Gallagher v Transport Accident Commission
[2020] VCC 182
•5 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02327
| ATTRACTA SARAH GALLAGHER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 31 January 2020 | |
DATE OF JUDGMENT: | 5 March 2020 | |
CASE MAY BE CITED AS: | Gallagher v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 182 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles – paragraph (a) case
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; O’Donnell v Reichard [1975] VR 916; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
Judgment: Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Ms V Katotas | Zaparas Lawyers |
| For the Defendant | Mr J L Batten with Ms A Ryan | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident on 22 August 2014 (“the accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘Serious injury’ means –
(a) serious long-term impairment or loss of a body function;
… .”
4 The application was brought pursuant to sub-paragraph (a) of the definition of “serious injury”.
5 The plaintiff’s case is that by reason of the transport accident, she suffered an injury to her left hip.
6 In forming a judgment as to whether the consequences of an injury are “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’?”[1]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
7 It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
8 As set out in s93(17) of the Act, the relevant injury must be long term.
9 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
10 The Court must assess whether the injury is “serious” for the purposes of the Act as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] The task of assessing the pain and suffering consequences of an injury has been held largely to be a question of impression and value judgment.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[4]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (ibid) at paragraph [52]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
11 In determining the application, the Court must give reasons that disclose the path of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
12 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7]PetkovskivGalletti (ibid)
13 Applying the principles set out in Petkovskiv Galletti,[8] in an application like this where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury, or the consequences of the additional injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and long-term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[10]
[8]Petkovski v Galletti (ibid) at 443
[9]Petkovski v Galletti (ibid) at 444
[10]Petkovski v Galletti (ibid)
14 The plaintiff swore two affidavits. She also relied upon an affidavit from her friend, Ms Nora Goncalves. Ms Goncalves was not required to attend for cross-examination.
15 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[11] Neither party required any of the treating medical practitioners or medico-legal experts to attend for cross-examination.
[11]The Plaintiff’s Court Book was marked as exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
16 I have read all of the tendered material. In this Judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
17 The plaintiff was born in Galway, Ireland, in August 1953. She is presently sixty-five years of age.[12]
[12]Ex P1, p8
18 The plaintiff is separated from her husband. She presently resides in Penrith, New South Wales.[13] She has two adult children.[14]
[13]Ex P1, p9
[14]Ex P1, p8
19 The plaintiff completed secondary school in 1971, aged eighteen. After completing high school, she worked in a department store in clothing and, later, within the cosmetics section of the store. She has also worked in offices doing administration-type duties, as well as in various retail stores.[15]
[15]Ex P1, pp8-9
20 At the start of 2001, she worked as a volunteer teacher’s aide helping students and working in the canteen at her son’s school. In mid-2001, she began working in a preschool centre, doing childcare on a casual basis.[16]
[16]Ex P1, p9
21 In or about 2009, she obtained a position with the Department of Education working on a “bus run,” picking children up in the morning and driving them to school and then picking them up from school and driving them home. She also worked with the Penrith City Council, doing childcare in different centres in the municipality. In 2010, she was interviewed for the position of full-time childcare assistant. She was then offered a position for twelve months and was required to be interviewed every twelve months.[17]
[17]Ex P1, p9
Previous health issues
22 In 2003 or 2004, the plaintiff was diagnosed with hypothyroidism and began taking thyroxine tablets.[18]
[18]Ex P1, p10
23 On 3 September 2010, the plaintiff fell down some stairs at her home and fractured the neck of her left femur and her left wrist. On 23 September 2010, she had an open reduction and internal fixation with a sliding hip screw. She was off work for about one month.[19]
[19]Ex P1, p10
24 The plaintiff deposed to the fact that she had a good recovery from these injuries. She said that her left hip “recovered completely,” except that there was some slight shortening of her right leg and she developed a limp. In her affidavit material, she deposed to the fact that she “had no pain” associated with this.[20]
[20]Ex P1, p11
25 In or about January 2012, she had an x-ray of her left hip as she had “begun experiencing pain”. The x-ray showed some osteoarthritic changes. She saw a specialist, Dr Rami Sorial, orthopaedic surgeon, in 2012 and 2013, due to ongoing issues with her left hip and “a limp that annoyed [her]”.[21] She saw Dr Sol Qurashi, orthopaedic surgeon on 11 December 2013. She deposed to the fact that she saw Dr Qurashi as “I had some discomfort in my left hip and a limp that annoyed me. He did not recommend a hip replacement, as I had no pain – my concern was the limp. He recommended an intensive physiotherapy treatment.”[22]
[21]Ex P1, p11
[22]Ex P1, p11
26 The plaintiff commenced physiotherapy twice a week for four to six weeks at Nepean Physiotherapy Hydrotherapy Centre. She was treated there up until May 2014, when she was formally discharged with home exercises. She deposed to the fact that her hip “discomfort” and limp improved after the intensive physiotherapy treatment. She kept performing her home exercises.[23]
[23]Ex P1, p11
The accident
27 The plaintiff described the accident in the following terms:
“On Friday, 22 August 2014 I flew down to Melbourne to meet up with Michael Griffin, who was living in Point Cook. I was to spend the weekend in Melbourne to celebrate my birthday…
At about 6.30pm we were getting ready to go into the city to meet some of Michael’s friends. We took a bus to Laverton Station and then a train to Southern Cross. We ran to the train, Michael was holding the train door open for me whilst I ran down the stairs to catch the train. I had no problems running/walking down stairs.
We were travelling in the last carriage of the train and we were the only people in the carriage.
At about 7pm the train came to a sudden stop. We were told this was due to brake failure. A V/line train that was following our train crashed into the rear of our train at a speed of 43 km/h. Michael and I were both thrown from our seats onto the floor. I fell onto my left side. I can’t remember hearing any noise. I saw Michael lying on the floor, unconscious and bleeding from his nose. I was confused and disoriented. I thought Michael had died. I was yelling out ‘call an ambulance’.
I accompanied Michael in the ambulance; he was taken to Footscray Hospital then transferred to the Royal Melbourne Hospital (RMH).
While at the RMH, I reported having pain in my lower chest and that I had trouble breathing. I had a CT angiogram of my thoracic aorta which showed undisplaced fractures of the left posterior 10th, 11th and possibly the 9th ribs and a minor associated intercostal haematoma. The fractures have healed themselves over time … The chest x ray was normal. No imagining was performed of my pelvis or hips.
On Monday, 25 August 2014 I reluctantly flew back to Sydney. On the train home from Sydney airport I developed pain in my left hip.”[24]
[24]Ex P1, p12
28 On 12 September 2014, the plaintiff attended Southlands Family Doctors (“Southlands”) in South Penrith, New South Wales. She saw Dr Malcolm Borland on that occasion. She complained of hip pain and that she was finding it very difficult to walk.[25]
[25]Ex P1, p12
29 On 27 October 2014, she saw her usual general practitioner, Dr Justine Hester, again complaining of hip pain. Dr Hester referred her to see Dr Sherif Rizkallah, orthopaedic surgeon. She saw Dr Rizkallah on 26 November 2014. Dr Rizkallah noted an extremely irritable and painful left hip and limited range of movement. He recommended that she have a hip replacement. That operation was scheduled for December 2014, but the plaintiff cancelled it a few days before, because she was too scared to have it.[26]
[26]Ex P1, p12
30 In December 2014, whilst working at the childcare centre, she was sitting on a chair supervising the children. When she tried to stand up, she was struggling.[27] She continued working until the holiday period at the end of the year, but she was struggling. She did not return to work in 2015.[28]
[27]Ex P1, p10
[28]Ex P1, p16
31 On 15 January 2015, she returned to see Dr Hester. She was struggling to walk at this time and “reluctantly accepted that [she] needed a left hip replacement”.[29]
[29]Ex P1, p12
32 She was referred to see Dr Mark Horsley, orthopaedic surgeon. She had to wait three months to see him, but she was willing to wait because of what she had been told about him. When she did see him, he told her that her femoral head on the left side had “collapsed”.[30]
[30]Ex P1, p12
33 On 24 April 2015, the plaintiff had a left hip replacement for avascular necrosis secondary to her left hip fracture. This procedure was performed by Dr Horsley. She was in hospital for six days, then spent a further fourteen days in a rehabilitation centre. She had physiotherapy and hydrotherapy twice daily. She was discharged in mid-May 2015. She was on a walking stick for six weeks.[31]
[31]Ex P1, p13
34 On 29 June 2015, she was reviewed by Dr Horsley, who said that she was fit to return to work, and to cease using the walking stick.[32]
