Hawli v TAC

[2021] VCC 1784

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CI-20-05292

KADIJAH HAWLI	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2021 and 3 November 2021
DATE OF JUDGMENT:	18 November 2021
CASE MAY BE CITED AS:	Hawli v TAC
MEDIUM NEUTRAL CITATION:	[2021] VCC 1784

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – Injury to left hip and thigh – Plaintiff’s evidence was combative and argumentative but was not unreliable – Plaintiff was a witness of credit

Legislation Cited:      Transport Accident Act 1986 (Vic)

Cases Cited:Richards v Wylie (2000) 1 VR 79

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram QC with Mr T Nathanielsz	Slater and Gordon
For the Defendant	Mr A Moulds QC with Mr S Pinkstone	Solicitor to the Transport Accident Commission

HIS HONOUR:

1Ms Kadijah Hawli suffered injury in a transport accident on 7 May 2016. At that time, she was a pedestrian when a car backed into her, trapping her against a stationary car on her other side. The impact was to her right leg, but it was her left thigh and hip which were squeezed against the other stationary vehicle. It is not in dispute that she was involved in the motor vehicle accident or that she sustained injury to her left hip and thigh at this time. What is in issue is whether or not the impairment consequences flowing from that left hip injury reach the level necessary to satisfy s 93(4) of the Transport Accident Act 1986 (Vic), that she has sustained a serious injury.

2The Defendant in this case accepts that if the Plaintiff can be considered a reliable and creditworthy witness, then the evidence in the case supports a finding that she has sustained a serious injury.[1] This meant the case focused on whether Ms Hawli could be considered a witness of credit whose evidence could be relied upon.

[1]        Transcript (“T”) 123, Line (“L”) 25 – T124, L10

Background – factual matters

3Ms Hawli was born on 4 April 1973. She completed schooling to a Year 12 level. She subsequently trained as a dental nurse. Relevantly, she began working as a dental nurse on a casual basis, working virtually full-time hours. In addition, she undertook her own catering business on weekends.

4By way of background medical matters, she began attending at her general practitioner, the Friendly Medical Centre, in January 2015 complaining of right elbow pain.[2] She was placed on the prescription painkilling medication, Tramadol. Through 2015, this right elbow pain seemed to continue and she was variously on Tramadol or Endone and, at times, Panadeine Forte. She also had complaints of not sleeping and having some psychological problems. This is as much detail as can be found in the medical material.

[2]Defendant’s Court Book (“DCB”) 22-23; T16, L6 – T17, L16

5At the beginning of 2016, Ms Hawli appeared to be continuing on Endone. Her evidence was that, in the few months prior to the motor vehicle accident, she would attend the gym on an almost daily basis, performing both strength and aerobic work. Her weight at that time was recorded at around 96 kilograms.[3]

[3]Treating doctor’s note of 22 April 2016 at DCB 30

6The motor vehicle accident occurred on 7 May 2016. It appears that it was a slow speed impact. Ms Hawli was taken by ambulance to the Western Hospital. Hospital notes indicate that there was “no bruising, abrasions, lacerations or other evidence of injury”.[4] An x-ray of the pelvis and right hip joint revealed no abnormality at this stage.[5] The relevant notes from the Western Hospital do not reveal any complaint of injury to the left hip or bruising about the left thigh. She was discharged.

[4]DCB 185

[5]DCB 180

7Ms Hawli saw her general practitioner on 10 May 2016 complaining of pain over the right thigh, and her prescription for Tramadol was recommenced.[6] The doctor arranged for an ultrasound for the right thigh. This was not diagnostic for any particular problem.[7]

[6]DCB 30

[7]DCB 31; Plaintiff’s Court Book (“PCB”) 16

8On 31 May 2016, Ms Hawli attended her general practitioner and, for the first time, there is notation of complaint of left hip pain.[8] She was referred for an x-ray of the left hip.[9] No abnormality was detected. She continued to be prescribed pain medication, such as Palexia, and to complain of pain through June 2016. After two weeks off work, Ms Hawli returned to work.[10] However, she continued to complain of pain, particularly in the left hip, such that her general practitioner referred her to Mr Sam Patten, an orthopaedic surgeon, on 3 August 2016 with hip pain. She did not take up this referral. She was working at this time in her usual role as a dental nurse at Iris Dental at her usual casual hours. Her treating doctor noted that this was about six days per week.[11] Ms Hawli was seeing a psychologist around this time and was being prescribed the medication, Fluoxetine.

