Gatt-Rutter v TAC
[2022] VCC 1975
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01515
| Rose Gatt-Rutter | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2022 | |
DATE OF JUDGMENT: | 22 November 2022 | |
CASE MAY BE CITED AS: | Gatt-Rutter v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1975 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to left knee – physical and psychological sequelae
Legislation Cited: Transport Accident Act1986 (Vic)
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries v Poljak [1992] 2 VR 129; Lexa v TAC [2019] VSCA 123; Sabo v George Weston Foods [2009] VSCA 242; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Transport Accident Commission v Kamel [2011] VSCA 110.
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr R Middleton KC Ms C Kusiak | Hall & Wilcox |
HER HONOUR:
1The plaintiff, Rose Gatt-Rutter, who is 30 years old, applies under s 93(17) of the Transport Accident Act1986 (“the Act”) for leave to issue proceedings for the recovery for damages for pain and suffering only in respect of an injury to the left knee suffered in a collision on or about 30 June 2016 when she was struck by a car while travelling through an intersection in the city on her skateboard. The application was conducted under sub-paragraph (a) of the definition of serious injury.[1]
[1] The plaintiff abandoned the application under sub-paragraph (c) at the commencement of the hearing.
2The plaintiff gave evidence at the hearing and no other witnesses were called. The parties each tendered a court book. I have considered all of the evidence and the submissions made by counsel.
3The plaintiff’s evidence was to the following effect. At the time of the transport accident, she was working full-time as a logistics coordinator in the centre of Melbourne. She used to skateboard to and from work.
4She was struck on the left side of her body, hit the windscreen and was thrown a number of metres onto the ground. She suffered a laceration to her face and other injuries, including a dislocation of her left knee. She was taken to hospital but discharged the same day wearing a knee brace, which she wore for about six months. She had physiotherapy for the left knee for a few months and then developed her own exercise regimen at home in order to increase the muscle tone in the left leg. She was able to return to full time work and duties 3 months after the transport accident.
5However, the affected knee, which is weaker than the right knee, is on the leg she uses to push her skateboard, and she suffered two right ankle fractures in 2016 and 2017 while skateboarding because her left leg did not lift off the ground fast enough and got caught on the ground. She took Endone for a short period while recovering from these fractures and had about 7 weeks off work on each occasion. She managed to return to full-time work, as well as to running and skateboarding (including skateboarding to and from work each weekday), three months after each fracture, although she did her job differently, obtaining assistance with lifting and kneeling. She skateboarded to the skate park to see her friends but did not use the skate park. Skateboarding was her main form of exercise.
6She had a pre-existing depressive and anxiety disorder which she managed with medication but also with a busy outdoor exercise regime based around daily skateboarding which included meeting friends and doing jumps and tricks at the skate park, as well as frequent running. Her psychological condition has been worsened by the pain and restrictions flowing from the left knee injury. She ceased skateboarding in 2018 due to her left knee problems and her fear of suffering further injuries. She also stopped running because it hurt her left knee too much. Giving up running and skateboarding has been a significant loss to her; as she said: “I’ve lost half my life”.[2]
[2] Transcript of Proceedings, Gatt-Rutter v TAC (County Court of Victoria, CI-22-01515, Judge Davis, 15
November 2022) (‘T’) T46.1.
7For the past two years, she has been studying Business and Law at university. She also works about ten hours per week in retail. She is required to stand for her whole shift (which may be five hours or eight hours) but her left knee pain worsens and she has to take breaks. She used to enjoy working, but now simply endures the work because of the knee pain she has while doing it. After working, she is very sore at night.
8She continues to experience some weakness in the left knee and daily knee pain, which is exacerbated by standing or walking for long periods, and by kneeling, squatting or using stairs. For her left knee pain, she takes around six Panadol tablets per day. She takes two Panadol tablets in the morning and, if her day is a physical one, takes two more Panadol tablets every four hours. She always takes two Panadol tablets before going to bed.
9She cannot afford physiotherapy and so manages her left knee with a home-based exercise regime based on the exercises given to her by the physiotherapist or that recommended by others. This regime involves riding a stationary bike for 20-30 minutes 3-4 times per week, as well as performing stretches, lunges, and core exercises. Although she suffers pain when doing these exercises, she understood from her original physiotherapist, Mr Reece Thomas, that this was to be expected but that she should persevere through the pain so as to strengthen the muscles around her left knee.
10She has been to the doctor over recent years when she has had exacerbations of back pain and sciatica requiring prescription medication or for other medical conditions, but has only mentioned her left knee problems on a few occasions since the transport accident. This is because she believed that she had to live with her left knee problems and pain and continue to exercise.
