Dimou v Transport Accident Commission
[2012] VCC 401
•13 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04389
| EVANGELOS DIMOU | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2012 | |
DATE OF JUDGMENT: | 13 April 2012 | |
CASE MAY BE CITED AS: | Dimou v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 401 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: causation - whether the transport accident aggravated/accelerated arthritic changes in the knees
LEGISLATION CITED: Transport Accident Act 1986, s.94(3)(d) and (17)
RULING: plaintiff granted leave to bring a proceeding at common law to recover damage for bodily injuries arising out of the transport accident
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy QC With Mr S Jurica | Zaparas Lawyers |
| For the Defendant | Mr A Moulds SC With Mr S Martin | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 29 September 2010 by which the plaintiff applies for leave pursuant to s.93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 8 January 1999.
2 Mr D Hore-Lacy QC appeared with Mr S Jurica of counsel for the plaintiff and Mr A Moulds SC appeared with Mr S Martin of counsel for the defendant.
3 The application is brought pursuant to s.93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under sub‑s.(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under sub‑s.(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the knees.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· the plaintiff tendered his Court Book ("PCB") pages 7- 43: Exhibit A
· the plaintiff tendered the claim form: Exhibit B
· the plaintiff tendered a letter from the TAC dated 8 June 1999: Exhibit C
· the plaintiff tendered a letter from Mr Haw, orthopaedic surgeon dated 23 January 2012: Exhibit D
· the plaintiff tendered an extract from the clinical notes of Dr Barkley: Exhibit E
· the defendant tendered its Court Book ("DCB") pages 1-19: Exhibit1
The Transport Accident
7 On 8 January 1999 the plaintiff was driving his car on Burwood Highway. He slowed down to turn left into a petrol station when his car was struck from behind by another car. This description of the transport accident suggests that the collision was a moderately severe one. His car was pushed into the petrol station nearly colliding with the petrol pump. The other car ended up on the centre median strip.
8 The plaintiff recollects that the seatbelt held him in position in his seat. His legs were thrown up, either hitting the underside of the dashboard or the steering wheel.
The Issues
9 Mr Moulds submitted that the plaintiff suffers from two distinct arthritic conditions in his knees, namely, patellofemoral arthritis and medial compartment arthritis. He submitted that the medical evidence demonstrated that the most that could be said in favour of the plaintiff is that the patellofemoral arthritis has been accelerated or aggravated by the transport accident, but the condition which impaired is the function of the plaintiff's knees is medial compartment arthritis which was not produced or accelerated or aggravated by the transport accident.[1]
[1]Transcript 11 and 26
The Medical Evidence
10 The plaintiff first saw Dr Barkley, general practitioner. He provided a medical report dated 19 October 2000. He did not refer to the date upon which the plaintiff first saw him. Mr Hore-Lacy tendered a page of the clinical notes of Dr Barkley which show that the plaintiff first saw him on 25 March 1999 at which time the plaintiff was complaining of pain in his right knee.[2] At first the plaintiff complained to Dr Barkley of pain in his cervical spine, lumbar spine and left arm. However, Dr Barkley reported that the plaintiff saw him approximately monthly complaining, among other things, of pain in his knees. Dr Barkley was of the opinion that the injuries to the plaintiff’s knees were due to the transport accident. He did not give a specific diagnosis of the injuries to the plaintiff’s knees.[3]
[2]Exhibit E
[3]PCB 21-23
11 In a second report dated 16 September 2010 Dr Barkley reported that his clinical notes disclosed that over the previous 10 years (therefore going back to 2000) the plaintiff had made consistent complaints of the pain. He referred to the diagnostic imaging of the plaintiff's knees undertaken on 20 August, however, he did not refer to the year when the diagnostic imaging was undertaken. I assume the diagnostic imaging was undertaken on 20 August 2010 because it is the same year as his second report. The diagnostic imaging is not reproduced in either Court Book. Dr Barkley reproduced it in his second report:
"Bone mineral density is preserved. Moderate degenerative changes are present in the medial compartments, and the patello-femoral articulations on both sides…"[4]
[4]PCB 24
12 Dr Barkley also referred to an MRI scan which was undertaken on 10 November 2009. The relevant parts of it are:
" Findings: The lateral meniscus is reasonably visualised and appears intact. The body and anterior horn of the medial meniscus are degenerate and mildly mass aerated without clearly defined features of a tear or displaced meniscal fragment.
