Cunard v Transport Accident Commission
[2023] VCC 2104
•17 November 2023
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03360
| SARAH CUNARD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2023 | |
DATE OF JUDGMENT: | 17 November 2023 | |
CASE MAY BE CITED AS: | Cunard v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2104 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the left knee – credibility and reliability – causation – single injury or aggravation
Legislation Cited: Transport Accident Act 1986 (Vic), s35, s93
Cases Cited:Borazio v State of Victoria [2015] VSCA 131; Zlateska v Consolidated Cleaning Services & Anor [2006] VSCA 141; Principe v Transport Accident Commission [2016] VSCA 205; Humphries & Anor v Poljak [1992] 2 VR 129; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Haidar v Transport Accident Commission [2016] VSCA 182; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Dordev v Cowan [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Bezzina v Phi [2012] VSCA 161; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398
Judgment: The plaintiff is not granted leave to bring a proceeding for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Jurica with Ms N Crowe | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr P Scanlon KC with Mr S Martin | Solicitor to the Transport Accident Commission |
Table of Contents
Introduction.......................................................................................................................................... 1
Legal principles................................................................................................................................... 1
Background.......................................................................................................................................... 4
Transport accident.............................................................................................................................. 4
Medical history following the transport accident............................................................................ 6
Employment history following the transport accident................................................................. 16
Witnesses and evidence................................................................................................................. 16
The Plaintiff’s medico-legal reports............................................................................................... 17
Dr Iain McLean, consultant orthopaedic surgeon................................................................... 17
The Defendant’s medico-legal reports.......................................................................................... 20
Dr Simon Journeaux, consultant orthopaedic surgeon......................................................... 20
Issues and submissions.................................................................................................................. 21
Plaintiff’s submissions................................................................................................................. 21
Defendant’s submissions............................................................................................................ 22
Credit.................................................................................................................................................. 23
Lack of complaint about left knee pain to medical practitioners.......................................... 23
Lack of complaint about left knee pain to medical practitioners.......................................... 23
Plaintiff’s medical condition 2017 – Hoffa’s fat pad impingement........................................ 29
Subsequent events aggravating Plaintiff’s left knee.............................................................. 32
Conclusion on credibility and reliability.................................................................................... 33
What injury did the Plaintiff have at the date of the hearing?.................................................... 34
What caused the Plaintiff’s injuries?.............................................................................................. 41
Impairment consequences.............................................................................................................. 47
Consequences of the injury arising from the 2004 transport accident................................ 47
Consequences at 27 April 2017 – first surgery....................................................................... 51
Consequences at 18 April 2019 – second surgery................................................................ 53
Consequences at 6 July 2021 when the Plaintiff was seen again by Mr Arogundade upon referral from Dr Maina............................................................................................................................... 53
Consequences at the date of the trial....................................................................................... 54
Summary of consequences........................................................................................................ 59
Did the additional impairment consequences sustained on 23 June 2023, qualify as an aggravation injury and if so, was the aggravation injury a “serious injury” as defined in the Act?............ 60
Conclusion......................................................................................................................................... 61
HER HONOUR:
Introduction
1On 19 November 2004, the plaintiff, then aged twelve years old, was walking across the car park at her school when she was struck by a reversing car and hit in the vicinity of her left knee (“the transport accident”). She claims to have suffered a “serious injury” as defined in paragraph (a) of s93(17) of the Transport Accident Act 1986 (“the Act”) as a result of the transport accident, such that she should be granted leave pursuant to s93(4)(d) of the Act to commence a common law proceeding for the recovery of damages in respect of the injury.
2The defendant did not dispute that the plaintiff currently suffers from a serious injury, but rather alleged the plaintiff’s left knee injury became symptomatic due to causes other than the transport accident. The central issue in dispute at trial was consequently causation. Further, the defendant contended, if the plaintiff’s injury was caused by the transport accident, the impairment consequences had not been disentangled such that the conclusion could be reached that the plaintiff had suffered a “serious injury”.
3For the reasons that follow, I find the plaintiff has not suffered a serious injury.
Legal principles
4Pursuant to s35 of the Act, there is an entitlement to compensation under the Act for “[a] person who is injured as a result of a transport accident”.
5Section 93(4) of the Act provides:
“If—
(a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
(b) the degree so determined is less than 30 per centum—
the person may not bring proceedings for the recovery of damages in respect of the injury unless—
…
(d) a court, on the application of the person, gives leave to bring the proceedings.”
6Section 93(6) of the Act provides that:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
7The phrase “serious injury” is defined in s93(17) of the Act relevantly as follows:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
… .”
8To determine whether there has been a “serious injury”, first it is necessary to identify the injury suffered. Once the injury is identified, the plaintiff is required to prove that she was injured as a result of the relevant transport accident.[1] That is, the plaintiff is required to prove, on the balance of probabilities, there is a causal link between the transport accident and the injury. It is not necessary to establish the transport accident was the sole, or even dominant, cause of the plaintiff’s injury. It is sufficient if it was a cause.[2]
[1] Borazio v State of Victoria [2015] VSCA 131 at paragraph [63]
[2] Zlateska v Consolidated Cleaning Services & Anor [2006] VSCA 141
9Resolution of disputes about causation can depend upon the plaintiff’s symptoms, complaints and history. Sometimes relevant injuries manifest immediately, but in other cases they do not. The period of time between an accident and a complaint may suggest it is less likely the accident was a cause of the injury.[3]
[3] Principe v Transport Accident Commission [2016] VSCA 205 at paragraphs [79]-[80]
10If there is a causal link between the relevant transport accident and the injury, consideration is required as to whether the injury responsible for such loss or impairment is a “serious injury”; that is, whether there has been a relevant serious long-term impairment or loss of a body function.
11The question of whether an injury is “serious” for the purpose of s93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries & Anor v Poljak:[4]
“… 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’.”
[4][1992] 2 VR 129 at 140 (per Crockett and Southwell JJ)
12The plaintiff’s credibility will often be important. For instance, if the plaintiff exaggerates his or her symptoms, the account may be of less weight.[5] Similarly, a plaintiff’s credibility is relevant to the reliability of the medical evidence. The opinions of the doctors essentially depend on the credibility and reliability of the history given to them by the plaintiff.[6] There will inevitably be variations in accounts given over time to different doctors.[7] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.
[5]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 (“Sejranovic”) at paragraph [145]; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [91]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]; Haidar v Transport Accident Commission [2016] VSCA 182 at paragraph [32]; Petrovic v Victorian Workcover Authority [2018] VSCA 243 at paragraph [74]
[6]Dordev v Cowan [2006] VSCA 254 at paragraph [14], (per Chernov JA, with Maxwell P and Neave JA agreeing)
[7] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317
13If a court determines that a plaintiff is not a reliable witness, either in general, or in respect of certain matters, this does not mean all medical opinions relied upon by the plaintiff should be disregarded automatically.[8]
[8]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic (supra) at paragraph [146]
14When assessing the plaintiff’s account of his or her pain and suffering consequences to doctors and the Court, the Court needs to be careful in accepting apparent statements of fact made by a plaintiff to their treating doctors or to medico-legal experts. As J Forrest J said in Hettiarachchi v Transport Accident Commission:[9]
“Usually, the recording of such statements by the doctor has one purpose: to assist in forming a diagnosis of the patient (or plaintiff’s) condition. They are not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material, particularly when the fate of the application or claim may, at least in part, turn upon the accuracy of the asserted admission against interest. This is all the more so when in most serious injury applications and personal injury trials the relevant medical practitioner is not called to give evidence. … .”
[9] [2023] VSCA 27 at paragraph [58]
15Where there is an aggravation of a pre-existing impairment, the plaintiff must show that the aggravation injury arises as a result of the relevant accident, and that in its consequences in and of itself, it is a “serious injury”.[10]
[10]Petkovski v Galletti [1994] 1 VR 436 at 443; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraph [60]; also, Bezzina v Phi [2012] VSCA 161 at paragraph [23]
Background
16The plaintiff was born in December 1991 and is currently thirty-one years of age.
17She lives with her partner, with whom she has three children aged seven, five and two years of age.
Transport accident
18In 2004, the plaintiff was twelve years old and was completing Year 7.
19On 19 November 2004, at the end of the school day, she was walking through the school carpark area towards her mother when a car reversed into her, and hit her in the area from around her left knee through to her left hip area. She felt immediate pain in her left knee.
20The driver of the other vehicle left the scene without stopping and the plaintiff’s mother took the plaintiff, first, to the Sunshine Police Station.
21Later, the plaintiff was taken by her mother to the Sunshine Hospital.
22The Sunshine Hospital Emergency Department Attendance Record, dated 19 November 2004, noted the plaintiff had been “struck by low speed car reversing at school car park. bumper hit [left] knee. Child slumped, did not fall, did not hit her head”.[11] The plaintiff’s left knee was observed to have mild swelling and to be tender over the lateral joint space. Her flexion was 30 degrees and her extension was 0 degrees.
[11] Plaintiff’s Court Book (“PCB”) 44
23An x-ray was taken of the plaintiff’s left knee. The x-ray report noted there was no fracture demonstrated and no evidence of joint effusion, or other joint abnormality, but there was a clinical indication of injury to the lateral aspect of the knee.
24The doctors reviewing the x-ray in the Emergency Department also noted no obvious fracture on the x-ray. They noted a mild knee effusion and they queried whether there was a mid-leg ligament injury.
25A letter from Dr Sulieman Hamid from the Emergency Department at the Sunshine Hospital to Dr Nick Hallebone, dated 19 November 2004, noted the plaintiff presented with pain and decreased mobility of her left knee. There was tenderness over both the medial and lateral joint lines. The diagnosis was of an injury to the muscle or tendon of the knee. Dr Hamid noted there was a mild knee effusion. A Zimmer splint was recommended.
26A further Sunshine Hospital Emergency Department Emergency Attendance Record, dated 20 November 2004, recounted how the plaintiff had been hit just above her lateral left knee when a teacher reversed into her. The reviewing doctor queried whether the x-ray showed a chip off the bone and noted the plaintiff was continuing to experience some mild tenderness in her left knee, which she was refusing to flex due to pain.
27The plaintiff subsequently saw Dr Hallebone at The Clinic in Deer Park on 24 November 2004.[12] In his progress notes of the consultation that day, Dr Hallebone noted that there was no knee effusion. The plaintiff’s left knee was mildly tender inferiorly to the knee and there was a small haematoma.
