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked” and as being “at least very considerable”. This test involves a value judgment in which matters of fact and degree and/or impression are operative.[11]
[11]Stijepic v One Force Group Australia & Anor [2009] VSCA 181 at paragraph 41
Histories to medical practitioners
18 The electronic ambulance report does not refer to any hip pain. However, the plaintiff did give a history of back pain occurring approximately four days prior and that her present pain in the back was from an “old injury”.[12] This is consistent with the history given to Mr Michael Dooley on 6 August 2013 wherein she told him:
“It is stated that just prior to the motor vehicle accident Mrs Coy had sustained a soft tissue injury to her lumbar spine during the course of her work in lifting episode.”[13]
[12]Exhibit C, Plaintiff’s Court Book (“PCB”) 27
[13]Exhibit 6, DCB 72
19 On being driven to the Northern Hospital on the same day, the plaintiff gave a history of pain in the right knee and hip immediately.[14]
[14]Exhibit F, PCB 42
20 Thereafter, the plaintiff commenced physiotherapy with Mr Glenn McKernan on 16 October 2009.[15] Relevantly, she was treated for right-sided hip pain with a history of weakness and giving way of the hip up to twice per day. She was also experiencing emotional symptoms and a reduction in her work capacity. Prior to the accident, she had given a history of working full-time as a florist and was exercising at a community gymnasium greater than three times per week.[16] On 7 January 2010, Mr McKernan reported continuing right-sided anterior hip pain and, interestingly, “weight gain”. She also had difficulty sleeping and had reduced balance in standing. Relevantly, she was also complaining of central lumbar pain.[17]
[15]Exhibit D, PCB 32 (mistakenly stated to be 2010)
[16]Exhibit D, PCB 32
[17]Exhibit D, PCB 30
21 Thereafter, the plaintiff was referred by her general practitioner, Dr Nassios, to orthopaedic surgeon, Mr Kiellerup, on 24 November 2009.[18] She gave a history of injury sustained to her right hip on 2 August 2009. There was ongoing pain in the right hip with intermittent catching. She stated further she was unable to separate her knees because of right hip pain. There was also pain on sitting, and she had trouble sleeping and was unable to lie on her right side in bed. She also described an occasional limp. She stated she had difficulty putting on her shoes and socks because of right hip discomfort. Further, she had trouble walking any significant distance and there was pain walking uphill.[19] Examination of her hip showed a restricted range of motion and, on flexion, there was pain in the region of the right hip joint. There were also positive signs of impingement.[20] An MRI scan of her right hip showed mild to moderate gluteal tendonitis. She was advised to rest her right hip and to take anti-inflammatory medication, if needed. The prognosis at that stage was fair to good.[21]
[18]Exhibit J, PCB 65
[19]Exhibit J, PCB 65
[20]Exhibit J, PCB 66
[21]Exhibit J, PCB 66
22 Thereafter, a second opinion was sought from orthopaedic surgeon, Mr Sam Patten, who saw the plaintiff on 13 January 2010.[22] She gave a history of persisting symptoms centred around the right hip following the motor vehicle accident. There had been a previous radiological diagnosis of insertional gluteal tendinopathy with a recommendation to treat same conservatively. The physiotherapist had recorded no resolution of symptoms and had noted, on physical examination, that she had reproduction of symptoms on passive hip flexion and internal rotation, as well as positive reproduction of pain on flexion adduction and internal rotation:
“Such examination findings are consistent with damage to the acetabular labrum as well as being consistent with femoroacetabular impingement.”[23]
[22]Exhibit G, PCB 43
[23]Exhibit G, PCB 43
23 On examination, he noted she had a slight gait abnormality with weakness of the muscles around the right hip. He also noted the hip was irritable when flexed and this reproduced the findings made by the physiotherapist. Mr Patten reviewed the MRI scan showing the tendinopathy and told the plaintiff that the signs and history were ―
“… suggestive of intra-articular mechanical derangement such as labral tear, however her symptoms were fairly mild most of the time and only moderate at their worst”.[24]
[24]Exhibit G, PCB 43
