Dixon v Transport Accident Commission
[2012] VCC 1339
•5 October 2012
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00269
| AUDREY DIXON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 27 August 2012 | |
DATE OF JUDGMENT: | 5 October 2012 | |
CASE MAY BE CITED AS: | Dixon v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1339 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – injury to the right leg and psychiatric impairment
LEGISLATION CITED – Transport Accident Act 1986, s93 – serious injury – paragraph (a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis (2000) 30 MVR 441; Petkovski v Galletti [1994] 1 VR 436; Bezzina v Phi & Anor [2011] VCC 423
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with Mr M Nightingale | Slater & Gordon Ltd |
| For the Defendant | Mr P Jens with Mr I Gourlay | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the transport accident (“the accident”) which occurred on 23 December 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-s4(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There:
“Serious injury means –
(a) serious long term impairment or loss of a body function
(c)severe long-term mental or severe long-term behavioural disturbance or disorder;”
4 The body functions relied upon in this application are acceleration and aggravation of pre-existing degeneration in the right leg; in particular, the right knee, and psychiatric impairment.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relies on three affidavits, two sworn by the plaintiff on 7 June 2011 and 1 August 2012 and one sworn by her daughter, Dianne Dixon, on 1 August 2012.
7 The plaintiff was cross-examined. The plaintiff relied on medical reports and both parties relied on other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long-term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under paragraph (a) and the latter under paragraph (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] at [140]
10 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[3]
[3]Richards v Wylie (2000) 1 VR 79
11 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[4]
[4](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29
12 In respect to paragraph (c) of s93(17) the word “severe” was used as a stronger word than “serious” in paragraphs (a) and (b) of s93(17).[5]
[5]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
13 The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[8]
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis (supra) at 846
14 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[9]
[9]Supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
The Issues
15 Counsel for the defendant submitted that the plaintiff does not satisfy the “very considerable” test. In assessing whether the claimed injury satisfies the “very considerable” test, I am required to examine the impact of the injury on the plaintiff as a whole. When examining the consequences of the claimed serious injury, I am required to look at how they affected the plaintiff as she was, and would likely have been absent the injuries she sustained in the transport accident. This included looking and considering the effect (and likely effect in the future) of the plaintiff’s pre-existing injuries.[10]
[10]Bezzina v Phi & Anor [2011] VCC 423
The Plaintiff’s Evidence
16 In her affidavits sworn on 7 June 2011 and 1 August 2012, the plaintiff deposes that:
· On 23 December 2008, she was riding her scooter in Bacchus Marsh when she was hit on the left side by a car. The impact of the collision caused her to fall onto the bonnet of the car and then onto her right side in a garden.
· She was taken by ambulance to The Royal Melbourne Hospital. She had injuries to various parts of her body, including both legs and knees. She received medication and physiotherapy, as well as a compression bandage to relieve pain and swelling in her right knee. She commenced using a brace on her right knee due to pain and it giving way.
· In the twelve months following the accident, her left knee deteriorated. She had an operation in her left knee and lower leg, which provided increased movement, and reduced the pain in her left knee.
· Since the accident, the pain in her legs and knees, particularly the left knee, is stronger and more frequent than prior to the accident and she takes more pain medication. Standing and walking become intolerable after shorter periods. Her knees, in particular her left knee, is more stiff. The injuries affect her mobility and steadiness on her feet. Bending is difficult.
· Previously, she was able to do her own washing, make her bed, cook and maintain her garden. She now requires assistance with these tasks as well as with shopping and attending appointments. She has difficulty attending social activities, such as Legacy meetings and church lunches.
· Since the accident, she feels frustrated, sad and depressed by her loss of independence. She continues to think about the accident and has nightmares. Her energy levels have decreased; she quickly becomes frustrated, irritable and angry.
· Prior to the accident, she had been diagnosed with arthritis in both knees and had pain in both legs between her knees and ankles. She received treatment for her knees and legs, including attending hydrotherapy about once a week and taking occasional medication, including Panadeine Forte. She used a walking stick outside of the house and travelled on her scooter. She now has difficulty walking with only a walking stick and getting off her motorised scooter.
17 In her affidavits sworn on 1 August 2012, Ms Dianne Dixon deposes that:
· She is the daughter of the plaintiff.
· Despite having previous problems with her knees, at the time of the accident, the plaintiff was relatively active and independent. Since the accident, the plaintiff has been less mobile.