Medical Evidence
11Ms Gatt-Rutter had two MRIs on the left knee, on 7 July 2016 and on 28 October 2022. The first MRI was reported as showing no meniscal tear and “recent patellar dislocation with full thickness rupture of the femoral origin of the medial patellar retinaculum, grade 1 sprain medial patellofemoral ligament and grade II sprain medial collateral ligament”.[3] The MRI also showed “evidence of long standing patellar maltracking with patellar apex and lateral patellar facet chondromalacia”.[4] The second MRI was also reported as showing patellar maltracking and fat pad impingement, although no patellofemoral chondropathy.[5]
[3] Plaintiff Court Book (“PCB”) 36.
[4] Ibid.
[5] Ibid 38.
12Ms Gatt-Rutter was seen by three orthopaedic surgeons for medico-legal purposes: Mr Austin Vo, Mr Stephen Doig and Dr Terence Saxby. In his report dated 16 May 2022, Mr Vo noted that the plaintiff reported no pre-existing history of left knee problems and, since the transport accident, “intermittent pain” over the anterior aspect of the knee,[6] worsened by kneeling, squatting and lunging, as well as an inability to run. On examination of the left knee, he noted some quadricep weakness and a “mild lag” with some patellofemoral grinding.[7] He considered that her ongoing symptoms were transport-accident related and reflected “general knee deconditioning with quadriceps weakness as well as chondromalacia patella on a background of a previous subluxation event”.[8] He recommended further physiotherapy to strengthen her quadriceps, and, if there was no improvement, referral to a knee specialist.
[6] Ibid 50.
[7] Ibid 51.
[8] Ibid 52.
13Mr Doig reported on 16 June 2022 that the plaintiff complained of pain in the left knee, which felt wobbly and a little unstable and occasionally swelled.[9] On examination, Mr Doig noted slight swelling of the left knee, with some quadricep wasting and a limited range of movement when compared with the right knee. He noted particular tenderness along the medial patellar retinaculum where it attaches to the patella. He diagnosed transport accident-related dislocated left patella with ongoing patellofemoral symptoms as well as symptomatic patellar maltracking and (which was asymptomatic prior to the transport accident) and residual instability. He noted that her left knee injury had “affected her quite considerably” in that she found it much harder to dance, kneel, squat or use stairs.[10] He concluded that she was likely to have ongoing problems with the left knee. In an addendum report dated 8 November 2022, Mr Doig noted that the results of the recent MRI did not change his earlier assessment and concluded that the plaintiff’s chances of developing osteoarthritis and needing surgery in the future “are minimally increased compared with the general population”.[11]
[9] Ibid 54.
[10] Ibid 56.
[11] Ibid 57.
14Dr Terence Saxby, orthopaedic surgeon, reported to the defendant’s solicitors on 21 October 2022 that the plaintiff complained of left knee pain “on and off”,[12] with trouble using stairs, kneeling, squatting and bending. She told him that it felt insecure and had recently given way. He found no swelling, but tenderness on compression of the left patella, with crepitus and possible maltracking, but equal range of motion in both knees. He diagnosed transport accident-related dislocation of the left patella. He did not believe further treatment was needed other than muscle strengthening but indicated that she would continue to have “minor ongoing discomfort” in the left knee.[13]
[12] Defendant Court Book (“DCB”) 18.
[13] Ibid 21.
15There were psychiatric reports from two psychiatrists. Associate Professor Saji Damodaran reported on 1 September 2022 to the defendant’s solicitors that the plaintiff presented with symptoms of anxiety and depression with thought content “dominated by the preoccupation regarding the physical injury and the sense of helplessness and grief regarding her persistent pain and her inability to enjoy the activities that she was quite interested in, including her skateboarding and her dancing”.[14] Associate Professor Damodaran diagnosed adjustment disorder with mixed anxiety and depressed mood in relation to the transport accident, and her persistent pain, which he considered was an aggravation of a pre-existing anxiety and depressive disorder. He recommended that she continue to take her antidepressant medication and that she see a psychologist to help her deal with grief and loss related to the transport accident.
[14] Ibid 11.
16Associate Professor Abdul Khalid reported to the plaintiff’s solicitors on 21 June 2022 that the plaintiff indicated she was not receiving direct treatment for her left knee because she could not afford to pay for it, but was doing her own exercises.[15] She reported flashbacks, distressing memories and vivid visualisation of the transport accident when passing the site where it occurred or when seeing a person cross the road. She reported disturbed sleep. She disclosed a psychiatric history of anxiety and depression since the age of 13 or 14, against the background of a violent and abusive mother and the separation of her parents. Between the ages of 14 to 16 years she self-harmed and also took an overdose on three occasions. She saw Dr Justin Lewis once, who diagnosed her in 2013 with generalised anxiety disorder.[16] She had been taking Cymbalta since the age of 18. She ceased using cannabis approximately 18 months ago.
[15] PCB 41.
[16] DCB 23A.
17Associate Professor Khalid diagnosed an aggravation of pre-existing major depressive disorder with anxious distress as a result of the transport accident. He noted that her pre-existing major depressive disorder was more or less in remission prior to the transport accident. Given the chronicity of her symptoms since the transport accident, he considered that her prognosis was “slightly guarded”,[17] and that nearly two-thirds of her current psychiatric impairment related to the transport accident.
