Kelly v TAC
[2016] VCC 1627
•8 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04813
| Katieanne Kelly | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 October 2016 | |
DATE OF JUDGMENT: | 8 November 2016 | |
CASE MAY BE CITED AS: | Kelly v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1627 | |
REASONS FOR JUDGMENT
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Subject: Common law
Catchwords: Serious Injury Application
Legislation Cited: Transport Accident Act 1986
Judgment: Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the right knee suffered in the transport accident on 2 April 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms A Ryan | Arnold Thomas & Becker |
| For the Defendant | Mr P Elliott QC with Ms A Wood | Transport Accident Commission |
HER HONOUR:
1 Ms Kelly, who is 28 years old, was injured in a transport accident on 2 April 2012 when the car she was driving was struck from behind at speed on the highway. She struck her head, losing consciousness. She was taken to hospital where she was diagnosed with concussion and soft tissue injuries to the chest and left shoulder. She was sent home the same day after having a CT scan which was normal.
2 Her first affidavit in support of her serious injury application, which was sworn on 30 July 2013,[1] relied on a number of injuries: closed head injury; injuries to both shoulders, the spine, the right calf and knee, and psychological injury. She stated that at the time of the accident she suffered severe bruising to her back, legs, shoulders, arms and neck.[2] As a result of the accident, she stated that she suffered of constant pain and restricted movement in the head, neck, chest, back, shoulders[3] as well as impaired concentration and headaches. She also suffered from a psychological disorder.
[1] PCB p.1
[2] PCB p.12
[3] PCB p.6
3 In her second affidavit, sworn on 3 September 2016, the plaintiff stated that she continued to suffer subtle cognitive problems, constant headaches, as well as variable levels of pain in the neck and thoracolumbar spine, for which she continued to be prescribed Palexia, a morphine medication, 50 mgs per day. At paragraphs 5-10 of this affidavit,[4] the plaintiff referred to “further injuries” to the knees, which were suffered in the transport accident but not referred to in the first affidavit. She stated that she has been suffering from bilateral knee pain since the time of the transport accident,[5] told her then treating general practitioner, Dr Towie, about this knee pain, had x-rays at the time but no further treatment. She complained to her current doctor, Dr Kerr, about her knee pain, in August 2015. She has had MRI scans of both knees and seen an orthopaedic surgeon in 2016, Mr Arogundade, who recommended ongoing conservative treatment. She stated that her knee pains have continued to deteriorate and that they are worsened by walking on uneven surfaces, on stairs or on slopes. Her loss of mobility has resulted in a weight gain of around 35 kgs and this weight gain in turn has further compromised her mobility. Her knee pain along with the pain in the cervical and thoracolumbar spine, disturbs her sleep, prevents her from wearing high heels, and prevents her from running, bike riding and playing netball and soccer. She stated that she no longer pursued the claim for psychological injury under s.93(17)(c) of the Transport Accident Act 1986 (“the Act”).[6]
[4] PCB p.3-4
[5] PCB p.17
[6]Transport Accident Act 1986 (Vic)
4 Before me, the application for leave under s.93(17)(a) of the Act was run solely in relation to an organic impairment to the function of the knees, particularly the right knee which, it was submitted, resulted from an injury sustained in the transport accident.
The issues
5 The defendant’s position is that the plaintiff’s application should fail for a number of reasons.
6 In relation to causation, the defendant says that the plaintiff does not recall the accident, has never asserted that her knees/knee were exposed to trauma in the accident, and did not complain of knee pain to the hospital Emergency Department when she was examined on the day of the accident nor ten days later when she presented again to the Warnambool Hospital. There was no mention of any injury to the knee or knees in the plaintiff’s TAC Claim Form dated 15 May 2012.[7]
[7] DCB p.74
7 The Initial Assessment Sheet from M.Health dated 27 June 2012 is not accompanied by any report of a treating physiotherapist, and its notations concerning the right knee do not adequately link the transport accident as a cause of the right knee injury. The note states: “PP [presenting problem] generalised Cx-Tx-Lx (P) [pain]”. It further states: “(R) knee ready for reconstruction” and in relation to previous treatment, states: “Physio @ Mordialloc previously – not happy with service, didn’t do much”. There was no report from the treating physiotherapist and therefore no evidence of a link between the attendance and the transport accident.