24 At that stage, he did not consider her a candidate for surgery, but that she had ongoing features of gluteal tendinopathy. He recommended ongoing intensive physiotherapy for the muscles around the hip joint with particular attention to the gluteal muscles and management of gluteal tendinopathy.[25]
[25]Exhibit G, PCB 44
25 Thereafter, the plaintiff was referred to pain management specialist, Dr Bruce Mitchell, who first saw her on 10 August 2010. She presented with a history of twelve months of pain around her right pelvic girdle, low back, medial thigh, knee and some neuropathic pins and needles in her foot when her hip pain was severe.[26] Dr Mitchell stated:
“Her main issue was her pelvic girdle pain which consisted of right groin, right buttock and medial thigh pain. The groin pain came on immediately after the car accident and was a sharp grinding aching pain and she could also have a cracking and catching sensation in her hip when her leg locked. This pain fluctuated between 5 to 8 out of 10 in severity.”[27]
[26]Exhibit K, PCB 71
[27]Exhibit G, PCB 71
26 At that stage, he believed the plaintiff had “primary hip and sacroiliac joint pain”.[28] Thereafter, he referred her back to Mr Patten for ―
“Debridement of the excess bone and impingement issues in her right hip and also probable repair of her ligamentum teres tear.”[29]
[28]Exhibit G, PCB 72
[29]Exhibit G, PCB 73
27 Mr Patten saw the plaintiff on 4 October 2010. He noted that she had gained very little in reduction of symptoms, despite a well-orchestrated physiotherapy regime. At this consultation, her right hip was much more irritable than it had been on previous consultations and, as she had had failed conservative management, the problem appeared to him to be ―
“… more clearly defined to intra-articular pathology of the right hip and, as such, she presented as a good candidate for arthroscopic surgery of the hip … .”[30]
[30]Exhibit G, PCB 45
28 On 9 November 2010, Mr Patten performed right hip synovectomy and debridement of the ligamentum teres. Intra-articular findings were of globally inflamed synovium within the hip joint. He also noted the ligamentum teres was markedly inflamed and thickened and was abnormally turgid. He debrided this structure.[31]
[31]Exhibit G, PCB 45
29 On 10 March 2011, the plaintiff reported that her rate of recovery had faltered with her return to work.[32]
[32]Exhibit G, PCB 46
30 On 19 May 2011, the plaintiff had not fully recovered pain free function of the right hip and long periods of sitting were uncomfortable. Mr Patten noted she was to see Mr Bruce Mitchell for nerve injections in the right hip and buttock area.[33]
[33]Exhibit G, PCB 46
31 On 2 August 2011, the plaintiff re-presented, complaining of persisting pain in the right groin that was most noticed with sitting function, but also with walking and other mobilisation activities.[34] At that stage, she had had a number of image-guided corticosteroid injections performed by Dr Bruce Mitchell. Apparently, these injections involved infiltration of local anaesthetic but had had very little enduring beneficial result.[35]
[34]Exhibit G, PCB 46
[35]Exhibit G, PCB 46
32 A review MRI of 11 August 2011 ―
“… demonstrated a small persisting effusion and some oedema around the ligamentum teres which was average in size. This reduction in size was certainly due to the debridement procedure which was performed last year.”[36]
[36]Exhibit G, PCB 46
33 Mr Patten considered that further intra-articular steroid injections, with an identified effusion, would probably result in a beneficial treatment either in the short or long term.[37] Mr Patten’s opinion at that stage was that there were no features of joint degeneration of the hip, but there were abnormalities regarding the synovitis and the abnormality of the ligamentum teres.[38] At the time of his report dated 10 October 2011, he did not believe that there would be an ongoing lifelong requirement for further treatment, but he did note that:
“She has had persisting restrictions in function and persisting pain. [I did] not feel her condition had stabilised adequately to allow an adequate assessment of lifelong, or even long-term effect on [the plaintiff’s] capacity for employment, domestic duties, social and leisure activities.”[39]
[37]Exhibit G, PCB 46
[38]Exhibit G, PCB 47
[39]Exhibit G, PCB 47
34 In fact, Dr Bruce Mitchell reported, as at 2 August 2011, that the plaintiff still had significant hip joint pain which was temporarily relieved by hip joint injections, but produced no long-term relief.[40]
