Jacobs, Christopher v TAC
[2010] VCC 6
•12 February 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01512
| CHRISTOPHER JACOBS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 February 2010 |
| DATE OF JUDGMENT: | 12 February 2010 |
| CASE MAY BE CITED AS: | Jacobs, Christopher v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0006 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment to the left and right knee.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A W Adams QC and | Vincent Verduci & Associates |
| Mr M J Walsh | ||
| For the Defendant | Mr G A Lewis SC and | Solicitors for the Transport |
| Ms A M Magee | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 15 September 2004 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under Section 93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the left and right knee.
5 The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is aged thirty-six, having been born on 6 February 1974.
10 The plaintiff completed two years of a Bachelor of Fine Arts degree at Monash University and then worked in hospitality. He then worked in various call centres and as an administrative assistant.
11 In the twelve months before the said date, the plaintiff was looking for work, and he had done some IT courses. He had last worked some time in 2003, working as a barista in Bridge Road, Richmond, a job he did on and off for a couple of years.
12 In the financial year ending June 2002, the plaintiff earned $7,156, and in the following year his gross income was $10,375.
13 Prior to the said date, the plaintiff was in good health. He had no injury to his knees and he was able to engage in active duties without any restriction.
14 The plaintiff has undergone bowel surgery on two occasions: once before the said date; and again in 2005. He is not having any further ongoing treatment in respect of that problem.
15 On the said date, the plaintiff was walking along Swanston Street, Melbourne, across a driveway, when a number of vehicles were involved in an accident. One of the vehicles veered towards his direction and collided with him (“the accident”).
16 In the process, the plaintiff threw himself forward on the bonnet of the vehicle, striking his thighs against it. He then injured both knees when they came into contact with the vehicle.
17 In cross examination, the plaintiff could not say exactly at what speed the vehicle was travelling.
18 Ambulance officers attended the accident scene, and the plaintiff indicated he did not require transportation to hospital. He had an aversion to going to hospital because of previous bowel surgery.
19 The plaintiff agreed that he reported hurting his right knee at the scene, but disagreed that he said he had only a minor injury. He could just remember that he was in pain and his pain was more than slight.
20 After the accident, the plaintiff walked with severe pain to see a friend at Melbourne University. His friend then drove him to the North Melbourne railway station. The plaintiff got off the train at Footscray and then walked about two hundred metres home.
21 The following day, the plaintiff attended Dr Eckel at the Millennium Medical Centre in Footscray. His knees were examined. No medication was prescribed, and Dr Eckel suggested that the plaintiff apply icepacks.
22 In cross examination, the plaintiff agreed he had a bruise below his right knee when he saw Dr Eckel on that occasion. The plaintiff was still in pain. His left knee was worse than his right. Dr Eckel asked him to move his knees around. The plaintiff could walk, and he had a good range of movement. He also had bruising and abrasions to his knees and hands, and swelling of both knees. He was given a certificate of incapacity for work for two days.
23 In the first three months after the accident, the plaintiff’s knees were very painful. His left knee was swollen for over a month, however he was not really paying a lot of attention to it. He was just trying to get on with his life. He had “collapses” a couple of times in his left knee. When trying to run, and going up a few steps, he would just twist and fall over. His left knee was generally uncomfortable and painful all the time, and he iced it as much as possible.
24 After the accident the plaintiff called the defendant and he was told that he needed to spend a certain amount of money before it could give him help, so he took that advice. The plaintiff was unemployed at that time, so he thought he would “just do that and further down the track, it would be fine”. He was hoping to recover, and expected he would after being told by the ambulance driver and the doctor that he was ok. He thought it would heal over time, but it did not.
25 The pain in the plaintiff’s knees continued. At the insistence of his fiancée, who thought something was not right with the plaintiff’s knees, he attended Dr Coney, who was his fiancée’s general practitioner, at the Malvern Clinic.
