Guest v Transport Accident Commission
[2013] VCC 1285
•10 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-06-04310
| Dean Guest | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16,17 & 19 September 2013 | |
DATE OF JUDGMENT: | 10 October 2013 | |
CASE MAY BE CITED AS: | Guest v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1285 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Injury to the right knee – causation – range
Legislation: Transport Accident Act 1986 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC With Mr S McCredie of Counsel | Henry Carus |
| For the Defendant | Mr D Masel SC With Mr S Gladman of Counsel | TAC |
HER HONOUR:
1 The plaintiff, who is now 30, applies under s 93(17) of the Transport Accident Act1986 (Vic) for leave to issue proceedings for the recovery of damages in respect of an injury to the right knee suffered in a transport accident on 19 August 1994 when he was 11 years old.
The issues
2 The two issues in the case are those of causation and range. On the issue of causation, the defendant agrees that the plaintiff suffered a soft tissue injury in the transport accident but says that there is no contemporaneous medical opinion, nor any MRI scan at the time, concerning the mechanism of the injury. Further, the defendant says that the plaintiff is a poor historian and the history given by the plaintiff to Dr Epstein in December 2001 about certain matters is closer in time to the transport accident and is to be preferred to the subsequent and different affidavit and viva voce evidence of the plaintiff. These matters include: that after the accident he got out of the car and his knee gave way; that he returned to school after the accident and resumed playing soccer and doing karate; that he did not have any falls after the accident; that he ceased playing soccer for geographic reasons and not because of pain or any falling; that he suffered the avulsion injury in July 1995 while running to do a kick at karate.
3 The defendant also says that there is strong evidence that the plaintiff was in fact running at the time he suffered the avulsion fracture and this could explain his injury and that even if the court found that he was not running when he suffered the avulsion injury, there remains the equally possible scenario that the fall in the bushes, which was unconnected with the accident, caused the avulsion fracture. Finally, the defendant says that the medical opinions of Mr Kudelka and Mr Brearley which rely on the plaintiff’s inadequate recollection are unsound, that the report of Dr Sutcliffe and the second report of Mr Miller do not expose a path of reasoning and that the report of Mr O’Brien does not consider competing possibilities. For these reasons, the defendant says that the plaintiff has not discharged its burden to establish on the balance of probabilities that the transport accident was a cause of the permanent impairment of the plaintiff’s right knee.
4 On the issue of pain and suffering the defendant agrees that the consequences of the plaintiff’s impairment are significant or marked but says they are not more than considerable when compared with other cases in the range of impairments.
The hearing
5 At the hearing I heard evidence from the plaintiff and from Mr Craig Mills, orthopaedic surgeon, who treated the plaintiff from 2003. The parties tendered court books. I have considered all the material relied upon by the parties.
The plaintiff’s evidence
6 At the time of the collision, the plaintiff was a front seat passenger in a vehicle being driven by his uncle. He was wearing a seatbelt. The vehicle was struck on the driver’s side. He felt pain in the right knee immediately after the collision, when his door slammed into his right knee. After the accident the plaintiff was taken to the doctor and then to the Royal Children’s Hospital (RCH) where he was diagnosed as having suffered a soft tissue injury to the right knee. On 28 June 1995 he went to the doctor after a fall in the bushes some days earlier. The doctor sent him to the RCH where he was diagnosed with pre-patellar bursitis and discharged in a plaster splint, which he wore until he was reviewed on 3 July 1995. On 6 July 1995 he attended a karate class and his right knee gave way and he fell to the ground. He attended the RCH where he was diagnosed with an avulsion of the tibial tuberosity which was surgically repaired. He was discharged on crutches and had two subsequent falls as a result of which he attended the RCH in late August 1995. In December 1995 and April 1996 he underwent procedures to remove, respectively, the plates and the band wires which had been inserted in his knee at the time of the surgical repair of the avulsion.
7 The plaintiff says that after the transport accident, in 1994 and 1995, he had persistent pain in the right knee and difficulty weight bearing. On occasions, his right knee would give way. This is what occurred in late June 1995, and again on 6 July 1995, when his knee gave way while he was walking. His right knee pain continued after the surgery to repair the avulsion fracture, and he was seen by an orthopaedic surgeon at the RCH and referred in 2000 for pain management. The right knee symptoms continued and he was referred to Mr Craig Mills in November 2002.