[32]Ex P1, p13
Evidence of the Plaintiff
35 As referred to above, the plaintiff swore two affidavits. She was cross-examined and also re-examined.
36 The relevant evidence as to the pain and suffering consequences which the plaintiff experiences as a result of the transport accident is as follows:
Pain and suffering
(a)she has constant pain. Some days are better than others;[33]
[33]Ex P1, p16
(b)following the accident, she could no longer get down on the floor easily to “sit with the kids”. She was very slow getting down and she definitely could not jump up quickly like she used to;[34]
[34]Ex P1, p13
(c)she could no longer sit on the low chairs or any hard chairs;[35]
[35]Ex P1, p13
(d)she was slower at doing her duties as an educator and generally slower with her daily routine;[36]
[36]Ex P1, p13
(e)at work, she could not run after the kids. Overall, she has slowed down. Everything takes longer, and she does not have the reflexes that she used to have. This is very frustrating as she was generally fit and able, even for her age;[37]
[37]Ex P1, p13
(f)she cannot bend down and tie her left shoe due to the pain from her left hip;[38]
[38]Ex P1, p13
(g)she cannot go down on her knees without having something to support her when getting up;[39]
[39]Ex P1, p13
(h)she will never be the same person as before. She has a big scar to remind her every day of the transport accident and the operation. She knows she has to face another hip operation, and because she will be older, the result and recovery may not be as good. The thought of this makes her anxious;[40]
[40]Ex P1, p13
(i)she has had two ultrasound-guided injections of the left trochanteric bursa. The first was on 13 December 2018 and the second was in May 2019. She found that she obtained some temporary relief from these injections, but the pain then returned;[41]
[41]Ex P1, p16
Sleep
(j)her sleep is interrupted when she lies or rolls onto her left side, as it is tender and there is discomfort;[42]
[42]Ex P1, p14
Activities of daily living
(k)she is able to complete the housework, but it takes her twice as long;[43]
(l)she is unable to squat; [44]
(m)she rarely gardens;[45]
(n)she cannot carry heavy shopping;[46]
(o) she used to be very active and social, but since the accident, she is less social as she is embarrassed that she has slowed down;[47]
(p)she cannot walk fast or walk up and down hills like she used to without feeling the strain on her operated hip. On the day of the transport accident, she was able to run down the stairs to catch the train;[48]
(q)she feels that her quality of life has been affected. She has not let it stop her from living her life, but she does need to rest if she has over-exerted herself;[49]
(r)if she does overwork herself just by doing everyday things, she feels the strain on her body;[50]
[43]Ex P1, p14
[44]Ex P1, p14
[45]Ex P1, p14
[46]Ex P1, p14
[47]Ex P1, p14
[48]Ex P1, p13
[49]Ex P1, p13
[50]Ex P1, p14
Pecuniary disadvantage
(s)she ceased work in December 2014 when school closed and her contract expired;[51]
[51]Ex P1, p13
(t)she started receiving a Newstart allowance in January 2015 and she will continue to do so;[52]
[52]Ex P1, p14
(u)in February 2015, she received a letter from the Penrith Council, offering her “a further 12 month contract with more hours”;[53]
(v)on 6 July 2015, she returned to work doing childcare on a casual basis. She was working eight hours, two days per week, and continued receiving the Newstart allowance with a medical certificate;[54]
(w)in 2016, she continued working on a casual basis but she did not do the hours that she used to. The Centrelink payments supplemented her income;[55]
(x)she ceased work in November 2016 with Penrith Council, as she went overseas;[56]
(y)she returned to work with Penrith Council as a casual in June 2017. She can work up to 36 hours per week, but this would be rare;[57]
(z)had the transport accident not occurred, she would be going for her yearly interviews and offered contracts every year. The Penrith Council were happy with her work and this is evidenced by them increasing her hours for the 2015 working year;[58]
(aa)she loved working and would still be doing it if not for the transport accident. She rarely took sick days and when she did, it was not because of pain in her hip. Her hip did not stop her from working;[59]
(bb)in February 2019, she began receiving the pension. She did not do any paid work in 2019. She is hopeful that she might pick up some casual shifts in the future; [60]
(cc)she has been doing some volunteer work at Blue Haven Retirement Village. She goes on the “bus run”, taking people with disabilities on outings. She does this three or four times per month. She also visits residents at the Retirement Village and, for example, might make them cups of tea. She does this about twice per week.[61]
[53]Ex P1, p10
[54]Ex P1, p14
[55]Ex P1, p14
[56]Ex P1, p10
[57]Ex P1, p10
[58]Ex P1, p14
[59]Ex P1, p17
[60]Ex P1, p17
[61]Ex P1, p17
37 Under cross-examination, the plaintiff gave the following evidence:
(a) historically, it has been Dr Hester who was her general practitioner at Southlands;[62]
[62]Transcript (“T”) 20, Line (“L”) 28-29
(b) after she fractured her hip in the fall down the stairs, she had surgery to put a pin and plate in at the Penrith Hospital;[63]
[63]T21, L2-15
(c) the doctors that currently treat her are Dr Jacqueline Pinson and the other doctors at Kiama, New South Wales. She moved to Kiama before 2017. She had continued to see Dr Hester and the other doctors in Penrith up until that time;[64]
[64]T22, L3-12
(d) the first orthopaedic surgeon that the plaintiff saw was Mr Charles New. The second orthopaedic surgeon that she saw was Dr Rami Sorial;[65]
[65]T23-24
(e) on 27 February 2012, she had x-rays of her left hip. That x-ray showed the plaintiff had avascular necrosis in her left hip at this time. The plaintiff understood that fact;[66]
[66]T24, L14-17
(f) an x-ray taken in May 2013 showed changes in keeping with avascular necrosis. When it was put to the plaintiff that at this time she had osteonecrosis in the left hip, she replied “would have been very slight”;[67]
[67]T27-28
(g) she went to see Dr Qureshi, orthopaedic surgeon, on only one occasion. That was on 11 December 2013;[68]
[68]T29, L19-25
(h) she had a further x-ray on 11 October 2013. She acknowledged a note made by Dr Hester, that on 10 October 2013, she “needs a referral letter. Seeing ortho for hip pain.”[69] She said that prior to Dr Qurashi, there was another orthopaedic surgeon that she had chosen to go to. She asserted that she had “no pain, I had discomfort, because … I didn’t like the way I walked;”[70]
[69]Ex D1, p20; T30, L10-24
[70]T29-30
(i) she cancelled a hip replacement that had been scheduled in December 2013 in order to go and see Dr Qurashi;[71]
[71]T30-31
(j) she did not recall an interaction with her general practitioner on 3 August 2013, where it was recorded that she had seen an orthopaedic surgeon two days ago and had been told that she needed a hip replacement;[72]
[72]T31, L5-13
(k) she agreed that she had seen another orthopaedic surgeon by the name of Mr Simon Coffey: “That was in the beginning stages, when I had the pin and plate put in;”[73]
[73]T31, L22-26
(l) she accepted that she had seen an orthopaedic surgeon on 1 August 2013: “Yes … He was in the city;”[74]
[74]T32, L6-7
(m) when asked to acknowledge that she had been told in August 2013 that she needed a hip replacement by an orthopaedic surgeon, she replied:
“Nobody ever told me I needed a hip replacement. I was the one that went to the doctors, the surgeons, asking to correct my walk, and that is why I went to see about it … I had no pain, only discomfort, and I was embarrassed by the way I walked … And I wanted to correct the walk.”[75]
[75]T32, L16-25
(n)the note from Dr Hester which referred to seeing an orthopaedic surgeon for “hip pain”, was put to the plaintiff. The plaintiff refused to accept this characterisation, saying “Discomfort, I would call it”. She said that her general practitioner had not prescribed any medication for her;[76]
[76]T33, L3-15
(o)when pressed further about her attendance on the general practitioner in October 2013, she accepted the veracity of the note, but maintained that “it wasn’t pain I had, it was discomfort”;[77]
[77]T33, L20-25
(p)a note dated 3 June 2013 made by Dr Hester was put to her, in which Dr Hester noted that the plaintiff had been given advice in respect of “pain relief”. The plaintiff maintained that this was a reference to “discomfort”;[78]
[78]T33-34
(q)she agreed that as far as orthopaedic surgeons went, she had seen Mr New, Mr Coffey, Mr Sorial, Mr Qurashi, Mr Horsley and Dr Rizkallah;[79]
[79]T34, L10-31
(r)she thought it was Mr Horsley who was the last treating orthopaedic surgeon that she had seen;[80]
[80]T35, L4-16
(s)she agreed that she had an ultrasound in May 2017;[81]
[81]T35, L26-28
(t)she went to Dr Qurashi because he could do a hip replacement via keyhole surgery;[82]
[82]T37, L18-23
(u)she had cancelled a scheduled hip replacement surgery in order to go and see Dr Qurashi;[83]
[83]T37-38
(v)she agreed that it was an orthopaedic surgeon who had been going to conduct her hip replacement;[84]
[84]T38, L5-30
(w)this was the seventh orthopaedic surgeon she had seen, but she could not remember that person’s name;[85]
[85]T38-39
(x)the plaintiff maintained that Dr Qurashi told her that she did not need a hip replacement “because I have no pain”;[86]
[86]T39, L4-19
(y)she acknowledged that the report of the x-ray taken on 11 October 2013 stated that on that film there were features “in keeping with stage 4 avascular necrosis, and cortical collapse/lesions. There is mild to moderate osteoarthritis in the left hip joint.” She could remember “part of” that conversation with Dr Hester;[87]