There is extensive partial and full thickness cartilage in its loss in the medial compartment of the tibiofemoral joint with some osteophyte formation of the articular margins. But reasonable preservation of articular cartilage is noted in the lateral compartment of the tibiofemoral joint. There is extensive partial and full thickness cartilaginous loss in the patellofemoral joint…
Conclusion: Degenerate medial meniscus without evidence of a discrete tear or displaced meniscal fragment. Severe degenerative changes are present in the medial compartment of the tibiofemoral joint with moderate degenerative change in the patellofemoral joint. A small effusion is present. No ligamentous disruption is seen."[5]
[5]PCB 38
13 Dr Barkley referred the plaintiff to Mr Hadley, orthopaedic surgeon. The plaintiff first saw Mr Hadley on 14 August 2000. On examination Mr Hadley noted that neither knee was swollen. The plaintiff had a full range of movement. He detected mild crepitus which was painful. He did not detect any other abnormality.
14 Mr Hadley referred the plaintiff to have x-rays which were taken on 14 August 2000. The x-ray of the plaintiff's knees was normal.[6] However, Mr Hadley inspected the x-rays and noted that there was very slight osteophyte formation on the articular margins of his patellae. He did not note any medial compartment arthritis. Based upon his examination and the x-ray he concluded that the plaintiff had sustained an aggravation of early osteoarthritis of his patellae. His prognosis, relevant to the plaintiff's knees, was that the plaintiff would have recurrent pain in both knees with swelling and clicking due to the aggravation of early arthritis in his patellae.[7]
[6]PCB 29
[7]PCB 27- 28
15 The plaintiff attended the outpatient clinic at the Maroondah Hospital on 1 February 2010 and 28 June 2010. He complained of bilateral knee osteoarthritis with the right knee being more symptomatic than the left knee. He was seen by Ms Pliatsios, orthopaedic surgeon. The relevant parts of her report dated 1 February 2010 are as follows:
"...His right knee is more symptomatic than the left with pain anteriorly and medially, some crepitus but no mechanical symptoms…
Clinically he has varus with a good range of movement of both knees and they are stable. He is tender medially and has palpable osteophytes bilaterally.
An x-ray performed today shows medial and patellofemoral osteoarthritis though with some changes in all three compartments…"[8]
[8]PCB 37A
16 The plaintiff saw Mr Haw on a medico/legal basis on 25 January 2012. He provided a report dated 25 January 2012. On examination he noted that the plaintiff was bowlegged. He also noted that there was bilateral patellofemoral crepitus, and that the plaintiff was markedly tender on the medial joint lines. He examined an MRI scan and a disc describing what he saw on both, as follows:
"The MRI scan of the 10th November 2009 was reviewed and showed an effusion in the right knee, a small cyst in the lateral meniscus, a degenerative medial compartment with a partially extruded medial meniscus and patellofemoral osteoarthritis. An accompanying disc of the knees taken on the 1st February 2010 showed bilateral medial compartment arthritis of an advanced stage as well as patellofemoral arthritis."[9]
[9]PCB 42
17 On the basis of his examination and review of the radiology he expressed the following opinion:
"The diagnosis is one of advancing medial compartment arthritis that is constitutional and patellofemoral arthritis that is likely that have been significantly aggravated by the motor vehicle accident…
It's my opinion that…the motor vehicle accident has accelerated the rate of degeneration in his knees, which was predisposed in any case to significant medial compartment arthritis because of an inherent genu varum…
I do believe the motor vehicle accident accelerated the rate of degeneration of his knees because of the damage to the patellofemoral joint, however it’s not my opinion that on the balance probably is that his knees would be relatively normal for his age group if the motor vehicle accident had not occurred in 1999."[10]
[10]PCB 42-43
18 The latter part of Mr Haw’s opinion is very poorly expressed. My interpretation of what he intended to say is - "on the balance of probabilities his knees would not be relatively normal for his age group if the motor vehicle accident had not occurred in 1999". In other words, the transport accident has taken his knees from what they would have been to a different pathological state.
19 So far it is clear that the plaintiff has medial compartment arthritis and patellofemoral arthritis. Mr Hadley was of the opinion that it was the arthritis of the patellae which was aggravated. Ms Pliatsios found symptoms on examination anteriorly and medially in the right knee, but not in the patellofemoral region. She referred to arthritic changes being present in all three compartments of the knees. Mr Haw found advancing medial compartment arthritis and patellofemoral arthritis. He found a predisposition to medial compartment arthritis because of the genu varum. He did not distinguish between the degree of arthritis in the medial compartment or the patellofemoral region, that is, one region being worse than the other in terms of arthritic change. He firstly referred to the transport accident accelerating the rate of degeneration of his knees, that is, his left knee and his right knee stating that the acceleration had occurred because of damage to the patellofemoral joint.