[40]Exhibit K, PCB 76
35 As at February 2012, Dr Bruce Mitchell planned to repeat hip injections on an as required basis. At that time, he stated:
“If she only gets five to six weeks from the cortisone injection, then I do not believe repeating these frequently is warranted and a trial of Synvisc injection would be the next step and, if this does not work, possibly stem cell therapy or pain minimisation techniques around the hip.”[41]
[41]Exhibit K, PCB 79
36 At that time, he was 95 per cent confident he could keep the plaintiff’s sacroiliac joint pain under control with radio frequency neurotomy. However, he stated he did not know how the right hip would respond in the longer term. He said:
“The fact that she keeps having recurrent synovitis in her hip is suggestive that there is a higher degree of damage to this joint than is otherwise obvious.”[42]
[42]Exhibit K, PCB 79
37 Also at that stage, he thought that if there was a workplace close to home, there would probably be some light duties she could undertake. However, he stated:
“Unfortunately she struggles to ambulate to and from work.”[43]
[43]Exhibit K, PCB 79
38 On 6 May 2013, Dr Mitchell defended his diagnosis of hip pathology by emphasising that the hip injection had taken her pain away for some five weeks which, in his opinion, confirmed the hip as the source of her pain.[44] He stated further:
“As there was significant synovitis in this hip and cartilage damage, I think it is not unreasonable to see if we can control the pain with a series of cortisone injections into the joint.”[45]
[44]Exhibit K, PCB 81
[45]Exhibit K, PCB 81
39 He stated further that he had experience where repeat of these injections had been reduced to one a year or even one every two years, and he considered that this would be a very reasonable way to control the pain. With respect to the ongoing hip pain, he stated that the plaintiff has ―
“…proven hip joint pathology and while she has had some relief from arthroscopic surgery, she has ongoing synovitis in the joint which has responded for five weeks to a corticosteroid injection. I do not currently know what the longer term treatment for this hip is going to be. Doing nothing is not an option.”[46]
[46]Exhibit K, PCB 82
40 The plaintiff was also examined for medico-legal purposes by orthopaedic surgeon, Mr Russell Miller, on 19 November 2012. She gave him a history that she was hit from behind by a four-wheel drive vehicle which she believed to be driving at significant speed and that her car was catapulted into the car in front. She stated that the seat in which she was sitting was broken from its attachments.[47] She was then complaining of symptoms in the neck, low back, right hip, right knee and right foot. Specifically, she complained of pain and discomfort in the right hip radiating into the buttock and groin, and occasionally further down the thigh. She reported the surgery by Mr Patten with some minor improvement in her symptoms, but that they were still ongoing and they caused her to walk with a limp.[48] He also noted that she had suffered an adverse mental reaction which complicated the assessment and management of her condition.[49] On examination of the right hip, he noted:
“There was marked irritability during hip movement particularly with forced internal and external rotation.”[50]
[47]Exhibit Q, PCB 142
[48]Exhibit Q, PCB 142
[49]Exhibit Q, PCB 143
[50]Exhibit Q, PCB 144
41 Further, he examined radiological films taken on 4 August 2011 and 28 August 2010. The former suggested some hypertrophy in the region of the ligamentum teres and the latter showed possible tendinopathy at the insertion of the gluteal tendons.[51] He thought that she had suffered from musculoligamentous strains to the cervical and lumbar spines and his diagnosis with respect to the right hip was held in abeyance pending an operation report.
[51]Exhibit Q, PCB 145
42 On 15 May 2013, upon receipt of further material, which had included the arthroscopy findings of Mr Patten, Mr Miller believed that the prognosis for the right hip was only fair.[52] In terms of treatment for the right hip, he believed that she would require ongoing treatment with analgesics, anti-inflammatory agents, possibly injections and possibly pain management. He agreed with Dr Kostos, rheumatologist for the defendant, that there may well be features of a chronic pain syndrome.