[87]T39-40
(z)she was unable to explain why, at that time, she was taking two Panadol Osteo tablets per day: “I wouldn’t have been taking [it] that often … I can’t explain it;”[88]
[88]T40-41
(aa)when it was put to the plaintiff that she was taking Panadol Osteo tablets because of the pain in her hip, she replied “I didn’t have pain … I had discomfort … I call it discomfort, because if I have pain, that’s not [a] painkiller…;”[89]
[89]T41, L15-22
(bb)when it was put to the plaintiff that the orthopaedic surgeon who was scheduled to perform her hip replacement in 2013 was a Dr Dixon, the plaintiff agreed that that may have been the name of the doctor;[90]
[90]T42, L5-14
(cc)she made no response when a clinical note made by Dr Hester on 10 October 2013 was put to her. That note read “Diagnostic x-rays of the left hip requested. Note, intermittent left hip pain for six months. Check for osteoarthritis;”[91]
[91]T42, L7-11
(dd)she did not dispute that she had a further x-ray taken in February 2014. She also accepted the truth of the content of the report.[92] She agreed that by February 2014 she had shortening of the hip; was walking with a limp that she preferred would go away; had discomfort; had had a series of x‑rays by her general practitioner, and there were surgeons monitoring the progression of her left hip following the surgery to insert screws. She also agreed that she had been told that she had avascular necrosis or osteoarthritis progressing in her hip;[93]
[92]T44, L19-31
[93]T44, L1-15
(ee)she agreed that she was referred to a physiotherapist in 2014 prior to the transport accident to manage the discomfort in her left leg and hip;[94]
[94]T45, L26-30
(ff)in response to the content of a letter which the physiotherapist wrote to Dr Hester, which stated: “I am writing regarding Attracta’s progress following physiotherapy treatment for her left hip pain with past history of left fracture,” the plaintiff replied “Okay. I did not have pain … I stand up here on oath. I did not have pain … [I had] discomfort;”[95]
[95]T46, L17-26
(gg)she maintained that at no stage did she complain to the physiotherapist about pain: “No, I did not.” She said that this fact was contained in the medical notes: “One hundred per cent, and it’s in the notes as well;”[96]
[96]T47, L1-23
(hh)the content of the referral letter from Dr Hester to the physiotherapist was put to the plaintiff. That letter read, in part: “Thank you for seeing Ms Attracta Gallagher aged 60, for opinion and management of ongoing left hip pain.” To this, the plaintiff replied: “But I didn’t have pain. I had discomfort because if I had pain I would be put on medication, prescription medication for pain;”[97]
[97]T48-49
(ii)she agreed that Dr Hester was the main general practitioner who had treated her after the fall at home;[98]
[98]T49, L12-15
(jj)a referral letter written by Dr Hester to Dr Sorial was put to the plaintiff. That letter read, in part, “Thank you for seeing Mrs Gallagher, aged 59, who has presented to get referral for seeing you with ongoing pain on the left side of her leg”. In response to this, the plaintiff replied “Well, I called it discomfort because if it was pain I would be on prescription medication which I was not. And it was discomfort because I walk with a limp;”[99]
[99]T51, L2-16
(kk)she agreed that in January 2014, Dr Hester, had given her advice about how to manage her “discomfort” by taking Panadol Osteo on an “as needs” basis: “Yeah.”[100] It was suggested to the plaintiff that the Panadol Osteo was to address “what you call discomfort to this Court”. The plaintiff replied: “Discomfort, yes, discomfort … It’s not a painkiller, no way. It’s not on prescription;”[101]
[100]T51, L25-31
[101]T52, L1-5
(ll)when she went to see a further orthopaedic surgeon, Dr Rizkallah, he told her that she needed a hip replacement. That was after the transport accident. She went on with the following evidence:
“… I was about to have the surgery but I got stressed about going on, I didn’t even want to have it done … but I had all the tests done prior and I refused to go in because I was afraid to go in, I was beside myself … so I cancelled … And then I got really bad and I went from the bed to the bathroom for three months. My hip ball had collapsed and I could not walk.”[102]
(mm)a letter written by Dr Hester to Dr Dixon, orthopaedic surgeon, in October 2013, was put to the plaintiff. That letter read, in part: “Thank you for seeing Mrs Attracta Gallagher, aged 60, who has presented to get referral letter to see you for her ongoing intermittent left pain for greater than 18 months.” In response, the plaintiff said: “There again I say it was discomfort, it was me that went about it so I could correct my walk … Again, I’m not saying there’s pain … Like I said if I had pain why wasn’t I on medication;”[103]
(nn)she did not dispute that the report of an x-ray taken on 16 September 2014 immediately following the transport accident, stated “… the previously described deformity in the superior aspect of the head of the left femur is again noted without significant change;”[104]
(oo)she said that she still does childcare on a casual basis at Penrith City Council. She does about eight hours a week: “It’s a bit quiet in the first half of the year … It starts getting busy from June to December;”[105]
(pp)she said she would take more work if she could get it and if she could do the job. She thought that the most work she could do was ten to twelve hours per week.[106]
[102]T52, L16-30
[103]T55-56
[104]T58, L1-7
[105]T59, L16-27
[106]T59-60
Evidence of the lay witness
38 The plaintiff’s friend, Ms Nora Goncalves, swore an affidavit on 9 December 2019. In summary, the evidence to which Ms Goncalves deposed was as follows:
(a) she has known the plaintiff since about 1997. Over the years they have remained close. They currently meet up about once a fortnight;[107]
[107]Ex P1, p18
(b) she is aware that the plaintiff worked in childcare. Her belief is that the plaintiff loved her work;[108]
[108]Ex P1, p19
(c) she would describe the plaintiff prior to the transport accident as being a very healthy, active and vibrant person;[109]
[109]Ex P1, p19
(d) she is aware that the plaintiff fell down some stairs in 2010 and had surgery. She thought the plaintiff seemed “fine” after the surgery. She cannot recall the plaintiff complaining of pain after the surgery. She is sure that if the plaintiff was in a lot of pain in the period between the surgery in 2010 and the transport accident in 2014, she would recall the plaintiff complaining of problems;[110]
[110]Ex P1, p19
(e) the plaintiff is not someone who complains a lot. She is stoic;[111]
[111]Ex P1, p20
(f) she does not recall the plaintiff having any real restrictions prior to the transport accident. The plaintiff did have a “smallish limp” which “did bother her” and she believes that the plaintiff was embarrassed by the limp.[112] She does not recall the limp causing the plaintiff pain;[113]
[112]Ex P1, p19
[113]Ex P1, p19
(g) she recalls that after the transport accident, it looked like the plaintiff was “walking with great difficulty”. She recalls that the plaintiff complained of pain, “unlike before the train accident”. She noticed that the plaintiff was not properly weight bearing and was having real problems walking. She recalls that the plaintiff began complaining that working with the children was difficult for her;[114]
[114]Ex P1, p19
(h) she recalls the plaintiff being frightened of having a total hip replacement in December 2014. The plaintiff was too scared to cancel the surgery, so Ms Goncalves rang and cancelled for her;[115]
[115]Ex P1, pp19-20
(i) she continued to observe that the plaintiff was having “great difficulty with walking”. This seemed to be much worse than anything she had observed prior to the transport accident;[116]
[116]Ex P1, p20
(j) after her total hip replacement, the plaintiff returned to work, but she was finding it difficult to do her duties as an educator and working with children;[117]
[117]Ex P1, p20
(k) she thinks that the plaintiff’s problems with her hip affect what she is able to do at work, like standing for too long or sitting down low or being mobile. Climbing stairs and walking long distances are hard for her;[118]
[118]Ex P1, p20
(l) she believes that the injuries sustained in the transport accident have had a major effect on the plaintiff’s lifestyle and daily living activities;[119]
(m) the activities that Ms Goncalves and the plaintiff are able to do together have changed since the transport accident. They used to do a lot of sightseeing and be active together. Now they are more likely to do less strenuous activities like going for a coffee. This is disappointing for both of them.[120]
[119]Ex P1, p20
[120]Ex P1, p21
The medical evidence
Pre-transport accident presentation
39 In a referral letter addressed to Dr Rami Sorial, orthopaedic surgeon, dated 24 January 2012, Dr Hester, general practitioner based at Southlands, said that the plaintiff at that time had “ongoing pain on the [left] side of the leg …”.[121]
[121]Ex D1, p30
40 In a report dated 27 February 2012 addressed to Dr Hester, Dr Sorial said that the plaintiff had reported “ongoing pain and symptoms from the left hip joint” following an open reduction and internal fixation with a dynamic hip screw and two holed plate.[122] At that time, because of her pain issue, the plaintiff reported that her “walking distance is restricted and she has difficulties negotiating stairs. She has difficulties putting on shoe wear and physical examination today confirms irritability of the hip joint throughout the range of movement … ”.[123] Dr Sorial said that he intended to review her in three months, but that he had “warned her that she may come to a total hip replacement in the future”.
