Hollis v Transport Accident Commission
[2021] VCC 1735
•23 November 2021
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02665
| MARGARET JOAN HOLLIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong (e-hearing) | |
DATE OF HEARING: | 20 and 21 October 2021 | |
DATE OF JUDGMENT: | 23 November 2021 | |
CASE MAY BE CITED AS: | Hollis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1735 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the right hamstring – multiple pre-existing comorbidities – comorbidities resulting in the need for significant treatment over a significant period of time – comorbidities resulting in impairment of physical function – the occasion of the impairment and its consequences – whether the impairment of function of the right hamstring and its consequences are serious when compared with the impairment of function and consequences of the comorbidities
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Woolworths Ltd v Warfe [2013] VSCA 22; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Richards & Anor v Wylie [2000] 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh with Ms S Lean | Ryan Carlisle Thomas |
| For the Defendant | Mr S Smith QC with Ms K Manning | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1The plaintiff is an elderly woman of seventy-six years who was born in September 1945. In 2016, she was seventy-one years of age. On 26 September 2016, she boarded a bus at the Geelong Station. She sat in a seat reserved for passengers who are disabled. The bus came to a stop at a bus stop where the plaintiff intended to alight from the bus. She stood up from her seat, and before she could move off the bus, it took off suddenly and then braked suddenly.
2The bus driver’s actions resulted in the plaintiff losing her footing and falling in the aisle of the bus. She was unable to walk and was assisted in alighting from the bus. She felt pain in her upper right leg and hip area. Her husband and daughter arrived and she was taken to a hospital, where she was admitted as an inpatient.
3The plaintiff suffered an injury to her right upper leg, diagnosed as a large avulsion injury of the right hamstring. She submitted that the injury has resulted in a serious long-term impairment of the function of her right leg.
4Mr M Walsh, lead Counsel, appeared with Ms S Lean of Counsel for the plaintiff. Mr S Smith QC appeared with Ms K Manning for the defendant.
The Plaintiff’s medical treatment
5Neither party was concerned to concentrate much on the medical treatment of the plaintiff for the hamstring injury because all of the medical practitioners who have treated the plaintiff and assessed her on a medico-legal basis agree that she suffered an avulsion injury of the right hamstring. I will, therefore, provide only a short summary of the medical evidence.
6The plaintiff had a number of radiological investigations while an inpatient at the hospital.[1] One of those investigations was an ultrasound undertaken on 27 September 2016. The radiologist reported that the plaintiff had suffered a large avulsion injury of the right hamstring.[2] Subsequently, and after she was discharged from the hospital, she saw Dr Muhammad Asif, a general practitioner at the Corio Medical Clinic on 2 October 2016, and then Dr Bryan Johnston, general practitioner of that clinic, on 5 October 2016.[3]
[1]The plaintiff’s treatment at the hospital is referred to in the reports of Barwon Health dated 21 March 2018 and 22 May 2019 at Plaintiff's Court Book (“PCB”) 78 and 71-72
[2] PCB 160
[3] PCB 85-86
7The plaintiff was referred to have an MRI scan, which was undertaken on 11 October 2016.[4] The radiologist reported that the plaintiff had suffered an avulsion of the common right hamstring origin with a defect of 2.9 centimetres. He referred to there being some intermediate signal and thickening of the semimembranosus and biceps femoris fibres. Dr Johnston interpreted the MRI scan to demonstrate a high grade tear of the origin of the right hamstring with persistent tendon retraction.
[4] PCB 158-159
8Dr Johnston referred the plaintiff to have physiotherapy and hydrotherapy. The physiotherapy was undertaken by Ms Sarah Henderson, physiotherapist. She considered that plaintiff was making good progress in the twelve months following the occurrence of the hamstring injury, however, Dr Johnston considered that thereafter, her progress had plateaued. He referred her to Mr Andrew Thomson, orthopaedic surgeon. The plaintiff first saw him on 28 October 2016.
9Ms Henderson provided a report of her treatment of the plaintiff dated 19 March 2018.[5] She began treating the plaintiff on 28 September 2016. It is not clear for how long Ms Henderson treated the plaintiff, however, it would appear that she treated the plaintiff at least until the early part of 2018, because she refers to the MRI scans undertaken in March 2017 and February 2018. She considered that the plaintiff would not experience any further structural improvement to her hamstring injury, and would benefit from ongoing hydrotherapy and a home-based strengthening program. She referred to a number of other parts of the plaintiff’s body which were causing problems for the plaintiff. I will refer to those later in these reasons.