8 The Pain Assessment Chart which is dated 20 August 2012 and which appears to have been provided by the plaintiff to Dr Daniel Lewis, rheumatologist, when he saw her on 21 August 2012 includes a diagrammatic hashing and notation of “ache/pain” on the right knee (along with much more extensive hashing on the diagram at the front of the neck and shoulders, and at the back of the head, all of the neck and back, and lower right calf). Dr Lewis provided three reports in relation to the plaintiff, but none of them mentions knee pain, which suggests that the right knee was not a current, active problem.
9 The plaintiff’s first complaint of knee pain was to Dr Lee on 12 June 2013.[8] Dr Towie’s entry in his clinical notes on 3 July 2013[9] is as follows:
[8] “…knee issues to be discussed in next appointment” at PCB p. 56
[9] DCB p.56
R>L KNEE
PAIN
4 Y
NETBALL
OCCAS LOCK/PAIN/EFFUSION
10 Dr Towie referred the plaintiff for diagnostic imaging and the radiological report[10] noted, inter alia:
[10] PCB p.62
Clinical Notes
Years of intermittent locking and effusion
11 The defendant relies on the doctor’s clinical notes as establishing that the cause of the plaintiff’s knee injuries is the netball she played in the years prior to the transport accident, or at the very least, that her knee injuries predated the transport accident.
12 Further, the defendant says, the recent report of the osteopath[11] who treated the plaintiff in 2014, 2015 and 2016, stated that her primary complaints were of headaches, and cervical and thoracic spine hypertonicity, pain and restriction. There was no mention in the report of any knee pain or treatment for the knee/knees.
[11] PCB p.31
13 Finally, in relation to causation, the defendant relies on the medico-legal report of Mr Thomas Kossman which stated, inter alia, that MRI of the right knee on 16 November 2015 revealed “a degree of patellofemoral maltracking with presumed patellofemoral chondromalacia rather than a direct impact to the later patellar facet”.[12] The defendant says that in all the circumstances, the court should not be satisfied that the transport accident was a cause of the plaintiff’s bilateral knee injuries.
[12] PCB p.68
14 Secondly, the defendant says that the plaintiff suffers from a number of ongoing medical conditions (in the back, right shoulder, neck, fibromyalgia, cognitive problems, psychological issues) each of which place limitations on her physical activity and many of which cause her to take narcotic analgesia. For this reason, the defendant says that the plaintiff has failed to identify adequately the consequences attributable to her knee injuries.
15 Thirdly, even if the Court is satisfied on causation and disentanglement, the defendant submits that the consequences of the transport accident related injuries are not very considerable, having regard to what the plaintiff retains, namely: ability to complete her university degree with excellent results and to work full-time in her chosen career as a secondary school teacher; ability to live alone with limited assistance from a gardener and her mother; ability to engage in a range of daily activities (shopping, walking, packing the boot, meeting friends); unrestricted movements; and the absence of need for any further treatment to the knees.
16 Finally, the defendant raises a number of credit issues, in particular one flowing from the contradiction between the plaintiff’s denial to Dr Manolopoulos of any knee symptoms prior to the transport accident, and the entry in the note of Dr Towie referred to at paragraph 9 above. Another matter was the questionable validity of her performance in neuropsychological testing[13] due to her “poor performance on the Test of Memory and Malingering”. The defendant says that the plaintiff’s viva voce evidence was vague, evasive and difficult to accept; and that the Facebook image on 28 September 2015 of her surfing[14] sits at odds with her statement in her recent affidavit[15] that she is reluctant to go swimming in the ocean because the waves toss her about and cause her significant pain in her head, neck and back.