[122]Ex P1, p67
[123]Ex P1, p67
41 On 13 May 2013, the plaintiff consulted Dr Hester requesting to see “a physio for ongoing hip pain”. Dr Hester requested an x-ray of the plaintiff’s left hip “for comparison,” noting that the plaintiff had “ongoing pain in left hip” for greater than twelve months and that imaging had “previously shown moderate [osteoarthritis]” on the left hip.[124] On the same date, Dr Hester wrote a letter of referral to an orthopaedic surgeon, a physiotherapist and a dietician, noting that the plaintiff had experienced “ongoing L[ef]t hip pain with moderate [osteoarthritis] since 2012 …”. All of the referral letters noted that the plaintiff was being prescribed Panadol Osteo.[125]
[124]Ex D1, p19
[125]Ex D1, pp23, 26 & 37
42 On 3 June 2013, the plaintiff returned to see Dr Hester, who noted that the left hip x-ray showed “avascular necrosis”. Dr Hester noted that she provided advice and explanation about possible treatment of avascular necrosis. She provided the plaintiff with advice on “pain relief” and referred to the plaintiff to an orthopaedic surgeon “for expert opinion”.[126] The letter of referral written by Dr Hester to Dr Sorial noted that the plaintiff “had presented to me with complaint of L[ef]t hip pain for [greater than] 3 years … .”[127]
[126]Ex D1, p19
[127]Ex D1, p25
43 On 3 August 2013, the plaintiff saw Dr Ranjana Ashok-Kumar, general practitioner, who recorded that the plaintiff needed Panadol Osteo. Dr Ashok-Kumar also noted that the plaintiff had seen the orthopaedic surgeon two weeks earlier and “was told needs hip replacement”.[128] The notes record that the plaintiff told Dr Ashok-Kumar that she was “worried” as there was no one to look after her following the surgical procedure. This issue was “discussed” and the plaintiff was “counselled at length”. The plaintiff was prescribed Panadol Osteo tablets, 665 milligrams, to be taken twice per day or as needed.[129]
[128]Ex D1, p20
[129]Ex D1, p20
44 On 10 October 2013, the plaintiff is recorded as having seen Dr Hester seeking a referral letter as she was “seeing [an orthopaedic surgeon] for hip pain”. The request for an x-ray created by Dr Hester on that date noted that the plaintiff had been suffering “intermittent Lt hip pain for 6 months, to check for [osteoarthritis]”. Dr Hester also created a referral letter to an orthopaedic surgeon by the name of Dr Dixon,[130] which stated that the plaintiff had presented with “ongoing intermittent hip pain for [greater than] 18 months”.[131]
[130]Ex D1, p20
[131]Ex D1, p29
45 On 11 October 2013, an x-ray of the plaintiff’s left hip was performed as requested. In the report of that imaging, the radiologist stated that he performed “a direct comparison ... with the previous examination of [22 May 2013]”[132] and was of the opinion that the radiological features noted on the films “were in keeping with Stage 4 avascular necrosis and cortical collapse/lesions”.[133] The radiologist described “mild to moderate osteoarthritis in the left hip joint”.[134] The radiologist thought that there was “no significant change since the previous examination of 22 May 2013”.[135]
[132]Ex D1, p34
[133]Ex D1, p34
[134]Ex D1, p34
[135]Ex D1, p34
46 On 21 October 2013, it is recorded in the Southlands’ practice notes that the plaintiff was “going in for [a total hip replacement]” on 13 December 2013.
47 The plaintiff saw Dr Sol Qurashi, hip and knee surgeon, on 11 December 2013. In a report of the same date, Dr Qurashi noted that at that consultation, the plaintiff was “two years post left hip fracture”. He reported that this was internally fixed and that the plaintiff at that time “has had some destruction of the femoral head and a resultant limp”. He said that the plaintiff specifically and repeatedly denied that she had pain but did experience some “discomfort” and a limp “that she finds very annoying”. He confirmed that the x-rays with which he was supplied showed “destruction of the femoral head … and the headscrew is still in the head … .”[136]
[136]Ex P1, p35
48 Dr Qurashi noted that when he saw the plaintiff, he was the fourth person she had seen in respect of her hip and “two of them have said to come back after a while when she becomes painful”.[137] He noted that “she was meant to be having an operation tomorrow by another orthopaedic surgeon and cancelled it because she heard about Superpath … .”[138] He thought that since pain was not a “major feature of her presentation” and that she is “aiming to have a hip replacement to improve her limp,” then she may not get the outcome that she wanted at that time. In this context, he recommended “non-operative treatment and optimisation of her soft tissue envelope with physiotherapy and exercises”. He noted that the “main indication for a hip replacement would be pain that has failed non-operative management … .”[139]
[137]Ex P1, p37
[138]Ex P1, p37. I note that the evidence indicated that “Superpath” is a form of keyhole surgery.
[139]Ex P1, p35
49 In a further report dated 2 August 2019, Dr Qurashi noted that on the one occasion on which he had seen the plaintiff in 2013, “she already had arthritic change in her hip” and that “the prognosis of arthritis is that of progression”. He went on:
“Her problem at that time was a limp which was bothering her, but not pain, however for the vast majority of people, progression in arthritis would result in some degree of discomfort and pain and I suspect that the pain may become a problem at a later stage at which time it will be more of an intrusion in her lifestyle and possibly require treatment.”