[8]        DCB 31

[9]        PCB 17

[10]        T34, L10-11

[11]DCB 34; T38, L13-22

9It is now necessary to say something about her affidavit. This is because Ms Hawli alleges that her left hip injury has impacted upon her capacity for work. This was a source of contention between the parties. The Defendant argued that the left hip injury had no real impact on her ability to continue as a dental nurse, or in catering, and further argued that her affidavit was unreliable and misleading when it deposed to the left hip injury impacting on her work. Due to this ground of contention, it is useful now to set out what the Plaintiff alleges as to the effect of her left hip injury on her work.

10In her affidavit sworn 14 May 2019, she deposed to the following matters:[12]

“The injuries which I have sustained have very significantly impacted on my work capacity. I was working as earlier mentioned as a dental nurse at the time I sustained injury and also running my own catering business on weekends. Despite my injuries, I was pushed to go back to work by my employer but I struggled to a point where I eventually I (sic) was forced to cease that work entirely in December 2017. I had already ceased my catering work prior to that time. I was in receipt of Centrelink benefits thereafter but realised that I could not survive financially and I tried to do some agency work which again I struggled with because of my pain. I suffered an injury performing that agency work on 14 July 2017 when acid from a syringe entered into my left eye and I have not worked since.

I believe that my physical restrictions from the transport accident, quite apart from my eye injury, play a very significant part in restricting my employment capacity.”

[12]        PCB 10, at paragraphs [22]-[23]

11Returning now to the chronology.

12The Plaintiff ceased work with Iris Dental at the end of 2016. It might be thought from her affidavit that she ceased work at Iris Dental because of left hip pain. However, it became clear in cross examination that she ceased work at Iris Dental because her boss had made comments to her regarding a disagreement between them.[13]

[13]        T39, L2-9

13In cross examination, the following exchange occurred:[14]

“Right?‑‑‑I – I actually didn't have to resign but I gave her notice, 'I will not be coming back'.”

[14]T39, L10-11

14I find that the Plaintiff did not leave Iris Dental because of her left hip injury but rather because of a disagreement with her employer.

15Shortly afterwards, Ms Hawli took off time for personal reasons and only recommenced working on 6 March 2017 with a company called Temp Fillings Pty Ltd.[15]

[15]DCB 234, T40, L5-6

16It was put to Ms Hawli that she returned to work on a casual basis with Temp Fillings for about 33 hours per week at $28 per hour. Her evidence on this point during cross examination was unclear and unhelpful. It must be said that she was a combative witness who often failed to let Counsel complete questions and seemed to argue unnecessary points. For example, she was at great pains to point out that she often did not work 33 hours because it was a casual position, but then when it was put to her that in her subsequent WorkCover claim form she had listed 33 hours as her usual working hours, she quibbled with the word “usually” in the claim form and what it meant exactly.[16] Nevertheless, Ms Hawli worked with Temp Fillings as a dental nurse from March 2017, and I find that this was at about 33 hours per week at $28 per hour. During that time, she reported to her general practitioner that she had ongoing pain over the left hip and was given Panadeine Forte.[17]

[16]T41, L23-24

[17]DCB 39

17On 14 July 2017, Ms Hawli sustained an eye injury while working at Temp Fillings, when acid entered her eye. She was taken to the Western Hospital and, shortly afterwards, a WorkCover claim form was lodged and she was off work from 14 July 2017 for about nine months. During this time, her treating doctor referred her for an MRI of the left hip. This showed two conditions of the, being an insertional tear of the gluteus minimus tendon and trochanteric bursitis.[18] It is to be noted that this is the accepted injury that the Plaintiff relies on with at the time of trial.

[18]PCB 22 and 41

18This prompted a further referral to Mr Patten by her general practitioner.[19] Mr Patten noted, after consultation that there was moderate to severe discomfort of the left trochanter. He recommended an ultrasound-guided injection which was undertaken on 1 November 2017.[20] It provided no relief and Mr Patten simply recommended ongoing physiotherapy.