[5] PCB 89-83
10Ms Henderson referred the plaintiff for hydrotherapy, which was provided by, or at least under the supervision of, Ms Tanya Deans, physiotherapist. She provided a report dated 18 March 2018.[6] It would appear that she treated the plaintiff from about March 2017 to February 2018. The plaintiff had hydrotherapy treatment twice weekly. She also referred to a number of other parts of the plaintiff’s body which were causing problems for the plaintiff. I will refer to those later in these reasons.
[6] PCB 68-70
11Mr Andrew Thomson, orthopaedic surgeon, provided two reports, dated 29 March 2018[7] and 17 August 2020.[8] The plaintiff first saw him on 28 October 2016, and again on 5 March 2018. He made the same diagnosis that the plaintiff had suffered what he described as a nasty proximal hamstring injury. She told him that her level of recovery in the first twelve months following the occurrence of the hamstring injury was excellent, but since that time, she had ongoing pain over her gluteal region and over the posterior hamstring musculature in her thigh. He reviewed a further MRI scan which he considered showed evidence of the hamstring tear with scar tissue.[9] He did not consider that she was a candidate for surgery, but rather that she should pursue physiotherapy. He noted that the physiotherapy was not offering her a lot, so he then considered that any ongoing treatment for her would be simple analgesia.
[7] PCB 59-62
[8] PCB 57-58
[9]The plaintiff underwent two further MRI scans on 8 March 2017 (at PCB 156) and on 19 February 2018 (at PCB 154-155)
12Mr Thomson had a telephone consultation with the plaintiff on 17 August 2020. On that occasion, the plaintiff told him that she was having ongoing significant issues with pain and dysfunction with her hamstring injury. She also described ongoing pain in the buttock region around where the hamstring tear occurred, with pain radiating both distally and proximally into her lumbosacral spine. By that stage, the plaintiff had undergone physiotherapy, hydrotherapy, and was using regular Panadol Osteo for pain relief. He also noted that she was having significant issues with normal daily activities, for example dancing, housework, shopping, driving, and attending her music group. He could not explain her level of pain, because he expected that her hamstring tear would have healed. Mr Thomson ultimately considered that the plaintiff’s prognosis was relatively poor. He recommended obtaining an opinion from a pain management specialist in the hope that it might assist the plaintiff in obtaining some improvement in her symptoms.
13The plaintiff left the care of Dr Johnston and commenced seeing Dr Punya Rajapaksa, general practitioner, at the Newcombe Central Medical Centre. She attended at that clinic for the first time on 30 July 2019. Dr Rajapaksa provided two reports, dated 24 March 2020[10] and 25 February 2021.[11] It would appear that he referred the plaintiff back to Mr Thomson, and then Mr Thomson referred the plaintiff to Dr Joanne Kara, pain physician and anaesthetist. The plaintiff first saw her on 11 November 2020. She provided two reports, dated 30 March 2021[12] and 6 August 2021.[13]
[10] PCB 54-56
[11] PCB 51-53
[12] PCB 46-48
[13] PCB 44-45
14The plaintiff told Dr Kara that she had constant aching in her right hamstring which increased with any activity including sitting on hard seats or suffering pressure on her hamstring area. She also described pain radiating to her gluteal region, and into her lower back. Dr Kara considered that the plaintiff was suffering chronic nociplastic myofascial pain as a direct result of the hamstring injury. On examination, she noted that the plaintiff was tender to palpation over her right hamstring area and gluteal muscles in the right greater trochanter. She recommended that the plaintiff be assessed and managed by herself and the multidisciplinary team, and also she thought PRP injections might offer her some relief and improve her pain and mobility.
15Dr Kara requested approval from the Transport Accident Commission for the plaintiff to undergo a multidisciplinary assessment with a view to returning the plaintiff to the best function possible.[14] She also applied for approval to perform a PRP injection into the plaintiff’s right hamstring under ultrasound guidance. The plaintiff had the injection. She did not refer to performing the injection on the plaintiff in her reports, but it will be seen from my summary of the opinion of Mr Kossmann that she performed the injection on the plaintiff on 26 May 2021.
[14] PCB 165
16The last report of a treating medical practitioner is that of Dr Manojkumar Samuel, general practitioner, from the Newcomb Central Medical Centre. He provided a report dated 6 September 2021. He referred to the fact that the plaintiff was attending a multidisciplinary pain management program, and I assume that was through Dr Kara. He noted that treatments which the plaintiff obtained had failed to produce any acceptable outcome; that hydrotherapy offered some sustained relief, but physiotherapy and osteopathy did not improve her pain. Otherwise, he noted that she was in receipt of prescriptions for medication. It would appear that she was in receipt of prescriptions for medication for a number of medical conditions, not just the hamstring injury, and I will refer to that later in these reasons.