26 Dr Coney referred the plaintiff to Mr Andrew McQueen, orthopaedic surgeon. Mr McQueen first saw the plaintiff in July 2006 when he advised him he required bilateral knee arthroscopies.
27 The plaintiff was cross examined about the initial attendance with Dr Coney. When he saw her on 5 April 2006 with bowel problems, he also mentioned problems with both knees since the accident. The plaintiff told her his right knee clicked when going upstairs, and that his left knee gave way intermittently. He could not recall telling her he was not suffering any significant pain.
28 The plaintiff stopped going to that clinic after he was married when he and his wife moved to the western suburbs in 2006.
29 Between the initial examination with Mr McQueen and April 2007, the plaintiff’s knee condition did not improve. On 19 April 2007, the plaintiff returned to Mr McQueen. At that time the plaintiff suffered from greater weakness in his knees, particularly the left. He was also suffering from a clicking sensation in his right knee, and collapsing and weakness in his left.
30 On 3 May 2007, the plaintiff had an MRI scan of both knees. Liability was accepted by the defendant for left knee surgery in June 2008.
31 Mr McQueen carried out an arthroscopy and then meniscectomy and chondroplasty on the plaintiff’s left knee on 4 July 2008 (“the surgery”).
32 After the surgery, on or about 20 July 2008, the plaintiff returned to Mr McQueen. He advised the plaintiff that he was suffering from significant arthritis as a result of the accident, and he would probably require further treatment in the form of repeat arthroscopies, and in the long term a total knee replacement.
33 The defendant has denied liability for any right knee surgery.
34 Mr McQueen prescribed anti-inflammatories after the operation.
35 There was a bit of an improvement after the surgery because Mr McQueen “had cleaned up all the tissue,” but the left knee is much weaker than previously, and twists and collapses. The right knee has become more painful. The clicking has turned into locking and “just feels generally pretty weak and very unreliable”.
36 Mr McQueen advised the plaintiff against replacement surgery at this stage given his young age, and he indicated to the plaintiff that he would require further injections in his left knee from time to time.
37 Mr McQueen advised the plaintiff that a knee replacement would only last about ten years.
38 On 6 October 2008, the plaintiff saw Mr McQueen, at which time he injected his left knee with cortisone as it had swollen considerably. The plaintiff’s right knee was also causing significant problems.
39 From November 2004 until 2009, the plaintiff was employed by John Holland as an IT specialist. His contract has expired with this company and there is a prospect of him obtaining similar work with Baulderstone.
40 In his job with John Holland the plaintiff earned in the range of $50,000 to $60,000 per annum, substantially more than he earned prior to the accident.
41 The plaintiff’s work at John Holland was affected by his knee condition. Half the time his job involved unpacking boxes, carrying things up and down stairs, and crawling under desks and plugging things in and getting behind racks of equipment.
42 The plaintiff continues to work as a film producer/director, and he has an active website in that regard – ‘Longview Pictures’. That work requires him to remain standing and/or walking for long periods of time, and involves repetitive lifting and/or bending. He is also required to carry heavy equipment up and down hills at times.
43 His left knee in particular gives him a problem whilst doing these tasks, and it becomes swollen when he engages in stressful activities.
44 The plaintiff is no longer able to work in the hospitality industry because he finds it difficult to stand for long periods of time, and he cannot wait on tables and perform the other tasks involved.
45 As a result of his knee injuries, the plaintiff’s social and domestic life has deteriorated. He is restricted in movement of both knees, interfering with everyday life. He is also unable to jog or run ever again. He cannot even run to get the tram or if he gets caught in the rain. He is unable to run after his eight year old son.
46 Prior to the accident, the plaintiff enjoyed bushwalking, exercising, swimming, surfing, walking, and a range of other activities. His involvement in those activities has been significantly restricted because of his knee injuries and he is less active. He avoids doing activities that will place significant stress on his knees.