· Since the accident, she has had to help the plaintiff at home, including with preparation of meals, changing clothes and bed linen, washing dishes and gardening. She also has to take the plaintiff to appointments.
The Plaintiff’s Evidence in Cross-examination
18 The plaintiff gave the following pertinent evidence:
· In August 2007, she would go by taxi to a meeting or lunch and use her walking stick. Before she got her scooter and had to walk around, she would use the frame. She purchased her scooter in June 2007.
· In June 2008, she visited the Peter McCallum Clinic and agreed that she told the Clinic she got about with her walker and scooter.
· In October 2008, she consulted her general practitioner about right knee pain and instability in the leg. It did not cause her to fall as she had her walking stick or used a frame. Her doctor prescribed Panadeine Forte and Endone. X-rays confirmed right knee osteoarthritis, and her general practitioner referred her to Mr Powell. Mr Powell discussed a knee replacement. She decided against the operation. She thought it was better to have the knee she had than no leg at all.
· In December 2008, she was involved in her accident.
· In February 2010, the left knee was operated on.
· In November 2010, she attended the Peter McCallum Clinic for review. She agreed that the comment that she was independent, motivated and optimistic related to her attitude to her cancer and how she had got through it.
· She said before the accident, she only used a walking stick up until the accident. She could go to the letterbox using the stick. Now she has to have something in front of her, as she is not stable. She had a frame, but did not have to use it in the house. Now she uses a four-wheel frame in the house.
· In 2011, she had a stroke, which she described as “minor”. She had some minor right arm and right leg weakness for a few days and slurring of her speech. She was ready to leave hospital when she was found to have an infection in her left leg which required her to be hospitalised for three months.
· She agreed a lot had changed since the accident. She said “I lost my independence that day and nothing’s been the same since”. After the accident, she had difficulty doing her shopping because she had to take her frame with her and that was carried on her scooter where her shopping bag had previously been stored. Before the stroke, she would use the scooter to go for a drive, visit her daughter, attend meetings and go out to lunch on Mondays. In August 2011, she agreed she was improving. She developed right hip pain, which settled with a magnetic underlay blanket.
· She said before the accident, she had home help for one-and-a-half hours per fortnight. Now she gets additional assistance from the Shire, three days a week to shower her.
· She agreed that she is living by herself and is managing. She sees the physiotherapist weekly and travels by scooter, or her daughter drives her if she is not working.
19 In re-examination, the plaintiff gave the following pertinent evidence:
· She said since the accident, she has had to wear a sleeve on her right leg all the time. The right leg was stable before the accident but after the accident, she was no longer able to stand independently; she needs something in front of her, not just a walking stick. She has lost her balance in the right leg since the accident. She gets pain and swelling in the right leg which is worse than before.
· Before the accident, she could shower herself. Since the accident, she has had two falls, and she requires assistance three days a week. She does not like that, as she has lost her independence. Before the accident, she could go to the toilet using her walking stick. Now she has to use a commode, which she does not like.
· Before the accident, she maintained her garden. She could walk around the garden with her walking stick. If she wanted to prune she used the frame to balance the bucket for her clippings. She can no longer garden as she cannot bend down because she requires the wheelie in front of her all the time. She now employs a gardener.
· Before the accident, she did all her own shopping, now she gives her shopping list to her daughter.
· She can no longer cook as she used to as she cannot stand for any length of time. Before the accident, she baked six dozen shortbread and three Christmas cakes. She planned to make sauce in January, and then she would have made pickles. She cannot cook now because she has to hold onto her wheelie. She cannot lift her preserving pan as she has no strength, and she can no longer put a baking tray in the oven.
Investigations
20 Contained in the Court Book and tendered into evidence were the following diagnostic investigations:
§X-ray report – right knee dated 22 October 2008
§X-ray report – right knee dated 23 December 2008
§Trauma CT report angiogram chest, abdomen and pelvis, thoracic and lumbar spine dated 23 December 2008
§X-ray report – chest and pelvis dated 23 December 2008
§X-ray report – left knee and left ankle dated 19 March 2009
§X-ray report – left ankle dated 19 June 2009
§Ultrasound report – left ankle dated 3 July 2009
§X-ray report – pelvis and right hip dated 5 December 2011
§CT report – pelvis dated 9 December 2011.