17The plaintiff was referred to Ms Melinda Solly, orthotist. She provided a report dated 28 January 2021.[15] The plaintiff first saw her on 2 March 2017. She obtained a history from the plaintiff that she was not weightbearing and partial weightbearing on her right leg due to the hamstring injury.[16] Additionally, that the plaintiff has been putting more weight on her left leg which Ms Solly considered had aggravated pre-existing osteoarthritic changes in the tarsometatarsal articulations of the MTP joint of the great toe, navicular cuneiform joint, and was increasing the pes planovalgus foot position.
[15] PCB 49-50
[16]Ms Solly refers to “NWB” and “PWB” which I have interpreted contextually as not weightbearing and partial weightbearing
18Ms Solly then diagnosed that the plaintiff had suffered an injury resulting in tibialis posterior dysfunction. The increased load on her pes planovalgus resulted in her left midfoot collapsing further and straining the tibialis posterior. The plaintiff was fitted with a right foot orthosis and a left tibialis “AFO”.[17] After initial assessment and provision of orthotics, the plaintiff was provided with what is referred to in photographs in her Court Book. The first photograph shows an orthotic which extends above the foot and behind the calf, fixed into the left shoe.[18] The second photograph shows it out of the shoe.[19] The third photograph shows the corresponding shoe insert placed in the right shoe.[20] Ms Solly suggested that the plaintiff required different footwear in order to accommodate the orthotics.
[17]I do not know what an “AFO” is, however, the photographs demonstrate the orthotics and perhaps explain what it is
[18] PCB 167
[19] PCB 168
[20] PCB 169
19Ms Solly appears to have treated the plaintiff in concert with Mr Nathan Donovan, orthopaedic surgeon, who referred the plaintiff to Ms Solly in the first place. There is no report from Mr Donovan. Mr Kossmann was specifically asked to consider this causation issue. I will refer to it again when I summarise his opinion.
The medico-legal assessments
20The plaintiff was examined by Mr Thomas Kossmann, orthopaedic surgeon, who examined the plaintiff on 16 January 2019, and provided a report bearing the same date.[21] He examined the plaintiff again on 8 September 2020, and provided a report bearing the same date[22] and two supplementary reports, dated 19 November 2020[23] and 25 November 2020.[24] He re-examined the plaintiff on 27 August 2021 and provided a report bearing the same date[25] and, lastly, a supplementary report dated 14 September 2021.[26]
[21] PCB 136-149
[22] PCB 105-115
[23] PCB 102-104
[24] PCB 100-101
[25] PCB 91-99
[26] PCB 89-90
21Mr Kossmann recorded a lengthy history in his two principal reports dated 16 January 2019 and 27 August 2021. I do not propose to summarise any of the content of the histories, because none of it was controversial. He diagnosed a large avulsion injury of the right hamstring origin with extensive haematoma tracking along the medial aspect of the thigh along the adductor muscle. He also diagnosed injuries to the plaintiff’s right hip and left foot, the importance of which I will refer to later in these reasons. He considered that the plaintiff’s prognosis with respect to the right hamstring injury was poor. He did not believe that she would make a full recovery and would require maintenance treatment by pain medication and anti-inflammatories, and she might benefit from physiotherapy and hydrotherapy. In his second principal report, he expanded upon his diagnosis to include a partial tear of the gluteus medius tendon and a complete tear of the gluteus minimus tendon. Again, that is not controversial.
22Mr Kossmann considered that the plaintiff’s ongoing pain was complicated by inflammation. He considered that a PRP injection was a necessary and reasonable treatment to improve the condition of her right hamstring. He anticipated that the injection would be followed by an exercise program. The plaintiff had the injection on 26 May 2021. It would appear that it was arranged by Dr Kara.[27] The plaintiff did not experience any improvement in the condition of her right hamstring. Mr Kossmann noted that subsequently, the plaintiff commenced a pain management program in August 2021 which was expected to be undertaken for a period of six weeks. The plaintiff referred to it involving sessions with a physiotherapist, occupational therapist and a psychologist. The treatment has been delayed due to COVID-19.[28]
[27] PCB 33
[28] PCB 33
23Mr Kossmann was also asked to consider whether the plaintiff had suffered an aggravation of pre-existing severe osteoarthritic changes in the left foot, and in particular, throughout the tarsometatarsal articulations, the MTP joint of her great toe, navicular cuneiform, significant pes planus and small plantar calcaneal spur. He accepted that the plaintiff had suffered such an aggravation, describing it as a deterioration as a result of her changed gait.[29]
[29] Mr Kossmann was provided with the report of Ms Solly
24The defendant had the plaintiff examined by Dr Anthony Menz, orthopaedic surgeon, who examined the plaintiff on 25 February 2020 and provided a report dated 4 March 2020,[30] a supplementary report dated 14 April 2020,[31] and a video conference examination on 11 October 2020 with the provision of a report bearing the same date.[32] He diagnosed a tear of the right hamstring origin. He found nothing untoward through examination. He considered that the plaintiff’s hamstring tear would have healed within six months of the occurrence of that injury, and he added that he could not explain her ongoing symptoms.
