Mernone v Transport Accident Commission
[2022] VCC 1180
•1 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY EXPEDITED LIST
Case No. CI-19-05776
| IVA MERNONE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2022 | |
DATE OF JUDGMENT: | 1 August 2022 | |
CASE MAY BE CITED AS: | Mernone v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1180 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury leave application – Serious long-term impairment – Hip injury – Vehicle accident – Underlying Condition – Whether the accident caused the plaintiff’s injury
Legislation Cited: Transport Accident Act 1986, s93; Civil Procedure Act 2010
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Application grant to commence common law proceedings for serious long-term impairment of her left hip.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr C Sidebottom | Slater and Gordon Ltd Lawyers |
| For the Defendant | Ms B Myers QC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1The plaintiff, Ms Iva Mernone, makes application pursuant to ss93(4)(d) of the Transport Accident Act 1986 for leave to bring common law proceedings for serious long-term impairment of her left hip as a result of a transport accident on 7 July 2014.
2The defendant, the Transport Accident Commission (“TAC”), did not seek to cross-examine the plaintiff. Counsel for the plaintiff did not seek leave to call the plaintiff to elicit any additional evidence. Accordingly, the plaintiff’s evidence comprises her three affidavits, sworn 27 May 2019, 11 May 2020, and 3 May 2022. The parties tendered, without objection, the documents they each sought to rely on and the matter proceeded to closing submissions.
3The only issue in this case is whether the accident caused the plaintiff’s injury. The defendant conceded that if the Court is satisfied on causation, the plaintiff would meet the threshold for serious injury.
4For the reasons set out below, the plaintiff’s application is granted.
Injury and treatment
5On 7 July 2014, the plaintiff was driving along Epsom Road in Kensington. The traffic in front of her stopped moving and so she did the same. Another vehicle crashed into the rear of her stationary car. The plaintiff saw the driver behind her in the rear-view mirror just before the impact. The driver was going “relatively fast” when he struck her car, although she is unsure of the precise speed.
6At first, the plaintiff did not feel any particular pain. She believes she was in shock. She rang her then-husband to see if he could come and get her, but he did not answer the phone. After exchanging details with the driver, she drove home. There was damage to the boot, door and bumper of her car.
7The plaintiff did not go to the police because she had the other driver’s details and she was only concerned about the insurance claim. The other driver’s insurance later paid for the damage to the car.
8She did not go to hospital, as it was late and she was in shock. She did not realise she had been injured.
9By the time she got home, the plaintiff’s mid and lower back was very sore and she had a terrible headache. She lay down for a while and assumed the pain would improve. However, in the following days she continued to suffer back pain.
10The plaintiff was also suffering pelvic pain. She was in the early stages of pregnancy and was extremely concerned about the effect of the accident on the baby. On 14 July 2014, she had a pregnancy ultrasound booked and also saw her general practitioner (“GP”) for a check-up after the accident. She was told that she had had a miscarriage. She was told this was a coincidence and not related to the accident.
11Within a few weeks of the accident, the plaintiff started to develop left hip pain. At first, she says she confused it with the abdominal pain she had as a result of the miscarriage, but eventually it became clear that the left hip pain was separate. In around mid-August 2014, she consulted her GP and he ordered scans. She continued to suffer lower back pain.
12The left hip pain got worse. In around August 2014, she saw a chiropractor, Dr Joseph Messina.
13In around October 2014, the plaintiff’s GP referred her to a psychologist, Dr David Morell, as she was struggling with the ongoing pain and distress caused by the miscarriage.
14In around March 2015, the plaintiff was referred to a physiotherapist, Sue Gertzel, for management of her lower back and left hip pain. The plaintiff saw her several times, but then stopped, as she did not find the treatment helpful.
15On 19 February 2016, the plaintiff had an MRI scan of her left hip for an independent medico-legal assessment.
16In around November 2016, the plaintiff was referred to an orthopaedic surgeon, Mr Andrew McQueen. The pain in her left hip continued to increase and she started to walk with a limp. She received two Celestone injections, the first in February 2017 and the second in September 2017. Each was helpful for a couple of months, but then the hip pain came back.