21 On 22 October 2008, an x‑ray of the right knee disclosed:
“Findings: there is articular cartilage thinning throughout the knee joint but particularly involving the medial compartment where there is virtual denudation of the articular cartilage in the weight-bearing region. There is florid marginal osteophyte formation particularly within the medial compartment compatible with severe osteoarthritis. There is small effusion in the suprapatellar pouch. All bones are ostephenic but no other discrete osseous lesion has been demonstrated.”
22 On 21 January 2010, an x‑ray of the right knee disclosed:
“There is large joint effusion. Multiple punctuate densities overlying the lateral soft tissue may represent soft tissue foreign bodies. Inferior displacement, sclerosis and cortical irregularity of the medial tibial plateau is suspicious for an occult fracture and if there is ongoing clinical concern then a CT scan should be performed.”
The Plaintiff’s Medical Evidence
23 The Royal Melbourne Hospital confirmed that the plaintiff was admitted to the Trauma Unit and reviewed by the Orthopaedic Surgery Unit. Examination showed right knee swelling. Her right knee was x-rayed, which showed no fractures, but demonstrated features of osteoarthritis. She was discharged to rehabilitation in Ballarat on 30 December 2008.
St John of God Hospital
24 A report dated 26 July 2009 confirmed that the plaintiff was admitted to the hospital on 30 December 2008 and discharged on 19 February 2009. The purpose of her admission was rehabilitation following the transport accident in which her right knee was injured. There was swelling of the right knee as well as generalised bruising. On admission, she had a painful and swollen right knee and her inability to carry out activities of daily living were decreased. She was provided analgesia and was required to wear a Tubigrip compression bandage to relieve the swelling and pain. She attended physiotherapy. The prognosis was that that plaintiff could expect to have some degree of knee discomfort for some months after discharge. It was noted that she had pre-existing osteoarthritis of the knees and it was possible that her arthritis may increase, and a component of this could be attributed to the trauma to her right knee.
Dr Woodrow C Wu
25 Dr Wu, the plaintiff’s general practitioner, provided medical reports dated 29 July and 6 November 2009, and 28 February and 8 June 2012. Dr Wu said the plaintiff’s pre-existing left leg lymphoma meant that she was totally reliant on the functionality of her right leg for mobility and independence. He said as a result of the right knee not being as good as it used to be, the plaintiff needed to permanently use a wheeled frame, wheelchair or her scooter for mobility. The plaintiff told Dr Wu previously she was mobile with a single pointstick. He said she required ongoing strong analgesics for her pain and physiotherapy to maintain her strength and joint mobility. It was his view that some of the consequences were related to her underlying lymphoma and age-related osteoarthritis, but there was no doubt the accident contributed to the deterioration in her condition. It was his view that her injury was likely to be permanent and the condition would affect her quality of life.
26 In November 2009, Dr Wu said that prior to the accident, the plaintiff’s mobility was limited by lymphoma which affected the left knee, but since the accident, her mobility and independence had become significantly worse. The deterioration was directly related to the accident.
27 In February 2012, Dr Wu said the plaintiff had not required treatment specific to the injuries sustained on 23 December 2008 since his last report. He said the plaintiff’s prognosis was good, in that the injuries would not be expected to shorten her lifespan. He said the injuries sustained in the motorcar accident accelerated the decline of her underlying arthritic and orthopaedic conditions, and led to her requiring mobility assistance in the form of a wheeled frame much earlier than if the accident had not occurred. The accident had affected her level of pain, with the need for regular strong analgesics, which was an ongoing issue. He said her condition had stabilised, although the degenerative component will continue unabated, which would have occurred regardless of the accident.
28 In June 2012, he reiterated his view expressed in his report of February 2012.
Mr Gerard Powell
29 In November 2008, prior to the transport accident, Mr Powell, orthopaedic surgeon, reported to the plaintiff’s general practitioner that she had right knee end-stage arthritis. He had treated the plaintiff for her lymphoma in the left leg. He said the only alternatives would be for the plaintiff to continue with non-operative measures or to consider a total knee replacement. He had discussed with her the risks of surgery and she had gone away to think about the alternatives.
30 In October 2009, Mr Powell reported to the plaintiff’s general practitioner and said that prior to the transport accident, the plaintiff had maintained her independence well. She was able to do her own cooking and cleaning. Since the accident, the injury to her right knee had impacted on her mobility significantly and she had difficulty doing simple duties of day-to-day care. He thought it was possible that she may come to a knee replacement if the knee became unstable or developed significant arthritis.