[30] Defendant's Court Book (“DCB”) 6-13
[31] 14-16
[32] DCB 17-24
25After the video conference examination, Dr Menz repeated that he found it hard to understand why the plaintiff was complaining of significant pain some five years after the occurrence of the injury, and that he would have expected it to have healed within six months. He referred to a number of comorbidities, which I will refer to later in these reasons, and concluded that none of them were either related to the occurrence of the transport accident or as a secondary consequence of the primary injury to her right hamstring. He considered that the plaintiff’s prognosis for any improvement of “her alleged pain” is very poor.
26Dr Menz was informed that the plaintiff has been fitted with an AFO to her left foot. He was asked to comment on whether the plaintiff had suffered any new injury or aggravation of an injury to her feet, hips and lower back resulting from the transport accident. He said that he did not believe that was the case, however, it does not appear that he was provided with the report of Ms Solly or any of the reports of Mr Kossmann as far as I can see, although, he was provided with a schedule of documents. He did not reproduce the schedule, so it is not clear to me whether he had those reports. He certainly did not refer to any reports in the body of his own reports when he came to discuss the hamstring injury and its consequences.
27Dr Michael Epstein, psychiatrist, examined the plaintiff on 11 October 2018. He provided a report bearing the same date. He obtained a very extensive history of the plaintiff’s background and, importantly, he was provided with the reports of Dr Johnston and his clinical notes. He was aware that she had a long history of depression and anxiety, and an Obsessive Compulsive Disorder. He accepted that she has become more depressed after the transport accident. He diagnosed symptoms of Generalised Anxiety Disorder with features of an Obsessive Compulsive Disorder and he made reference to her longstanding persistent Depressive Disorder. He considered that her persistent Depressive Disorder has been aggravated by the transport accident.
The Plaintiff’s consequences
28I will next summarise the consequences of the impairment of function of the plaintiff’s right leg before turning to the evidence relied upon by the defendant which it submitted demonstrates that the plaintiff’s overall functioning is largely due to premorbid conditions and not the claimed impairment of function of her right leg.
29The plaintiff swore three affidavits.[33] The following is a brief summary of the consequences contended for by the plaintiff:[34]
[33]9 September 2009 (at PCB 8-16); 27 October 2020 (at PCB 26-31) and 20 September 2021 at (PCB 32-36)
[34] PCB 14-16, 28-31 and 34-35
· A constant level of pain in the right hamstring which varies in severity. There is always a level of discomfort in the right hamstring.
· If she overdoes activity she will develop increasing pain in her right hamstring which then affects her buttock and lower back.
· She experiences a sense of weakness in the right hamstring and is less mobile, flexible and active.
· She has difficulty bending. This makes it difficult for her to put on socks and shoes and to cut her toenails.
· She has difficulty with prolonged standing.
· She has difficulty with prolonged sitting, especially on harder chairs, preferring to sit on soft chairs or on her walking frame.
· She can stand for about 20 minutes
· She has difficulty lying on her right side due to pain.
· She sometimes wakes at night because of pain.
· She walks slowly and often with a limp. She is restricted to walking about 200 metres, and is unable to walk any further. She has particular difficulty using stairs and walking up hills.
· She is restricted in her domestic tasks around her home. She has to pace herself. In particular, she suffers interference with doing laundry, hanging clothes on the clothesline, and with prolonged standing when cooking.
· She has become increasingly reliant on her walking frame.
· She is no longer able to manage dancing.
· She finds it difficult to wander around shopping areas.
· She finds it uncomfortable when she is a passenger on drives with her daughter.
· She was unable to help her son by travelling by train and tram to his home in Melbourne, and difficulty negotiating stairs at his home.
· Further pain and dysfunction in her left foot.
· She uses Panadol Osteo three times per day for pain relief, and Tramadol.