8 The plaintiff says that prior to the transport accident he loved sport, particularly soccer. He had aspirations to be a builder. In the months immediately after the transport accident he found it difficult to return to sport but eventually did so, although to a limited extent. After the fall at karate he was unable to return to ongoing and regular sport at school. He felt that some of his teachers did not take his complaints of knee pain seriously. He continued to have problems with his right knee, which would often be painful and swell up after significant physical activity.
9 He is now 30 years old. He left school at the end of Year 11. He then worked as a courier, but found that job too difficult because of the amount of walking involved. He then worked at a recording studio. From 2002 to 2005 he worked as a delivery driver and as an assistant manager in a plumbing business. In 2005 he began working for Wayne’s High Access as a commercial window cleaner of high rise buildings. He left that job for two years but returned to Wayne’s High access this year, working weekdays between 7am and 3.30pm. He is finding it increasingly difficult to manage the physical aspects of the work and has started his own cleaning business where he intends in the future to just do the administrative duties and to employ staff to do the cleaning.
10 He had hoped to become a builder but this has proved impossible because of his right knee injury, which has considerably restricted his employment options as he cannot engage in prolonged standing, walking, climbing, negotiating uneven surfaces or placing strain on his right knee. He tries to keep fit by going to gym, where he mainly does upper body work as he cannot do any running or cycling because these activities cause him to suffer right knee pain. The inability to do much aerobic exercise at the gym has resulted in his gaining weight which he cannot lose. This frustrates him. He is upset that he cannot play sport with his friends, particularly soccer, nor engage in karate, and he does not watch sport any more. He is adventurous and would love to participate in adventure activities such as hiking and rock climbing but cannot do so due to his right knee problems. His girlfriend does the housework. They are expecting their first child in December.
11 He had patellofemoral lubricant injections in 2008 and 2011 and is due for more but cannot afford to pay for them.
12 He last saw Mr Mills in 2012 when he woke one morning and could not walk. Mr Mills told him to rest, have further injections and change his job. He likes what he does currently and is good at it, and when abseiling there is no pressure on his knee, but he has trouble carrying equipment up and down from the roof, getting into the harness and bending to pick things up. His pain increases at night and he has to lie down and rest. He cannot be on his feet for long, and suffers sharp pain if he runs. His main hobby for the past few years has been playing guitar in a band with friends. They rehearse once every few weeks and play for between 30-40 minutes at venues. He finds that his right knee is very painful by the end of the performance, and he goes home soon afterward the gig is finished. His knee is always uncomfortable and is worse in the cold weather. He has constant pain which is usually worse at night, and usually accompanied by cramps. The pain wakes him frequently at night. He has taken painkillers in the past, although his mother discouraged him from using them. He also took them when they were prescribed by Mr Mills last year but does not like taking them because they cause drowsiness and he needs to be alert at work. Instead he takes krill oil and glucosamine to help with his knee pain. He cannot drive for more than 20 minutes or so without stopping to stretch out his leg.
13 At the hearing, the plaintiff confirmed that after the accident he was on crutches for two weeks or so, and had persistent pain and difficulty weight-bearing. He recalled falling at school in the bushes when his right knee gave way and said that after the fall he could not walk forward and had to walk backwards to the front office. He recalled that his knee gave way a few other times after that. He recalled that his right knee was giving way a lot after the accident but said he did not go to doctors much because his mother was a “bit of a hippy” and not in favour of traditional medical treatment. He recalled going to karate after the accident but insisted that after the accident he never returned to playing on a soccer team with his friend. He said that at the time he was a beginner at karate and was just learning how to kick, punch and block but there was no contact involved. He did not recall kicking any soft bags prior to suffering his avulsion fracture. He said that at the karate class he was sitting and then was to walk towards a bag and kick it. He said that his knee gave way as he walked towards the bag. He agreed that he had been overseas on a number of occasions since the accident. He said that he had done about 20 performances with his band in the past two years. He originally tried playing drums but could not kick the bass drum with his right leg and so switched to guitar.
Other lay evidence
14 The plaintiff’s housemate, Michael Coughlan, provided an affidavit in which he stated that he has known the plaintiff since 2006.[1] They travelled together in Europe and the plaintiff was limited in what he could do and needed help to pick up his backpack. He confirmed that the plaintiff does not play sport, had had some time off work due to his right knee problems, and has to get out of the car on long drives. If he extends himself, his knee swells and he limps for a few days.