Mr Martin Spitzeck
31 In October 2009, Mr Spitzeck, physiotherapist, reported to the plaintiff’s solicitor. Mr Spitzeck had been treating the plaintiff at the Grant Street Physiotherapy and Sports Medicine Clinic.
32 Mr Spitzeck confirmed the plaintiff attended physiotherapy on a weekly basis from February 2009. He said prior to the accident, she was mobilising independently with a walking stick. She was able to walk outdoors and for short distances. Since the accident, she requires a walker to mobilise, her walking distance is much reduced, she does not feel safe walking outdoors, and sit-stand is more difficult to perform. He said her right knee already had signs of marked degeneration, but since the accident, the process had been accelerated. He said improvement in her right knee is limited and treatment had been aimed at pain relief, reduced swelling, improved strength and endurance in her knee and lower leg.
33 In April 2012, Mr Spitzeck said the plaintiff's general condition had declined.
Mr S F Schofield
34 Mr Schofield, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff’s solicitors and provided reports dated 24 March and 8 December 2010, 9 March and 27 June 2011 and 3 May 2012.
35 In March 2010, Mr Schofield said that prior to the accident, it is likely the plaintiff had some arthritis in the right knee, which was not interfering with her daily activities, including gardening. The impact of the accident is likely to have caused further aggravation of the arthritis of the right knee.
36 In December 2010, he said the pain in the right knee was worsening due to the progression of the arthritis and the need to put more weight on that leg to protect the left leg. He concluded the plaintiff was suffering an aggravation of osteoarthritis of the right knee.
37 In June 2011, he reiterated his earlier view and said the transport accident required the plaintiff to need the use of walking aids.
38 In May 2012, Mr Schofield said the transport accident caused some aggravation of the pre-existing arthritis of the right knee. He said the accident played a small part in the aggravation of the right knee. He thought the plaintiff will require a right knee replacement, which will have been brought forward by the accident and will be risky given the chronic controlled injection affecting the left knee prosthesis.
Ms Elizabeth Mullaly
39 Ms Mullaly saw the plaintiff at the request of the plaintiff's solicitor in May 2010. She said the plaintiff admitted her mood was up and down and that she had become uncharacteristically irritable towards her daughter. She said the plaintiff and her daughter described considerable post-trauma anxiety and avoidance of accident reminders, in addition to loss of confidence and self-esteem.
Dr Nathan Serry
40 Dr Serry, psychiatrist, saw the plaintiff at the request of the plaintiff’s solicitors in 2010. It was his view that the plaintiff had no pre-existing psychiatric illnesses. He said as a result of the accident, the plaintiff suffered a PTSD and Chronic Adjustment Disorder with Anxious and Depressed Mood. He said the plaintiff reported a marked impact, having been quite independent and able, and described a significant loss of independence. He said she had been stressed, anxious, frustrated and depressed since the accident. She had been traumatised by the direct accident circumstances. She remains pre-occupied with the accident and tends to ruminate over it. She has intermittent accident-related dreams. She is anxious when out on her scooter, particularly anxious at the accident site, and sensitive to accident reminders. He noted that she had not had any form of psychiatric or psychological treatment. He noted that she had a very positive attitude and level of determination but said she had very significant injuries as a result of the accident, which had appeared to have major changes to almost all aspects of her day-to-day functioning.
Credit of the Plaintiff
41 The plaintiff attempted to answer all questions put to her. She was eager to tell the Court about her injuries and the consequences. Her evidence was at times confusing because she failed to listen to the question. Her evidence as to the chronology of events was difficult to understand, but given that she was eighty years old, I thought it not unreasonable that she be slightly confused. This may have been due to the fact that she had difficulty in hearing. She was not particularly sophisticated, but I formed the impression that she was honest and straightforward. She was not daunted by the process.
Analysis of the Evidence
42 The plaintiff was not medically examined by any doctors on behalf of the defendant.
43 The plaintiff relied upon two affidavits, which confirmed the injuries the subject of this proceeding. Otherwise, the affidavits discussed the other injuries she suffered in the transport accident which were of little relevance to this proceeding.
44 Counsel for the defendant submitted that the loss of function in the plaintiff’s right knee was a consequence of degeneration caused by osteoarthritis and ageing and not a consequence of the transport accident. In support of this submission, counsel relied upon the subpoenaed material, which included extracts of the clinical records from the subpoenaed material, being the clinical records of the general practitioner; Mr Gerald Powell, orthopaedic surgeon; the Peter MacCallum Cancer Centre and the Western Hospital.