[12] PCB 49; Exhibit I
28The plaintiff saw Dr Hallebone again on 29 November 2004 for review. She had good range of movement. Dr Hallebone queried whether she had a small haematoma and possible infra patella bursitis. He prepared a letter, dated 29 November 2004, in which he noted the plaintiff had a soft-tissue injury to her left leg and was unable to do exercises at school that week.
29This was confirmed in an initial medical certificate for the Transport Accident Commission (“TAC”), dated 16 December 2004.[13]
[13] PCB 51; Exhibit “J”
Medical history following the transport accident
30There were no medical reports or clinical records tendered until 2009.
31The medical records between 2009 and 2017 from the Seaport Medical Centre made no reference to complaints of any left knee symptoms.
32In early 2017, the plaintiff was driving a car to Hopetoun when her left knee locked up and she felt quite a lot of pain.
33Soon after, the plaintiff attended Dr Ahmad Rahim, general practitioner, at the Hopetoun Medical Clinic. Dr Rahim requested an x-ray of the plaintiff’s knee.
34An x-ray of the plaintiff’s left knee, taken on 15 March 2017, found no articular or bony injury.[14] The knee joint was normally aligned, with no evidence of erosive or productive change. There was no knee joint effusion or radiopaque loose body. There was no evidence of osteochondritis dissecans. The patella was normally aligned, and no bony lytic or sclerotic lesion or avulsion was seen.
[14] Defendant’s Court Book (“DCB”) 68
35Dr Rahim prepared a letter to the TAC, dated 15 March 2017. He said he had examined the plaintiff and opined that the clinical indications of her left knee pain were consistent with a re-occurrence of the injury sustained in the transport accident in 2004.[15]
[15] PCB 52; Exhibit “K”
36Dr Rahim referred the plaintiff to Mr Shaun English, orthopaedic surgeon, and requested further scanning of the plaintiff’s left knee.
37An x-ray taken on 16 March 2017 of the plaintiff’s left knee[16] revealed no articular or bony injury. The knee joint was normally aligned, with no evidence of erosive or productive change. There was no knee joint effusion or radiopaque loose body seen, and no evidence of osteochondritis dissecans. The patella was normally aligned, and no bony, lytic or sclerotic lesion or avulsion was seen.[17]
[16] PCB 125
[17] PCB 125-126; Exhibit AF
38An MRI scan of the plaintiff’s left knee was undertaken on 19 March 2017.[18] This found evidence of patella malalignment. There was an increased ratio of the patellar tendon length to the patellar length at 1.67 and swelling of the superolateral aspect of the infrapatellar Hoffa’s fat pad. There was mild swelling of the medial aspect of the distal quadriceps tendon in keeping with tendinous strain and a low-grade partial tear. There was mild swelling of the proximal patellar tendon, in keeping with tendon strain or tendinosis. There was increased signal intensity of the lateral patellar retinaculum anteriorly, in keeping with strain/partial tear. There was mild diffuse chondral swelling of the patellar cartilage and weight-bearing portion of the medial femoral condyle (Grade 1 chondral injury). There was a Grade 1 strain of the origin of the medial and lateral gastrocnemius tendons, the distal biceps femoris tendon and the distal semimembranosus tendon. There was no knee joint effusion or radiopaque loose body, and no bony fracture or bone marrow oedema.[19]
[18] PCB 124
[19] PCB 124-125; Exhibit AF
39The plaintiff subsequently saw Mr English upon referral. In a letter dated 11 April 2017 to Dr Rahim, Mr English noted that the plaintiff:
“… presents with left knee pain, which she indicates is anterior and medial. She says she had that knee injured about fourteen years ago, when she was bumped by a car at school. I am not quite sure what that injury involved, since I don’t have any details available to me. This more recent pain came on when she was simply driving her car, it was about three weeks ago that that happened. There was no collision or trauma at that time.”[20]
[20] PCB 54; Exhibit “M”
40Mr English noted that, on examination, the plaintiff had “well padded lower limbs. Her medial joint line is tender. Her knee is of normal alignment, and she has normal range of motion and ligamentous stability.”[21] He was unsure whether the conclusion from the MRI scan that the plaintiff’s medial meniscus was intact was entirely correct and he requested the plaintiff undergo a further MRI scan.
[21] Ibid
41The plaintiff subsequently underwent a further MRI scan on 20 April 2017. This found patella alta demonstrated, which was associated with Hoffa’s fat pad impingement features. There was also Grade 2 medial patella and central medial joint chondrosis noted, without ulceration.[22]
[22] PCB 127; Exhibit “AG”
42In a subsequent letter from Mr English to Dr Rahim dated 20 April 2017, Mr English reported that the plaintiff’s MRI scan had revealed that her knee appeared to be “in good shape, with a suggestion of Hoffa’s fat pad impingement. I think that is the most likely explanation for her anterior knee pain.”[23] Dr English recommended surgery to debride the fat pad and alleviate any impingement.
[23] PCB 56, Exhibit “N”
43In his letter to the defendant dated 20 April 2017, Mr English noted the plaintiff had presented to him with anterior knee pain, which investigations had suggested was due to impingement of Hoffa’s fat pad.[24]
[24] PCB 57; Exhibit “O”
44Surgery was performed on the plaintiff’s left knee on 27 April 2017.[25] The plaintiff described it as a “cleanout” of her knee.
[25] PCB 58; Exhibit “P”
45The operation note identified that the patellofemoral joint had softening and early fissuring on the lateral facet of the patella, with a normal trochlear surface; the medial and lateral gutters were clear; the medial compartment had extensive delaminating chondral damage on the medial femoral condyle on the weight-bearing surface; the ACL was normal, and the lateral compartment was normal, with the exception of numerous loose bodies in popliteal hiatus. Mr English removed the loose bodies and excised the impinging fat pad. The unstable cartilage was trimmed from the medial femoral condyle and all debris was washed out.[26] Mr English recommended “significant weight loss and potential consideration of realignment osteotomy”[27] due to the location and extent of the cartilage damage.
[26] Ibid
[27] PCB 59; Exhibit “P”
46Dr Iain McLean, in his first report dated 20 January 2022, explained the surgery on 27 April 2017, noting Mr English had identified softening and early fissuring on the lateral facet of the patella, with extensive delaminating chondral damage on the medial femoral condyle on the weight-bearing surface, with numerous loose bodies noted and fat pad impingement.[28]
[28] PCB 82; Exhibit “AB”
47The plaintiff understood, following surgery performed on 27 April 2017, that she might need to have a further knee re-alignment/reconstruction.
48In a subsequent letter dated 24 May 2017 from Mr English to Dr Rahim, Mr English noted that the unexpected finding from the plaintiff’s left knee surgery had been a finding of extensive delamination of the medial femoral condyle of cartilage and cartilaginous loose bodies. He identified that, symptomatically, the plaintiff was now feeling “great”[29] and that it seemed the “working diagnosis of fat pad impingement was the source of her symptoms. The delaminating cartilage was asymptomatic, and remains so”.[30]
[29] PCB 60; Exhibit “Q”
[30] PCB 60; Exhibit “Q”
49Mr English identified that, notwithstanding the plaintiff’s delaminating cartilage was asymptomatic, it still needed to be given consideration, since it was on the weight-bearing surface of the femur, and because the plaintiff was young. He arranged for the plaintiff to be seen at the Base Hospital to canvass a range of opinions from his colleagues.[31]
[31] Ibid
50In 2018, the plaintiff moved from Hopetoun to Portland.
51In approximately July 2018, the plaintiff was reviewed at a clinical case conference at the Base Hospital. This was to enable Mr English to canvass a range of opinions from his colleagues as to whether a re-alignment of the plaintiff’s lower limbs should be considered to offload the diseased part of the femoral condyle in her left knee.
52In a letter to Dr Rahim dated 19 July 2018, Mr English noted the plaintiff had told him, upon review that day, her right knee was giving her trouble. He wondered whether it was going the same way as her left knee. He opined that, most likely, the problem in her cartilage did not relate to being bumped by the car in 2004. He identified that the plaintiff faced some barriers to undergoing a re-alignment osteotomy, including her lack of private health insurance; she smoked; she was very heavy – being five feet tall and weighing 90 kilograms – and was overloading her knees and precipitating their failure.[32]
[32] PCB 62; Exhibit “R”
53He referred her to the outpatient facility at the Base Hospital.[33]
[33] PCB 64; Exhibit “S”
54On 17 November 2018, the plaintiff sought a second opinion about her left knee from Dr Rana, general practitioner at the Tristar Clinic in Portland.[34]
[34]DCB 83; Exhibit 7
55On 1 February 2019, the plaintiff was referred by Dr Husnain Rana to Mr Kunle Arogundade, orthopaedic surgeon.[35] The letter of referral referred to the plaintiff’s right knee pain in the context of her care from Mr English and previous operation.[36]
[35]DCB 85; Exhibit 7; PCB 65; Exhibit “T”
[36]PCB 65; Exhibit “T”
56Mr Arogundade saw the plaintiff on 12 February 2019,[37] he requested an MRI scan of the plaintiff’s left knee.
[37]PCB 72, Exhibit “Y”
57On 22 February 2019, an MRI scan was undertaken of the plaintiff’s left knee. It found there was intrasubstance intermediate/increased T2 signal at the medial patellar articular cartilage at the patellofemoral joint. There was localised superolateral Hoffa’s fat pad oedema noted and patella alta. A trace of deep infrapatellar bursal fluid was also present. At the medial compartment, there was chondrosis involving the central weight-bearing surface, with thinning and signal heterogeneity. At the lateral compartment, there was subtle truncation of the posterior horn-free margin. [38]
[38]PCB 128-129; Exhibit “AH”
58The MRI scan concluded there was superolateral Hoffa’s fat pad localised oedema, which could be seen in the context of Hoffa’s Fat Pad Impingement Syndrome. There was background patella alta. There was a Grade 1-2 chondromalacia patella change at the medial facet of the patella. There was chondrosis involving the central weight-bearing surface of the medial femoral condyle. Additionally, there was subtle truncation at the lateral meniscus posterior horn-free margin. That may have represented prior debridement, or, possibly, an un-displaced focal radial tear not seen on the prior MRI scan from 20 April 2017.[39]
[39]PCB 128-129; Exhibit “AH”
59Mr Arogundade saw the plaintiff again following the MRI scan.
