Kogas v TAC

[2011] VCC 1235

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-02540

GAIL KOGAS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 5, 6 September 2011
DATE OF JUDGMENT:	20 September 2011
CASE MAY BE CITED AS:	Kogas v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 1235

REASONS FOR JUDGMENT

---

Catchwords: SERIOUS INJURY – Section 93 Transport Accident Act 1986 – Aggravation of pre-existing injuries – aggregation of injuries – whether the consequences of the injuries satisfied the “more than considerable” test.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J R Moore QC with	Nowicki Carbone
Mr R H Stanley
For the Defendant	Ms J A Dixon SC with	Solicitor to the Transport
Ms D E Galbally	Accident Commission
HIS HONOUR:

1          On 30 September 2005, Gail Kogas was driving her motor vehicle home from work along Flemington Road, Parkville when she was side-swiped by another vehicle. The impact forced her car into a pole.

2          Following the accident, she was assisted from her vehicle and in due course taken to St Vincent’s Hospital, where she remained for some hours before being allowed home.

3          As a consequence of that accident, she alleges that she suffered injuries to her low-back and to her right hip.

4 She seeks leave to commence a claim for damages against the driver of the other vehicle. Her right to do so is governed by the provisions of s.93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mrs Kogas must satisfy the Court that her injury is a “serious injury”.[1] The term “serious injury” is defined in s.93(17) of the Act (insofar as is relevant) as a “severe long-term impairment or loss of a body function”.

[1] Section 93 (6) of the Act

5          In order to succeed in her application, Mrs Kogas must satisfy the Court that the consequences of one or other or both of her injuries are “serious”. In order that an injury be considered “serious”:

(a)	the consequences of the injury must be serious to the particular applicant;
(b)	those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)	the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least “very considerable” and more than “significant” or “marked”.[2]

[2]             Humphries & Anor v Poljak [1992] 2 VR 129 at 140

6 Mrs Kogas submits that both the injury to her low-back and to her right hip are “serious” injuries within the meaning of s.93(17) of the Act.

7          The defendant submits that neither injury is a “serious injury” and further, that neither injury was suffered in the subject motor vehicle accident.

8          The issues to be determined in this application are:

(a)	whether the consequences of the injury to Mrs Kogas’ low-back can be fairly described as “very considerable”;
(b)	whether the consequences of the injury to Mrs Kogas’ right hip can be fairly described as “very considerable”;
(c)	whether the motor vehicle accident, in which Mrs Kogas was involved on 30 September 2005, was a cause of either or both of those injuries.

9          Mrs Kogas is currently aged forty-two years. She was educated to Year 12 level and had for some years afterwards worked in the travel industry. From 1993 until about 1995, she worked with an airline in the United Kingdom. She returned to Australia in 1995 and commenced working for Qantas as a reservation sales representative. This involved telephone duties.

10        In about November 2004, she obtained a transfer within the Qantas organisation, working at Tullamarine Airport as a customer service agent. This was a position in which she had previously worked whilst employed by the airline in the United Kingdom. She had always been keen to move into such work in Australia and had been looking for such work and applying for such positions for approximately nine years prior to achieving this in 2004.

11        The position involved substantial manual activities. For most of the time she was on her feet. She was regularly required to bend forward and to squat to label luggage. She regularly handled luggage weighing up to 32 kilograms. Such lifting was repetitive from floor level up to a conveyor belt. She was often required to push wheelchairs over significant distances on flat and sloped surfaces. Significant upper body force was required, particularly when pushing large or overweight passengers. She was required to regularly open and close aircraft doors which could be difficult to manoeuvre.[3] She was continually dealing with members of the travelling public. Mrs Kogas loved the work for Qantas.[4] Despite the high pressure duties associated with the position, she enjoyed the work. It did not cause her physical problems.[5]

[3]             Plaintiff’s Court Book (“PCB”) 231

[4]             Transcript (“T”) 14

[5]             T 29

12        Although, technically, the position at the airport was described as a part-time one, she generally worked a 40-hour week. In all but name, clearly the position was a full-time one.

13        She stated that she intended to continue working in that position. The defendant disputed this. It pointed to evidence that through 2005, Mrs Kogas was attempting to become pregnant and commence a family. When unsuccessful, she and her husband had enrolled in an IVF program.