45 The clinical notes of the general practitioner indicate that in October 2008, the plaintiff complained of her right knee being increasingly painful and giving way unexpectedly. X-rays of the right knee were performed and showed “severe” arthritis. The plaintiff was referred to Mr Powell. In November 2008, Mr Powell said; of her right knee; that she had end-stage arthritis. He discussed with her the alternatives of non-operative measures or a total right knee replacement. He referred to the fact that if she had surgery to the right knee she would “not have a good leg to stand on”. The plaintiff underwent surgery in respect to the left leg and there was a suggestion that she might require a left knee replacement in 2009. The surgery on the left knee was successful and provided her with a pain-free mobile knee. There was no evidence in the clinical records that she sought further treatment in respect to the right knee. Furthermore, the clinical records of Mr Powell and the Peter MacCallum Cancer Centre confirm that by November 2010, the plaintiff was coping well with her prior non-Hodgkin’s lymphoma, which was in ongoing remission, and her recent pathological fracture of the left femur. Professor Seymour said there were no worrying features. In June 2011, Professor Seymour said there was no evidence of recurrence and it would be extremely unlikely that the disease will recur in the future.
46 All of the plaintiff’s medical opinions accepted that the plaintiff suffered injury to the right knee as a result of the transport accident. I refer to the reports of The Royal Melbourne Hospital, St John of God Hospital, the plaintiff’s general practitioner, Dr Wu, and orthopaedic surgeons, Mr Powell and Mr Schofield. In the report from the St John of God Hospital, it was stated that the plaintiff’s arthritis may increase, and a component of this could be attributed to the trauma to her right knee from the transport accident. In his most recent report, Dr Wu said the injury the plaintiff sustained in the transport accident accelerated the decline of her underlying arthritic and orthopaedic conditions. He said the injury was likely to be permanent and the condition would affect her quality of life. Mr Schofield said there was a definite aggravation of osteoarthritis of the right knee as a result of the transport accident. He said the aggravation caused by the transport accident to the right knee was minor, and her prognosis was poor. Based on the medical evidence, I accept that the plaintiff suffered a compensable injury to the right knee.
47 The injury to the right knee involves an acceleration and aggravation of the pre-existing degeneration in the right leg and, in particular, the right knee.
48 In respect to an aggravation to a pre-existing injury, Southwell and Teague, JJ, in Petkovski v Galletti,[11] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[12]
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
[11][1994] 1 VR 436
[12](supra) at 443
49 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment (or loss) of a body function.
50 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the transport accident was “serious”.[13]
[13]Supra
51 Immediately prior to the transport accident, the medical evidence was the plaintiff had lymphoma in the left leg and end-stage arthritis in the right knee. Dr Wu said that the plaintiff’s pre-existing left leg lymphoma meant that prior to the transport accident, she was totally reliant on the functionality of her right leg for mobility and independence. In October 2008, she decided against a right knee replacement.
52 The plaintiff’s evidence was that the before the transport accident, she lived independently with the assistance of home help for one-and-a-half hours per fortnight. She was able to manage her activities of daily living, including personal care, shopping and cooking. She was able to maintain her garden and perform housework. She would attend meetings and go to lunch in a taxi using a walking stick. She purchased her scooter in June 2007, which enabled her to visit her daughter, go out for rides as she chose and do her own shopping. She owned a walking frame, but did not use it at home.
53 Mr Powell confirmed that prior to the transport accident, the plaintiff maintained a relatively independent life, getting around her house and doing her own cooking and cleaning.[14] Mr Spitzeck said that prior to the accident, the plaintiff was mobile independently with a walking stick. She was able to walk outdoors and for short distances.
[14]Mr Powell at Defendant’s Court Book 52
54 The plaintiff had told Dr Wu that prior to the transport accident, she was mobile with a single point stick.
55 Dianne Dixon, the plaintiff’s daughter, said that despite her mother’s medical problems, she was relatively active at the time of the accident and fiercely guarded her independence. She confirmed that prior to the accident, her mother was able to get about competently with the support of a walking stick. She was able to ride her mobility scooter into town and would get off the scooter and walk into shops with the assistance of her walking stick.
56 I accept that prior to the accident, the plaintiff was able to live a relatively independent life, with minimal assistance. The plaintiff had an active life gardening, socialising, shopping and cooking. She was able to manage her personal care needs, including showering.