47 The plaintiff has gained weight since the accident because he has lost the ability to exercise as he did prior to the accident, in terms of the type and length of his activities. He has gained between five and ten kilograms since that time.
48 The plaintiff is conscious of problems with his knees on a daily basis, and the fact that they could give way at any time.
49 The left knee has always been worse than the right. It is weak generally, so walking around or anything that creates an impact on his knee is painful and tiring after any extended period of time.
50 The right knee has become more painful over the last twelve months, and it has started locking up occasionally, depending on what he is doing.
51 When relaxing, the plaintiff’s knees are stiff. Standing for any length of time in one position, such as when travelling on public transport, is very uncomfortable.
52 In terms of day to day pain, the plaintiff’s knees are constantly uncomfortable. When he wakes up every morning they are stiff and sore, and sometimes it is hard to get out of bed. Walking, especially through the city on a hard surface, is exhausting. He has to be careful stepping off a curb. He does not know which foot to put first, and he does not know what is going to happen with his knee when he puts his foot down. When carrying the shopping sometimes his knees get painful very quickly. He is cautious not to aggravate or further injure his left knee.
53 The plaintiff’s injuries have had a significant effect on his emotional wellbeing. He has lost a lot of confidence and self-esteem, and believes his emotional state also impacted on his marriage, which ceased in 2007.
54 The plaintiff deposed he had taken a significant amount of painkilling medication since the injury, and as of May 2009, he was continuing to take glucosamine to alleviate arthritis.
55 In cross examination, the plaintiff agreed his knee improved somewhat after the surgery. He told Dr Stockman in November 2008 that there was less pain on the inside of his left knee since the surgery. The plaintiff was having problems squatting on this examination and at that time there was no swelling.
56 The plaintiff agreed that he told Dr Stockman that his left knee had been feeling somewhat stronger, but three weeks’ excessive walking caused it to flare up. He had had a cortisone injection, and the knee settled down after that. He was still having some pain on the top of his knee, aggravated by walking or squatting or pressing the clutch of his vehicle.
57 The plaintiff told Dr Stockman that his right knee pain was mild but aggravated by prolonged walking. At that time he was not taking any tablets. His knee was not stopping him working at John Holland.
58 In cross examination, the plaintiff agreed he had been involved in renovating a house in West Footscray which he and his wife had bought together in 2007 and sold in 2008.
59 The plaintiff was cross examined in some detail as to the various tasks undertaken by him in renovating the house. He freely admitted he was very active in destroying the bathroom and kitchen and doing a lot of the renovation work himself using sledgehammers and other tools, getting up on a ladder, demolishing the back of the house, which was a lean-to, putting some boards on the framing, installing and carrying necessary units. He did not do any work in the remake of the house, and he just did a little bit of shovelling and “putting together” in terms of landscaping.
60 Whilst doing this work, the plaintiff took the occasional Panadol.
61 In re-examination, the plaintiff said his knees were basically painful all the time while doing the renovation, and he could only work a limited amount of time. He got his friends to help him do a lot of different aspects of the work because he could not do it. He could not do tasks involving lifting or kneeling for long periods of time.
62 The plaintiff continues under the care of Dr Eckel at the Millennium Clinic.
63 In cross examination, the plaintiff was then taken through the twelve attendances at that Clinic from the first post accident attendance in September 2004 until July 2009.
64 The plaintiff agreed he travelled to Vietnam in August 2007, where he walked around as a tourist.
65 The only other mention of a knee problem was in April 2009 when the plaintiff’s left knee “blew up.” He had been onsite filming in the Dandenongs. On that attendance the plaintiff was prescribed Ibuprofen.
The Plaintiff’s Medical Evidence
66 The ambulance report of the said date set out an initial assessment of minor right lower leg pain, with a complaint of slight pain – 1/10 and nil swelling in the right lower leg. The plaintiff signed off that he had been examined by paramedics and refused transport to hospital. The plaintiff reported the vehicle hitting him at medium speed, causing him to end up on the bonnet of the vehicle.