[1]See Plaintiff’s Court Book (PCB) 18
15 The plaintiff’s mother, Irene Guest, provided an affidavit in which she noted, among other things:[2]
“After the accident Dean was complaining constantly of pain and niggly pain in his leg. Dean would always be complaining that his leg was sore and that it was hurting him. Dean’s step father, older brother and even his own father all said that he was sooking and that there was nothing wrong with him. It was a very difficult time for Dean but I believed that he was hurting, I just couldn’t find out why.
I knew that Dean was not a sook because for the twelve years before this accident he was in very active in sport (sic). He played soccer with his friend…Dean was going to be a soccer star overseas with his friend…They practised all the time together…
Dean really complained about his leg a lot. This complaining went on for about a year or more. I know that Dean had trouble with his leg from the time of the accident. He would be walking and then just fall down like his leg was not there…He wasn’t able to go back to playing soccer.
When Dean kept on complaining of pain in his leg I took him to another doctor…[who] said I should put him in karate lessons to strengthen his leg.”
[2]PCB 20
16 Mrs Guest stated that she told the Head Master of his primary school that he “still had a very sore leg from the car accident” and that he was looking for a sport for him to do which would strengthen his legs.[3] The plaintiff then began to attend karate classes. On the day he suffered the avulsion fracture she told him not to attend karate because he had been “complaining that his leg was too sore”, but he went anyway.[4]
[3]PCB 21
[4]PCB 21
17 Mrs Guest noted a number of changes in her son after the accident. Before the accident he rarely saw doctors. After the accident, he attended doctors regularly. He changed in his personality “because people did not believe that he was in pain” and became “angry, upset, argumentative and restless” and left school early. He stopped playing soccer “which was the main thing he loved” and stopped playing sport at school. He has had problems with his knee from the time of the accident and suffers but just lives with the pain.
Medical treatment
18 After the accident, the plaintiff attended the Harding Street Medical Centre[5] and then the RCH, where an entry in the hospital records on 19 August 1994 include a medical assessment noting, relevantly:
11 yr old male. Usually fit + well.
Today involved in MCA – sitting in passenger seat of car – hit by car on drivers side. Car door swung open…his leg fell out & door crushed his knee. Now c/o…R knee pain + difficulty weight bearing. O/E limping but able to partly weight bear. R knee tenderness around joint line + surround medial and lateral areas. Unable to fully extend knee. No joint effusion.
Imp Probably soft tissue injury to R knee…X-ray Knee. [6]
[5]PCB 41
[6]PCB 26
19 An X-ray of the right knee on 19 August 2004 was reported[7] with the following conclusion – “No bony fracture or displacement is identified”.
[7]PCB 133
20 On 28 June 1995,[8] he attended the Diamond Medical Centre where the following notes were made – “slowly increasing painful right knee. Fell in bushes & sustained a ? puncture wound…knee. Past history…injured R knee MCA o#…unable to flex R knee”.[9]
[8]PCB 32
[9]PCB 32
21 He was referred to the Emergency Department at the RCH on the same day.[10] The clinical examination notes recorded that he had right prepatellar bursitis; that he was previously well; that 5/7 days ago he fell onto R knee ? embedded material – healed but sore; fell again. Today limping and sent home from school.[11] The examination notes record that the right knee was swollen, with a small central wound, which was tender on the superior aspect of the patella but that there was no joint effusion. No foreign body was seen. Prepatellar bursitis was noted. The X-ray of the right knee on that day was reported as showing “slight soft tissue swelling …overlying the patella; no foreign body, no bony abnormality and no joint effusion”.[12] The plaintiff’s knee was put in a plaster splint and he was to be reviewed on 3 July 1995. On 3 July 1995 it was noted that there was a stiff knee but no knee swelling and a small healing wound.[13]
[10]PCB 32A
[11]PCB 32A
[12]PCB 133
[13]PCB 32B
22 On 6 July 1995, after his right knee gave way at the karate class, he attended the RCH and an X-ray on that day revealed a “large joint effusion” along with an avulsion of the tibial tuberosity which had been displaced proximally.[14] He underwent surgery by Mr R Dickens in the form of an “open reduction internal fixation fractured right tibial tuberosity and repair right quadriceps mechanism”.[15] He was in hospital for 6 days and was readmitted after discharge because of severe pain, and then was discharged again the following night, on crutches.[16]
[14]PCB 133
[15]PCB 33
[16]PCB 34
Expert evidence
23 Dr Michael Epstein, psychiatrist, provided a report dated 12 December 2001,[17] in which he notes the history from the plaintiff, among other things, of being on crutches for about two weeks after the transport accident. The defendant relied more heavily on this history, given much closer to the date of the transport accident, than some of the histories given to doctors between 2006 and 2007.