14        I accept that, notwithstanding plans to commence a family, Mrs Kogas would have continued working as a Customer Service agent with Qantas indefinitely subject to periods of absence when she had children. It is not uncommon for women such as Mrs Kogas to take a year or two off work following the birth of a child and then to return to work at some later time.

15        Counsel for the defendant submitted and I accept that, insofar as any of Mrs Kogas’ injuries were an aggravation of pre-existing injuries, an analysis must be made of the extent of the impairment of the relevant body function before and after the relevant injury.[6]

[6]             Petkovski v Galletti [1994] 1 VR 436 at 444; De Agostino v Leatch & Anor [2011] VSCA 249

16        Years earlier, Mrs Kogas had been involved in a fall at her home in 1998 and in a car accident in December 2000. She had seen medical practitioners following each of those incidents. In the car accident of December 2000, she fractured a bone in her left wrist which was placed in plaster. She had approximately three months off work at that time. I note that she was left- hand dominant. Nevertheless, she returned to her normal duties with Qantas and continued working in her reservations position until about November 2004, and thereafter in her customer service role at Tullamarine until the date of the subject accident in late September 2005. She appears to have had little if any time off work in that period.

17        Counsel for the defendant drew my attention to attendances by Ms Kogas on medical practitioners prior to the subject accident:

(a)	It appears that after the 1998 fall she saw her general practitioner and was referred to a rheumatologist, Dr Harkness. He appears to have treated her for a “left hip” problem at that time;[7]
(b)	In December 2000 (soon after the earlier car accident), she complained to her then general practitioner, Dr Hampton, of a sore low-back;[8]
(c)	In January 2001, she complained to Dr Hampton of low-back pain on lateral flexion;[9]
(d)	In July 2002, she was referred by Dr Hampton back to Dr Harkness in relation to her “hips”;[10]
(e)	In May 2003, she complained to her then General Practitioner, Dr H K Ng, of three days of low-back pain;[11]
(e)	In June 2005, she complained of right hip and back pain;[12]

[7]             Exhibit 11

[8]             Exhibit 13

[9]             Exhibit 13

[10]           Exhibit 13

[11]           Exhibit 12

[12]           Exhibit 13

18        Further, it appears that on 26 September 2005 (four days prior to the subject accident), Mrs Kogas saw Dr H K Ng. The doctor’s notes are difficult to read.[13] Oral evidence was given at the hearing by Dr Looi-Fen Ng, a general practitioner who practiced at the same clinic as her father, Dr H K Ng. She attempted to interpret her father’s handwritten clinical notes entered on that day. As best she could determine, the note contained a reference to the right hip and a reference to a referral to a gynaecologist for an obviously unrelated matter. It may also have referred to an x-ray of the right hip. Having heard her evidence and inspected the clinical note, I am satisfied that the note makes reference to the right hip but I am not satisfied as to what else it refers. Mrs Kogas had no recollection of that attendance. The nature of the extent of any right hip complaint on that date are not disclosed in the note. Mrs Kogas maintained that she had no problems of significance with her right hip before the subject accident.

[13]           Exhibit 12

19        I should also note that the clinical notes of Dr Hampton and Dr Ng disclosed numerous attendances between 1998 and September 2005 for unrelated matters at which time no note was made of any back or hip issues.

20        The plaintiff’s evidence was that she took no time off her Qantas jobs between 1998 and 30 September 2005 as a consequence of pain or injury to her low- back or right hip.

21        To the contrary, her evidence was that she continued performing her duties as a telephone bookings operator, between 1998 and approximately November 2004, and from that time as a customer service agent Melbourne Airport.

22        The defendant submitted that I should not be satisfied that any injury to Ms Kogas’ lower back or right hip had occurred in the motor vehicle accident of 30 September 2005. I do not accept this.

23        I accept the plaintiff’s evidence that any symptoms that she had suffered from her lower back or right hip prior to 30 September 2005 were relatively minor and did not prevent her from carrying out her duties in either of her Qantas positions, or from enjoying a wide range of recreational and home activities. Further, I accept that the job that she was performing at Melbourne Airport was a relatively physical one, in the sense that she was required to be on her feet virtually all of the working day, to walk considerable distances and to regularly and repetitively lift relatively heavy weights. Whilst she may have consulted medical practitioners from time to time with complaints regarding her back and hip, I accept that these were isolated instances and that on no occasion was she required to take time off work as a consequence of such symptoms.