[13] See the report of Professor Ponsford at PCB p. 56
[14] DCB p.48
[15] PCB p.13
Plaintiff’s viva voce evidence
17 The plaintiff’s viva voce evidence was to the following effect. She agreed that she made no mention of a knee problem to doctors until June 2013. She was emphatic that she had not suffered from any knee problems prior to the transport accident. She said that Dr Towie asked her if she had a history of playing sport, but that his entry was wrong in that she did not tell him that she had suffered occasional locking, pain or effusion in the knees when playing netball. The fact was that she had not experienced those problems prior to the transport accident. She said that she did not think she could run for 30 minutes now, or at all. She has knee pain when walking, using stairs, sitting on the floor, and cannot kneel or squat. She said that prior to the transport accident, in either late 2011 or early 2012, she belonged to two or three netball teams, and played three games per week at the top and middle level of the competition; she also played soccer once per week. She did not recall ever, prior to the transport accident, being unable to play netball due to knee problems, nor had she ever taken pain killers for knee pain. Since the transport accident, she has been on the netball court but is unable to play a game. She said her knee pain is worse than her back pain. She was able, prior to the accident, to run 20 kms at a time, and was running a minimum of 5 kms, 3-4 days per week. Now she can no longer run due to the pain in her neck, back and knees. Her inability to do this exercise has distressed her and has resulted in substantial weight gain. She said that Dr Kerr was prescribing her Palexia for her knee pain. The right knee was worse than the left.
Medical evidence
18 In the light of the concession by plaintiff’s counsel that the impairments of each knee may not be aggregated, and that the right knee is more seriously affected than the left knee, I focus on the medical evidence concerning the right knee.
19 I note that Dr Daniel Lewis, rheumatologist, saw the plaintiff on 20 August 2012 and had from her a Pain Assessment Chart dated the previous day, which includes a reference to right knee ache/pain, but that his report dated 21 August 2012 makes no reference to knee pain, and focuses on her pain through the chest, and whole cervico thoracic and lumbar area. He referred her to a pain management program at Epworth Camberwell and noted on 4 July 2013 that she found it very helpful in reducing her pain in the low back and her fibromyalgia.
20 MRI scan of the right knee on 16 November 2015 was reported[16] with the following conclusion:
Conclusion: No high grade internal derangement identified. Features consistent with a degree of patellofemoral maltracking with presumed patellofemoral chondromalacia rather than direct impact injury to the lateral patella facet.
[16] PCB p.27
21 Dr Martin Kerr, the plaintiff’s treating general practitioner, reported on 3 May 2016[17] receiving the following clinical history:
Ms Kelly first came to see me on 11 August 2015 in relation to bilateral knee pain. She states she has had pain since a motor vehicle accident in 2012. Since that event, she has seen multiple doctors through independent reports. Her pain in relation to her knee, however, was reportedly unchanged for some time. She also reports chronic pain of her cervical and lumbar spine, and bilateral shoulder pain. Her knee pain appeared to be the most significant burden.
[17] PCB p.29
22 Dr Kerr noted the investigation results and referral to an orthopaedic surgeon, Mr Arogundade, for opinion and management of her knee pain. He noted that she had ongoing requirements of analgesia, currently Palexia 50 mg nocte, and would require further physiotherapy. He expected that with appropriate physiotherapy she would make further improvements in relation to her knee pain and function within 6 months. He noted that while the plaintiff continued to work as a teacher, her exercise capacity was limited due to pain.