60On 9 April 2019, Mr Arogundade wrote to the TAC seeking approval to perform arthroscopy and microfracture left-side surgery. In his letter, Mr Arogundade identified that clinical and MRI investigation had confirmed a radial tear in the plaintiff’s lateral meniscus, chondromalacia patella, chondrosis weight-bearing surface medial femoral condyle and superolateral fat pad impingement. He sought approval for knee arthroscopy and microfracture on the left side.[40]
[40]PCB 67; Exhibit “U”
61Mr Arogundade performed the plaintiff’s second surgery to her left knee on 18 April 2019. The operation record noted, contrary to the MRI scan, that there was no tear of the medial or lateral meniscus. There was an osteochondral defect, weight-bearing surface, surrounding chondral flaps, a Grade 1-2 chondral softening of the tibia, a Grade 1 chondral softening of the femur, a Grade 2 chondral fissure of the medial facet and central ridge, and Grade 1 chondral damage of the trochlear.[41]
[41]PCB 68; Exhibit “V”
62On 6 August 2019, the plaintiff was seen by Mr Arogundade following surgery. In his report dated 20 October 2021, Mr Arogundade noted the plaintiff reported that her symptoms had improved as a result of the surgery. Mr Arogundade said the plaintiff had told him she very rarely had pain in her left knee. She was coping well and was still attending physiotherapy sessions with Mr David Walker. Examination of her left knee showed that it was not tender. She had complete range of motion and Grade 4+ quad strength. She was discharged to the care of her general practitioner.[42]
[42]PCB 73; Exhibit “Y”
63On 17 June 2021, the plaintiff consulted Dr Caleb Maina at the Seaport Medical Centre in relation to left knee pain. Dr Maina recorded, in his clinical notes of the same day, that the plaintiff “has left knee pain. started when she drove long distance”.[43]
[43]PCB 69; Exhibit “W”
64Dr Maina referred her back to Mr Arogundade.
65Mr Arogundade saw the plaintiff again on 6 July 2021. It had been more than two years since he performed surgery on the plaintiff’s knee. He reported the plaintiff had informed him she had responded to the surgery well, but upon driving to Harrow, about two hours away, had heard a crack and felt pain in her left knee. It improved, but she reported recurrent episodes of cracking in her knee. A further x-ray and MRI scan were requested.[44]
[44]PCB73; Exhibit “Y”
66An x-ray was taken on 7 July 2021. It found there was normal bone density, alignment and appearances. There was no acute bone injury seen and no cause for pain identified.[45]
[45]PCB 130; Exhibit “AI”
67On 29 July 2021, an MRI scan of the plaintiff’s left knee was undertaken. It found there was marginal spurring at the anteromedial joint and Grade 3-4 mid-weight-bearing chondropathy of the MFC, which had progressed since the prior study. There was a grossly intact mildly subluxed anterior horn/body segment medial meniscus, with a frayed inner-margin body segment/posterior horn. There was an intact joint line and tendoligamentous attachments, with chronic fibrotic repair of the proximal MCL. The patellofemoral joint had largely unchanged lateral infrapatellar Hoffa’s fat pad synovitis, with mild bowing of the overlying proximal patellar tendon. There was mild trochlear dysplasia, with a small convex central groove. The conclusion was there was Excess Lateral Friction Syndrome of the patellofemoral joint and mild progression of chondropathy of the medial femoral condyle.[46]
[46]PCB 131-132; Exhibit “AJ”
68On 19 August 2021, the plaintiff was reviewed again by Mr Arogundade. The x-ray was normal. The MRI scan of her left knee demonstrated excess lateral friction of the patellofemoral joint, and mild chondropathy medial femoral condyle. The plaintiff was referred back for further physiotherapy with Mr Walker; particularly for muscle-strengthening exercises. Mr Arogundade diagnosed an osteochondral defect weight-bearing surface medial femoral condyle and fat pad impingement.[47]
[47]PCB 73; Exhibit “Y”
69By letter dated 19 August 2021, Mr Arogundade wrote to Dr Maina. He noted the plaintiff experienced a recent recurrence of knee pain, which he said occurred “about 5 weeks ago she drove to Harrow about 2 hours away, she heard a crack then painful left knee … feeling of giving way and swelling”. He said she was experiencing recurrent episodes of cracks in her knee and feelings of giving way and swelling.
70Mr Arogundade noted the plaintiff had a high BMI. Examination of her left knee revealed crepitus, positive Clark test and mild tender medial joint line. A repeat x-ray was normal. A repeat MRI scan of the left knee demonstrated excess lateral friction at the patellofemoral joint and mild chondropathy at the medial femoral condyle.[48]
[48]PCB 71; Exhibit “X”
71The plaintiff subsequently saw the physiotherapist, Mr Walker, quite a few times about once a week, stopping for a period of time, but resuming again in 2023.
72On about 16 June 2023, the plaintiff was involved in another car accident. She hurt her sternum and her left knee hit the dashboard. She said she aggravated her left knee pain temporarily, before it returned to the same level it had been before that car accident.
73An x-ray of the left knee taken on 19 June 2023 showed normal tricompartmental alignment of the left knee. There was no knee joint effusion or fracture demonstrated.[49]
[49]PCB74; Exhibit “Z”; PCB 133 and Exhibit “AK”
74On 21 June 2023, Dr Farideh Lashkary at the Dhauwurd-Wurrung Elderly & Community Health Service Inc (“DWECH Clinic”), an Aboriginal clinic in Portland, requested an MRI scan of the plaintiff’s left knee[50] and referred the plaintiff back to Mr Arogundade for further opinion.[51]
[50]PCB 134; Exhibit “AL”
[51]Ibid
75The MRI scan was conducted on 29 June 2023. It found there was a Grade 3-4 mid to posterior weight-bearing MFC chondral lesion AP, with a diameter of approximately 18 millimetres and medial to lateral extent of approximately 7.5 millimetres, which had been stable since 2021. The medial meniscus was intact. There was a tiny anteromedial joint marginal spur which had developed. In the lateral compartment, there was a grossly-intact meniscus, osteochondral surfaces and joint line tendoligamentous attachments. At the patellofemoral joint, there was a previously-known patella alta, trochlear dysplasia, medial patellar facet intermediate grade chondral thinning/chondral softening, a craniocaudal extent of 6 millimetres and medial to lateral extent of 7 millimetres, slightly more prominent since 2021. The trochlear surface cartilage was grossly intact. There was unchanged excess lateral patellofemoral friction.[52]
[52]PCB 134; Exhibit “AL”
76The MRI report concluded there was stable medial and patellofemoral chondropathy since 2021. There was a predisposition to patellofemoral chondropathy. There was no evidence of contusion, micro- or macro-trabecular fracture, or bone fragment.[53]
[53]Ibid
77On 4 July 2023, Mr Arogundade noted the plaintiff had previously undergone left knee arthroscopy and microfracture for osteotomy defect medial femoral condyle in 2019 following a car accident. She did well post-operatively until:
“… about 3 weeks ago, she was travelling with a friend to Mount Gambier, front seat passenger, she was t-boned by another car, they were travelling about 60km/hr, immediate left knee pain, difficulty bending the knee, grinding sensation.”[54]
[54]PCB 76; Exhibit “AA”
78Upon clinical examination, the plaintiff had an arthroscopy scar, swelling, crepitus, tender medial and lateral joint line and decreased range of motion. Her medial and lateral ligaments were intact. A repeat MRI scan was requested, which confirmed a stable medial and patellofemoral chondropathy left knee and no meniscal tear. Mr Arogundade recommended non-surgical management.[55]
[55]Ibid
Employment history following the transport accident
79Following her injury, the plaintiff said she completed Year 12 at school. She then worked as a childcare worker for about one year, and subsequently worked as a pizzamaker for Rick’s Pizza for about two months. She left Rick’s pizza around the time she fell pregnant with her first child. When her youngest child was about a month old, she started working at Pino’s, a pizza shop in Portland. She did that for about a month.
80In about February 2022, the plaintiff was working at a fish-and-chip shop about three hours per night, two nights a week.
81In about June 2022, she reduced her hours to about three hours per week. The plaintiff said this was because her knee was playing up.
82She stopped working in October 2022, as she said she was struggling standing at work due to knee pain. At that time, she was working around fifteen hours per week. She said, but for the knee pain, she would now be working part-time from about 10.00am to 2.00pm each day during school times.
83She now receives a Centrelink parenting payment and a family tax benefit.
Witnesses and evidence
84At the hearing, the plaintiff gave evidence and was cross-examined. Various documents were tendered, including three affidavits affirmed by the plaintiff on 26 November 2021, 9 June 2023 and 30 August 2023; an affidavit of the plaintiff’s mother, Ms Christine Cunard (“plaintiff’s mother”) affirmed 24 August 2023; an undated claim; various treating medical reports and certificates; medico-legal reports; radiology reports and clinical notes.
85The defendant tendered a report from Dr Simon Journeaux, dated 23 August 2023; the plaintiff’s Year 8 and Year 9 school reports; extracts from the medical records of the Deer Park Medical Centre; clinical records of the Seaport Medical Centre; the Hopetoun Medical Centre; Tristar Medical Group; DWECH Clinic, Portland and District Health, and the clinical records of Mr Quinlay.
The Plaintiff’s medico-legal reports
Dr Iain McLean, consultant orthopaedic surgeon
86Three joint independent medico-legal reports were prepared by Dr McLean. The first report was dated 20 January 2022; the second report was dated 30 May 2022 and the third report was dated 27 July 2023.
87In his first report, Dr McLean took a history of the plaintiff having been struck by a reversing car on the lateral to anterolateral aspect of her left knee in November 2004.
88He also recounted how the plaintiff had told him that, in 2017, she was driving for about two hours, and as she went to move her left knee, it “went crack”. Her left knee was in a slightly flexed position, but then she was unable to bend or move it.
89Dr McLean undertook a clinical examination and opined upon various questions posed to him.
90His diagnosis was of a left knee traumatic soft-tissue injury with associated patellofemoral and medial chondral pathology. The left knee was vulnerable, but previously asymptomatic, with anatomical and functional lower-limb and patellar malalignment and patella alta. There was resultant complex pain, quadriceps/VMO muscle wasting, imbalance and dysfunction.
91Dr McLean was asked to provide his opinion on whether all the symptoms experienced by the plaintiff could be attributable to the transport accident, and if not, whether he could identify those that were not attributable to the accident. His answer referred to a degree of vulnerability with mild anatomical and functional lower-limb and patellar malalignment and patella alta. His opinion was:
“The stated injury initiating the pain and functional disability and problems leading to those two arthroscopic procedures; and then with the continued complex pain and her quadriceps VMO muscle wasting, imbalance and dysfunction; then progressing into this continued and vicious circle of symptoms and functional limitations.”[56]
He did not proffer an opinion on causation.