[52]Exhibit Q, PCB 149
43 When Mr Miller reviewed the plaintiff on 19 May 2014, he noted that she had ongoing symptoms emanating from her low back and her right hip, inter alia. With respect to the right hip, he noted:
“She has pain and discomfort in the right hip. It causes her to walk with a limp. Her symptoms fluctuate, but there has been no pattern towards improvement. She stated that she intermittently walks with a limp.”[53]
[53]Exhibit Q, PCB 162
44 He noted further that, in terms of treatment, the plaintiff continued to use a range of medications, including Panadol Osteo, Mobic and, intermittently, Panadeine Forte, but found that her medications were only marginally effective in reducing her symptoms of pain.
The Defendant’s medical evidence
45 The plaintiff was first seen by orthopaedic surgeon, Mr Michael Shannon, on 16 November 2010.[54] Relevantly, he took a history that the plaintiff had ceased work and stopped going to school because she could not drive or walk properly. Further, the physiotherapy had helped her neck pain, but she was moving house and her hip became worse, and she was told that she needed an MRI scan. She was referred to a second orthopaedic surgeon. However, her symptoms were getting worse and she could not open her legs. She could not move her hip at all.[55] The plaintiff said the treating surgeon had told her that he found “a ball of gooey mess” at operation. It was Mr Shannon’s opinion at that stage that her ongoing problem has been in the region of the right hip and she has MRI scan evidence of gluteal tendonitis.[56] At that stage, she was not fit for any employment following surgery and it was the hip condition and surgery that was so preventing her.[57]
[54]Exhibit 1
[55]Exhibit 6, DCB 21
[56]Exhibit 6, DCB 23
[57]Exhibit 6, DCB 24
46 The defendant next had the plaintiff examined by occupational physician, Dr Mary Wyatt, on 14 January 2011. It would appear that she had confused the left hip for the right hip in taking the history. In any event, the plaintiff told her the force of the impact was sufficient to write off the car and she had been advised by a panel beater that her seat had been internally broken as a consequence of the force.[58] The plaintiff told Dr Wyatt that her major problem was difficulty in moving the left [sic] hip. Further, the plaintiff said that at the time of the accident, she was working for a florist part-time, but she was unable to continue with these activities. The plaintiff tried to move into veterinary nursing, but realised that she was not able to cope with the physical demands of the job.[59] At that stage, the plaintiff was looking for work in reception or other similar administrative tasks. Her complaints were that the hip was continuously sore and she was taking Temazapam to help her sleep. She was also attending physiotherapy twice a week since having surgery. On examination, the plaintiff had mild loss of internal rotation of the left hip and “was uncomfortable with this manoeuvre”.[60] There had been some improvement in her hip condition since the surgery eight weeks ago.[61] In any event, the hip problems and the low back complaints were attributable to the motor vehicle accident and Dr Wyatt did not think that psychosocial factors were playing any significant role at that stage.[62] Further, Dr Wyatt recommended up to 20 further physiotherapy visits in relation to her hip problem, but the mainstay of management going forward was going to be self-management.[63] Dr Wyatt also noted that the plaintiff was receiving home help and it was recommended that this be continued for the next three months. Beyond that, it was anticipated the plaintiff and her husband would be able to cope with domestic tasks.[64]
[58]Exhibit 3, DCB 40
[59]Exhibit 6, DCB 41
[60]Exhibit 6, DCB 43
[61]Exhibit 6, DCB 43
[62]Exhibit 6, DCB 44
[63]Exhibit 6, DCB 45
[64]Exhibit 6, DCB 46
47 The plaintiff was then seen by rheumatologist, Dr Tony Kostos, on or about 9 November 2011. He took a relevant treatment history and recorded that the plaintiff felt there had not been any improvement in her condition over the last two years. She was then describing constant pain on both sides of her lower back, more so to the right, with right buttock and right lateral hip pain. Occasionally, she had some right groin pain which extended down the anterior thigh to the knee. Pain was described as a problem at night and she could not lie on her right side because of right hip pain. She also had problems during the day because of restriction of right hip joint movements.[65] Her current treatments at that time were Cymbalta, Panadol Osteo and Valium to help with sleep. She was having physiotherapy once a month. Further, following the accident, the plaintiff could not complete her course in forestry and, thereafter, she worked for six months as a receptionist at a veterinary practice, but ―