17Mr McQueen organised another MRI scan, which was performed on 8 February 2018. Mr McQueen referred the plaintiff to another orthopaedic surgeon, Mr Mark O’Sullivan, who specialises in hip surgeries.
18On 6 April 2018, the plaintiff had surgery on her hip. Mr O’Sullivan performed a left hip arthroscopy and labral repair. She did not recover well and continued to suffer left hip pain. About three months after the surgery, she had another injection into her hip, but did not find it helped her symptoms. She was referred to a physiotherapist, Aaron White. More recently, she has been advised that she will require a hip replacement.
Experts’ opinion on causation
Dr Harvinder Kaur
19Dr Harvinder Kaur, a gynaecologist, provided a report dated 7 November 2014.[1] He treated the plaintiff for gynaecological issues and noted she had had issues with left hip pain since a motor vehicle accident which were not gynecologically related.
[1] Plaintiff’s Amended Court Book (“PCB”) 25
Mr Aaron White
20Mr Aaron White, a physiotherapist, provided a report dated 16 August 2018. Mr White notes that the plaintiff’s injury is a result of the car accident on 7 July 2014.[2]
[2] PCB 41
21It is not clear whether this reflects Mr White’s opinion as to the cause of the plaintiff’s injury, however it is unlikely Mr White is qualified to opine on causation.
Dr Joseph Messina
22Dr Joseph Messina, the plaintiff’s chiropractor, first saw her on 27 August 2014. Dr Messina writes that the plaintiff’s reported injuries are consistent with the car accident on 7 July 2014.[3] It is unlikely that Dr Messina is qualified to provide this opinion.
[3] PCB 46
Mr Mark O’Sullivan
23Mr Mark O’Sullivan, an orthopaedic surgeon, provided a report dated 7 November 2018. Mr O’Sullivan writes that he referred the plaintiff to another orthopaedic surgeon, Mr David Young, for an assessment and second opinion regarding labral reconstruction and records Mr Young’s opinion that, instability with some uncovering of the left femoral head and exacerbation from the car accident, had led to some deterioration in the joint, in particular the labrum and adjacent articular cartilage.[4]
[4] PCB 62
24In a further letter dated 3 September 2021,[5] Mr Sullivan opines that the car accident on 7 July 2014 was the cause of the “initial problem” with the plaintiff’s hip.
[5] PCB 64
Mr Peter Moran
25Mr Peter Moran, an orthopaedic surgeon, provided six reports.
26In his report dated 5 May 2020, Mr Moran writes that the “initial collision” caused the plaintiff’s left hip injury.[6]
[6] PCB 76
27In a report dated 3 August 2021, Mr Moran considers that the plaintiff’s hip joint should be investigated for inflammatory arthritis, but that even if there was inflammatory arthritis, the “initiating event” was the car accident on 7 July 2014.[7]
[7] PCB 80
28In his report dated 15 February 2022, Mr Moran writes that:
1.Ms. Mernone has sustained a soft tissue injury to the left hip, a complex injury which includes lateral hip pain arising as a result of gluteal tendonitis, an anterior significant labral tear with associated undermining of the superior lateral edge of the articular surface of the acetabulum, and on top of that, possibly chronic iliopsoas tendonitis contributed to groin pain.
2.These symptoms all developed shortly after the initial collision, but her major initial issue was lower back pain, which has also persisted to the present time.
There is a direct causal relationship between the transport accident and the onset of back and left hip symptoms, with no pre-existing issues of pain in the back or hip, for an extended period of time prior to this collision.
Ms. Mernone could not recall any prior history of issues with groin or lateral hip pain.
On the balance of probabilities, the transport accident on the 7th of July 2014 has resulted in a specific injury to your client's left hip.
It is possible that there may be a minor pre-existing issue with labral tearing but this was certainly asymptomatic, with no symptoms of groin pain or lateral hip pain in the past.