57 I must consider the plaintiff’s injuries at the time of trial. Counsel for the defendant submitted there was no medical evidence which adequately delineates the consequences of the injury to the right knee from her other conditions and age-related degeneration.
58 I do not accept that submission. In the report form the St John of God Hospital, it was stated that her arthritis may increase and a component of this could be attributed to the trauma from the transport accident to her right knee. Dr Wu said that some of the consequences were related to underlying lymphoma and age-related osteoarthritis, but there was no doubt the accident contributed to her deterioration. Mr Spitzeck said that since the accident the degeneration in her right knee had accelerated.
59 Before the accident, she could go to the toilet using her walking stick and showered independently. Now she has to use a commode at night, which she does not like. She now has assistance to shower on three days per week.
60 The evidence of the plaintiff is that, because of the instability in her right leg, she is no longer able to garden as she cannot bend down because she requires the walking frame in front of her all the time. She now employs a gardener. She can no longer cook because she has to hold onto her frame. She cannot lift her preserving pan as she has no strength, and she can no longer place a baking tray in the oven. She said the pain and swelling in her right knee is worse than before.
61 Before the accident, she did all her own shopping using her scooter. Now she has to carry her walking frame, which is stored on the scooter where she stored her shopping bag. Now she has to give her shopping list to her daughter. She said, “I lost my independence that day and nothing’s been the same since”.
62 In November 2009, Dr Wu said, since the accident her mobility and independence had become significantly worse and the deterioration was directly related to the accident and led to her requiring mobility assistance in the form of a wheeled frame much earlier than if the accident had not occurred. He said that as a result of the right knee not being as good as it was before the accident, the plaintiff needed to permanently use a wheeled frame, wheelchair or her scooter for mobility. He said she required ongoing strong analgesics for her pain and physiotherapy to maintain her strength and joint mobility.
63 Mr Spitzeck said since the accident, the plaintiff requires a walker, her walking distance is much reduced, she does not feel safe walking outdoors and sitting/standing is more difficult to perform. He said her general condition had declined and she was unable to garden and cook.
64 Mr Schofield said that the plaintiff was required to use walking aides as a result of the accident. In 2012, he said her progress is limited because of the increasing arthritis in the right knee due to its overuse. He reported that she cannot live independently and cannot stand for more than twenty minutes. She now requires assistance with dressing and toileting. She is unable to garden and cook. He thought the accident might bring forward the necessity for a right total knee replacement which will be risky in view of the chronic controlled infection affecting the left knee.
65 The plaintiff’s daughter said that the deterioration in the plaintiff’s mobility as a result of the injuries suffered in the accident was obvious. In hospital she had difficulty standing or walking for short periods of time and she was in substantial pain. She said since the accident, she has assisted her mother at home and taken her to appointments. She helps her mother with the preparation of her meals, cleaning clothes, changing the bed, washing dishes and tending to the garden. Prior to the accident, these were activities that her mother was able to do independently. She said her mother’s mood has deteriorated since the accident. She said her mother has become highly dependent on her for assistance, which makes her mother uncomfortable.
66 The evidence of the plaintiff’s daughter was consistent with the plaintiff’s evidence. Based on their evidence, there have been dramatic changes in the plaintiff’s life since the transport accident.
67 There was evidence that in February 2011, the plaintiff suffered a mild stroke, for which she was hospitalised. She was due to be discharged when she contracted septicaemia, for which she was treated. The evidence was that she is no longer affected by these conditions.
68 I accept that after considering the consequences of the knee injury after the transport accident with the knee injury before the accident, the plaintiff has suffered an additional impairment. The plaintiff is eighty years of age and had a pre-existing degenerative condition in her right knee. I must consider the consequences of this additional impairment to this particular plaintiff. I accept the plaintiff has had consequences to her.
69 I am persuaded, on the balance of probabilities, and in the light of the evidence as a whole, that the consequences the plaintiff suffers satisfy the test. I accept that the pain and suffering consequences to this particular plaintiff are “serious”. I accept that when judged by comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being at least “very considerable” and certainly more than “significant or marked”.
70 As the plaintiff’s consequences have persisted for almost four years without any significant improvement and there is no evidence to suggest improvement in the future, in my view, her impairment is long term.
71 Taking into account all the evidence, I am satisfied that the plaintiff has a long-term serious impairment of her right knee. I have not considered the psychiatric impairment under s93(17)(c) because I have found a serious injury under s93(17)(a).
72 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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