50 On 2 January 2014, Dr Hester reported that the plaintiff told her that she had been advised by a specialist that there was “no need for surgery” and that she should get physiotherapy and hydrotherapy. Dr Hester provided advice and explanation and prescribed Panadol Osteo to be taken as needed.[140] On that date, Dr Hester wrote a letter of referral to a physiotherapy centre seeking “opinion and management of … ongoing pain on left side of the hip … .”[141]
[140]Ex D1, p21
[141]Ex D1, p28
51 A further x-ray of the plaintiff’s left hip was performed on 24 February 2014. In a report of that imaging, the radiologist commented that “deformity is demonstrated at the head of the left femur, consistent with previous surgical procedure … Moderate degenerative changes are demonstrated at the left hip joint. Mild protrusion acetabula is demonstrated at the left side. Mild to moderate bony spurring is demonstrated at the greater trochanter of the left femur.”[142]
[142]Ex D1, p35
52 In a report dated 6 February 2014, Mr Sumita Joshi, physiotherapist, noted that the plaintiff had been referred for “her ongoing left-sided hip pain”. Mr Joshi noted that when the plaintiff saw him, she “presented with an ongoing history of deterioration of her walking ability since her hip surgery following her fall three years ago. She had no complaints of pain but reports that she can only manage to mobilise 5-10 minutes with a limp before her hip fatigues.” On assessment, Mr Joshi stated that he found:
“… altered pelvic and lower limb alignment, reduced muscle bulk and poor tone of the left gluteal muscle. She was unable to single leg stand on the left and has [confirmed left-sided hip muscle weakness] … .”[143]
[143]Ex P1, p71
53 By a letter dated 21 March 2014 addressed to Dr Hester, Ms Jenny Voller, physiotherapist, stated that she was “writing regarding [the plaintiff’s] progress following physiotherapy treatment for her left hip pain …”. Ms Voller said that the plaintiff had, at that stage, only attended “one land and one aquatic based physiotherapy treatment session” and that the plaintiff “would benefit from further sessions in which to assist her progress and upgrade her exercise programs as tolerated …”.[144]
[144]Ex D1, p31
54 Dr Jacqueline Pinson, a general practitioner at the Terralong Street Surgery in Kiama, New South Wales (“Terralong Surgery”), provided a report in the Plaintiff’s Court Book dated 3 July 2019. In that report, she noted that the plaintiff was first seen at the Terralong Surgery on 25 May 2015 for a post-operative review of her total hip replacement. The history which the plaintiff gave on that date is that after the surgery following her fall in 2010, she did not have any ongoing pain in her left hip and was not intending to have a hip replacement in the foreseeable future. She was able to undertake her work including sitting on the floor with children and getting up from floor level unaided. She did not take any sick leave related to joint pain. She had attended an orthopaedic surgeon to discuss options to manage her limp and was told that while she had no pain, she would be recommended to put up with the limp and have no further surgery.[145]
[145]Ex P1, pp27-28
55 The plaintiff did not tender into evidence reports as to her pre-accident condition from:
(a) her main treating general practitioner, Dr Hester;
(b) Dr Ashok-Kumar, another general practitioner at Dr Hester’s surgery, who the plaintiff saw in August 2013 regarding the advice that she needed a total hip replacement at that time;
(c) Dr Rami Sorial, orthopaedic surgeon, in relation to his opinion proffered in July 2013 that the plaintiff required a total hip replacement at that time;
(d) either Mr New or Mr Coffey, treating orthopaedic surgeons;
(e) Dr Dixon, orthopaedic surgeon – although it is unclear whether or not the plaintiff ever saw that doctor.
56 No evidence was led as to the unavailability of any of these doctors.
Post transport accident presentation
The Plaintiff’s medical evidence
57 The plaintiff was taken to the Emergency Department of the Royal Melbourne Hospital following the transport accident on 22 August 2014. In the hospital records dated 23 August 2014, the following matters are noted:
“… Patient was travelling in the rear carriage of a train from Laverton to the city. The train stopped at a station … and … was struck … and her and her travelling companion were thrown from their seats onto the floor … Pain has increased since the accident on her left side of her torso from her axilla to her waist. Pain on movement only, not at rest and not with deep inspiration. No pain while walking/weight bearing … [On examination] … No tenderness on chest spring or pelvis spring, no limb tenderness. Tender over the left lower ribcage …? rib fracture … .”[146]
[146]Ex D1, p32
58 The plaintiff was seen by Dr Malcom Borland, general practitioner, at Southlands on 12 September 2014. The note of that consultation reads:
“… hip problems … Operation 4 years ago. Now pain + when walk. Advised Xray then R/V.”
59 There is no mention in this note of the transport accident being a precipitating factor in relation to the plaintiff’s hip pain at that time.[147] The plaintiff did not tender into evidence any report obtained from Dr Borland. No evidence was led as to the unavailability of Dr Borland to provide such a report.
[147]Ex P1, p82
60 A report of the x-ray subsequently taken on 16 September 2014, stated that:
“The previously described deformity in the superior aspect of the head of the left femur is again noted without significant change … there is mild osteoarthritis in the left hip.”[148]
[148]Ex P1, p70
61 On 15 October 2014, the plaintiff again attended at Southlands, this time seeing Dr Qiang Hu. The clinical note of that consultation records the fact that Dr Hu organised a request for a computer tomography (CT) scan of the plaintiff’s left hip to be performed as a follow up to an “Op/screw 4y ago now bit discomfort”.[149] Again, there is no note that indicates that the plaintiff made any mention of the transport accident as a precipitating factor in relation to her hip pain at this time. The plaintiff did not tender into evidence any report obtained from Dr Hu. No evidence was led as to the unavailability of Dr Hu to provide such a report.
[149]Ex P1, p82
62 The report of a CT scan of the plaintiff’s left hip performed on the same date reads:
“… There is evidence of previous dynamic hip screw. There is bony destruction in the head of the left femur with flattening of the superior aspect of the head with lucencies and sclerotic changes. There is a moderate osteoarthritis. There is subchondral cyst in the acetabulum. The features are consistent with osteonecrosis and secondary osteoarthritis. No acute fracture is identified … .”[150]
[150]Ex D1, p71
63 Dr Sherif Rizkallah, orthopaedic surgeon, scheduled a total hip replacement for the plaintiff in December 2014, following a consultation with him on 26 November 2014. In a report dated 27 November 2014, he stated that the plaintiff told him that following her initial surgery in 2010, she had “not much trouble”. He noted that she told him that “some four months ago [she] was involved in a train accident and since then, has been having trouble in relation to her left hip …”. He said that at the time he saw her, her plain x-ray and CT scan “demonstrate avascular necrosis of the femoral head with fragmentation and collapse”.[151]
[151]Ex P1, p41
64 On 12 January 2015, the plaintiff was seen by Dr Ashok-Kumar, general practitioner, at Southlands. She presented complaining of “chronic left hip pain”. It was noted by Dr Ashok-Kumar that the plaintiff had seen Dr Rizkallah the previous year and had been told she needed a left hip replacement at that time, but that she did not want to have it. It was noted that she was “now unable to walk and so unable to work, so feels [she] needs the [total hip replacement]”.[152] She stated that she needed time to save money for the surgery as her health fund does not cover all the costs. She asked Dr Ashok-Kumar to fill out a Centrelink Disability pension form for her. Dr Ashok-Kumar refused to fill out the form as he had not seen the plaintiff since October 2013.[153]
[152]Ex D1, p22
[153]Ex D1, p22
65 On 15 January 2015, the plaintiff presented to Dr Hester asking that doctor to fill out the disability pension form for her as “she needs [a] hip replacement”.[154]
[154]Ex D1, p22
66 As referred to above, the plaintiff first attended the Terralong Surgery in May 2015 for a post-operative review of her total hip replacement. On the basis of the history given to her in July 2019, which is set out in paragraph 54 above, Dr Pinson, general practitioner, diagnosed the plaintiff as having suffered “musculoskeletal injury of the left hip necessitating conversion of pin and plate fixation into total hip replacement”. She formed the view that the “impact of the accident was the primary cause of the deterioration in the left hip joint which warranted the hip replacement” in 2015. She thought that the hip replacement had affected the plaintiff’s ability to work and also affected her ability to sit in low seating or to safely rise from a low position. She noted that the plaintiff also has a large scar which she feels ashamed to bare in a public pool or in the ocean. She thought that the plaintiff was likely to need a further hip replacement in the future. She noted that the plaintiff presently requires ongoing treatment for her hip bursitis which has involved steroid injections approximately yearly.[155] It is clear that in forming her diagnosis and making an analysis of the link between the transport accident and the plaintiff’s current presentation, Dr Pinson was not in possession of a full and accurate history concerning the plaintiff’s post-operative course between 2010 and the transport accident in 2014. It is notable that there is no evidence that the plaintiff mentioned the connection between the transport accident and her present presentation to Dr Pinson prior to 3 July 2019.
[155]Ex P1, pp28-29
67 In a letter dated 18 September 2019 written on behalf of Dr Mark Horsley, orthopaedic surgeon, Dr Horsley stated that he had not treated the plaintiff “for personal injuries sustained in a transport accident in 2014”.[156]
[156]Ex D1, p33
68 Mr Thomas Kossmann, orthopaedic surgeon, reviewed the plaintiff for medico-legal purposes. He provided three reports: the first in March 2017, the second in December 2019 and the third in January 2020.