23 Mr Arogundade reported on 18 October 2016[18] a history “of ongoing cervical lumbar, bilateral shoulder and bilateral anterior knee pain” which was “worse with stairs, walking on uneven ground, prolonged sitting, occasionally sharp, associated swelling, experiences crunching sound and occasional locking”. He had reviewed her on 30 November 2015 and noted that she had never seen a physiotherapist for knee rehabilitation. He diagnosed chondromalacia patella worse on the right than on the left, also evidence of patella mal-tracking. He referred her for physiotherapy and recommended weight loss. He noted that she was limited by anterior knee pain, that her prognosis was “guarded due to severity of her symptoms”, and that while no future treatment was being planned, he noted: “I believe in the very distant future she will be a candidate for a form of surgical management”.[19]
[18] PCB p.73
[19] PCB p.74
24 The parties provided medico-legal reports from orthopaedic surgeons Dr Anna Manolopoulos[20] and Mr Thomas Kossmann.[21] Dr Manolopoulos reported on 17 August 2016 that when asked, the plaintiff “categorically denies having had symptoms in her neck, back or knees in the past”.[22] She noted that prior to the transport accident the plaintiff’s hobbies included netball, soccer, running, boot camp, cycling, hiking, piano and guitar, but that since the transport accident she had persistent pain which was constant during walking, running and jumping. She had been unable to return to any of these activities apart from playing the piano and doing a little bit of walking. She paid a gardener to manage the outside of her home, and had help from her mother to clean bathrooms. She otherwise “paces herself for everything else”.[23] When examined, the plaintiff had global tenderness around the right patellofemoral joint, a Clarke’ test was “exquisitely sensitive for pain”, and meniscal testing was impossible due to the level of pain. She walked with a normal gait, but more slowly and deliberately than the doctor would expect.
[20] DCB p.1
[21] PCB p.58-72
[22] DCB p.3
[23] DCB p.4
25 Dr Manolopoulos noted that the plaintiff did “not recall any impact to her knees”[24] in the transport accident but concluded from her denial of any knee problems prior to the accident that “the only incident that has any relationship to her knee pain is the motor vehicle accident that she was involved in”.[25] She concluded that the plaintiff’s knee condition was likely to get worse over time, although it was difficult to predict “to what degree her disability will become an issue for her and over how long”.[26] Dr Manolopoulos did not feel that was any role for operative treatment, nor any value in persisting further with physiotherapy.
[24] DCB p.6
[25] DCB p.6
[26] DCB p.6
26 Mr Kossmann provided a medico-legal report dated 1 July 2016[27] in which he noted a history from the plaintiff of ongoing pain in both knees after the transport accident and difficulty managing stairs. Since the transport accident, the pain issues in the neck, back, shoulders and knees had prevented her from returning to her previous recreational activities, including netball and soccer. He noted the recommendation by Mr Arogundade of conservative treatment with physiotherapy, and the fact that she had received osteopathic treatment since late 2012. He concluded that the plaintiff’s prognosis “is poor”. In relation to the knees, he concluded:
….She continues to suffer from pain, in particular in both of her knee joints, for which she will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possible acupuncture. She may also benefit from an intra-articular injection of steroids. However, in the long-term she will require total knee replacements of both knees.
[27] PCB p.64
27 Mr Kossmann felt that due to all her pain in the cervical and lumbar spine and both knees, the plaintiff would be unable to walk for long distances, on uneven ground, up and down stairs, on inclines/declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kgs. He noted that she was managing to work full time in spite of her pain issues. Mr Kossmann repeated these conclusions in his supplementary report dated 17 October 2016.[28]
[28] PCB p.71
28 Dr David Weissman, psychiatrist, provided a medico-legal report dated 5 March 2015[29] to the plaintiff’s solicitors in which he took a history from the plaintiff, inter alia, of problems with her knees after the transport accident, along with ongoing pain in the neck and back. He diagnosed, relevantly, a mild chronic Adjustment Disorder with Mild Anxious and Depressive Features, in response to her physical pain and restrictions, and some features of a Chronic Pain Disorder, associated with psychological factors and a general medical condition. He felt that there were psychological factors amplifying her perception, sensation and experience of pain. He felt that she would benefit from psychological counselling for a 12 month period.