[17]DCB 33A
24 Mr Rodney Simm, orthopaedic surgeon, provided a report to the plaintiff’s then solicitors on 13 November 2002[18] in which he noted the plaintiff’s complaint of persistent right knee pain after the transport accident; an episode on 6 July 1995 of “acute anterior right knee pain” which “occurred as he was walking towards a karate bag to kick it” and “his knee collapsed underneath him”; subsequent surgery; his failure to return to active sport after surgery; persistent knee pain; a course of pain management and recent complaint of right knee pain. Mr Simm’s opinion was that the plaintiff suffered “direct trauma to the right knee” in the transport accident with ongoing right knee pain “consistent with post traumatic chondromalacia patella”.[19] He concluded that “if it is accepted that the damage to his right knee in the accident pre-disposed him to the tibial avulsion injury then much of his current condition could be attributed to the road traffic accident”.[20] However, Mr Simm was unable to “confirm that the road traffic accident did contribute to the subsequent avulsion injury of the tibial tubercle”.[21]
[18]Defendant’s Court Book (DFB) 1
[19]DCB 3
[20]DCB 4
[21]DCB 4
25 The plaintiff was referred to Mr Craig Mills by his doctor, Dr Rosenhain, in relation to his constant right knee pain and first saw Mr Mills on 11 February 2003.[22] On that day, Mr Mills wrote to Dr Rosenhain that the plaintiff had a number of problems, requiring “a lot of investigation and consideration as to what can be achieved”.[23] Those problems included “his presenting problem of a patellofemoral problem after an MCA”; early patellofemoral osteoarthritis as a result of patella baja related to an infrapatellar contracture “which probably relates to surgical treatment of his tibial tuberosity fracture”; patellofemoral crepitus; hyperaesthesia related to infrapatella division of the saphenous nerve; and other features “possibly related to a neurological problem” such as unusual gait, clawed toes and a scoliosis.
[22]PCB 44
[23]PCB 44
26 Mr Mills referred the plaintiff to a neurologist, Dr Katrina Reardon on 25 March 2003, for opinion and possible nerve conduction studies in relation to the reported altered sensation in the right knee.[24] He noted that he would be seeking approval from the TAC for MRI scans.
[24]DCB 45
27 On 31 January 2004, Mr Mills reported to the plaintiff’s then solicitor about the plaintiff’s treatment. Mr Mills noted his advice to the TAC that the plaintiff’s knee condition remained “incompletely diagnosed” and the TAC’s refusal to fund the MRI scan of the knee.[25] He noted Dr Reardon’s opinion on 4 June 2003 to the effect there may be some minor sensory changes perhaps related to the surgery, but no evidence of a generalised neuropathy. Mr Mills agreed with Mr Simm that the plaintiff had suffered direct trauma to the right knee, but felt that this trauma was “possibly related to some excessive lateral pressure syndrome, some vastus medialis obliquis, wasting, and patellar maltracking”.[26] He then wrote:
In my opinion, the damage to the right knee sustained in the transport accident is unlikely to have predisposed him to the tibial tubercle avulsion injury.
In my opinion Dean’s current right knee condition cannot be attributed to the transport accident.
…I think the difficulty Dean has in terms of attributing the car accident to the ongoing knee symptoms is that as a result of the knee symptoms as a result of the car accident, he was still able to return to an extremely vigorous sport such as Karate and tibial tubercle avulsion is a known risk for kicking sports.
On the balance of probabilities it seems more likely that his knee was not much problem which allowed him to return to Karate and he suffered a known and recognised problem as a result of this vigorous sporting activity.
[25]PCB 55
[26]PCB 58
28 An MRI scan of the right knee on 5 August 2005 was reported[27] as revealing no bone marrow abnormality to suggest osteonecrosis or bone injury; no significant abnormality at the patellefemoral joint, although “a partially fused ossicle is identified at the inferolateral aspect of the patella and could represent an old injury”.
[27]PCB 143
29 A plain X-ray of the right knee on 4 October 2005 revealed “minor bony spurring at the superior pole of the patella”, with an abnormality in the anterior aspect of the tibia in the region of the tibial tuberosity.[28]
[28]PCB 145
30 An MRI scan of the right knee on 10 October 2005 was reported with the following conclusion:
1. There appears to have been prior avulsion of the deep component of the quadriceps tendon which now flops posteriorly to contact the articular surface of the patella.