[56]PCB 91; Exhibit “AB”
92In his second report, Dr McLean opined that the accident resulted in the plaintiff, a vulnerable twelve-year-old girl with anatomical and functional malalignment (valgus, patella alta, lateral tracking), being struck on the lateral side of the left knee. This produced a valgus and twisting stress/load and knocked the plaintiff to the ground.
93He considered that this type of knee trauma in a vulnerable individual (twelve years), could result in ongoing pain and quadriceps muscle wasting, with imbalance and dysfunction. He said there could be instability and sensations of catching, locking and release, variable in nature and extent, associated with some degree of initial chondral pathology, that then progressed with time and age.[57]
[57]PCB 105; Exhibit “AC”
94In his third report, Dr McLean confirmed his instructions that the plaintiff had been struck to the lateral aspect of her left knee by a reversing motor vehicle in November 2004. At the time, she was aged twelve years. He noted he was instructed the impact caused the plaintiff to twist around 360 degrees and to fall to the ground. He noted, though, that the plaintiff:
“… does not recall the specifics other than her mother taking her to the police station and then to Sunshine Hospital Emergency Department undergoing x-rays; and does recall being in the knee splint/brace and onto crutches.”[58]
[58]PCB 109; Exhibit “AD”
95Dr McLean identified that, in 2017, the plaintiff was not experiencing jamming or giving way, and she was able to negotiate the stairs without a brace. She then experienced, without specific incident, about four or five collapsing and buckling episodes with pain before the incident in March 2017, when she was driving a car and her knee went “crack”, and she experienced significant pain.
96He also referred to the further motor vehicle collision on 16 June 2023, when the plaintiff was a front seat passenger. The vehicle was t-boned. The plaintiff struck the dashboard with her left knee. He noted that when she got out of the vehicle, the plaintiff was limping and needed assistance. She was placed in a neck brace and underwent CT scans of her spine and head and was given medication. The pain in her left knee was greater the following day.
97Dr McLean noted the investigations the plaintiff had undergone. He identified the plaintiff had stated she had undergone an x-ray of her left knee on 14 June 2023.[59] Further x-rays on 17 June 2023 and an MRI study on 30 June 2023, reported stable medial and patellofemoral chondropathy since 2021. The plaintiff was noted to have a predisposition to patellofemoral chondropathy. There was no evidence of contusion or micro or macro trabecular fracture. The menisci and cruciate ligaments were intact.
[59]There was no x-ray dated 14 June 2023 included in the PCB.
98Dr McLean’s diagnosis of the injuries sustained by the plaintiff as a result of the transport accident on 19 November 2004, in his third report, was of a traumatic soft-tissue injury and patellofemoral and medial mild chondral pathology, in circumstances where the plaintiff was vulnerable, but previously asymptomatic, and had anatomical and functional lower limb and patellofemoral malalignment.[60]
[60]PCB 115; Exhibit “AD”
99He based his diagnosis on the plaintiff’s honesty and her recollection of her function prior to the stated schoolyard accident, her description of the mechanism of injury, and her ongoing symptoms and functional limitations from that time. Based on those matters, Dr McLean opined that the transport accident had initiated the symptomatic and problematic left knee.[61]
[61]Ibid
100He considered that, because the plaintiff’s left knee was symptomatic and problematic from that time, it was a contributing factor to the plaintiff’s ongoing, pain (which had been further aggravated by the recent motor vehicle accident on 16 June 2023). There was ongoing pain and functional limitations, progression of changes and muscle wasting, imbalance and dysfunction. These all led to progressive early degenerative changes to the plaintiff’s left knee.
101Finally, Dr McLean noted that progression and rate of change would always be multifactorial and difficult to truly determine, other than that high risks would be present and there would be an almost inevitable progression of changes, accelerated by other incidences or injuries and giving way or collapsing.[62]
[62]PCB 118; Exhibit “AD”
The Defendant’s medico-legal reports
Dr Simon Journeaux, consultant orthopaedic surgeon
102Dr Journeaux prepared a report dated 23 August 2023, following an examination of the plaintiff on 14 August 2023.
103In his report, he noted the accident circumstances and the plaintiff’s medical history, treatment and progress, employment history and findings upon clinical examination.
104When examined, Dr Journeaux noted the plaintiff had a valgus alignment of both knees. She had evidence of patellofemoral dysplasia, with a small hypoplastic patella. There was no tenderness referable to the knee and no obvious effusion. She had full active straight leg raise, with an element of hyperextension, and full flexion. There was significant tenderness referable to the anterior knee and both medial and lateral joint lines.
105Dr Journeaux opined that the plaintiff sustained a soft-tissue injury to the left knee as a result of the transport accident, from which she, more likely than not, fully recovered.[63]
[63]DCB 16; Exhibit 1
106The plaintiff then presented in 2017 with symptoms referable to the left knee which were the result of chronic patellofemoral dysplasia. She had the same diagnosis on the contralateral knee, but it was asymptomatic. In addition to patellofemoral dysplasia, she had evidence of an osteochondral lesion of the medial femoral condyle. She also has abnormal biomechanics of the extensor mechanism, with secondary degenerative change of the patellofemoral joint and the medial tibiofemoral compartment.
107Dr Journeaux was of the opinion that, in 2004, the plaintiff sustained a soft-tissue injury to the left knee, from which she fully recovered. Her current presentation did not relate to the injury in 2004. Rather, it related to constitutional or developmental factors which became symptomatic in 2017.
Issues and submissions
Plaintiff’s submissions
108It was submitted on behalf of the plaintiff that she suffered a serious injury to her left knee.
109The plaintiff was a credible and reliable witness, whose account of her injury should be accepted, despite her appearing unsophisticated and the injury occurring when she was twelve years old.
110The plaintiff’s left knee injury was caused by the transport accident. The plaintiff had immediate and ongoing left knee pain following the accident. The pain persisted, particularly after she played sport, and the pain and the plaintiff’s symptoms progressed. The plaintiff’s pain was independently corroborated by the plaintiff’s mother, who was not cross-examined.
111The evidence, including the opinions of the plaintiff’s treating orthopaedic surgeon, Mr Arogundade, and other independent medico-legal experts, including Dr McLean, support a finding that the transport accident in 2004 caused the plaintiff’s current injuries. There were no subsequent supervening events. The incident in 2017 was causatively linked to the 2004 transport accident. The car accident on 16 June 2023 did not result in any new injuries. The plaintiff’s left knee pain was only aggravated temporarily and then returned to the level it was at before the accident.
112The plaintiff’s claimed impairment consequences meet the threshold required to establish a “serious injury”.
Defendant’s submissions
113The Defendant submitted the plaintiff did not suffer a serious injury as a result of the transport accident in 2004. It accepted the plaintiff had a serious injury at the date of trial, but submitted there was no causal link between the incident in 2004 and the development of the condition which required surgery in 2017 and 2019. The evidence supported the view the plaintiff’s current pain and dysfunction arose because of constitutional developmental factors in her knees, and was caused by a medical condition, rather than the transport accident.
114If there was a causal link between the transport accident and the plaintiff’s current injuries, the plaintiff also sustained a subsequent injury, or an exacerbation of her previously existing left knee injury, in a motor vehicle collision in 2023. The consequences of the 2023 car accident had not been disentangled sufficiently for the plaintiff to establish that the aggravation injury was a “serious injury”.
Credit
115The defendant sought to demonstrate that the plaintiff was not a trustworthy witness and had exaggerated the nature and extent of her claimed left knee pain. The plaintiff was cross-examined about the lack of complaint she made to her medical practitioners about her left knee from 2004 to 2017; her understanding of her diagnosis of Hoffa’s fat pad impingement; and events after 2017, in which her left knee injury could have been aggravated.
Lack of complaint about left knee pain to medical practitioners
Lack of complaint about left knee pain to medical practitioners
116The plaintiff was cross-examined about her lack of complaint to medical practitioners about pain from her left knee in the period following the transport accident in 2004 to 2017, when she said she experienced pain in her knee while driving to Hopetoun. It was suggested the lack of complaint cast doubt on the cause of her injury being the transport accident and called into question the extent of pain she claimed to suffer.
117In her first affidavit, the plaintiff outlined she had ongoing left knee pain after the transport accident. She said she was able to cope with the pain. She described being told by doctors at the time:
“… just to wait until [she] was fully grown, just to see how [she] went with [her] knee pain.”[64]
[64]PCB 10
118In her second affidavit, the plaintiff confirmed that since the accident, she has had pain in her left knee which comes and goes. She said her doctors told her around the time of the transport accident, that there was not much they could do for her.
119In her third affidavit, she clarified that her doctors had told her there was not much they could do for her until she was much older and grown up. The plaintiff also explained that over the years when she complained about the pain in her left knee to her mother, she was told to “suck it up” and “it will be okay”. She said she felt like there was not much she could do about the pain, and she put up with it. But in 2017, when she was driving, her knee locked up and she felt quite a lot of pain. This evidence was non-specific as to when “over the years” the plaintiff complained about pain in her left knee.
120The plaintiff’s mother deposed that since the transport accident, the plaintiff had complained to her on and off about her knee pain and had said the pain was worse in cold weather. She described observing the plaintiff having left knee pain, seeing it swollen and observing how it affected the way she moves. She said she told the plaintiff to “suck it up” and “you’ll be right”. She advised the plaintiff to use an ice pack.
121The plaintiff agreed she consulted medical practitioners at the Deer Park Medical Centre from 2004 to 2008 and at the Seaport Medical Centre from 2009 to 2017. The consultations had been for a range of problems. The plaintiff could not recall whether she had ever told the doctors at the Seaport Medical Centre she had a problem with her left knee, but she agreed she had attended that practice more than ninety times between June 2009 and early 2017, and if she had mentioned a problem with her left knee, it would have been noted in the records of the Seaport Medical Centre.
122It was put to the plaintiff that, if her knee had been causing her problems over many years, she would have raised that in one of the medical consultations. The plaintiff disagreed. She sought to explain the lack of complaint about the pain in her left knee by noting she was a child at the time of the transport accident, her mother looked after medical matters and told her to “suck it up”. She further contended she had been told by the doctors, when she was injured in 2004, to wait until she was “fully grown, just to see how she went with her knee pain”,[65] before taking any steps in relation to her left knee.
[65]Transcript (“T”) 3, Lines (“L”) 25-26
123The plaintiff was challenged in cross-examination about her evidence.