20 Mr Brendan Dooley, orthopaedic surgeon examined the plaintiff for the defendant on 6 March 2001 principally for the purpose of an impairment assessment and an assessment of the plaintiff's capacity for work. His opinion, therefore, is limited in its relevance. He could not find any evidence of any residual injury to either knee joint. The only x-rays he saw to were those taken on 14 August 2000.[11]
[11]PCB 39
21 Mr Michael Dooley, orthopaedic surgeon examined the plaintiff for the defendant on 23 January 2012. On examination he found symmetrical varus deformity of both knees. He found some mild laxity related to medial tibial bone loss secondary to medial compartment osteoarthritis. At the time of his examination he had a plain x-ray of the plaintiff's knees undertaken on 1 February 2010,[12] and an MRI scan.[13] His only reference to the MRI scan was that it showed evidence of degeneration of the medial meniscus.
[12]The x-ray is the same one referred to by Ms Pliasios at PCB 37A
[13]I presume it to be the same MRI scan at PCB 38
22 Mr Dooley accepted that impact injuries of the kind described by the plaintiff are common. The nature of the injury can result in ongoing intermittent anterior knee pain. It involves some damage to the articular surface of the patellofemoral joint. It can improve slowly with the sufferer experiencing intermittent pain. He was also of the opinion that such an injury could be associated with the development of post-traumatic osteoarthritis of the patellofemoral joint in time. Such an injury would not be associated with the development of post-traumatic osteoarthritis of the tibiofemoral joint, that is, medial compartment arthritis. Having said that Mr Dooley then said the following:
"…I cannot recall treating a patient with osteoarthritis of the knee joint that related to impact injuries of the knees in this sort of circumstance. In clinical medicine one learns to never say never and never say always. I accept that many forms of injuries to joints have a possible potential of leading to arthritis in the longterm. I believe also that it is important to give a patient the benefit when there is any doubt in this setting. Overall however, it would be my view that in Mr Dimou’s case, on the balance of probabilities, there was no relationship either directly or indirectly of osteoarthritis of his knee joints with the motor vehicle accident of 1999."[14]
[14]DCB 15
23 It would appear that what Mr Dooley intended to convey was that he accepts that the mechanism of injury complained of by the plaintiff can cause an injury resulting in intermittent pain, but he does not accept that such an injury would cause the development of arthritis. It is on that footing that he completely discounted any relationship between the transport accident and the appearance of arthritis in the plaintiff’s knee whether in the medial compartment or the patellofemoral joint.
24 In a supplementary report dated 1 March 2012 Mr Dooley gave a general analysis of the knee joint and the presentation of a patient with symptomatic degenerative osteoarthritis of the knee joint. He said it mainly affects the medial compartment, but in that setting there would also be some arthritic change affecting the patellofemoral and lateral compartments as well. He added that medial compartment osteoarthritis is symmetrical. Radiological changes in the knees are almost a mirror image. It is the foregoing which he says is consistent with the condition of the plaintiff on clinical examination and on radiological findings.[15]
[15]DCB 17
25 Mr Moulds carefully took me through the medical reports. He submitted that the evidentiary burden which shifts from the plaintiff to the defendant has been discharged by the defendant and in that regard he referred to the aggregate effect of the opinions expressed by Mr Dooley in both his reports. He closed his submissions as follows:
"Your Honour in my submission would have to take the view that the most that can be said for this accident is that it's accelerated an aggravation by way of an acceleration of the patellofemoral condition but it's been completely subsumed by an unrelated condition to the very same joints which form the basis of the body function impairments that are relied upon in this case. In my submission, you can't possibly be satisfied in those circumstances that the consequence of the lesser condition are serious. That is the case, Your Honour."[16]
[16]Transcript 26
26 Mr Hore-Lacy relied upon the same evidence referred to by Mr Moulds, however, he submitted that there was a clear concession by Mr Michael Dooley that the injury to the plaintiff’s knees is causally connected to the transport accident.
27 Furthermore, Mr Hore-Lacy asked Mr Moulds to admit that the plaintiff was prescribed Mobic[17] after September 2009 which was paid for by the TAC. Mr Hore-Lacy submitted that the plaintiff's use of Mobic is for treatment of musculoskeletal conditions suffered by the plaintiff in the transport accident including his knees. He submitted that it is an admission by the defendant that it has accepted liability for treatment for the injuries to the plaintiff’s knees.