“When her right hip locked up she claims to have had a nervous breakdown and couldn’t continue working”.[66]
The plaintiff then found a position at the ANZ in their call centre as part of a TAC program, but stated she could not sit still for eight hours. She had also tried various other jobs, but “my body seems to fail” after more than four hours at work.[67] With respect to her right hip, there was discomfort shown on examination. Dr Kostos thought the plaintiff had evidence of generalised fibromyalgia implicating a number of sites on her skeleton. Dr Kostos called into question the treatment regime instigated by Mr Patten and Dr Mitchell, with which Dr Mitchell later joined issue. He seemed to accept the plaintiff was suffering from chronic pain at a number of sites and has been thwarted in her attempt to return to work on several occasions.[68] He noted that she had had a number of investigations and treatments directed at her lower back and right hip, but unfortunately they did not seem to have made a great deal of improvement in her condition.[69]
[65]Exhibit 4, DCB 53
[66]Exhibit 6, DCB 54
[67]Exhibit 6, DCB 54
[68]Exhibit 6, DCB 46
[69]Exhibit 6, DCB 55
48 In his second report dated 2 April 2013, Dr Kostos reviewed further material, both from Mr Patten and Dr Mitchell with respect to their treatment regimes. Without attempting to mediate the medical disputes between Dr Kostos, Mr Patten and Dr Mitchell, I consider that Dr Kostos’s comments that deterioration in the plaintiff’s pain symptoms in the right hip following surgery led him to ―
“… suspect her current symptoms are as a result of her previous surgery on the right hip, which has now left her with restriction of movement.”[70]
[70]Exhibit 6, DCB 50
49 His final comment in this regard was:
“This woman has a longstanding chronic pain syndrome and we know that the results of surgical intervention in patients with chronic pain states is poor, as we have seen with this patient.”[71]
[71]Exhibit 6, DCB 51
50 The plaintiff was also seen by occupational physician, Dr David Elder, on 21 May 2012 (Exhibit 5). He took a history which included the arthroscopy on the hip in November 2010, which she stated had helped at the start but then she had had worsening symptomatology.[72] Further, the plaintiff told him that her current symptoms were worse than when she first had the original injury. She had a “stinging” in the right hip, as well as right buttock pain, low back pain and other spinal pain.[73] On examination, she walked with a slight antalgic gait affecting the right leg. There was inconsistent decreased range of motion in the lumbosacral spine and she demonstrated a full range of motion in the cervical spine.[74] His analysis was that the plaintiff would have suffered a soft tissue injury to the right hip and perhaps a soft tissue injury to the low back. He noted:
“Her right hip has been surgically treated without success.”[75]
[72]Exhibit 6, DCB 58
[73]Exhibit 6, DCB 59
[74]Exhibit 6, DCB 60 and 61
[75]Exhibit 6, DCB 61
51 He further considered the prognosis to be guarded. He thought that she could now be classified as having chronic pain, the objective organic basis for which was unclear. He accepted that she would not be able to return to her pre-injury employment, but that she could do predominantly sedentary type work with restrictions.[76]
[76]Exhibit 6, DCB 61
Conclusions
52 In my view, the plaintiff has made out a prima facie case on the medical evidence that she has ongoing pathology in the right hip which has caused ongoing pain and limitation of movement and has affected her gait. Whether or not the surgery has been a cause of her ongoing symptoms, as postulated by Dr Kostos, is not necessary for me to decide, in that I am satisfied that there has been a constant complaint of symptoms referable to the right hip since the motor car accident and that the plaintiff has established that that accident is the cause of that pain.
53 Further, the need for surgery, which involved some insult on the structures of the hip, together with the objective findings of ongoing pathology thereafter, corroborate the plaintiff’s complaints and restrictions as a consequence of the motor car accident.