30In the plaintiff’s third affidavit, she said that the limitations set out in her affidavits “are mostly due to my right hamstring injury”.[35] That was contested by the defendant, which pointed to a number of premorbid conditions from which the plaintiff suffered which caused her pain, restriction of movement, reliance on medication, and interfered with her capacity to function, and in particular, with domestic and leisure activities.
[35] PCB 34
31Relevantly, the plaintiff also referred to aspects of her prior medical conditions which I will briefly summarise:[36]
· A suspected transient ischaemic attack in 2014 thought to have resulted in right-sided weakness, resulting in saving her right side when she walked.
· A history of balance problems and falls.
· The need to use a wheeled walking frame related to the right-sided weakness, and history of balance problems and falls.
· The need for exercise and physiotherapy treatment related to the right-sided weakness, and history of balance problems and falls.
· Bilateral flat feet with intermittent discomfort in both feet.
· A history of osteoarthritis affecting her neck and both hips.
· A history of asthma, glaucoma and Type II diabetes.
· A history of irritable bowel problems.
· A history of anxiety, depression and an Obsessive Compulsive Disorder.
[36] PCB 9-10
The Plaintiff’s premorbid impairments
32Under cross-examination, the plaintiff was referred to the clinical records of the Corio Medical Centre (“Corio”),[37] the Barwon Health Falls and Balance Clinic (“Falls Clinic”),[38] the Barwon Health Mental Health, Drug and Alcohol Services (“Drug and Alcohol Services”), and Barwon Health Community Rehabilitation Centre (“Rehabilitation Centre”).[39] These clinical records are very extensive. They occupy 126 pages of the Defendant’s Court Book. They contain references to treatment which the plaintiff obtained between November 1999 and September 2016 for a significant number of disabling conditions.
[37] DCB 65-164
[38] DCB 36-61
[39] DCB 62-64
33At my invitation the defendant reduced the volume of the clinical notes to select entries which it submitted provide a sufficient demonstration of the medical conditions which resulted in the plaintiff suffering significant disablement. I will summarise all of them because I think it is important to record how many medical conditions were troubling the plaintiff, the treatment which she was provided, and the extent to which those medical conditions disabled her. Additionally, I have read through all of the clinical notes relied upon by the defendant. I think the following are a fair summary of what the clinical notes disclose:
· 16 November 1999 – Corio – prescription of Endep
· 29 December 1999 – Corio – prescription of Temaze
· 15 May 2000 – Corio – prescription of Panadeine Forte and Endep
· Over the balance of 2000 – Corio – prescription of Celebrex and Naprosyn
· 15 May 2001 – Corio – prescription of Endep, Naprosyn and Temaze
· 15 October 2001 – Corio – prescription of Celebrex, Temaze, Somac and Endep
· 9 September 2002 – Corio – prescription of Endep increased
· 30 January 2002 – Corio – diagnosis of osteoarthritis
· 26 March 2002 – Corio – diagnosis of insomnia, prescribed Temaze
· July and August 2002 – Corio – prescription of Panadeine Forte
· 14 October 2002 – Corio – pain in the area of the sole of the left foot for months
· 23 December 2002 – Corio – prescription of Temaze
· 22 April 2003 – Corio – diagnosis of labyrinthitis – ten days of vertigo– nausea and history of tiredness
· 10 June 2003 – Corio – depression four weeks – insomnia – prescribed Endep – attempts to reduce Endep causing a flareup in OCD symptoms
· 27 September 2003 – Corio – fall at home
· 7 October 2003 – Corio – not sleeping well
· 16 December 2003 – Corio – using Tramal once a week for osteoarthritis, especially in the feet
· 7 October 2004 – Corio – osteoarthritis playing up – difficulty tolerating the pain – taking two to three Panadeine Forte per week and also Panamax
· 1 November 2004 – Corio – has been using Endep for at least the last ten years
· 30 January 2005 – Corio – swollen feet after long car trip
· 2 March 2005 – Corio – osteoarthritic changes in the neck from a fall many years beforehand
· 4 April 2005 – Corio – x-rays demonstrating osteoarthritis
· 21 October 2005 – Corio – prescription of Endep due to recurrence of depression after going off Endep
· 18 August 2009 – Corio – diagnosis of endogenous depression – episode of depression in January in Shepparton – change from Endep to Avanza – suicidal ideation – episodes of depression lasting one to two hours to all day over the last three to four weeks
· 25 August 2009 – Corio – diagnosis of endogenous depression
· 17 December 2009 – Corio – family crisis – counselling with husband