69 In the report dated 6 December 2019, Mr Kossmann said that the plaintiff told him that she was involved in a train accident on 22 August 2014, in which she was thrown off her seat and fell on her left side. He noted that examination at the Royal Melbourne Hospital showed that she was suffering fractures of the 9th, 10th and 11th posterior ribs. She told Mr Kossmann that “she experienced increasing pain in her left hip after the train accident” and she underwent further investigations, including x-rays of the left hip performed on 16 September 2014. A CT scan of her left hip performed on 15 October 2014 showed “features consistent with advanced osteonecrosis and moderate secondary osteoarthritis”.[157] He noted that the plaintiff returned to work after the transport accident. The plaintiff told him that her pain issues in her left hip became worse and she was referred to Dr Sherif Rizkallah, who recommended a total hip replacement. This was scheduled for December 2014. Mr Kossmann noted that the plaintiff stopped working in January 2015, as she had increasing pain and reduced mobility. She was referred to Dr Horsley, who performed a total hip replacement “under the diagnosis of an avascular necrosis of her left hip ….”[158]
[157]Ex P1, p52
[158]Ex P1, p53
70 As to her pre-accident medical history, Mr Kossmann noted that since her fall down steps at home, the plaintiff has undergone radiological investigation via x-ray and/or CT scan on at least five occasions. He documented the fact that in a report dated 10 October 2010, Dr Charles New had stated that the plaintiff was at that time suffering from “debilitating left hip pain”.[159] He noted that in February 2012, Dr Rami Sorial had described that the plaintiff then had “symptoms radiating from the left buttock region over the groin and thigh down towards the left knee, which occurred while she was [weight] bearing and was restricting her walking distance and caused her difficulties to negotiate stairs”. Dr Sorial also documented his opinion that the plaintiff at that time had “an irritable left hip joint” and that the plaintiff’s left hip “had progressed to post-traumatic arthrosis”.[160] Mr Kossmann referred to a report of an x-ray taken on 22 May 2013, where the radiologist was of the opinion that the appearance of the plaintiff’s left hip at that time was “in keeping with an avascular necrosis of the left femoral head”. The radiologist noted that these changes were “more extensive when compared to the previous study on 27 January 2012”.[161] Mr Kossmann also referred to the report of a further x-ray performed on 11 October 2013, where the radiologist performed “a direct comparison ... with the previous examination of [22 May 2013]”,[162] and was of the opinion that the radiological features noted on the films “were in keeping with Stage 4 avascular necrosis and collapse/lesions”. The radiologist described “mild to moderate osteoarthritis in the left hip joint”. Mr Kossmann noted that the radiologist thought that there was “no significant change since the previous examination of 22 May 2013”.[163] Lastly, Mr Kossmann documented the existence of an x-ray taken on 24 February 2014 which “confirmed previous findings”.[164]
[159]Ex P1, p54
[160]Ex P1, p54
[161]Ex P1, p54
[162]Ex D1, p34
[163]Ex P1, p54; see also x-ray report, Ex D1, p34
[164]Ex P1, p55
71 Despite the extensive recitation of the various reports from treaters which made reference to the pain from which the plaintiff was suffering after the 2010 fall, together with the evident progression of her condition, Mr Kossmann concluded that the plaintiff was, in 2014, suffering from a “subcapital fracture left hip, treated with a dynamic hip screw at the end of 2010, causing slow degenerative changes and features of avascular necrosis without pain issues …”. It appears that it was on this basis that Mr Kossmann ultimately concluded that the transport accident in August 2014 “caused an acceleration, aggravation and exacerbation of [the plaintiff’s] left hip condition requiring a total hip replacement”. In reaching this conclusion, I note that Mr Kossmann was in possession of, but did not make reference to, the content of an x-ray report taken on 16 September 2014, in which it is stated: “A direct comparison is made with the previous examination of [24 February 2014] … the previously described deformity in the superior aspect of the head of the left femur is again noted without significant change … there is mild osteoarthritis in the left hip”.[165] (emphasis added).
[165]Ex P1, p70
72 It is notable that in a report dated 7 January 2020, Mr Kossmann stated that “on the balance of probabilities … even in the absence of any aggravation of [her] condition by the transport accident on 22 August 2014, [the plaintiff] would most likely have had to undergo a total hip replacement at some stage in her life. The exact point in time is difficult to predict and is dependent on many factors … .”[166]
[166]Ex P1, p65
The Defendant’s medico-legal evidence
73 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 4 December 2018. In December 2019, he was provided with some additional documentation, being a number of clinical notes, medical reports and other documents in relation to the plaintiff. He provided two reports, the first was dated 22 January 2019 and the second was dated 18 December 2019.
74 In his first report, Mr Dooley notes that the plaintiff told him that when she returned to Sydney following the transport accident, she was “aching all over”. She recounted the incidence of the 2010 fall and subsequent surgical repair, and told Mr Dooley that “she made a good recovery and that although she limped, she never had pain in her hip …”. Her account of her progress following the transport accident is that “in time she developed increasing pain and could hardly walk. In the end she struggled to get from her bed to her bathroom.”[167]
[167]Ex D1, p5
75 Mr Dooley commented in relation to a subcapital fracture of the femur, such as the one which the plaintiff suffered in 2010, that –
“… while disruption of any arterial circulation occurs at the time of the injury, the clinical development of avascular necrosis in terms of symptoms and signs usually does not appear for around twelve to eighteen months post injury. At this point in time, if avascular necrosis has occurred and if revascularisation does not occur, then changes within the consistency of the femoral head, usually superolaterally, occur. The bone weakens and often collapses in this area. In association with irregularity of the articular surface, post traumatic osteoarthritis of the hip joint develops. Although symptoms … can be somewhat intermittent, overall increasing pain and disability develop in time … .”[168]
[168]Ex D1, pp7-8
76 In Mr Dooley’s opinion:
“The developing of increasing hip pain in [the plaintiff’s] situation in early 2012 is in keeping with the development of symptomatic avascular necrosis and osteoarthritis of her left hip joint subsequent to her fracture. I accept that [the plaintiff’s] recollection is that she did not have pain … Sometimes our recollection will differ from the reality of the situation. Based on all of the information available, it is evident that at the time of the [transport] accident, [the plaintiff] had established avascular necrosis and osteoarthritis of her left hip with definite structural change. Although there may have been some intermittency to her symptoms, it is evident that in at least early 2012, mid 2013 and late 2013 … she was significantly symptomatic from her pain. In 2012 she had a cortisone injection into her left hip. In mid to late 2013 her symptoms had progressed to a stage where [she] was to undergo total hip replacement surgery but understandably became fearful of it and withdrew from her surgery ‘at the barriers’.
[The plaintiff] … describes being thrown from her seat in the train accident. It is clear that she struck her left sided ribs. She was diagnosed with fractures of her posterior aspects of the lower ribs. In her assessment at the Royal Melbourne Hospital, it is recorded that there was no pain or tenderness on springing the pelvis ie applying pressure across the pelvis and hips and that there was no lower limb pain. I accept that some impact or soft tissue injury could have occurred to the left hip in the accident. Based on all of the information available however, it would be my view that this or any so called aggravation was not the reason that [the plaintiff] required total hip replacement surgery. The reason for her hip replacement surgery is as outlined above. Prior to the [transport] accident she had established significantly symptomatic avascular necrosis/osteoarthritis of her left hip joint. Total hip replacement had been planned. While I accept that her symptoms became worse in late 2014, in my view this relates to the natural ebb and flow of her underlying condition … .”
77 In his second report, Mr Dooley stated that while he thought that the plaintiff could have sustained some soft tissue injury in the transport accident, he “did not believe that she sustained an injury to the hip joint itself”.[169] He said that while he respected the views of Mr Kossmann, in this case, he did not agree with them.[170] He reiterated that he did not believe that the transport accident had accelerated the need for total hip replacement surgery. He emphasised that the plaintiff was symptomatic from osteoarthritis of the hip joint well prior to the transport accident and that hip replacement surgery “had been discussed and in fact arranged”.[171] It remained Mr Dooley’s view that the plaintiff –
“… underwent hip replacement surgery in 2015 for the development of avascular necrosis and symptomatic osteoarthritis of the hip joint secondary to her left hip fracture in 2010.”[172]
[169]Ex D1, p15
[170]Ex D1, p16
[171]Ex D1, p17
[172]Ex D1, p17
The issues
The Plaintiff’s credit
78 The plaintiff’s credit was tested thoroughly during the hearing of this matter. The matters which were canvassed were many and varied and are set out in detail above, together with the plaintiff’s responses to those matters. The main focus of the cross-examination of the plaintiff was on the extent and nature of the pre-existing injury from which she was suffering at the time of the transport accident.
79 In her affidavit material and in the various histories given to both the treating medical practitioners and medico-legal experts, the plaintiff maintained that following her fall down steps and the surgical repair to her left hip which took place in 2010, she “had a good recovery” and experienced no pain, “only discomfort,” together with a limp that annoyed her.