…
9.With respect to pre-existing injuries or co-morbidities, I note that comment has been made about the existence of acetabular dysplasia, a developmental anomaly. I would assess the degree of acetabular dysplasia as being minor, and unlikely to be significant in the development of her current symptomatology.[8]
[8] PCB 83-85
Dr Jennifer Flynn
29In her report, dated 25 April 2022, Dr Jennifer Flynn, an orthopaedic surgeon, considers that, on the balance of probabilities, the car accident on 7 July 2014 caused or contributed to the plaintiff’s hip injury. She opines:
“… On the balance of probabilities the transport accident of 7 July 2014 has been a significant contributing factor to the onset and continuation of left hip symptoms. I consider that it is most likely that the transport accident has aggravated the labral tear.
Noting the commentary regarding the mechanism of injury and a low speed accident I opine that it is unlikely that the incident caused a labral tear. In assessing the mechanism of injury and the reported condition I believe that one must consider all factors such as the position of flexion of the left leg at the time of the impact, any rotation of the left leg that may have been present at that time, any force that may have been placed through the leg at the time of the time by way of voluntary muscular force, as well as the potential impacts of hormones of early pregnancy. I acknowledge that examination of the hormonal impact is outside my area of expertise however I include it here as an illustration that a simple biomechanical assessment of velocity and force may be an oversimplification and there are likely other factors at play that are not quantifiable.”[9]
(sic)
[9] PCB 113
Dr Andrew McIntosh
30The defendant relied on two reports by Dr Andrew McIntosh, an ergonomist, dated 29 July 2020 and 27 October 2020. Dr McIntosh is a Doctor of Philosophy (“PhD”) and he has completed formal traffic crash reconstruction training.
31In his report, dated 29 July 2020, Dr McIntosh writes:
“55.In my opinion, on balance, the nature and extent of these forces acting on the Plaintiff in the collision would not be capable of causing the alleged injury to Ms Mernone’s left hip.
56.The hip is a large and stable weight bearing joint. The hip joint can tolerate high forces being applied through it when it is within its normal range and function, e.g. jumping and landing.
57.Hip injury can occur in frontal motor vehicle collisions when the knee impacts against dashboard and applies high magnitude forces through the femur to the hip joint. The hip’s posture at this time, i.e. flexed to approximately 90° or abducted, contributes to the hip’s vulnerability.
58.The loading of the hip via a knee impact may give rise to the conditions necessary to cause a labral tear. However, these types of loads are considered to be more likely to cause a posterior labral tear not an anterior tear as per the Plaintiff (paragraphs 17 and 18):
‘Posterior tears in the Western world occur mainly with discrete episodes of trauma, when a load impacts the femur, driving the femoral head posterior, transferring shear and compressive forces to the posterior labrum.’
59Labral tears occur in the sporting context, activities of daily living, crashes, as part of the ageing process and degenerative conditions:
‘Previous studies indicate that the acetabular labrum tear is a common finding in the aging adult hip and may occur as part of the degeneration process. Acetabular labrum tears have also been associated with posterior dislocation of the hip and acetabular dysplasia. There have also been several studies linking acetabular labrum tears to trauma. In these studies, although traumatic injuries ranged from a poorly defined incident occurring in a road traffic accident to a simple twisting injury, most were relatively minor injuries from running, twisting, slipping, and falling.’
60.For the Incident to have caused the Plaintiff’s left hip injury, a load pathway was required that provided sufficient load to the hip to cause ‘distortion’ or ‘impaction’ (compression) of the hip joint to the extent that it caused at least minor injury of the joint structure, e.g. ligaments, capsule, labrum and articular cartilage. A load that subluxed the hip joint, i.e. partial dislocation, is an example of a potential injury mechanism arising in a single impact incident which could account for the type of injury the Plaintiff suffered.
1. In my opinion, on balance, no such mechanism would have occurred in the Incident.”[10]
(Footnotes omitted.)
[10] Defendant’s Amended Court Book (“DCB”) 45-46. Citations omitted.
32Dr McIntosh goes on:
“61.I agree with Dr Owen’s comments regarding the absence of an injury mechanism associated with the Incident to account for the Plaintiff’s left hip condition and the likely degenerative nature of the condition. Within my expertise, the medical notes do not address alternative exposures that might have injured the Plaintiff’s hip and/or caused degeneration, e.g. recreational, sport or occupational incidents and exposures.”[11]
[11] DCB 46. Dr Owen’s opinion is discussed below.