124The accuracy of the plaintiff’s memory of the conversations she had with doctors in 2004 was questioned, particularly given she only had a general recollection of being at the Sunshine Hospital and seeing doctors. For instance, she could not recall the doctor she saw and had only a vague memory of “bits and pieces” of what was said.[66] She could not explain how she remembered the advice she deposed to having received.
[66]T26, L23 to T27, L19
125Next, it was suggested that, even if she received advice when she was injured in 2004, to wait until she was fully grown to see how her knee went, she took no steps when she turned eighteen or subsequently up to 2017, when her knee locked up and she suffered pain while driving to Hopetoun, to have any ongoing pain in her left knee investigated. She accepted this.[67] She also agreed it was as a result of the drive to Hopetoun that her left knee locked up and that it locked up in such a way that she felt a lot of pain, requiring her to see Dr Rahim, the general practitioner at the Hopetoun Medical Clinic, and ultimately to be referred to Mr English.[68]
[67]T27, L20-23; T28, L2-9
[68]T28, L10-16
126The plaintiff sought to rely on the evidence of her mother, that the surgeon, who was a registrar, told her mother that “due to [the plaintiff’s] age and with her bones still growing, that surgery would not be recommended until she was 25 years old.”[69] It was contended this meant surgery was required, and also that the plaintiff had to wait until she was twenty-five years old for the surgery to be performed. Because the plaintiff was not twenty-five years old until 2016, it explained why the plaintiff had not complained to a doctor about any ongoing pain from 2004 to 2017.
[69]PCB 25
127Having considered the plaintiff’s mother’s evidence, I do not accept that surgery on the plaintiff’s left knee was required following the transport accident.
128First, although the plaintiff and her mother deposed to the plaintiff suffering ongoing pain from 2004 to 2017, both the plaintiff’s evidence and the plaintiff’s mother’s evidence, failed to identify when the plaintiff made complaints of pain and the nature of the complaints other than in a very general sense. In my view the lack of specificity from both the plaintiff and her mother in this regard tends to support the unreliability of their evidence.
129Second, there was no suggestion in the medical material in 2004 that surgery would ever be required. The x-ray revealed no fractures or other traumatic injury which might have provided an indication for surgery. The lack of evidence suggestive of a need for surgery casts further doubt on the reliability of the accounts of both the plaintiff and her mother, of the conversations they purportedly had with the doctors in 2004, and the suggestion that the plaintiff needed to wait until she was grown up or had reached twenty-five years, to seek surgical treatment for her left knee.
130Third, a need for surgery was inconsistent with other evidence at the time of the transport accident. For instance, when the plaintiff was injured, she was not taken by her mother straight to the hospital, but, rather, was taken to the police station. This provides an indication that the plaintiff’s mother and/or the plaintiff did not consider that medical treatment was urgent and tends in favour of the conclusion that the injury was not of such a serious nature that surgery would be required. Further, once at the hospital, the transport accident was noted in the Sunshine Hospital Emergency Department Attendance Record, dated 19 November 2004, to have involved a “low speed car reversing at school car park”,[70] suggesting a low-impact collision.
[70]PCB 43
131The plaintiff was also observed to have “slumped, did not fall, did not hit her head.”[71] She was cross-examined about the history she had given to Dr McLean about the circumstances of the transport accident, and specifically how it occurred, and whether she fell. The plaintiff initially said a motor vehicle reversed, striking her on the left knee, causing her to fall to the ground.[72] It was then put to her that, in fact, the Sunshine Hospital Emergency Department Attendance Record, dated 19 November 2004, noted that she was struck by a car, but did not fall to the ground. The plaintiff disagreed that she did not fall. However, when questioned further about this, she accepted she only vaguely remembered the incident. She conceded that, if the report from the hospital said she did not fall to the ground, then “obviously” the hospital was right. She said she was bumped by the car but did not fall to the ground. Having considered the evidence on this point, in my view, the plaintiff did not fall.
[71]Ibid
[72]T29, L18 ꟷ T30, L16
132Similarly, the plaintiff was cross-examined about a handwritten progress note from the plaintiff’s treating medical practitioner, dated 1 December 2004, referring to the accident on 19 November 2004, and a subsequent incident on 1 December 2004, in which the plaintiff was alleged to have been tripped by a boy and to have landed on one of her knees. The plaintiff had no recollection of the incident.
133Fourth, there was nothing contained in the plaintiff’s affidavits which supported the contention the plaintiff was ever told by the doctors in 2004 she would need surgery on her left knee. The plaintiff’s recollection in relation to her left knee pain was simply that she was told by doctors at the time:
“… just to wait until she was fully grown, just to see how she went.”[73]
[73]T3, L24-25
134Even if it could be said that meant the plaintiff understood she needed surgery when she was “fully grown”, the plaintiff was “fully grown” either by the time she was eighteen, or within a matter of a few years thereafter. The plaintiff was twenty-five in 2017, when her left knee locked up. The plaintiff’s evidence did not explain the further lack of complaint about pain, nor failure to seek treatment for an ongoing left knee injury until 2017.
135Fifth, the plaintiff said nothing in her affidavits about her mother having told her – either in 2004 or later – that she had to wait until she was twenty-five to seek surgical treatment. The plaintiff’s evidence was simply, when she complained about pain to her mother, her mother told her to “suck it up”.[74] Surgery was not referred to at all in the plaintiff’s affidavits. Had the plaintiff recalled being given advice to undergo surgery, either directly from her doctors or via her mother, it is something, reasonably, that she would have been expected to include in her affidavit material. The fact that it was not included, tends against the conclusion that it was recommended to the plaintiff in 2004, that she would need to undergo surgery.
[74]T42, L7; T52, L13;
136Sixth, the plaintiff’s mother’s evidence, in any event, was not that the surgeon recommended the plaintiff undergo surgery. Her evidence was that “due to [the plaintiff’s] age and with her bones still growing, that surgery would not be recommended until she was 25 years old”.[75] That evidence does not necessarily mean surgery was recommended in 2004, or that it would have been recommended when the plaintiff turned twenty-five. At most, it was an expression of a need to re-visit what, if any, treatment was required for the plaintiff’s left knee after she turned twenty-five. What was apparent from the plaintiff’s mother’s evidence, was that her own recollection of the advice she said she received from the doctors in respect of the plaintiff’s left knee was vague and uncertain.
[75]PCB 24
137Seventh, even if the plaintiff’s mother had an accurate recollection of the advice received by her from the plaintiff’s doctors in 2004, namely, that the plaintiff needed to have surgery on her left knee when she turned twenty-five, because the plaintiff did not depose to knowing she was required to have surgery, or to knowing her mother had been told surgery would have to wait until she was twenty-five, the plaintiff’s mother’s evidence does not provide an explanation for why the plaintiff failed to make complaints to her doctors after she turned eighteen at the end of 2009, and in the years that followed up to 2017.
138It was put to the plaintiff, that after the initial medical treatment she received for her left knee injury in 2004 following the transport accident, there were no attendances on medical practitioners in respect of her left knee until 2017. She agreed with this.
Plaintiff’s medical condition 2017 – Hoffa’s fat pad impingement
139In the plaintiff’s first affidavit she said she now tries to put more weight through her right leg and gives her left leg a rest when she can. A couple of times a day her left knee locks. Sometimes when that happens, the plaintiff experiences pins and needles. Sometimes in the night she has to get up and walk around because of left knee pain.
140She also detailed that if she sits too long, she gets painful cramping in her left knee. She said she has to stand up and move around when that happens. She also said she finds it hard to stand for long periods with her left knee pain. She did not say she has had those consequences since the transport accident. Rather, I considered they were consequences that she is currently experiencing.
141In her second affidavit, the plaintiff said she now finds it harder to concentrate and focus due to knee pain and she pushes on despite the knee pain. Again, she did not say those were consequences she has experienced since the transport accident.
142Dr McLean in his first report identified that the plaintiff described having constant pain and awareness of her left knee almost 24 hours a day seven days a week. He reported she had described pain particularly around the medial peripatellar and infrapatellar region of the left knee.
143Dr Journeaux in his report dated 23 August 2023, reported that the plaintiff had indicated she had constant anterior knee pain which was aching/sharp in character and always around an 8/10 intensity on a visual analogue scale. The pain was aggravated by all weight bearing activities such as getting in and out of chairs, walking and going up and down stairs, hills and inclines. She also described intermittent locking which occurred daily and recurrent swelling.
144He referred to a letter from Mr Arogundade dated 20 October 2021 which noted he had first consulted the plaintiff on 12 February 2019. Since then, she had experienced left knee pain. Mr Arogundade described the pain as constant anterior, medial and lateral knee pain which was worse with climbing ladders, playing with her children and squatting.
145It was suggested to the plaintiff that, in 2017, her left knee locked and she experienced pain and that occurred because of a medical condition she had which was independent of, and unrelated to, the transport accident. The plaintiff agreed with those propositions. She did not know the nature of her medical condition; but she was aware she had attended the Ballarat Hospital[76] and had been seen by four surgeons.[77] She also knew her treating orthopaedic surgeon, Mr English, was going to have a discussion at the hospital about her case.[78]
[76]T43, L25-26
[77]T44, L18-24
[78]T43, L17-19
146She outlined, in cross-examination, that when she was seen by Mr English after her meeting with the surgeons at the Ballarat Hospital, she was not sure whether she was told by the doctors they were considering re-alignment of her lower limbs to offload the diseased part of her knee. When it was put to her that she had told Mr English her right knee was giving her trouble and he wondered if it was going the same way as her left knee, she replied, “[n]o, I did not.”[79] She contended Mr English must have been mistaken. This was despite agreeing she had been told about issues associated with her being offered surgery, including that she smoked, was overweight and was overloading her knees.[80]
[79]T45, L18
[80]T46, L14 – T47, L17
147It was put to the plaintiff:
Q: “… And so he did say to you, though, ‘Well, I think this problem might be going, as it were, into the other knee’. And you, I guess, thought ‘Well, I do have pain in the other knee’, and he said ‘Well, you need to lose some weight. If is affecting both of your knees’. Is that how it went? ---
A: Yeah.
Q: Yes. And so the right leg was discussed in consultation with him because of the fact that you were overweight? ---
A: Yes.
Q: And so the point of this consultation is, I suggest to you, that you got this problem with your left knee that he's identified?---
A: Yes.
Q: You got a similar problem in the right knee which he's identified with you?---
A: Yeah.