67 Dr Eckel saw the plaintiff on 16 September 2004, the day after the accident in which “a car careered over him and cleaned him up and he went onto the bonnet”.
68 On examination, the plaintiff was complaining of still being slightly stiff in the legs. Dr Eckel noted a bruise below the plaintiff’s right knee and that the plaintiff had a full range of movement. Similarly, there was a full range of movement of the left knee, but there was some pain on flexion.
69 Dr Eckel reassured the plaintiff he just had mild bruising, and to apply ice and take simple analgesia if required. A certificate for two days was written.
70 Dr Eckel noted there was no swelling or effusion, and full range of movement of both knees, so he felt the plaintiff just had mild bruising to his lower leg, and he would have expected him to make an uneventful recovery over the next few days.
71 Dr Eckel concluded, as of August 2006, he would not have expected the plaintiff to have any long-term trouble after the accident.
72 The plaintiff attended Dr Coney on 5 April 2006. At that time, the plaintiff mentioned knee symptoms which had been present since the accident. He reported a clicking noise when ascending stairs, and that the left knee would give way intermittently.
73 Dr Coney recorded that there was no significant pain, nor limited range of movement. On examination, there was full range of movement and no ligamentous laxity in the right knee. No abnormality was noted in the left knee. She thought the plaintiff may need physiotherapy. She referred the plaintiff to Mr McQueen at his request.
74 Dr Coney appears to have seen the plaintiff on this one occasion only.
75 Mr McQueen first saw the plaintiff in July 2006. At that time the plaintiff gave a history of being hit on both knees and then jumping on the bonnet of a vehicle.
76 The plaintiff told him that since the accident he had experienced ongoing symptoms in both knees. In the right, there were clicking and giving way symptoms, but no effusions. In the left, there were giving way episodes and recent recurrent effusions.
77 Examination revealed bilateral patellofemoral crepitus and tenderness in the left knee and features of a medial meniscal tear with a moderate effusion. Following this examination, Mr McQueen requested liability for bilateral knee arthroscopies.
78 Mr McQueen reviewed the plaintiff in May 2007, at which time the plaintiff had ongoing patellofemoral crepitus, and, in the left knee, features of a medial meniscal tear.
79 Mr McQueen arranged bilateral MRI scans which confirmed the left medial meniscal tear and the bilateral patellofemoral chondral pathology.
80 Following receipt of this investigation report, Mr McQueen again wrote to the defendant requesting approval to proceed with bilateral arthroscopies.
81 In Mr McQueen’s view, the accident was the major contributing cause of the plaintiff’s injury. He noted if the defendant was not prepared to accept responsibility based on his report, the plaintiff should be reviewed by a TAC doctor, preferably an orthopaedic surgeon.
82 Mr McQueen operated on 4 July 2008, performing an arthroscopic medial meniscectomy and chondroplasty.
83 Arthroscopy revealed a complex tear of the posterior two-thirds of the medial meniscus associated with large Grade II chondral flaps in the central weight bearing area of the MFC. The ACL was intact. There was I-II + posterior cruciate laxity. The lateral compartment was normal. The patella showed Grade II chondral flaps along the medial margin.
84 On reviewed on 10 July 2008, Mr McQueen noted the plaintiff was progressing quite satisfactorily, and he did not arrange to see him further. He noted the plaintiff was aware that he had significant post traumatic arthritis as a result of his injury, and that he may require future treatment in the form of repeat arthroscopies, Synvisc injections, and ultimately, in the very long term, a total knee replacement.
85 Mr McQueen saw the plaintiff on 6 October 2008, at which time he stated he had been experiencing ongoing right knee problems. Mr McQueen injected the joint at that time with Celestone, and he advised the plaintiff to continue to lose weight. He also advised the plaintiff that if he continued to experience ongoing symptoms, Synvisc treatment in the future would be of some benefit.