33In his supplementary report, after reviewing the AAMI property damage claim file and medico-legal report of Dr John Owen dated 19 August 2020, Dr McIntosh opines:
“19.I have considered that the crash severity may have been greater than applied in section 6 of my 29 July 2020 report. However, this does not change the opinions expressed in section 7 of my 29 July 2020 report. As noted, I considered the influence of vehicle change in velocity up to 19 km/h on hip loading with regards to a knee rebound speed and potential impact speed (paragraphs 46 and 54).
20.My opinion regarding causation is consistent with Dr Owen’s opinion. Dr Owen reported on Dr/Mr Young’s opinion that Plaintiff’s left hip condition is related to a developmental abnormality.
…
4.The nature and extent of these forces acting on the Plaintiff in the collision would not have been capable of causing the alleged injury to Ms Mernone’s left hip.
i. This is consistent with the opinions expressed by Dr Owen.”[12]
[12]DCB 56-57
Dr John Owen
34The defendant tendered two medico-legal reports by Dr John Owen, a consultant orthopaedic surgeon, dated 26 September 2019 and 19 August 2020.
35In his report dated 26 September 2019, Dr Owen writes that he “cannot see the direct association clearly”[13] between the plaintiff’s left hip injury and the car accident on 7 July 2014.[14] He writes:
“… In trying to think of a mechanism of injury of a relatively low velocity impact such as this with a rear-end impact leaving the car drivable but no other injury to suggest an axial load to the hip it is hard to imagine how this can cause a problem in the labrum of the hip. The claimant thinks that her foot was on the footrest and that caused the problem in her hip. We know that significant deceleration forces can cause problems in the hip joint but it is usually an axial load causing damage at the back of the acetabulum rather than the front of the acetabulum as is in this case.
These problems in the hip joint such as the labral tear are generally thought to be degenerative. Therefore I think the association between the problems in the hip joint are more likely to be a degenerative process than a post-traumatic one. The intraoperative findings confirm that there are changes in the articular surface of the hip. These could be post traumatic or degenerative.
She has a very low BMI, and no obvious anatomical abnormalities reported that may predispose to early osteoarthritis. The pre operative MRI reports changes to the labrum, no changes of osteoarthritis except a cyst.
The loss of range of movement that she is experiencing is likely to be related to the degenerative problem in the hip.
[13]DCB 90
[14] DCB 90
On the basis of probabilities it is hard to rule out some association with the accident causing her arthritic hip to become symptomatic. The accident is unlikely to have caused the labral tear or caused her osteoarthritis, it probably has rendered her hip more symptomatic and therefore there is an association in that sense between the accident and her current symptoms.[15]
[15] DCB 90-91
36Dr Owen was also asked for his opinion as to whether or not there were any pre-existing or unrelated conditions which may wholly or partly account for the plaintiff’s symptoms. Dr Owen writes:
“I do not think there are any pre-existing conditions apart from subclinical osteoarthritis in the hip presumably at a very early and very mild stage. There does not seem to be any other major events certainly no other accident or problem that could be relevant to her symptoms.[16]
[16] DCB 91
37Dr Owen provided a supplementary medico-legal report, dated 19 August 2020, after reviewing medico-legal reports, radiology, treater medical reports, clinical records and documents relating to circumstances of the accident.[17] He writes:
“… in answer to your questions the causation of her left hip condition is firstly almost certainly not a result of the motor vehicle accident. One of the things that does worry me slightly in this claimant’s case is the fact that no-one has actually defined why this hip is irritable. It has had persisting effusions in it and this would need the exclusion of an inflammatory arthritis almost certainly before any major intervention was proposed.
This claimant has not been seen by a rheumatologist for example.
[17] Set out at DCB 104-105
We, having had the report from Dr Young, have now had thrown into the mix an underlying morphology problem in the hip. Dr Young is the only report that we have that records these abnormalities of hip dysplasia. In other words, this is an underlying developmental problem. Mr Young also thinks there is hypermobility in the hip. This is obviously a minority opinion but even so, it does seek to explain the persistence of symptoms and signs in the left hip on the basis of a developmental, not a post traumatic, abnormality.