· 19 February 2010 – Corio – Naprosyn, 250-milligram, not as effective as 500-milligram – using Panadol Osteo
· 29 March 2010 – Corio – tinnitus, vertigo, occasional clumsiness, occasional temporary loss of strength in both thighs – pain in both feet, and stiffness, impairing capacity to walk – flattened arches
· 9 July 2010 – Corio – osteoarthritis: neck, hands and feet
· 4 March 2011 – Corio – separated from husband, now living with daughter
· 1 August 2012 – Corio – resumed living with husband
· 10 November 2012 – Corio – fatigue-related pain in the dorsum of the right foot and leg problems – consideration to use of orthotics
· 27 November 2012 – Corio – fall on a ramp, hitting her nose
· 16 January 2013 – Corio – feeling depressed – prescribed Cymbalta
· 8 April 2013 – Corio – tinnitus for years and getting worse – having frequent falls
· 15 April 2013 – Corio – tinnitus – frequent falls
· 8 November 2013 – Corio – fall and trip on tram track – issues with balance and suspected Meniere’s disease – veers to the right when looking ahead
· 5 December 2013 – three falls this year – flat feet – arthritic feet – knee instability – unsteady when walking
· 5 December 2013 – Falls Clinic – veers to the right and cannot correct herself when unbalanced – poor foot structure – osteoarthritis – three falls – fall onto tram tracks and fall on footpath
· 5 December 2013 – Falls Clinic – extensive questionnaire – identification of concerns regarding stairs, reaching for something above head, walking on slippery surfaces, walking in crowded places, walking on uneven surfaces and walking down slopes[40]
[40]DCB 53. The questionnaire is extensive, and identifies what the plaintiff is alleged to have said to a nurse at the Falls Clinic in a questionnaire
· 13 December 2013 – Falls Clinic – an assessment of the plaintiff – walking unsteady; poor balance; weakness in leg muscles; need to use a walking aid; foot problems, and plaintiff’s weight above the recommended range
· 16 December 2013 – Corio – osteoarthritis – painful feet – Falls Clinic found right-sided weakness and poor visual perception
· 17 December 2013 – Rehabilitation Centre – referral to the Falls Clinic – a fall in the last six months due to a loss of balance – poor foot structure due to arthritis – poor vision when looking down – chronic health conditions including Type 2 diabetes, asthma, hypertension, diverticular disease and osteoarthritis
· 24 March 2014 – Corio – fall – fell outside the medical centre onto right side
· 29 March 2014 – Corio – sore ankle for six weeks – maybe gout
· 5 April 2014 – Corio – fall on the previous Thursday – fell onto head and right shoulder
· 23 April 2014 – Corio – Right medial ankle pain – elevated urate
· 19 June 2014 – Corio – joint pain – discussion about hip and leg pain – Tramadol ineffective
· 7 August 2014 – Corio – fall yesterday – tripped over a plastic carpet protector
· 10 September 2014 – Corio – poor sleep due to burning pain in hips and feet
· 29 October 2014 – Corio – arthritis – prior injury to the right knee and right elbow – pain in the feet, ankles, left hip, and third digit – walking on hard floors results in aching in hips, knees and feet
· 13 June 2015 – Corio – burning sensation and discomfort to the right toes when pressure applied
· 22 June 2015 – Corio – increase in anxiety – obsessive checking
· 31 December 2015 – Drug and Alcohol Services – physical and emotional problems – thinking the worst, escalating anxiety and in turn affecting her physical situation – anxiety impacting on her daily life
· 21 June 2016 – Corio – lots of issues with joints – arthritic feet – finding it difficult to exercise
· 1 July 2016 – Corio – bunion on right 5th toe
· 18 July 2016 – Corio – flare up of right trochanteric bursitis – using Tramadol
· 28 July 2016 – Corio – fall in car park hitting forehead, left arm and knee
· 23 August 2016 – Falls Clinic – multiple falls – fall four weeks ago when shopping – falls assessment
· 2 September 2016 – Corio – using a walking frame because of falls.
34The aggregate of the plaintiff’s reference to her prior physically-based medical conditions and what is disclosed in the clinical notes demonstrates that she suffered widespread osteoarthritis encompassing her hips, knees, feet, and weakness in the muscles in her legs. She also experienced problems with balance, unsteadiness on her feet and multiple falls. She required the prescription of significant painkilling and anti-inflammatory medication to treat the pain that she was experiencing. Additionally, she required treatment to assist her with her poor balance and unsteadiness on her feet and tendency to suffering falls.
35The plaintiff also experienced anxiety, depression, and depression described as endogenous, before the occurrence of the transport accident. She was prescribed significant medication to treat her psychiatric problems.