24        In contrast, I accept Mrs Kogas’ evidence that from the time of the subject motor vehicle accident in September 2005, she has suffered ongoing and persistent low-back and right hip pain. I accept that the level of pain has been such that she has been prevented from returning to her pre-accident duties and to other full-time employment and her recreational and household activities have been significantly impaired.

25        This application is brought in respect of two injuries. In assessing the consequences of those injuries, the circumstances in which they can be aggregated are limited.[14]

[14]           Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511

26        Where two or more injuries are suffered in separate incidents or impair different body functions, they may not be aggregated.[15] However, where two or more injuries suffered in the same incident combine to impair the same body function, they may be aggregated.[16]

[15]           (supra) at 520

[16]           (supra) at 520

27        In relation the plaintiff’s right hip injury, the plaintiff saw her general practitioner, Dr Ng, and when symptoms failed to improve she was referred to an orthopaedic surgeon, Mr Moran, in mid-2006, who in turn referred her to Mr John O’Donnell. Mr O’Donnell arranged for an MRI scan which demonstrated an acetabular labral tear, necessitating an arthroscopy in September 2006. The procedure confirmed the diagnosis of a labral injury associated with capsular scarring and some calcification about the acetabular edge. In his report, dated 29 April 2008, Mr O’Donnell described that, in the arthroscopic procedure performed by him, a small fracture of the anterior acetabular wall was identified with a persisting bony fragment which was excised. There was a release of the adherent scarred capsule.

28        Post-operatively, Mrs Kogas continued to complain of persisting pain on the lateral side of the hip joint. She underwent an ultrasound guided injection of local anaesthetic and steroid in March 2007 which resulted in some temporary improvement. A further MRI scan was performed in September 2007 which showed a partial tear of the gluteus medius tear tendon and trochanteric bursitis. She was further treated by way of an ultrasound-guided steroid injection. A later ultrasound performed in July 2007 was reported as normal.[17] This did not surprise Mr Brearley, who considered that an ultrasound examination would not show such conditions.

[17]           Report of Mr O’Donnell at PCB 101

29        Mrs Kogas’ evidence was that her treatment by Mr O’Donnell initially resulted in temporary improvement in her hip pain but that it later deteriorated. I accept that evidence.

30        In relation to the right hip injury, Dr Ng considered there were partial tears of the gluteus medius with trochanteric bursitis and a tear of the anterolateral labrum with a lower grade stress response to the acetabulum.[18] She considered that these had been chronic and longstanding with intermittent flare-ups. She considered that those symptoms would continue into the future.

[18]           T 109

31        Mr O’Donnell diagnosed damage to the anterior acetabular wall with damage to the labrum and bone of the acetabular wall. He considered she was also troubled by persisting trochanteric bursitis and gluteus medius tendinosis.[19] When he last saw her in October 2007, he thought she would be fit for modified duties but should not perform heavy any lifting or frequent stair climbing.[20]

[19]           PCB 101

[20]           PCB 102

32        Mr Brearley considered that the right hip injury comprised a tear of the acetabular labrum which had been treated by arthroscopy. He considered that the injury was organic and that she would continue to have pain and suffering.[21]

[21]           PCB 140

33        In respect of the right hip injury, the defendant relied largely upon the evidence of Mr Michael Dooley, orthopaedic surgeon. In his report of 2 December 2008, Mr Dooley concluded that in the subject accident, Mrs Kogas had sustained a “possible soft tissue injury to the right hip region”.[22] He said it was feasible that a soft tissue injury to the right hip joint occurred in the motor vehicle accident and that some of her groin pain related to referred hip pain.[23] He thought surgery to the hip would not help her.

[22]           Defendant’s Court Book (”DCB”) 42

[23]           DCB 43

34        In his report of 15 November 2010, Mr Dooley concluded that Mrs Kogas had not sustained injury to the right hip joint in the accident in question. He accepted that she might have sustained some bruising and soft tissue impact to the lateral side of the upper right thigh. He considered that the findings disclosed by MRI of the right hip were part of the aging and degenerating process. He said:

“I accept that there are surgeons who will state that a tear of the labrum etc occurred in the motor vehicle accident. It is not uncommon on plain x-rays of the hip to note small ossicles of bone adjacent to the acetabulum. This is a normal variant. Similarly, it is my view that low grade tears, tears of the acetabular labrum occur as part of the aging and degenerating process. The findings on MRI scanning and the reported findings at arthroscopy do not convince me that injury occurred. These findings in my view are most likely naturally occurring. Again, I accept that other (sic) will have different views and I respect their opinion. With the development of MRI scanning and with the development of theories that abnormality is in relation to the shape and prominence of the femoral head/neck region can lead to so-called impingement, soft tissue labral damage and chondropathology, there has been an explosion in terms of the number of hip arthroscopies carried out over the last few years. In relation to many of these theories, it is my view that the jury is still out and that one needs to be careful in terms of attributing what one sees on MRI examination to either acute or so-called chronic repetitive trauma and impingement.”[24]

[24]           DCB 50

35        I found those comments difficult to comprehend. No further report was requested by the defendant’s solicitors to clarify or explain them. In any event, Mr Dooley conceded that other surgeons (presumably reputable) may well form a different view of the causative link between the injury to Mrs Kogas’ right hip (as disclosed by MRI) and the motor vehicle accident in question.

36        Mr Dooley gave no reason for changing the opinion that he had expressed in his earlier report.

37        Other medical practitioners engaged by the defendant to examine and report on Ms Kogas did not appear to query the causative link between the subject accident and the right hip findings.[25]

[25]           Dr Kenna, DCB 56; Dr Elder DCB 67

38        Looking at the medical evidence as a whole, I am satisfied, on the balance of probabilities, that the right hip injury suffered by Ms Kogas as demonstrated by MRI investigation, resulted from the subject accident.

39        I accept Mrs Kogas continues to suffer from right hip pain. She described it as coming in spasms.[26] It was like a toothache although at times there was no pain. It came and went. She might go for a few days with no pain and then three or four days with pain. She just had to rest, by lying down on her left side.

[26]           T 79

40        In respect of her lower back, Mrs Kogas was referred to Mr D’Urso, neurosurgeon, who considered that the development of lumbar spine symptoms was connected to the subject accident.[27] He concluded, on the basis of the MRI of her spine, that she had not suffered any disc prolapse or nerve root compression and hence no significant injury.[28] He has not seen Mrs Koga for more than five years. Notwithstanding that opinion, I accept that Mrs Kogas continues to suffer from lower back pain. Her evidence[29] was that her pain was at times excruciating. Her ability to complete household chores was significantly impaired. She relied largely on assistance from her husband and from her mother-in-law. She now has a three-year-old son and has found it difficult to attend to basic matters, such as changing his nappy, as a consequence of the need to stand and lean forward. Her back pain was significant. It was worse in cold weather and if she had physically done too much. If she walked too much or lifted something heavy, it was worse. At times, she had been in bed for three or four days to recover.

[27]           PCB 112

[28]           PCB 112, 113

[29]           T 77

41        Radiologically, there was no obvious abnormality found. Notwithstanding, medical opinion was that she had suffered injury to the soft tissues of the lumbar spine which explained the pain that she was experiencing.

42        Dr Ng described Ms Kogas’ lower back pain as mechanical.[30]

[30]           T 109

43        Mr Brearley, orthopaedic surgeon, considered that her lower back injury was organic and one affecting the soft tissues. He considered that soft tissue injuries could produce symptoms that were ongoing in a truly organic sense.[31] He considered that she had suffered an injury to the lumbosacral spine comprising injury to the interspinous ligaments and probable exacerbation of pre-existing degenerative changes in the lumbosacral spine. He thought it was certainly more probable than not that that injury was caused as a direct result of the motor vehicle accident of 30 September 2005.[32]

[31]           T 180

[32]           PCB 140-1

44        Mr Brearley considered there was no incongruity between a soft tissue organic injury and the suffering of continual pain for five years thereafter.[33]

[33]           T 179

45        Mr Haw, orthopaedic surgeon, was of the view that she had aggravated pre- existing degeneration, particularly at the L4-5 level.[34]

[34]           PCB 157

46        Dr Castle, an occupational physician, was of the view that her lower back pain was an aggravation of underlying degenerative change arising out of the subject accident. He considered her lower back condition resulted in a long- term impairment and that there was unlikely to be further improvement.[35]

[35]           PCB 166-7

47        Counsel for the defendant submitted that, if I was satisfied that the injuries to the lower back and right hip were caused by the subject accident, I should not be satisfied that the consequences of either of them were such as to be described as more than considerable. I disagree.