The report of Dr McIntosh reinforces my opinion that it is almost impossible to understand how a relatively low speed low energy rear end collision could have had any impact on this claimant’s hip. It certainly would not have caused the underlying dysplasia or anterior labral problems. None of the opinions from Orthopaedic surgeons attempt to explain any mechanism of injury, merely the association of hip irritability and the accident. There are variations in findings on examination. There is no radiological evidence of injury nor the development of arthritis apart from an effusion.”[18]
[18] DCB 101
38His opinion is that there is “no justification for attributing her hip problems to the accident.”[19]
[19] DCB 103
Analysis
39The plaintiff was involved in a car accident on 7 July 2014 when the vehicle behind her failed to stop and went into the rear end of her car. The plaintiff did not attend a doctor after that accident until 14 July 2014, when she attended for a pre-arranged pregnancy ultrasound. The ultrasound demonstrated no foetal heartbeat. She underwent a curette for a miscarriage on 18 July 2014 at The Royal Women’s Hospital.
40On 25 July 2014, the plaintiff was reviewed by Dr Sridevi Naidu, a GP, who noted lower abdominal discomfort. On 31 July 2014, she saw Dr Naidu again for unrelated reasons. There was no mention, on that occasion, of pain or discomfort in the hip, back or abdomen.
41On 1 August 2014, the plaintiff made a police report. The police report notes:
“D1 (driver 1) trav S (south) Epsom Rd, Kens, near Market Street. V1 (vehicle 1) stationary when V2 (vehicle 2) collided with rear of V1 stopped in traffic. D1 injured. D2 not injured. V1 moderate damage. V2 moderate damage.”[20] On 2 August 2014, the plaintiff logged an accident report with the defendant. The description of the incident is recorded as follows:
“At approx 1845 hrs on 7/7/14 Veh 1 was stopped in traffic heading south on Epsom Rd near Market St. Kensington, Veh 2 was travelling south on Epsom Rd and collided with the rear of Veh 1, which was stopped in traffic. The collision caused moderate damage to the rear of Veh 1 and the front of Veh 2. No injuries to either party, however Driver of Veh 1 had an ultrasound on 14/7/14, which revealed that she had a miscarriage, which may have been caused by/related to the collision on the 7/7/14. Report made to Police by Driver 1 for TAC claim purposes.”[21]
[20]DCB 74
[21]DCB 14
42On 4 August 2014, a TAC claim form was completed by the plaintiff. The accident details were recorded as, “I was driving and everyone in front of me stopped and the guy behind me didn’t stop and ran into me”.[22] Injury details were recorded as “[h]urt right hand, sore back”.[23]
[22]PCB 126
[23]PCB 127
43On 8 August 2014, the plaintiff attended Dr Hiwa Sabir, a GP, who noted “LIF [left iliac fossa] tenderness for few weeks”,[24] and referred her for an ultrasound. Dr Sabir also noted “tender L GT [left greater trochanteric] area hips seem ok”.[25] I note here that the greater trochanteric is situated on the proximal and lateral side of the femur, just distal to the hip joint and neck of the femur.
[24]DCB 119
[25]DCB 119
44On 18 August 2014, Dr Naidu noted left hip pain “since the MVA”.[26] An x-ray on 29 August 2014 showed no abnormality. On that date, the plaintiff attended Dr Naidu, who noted that she complained of lower back pain “like a band across the back”,[27] sacroiliac joint discomfort and discomfort/tightness across the posterior aspect of the right thigh.
[26]DCB 119
[27]DCB 118
45On attendance at Dr Douglas Barkley, a GP, on 4 September 2014, there is no mention of hip pain. On 16 September 2014, Dr Sabir notes the plaintiff “looks stressedemotional, got worse since MVA with ongoing L hip L thigh pain,x ray ok”.[28] (sic)
[28]DCB 118
46In December 2014, the plaintiff became pregnant again, and many of her subsequent medical attendances related to that pregnancy.