36I am in not much doubt that as a result of her prior physical and psychiatric problems, the plaintiff had been reduced to a relatively modest level of functioning before the occurrence of the transport accident. It would appear that her capacity to engage in social, domestic and leisurely pursuits was also modest.
37Under cross-examination, the plaintiff was taken to the clinical notes in some considerable detail. Understandably, she had difficulty remembering much of what was put to her. She was pressed about her inability to remember. She said that her memory of her medical treatment over the last ten years was probably better than for earlier years, however, I was not convinced that she had any better memory of medical treatment over the last ten years or so. She has some general recall of treatment of her medical conditions, but not particularly specific recollection. In any event, it was not my impression that she either contested, or was in a position to contest, the content of the clinical notes.
38I accept that the clinical notes are an accurate reflection of the plaintiff’s attendances for treatment, the condition that was the subject of the treatment, and the treatment provided. I think it is important to estimate the use which can be made of clinical notes in a case such as this where there is significant reliance on the content of clinical notes. The issue was considered in Philippiadis v Transport Accident Commission:[41]
“We accept that courts need to exercise care in relying on the records of medical practitioners. Such records usually contain a selective summary in the doctor’s own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance. The records may be inaccurate through miscommunication or misleading through omission. However, notwithstanding their limitations, very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author’s area of expertise.
Ordinarily, a patient who visits his or her long-standing general practitioner is likely to inform the general practitioner of the health issues that are then of concern to the patient. Also, a general practitioner who makes notes of each attendance would be expected to record the main health complaints made by the patient and the practitioner’s observations and actions taken in relation to such complaints. It may be accepted that, in respect of some attendances, there may be departures from what would ordinarily be expected. However, where an injury is having serious adverse health consequences for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner’s clinical notes not to refer to them over a lengthy continuous period of time.”[42]
[41] [2016] VSCA 1 (“Philippiadis”).
[42]Philippiadis (ibid) at paragraphs [105]-[106] (footnotes omitted), and Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [112]
39The clinical notes were obviously created to suit the purpose of the author of the clinical notes. That purpose was to record an attendance on the plaintiff, the reason for the attendance, and the identification of the medical condition requiring treatment, and a note of the nature of the treatment which the plaintiff was afforded. Despite the fact that the notes are somewhat cryptic, and no doubt a shorthand of the attendance on the plaintiff, they nonetheless demonstrate that the plaintiff had both physical and psychiatric problems of longstanding which required treatment.
40Under cross-examination, the defendant challenged the plaintiff’s evidence that she had suffered consequences of the impairment of the function of her right leg to the extent which she deposed to in her affidavits. One example of that was the plaintiff’s denial that from 2003 she was having problems with her balance and had suffered falls. She was adamant in her answer that she did not accept that the falls were due to poor balance and unsteadiness of gait. It was my impression that she regarded the falls, which she recalled, as being mishaps. If they were mishaps, then it is more than just curious that they were recorded in detail suggesting otherwise, and that she attended the Falls Clinic for an assessment of the reasons why she was falling. It would be, I think, unusual for someone to attend such a clinic because of a problem with falls when no such problem existed.
41The defendant submitted that when a comparison is made between what the plaintiff was like before the transport accident, and what she was like after the transport accident, then it is difficult to divine the extent of the impairment of the function of her right leg due to the hamstring injury, and the consequences of that impairment. It referred specifically to Peak Engineering Pty Ltd v McKenzie,[43] that where there are different medical conditions which are concurrently producing pain and suffering consequences, that it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial. Furthermore, that this would seem to be an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to which injury.
[43] [2014] VSCA 67 at paragraph [24]
42The defendant, of course, contested whether the plaintiff had suffered the consequences of the impairment of the function of her right leg as she deposed to in her affidavits, or to the extent deposed to by her. Additionally, even if she suffered some consequences, that they were overwhelmed and obscured by the extent of the consequences of her pre-existing osteoarthritis affecting her hips, knees and feet, all of which resulted in the plaintiff’s level of functioning being reduced to some modesty, as well as her involvement in social, domestic and leisure pursuits.
43Whilst I can see the point made by the defendant, I do not agree entirely that the plaintiff’s application should be looked at in that way. What is clear is that the plaintiff suffered a nasty injury to her right hamstring. I prefer the evidence of Mr Kossmann, which I think well summarises the nature and extent of the right hamstring injury, the treatment which the plaintiff has undergone, and that the plaintiff’s prognosis is poor, with a likelihood that she will need rather more symptomatic treatment as opposed to treatment which might improve the underlying pathology and return her to some better level of functioning. I reject the opinion of Dr Menz. It is an opinion which denies the fact that the plaintiff has undergone a significant level of treatment, and by medical practitioners who obviously accept that the plaintiff is a reasonable historian and accept that the right hamstring injury is as troubling as the plaintiff says it is.