86 Mr McQueen noted the plaintiff’s right knee was causing the plaintiff significant problems with his capacity for work and social and domestic life. He anticipated Synvisc would minimise those problems in the short and long term.
87 Mr McQueen last saw the plaintiff on 19 October 2009. Examination of the left knee revealed some patellofemoral crepitus. Mr McQueen noted that the plaintiff had ongoing left knee discomfort aggravated by kneeling and squatting and he was unable to jog. Mr McQueen commented that, fortunately, the plaintiff had been able to return to work for four hours a week in a fairly sedentary occupation.
88 Following examination, Mr McQueen decided to write to the defendant for approval to proceed with an arthroscopy, which Mr McQueen thought should be able to improve the situation.
89 The plaintiff has been examined for medico-legal purposes on two occasions by Dr Stockman, rheumatologist; initially on 13 November 2008, and more recently on 4 November 2009.
90 On the first visit the plaintiff told him of the flare up of left knee pain three weeks ago and that Mr McQueen had injected his left knee at that time.
91 Dr Stockman thought that it was likely with the passage of time that osteoarthritis of the left knee in particular would deteriorate resulting in more pain and further reduction of the plaintiff’s activities. He considered the end result was that the plaintiff may require a total knee replacement perhaps in ten to fifteen years.
92 On the second visit, the plaintiff told Dr Stockman he had been having more pain in both knees. The symptoms fluctuated in severity, and pain was aggravated by walking for more than an hour, or when squatting or walking up or down stairs.
93 The left knee was worse than the right, which had, of recent times for no clear reason, been flaring up. Both knees tended to give way, but the plaintiff had had no falls.
94 The plaintiff told Dr Stockman he took the occasional Voltaren, perhaps every few months, and that during the course of his employment in IT and filmmaking, squatting or lifting weights aggravated his knee pain.
95 Dr Stockman noted the examination was essentially unchanged since the plaintiff’s last visit. There was no obvious swelling in the knees, no muscle wasting, and the plaintiff had an unrestricted range of movement. However, there was some tenderness over the medial aspect of the left patella and over the medial joint. Squatting could be performed but caused slight discomfort. There was pain, but no definite instability on lateral stress of both knees.
96 Dr Stockman noted that correspondence from Mr McQueen indicated that the surgery showed a complex tear of posterior two-thirds of the medial meniscal associated with Grade II chondral flaps in the central weight-bearing area of the medial femoral condyle. An MRI scan of both knees performed in May 2007 showed cartilage loss of the medial femoral condyles and patella.
97 In Dr Stockman’s view, the plaintiff had mild cartilage loss, and therefore early osteoarthritis involving the medial compartment of both knees and both patella. Further, the plaintiff had a complex tear of the medial meniscus at the left knee which had been treated arthroscopically.
98 However, Dr Stockman noted that the plaintiff had been left with ongoing pain in both knees, especially the left. Dr Stockman thought it very likely that the plaintiff would be left with residual pain in the knees, and this was likely to deteriorate in keeping with the natural history of the condition. He noted that studies have shown that meniscal damage is a risk factor for osteoarthritis, and this is likely to worsen with the passage of time.
99 Dr Stockman suggested the plaintiff should avoid prolonged walking, squatting, kneeling, running, or weight gain. He would need to continue with anti-inflammatory medications as required, and keep to his ideal weight.
Investigations
100 An MRI scan of both knees was carried out at Mr McQueen’s request on 3 May 2007. In the left knee there was an intact but low-lying ACL suggestive of previous injury. There was a posterior medial meniscal tear, and Grade II - III chondral fissuring, medial facet patella.
101 In the right knee, there was focal Grade II-III chondral loss within the inner portion of the medial femoral condyle only. There was Grade II-III fissuring of the patellar apex and medial facet was a more significant/widespread finding.