[17]An anti-inflammatory
Disposition
28 I accept that as a result of the impact the plaintiff's knees were thrown up, either hitting the underside of the dashboard or the steering wheel.
29 I am not entirely sure that there is as much controversy in the medical evidence as contended for by Mr Moulds. I have summarised the evidence and what I believe the effect of it is. Mr Hadley accepts that there is an aggravation of early osteoarthritis of the patellae. Mr Haw said that he believed that the transport accident had accelerated the rate of degeneration of the plaintiff’s knees because of damage to the patellofemoral joint. It seems to me thus far that there is strong support for the conclusion that the plaintiff did have patellofemoral arthritis which was accelerated/aggravated in the transport accident.
30 Mr Dooley does not appear to disagree. He was unequivocal in his analysis of the mechanism of the injury to the plaintiff's knees. He made particular reference to that being a common cause of injury; that it would involve damage the articular surfaces of the patellofemoral joint, and that such an injury could be associated with the development of post-traumatic osteoarthritis of the patellofemoral joint in time, but not the tibiofemoral joint, that is, the medial compartment.
31 Mr Dooley’s real thesis is that clinically and radiologically the plaintiff has medial compartment arthritis, and to a lesser extent patellofemoral arthritis. The mechanism of injury cannot be associated with the development of post-traumatic osteoarthritis in the tibiofemoral joint, that is, the medial compartment. Therefore, he concluded that there could not be a relationship between the transport accident and the development of osteoarthritis in the plaintiff’s knees. The acceptance of that thesis depends upon a rejection of the opinions of Mr Hadley and Mr Haw.
32 I do not accept the submission made by Mr Moulds that the opinions of Mr Dooley and Mr Haw are the same, or at least similar. Where Mr Haw differs is quite clear and distinct. He accepts that there was medial compartment arthritis and patellofemoral arthritis which was constitutional, but he unequivocally stated that the transport accident accelerated the rate of degeneration of the plaintiff's knees because of damage to the patellofemoral joint. That can only mean that he concluded that it is the major injury and source of symptoms experienced by the plaintiff. If not it is strange why he referred to one compartment of the knees only when expressing that opinion.
33 In the end, and on the basis of the opinions of Mr Hadley and Mr Haw, I find that the mechanism of injury probably resulted in the injuries described by Mr Dooley, and resulted in an aggravation or acceleration of the patellofemoral arthritis which was present in the plaintiff’s knees at the time when the transport accident occurred.
34 Mr Moulds submitted that there is an alternative basis upon which I should find against the plaintiff. That was that if there had been aggravation of only the patellofemoral arthritis, and I accepted the evidence of Mr Dooley that the mechanism of injury could not be associated with the development of post-traumatic arthritis of the medial compartment, then there were two forms of arthritic change in two distinct compartments resulting in the same consequences. He submitted that the failure of the plaintiff to disentangle one from the other is fatal.
35 I do not need to deal with that submission because of the conclusion I have reached that I accept the evidence of Mr Hadley and Mr Haw, and reject the opinion of Mr Dooley that the medial compartment arthritis has not been aggravated or accelerated.
Consequences
36 Mr Moulds limited his submissions to an analysis of the injury. He made practically no submissions of any material kind regarding consequences. Whilst he did not admit that if I found in favour of the plaintiff, on the analysis of the injury, that it must follow that the plaintiff succeeds.
37 However, should I be wrong about my understanding of the position occupied by Mr Moulds I have no hesitation in accepting the evidence of the plaintiff referred to in his affidavits sworn 1 February 2011[18] and 23 August 2011,[19] and what he says are the consequences of his bilateral knee injuries. It is clear from the plaintiff's affidavits that he considers that his right knee is far worse than his left knee. His mobility is seriously affected by the impairment of function of his right knee. He needs to take medication for pain relief. His daily activities are affected in significant ways. Given that there was no challenge to any of those matters then I have no hesitation in accepting them.
[18]PCB 7-12
[19]PCB 13-14
38 What is also clear from the medical evidence is that it is likely that the plaintiff will require bilateral knee replacements in the future.
39 Mr Hore-Lacy submitted that the primary basis for the application is the impairment of function of the plaintiff's right knee. In the circumstances of my acceptance of the plaintiff's evidence and the medical evidence I have little hesitation in concluding that the consequences to the plaintiff of the impairment of function of his right knee meets the statutory test of being serious.
Conclusion
40 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law to recover damages for bodily injuries arising out of the transport accident.
41 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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