Q: And that you need to lose some weight so that these knees will, if you were, get some respite, some relief?---
A: Yeah.
Q: And this was all discussed in the context of you having had pain in both knees? ---
A: One knee.
Q: Well, you had pain in the right knee as well?---
A: But the left knee was the one that we were focusing on.
Q: I understand that. I (indistinct) exactly what you're saying, but you had pain in the right knee?---
A: Yes.
Q: And the pain in the right knee was caused, I suggest to you, by the condition that he had previously diagnosed. Is that right?---
A: Yes.
Q: Hey?---
A: Yes.”[81]
[81]T47, L21 ꟷ T48, L14
148Ultimately, the plaintiff was taken back to her consultation with Dr Rahim in April 2017 and the opinion of Mr English that her MRI scans suggested she was suffering from Hoffa’s fat pad impingement and that diagnosis was most likely the explanation for her anterior knee pain.[82] It was put to her that Mr English told her that. She replied, “[v]aguely, I remember”.[83]
[82]T50, L2-9
[83]T50, L11
149Having considered the plaintiff’s evidence, I find that in 2017, her left knee locked and she experienced pain because of the functional anatomical condition she had with her knees, which was independent of, and unrelated to, the transport accident.
Subsequent events aggravating Plaintiff’s left knee
150The plaintiff was then cross-examined about the knee pain she said she experienced after her knee locked up in 2017 while she was driving to Hopetoun, subsequent incidents of knee pain and events after 2017. This was intended to further demonstrate that there were other additional causes of her left knee pain.
151The plaintiff was asked about Mr Arogundade’s report, dated 16 August 2019, which had identified that surgery had improved the plaintiff’s left knee symptoms “significantly”, such that she was very rarely experiencing pain. Specifically, it was suggested that she “rarely had pain in the left knee”. The plaintiff agreed with that and said, “[y]es, if it’s written there.”[84]
[84]T40, L23-26
152The plaintiff was then asked about a further incident in 2021, when she had driven to Harrow about two hours away and had heard a “crack”, and had experienced a painful left knee. The plaintiff agreed that, between 2019 and 2021, she had a good period, but then experienced pain and cracking on the drive to Harrow.
153Subsequently, the plaintiff agreed there was a further incident on 16 June 2023, when the plaintiff was involved in a further car accident and the car was “t-boned”, resulting in significant knee pain. As a result of that incident, the plaintiff accepted she suffered more pain and required further treatment.[85]
[85]T41, L9-14
Conclusion on credibility and reliability
154The plaintiff struck me as an unsophisticated witness, with very limited memory of events in 2004. She was not dishonest, but her evidence was at times unreliable. There were some matters, such as whether she had a fall in the days after the transport accident, and if so, onto which knee she fell, about which she had no memory. For other incidents, her memory was unclear. For instance, although the plaintiff had general memories about the circumstances of the transport accident, she could not recall who she spoke with, or the details of the conversations occurring at the time. She was only twelve years old when she was injured in the transport accident and given she would have been experiencing pain at the time, this is understandable, and perhaps to be expected.
155Other aspects of the plaintiff’s evidence, specifically her evidence about her knowledge and understanding of her diagnosis of Hoffa’s fat pad impingement, called into question whether the plaintiff was seeking to downplay the relevance of that diagnosis. I consider the plaintiff was aware of the diagnosis; however I formed the view, because she was an unsophisticated witness, she did not fully understand what it meant. Specifically, it was not clear she appreciated that Hoffa’s fat pad impingement could account for the pain and dysfunction she was suffering in her left knee independently of the transport accident. For that reason, I did not form the view she was deliberately trying to downplay the effect of the diagnosis. I am not prepared to make an adverse credit finding on that basis. Nevertheless, given the unreliability of the plaintiff’s evidence generally, I propose to adopt considerable caution before accepting it. Similarly, insofar as medical opinions rest on the histories provided by the plaintiff, I also propose to exercise care before accepting such opinions.
What injury did the Plaintiff have at the date of the hearing?
156It was not in dispute between the parties that the plaintiff is currently suffering from an injury to her left knee.
157At the time of the transport accident, the x-ray report noted there was a clinical indication of injury to the lateral aspect of the plaintiff’s left knee. The records of the Sunshine Hospital recorded that there was tenderness over both the medial and lateral joint lines. An injury to the muscle or tendon of the knee was diagnosed.
158When seen by Dr Hallebone on 24 November 2004, and as reflected in Dr Hallebone’s Initial Medical Certificate for the TAC, the plaintiff was considered to have a soft-tissue injury to her left leg.
159I find that, following the transport accident, the plaintiff sustained a soft-tissue injury to the lateral aspect of her left knee, with tenderness in her knee and over both the medial and lateral joint lines.
160In 2017, the plaintiff said her knee locked up while driving to Hopetoun. She attended her general practitioner, Dr Rahim, who referred her to Mr English. The plaintiff presented to Mr English with anterior and medial left knee pain. An MRI scan was taken on 17 March 2017, which found evidence of patella malalignment. Dr English also noted the plaintiff had “well padded lower limbs”.[86]
[86]PCB 54
161The plaintiff was referred for a further MRI scan on 20 April 2017, which found patella alta demonstrated, with associated Hoffa’s fat pad impingement features. There was also Grade 2 medial patella and central medial joint chondrosis, with ulceration. Mr English opined that Hoffa’s fat pad impingement was the most likely explanation for the plaintiff’s anterior knee pain.
162Surgery was performed by Mr English on the plaintiff’s left knee on 27 April 2017, at which time patellofemoral joint softening and early fissuring on the lateral facet of the patella were noted. The trochlear surface was normal. There was extensive delaminating chondral damage on the medial femoral condyle of the medial compartment on the weight-bearing surface. The impinging fat pad was excised, the unstable cartilage was trimmed from the medial femoral condyle and debris was washed out.
163Subsequently, Mr English opined that the problem with the plaintiff’s cartilage most likely did not relate to the transport accident.
164I find that, although the incident in 2017 when the plaintiff’s left knee “locked up” while she was driving to Hopetoun was relatively non-descript, there was, subsequently, left anterior and medial knee pain, patella malalignment, patella alta associated with Hoffa’s fat pad impingement features, patellofemoral joint softening, early fissuring on the lateral facet of the patella, extensive delaminating chondral damage on the medial femoral condyle on the weight-bearing surface, numerous loose bodies in popliteal hiatus, and unstable cartilage at the medial femoral condyle.
165To the extent the plaintiff suggested the injuries in 2017 were simply a progression of the earlier injuries in 2004, I disagree. The plaintiff’s injuries, at this time, were different from her injuries in 2004. They were not a progression of the symptoms of the injury suffered by the plaintiff in 2004. The symptoms the plaintiff experienced following the transport accident, in my view, resolved, and the 2004 injury was asymptomatic immediately prior to the 2017 injury.
166Although the plaintiff said, in her first affidavit, she currently has “constant left knee pain. It feels like someone is taking a hammer to [her] knee”,[87] that does not assist in determining when that pain arose, or mean that the pain has been consistently present since the transport accident. The plaintiff’s first affidavit says nothing about when the pain arose. Her second affidavit says only that “[s]ince the accident, [her] left knee pain was there, and it would come and go. But since being an adult, it has got worse”.”[88] Her third affidavit recounts how her mother was “often massaging [her] knee when it was painful”[89] and that, over the years, she remembered complaining to her mother about her knee pain and being told to use an ice pack. It also records that, when her left knee locked up, she felt quite a lot of pain and that was when she did something about it.
[87]PCB 11 at paragraph [9]
[88]PCB 15 at paragraph [4]
[89]PCB 20 at paragraph [2]
167None of the plaintiff’s affidavits explain the nature of the pain, or how frequently it was experienced by the plaintiff in the years following the transport accident up to 2017. Further, the plaintiff included nothing in her affidavits about the four or five episodes of buckling and collapsing of her knee which she said she experienced before her left knee locked up when she was driving to Hopetoun in 2017. Had the plaintiff been experiencing pain that was significant, one might have expected reference to it to be included in the plaintiff’s affidavits. The lack of detail about the nature of the pain she says she experienced, and how frequently she experienced it, supports the position that the pain and symptoms experienced by the plaintiff from the transport accident resolved.
168Further, although the plaintiff’s mother also described the pain she said the plaintiff experienced, her evidence was, to a large extent, recounting what she was told by the plaintiff. For that reason, I do not place significant weight upon it.
169I find that, if there was any pain experienced by the plaintiff from 2004 to 2017, it was minimal, and can be explained by pre-existing, but otherwise asymptomatic, functional or developmental factors. That conclusion is supported by the advice given by Mr English to the plaintiff that she needed to undergo a re-alignment of her lower limbs to offload the diseased part of her femoral condyle.
170On 17 November 2018, the plaintiff sought a second opinion from Dr Rana about her knee. She was referred to Mr Arogundade for review.
171A further MRI scan, taken on 22 February 2019, revealed that there was superolateral Hoffa’s fat pad localised oedema in the context of Hoffa’s Fat Pad Impingement Syndrome. There was patella alta. There was a Grade 1-2 chondromalacia patella change at the medial facet of the patella, and chondrosis involving the central weight-bearing surface of the medial femoral condyle. Additionally, there was subtle truncation at the lateral meniscus posterior horn free margin, which may have represented prior debridement or an un-displaced focal radial tear not seen on the previous MRI scan taken on 20 April 2017.
172Mr Arogundade considered there was a radial tear in the plaintiff’s lateral meniscus, chondromalacia patella, chondrosis weight-bearing surface, medial femoral condyle, and superolateral fat pad impingement. He sought approval for knee arthroscopy and microfracture to the left side.
173The plaintiff underwent arthroscopy a second surgery, on 18 April 2019, at St John of God Hospital in Warrnambool. When the operation was performed, no tear of the medial or lateral meniscus was found. There was an osteochondral defect, weight-bearing surface, surrounding chondral flaps, a Grade 1-2 chondral softening of the tibia, a Grade 1 chondral softening of the femur, a Grade 2 chondral fissure of the medial facet and central ridge, and Grade 1 chondral damage of the trochlear.
174I find that, prior to the plaintiff undergoing the second surgery, she had localised superolateral Hoffa’s fat pad oedema, patella alta, a trace of deep infrapatellar bursal fluid, a Grade 1-2 chondromalacia patella change at the medial facet of the patella, chondrosis involving the central weight-bearing surface of the medial femoral condyle, osteochondral defect weight-bearing surface surrounding chondral flaps, a Grade 1-2 softening of the tibia, a Grade 1 chondral softening of the femur, a Grade 2 chondral fissure of the medial facet and central ridge, and Grade 1 chondral damage of the trochlear.