54 In terms of whether the credit issues enumerated by defence counsel are sufficient to defeat the plaintiff’s claim, is another matter.
55 On balance, I accept defence counsel’s submissions that the plaintiff’s histories to various practitioners were defective in recounting previous injuries especially with respect to the lumbar spine and the right knee. I also accept that she may have been performing more sewing work with a fledgling babywear business than she revealed in her affidavit. Defence counsel also submits that the recent addition of Mobic to the plaintiff’s medicine regime is convenient in terms of the timing of this court case. The plaintiff, for her own part, when cross-examined on this matter, stated that the treating general practitioner had conducted a full body examination at or about the time of the prescription and had recommended the stronger medication in light of the ongoing symptoms. This explanation did not appear to me to be manufactured and appeared spontaneous. I accept her evidence in this regard.
Disentangling
56 As conceded by both counsel, the plaintiff’s case will stand or fall on the right hip impairment. Insofar as there are ongoing complaints of pain with respect to other body parts, the evidence reveals that the underlying pathology in the cervical and lumbar spines probably amounts to musculoligamentous strain and the right knee pain, such as it is, does not interfere with the plaintiff’s gait. In my view, the plaintiff has established that the pain from her right hip, for the reasons already outlined, is the major contributor to her loss of earning capacity and other consequences, such as the need for analgesia and other conservative treatment.[77]
[77]Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167 at paragraph 20; Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs 24 and 25
Is the right hip impairment serious?
57 I have given careful consideration to the defendant’s submissions about the plaintiff’s reliability as a medical historian, and generally. On balance, I consider the plaintiff has tipped the scales in her favour for the following additional reasons. First, I accept her evidence, unchallenged by cross-examination, to the following effect:
“Following the accident, I attempted to return to work. I obtained full-time employment as a florist at Select Flowers. My day to day tasks involved mostly physical labour. This included unpacking stock as it came into the shop, conditioning flowers, watering plants, making sure the shop was clean and tidy and serving customers. I was mostly on my feet throughout the day. I had significant difficulty completing my day to day tasks because I experienced increasing symptoms in my back and right hip. My partner would often come to help me with the heavier tasks after he finished work for the day. As a result of my physical symptoms I could not cope with the job so I resigned in January 2010.”[78]
[78]Exhibit A, plaintiff’s affidavit sworn 19 April 2011, paragraph 27
58 Further, her partner, now husband, Andrew Fereday, in his affidavit sworn 9 September 2013, and once again unchallenged by cross-examination, stated as follows:
“When Gabrielle worked at Select Flowers, I would often come and assist her. I was able to do this because I was self-employed at the time. She struggled to carry heavy buckets of water and lift heavy bundles of flowers. This exacerbated the pain in her right hip and back.”[79]
[79]Exhibit B, paragraph 13
59 Further, the plaintiff swore, again unchallenged, that following her attempt to return to work as a florist, she also attempted employment as a receptionist in the veterinary clinic in Essendon and thereafter employment as a customer service consultant with the ANZ Bank.[80] The first of these tasks was foregone because of increasing pain in her right hip and lower back and so too with the job with the ANZ Bank. I accept Senior Counsel for the plaintiff’s submission that not only do these facts corroborate consequences alleged by the plaintiff in a material way, but also serve to rebut any inference that she was not doing her best to recover from the injuries and to return to work.
[80]Exhibit A, plaintiff’s affidavit sworn 19 April 2011, paragraphs 28 and 29
Conclusion
60 In all the circumstances, I find that the plaintiff has proved on balance that the consequences of the right hip impairment are serious to this particular applicant in that they relate to pecuniary disadvantage and/or pain and suffering. In particular, the plaintiff had set herself upon a study course of working as a florist, which occupation, I accept, is now closed to her for the reasons referred to in her affidavit above. In forming this judgment, I am satisfied that the impairment to the right hip, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described at least as being “very considerable” and certainly more than “significant or marked”.
61 Accordingly, leave will be granted to the plaintiff to issue proceedings at common law for damages arising out of a motor vehicle accident on 2 August 2009. I will hear the parties as to any consequential orders.
- - -
0
4
0