2. Developmental anomaly of the patella.[29]
[29]PCB 146
31 Mr John Bartlett, orthopaedic surgeon, reported on 8 August 2006[30] to the TAC that the plaintiff sustained direct trauma in the accident, and although the X-ray taken at the time was reported as showing no abnormality, he was troubled by recurring knee symptoms after that accident. He felt it was possible that the plaintiff suffered an undisplaced fracture of the patella from the direct trauma sustained in the accident.[31] He felt this would be consistent with direct trauma, with the ongoing symptoms, and with the current appearance noted on the MRI scan “which is not consistent with a bipartite patella or ossicle”.[32] He felt that a relevant incident was the development of pre-patellar bursitis in June 1995 which required attention at the RCH and management with a plaster splint and antibiotics. This condition and protection with a plaster splint “would give rise to relative bone weakness in the region of his right knee” and “would therefore predispose him” to the fracture avulsion suffered on 6 July 1995 in the context of a “relatively minor incident at Karate”.[33] He felt that the fracture resulted in premature closure of the anterior part of the tibial growth place which has left him with some hyperextension in the right knee and a 1.5cm of patella infrera. He felt that the exact cause of the plaintiff’s current knee pain was unknown but “surmised that it largely related to consequences of the injury at Martial Arts in July 1995 to which he was predisposed because of his pre-patellar bursitis and immobilisation of the knee just eight days earlier”.[34] Mr Bartlett concluded:
I therefore consider that his current symptoms are very unlikely to relate to the motor vehicle accident.
However I am equivocal about this and arthroscopy may clarify causes for his symptoms and indeed exclude the motor vehicle accident and include the fracture at karate as the ongoing cause of his disability.[35]
[30]DCB 17
[31]DCB 18
[32]DCB 18
[33]DCB 19
[34]DCB 19
[35]DCB 19
32 On 3 May 2012,[36] Mr Bartlett reported to the TAC that the minimally displaced fracture of the patella which the plaintiff suffered in the accident would have given rise to minimal long term disability apart from some localised tenderness and some difficulty squatting and kneeling and perhaps some underlying articular cartilage damage on the patella restricting his agility. He perused the operating notes of Mr Mills regarding ongoing pain and further surgery in 2006 and stated
…It would appear that in considering his letters and operation notes that this surgery was directed towards disability resulting from the motor vehicle accident and not resulting from the karate injury. Surgery was directed to the patella where he found “chondromalacia” and a partial tear of the quadriceps tendon. This pathology would appear related to injuries sustained in the motor vehicle accident and not the karate injury.[37]
[36]DCB 20
[37]DCB 22
33 Mr Mills performed a right knee arthrotomy and quadriceps tendon repair in November 2006.[38] He reported on 29 May 2008 that the plaintiff had made steady progress but did not have full range of movement in the right knee, and still had some mild ongoing quadriceps wasting, some crepitus and a very small effusion.[39] He noted that he required ongoing physical activity, occasional medication, review with an X-ray every few years.[40] He diagnosed early osteoarthritis of the knee and felt that the prognosis was for “an ultimate requirement with a likelihood of 60-70% of requiring total knee arthroplasty within 25 years”.[41]
[38]PCB 83
[39]PCB 83
[40]PCB 84
[41]PCB 84
34 Mr Mills said at the hearing that his views about the role of the transport accident in the development of the plaintiff’s right knee had evolved. He said that in 2004 he had discounted the role of the accident in the plaintiff’s ongoing presentation but had since changed his mind in the light of further details concerning the history of symptoms, in particular, that the plaintiff was on crutches for 2 weeks after the accident, and that the avulsion injury occurred while the plaintiff was walking, not running, at karate. He felt that walking on a mat at karate was unlikely to cause an avulsion unless there was a pre-existing injury. He said he now believed that the plaintiff sustained a significant growth plate injury in the accident which led to maltracking and a progressive change in the shape of the knee making falls more likely. He felt that the history of two weeks on crutches followed by a return to activities was not consistent with ligament inflammation, which would have taken 8 weeks to settle and been accompanied by a limp. Nor was that history consistent with patella dislocation. He felt that the history after the accident of a return to some activities including sport did not rule out his hypothesis, as young boys can be very active even if they have a growth plate injury and will often suffer knee pain but ignore their symptoms. They could participate in sport, even in karate, and would typically suffer episodes of pain, reduce activity for a while, then restart it.