175Having considered the nature of the plaintiff’s condition at the date of the second surgery on 18 April 2019, in my view, the symptoms she was displaying represented a progression of the functional development of the plaintiff’s mal-aligned anatomical features that first presented in 2017.
176The plaintiff coped well following the second surgery. Her knee was not tender, and she had complete range of motion and Grade 4 plus quad strength. That remained the case until 2021 when she consulted Dr Maina at the Seaport Medical Centre in relation her left knee.
177Dr Maina referred the plaintiff back to Mr Arogundade.
178Mr Arogundade saw the plaintiff again on 6 July 2021. The plaintiff explained she had felt a crack and pain in her left knee, this time upon driving to Harrow.
179An MRI scan, dated 29 July 2021, found marginal spurring at the anteromedial joint and Grade 3-4 mid-weight-bearing chondropathy of the medial femoral condyle, which had progressed since the prior study. There was a frayed inner margin of the medial meniscus. The patellofemoral joint had largely unchanged lateral infrapatellar Hoffa’s fat pad synovitis, with mild bowing of the overlying proximal patellar tendon. There was mild trochlear dysplasia, with a small convex central groove. There was Excess Lateral Friction Syndrome of the patellofemoral joint and mild progression of chondropathy of the medial femoral condyle. Mr Arogundade diagnosed an osteochondral defect weight-bearing surface of the medial femoral condyle and fat pad impingement.
213Since the transport accident, the plaintiff said she has also had trouble getting dressed and putting shoes and socks on. She finds this more difficult now because her left knee locks up on her at times. She also tends, now, to sit on the bed, whereas before the accident she was fine with getting dressed. She avoids wearing heels and said that aggravates her knee pain.
214The plaintiff also described finding it hard to get down low or being on her knees to clean the bathroom, or the bath, because of her left knee pain. She also generally found it hard to be on her feet too long, to do housework, to mop, or to carry a big bag of washing. She finds it hard putting weight through her left leg because of knee pain. She said, before the transport accident, she was able to perform these tasks. However, now she finds it hard being on her feet too long. She does smaller shops and tends to cook simple meals.
215The plaintiff has a garden, but does not feel able to do much in the garden because she cannot get down low because of her knee pain. She described generally finding it hard to bend her knee. She avoids squatting or getting down low. In her second affidavit, she also said she now avoids kneeling because it tends to increase her knee pain. The plaintiff explained that, prior to the transport accident, she had assisted her mother with the gardening by pruning the ferns and bushes, digging holes for planting and doing general weeding. She said she had no problems doing that.
216In her third affidavit, the plaintiff explained that her partner, Zack, now assists her with the housework because of her left knee pain and helps with lifting the shopping.
217The plaintiff’s mother deposed to the plaintiff sitting on the bed, or the couch, to put on her pants, socks and shoes, due to knee pain. Before the accident, she had no trouble getting dressed. Similarly, housework and shopping are difficult due to the standing involved. Her partner does a lot of those things now. The plaintiff struggles to pick up her two-year-old son and is unable to be as active with her children as she would like to be.
218Dr McLean reported, in his first report, that the plaintiff has modified her activities so as not to stress her knee. When she is at home, she can only stand for about ten minutes and then she sits and does any chores between moving and sitting. She is aware of some variable “crunching” noises within the knee when she is walking and doing activities.
219Although the plaintiff described experiencing difficulties at the date of trial with activities of daily living, her evidence was opaque in relation to when she first began to experience those difficulties. Her affidavits made clear she was able to perform activities of daily living prior to the transport accident and said she currently has trouble performing similar activities, but they did not clearly identify, other than the difficulties she said she experienced shaving her legs or bending down, when the plaintiff began to experience those difficulties. The lack of clarity means I am unable to be satisfied, on the balance of probabilities, that the plaintiff experienced difficulties as a result of the transport accident.
220In relation to the difficulties the plaintiff said she experienced shaving and bending down, I accept that, at times, the plaintiff may have experienced these difficulties. However, I am not satisfied, given the non-specific nature of when the plaintiff experienced those difficulties, in the face of other evidence, such as the plaintiff’s weight, and her mother’s evidence about other falls after the transport accident, that these are consequences of the transport accident.
221Before she was injured, the plaintiff said, in her first affidavit, she played netball. She described that she now generally avoids playing sport because of her left knee pain. Her mother confirmed, in her affidavit, that before the accident, in primary school, the plaintiff played a lot of netball and T-ball. Now she avoids playing sport.
222In her first affidavit, the plaintiff also said she finds it harder now walking for long periods, which impacts what she is able to do.
223She would love to be able to enjoy kicking a football with her son, take her children on long walks, or generally be active with her children. She cannot do these activities because of knee pain. She confirmed this in her second affidavit.
224In her second affidavit, the plaintiff said she tries to go walking each day to strengthen her knee.
225Dr McLean noted, in his first report, before the accident the plaintiff did general sports at school. Following the injury she did not return to any sporting activities.
226I have found that the plaintiff continued to participate in sport following the transport accident. For that reason, I find that any impact the plaintiff now experiences on her sporting pursuits – such as finding it harder to walk for long periods, to kick a football, or to generally be active – was not a result of the transport accident.
Consequences at 27 April 2017 – first surgery
227Having considered the evidence detailed already in relation to the plaintiff’s pain following the incident when she was driving to Hopetoun in 2017, I find the plaintiff experienced pain in 2017. If there was a causative link to the transport accident, it is necessary to consider whether the pain the plaintiff experienced in 2017 was produced by the transport accident or some other later intervening cause.
228I have found the plaintiff's left knee was not causing her pain from 2004 to 2017, or at most, any pain was mild and occasional. What then occurred in 2017, without specific incident, were four or five episodes of collapsing, buckling and pain culminating in the plaintiff’s left knee going “crack” while she was driving to Hopetoun. The medical evidence referred to anterior and medial knee pain. It did not refer to lateral knee pain which had been present in 2004. Further, for the first time it referred to impingement and alignment features associated with the anatomy of the plaintiff’s left knee. I am satisfied based on the medical and other evidence, that if the plaintiff was experiencing any pain as a result of the transport accident, it was at most very minor. The preponderance of the pain she was experiencing was a result of development factors which first became symptomatic at that time.
229In her first affidavit, the plaintiff said she finds it hard to drive for long periods without her knee locking up. She said “I feel like I have got a stiff knee when I am driving”.[98] In her second affidavit, she explained that although she was not driving when the transport accident occurred, she previously did not have trouble having her knee in a fixed position. It is now difficult to have her knee in a fixed position.
[98]PCB 11 at paragraph [9]
230In her affidavit, the plaintiff’s mother said the plaintiff finds it hard to drive for long distances because her knee locks up.
231Dr McLean identified, in his first report, that the plaintiff had informed him that she was able to drive. If she was driving for any time, there was stiffness and a need to move her knee. On occasion there was more severe knee pain and difficulty bending.
232I accept that the plaintiff may have experienced some knee pain and difficulty bending her knee at some point after the transport accident. As with other aspects of the plaintiff’s evidence, it was unclear when the plaintiff first experienced difficulty driving. Her evidence was obscure.
233From what the plaintiff recounted to Dr McLean though, the knee stiffness she experienced driving appeared to have first arisen in 2017. Dr McLean reported that the plaintiff had moved house in 2017. He said:
“● …At that time not having jamming or giving way and able to negotiate the stairs and without a brace.
●Then without specific incident, aware of some collapsing, buckling episodes with pain and having a number of collapsing episodes of around four or five; before the stated incidences and stiffness relative to driving a motor vehicle and the specific date of March 2017; … .”[99]
[99]PCB 110
234Having considered the evidence on this point, I find that the plaintiff began to experience difficulties driving in 2017, shortly before the plaintiff’s knee locked up when she was driving to Hopetoun. Given the time that had elapsed since the transport accident, and the onset of what I consider to be developmental factors, I find they were not the result of the transport accident.
Consequences at 18 April 2019 – second surgery
235The evidence did not enable me to identify, other than in a general sense, the impairment consequences experienced by the plaintiff prior to the second surgery on 18 April 2019. Having considered the medical evidence, it is apparent that the at this time the plaintiff was experiencing considerable difficulties because of the alignment of her patella rather than lateral pain, as had been the case in 2004. That being so, I find the pain the plaintiff was experiencing on 18 April 2019 was predominantly because of the developmental factors associated with the anatomy of her knee, which first became apparent in 2017, I find there was a progression of pain after that date.
Consequences at 6 July 2021 when the Plaintiff was seen again by Mr Arogundade upon referral from Dr Maina
236According to the report dated 20 October 2021, when the plaintiff saw Mr Arogundade on 6 August 2019, she told him that, following the second surgery, her symptoms “definitely improved”, she was “coping well” and “very rarely [did] she have pain in her left knee”.[100] When the plaintiff saw Mr Arogundade on 6 July 2021, she informed Mr Arogundade that she had continued to do well until “5 weeks prior to her current consultation”;[101] that being five weeks prior to 6 July 2021. At that point “she drove to Harrow about 2 hours away, she heard a crack and then painful left knee, it improved days later, however, she has recurrent episode of cracking in her knee”.[102]
[100]PCB 73
[101]PCB 73
[102]PCB 73
237Having considered the medical evidence, it was evident that since 2019, the plaintiff had developed additional problems with her knee including trochlear dysplasia, grade 3 to 4 mid weight bearing chondropathy of the medial femoral condyle and Excess Lateral Friction Syndrome of the patellofemoral joint. In my view, the plaintiff’s anatomy accounted for the preponderance of the plaintiff’s pain.
238I find that, prior to the incident when the plaintiff was driving to Harrow five weeks prior to 6 July 2021, the plaintiff’s knee pain had resolved and was asymptomatic. The pain she subsequently experienced resulted from that incident. Alternatively, it was a progression of the pain that was first noted in 2017. In either case, in my view, the pain the plaintiff was then experiencing arose because of the developmental factors associated with the anatomy of her knee, which first became symptomatic in 2017.
Consequences at the date of the trial
239On 16 June 2023, the plaintiff was in another car accident where she hurt her sternum and aggravated her left knee pain.
240The plaintiff said she experienced an initial flare-up of pain, but it then returned to the state it was before the accident.