80 As set out in detail below, in relation to this and other important aspects of her case, the plaintiff’s evidence as it emerged under careful cross-examination, differed significantly from that contained in her affidavit material, viz:
The nature and consequences of the pre-existing injury to the Plaintiff’s left hip
(a) on many occasions during cross-examination, the plaintiff emphasised what she perceived to be a distinction between suffering from “discomfort” and suffering from “pain”. In particular, she said that she would describe what she was suffering from since 2010 as “discomfort,” since she did not need any prescription painkillers at that time;
(b) as the evidence unfolded, it became clear that the plaintiff had been suffering from what was at one stage described as “debilitating pain” since shortly after her fall down stairs in 2010. Upon close analysis, the medical records are replete with references to the plaintiff suffering from “ongoing” left hip “pain” between 2010 and 2014. The medical records also reveal that from at least 2013, the plaintiff was being prescribed Panadol Osteo, a high dose paracetamol, for pain relief;
(c) in her affidavit material as well as in the histories given to various medical practitioners, the plaintiff maintained that she had been told that it was not necessary to have a total hip replacement and that she did not intend to have that procedure; however, the notes set out, and I find, that total hip replacement surgery was scheduled, but the plaintiff was “worried” about having the surgery because she had no one to look after her. When she went to see Dr Qurashi in late 2013, it is clear from Dr Qurashi’s letter to Dr Hester, and I find, that the plaintiff was not trying to avoid surgery, but had sought Dr Qurashi out, because she had heard that he offered “Superpath”, which was a different type of surgery, namely “keyhole” surgery;
(d) overall, the medical evidence satisfies me, and I find, that contrary to the plaintiff’s evidence, the general nature of her left hip condition was one of progression and deterioration. In particular, the notes indicate, and I find, that the plaintiff suffered from fluctuating levels of pain from 2010 to 2014, prior to the transport accident. I find that the management of this pain required:
(i) discussion and advice provided by her general practitioner, Dr Hester,
(ii) referral for treatment to various specialists including multiple orthopaedic surgeons and at least two physiotherapists;
(iii) multiple radiological investigations, including comparison scans for the purposes of monitoring the progression of the plaintiff’s avascular necrosis and osteoarthritis. I note that the scans revealed that by at least 11 October 2013, the plaintiff was diagnosed as suffering from Stage 4 avascular necrosis in her left femoral head, with collapse of the femoral head and lesions seen on the imaging;
(iv) the prescription of painkilling medication in the form of Panadol Osteo;
(v) advice from Dr Rami Sorial, orthopaedic surgeon in July 2013, that a total hip replacement was needed; and
(vi) the scheduling of that surgery in December 2013, which ultimately did not proceed due, at that time, to the plaintiff’s concern about the procedure and her wish to pursue keyhole surgery as an option. Ultimately keyhole surgery was not proceeded with either, as there was no guarantee that this would correct the plaintiff’s limp;
Physical consequences of the transport accident
(e) the plaintiff’s case is that as a result of the transport accident, she suffered an injury to her left hip which caused an “acceleration, aggravation and exacerbation of her left hip condition, requiring a total hip replacement”.[173] In her affidavit sworn on 20 March 2018, the plaintiff swore that following the transport accident, she “developed” pain in her left hip;
[173]Ex P1, p7
(f) however, the records from the Royal Melbourne Hospital indicate that the plaintiff did not complain of any injury to her left hip when she attended at that hospital immediately following the transport accident. While the radiology that was conducted on that evening focussed on the plaintiff’s torso rather than her left hip, the notes record, and I find, that at the time she was examined at the hospital, the plaintiff had “no pain while walking/weightbearing,” and “no tenderness” on “pelvic spring,” which Dr Dooley explained was an examination where pressure is applied across the pelvis and hips;
(g) the plaintiff did not include in her Court Book any affidavit or statement from Mr Michael Griffin, who was with her when the transport accident occurred. No explanation for the absence of this evidence was proffered by the plaintiff;
(h) on 12 September 2014, in the first recorded consultation where the plaintiff made a complaint of pain in the left hip following the transport accident, no note was made indicating that the plaintiff told the general practitioner, Dr Borland, that there was a connection between the transport accident and the pain with which she was presenting. A report of the radiological investigations conducted as a result of this consultation records that the “previously described deformity in the superior aspect of the left femur” was again noted to be “without significant change”;
(i) on 15 October 2014, in the second recorded consultation where the plaintiff made a complaint of pain in the left hip following the transport accident, no note was made indicating that the plaintiff told the general practitioner, Dr Qiang Hu, that there was a connection between the transport accident and the pain with which she was presenting. To the contrary, Dr Hu noted that the request for a CT scan of the plaintiff’s left hip was to be performed as a follow up to an “Op/screw 4y ago now bit discomfort (sic);”
(j) while the evidence of the plaintiff and that of her friend, Ms Goncalves, was to the effect that it was only following the transport accident that the plaintiff experienced difficulty walking, negotiating stairs and activities of that type, the evidence is clear and I find that the plaintiff reported exactly these types of difficulties prior to the transport accident. For instance it is recorded in a letter from Dr Sorial to Dr Hester, that in February 2012, the plaintiff described –
“… symptoms radiating from the buttock region over the groin and thigh down towards the knee. This occurs predominantly with weight bearing activities. Her walking distance is restricted and she has difficulties negotiating stairs. She has difficulties putting on shoe wear and physical examination today confirms irritability of the hip joint throughout the range of motion … .”
Pecuniary disadvantage
(k) as to the pecuniary disadvantage from which she allegedly suffers as a result of the transport accident, the plaintiff swore to the fact that she has been unable to keep working as she would have liked, because of the consequences of the transport accident. In particular, in her affidavit sworn on 20 March 2018, the plaintiff stated that if the transport accident had not occurred, she would have been going for her yearly interviews with Penrith Council and would have been offered contracts every year. She said that the fact that the Penrith Council were happy with her work is evidenced by the fact that this employer “increased my hours for the 2015 working year”.[174] This information was included in two places in this affidavit;[175]
(l) the evidence discloses that in the 2014 year, the plaintiff was offered a one-year contract for 38 hours per week.[176] However, in 2015, by a letter dated 3 February 2015, the plaintiff was sent a letter offering her employment from 19 January 2015 until 17 December 2015. In that letter, it is stated: “You are reminded that this is a casual position and that no hours have been guaranteed. You will be called in for duty on an ‘as required’ basis only.”[177] No explanation was proffered for the difference between the plaintiff’s evidence on this point and the documents which were included in the evidence to support it.
[174]Ex P1, p14
[175]Ex P1, p10 (paragraph 23) and p14 (paragraph 77)
[176]Ex P1, pp74-75
[177]Ex P1, p76
81 Having observed the plaintiff while she was giving her evidence and having considered the matters set out above and all of the material in the Court Books, I find that the plaintiff was an unreliable witness who lacked objectivity.[178] While I am unable to conclude that the plaintiff was deliberately attempting to mislead the Court, it was clear that she was strongly committed to a particular version of events surrounding the transport accident and its consequences. Whether consciously or not, I find that she continually played down the evidently ongoing and progressive nature of the pre-existing injury to her left hip. Under cross-examination, she was only prepared to make concessions about factual matters adverse to her case, if confronted with documents which contradicted her evidence. On some occasions, even when confronted with these documents, she was not prepared to make any concession. The authors of these documents were not required to attend for cross-examination.
[178]See comments made by the bench in Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8 at paragraphs [4]-[42] per Nettle and Beach JA, and McMillan AJA
82 Having regard to these matters, I formed the view at the conclusion of the plaintiff’s evidence, that I would only be prepared to accept the truth of the matters to which she deposed if they were corroborated by independent documentary evidence or an account from a third party.
Absence of evidence relevant to causation
83 In the course of this Judgment, I have noted the absence of evidence from doctors and others who it might be expected would have relevant evidence to give in relation to the plaintiff’s pre-existing hip injury, the nature and context of her complaints of left hip pain following the transport accident and the connection, if any, of the transport accident to the progression and treatment of the plaintiff’s pre-existing left hip injury.