35 Mr Mills disagreed with the opinion expressed by Dr R Brzozek, musculoskeletal doctor, who completed a Medical Consultant Review Form on 8 August 2003 in which he opined:
…It appears that initial injury was not of a severe nature and there is no evidence on file of ongoing disability, indeed it appears Clt was fit enough to do judo which involves considerable kicking and quadriceps activity. Assuming Clt was asymptomatic for 10 months post MVA then I would consider the pre-patella bursitis and the Avulsion Tibial Tuberosity as completely separate injuries unrelated to MVA.[42]
[42]DCB 35
36 Mr Mills said that the absence of symptoms would not rule out damage to the growth plate having occurred as a result of the transport accident, but said that in any event the fact was that the plaintiff did have right knee symptoms and episodes between the accident and the avulsion, but that these symptoms did not limit him greatly.
37 On 27 July 2008,[43] Dr Clayton Thomas, rehabilitation consultant opined as follows:
I don’t think it is possible that the tibial tuberosity avulsion could have taken place as a result of the motor vehicle accident. If that were the case, the knee would have been very weak and would not have recovered and would have been obvious with respect to ongoing significant limping. He would not have been able to participate in sports.
I think it is more likely that the tibial tuberosity avulsion took place whilst participating in sports the following year. The question is- whether his knee could have been weakened in some way that would have predisposed his tibial tuberosity to being avulsed. Given the age that the injury occurred, I also cannot see the connection here.
It would be extremely hard to imagine that he would not have been fully fit and fully recovered at the time that the subsequent event occurred.[44]
[43]DCB 23
[44]DCB 25
38 Mr Peter Kudelka, orthopaedic surgeon, reported on 6 September 2010 that the plaintiff told him that “he recalls quite clearly that he not have a normal knee after the 1994 accident”.[45] He opined:
[45]PCB 94
1. The only significant injury resulting from the motor vehicle accident sixteen years ago is the injury to the patient’s right knee. Originally the right knee injury appeared to be a soft tissue swelling only, affecting predominantly the insertion of the patellar tendon in the front of the tibia, where in a 12 year-old by, the tibial tuberosity is part of the proximal tibial growth plate and is somewhat weak
This appears to have been injured in the 19.8.94 accident, but not considered to be significant. About a year later, however, he was active at karate, when there was a sudden severe strain to this area, and this was internally fixed at the Royal Children’s Hospital and healed, with the internal fixation subsequently being removed.
2. His present condition is that the effect of the strain injury has led to premature fusion of the upper tibial growth plate, which has resulted in a right leg shorted than the left leg by 1.5-2cms and some hyperextension of the right knee. As the years progress, osteoarthritis in the right knee will gradually worsen, and probably he will require further surgery in the future, and this may require total knee replacement in middle age.
…
4. I think the only significant impairment resulting from the motor car accident on 19.8.94 has been an injury to the patella mechanism in the region of its insertion of the upper tibial tuberosity in his right knee, due to direct trauma of the accident.
This has been appropriately treated, but has left the patient with a short, slightly deformed knee joint, with early osteoarthritis and the propensity for further deterioration over time. He is fully employable in his present occupation as industrial Abseiler, but on the general labour market his right leg pain and weakness would be a handicap.
…
My view is that he can attribute his present right knee problems to the 1994 accident, although the karate incident was certainly significant…[46]
[46]PCB 93-94
39 Mr Kenneth Brearley surgeon, reported on 3 November 2010 a history from the plaintiff of the passenger door striking his right knee, of being on crutches for about two weeks, of suffering ongoing anterior knee pain which was often quite severe, and of his knee giving way when he was walking towards a bag at karate.[47] Mr Brearley concluded after examining the plaintiff and reviewing the radiology:
He suffered a serious injury to his right knee in the motor vehicle accident of 19th August 1994. No actual fracture was seen in the knee region at that time but ever since the accident he has anterior knee pain.
…
His anterior knee pain has been present ever since the motor vehicle accident of August 1994. It is likely that there was some serious damage to the tibial tuberosity in the accident and subtle damage to that structure would have caused some relative instability of the tibial tuberosity interface and rendered this region liable to further obvious damage. Such then probably occurred as a result of the karate incident. In fact he was not practising karate at all at the time; he was simply walking in the gymnasium towards the equipment when his knee collapse under him.