[29] PCB p.39
Legal principles
29 In order to satisfy sub-paragraph (a) of the definition of serious injury in section 93(17) of the Act, the plaintiff must establish that she has suffered a serious long-term impairment or loss of a body function.
30 In determining an application under section 93(17)(a) of the Act, the Court must be satisfied that the consequences of the long-term impairment of the particular body function, in terms of pecuniary disadvantage and/or pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[30] Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[31]
[30]Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
[31]TAC v Dennis [1998] 1 VR 702, 703.
31 Ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[32]
[32]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].
32 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[33] Each case has to be determined in the light of its own facts.[34] The court is entitled to consider the plaintiff’s age.[35]
[33]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011]
VSCA 52; Aburrow v Network Personnel Pty Ltd & Anor [2013] VSCA 46.
[34]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
[35]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 [44].
33 In determining the application the whole of the evidence is to be considered. The Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he or she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[36] A return to work by a stoic worker is not determinative against that worker on the issue of pain and suffering.[37]
[36]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA
52, [95].
[37] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
34 In an application under section 93(17)(a) of the Act, where a plaintiff who has suffered a significant physical injury has also developed a psychiatric response to that physical injury, it is permissible and appropriate for the court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test.[38]
[38]Richards v Wylie (2000) 1 VR 79, 87; Rodda v TAC [2008] VSCA 276.
Findings and reasons
35 I have considered all of the evidence and the submissions.
36 It was not disputed that the plaintiff suffered a concussion in the transport accident resulting in mild attentional and memory problems. In the circumstances, I reach no conclusions adverse to the plaintiff from the manner in which she gave her evidence. In particular, I note her insistence in cross-examination that she did not have any problems with her knees prior to the transport accident of the kind recorded by Dr Towie. I note that, apart from the note made by Dr Towie (which is referred to at paragraph 9 above), there is no medical evidence to suggest any pre-accident history of knee problems or treatment. I consider that the focus of Dr Lewis’ reports is the spinal injury, and this is consistent with his expertise in rheumatology, and not orthopaedics. I accept the plaintiff’s sworn evidence that she did not suffer any knee problems or require treatment for them prior to the transport accident, and that after the transport accident she developed ongoing knee pain, particularly in the right knee. In the absence of any other cause, I accept, as did Dr Manolopoulos and Mr Kossmann, that the transport accident is a cause of the ongoing pain she suffers in the right knee.
37 At the very least, even if the pathology in the right knee pre-dated the transport accident, I would consider that, as a result of the transport accident, she has suffered an aggravation of a pre-existing condition, the consequences of which meet the narrative test for serious injury for the following reasons. I accept her account of the pain and restrictions she suffers in the right knee, that she has suffered these consequences since the transport accident, and I accept that her right knee pain is one of the reasons she takes daily narcotic analgesic medication. The weight of medical opinion is that her right knee condition is permanent, and has resulted in substantial restrictions in her mobility and ability to engage in her recreational pursuits.
38 The plaintiff is only 28 years old. While she retains the capacity to work full time in her chosen occupation, and is able to live independently and care for herself, she suffers ongoing daily pain in the right knee, requiring daily strong analgesic medication. She cannot kneel, squat, jump, run, play soccer or netball, and has difficulty with stairs, hills and uneven surfaces. The right knee impairment is one of the reasons for these restrictions. She will suffer this pain and restriction for the rest of her life. The medico-legal experts agree that eventually she will require surgery of some sort for the right knee, whether a total knee replacement or some other surgical intervention. I have also taken into account the psychological reaction to her physical condition, of which the condition of the right knee is a part.
39 I consider, having regard to the whole of the evidence, that the consequences, in terms of pain and suffering, of the plaintiff’s transport accident-related right knee impairment, are more than considerable when compared with other cases in the range of long-term impairments of the lower limb.
Conclusion
40 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the right knee suffered in the transport accident on 2 April 2012. I reserve the question of costs.
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