The Defendant’s Medical Evidence
102 The plaintiff has been examined twice by Professor Hart, initially on 21 December 2007 and then in October 2008.
103 On the first examination, the plaintiff was able to run, hop, and squat on both knees without difficulty. There was no effusion in either knee. The range of movement was 0 degrees to 135 degrees bilaterally. There was no peripatellar or retropatellar tenderness in either knee. There was a good range of medial excursion of the patella. Movement of the patella across the femoral condyle induced mild discomfort on the right, but there was no crepitus, and there was no pain or crepitus on the left. There was no AP instability in either knee.
104 On the right there was no mediolateral instability, but on the left there was a 1+ medial instability at 30 degrees of flexion. On the right the medial joint line was normal, but on the left the plaintiff was tender over the medial joint line, and although there was no prominence, McMurray’s test did induce a positive response for the medial meniscus.
105 At that stage the plaintiff was able to walk three to four kilometres. He could run for up to ten metres. He could drive a car normally. He could ascend stairs, foot over foot, with the rail.
106 On the second examination, the plaintiff was able to walk, run, hop and squat on the right leg without any difficulty. Hopping was slightly reduced on the left. There was no effusion. The range of motion was 0 to 135 degrees bilaterally. There was no mediolateral or AP instability in the right knee.
107 On the left there was very slight medial instability consistent with an old injury to the medial collateral ligament which had been demonstrated on MRI. The plaintiff was slightly tender over the medial joint line in the left knee, but not over the lateral joint line.
108 Professor Hart provided a further report in January 2010, commenting on his earlier examinations and a number of documents provided to him.
109 Professor Hart noted that the plaintiff’s left knee had always been the more symptomatic of the two, and the symptoms of the right knee had been minimal up until the September 2008 examination.
110 When the plaintiff had first seen Professor Hart in December 2007, he told him he had been having difficulty with both knees when renovating a house, and that the problem was bilateral anterior knee pain occurring when going up and down stairs and when squatting and kneeling. Professor Hart thought those symptoms were suggestive of patellofemoral disease, as they were occurring when the knee was loaded in flexion.
111 The initial request for right knee surgery was denied on the basis of the plaintiff himself saying he had very few symptoms, and clinically there was no indication to carry out the procedure.
112 Professor Hart noted that Mr McQueen had recommended right knee surgery because of a twisting injury to the right knee, but Professor Hart noted documentation suggested the plaintiff himself had indicated that injury of twisting was to the left.
113 In his report following the first examination, Professor Hart opined there was no indication for any surgery on the right knee. On the left, the presence of a torn meniscus justified an arthroscopy.
114 Professor Hart noted Dr Eckel’s findings of little wrong the day after the accident. Professor Hart thought the pattern of injury with soft tissue injuries to both medial ligaments, the anterior cruciate on the left and a torn meniscus, could be explained by an injury such as the plaintiff described when he was thrown over the bonnet of the car.
115 Having looked at all the medical reports, Professor Hart concluded the situation regarding the plaintiff’s claim was complex and confusing.
116 In his view there were two major areas of confusion.
117 In terms of the initial injury, Professor Hart noted the evidence against significant knee injury in the accident was that the plaintiff declined to go to hospital. Dr Eckel had found a bruise on the right leg below the knee, but no abnormality. On the left there was no effusion, and a full range of motion, however the plaintiff did have pain on full flexion which Professor Hart noted may suggest there had been an injury to the left knee.
118 On the other hand, the pattern of injury, with MRI evidence of soft tissue injuries affecting both medial collateral ligaments and the ACL ligament on the left, plus a total torn medial meniscus in both knees that were previously asymptomatic, and where there had been no further injury, would be compatible with the mechanism of the injury.
119 Professor Hart noted on the right side it was likely the direct blow in the accident occurred below the knee, and that the plaintiff had an indirect injury to the medial collateral ligament.