48        In March 2011, Mrs Kogas obtained part-time employment with Vic Metro, a company which I understand administers railway services in metropolitan Melbourne. Her duties are those of a station attendant at the North Brighton station. She is required to liaise with customers concerning rail service matters. Her hours of work are 6.30 am to 10.30 am five days per week. The work involves no manual handling or lifting but does require her to be on her feet for much of the time. I accept that she is only just managing with those duties. Her evidence[36] was that she started off reasonably well but, as the shift wore on, she developed extreme pain by the end of it.[37]

[36]           T 216

[37]           PCB 13

49        She currently earns approximately $406 per week in such employment.[38] Prior to the subject accident, she was earning approximately $770 per week with Qantas[39] in a position which she loved. Clearly, she has suffered significant pecuniary disadvantage.

[38]           PCB 14

[39]           PCB 181

50        At the time of the accident, Mrs Kogas was working a 40-hour week in a job that required significant physical input. She had taken no time off work of any relevance. She loved the work. She had been attempting to move into this area of work for approximately nine years before she successfully did so in November 2004. She was familiar with the type of work because she had worked in the same capacity some years earlier in the United Kingdom. She has not been able to return to that work since the accident. Dr Ng, Dr Lolatgis and Mr Brearley opined that she could not do so.[40]

[40]           Dr Ng T 146; Dr Lolatgis PCB 125; Mr Brearley PCB 141

51        I had the opportunity of assessing Mrs Kogas’ oral evidence. I considered that she was an honest and straightforward witness. I accept that she has suffered significant pain from both her low-back injury and her right hip injury for a period of approximately six years. I accept that it is likely that such pain and discomfort will continue for the foreseeable future. She is only aged forty- two at present. I consider that the consequences for her include:

(a)	being unable to continue to work in her chosen job, a position that she had attempted to obtain for many years prior to 2004 and which she genuinely enjoyed;
(b)	being able to participate fully in family life, particularly with regard to activities with her young child;
(c)	difficulty sleeping;
(d)	being restricted in her participation in normal household duties and having to leave many of these to her husband and mother-in-law;
(e)	being unable to travel overseas and interstate as she had regularly done with her husband prior to the subject accident;
(f)	having difficulty sitting or standing for extended periods;
(g)	having reduced ability to participate in a range of recreational activities including walks, ten pin bowling, gardening, cooking and dancing.

52        Much of the medical evidence, when dealing with the effect of the injuries on Mrs Kogas, considered the effect of both injuries without differentiating between the two.

53        However, Dr Castle expressed a clear view that, considered separately, both the low-back and right hip injuries resulted in long-term impairment. He considered that it was unlikely that there would further improvement in either.[41]

[41]           PCB 167

54        Mr Dooley opined that there was a common association between low-back pain and a patient noting pain in the upper lateral thigh or trochanteric bursa region. He said it was not uncommon to see patients with a symptomatic lumbar spine and pain or tenderness over the greater trochanteric region.[42]

[42]           DCB 50

55        Whilst the source of some of Mrs Kogas’ hip pain may, to some extent, relate to her low-back, I accept the majority medical view that most if not all of her hip pain is the result of a separate injury to the right hip caused in the accident.

56        I accept that both injuries contribute significantly to the consequences set out above.

57        In summary, I consider that the consequences of both her lower back and right hip injury satisfy the “more than considerable” test laid down in Humphries & Anor v Poljak.[43]

[43]           (supra)

58        I consider that Ms Kogas’ return to part-time employment with Vic Metro demonstrates that she is well motivated to continue working. I accept that she is only just managing with such duties notwithstanding that they involve her working for only four hours a day and that her duties are particularly light. I accept that she suffers significantly from her lower back pain and right hip pain as her shift progresses.

Conclusion

59        For the reasons set out above, I am satisfied that the plaintiff suffered injury to her lower back and to her right hip in the motor vehicle collision which occurred on 30 September 2005. I am satisfied that the consequences of both of those injuries satisfy the “more than considerable” test.

60 Accordingly, the plaintiff will have leave, pursuant to s.93(4)(d) of the Act, to bring proceedings to recover damages in respect of injuries suffered in the motor vehicle accident which occurred on or about 30 September 2005.

61        I shall hear the parties in relation to costs.

- - -