84 In particular, I have noted the absence of reports from the following treating doctors:
(a) Dr Hester, a general practitioner at Southlands, who managed the plaintiff’s left hip injury following her fall down the stairs in 2010 and its sequelae since that time. Dr Hester or other practitioners at Southlands also continued to see the plaintiff following the transport accident;
(b) Dr Ashok-Kumar, a general practitioner at Southlands, who the plaintiff saw in August 2013 regarding the advice that she needed a total hip replacement at that time;
(c) Dr Rami Sorial, orthopaedic surgeon, in relation to his opinion proffered in July 2013 that the plaintiff required a total hip replacement at that time;
(d) Mr New and Mr Coffey, both orthopaedic surgeons, who treated the plaintiff prior to the transport accident;
(e) Dr Dixon, orthopaedic surgeon – although it is unclear whether or not the plaintiff ever saw that doctor;
(f) Dr Borland, a general practitioner at Southlands, who was the first general practitioner to consult with the plaintiff in relation to her left hip following the transport accident;
(g) Dr Hu, a general practitioner at Southlands, who was the second general practitioner to consult with the plaintiff in relation to her left hip following the transport accident.
85 No evidence was led by the plaintiff to suggest that any of these doctors were unavailable to give evidence.
86 I have also noted the absence of an affidavit or statement from Mr Michael Griffin, who was with the plaintiff when the transport accident occurred. Importantly, Mr Griffin could have corroborated the plaintiff’s account that she had “no problems” running and walking down stairs on the night of the transport accident and as to his knowledge of the nature of the injuries sustained by her in the transport accident. No evidence was led by the plaintiff to suggest that Mr Griffin was unable to give evidence in this matter.
87 Where the plaintiff, without explanation, has failed to call as a witness a person who she might reasonably have been expected to call if that person’s evidence was favourable to her, then it is open to the Court to infer that the person’s evidence would not have helped the plaintiff’s case.[179] Further, where the absence of a witness is unexplained, the Court is entitled to infer that the person would have been available to give evidence if required.[180] With the exception of Dr Dixon, in relation to each of the doctors from whom no report (or in the case of Dr Sorial, no further report) was provided, I draw both of these inferences. Similarly, I draw both of these inferences in relation to the absence of any affidavit or statement from Mr Griffin.
[179]O’Donnell v Reichard [1975] VR 916
[180]O’Donnell (ibid)
Causation – did the Plaintiff suffer a compensable injury?
88 The details and occurrence of the accident are not in dispute.
Is it open to the Court to find that the transport accident caused no compensable injury?
89 During the hearing of this matter, the plaintiff submitted that it was not open to the Court to find that the transport accident caused no compensable injury to the plaintiff, since the TAC had accepted the plaintiff’s claim when that form was lodged and had made payments to her in respect of that claim.
90 This submission arises on the back of observations made by Ashley JA in Ansett Australia Limited v Taylor,[181] where his Honour observed that acceptance of such a claim should stand as an admission that an injury had been sustained. His Honour went on:
“I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct … .”
[181][2006] VSCA 171
91 This matter was considered by the Court of Appeal in Sednaoui v Amac Corrosion Protection Pty Ltd.[182] The Court, in that case,[183] made the following observations:
“In the application before the judge, there was a dispute between the parties about whether the applicant had sustained a compensable injury in the course of his employment with the respondent. The applicant’s case was heavily dependent upon an acceptance of his evidence and the admission constituted by the acceptance of his WorkCover claim form and subsequent payment to him of compensation under the Act. The respondent mounted a substantial case, based upon the evidence of Mr Pike and Mr Rigg and the cross-examination of the applicant, that no compensable injury had been sustained by the applicant. It was for the primary judge to determine whether, on the whole of the evidence, he was satisfied that the applicant’s case on compensable injury had been proved on the balance of probabilities.
It may be accepted that the admission, constituted by the acceptance of the applicant’s WorkCover claim form and the subsequent payment of compensation, was a significant admission. But the significance of the respondent’s admission should not be overstated. It was an admission made on behalf of the respondent by a person employed by an entity (Allianz), in circumstances where that person and Allianz … did not have personal knowledge of the injury alleged in the claim form, or the circumstances of the alleged occurrence. Moreover, it was in part an admission of an event that was alleged to have happened on a date and time that the applicant accepted was incorrect. Thus, whatever else might be said, the admission could never have been accepted in its entirety by the judge. Additionally, the fact that sections of the Allianz letter of 30 October 2012 were based, in part, on information provided by the applicant, reduces, at least to some extent, the significance of (and weight to be attached to) the admission so far as it was constituted by the acceptance of the applicant’s claim. It follows that, while, in different circumstances, an admission of the kind made in this case might be regarded as one of such significance as to almost be determinative of the issue in dispute, the present was not such as case.
In careful and appropriately detailed reasons, the judge analysed all of the evidence before coming to the conclusion that he was not satisfied that the applicant had sustained a compensable injury in the course of his employment with the respondent … In no sense did the admission relied upon by the applicant mandate some conclusion contrary to that reached by the judge. The admission was a piece of evidence that had to be weighed in the balance against what might reasonably be thought to be a substantial body of evidence to the contrary … .”
[182][2017] VSCA 66
[183]Priest and Beach JJA, Cameron AJA
92 It is clear from the judgment in Sednaoui, that the task I must undertake in this case, is to analyse all of the material put before the Court and to determine, based on the whole of the evidence, whether I am satisfied that the applicant’s case on compensable injury has been proved on the balance of probabilities.
Findings as to injury
93 Having considered the whole of the evidence, including the medical evidence from both treating professionals and medico-legal experts from both sides, I am satisfied to the requisite standard that:
(a) prior to the transport accident, the plaintiff had established avascular necrosis and osteoarthritis of her left hip with definite structural change, including collapse of the femoral head. While there was some intermittency to her symptoms, in at least early 2012, mid 2013 and late 2013, she was significantly symptomatic from her pain. She was prescribed pain-relieving medication in the form of Panadol Osteo. By mid to late 2013, her symptoms had progressed to a stage where she was scheduled to undergo total hip replacement surgery;
(b) as a result of the transport accident, the plaintiff suffered:
(i) injuries to her 9th, 10th and 11th ribs, which have now resolved; and
(ii) some soft tissue injury to the left side of her body, which has now resolved.
94 On the basis of the investigations undertaken at the Royal Melbourne Hospital immediately following the transport accident, together with the result of the x‑ray taken on 16 September 2014, I am satisfied to the requisite standard that the plaintiff did not injure her left hip in the transport accident.
95 Having regard to all of the medical evidence, I reject the opinion of Mr Kossmann that the transport accident in August 2014 “caused an acceleration, aggravation and exacerbation of [the plaintiff’s] left hip condition requiring a total hip replacement”. This opinion was based on the erroneous conclusion that in 2014, the plaintiff was suffering from a “subcapital fracture left hip, treated with a dynamic hip screw at the end of 2010, causing slow degenerative changes and features of avascular necrosis without pain issues”. In any case, I note that Mr Kossmann stated “on the balance of probabilities … even in the absence of any aggravation of [her] condition by the transport accident on 22 August 2014, [the plaintiff] … would most likely have had to undergo a total hip replacement at some stage in her life …”.[184]
[184]Ex P1, p65
96 In relation to the issue of causation, I prefer the following opinion of Mr Dooley, which was expressed in the context of a full understanding of the nature and extent of the pre-existing injury to the plaintiff’s hip, viz:
“… Based on all of the information available…it would be my view that … any so called aggravation was not the reason that … [the plaintiff] required total hip replacement surgery. The reason for her hip replacement surgery is as outlined above. Prior to the [transport] accident she had established significantly symptomatic avascular necrosis/osteoarthritis of her left hip joint. Total hip replacement had been planned. While I accept that her symptoms became worse in late 2014, in my view this relates to the natural ebb and flow of her underlying condition … .”
97 For this reason, to the extent that the plaintiff suffers from ongoing consequences as a result of injuries sustained to her left hip in 2010, I find that those consequences, including the need to undergo a total hip replacement, are the result of the natural and well understood progression of the pre-existing injury from which the plaintiff suffered, prior to the transport accident.
Is the compensable injury permanent for the purposes of the Act?
98 Having considered the relevant medical reports, I find that there is no evidence either that the injuries to the plaintiff’s ribs, or the soft tissue injury to the left side of her body, have produced any consequences which are presently persisting or will persist for the foreseeable future. In light of this, I find that as a result of the transport accident, the plaintiff did not sustain any injury that is permanent for the purposes of the Act.
Is the injury “serious” for the purposes of the Act?
99 Given the findings which I have made above, it is not open to me to find that the plaintiff has suffered a “serious injury” as a result of the transport accident.
Conclusion
100 In those circumstances, I must refuse the plaintiff’s application.
101 I will hear the parties on the question of costs.
- - -
0
8
0