[19]        DCB 43

[20]PCB 34

19At this stage, Ms Hawli was referred for psychological counselling associated with ongoing left hip pain to a Mr Halakhe Ganyu.[21] She had about eight sessions with him.

[21]PCB 58

20Ms Hawli was also referred for physiotherapy to Mr Nishaant Kashyap in October 2017,[22] and had physiotherapy 31 times between October 2017 and May 2018. During these sessions, the notes report consistent left hip pain which was often noted to be severe.[23]

[22]        DCB 43

[23]PCB 54-55

21Chronologically, Ms Hawli next saw Dr David Weissman on 21 June 2018, a medico-legal psychiatric specialist engaged by the Plaintiff’s lawyers. He took a history of ongoing pain in the left hip requiring Palexia as prescription pain medication, and ongoing physiotherapy and hydrotherapy at this stage.[24]

[24]        PCB 85

22She saw Mr Peter Moran, an orthopaedic medico-legal specialist, on 5 March 2018.[25] Consistent with the MRI finding referred to above, he confirmed the left hip gluteal enthesopathy, being a weakness of the muscles, and a trochanteric bursitis.[26]

[25]        PCB 60

[26]        PCB 61

23In March 2019, Ms Hawli was examined by the Medical Panel in respect of her eye injury. In passing, they noted ongoing pain in the left hip limiting movement.

24More recently, in 2021, Ms Hawli saw Dr Anthony Menz, a consultant orthopaedic surgeon, who once again confirmed that she was extremely tender at the left trochanteric bursa, but that she also had an almost full and pain-free movement of the hip joint and no tenderness around the left thigh.[27] He considered that she had ongoing left trochanteric bursitis.

[27]        PCB 73

The Defendant’s contentions

25The first matter the Defendant raised in respect of the unreliability of the Plaintiff’s evidence was her description of the onset of her left hip and thigh problems after the motor vehicle accident. The Defendant noted that the Plaintiff had given a history to Mr Moran that she had left hip pain immediately after the motor vehicle accident and bruising about the left thigh.[28] In contrast, the Defendant noted that there was no such complaint recorded by the Western Hospital or the treating doctor. Furthermore, there was a finding of no bruising about the left thigh in the Western Hospital notes.

[28]        T115, L28 – T116, L6

26This contrast was put to Ms Hawli in cross examination.[29] Her evidence was unhelpful, combative and did not engage with the questions being asked. She started by saying that she could not remember what she had told Mr Moran.[30] However, she did openly concede that when she went to the Western Hospital she did not have pain on the left side.[31] She confirmed that the pain in the left side came on much later. This much at least is consistent with the notes of both the hospital and those of her treating doctor. These matters were properly conceded in the end.

[29]T31, L13 – T33, L22

[30]T32, L25

[31]T32, L19-21

27Overall, I consider that while the Plaintiff’s evidence was not given in a totally responsive manner, she was not being deliberately evasive. Further, the evidence she gave was broadly consistent with the chronological unfolding of the left hip problems. These are well-documented in the records of the general practitioner, the referrals for radiological examinations, and the subsequent referral to Mr Patten. These all tell a reasonably consistent picture of the left hip problems emerging a few weeks after the motor vehicle accident, but once they had emerged being consistently reported and assessed.

28The second area of unreliability was said to be around the impact that the left hip had had on her work capacity. I have set out the relevant portion of the affidavit above. It must be said that it is set out in a manner which is chronologically confused and tends to strongly suggest that it was the left hip that caused the Plaintiff to leave Iris Dental.

29Counsel for the Plaintiff appearing at the trial before me readily conceded that this paragraph left that impression, and that if such an impression was gained then it was the wrong one.[32] It must be said that the affidavit was drawn in a manner which was not helpful. However, the evidence Ms Hawli gave on this point when pressed was quite clear; that she did not leave Iris Dental because of the left hip injury but because of being accused of stealing and having dirty nails. She even went further and volunteered in cross examination that she left work and then took time off to deal with the confronting nature of those allegations.[33] Why the drafter of the affidavit did not openly state these matters is unclear. However, given the very frank admissions made by Ms Hawli during her cross examination, and the way in which she dealt with this matter, I consider her viva voce evidence to be reliable, and I duly find that she did not leave Iris Dental because of the left hip injury and nor did she leave her work at Temp Fillings because of her left hip injury. Overall, I consider the form of the affidavit to have been the real vice in respect of this point rather than the evidence of Ms Hawli on it.