Accordingly the probability is that the motor vehicle accident was at least a significant contributing factor to the injury occurring. Had he not had the accident there is no likelihood that he would have suffered from the tibial tuberosity avulsion although such a fracture can occur with karate exercise. However as stated there was no violence at the time of the tuberosity separation and he had knee pain prior to this episode occurring.[48]
[47]PCB 100
[48]PCB 100
40 Mr Brearley concluded that there was quite marked wasting of the thigh musculature and that he had ongoing pain.[49] He felt that the plaintiff’s prognosis was poor and that it was likely that he would develop osteoarthritis of the knee and ultimately need total knee joint replacement.[50]
[49]PCB 101
[50]PCB 101
41 Dr Helen Sutcliffe, occupational physician, reported on 15 November 2010,[51] that the plaintiff sustained a traumatic injury to the right knee in the accident. She concluded that the full extent of the right knee injury has gradually emerged over the years and that as a result of the knee injury sustained in the accident he “has permanent shortening of the right leg, and decreased function of the right knee, with lack of full range of movement, hyperextension and loss of bulk and strength as a result of injury to the right quadriceps”.[52] She reached the same conclusion as Mr Brearley concerning his prognosis. She noted that he had no capacity for occupations requiring prolonged standing, sitting or walking but was able to manage his current work cleaning high rise buildings from the outside because it did not involve heavy lifting, bending, walking or weight bearing.[53]
[51]PCB 108
[52]PCB 108
[53]PCB 109
42 Mr Russell Miller, orthopaedic surgeon, reported on 24 August 2011[54] that the plaintiff suffered “a significant injury to his right knee” as a “direct consequence”[55] of the transport accident and now suffered “quite significant patello-femoral disease”[56] and clinical and radiological evidence of arthritis in the joint. He reached the same conclusion as Dr Sutcliffe and Mr Brearley concerning the plaintiff’s prognosis, but indicated that he thought a total knee replacement would be needed in 10-15 years. On 20 May 2013, Mr Miller noted that the plaintiff’s account of what happened at karate “involved no significant trauma”.[57] He concluded:
…I believe it is likely that there was an injury to the patello-femoral joint and the tibial tuberosity at the time of the motor vehicle accident and that this was aggravated by the minor event at karate. I believe that the motor vehicle accident was and remains the dominant feature of this man’s presentation in relation to the right knee.[58]
[54]PCB 111
[55]PCB 117
[56]PCB 116
[57]PCB 123
[58]PCB 123
43 In relation to the plaintiff’s prognosis, Mr Miller felt that it was unlikely that he would be able to continue working as an abseiler for the remainder of his working life. He agreed with Mr Timms that the plaintiff was at an increased risk of falls if he continues to work at heights or in positions where he can fall.
44 Mr John O’Brien, orthopaedic surgeon, reported on 2 July 2012[59] that the plaintiff suffered a direct trauma to the right knee in the accident, with subsequent anterior knee pain which was suggestive of “some trauma to the patello-femoral compartment, which would be compatible with the described mechanism of injury”.[60] He felt that the surgical repair of the subsequent avulsion produced:
premature fusion of the anterior aspect of the proximal tibial epiphysis, causing some knee hyperextension and leg shortening. In addition there appears to have been scarring of the patella tendon, which obviously has affected the patello-femoral compartment which had already been injured, resulting in persistent symptoms for which further surgery was undertaken.[61]
[59]PCB 126
[60]PCB 128
[61]PCB 128
45 He felt that a total knee replacement would be needed in the future and that the plaintiff’s weight-bearing function would slowly deteriorate, progressively worsening the limitations on his general, social, domestic and recreational activities.
46 On 5 June 2013,[62] Mr Robert Dickens, orthopaedic surgeon, noted a history of the plaintiff walking to kick a bag at karate in July 1995. He felt the plaintiff suffered a soft tissue injury to the right knee in the transport accident and that he suffered the avulsion of the tibial tubercle “while kickboxing at Karate”. He concluded:
Since the original injury which was a soft tissue injury to the knee he has while kickboxing at Karate avulsed the tibial tubercle that has gone on to union but growth arrest producing a recurvatum of the knee and lowering of the patella attachment and from then on all the subsequent events could be attributed to that second injury which is hard to equate to the original car accident.[63]
[62]DCB 26
[63]DCB 31
47 He conceded it was possible that the plaintiff had suffered a fracture of the patella in the car accident which was missed on the X-ray at the time.[64] He was unable, without seeing the original X-rays, to determine this or indeed to determine whether the plaintiff had congenital bipartite patella.