[17] PCB 44.
Defendant’s Submissions
18Counsel for the defendant took me to a number of authorities as the basis of the submission, on a number of grounds, that the plaintiff’s application should fail.[18] Firstly, because the ingestion of over-the-counter medication, in the absence of treatment, on a daily basis was insufficient to warrant a finding of serious injury. Secondly, because the plaintiff’s ability to return to work full-time in her pre-injury duties in September 2016 was a strong indicator militating against a finding of serious injury. Thirdly, because she has had minimum treatment for the left knee and made minimal complaints (about times in July and August 2016) to treating doctors, during periods when she was seeing doctors (from 2018) for left hip and lower back pain, and occasional flare ups of sciatica. This suggests either that she has recovered from her knee injury or that the sequelae of the knee injury can no longer be disentangled from the sequelae of other physical problems. Moreover, none of the medical reports stated that she should not be running or skateboarding. Fourthly, because although the plaintiff deposed to having mentioned her left knee problems to either a chiropractor or osteopath who treated her for other issues, there was no report from them, nor from Mr Reece Thomas, physiotherapist, who pronounced her fit for work in October 2016. Fifthly, because the limited evidence from treating or examining doctors about her pain and restrictions does not reach the “very considerable” test.[19] Sixthly, the plaintiff could receive physiotherapy treatment for her left knee if she needed it by getting her solicitors to apply for the benefits from the TAC, and so her explanation that she cannot afford treatment should be rejected. Finally, on the question of the psychological impact of the left knee injury, there was no report from the psychologist, Dr Galatsis, who had seen the plaintiff before and after the transport accident. In any event, the plaintiff admitted that she returned to running and skateboarding after the transport accident and lost the ability to skateboard following the two ankle fractures.
[18] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Lexa v TAC [2019] VSCA 123; Sabo v George
Weston Foods [2009] VSCA 242 (‘Sabo’); Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12.
[19] Humphries v Poljak [1992] 2 VR 129, [40].
Findings and Reasons
19I found the plaintiff to be a straightforward, understated, and articulate witness. I accept her evidence that she has self-managed the left knee as instructed by her initial treating physiotherapist by doing the necessary strengthening exercises and by taking the medication she takes for her pain. She has done so because she understood that her condition was chronic and unlikely to change. She said that she did not see doctors for pain, in relation to her back problem, for example, unless she was unable to walk or function. At those times, she took prescription medication, just as she had done after her two ankle fractures. I consider that she has been very stoic in relation to the pain and suffering sequelae of her left knee injury, and I accept her evidence about the extent of pain and restrictions caused by the left knee injury, as well as her evidence about the reasons for no longer running or skateboarding and the psychological impact of the loss of the ability to run and skateboard on her mental health, which was compelling. I also accept her evidence that she has been unable to afford physiotherapy for her left knee.
20I note that, on the authorities, all of the evidence and circumstances must be considered in a serious injury application, and an ability to return to work is not determinative against a plaintiff in a serious injury application.[20] I accept the plaintiff’s explanation for the absence of treatment, which is consistent with the surgical opinion that while no surgical treatment is indicated, she is likely to experience ongoing symptoms in the left knee. The plaintiff’s evidence was that she last saw her former treating psychologist a few times after the transport accident. For this reason, I consider that the recently obtained psychiatric reports adequately address the psychological sequelae of the transport accident.
[20] Sabo [71].
21I note that the plaintiff’s account of her pain and restrictions, medication, and the psychological sequelae of those restrictions, is consistent with what she told examining experts.
22On the whole of the evidence, I am satisfied that she suffered a dislocation injury in the left knee at the time of the transport accident which has resulted in chronic pain, wasting of the left quadricep, some limitation in the range of movement, some weakness and instability of the left leg. The pain requires daily ingestion of substantial quantities of Panadol; interferes with her sleep, requires her to take breaks at work, and prevents her from running; while the weakness and instability prevent her from skateboarding, which she used to do daily and extensively in company. This activity provided not just physical exercise but was an important plank of the maintenance of her mental health. The grief and loss surrounding her ongoing left knee pain and loss of ability to undertake her old physical activities have been assessed as constituting an aggravation of a pre-existing depressive and anxiety disorder, which was largely in remission, and which has resurfaced in the form of an adjustment disorder. The plaintiff is only 30 years old and will have to live with the sequelae of her left knee injury for many decades.
23The plaintiff is entitled under sub-paragraph (a) of s 93(17) of the Act to rely on the physical sequelae of a serious long-term impairment of a body function as well as on the psychological consequences of those physical sequelae.[21]
[21] Transport Accident Commission v Kamel [2011] VSCA 110.
24In all the circumstances, I am satisfied that the pain and suffering sequelae of the long-term impairment of the left knee, including the psychological consequences flowing from it, are more than considerable when compared with other cases in the range of long-term impairments of a body function.
Conclusion
25Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the injury to the left knee suffered in the transport accident on 30 June 2016.
26I reserve the question of costs.
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