[32]        T136, L6-12

[33]        T39, L17-19; T39, L22-25

30In respect of the work hours she had undertaken at Temp Fillings, however, as I have said above, her evidence was combative and argumentative. Overall, however, I did not consider it to be unreliable. What is clear enough from the consideration of all of her evidence on this point, about how many hours she worked prior to the eye injury, was that she was a casual working varied hours and it was difficult to average them out, but that they might come to 33 hours some weeks. I find that to be the case and I accept her evidence on this point.

31The third point raised as to her unreliability was the histories taken by Mr Moran and Dr Weissman that Ms Hawli had gained some 18 or 20 kilograms after the left hip injury. Once again, when this matter was put to her in cross examination, she conceded, over a period of time, that in fact her weight gain had been probably in the order from 96 kilograms to 102 kilograms.[34] She accepted that this was of a much smaller magnitude than that contained in the histories by those two medical practitioners. That concession was well made and borne out by the general practitioner notes. I consider once again that whilst Ms Hawli gave evidence in a manner which was combative, it was not unnecessarily untruthful or unreliable.

[34]        T69, L25-29

32In any event, the incorrect history-taking by these two medical practitioners on this point does not disturb the fundamental diagnosis made by all orthopaedic surgeons of her organic problem.

33The next matter said to impact the reliability of the Plaintiff’s evidence was the fact that she has returned to work at various times as a caterer and now runs her own cleaning business. It is said that while these matters are disclosed to various doctors, she has not disclosed the full extent of the hours and duties that she works. Video was shown of her working as a cleaner. Facebook and Instagram posts of her businesses were also shown.

34Overall, I do not consider that these showed the Plaintiff to be a person working in a manner inconsistent with the bulk of the medical material or her affidavit material. She gave evidence that she can perform her cleaning duties but requires frequent breaks and allowances from her clients.[35] Nothing in the film footage or social media posts contradicts this.

[35]        T107, L3-9

35The Defendant pointed to the fact that she has very substantial earnings, particularly in the 2020/2021 financial year, which suggests that she was working almost full-time. The Plaintiff’s explanation for these high amounts of income are that she is paid very good rates of pay through the NDIS and that she had not invoiced particular clients for some time, resulting in very high quarterly BAS amounts.[36] Overall, there was no substantial evidence to contradict the Plaintiff on these points.

[36]        T92, L9-20

36The Defendant pointed to the fact that it was only on the morning of the trial that the BAS statements had been produced, and the Plaintiff had not deposed on affidavit about any of these matters. However, the Plaintiff had filed her supplementary affidavit in February 2021, pointing out her work as a cleaner in her own business. Yet it was the Defendant who chose not to obtain any further material from the ATO in respect of this business. This is not a criticism to be levelled at the Plaintiff. Further, given that the Plaintiff had been open and forthright about her activities as a cleaner in her company from February of this year, I consider this to be a matter which goes in her favour about the work that she is engaged in, even with her injury. I reject the Defendant’s contention on this point.

37Fifthly, the Defendant showed video of the Plaintiff engaged in a number of social activities. These were at the Great Ocean Road on what was called a seated flying fox. There were also Instagram posts showing that she had been to Erskine Falls and Facebook posts showing she had also participated in activities at Live Wire Park.

38The Plaintiff gave evidence that the walk at Erskine Falls was very difficult for her. In fact, her Instagram post notes that she was very sore afterwards.[37] There is nothing in this criticism, I find. It is to be noted that the seated flying fox ride was just that – seated. While it looks adventurous, it is not something that the Plaintiff has said she cannot do and, in fact, she said she gets through most days living on painkillers.[38] I accept this evidence, and I further find that going on the seated flying fox was not inconsistent with the limitations that she otherwise experiences. Similarly, the activities at Live Wire Park appear to be limited to walking on a raised net with her son. Once again, I do not consider this to be inconsistent with the fact that she is a woman who does a physical job and exists with pain medication to allow her to participate in some activities. I am supported in this finding by Mr Moran’s opinion that the video footage is not inconsistent with his opinion.[39]