47On 6 February 2015, Dr Sabir notes:
“L hip pain seeing chiro with some effect..tender mid L inguinal hernia no herniafelt tender L GT area,ROM (range of movement) hips ok..tender L5..adv see physio”.[29]
(sic)
[29]DCB 116
48On 12 May 2015, Dr Silberstein notes:
“MVA related
seeign [sic] physio sue gretel for low back but she feels neck ‘out’ and hips out”[30]
[30]DCB 114
49The plaintiff had premature rupture of membranes in May 2015 and spent a week in hospital, and proceeded to deliver by caesarean section on 18 August 2015.
50In the immediate aftermath of the birth, the plaintiff’s medical attendances largely related to antenatal care. On 12 October 2015, Dr Silberstein noted “hip area delayed = pregnant”[31] and “hip worse since accident”.[32]
[31]DCB 110
[32]DCB 111
51On 27 January 2016, the plaintiff was noted to have pain in the region of the left inguinal ligament.
52On 29 February 2016, Dr Silberstein noted the plaintiff had been diagnosed with a left-sided anterior labral tear.
53The dispute in this case is whether the plaintiff’s hip injuries were caused by the transport accident.
54The defendant says they could not have been caused by the accident. The plaintiff did not make any complaints of hip pain or injury during any of the several medical attendances she had after the accident and prior to lodging the TAC claim. She did not mention her hip in the police report. She did not mention her hip in her report to the TAC on 2 August 2014. She did not mention her hip in her TAC claim form dated 4 August, but did mention a sore back and hand. The first mention of any pain to a doctor is on 8 August 2014, when she complains of left iliac fossa pain. On that occasion, her hip is noted to be “ok”. The defendant submits that, if the plaintiff sustained an injury to her hip caused by the accident, one would expect to see signs or symptoms of hip injury prior to 8 August 2014, a month after the accident.
55The defendant relies on the opinion of Dr McIntosh, who assesses the likely speed of the collision as 15 to 20 kilometres per hour. On Dr McIntosh’s calculations, the change in velocity of the plaintiff’s vehicle would have been 11 to 16 kilometres per hour. There was no direct contact force applied to the hip, pelvis or knee and this resulted in no, or only trivial, forces acting through the lower limbs and hips, which were incapable of causing the injury. The defendant submits that Dr McIntosh’s report is the only evidence before the Court that analyses the circumstances of the accident, the nature of the forces involved in the accident, and the biomechanics of the accident.
56Dr Owen also considers the mechanism of injury. He is unable to see the direct association between the accident and the injury. He notes that:
“… significant deceleration forces can cause problems in the hip joint but it is usually an axial load causing damage at the back of the acetabulum rather than the front of the acetabulum as in this case.”[33]
[33]DCB 90
57Although, in his initial report, he accepted “some association” between the accident and the hip becoming symptomatic, in his subsequent report he opines that “the causation of her left hip condition is firstly almost certainly not a result of the motor vehicle accident”.[34] He then notes that there has been no diagnosis of why the hip is irritable, and suggests that inflammatory arthritis needs to be excluded. He notes Dr Young’s opinion that the hip demonstrates abnormalities associated with hip dysplasia, caused by an underlying development problem. While Dr Owen’s notes this is a “minority opinion”, he says it would explain the persistence of symptoms in the hip on the basis of a developmental, rather than traumatic, abnormality. Dr Owen is critical of the other orthopaedic opinions which do not attempt to explain the mechanism of injury, but merely the associating of hip irritability with the accident.
[34]DCB 101
58The defendant says that Dr Owen is the only doctor who has properly considered the mechanism of injury in light of the evidence about the forces at play during the accident. Accordingly, the defendant submits that the opinion of Dr McIntosh, in relation to the forces at play, combined with the opinion of Dr Owen that the mechanism of injury is inconsistent with the car accident, results in the plaintiff failing to establish that her injury was caused by the accident.
59The plaintiff criticises Dr McIntosh’s report, as he was requested to opine on the likely forces she was subject to during the accident, and whether these forces could have caused the “alleged injury” to her left hip. She says it is not clear what injury Dr McIntosh is considering. She submits that he has failed to consider whether the forces at play during the crash did, or could have, caused an aggravation of a pre-existing asymptomatic condition.