120 On the left side, he thought it was more likely that the plaintiff did have a twisting injury to the knee, resulting in the medial meniscus tear and possibly hyperextension which could have damaged the anterior cruciate.
121 Professor Hart concluded, on the balance of probabilities, it was reasonable to assume both knees were injured in the accident. He thought the injury to the right knee was minor, and probably consisted of a medial ligament sprain without any direct injury to the knee, and therefore the articular cartilage changes were unlikely to have arisen as a result of the accident.
122 On the left, the plaintiff had a similar pattern of articular cartilage changes, and it was likely that they were present prior to the accident, but that the torn medial meniscus and the injuries to the anterior cruciate and medial ligament occurred during the accident.
123 Professor Hart noted that even if the chondromalacia conditions existed prior to the accident it could be argued that they were aggravated by the accident. However, the lack of effusion in the knees the day after the accident, and the fact that the plaintiff did not go to the doctor until eighteen months later, in Professor Hart’s view, suggested that the articular cartilage changes did not result from direct trauma in the accident.
124 Professor Hart thought it was very difficult to determine whether these were pre-existing conditions or whether they occurred at the time of the injury, because the MRI scan was not performed until some time later.
125 In Professor Hart’s view, the injuries to the left medial collateral ligament and ACL had not produced any significant instability, and therefore were unlikely to have any significant effect on the plaintiff’s long-term outcome.
126 Professor Hart concluded the pattern of injuries in both knees, particularly with respect to the soft tissue injuries, was consistent with the plaintiff having been struck by a car and projected over the bonnet. That would explain the soft tissue injuries affecting both medial collateral ligaments, and the possible anterior cruciate lesion on the left, and the torn medial meniscus on the left.
127 The bruising on the right knee would explain the medial collateral ligament sprain, being caused by an indirect blow to the right knee, but that, in Professor Hart’s view, did not explain the articular cartilage changes that were evident on the MRI two and a half years later.
128 Professor Hart noted the pattern of articular cartilage changes in the right knee was exactly the same as those on the left. If the plaintiff had had significant articular cartilage damage to both knees, then it was likely he would have had an effusion in both knees and some limitation of movement, but Dr Eckel found no evidence of this on examination the day after.
129 He thought it was highly likely that the articular cartilage changes were constitutional and were either present at the time of the accident or had developed since. He noted the symptoms the plaintiff presented with, of anterior knee pain, aggravated by loading the knee in flexion, such as with squatting, kneeling, and climbing stairs, were certainly indicative of patellofemoral pain.
130 Professor Hart noted that the partial medial meniscectomy would aggravate any pre-existing articular cartilage changes in the left knee.
131 Professor Hart noted it was likely that the plaintiff would develop osteoarthritis of the left knee, necessitating a total knee replacement, but it was likely to be some years before that developed. Professor Hart noted the plaintiff was obese, and that was a significant factor in accelerating the development of osteoarthritis. If his patellofemoral condition only was asymptomatic, Professor Hart thought it made it less likely that a total knee replacement would be required.
132 The contribution of the partial meniscectomy was, in Professor Hart’s view, relatively minor compared with the intrinsic damage of the articular cartilage.
133 Professor Hart concluded that the soft tissue injuries, namely the medial collateral ligaments to both knees, the injury to the anterior cruciate ligament on the left, all of which appear to have healed, and the torn medial meniscus which was treated by partial medial meniscectomy, were the result of the accident.
Claim Documentation
134 By letter dated 1 September 2006, the defendant advised the plaintiff that his claim had been accepted.
135 By letter dated 23 November 2006, the defendant advised Mr McQueen that it was not able to fund surgery because the plaintiff’s medical condition was not a direct result of his transport accident. The plaintiff was also advised of this decision by letter dated 23 November 2006.
136 By letter dated 27 June 2008, the plaintiff was advised by the defendant that liability had been accepted in relation to left knee surgery.