[64]DCB 32
Legal principles
48 In order to satisfy sub-paragraph (a) of the definition of serious injury in s 93(17) of the Act, the plaintiff must establish that she has suffered a serious long-term impairment or loss of a body function.
49 In determining an application under s 93(17)(a) of the Act, the Court must be satisfied that the consequences of the long-term impairment of the particular body function, in terms of pecuniary disadvantage and/or pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[65]
[65]Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
50 Ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[66]
[66]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].
51 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[67]
[67]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46
52 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[68] Each case has to be determined in the light of its own facts.[69]
[68]TAC v Dennis [1998] 1 VR 702, 703.
[69]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
53 In determining the application the whole of the evidence is to be considered. The Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he or she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[70]
[70]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
54 I am entitled to take into account that the plaintiff is 30 years old and that, compared with other persons with impairments of the right knee, she will experience the pain and suffering or other consequences relied upon for a longer period of time.[71]
[71]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44].
Findings and reasons
55 I found the plaintiff to be a straightforward witness who did his best to answer questions about matters which occurred nearly 20 years ago. I accept his sworn evidence, supported in many respects by that of his mother, to the effect that after the transport accident he was on crutches for two weeks, that he constantly complained of right knee pain thereafter, that he suffered a number of falls when his right knee gave way, was walking in the karate class when his knee gave way on 6 July 1995, did not go to doctors much between August 1994 and July 1995 because his mother ended to avoid doctors, and did not return to playing soccer after the accident but did attempt to play Australian rules football on one occasion. The plaintiff was extensively cross-examined about these matters and I prefer the plaintiff’s evidence over any inconsistent items of history recorded by various doctors.
56 In particular, to the extent that medical opinions (such as those of Mr Dickens and Mr O’Brien rely heavily on the incorrect history of the plaintiff running or kicking at karate), I consider them of little assistance.
57 In this case, I attach greatest significance to the current opinion of Mr Mills. He has been the plaintiff’s treating surgeon for many years and was cross-examined at the hearing on the basis of full information concerning the impact of the transport accident, the ongoing symptoms suffered by the plaintiff after the transport accident, the history of the plaintiff’s falls, and his difficulty returning to some sports. His current opinion, as summarised above at paragraph 29 was to the effect that the transport accident was a cause of the plaintiff’s permanent right knee impairment. In this regard, his opinion is consistent with that of Mr Kudelka, Mr Bartlett (in 2012), Mr Brearley, and Mr Miller. I accept his conclusions and find that the transport accident on 19 August 1994 is a cause of the long term impairment of the plaintiff’s right knee.
58 I accept the plaintiff’s evidence concerning his ongoing symptoms his treatment regime and the impact that the accident has had on his occupational, domestic and recreational activities. Before the transport accident, the plaintiff was a young, adventurous boy who loved sport, was skilled at soccer, was happy and performing well at school and had no physical limitations. He had dreams of pursuing a sporting career in soccer and an occupation as a builder. At only 30 years of age, he is severely restricted in his walking, standing and driving tolerances. He has constant right knee pain which wakes him at night. He also suffers cramps in the right knee. He used to take medication prescribed by Mr Mills but it made him drowsy. He takes krill oil and glucosamine and puts up with the pain. He has had treatment with lubricating injections but he cannot afford more of these at present. He has already had two rounds of knee surgery. There is general consensus among doctors that he suffers from osteoarthritis in the right knee and will require a full knee replacement in the future.
59 To his credit, he has found an occupation which does not involve weight bearing, but is struggling with some of the activities he is required to perform, such as carrying things to and from rooftops and getting into his harness. Given his limitations, he will be permanently unable to undertake any occupation that involves prolonged driving, standing or walking. He cannot run. Recreationally, he cannot do any of the sports he would like to play, and is limited to upper body work in the gym as he cannot weight bear for cycling or running. He does not do housework. He plays in a band occasionally but suffers pain during those performances. He is able to travel but is limited in bending to lift.
60 I take into account that he is a relatively young man and will continue to suffer these symptoms for the foreseeable future.
61 I am satisfied that the consequences of his permanent right knee long term in terms of pain and suffering and/or pecuniary disadvantage are more than considerable when compared with other cases in the range of long term impairments.
Conclusion
62 It follows that leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the right knee sustained in the transport accident on 19 August 1994. I reserve the question of costs.
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