241As identified, following that accident, she now experiences her knee locking a couple of times a day and sometimes experiences pins and needles when that happens. Sometimes in the night she has to get up and walk around because of the left knee pain. She now finds it harder to concentrate and focus due to knee pain. If she sits too long, she gets painful cramping in her left knee. She has to stand up and move around when that happens. She also finds it hard to stand for long periods with her left knee pain. Her pain is now more constant, and the plaintiff is aware of her knee twenty-four hours a day, seven days a week. She has anterior knee pain which is aching/sharp in character and always around an 8/10 intensity on a visual analogue scale, and pain particularly around the medial peripatellar and infrapatellar region of the left knee. The pain is aggravated by all weight-bearing activities, such as getting in and out of chairs, walking, and going up and down stairs, hills and inclines, climbing ladders and squatting.
242Given the plaintiff’s evidence, I accept that these are her current symptoms. I also accept these were present before the most recent car accident on 23 June 2023. Having considered the evidence in relation to the plaintiff’s pain, however, this does not result in the conclusion that the pain therefore resulted from the transport accident. I find the pain the plaintiff is currently experiencing is a consequence of the current state of her left knee, associated with developmental anatomical factors which arose either in 2019 when she was driving to Harrow, or which were a progression of the developmental factors which first became symptomatic in 2017.
243In her first affidavit, the plaintiff said she feels the mobility in her left knee is restricted. She takes her time when walking and she is slower when walking on uneven ground. Her mobility has reduced.
244In her second affidavit, the plaintiff said she tries to avoid lifting things, especially heavy things. She avoids putting weight through her left leg and left knee because of knee pain.
245In her affidavit, the plaintiff’s mother described the plaintiff’s knee locking up when she played sport. When the plaintiff was in Year 12, she described an incident occurring where the plaintiff’s knee locked up on her and she had a fall. She was in a knee brace for about a week. She described the plaintiff having falls because her knee had locked up and had given way.
246The plaintiff’s mother also described how she can see the plaintiff struggles to sit for a long time with her knee pain. Her knee can lock and she feels pain. She also finds it hard to stand for a long time. She finds it hard to walk on uneven ground. The plaintiff’s mother has also observed her having difficulty bending, squatting or getting down low because of knee pain. She had no problems doing those things before the accident.
247Dr McLean, in his first report, recorded that the plaintiff informed him she is constantly aware of her left knee and has variable pains and random “locking up”. She walks slowly and cautiously with her children and avoids inclines. She is particularly careful with uneven surfaces or sudden twisting, which causes sharp pain through and across the knee. If she has to go upstairs, she leads with her right knee, and she is particularly careful descending, for fear of her left knee “locking up” or “giving way”. The plaintiff reported she is limited with only a partial squat relative to the left knee. She does not kneel. If she needs to bend, she takes the weight on the right lower limb and bends with her back.
248On examination, Dr McLean noted the plaintiff had to push off from a seated position and took more weight across her body on to the right lower limb. When standing, she displayed bilateral relatively flat feet, mild bilateral valgus lower limb and mild patellofemoral functional malalignment. She was only able to squat to around 50 to 60 degrees of knee flexion, and was limited by tightness and discomfort relative to her left knee. Flexing and extending her left knee against gravity was done slowly and cautiously. She was aware of some random clicks, but no obvious crepitus. There was a mild lateral tracking of the patella into terminal extension.
249In his second report, Dr McLean’s findings on examination were very similar to his first report.
250In his third report, Dr McLean noted upon examination of the plaintiff on 17 July 2023, that the plaintiff had struck her knee on the dashboard in the car accident on 16 June 2023. She had pain in her left knee that was more severe the next day. She returned to the Emergency Department and was given a knee brace and an x-ray. MRI studies and a review by her general practitioner were arranged. She was seen by Mr Arogundade on 27 June 2023 and 4 July 2023. At the date of the examination the plaintiff had increased pain relative to her left knee with more swelling. She needed to use a single crutch and was aware of crunching noises again to her left knee.
251Upon examination the plaintiff was 161cm tall and weighed 103 kilograms. Her left knee was held in a stiff, more extended position. She was able to push off from a chair when in a seated position. When standing and attempting to weight bear onto both limbs, she displayed bilateral relatively flat feet, mild bilateral valgus lower limb and mild patellofemoral functional malalignment. She was unable to perform any part squat or loading relative to the left knee. She could only flex her knee to around 60 degrees, being limited by general peripatellar anterior tightness and discomfort. There was quadriceps muscle wasting of the left thigh.
252The plaintiff did not depose to her mobility having been impacted following the transport accident, and her evidence under cross-examination was she did not participate in sport in Year 12. It was not offered. Her evidence only dealt with the state of her mobility at the date of trial. Unlike her mother, she did not depose to having fallen in Year 12.
253As I have referred to previously, I found the evidence of both the plaintiff and her mother in relation to what they recalled, unreliable. That being so, I am not satisfied that the evidence of the plaintiff, or her mother, accurately reflects the state of the plaintiff’s mobility following the transport accident. While I accept the plaintiff’s mobility is currently affected, I find that any current impacts on the plaintiff’s mobility were not due to the transport accident, but are a result of her current injuries, which are due to developmental factors associated with her knee anatomy, which became symptomatic again following the incident while she was driving to Harrow in 2021, or which were a progression of developmental factors which first became symptomatic in 2017.
254The plaintiff deposed to taking no medication for her left knee injury. In relation to the treatment she is receiving for her left knee injury, she deposed, in her second and third affidavits, she continues to see Dr Lashkary, general practitioner, at the DWECH Clinic in Portland.
255In her second affidavit, she said she was no longer seeing a physiotherapist, as she felt it was not helping much. However, in her third affidavit, she said she now sees Mr Walker about once a week for her left knee.
256In her first affidavit, the plaintiff said that, before the accident, she slept on her right side. While she still sleeps on her right side, now she tries to sleep with a pillow between her legs, because when she has both legs together, her left knee hurts. If she uses a pillow, she does not wake up as often with left knee pain. Sometimes in the night she walks around because of the left knee pain.
257The plaintiff said, in her second affidavit, that if she gets a lot of swelling in her left knee, she puts an icepack on it as needed.
258The plaintiff’s mother described how the plaintiff tells her she has broken sleep due to knee pain, compared to before the accident, when she slept “like a rock”.[103]
[103]PCB 25 at paragraph [17]
259While the plaintiff’s sleep may now be impacted, the evidence does not permit me to conclude that has been the situation since the transport accident. The plaintiff’s, and the plaintiff’s mother’s, affidavits do not claim this is the case. Given the equivocalness of the plaintiff’s, and the plaintiff’s mother’s, evidence on her sleep, I find that any effect her left knee injury has had on her sleep, was not the result of the transport accident, but arose more recently, and relates to the current condition of her knee.
260In her second affidavit, the plaintiff said that her social life has reduced because of her left knee pain. She has girlfriends who ask her to go walking with them, but she avoids doing this because long walks aggravate her knee pain. She feels like she is missing out on having good social catch ups with her friends.
261Because I have found that any impact on her sporting pursuits, such as her ability to go walking, was not the result of the transport accident, I also do not find that her social life has been reduced because of the transport accident, and this is not a consequence I take into account.
262In her second affidavit, the plaintiff explained that she and her partner were living in separate places. She said they were trying to sort things out, but when they were intimate she found it hard, especially if she had to bend, or put weight through her knee in certain positions. She said that had put a strain on their relationship. In her third affidavit, the plaintiff said she and her partner, Zack, now live together. I find there has been no impact on the plaintiff’s relationship.
Summary of consequences
263Following the transport accident in 2004, any pain the plaintiff suffered resolved, but even if there was some subsequent pain in the period from 2004 to 2017, it was mild and very occasional.
264Following the incident when the plaintiff’s knee locked up in 2017 when she was driving to Hopetoun, the consequences were that the plaintiff experienced a moderate to high degree of pain and knee stiffness when driving. Her knee would jam or give way, buckle and collapse.
265Following the first surgery, the plaintiff continued to experience a progression of pain. This continued to the date of the second surgery and arose from developmental factors associated with the anatomy of her knee, which first became apparent in 2017.
266Prior to the incident when the plaintiff was driving to Harrow five weeks prior to 6 July 2021, the plaintiff’s knee pain had resolved and was asymptomatic. The second surgery had been effective at reducing her pain. The pain she subsequently experienced resulted from the incident occurring five weeks prior to 6 July 2021. Alternatively, it was a progression of the pain that first arose in 2017. In either case, the pain the plaintiff was then experiencing arose because of the developmental factors associated with the anatomy of her knee, which first became apparent in 2017.
267At the date of the trial, the plaintiff continued to have pain in her left knee which she claimed was substantial.
268She takes no medication.
269There has been no impact on her relationship.
270She has impacts on her mobility, her ability to play sport, and to socialise. However, for the reasons I have identified, I do not consider these consequences result from the transport accident.
Did the additional impairment consequences sustained on 23 June 2023, qualify as an aggravation injury and if so, was the aggravation injury a “serious injury” as defined in the Act?
271The defendant submitted the plaintiff failed to disentangle her injuries and their consequences to identify what injuries and consequences arose from which motor vehicle accident or other cause. Having considered the evidence, the real essence of the plaintiff’s case is that there was a single injury which degenerated.
272It is, in the end, a question of fact whether the various events produce a single injury or are to be treated as aggravations of the original injury.[104] The plaintiff has the burden of proof. I cannot speculate. Having considered the totality of the evidence, I formed the view that the injury the plaintiff suffered as a result of the transport accident was a distinct injury to that which emerged in 2017.
[104]Grech v Orica Australia Pty Ltd (2006) 14 VR 602; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398 at paragraph [107] and Shah v Victorian Workcover Authority [2022] VSCA 95 at paragraph [13]
273I have identified the plaintiff’s medical condition and impairment consequences at distinct points in time. Having considered all of the evidence, the consequences about which the plaintiff now complains, arose, at the earliest, in 2017, when she was driving to Hopetoun. Even if those consequences are now sufficiently significant to constitute a serious injury, this is only because they reflect the continued degeneration of the developmental anatomical left knee condition which first arose in 2017, and not because they are attributable to the transport accident in 2004.
274I find that any further pathology the plaintiff displayed after 2017 was not an aggravation of the injury she suffered in the transport accident.
Conclusion
275Taking each of these matters into account, I have concluded that the plaintiff did not suffer a serious injury as a result of the transport accident.
276For that reason, I dismiss her application for leave to commence proceedings for damages.
277I will hear the parties as to costs.
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