137 A TAC file note dated 15 May 2006 set out that the plaintiff had been advised of late lodgement issues. The plaintiff had advised that it was only recently he was starting to experience severe pain, and doctors had assessed his knees and they now both required surgery.
Overview
138 I accept that the plaintiff suffered an injury to his left and right knees in the accident.
139 It is not disputed that the plaintiff suffered his injury to his left medial collateral ligament, anterior cruciate ligament and a torn medial meniscus. On the right, the medial collateral ligament was injured.
140 There is some debate as to whether damage to the articular cartilages, shown on MRI is accident related, with Professor Hart suggesting such changes were constitutional in nature, however he did concede it could be argued that they were aggravated by the accident.
141 I accept that the plaintiff was asymptomatic before the accident and that he not suffered any further trauma to his knees since that time.
142 I found the plaintiff to be an honest, credible witness who did not overstate the extent of his pain or disability. In particular, he was very open about his involvement in the renovation of the Tucker Street property.
143 There is no film or evidence contradicting the plaintiff’s evidence as to his level of pain and restriction. No doctor has suggested the plaintiff is exaggerating or attempting to embellish his symptoms and clinical presentation, or that there is a non organic component to his condition.
144 I accept that since the accident the plaintiff’s major problem has been ongoing left knee pain, discomfort and weakness. He has got on with life as best he can but his knee condition continues to affect many of his normal day to day activities such as walking, standing, squatting and driving.
145 Given the duration of the plaintiff’s complaints and the plaintiff’s prognosis, I accept that these problems are long term.
146 Having initially been told there was nothing much wrong with his knees by Dr Eckel and the ambulance officer, the plaintiff persevered without treatment, hoping his condition would improve, attending Dr Coney at the insistence of his fiancée in 2006.
147 The referral to Mr McQueen then followed, with left knee surgery finally taking place in July 2008 after liability had been accepted.
148 Whilst there has been some improvement following surgery, the plaintiff continues to have problems with pain and instability and the feeling of giving way in his left knee.
149 Whilst it is unclear whether the cortisone injection in October 2008 was to the right or the left knee (the plaintiff deposed it was to the left and advised Dr Stockman that this was the case but Mr McQueen, in his report, refers to the right knee), this course of treatment was one Mr McQueen thought would be necessary in the future, together with the need for further arthroscopies.
150 Significantly, having undergone meniscectomy surgery, it is likely there will be a progression of osteoarthritis leading to left total knee replacement some time in the future. This surgery would not be undertaken until the plaintiff is older and it then would only have a lifetime of ten years.
151 The plaintiff, at thirty-six, is still a young man. A major consequence of the left knee injury is an inability to run, whether for exercise or just in daily life to catch the tram or, importantly, to keep up with his eight year old son.
152 As a consequence of this restriction, the plaintiff has put on weight and he is no longer able to enjoy hiking and bushwalking as previously.
153 Whilst the plaintiff has earned more money since the accident, and he was able to work full time for some years with John Holland, his left knee caused him problems in that job as he was required to lift, squat or bend under desks whilst working on computers.
154 When engaged in filmmaking, he has also experienced left knee pain, such as the flare up in 2009, when carrying heavy equipment and moving around difficult terrain on film shoots.
155 Because of his left knee pain, the plaintiff would be unable to return to his pre injury work in hospitality because of his inability to stand in the one spot for extended periods, such as when making coffee.
156 I accept that the plaintiff’s emotional state and self esteem has been affected by his restriction and pain. This is an expected consequence of the impairment to his left knee which may be taken into account in considering its seriousness.
157 Taking into account all the evidence, I am satisfied that the impairment to the plaintiff’s left knee alone is serious and long term.
158 Having made this finding, I am not required to consider the plaintiff’s right knee or bilateral knee claim.
159 Accordingly, leave is granted to the plaintiff to bring proceedings for damages in relation to the accident.
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