44I do not think that the identification of the impairment resulting from the right hamstring injury is overwhelmed or obscured by the other medical conditions, nor do I think that the consequences of the right hamstring injury are overwhelmed or obscured as the defendant submitted is the case. I think the approach to take in this application is to determine what impairment has been caused to the plaintiff’s right leg by the hamstring injury, and whether there are consequences which are attributable to that impairment.
The Plaintiff’s consequences
45I accept the plaintiff’s evidence that she has a constant level of pain in her right hamstring which varies in severity. I accept her evidence that she will suffer an increase in the pain in her right hamstring if she overdoes activity. I accept that she experiences a sense of weakness in her right hamstring. I accept the plaintiff’s evidence that she has placed more strain on her left leg, with the result that it has aggravated the severe osteoarthritis in her left foot, resulting in the need for the treatment provided by Ms Solly. The defendant did not adduce any evidence to suggest that the plaintiff would have come to such an impact on her left foot with the need for orthotics. It is for the defendant to do the disentangling, and to show what the probable future course of the pre-existing condition will be.[44]
[44] Petkovski v Galletti [1994] 1 VR 436
46I do not accept that the difficulty which she describes with bending; putting on socks and shoes and cutting her toenails; with prolonged sitting; with prolonged standing; with lying on her right side; with the extent to which she is able to walk, and negotiate stairs and hills; increased reliance on her walking frame; instances of falls, and the discomfort that she experiences when a passenger in a car and travelling by train and tram are exclusively consequences which can be attributed to the impairment caused by the right hamstring injury; however, I accept the plaintiff’s evidence that the impairment of the function of her right leg has contributed to her inability to engage in each of the activities referred to in the preceding paragraph. The extent of that further impairment is difficult to identify with clarity.
47I accept the plaintiff’s evidence that sitting on a hard chair causes further pain in her hamstring. She described that to some examining medical practitioners, and during the hearing she asked for a break, after which she preferred to sit on her walking frame rather than sit on an office chair while giving evidence via Zoom because the office chair was too hard and made contact with her right hamstring, resulting in pain. The mesh seat on her walking frame was considerably more comfortable.
48I accept the plaintiff’s evidence that she maintains a level of social, domestic and leisure pursuits. I accept that she no longer goes to dances on a Friday night. I accept that she continued going to dances with her husband prior to the transport accident, although, when he took up camping, he would go off once a month, which meant that their Friday night dancing was reduced to three times each month. I accept that she was capable of going for walks, wandering around shopping areas and travelling in a car with her daughter, and travelling by train and tram.
49I accept the plaintiff’s evidence that one of the consequences of the hamstring injury is the aggravation of her persistent Depressive Disorder; however, that needs to be seen in the context that she has not had any treatment of any significance, and otherwise has a long history of treatment for psychiatric conditions with prescription of significant medication. I weigh it into account in the context of what was said in Richards & Anor v Wylie;[45] that it can be characterised as a consequence only. I should add that I consider it to be a minor consequence given the plaintiff’s prior psychiatric history.
[45] [2000] 1 VR 79
50It is too often the case that the search goes on by plaintiffs to demonstrate as many consequences of an impairment of function as possible to demonstrate that overall consequences are serious; however, that is all very well when dealing with younger, fitter and healthier applicants who probably engaged in a variety of social, domestic and leisure pursuits which that particular applicant either cannot engage in, or not to the same extent due to the impairment of function of part of the body. The situation will be vastly different in someone who is elderly or disabled and who has a modest capacity to engage in social, domestic and leisure activities. The value of those activities to someone who is elderly or disabled cannot be underestimated because each of them individually, and all of them collectively, represent the whole of their enjoyment of life.
51It was said in Humphries and Anor v Poljak,[46] that to be serious consequences, the injury must be serious to the particular applicant. For the plaintiff, the pain, the consequent restriction of movement, the placing of strain on her left leg with the resulting impact upon her left foot and the need for orthotics, and the interference with the limited social and leisure activities which she was still able to engage in, appear to me to be very considerable and more than significant or marked in the context of her life.
[46] [1992] 2 VR 129 at 140
Orders
52I will grant the plaintiff leave to bring a proceeding at common law, and I will now hear the parties on the question of the appropriate orders which must follow the grant of such leave.
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