[37]        DCB 165-166

[38]        T75, L22

[39]        PCB 68

39Overall, I find the Defendant’s attacks on the Plaintiff’s reliability as a witness to not be made out. I consider that while the manner of the Plaintiff’s giving of evidence was less than satisfactory, the truthfulness of her evidence cannot be questioned. I accept it. This conclusion is bolstered by Mr Moran’s opinion that there was no abnormal illness behaviour on examination[40] and Dr Menz considered her symptoms consistent with her injury.[41]

[40]        PCB 64

[41]        PCB 75

40Having made that finding and given the concession of the Defendant, I need only briefly address those consequences which I consider necessary to satisfy me that the Plaintiff has sustained a serious injury.

41These are, first, that Ms Hawli has suffered an ongoing organic injury being gluteal tendinitis and chronic trochanteric bursitis. These conditions persist until today. This is a period of now some five years, which is considerable, and there is no suggestion that it will heal or be alleviated by any particular treatment. For a woman who is now 49 and has to live with this condition for the rest of her life, it is a considerable factor. The Defendant argued Mr Moran in his report of 3 May 2021 had focused on ongoing injury to the right hip rather than the left. However, reading his reports together it seems clear there are typographical errors confusing findings as to the left rather than right side. Overall, I find that Mr Moran was focusing on the left side and highlighting ongoing problems stemming from left trochanteric bursitis.

42Ms Hawli has had an ultrasound-guided injection which has failed to alleviate her symptoms. She has made every effort to participate in physiotherapy and has tried hydrotherapy. All treatment modalities have been exhausted. There is some consideration given to PRP injections, but this has not been approved, and some doctors expressed doubt as to whether it is clinically worthwhile. Third, Ms Hawli has required ongoing strong prescription pain relief to deal with her pain. She estimates this pain to be at 5 out of 10 and up to 7 or 8 out of 10.[42] It is aggravated with physical activity. The fact that prescription medication Palexia continues to be needed on a regular basis 2-3 times per week is a considerable consequence.[43] This is particularly so when this has been the case for some 5 years.

[42]        At PCB 9, at paragraph [21], the Plaintiff describes her pain as 5 out 10 on a good day and 7 or 8 out

of 10 on a bad day. See also Dr Menz’s report at PCB 73 who records pain at 9 out of 10

[43]        PCB 9, at paragraph [21]

43In addition, Ms Hawli has had to modify the way that she can work. It is true that she works significant hours in a physical job, but she has given evidence that she modifies the job significantly with the approval of her clients to allow her to perform this work. This represents a significant factor consequence. The fact that Ms Hawli persists despite pain and limitation stands in her favour.

44The pain is sufficient to wake her up at night a few times a week and she gets only limited hours of sleep. When this occurs she has to get up and take pain medication.

45While Ms Hawli can participate in family activities, she pays the price physically by an increase in pain and with soreness. The Defendant submits that while she can participate in family activities and derives fun from them, this should be held on the other side of the scale and balances out what the injury has cost her. However, Ms Hawli gave evidence that she can no longer participate as she used to in these family events, such as doing belly dancing, which is a part of her culture, and this is a great loss for her. I accept that evidence.

46Ms Hawli also gave evidence about the impact of her left hip pain on her sitting and kneeling at prayer time. She is a devout Muslim and prays five times a day. The impact of the hip injury on this regular activity is also a factor to be weighed.

47She also gave evidence that she was “down” and upset by her condition. In accordance, with the principles in Richards v Wylie[44] such matters can be considered in assessing the seriousness of her condition. Noting the treatment she has had with Mr Ganyu and the reporting of Dr Weissman, I consider the mental effect is a negative impairment consequence. It is also relevant that she has been unable to return to her main passion of catering. However, this is also because of her eye injury. Overall, I do not accept this is a consequence of her left hip injury.

[44] (2000) 1 VR 79

48Having considered all of the evidence in this case and particularly the ongoing accepted organic injury, and the finding I have made that the Plaintiff is a witness of truth whose evidence can be accepted, I find that she has sustained a serious injury.