60In his first report, Dr McIntosh notes that the hip “is a large and stable weight bearing joint”[35] that can tolerate high forces “when it is within its normal range and function”.[36] He notes that hip injury can occur when the knee is impacted, but this did not occur in the plaintiff’s case and, in any event, where the mechanism of hip injury is through the knee, a posterior labral tear is more likely than an anterior tear, as seen in the plaintiff’s case.
[35]DCB 45
[36]DCB 45
61The plaintiff further criticises Dr McIntosh for not obtaining any instructions from her about the circumstances of the accident and relying on the driver of the second vehicle’s instructions that his speed was 15 to 20 kilometres per hour at the time of the collision. Dr McIntosh did not have available any photographs or repair documents of the plaintiff’s vehicle after the collision.
62In his second report, Dr McIntosh has available photographs of the damage to the second driver’s vehicle. He assesses the likely speed of the driver to be “closer to 20km/h than 15 km/h”.[37] He notes that the airbags did not deploy. Airbags do not deploy where the change in velocity of the impacted vehicle is up to the range of 15 to 18 kilometres per hour in a frontal impact. There is, according to Dr McIntosh, “general consensus” that airbags will deploy when the change in velocity is more than 30 kilometres per hour. There is a “grey area” between 20 kilometres per hour and 30 kilometres per hour where airbags may deploy in a frontal collision. The deployment of the airbags, as I understand from Dr McIntosh’s report, relates to the change in velocity, which is a lower speed than the driving speed. Therefore, if the second driver was driving at 20 kilometres per hour, the change in velocity that Dr McIntosh has assessed is 14.3 kilometres per hour, although he says that the change in velocity may have been slightly greater than that, with an upper limit of 16 kilometres per hour. This is largely based on the non-deployment of the airbags, although he notes that if the closing speed was more than 22 kilometres per hour, he would “expect to see more vehicle damage than described or in the photographs”.[38] [not checked]
[37]DCB 55
[38]DCB 56
63There are a number of uncertainties in this assessment. There is no explanation of what sort of damage Dr McIntosh would expect to see if the speed exceeded 22 kilometres per hour. There was no assessment of the damage to the plaintiff’s vehicle, nor any explanation as to what damage would be expected at various speeds and in the circumstances described. There is no information before me as to what driving speed would result in a change of velocity of up to 30 kilometres per hour, which could still result in no deployment of airbags. I do not know whether a vehicle driving at that greater speed would have resulted in different forces and what impact those forces would likely have had on the plaintiff’s body. The photographs of the second driver’s car show damage that is off centre. I do not know what, if any, difference, the angle of the impact would make on the forces at play on the body of the plaintiff during the incident.
64I accept Dr McIntosh’s expert opinion of the forces that would have been at play in the collision, if all the assumptions upon which he has relied were correct. I have insufficient evidence to conclude that those assumptions were correct. Dr McIntosh has not interviewed the plaintiff or observed the damage to her car, and it appears the primary basis for his calculation of the likely impact velocity is the instructions of the driver of the second vehicle.
65Dr McIntosh concludes his second report by saying:
“The nature and extent of these forces acting on the Plaintiff in the collision would not be capable of causing the alleged injury to Ms Mernone’s left hip”.[39]
[39]DCB 47
66I do not know what is meant by the “left hip condition” to which Dr McIntosh refers in other parts of his report. In his first report he says:
“For the incident to have caused the Plaintiff’s left hip injury, a load pathway was required that provided sufficient load to the hip to cause ‘distortion’ or ‘impaction’ (compression) of the hip joint to the extent that it caused at least minor injury of the joint structure, e.g. ligaments, capsule, labrum and articular cartilage”.[40]
[40]DCB 46
67It is not apparent that Dr McIntosh is qualified to express an opinion about medical causation and this appears to be a quote from an article about painful hip lesions in athletes.[41]
[41]Weaver CJ, Major NM, Garrett WE et al, “Femoral Head Osteochondral Lesions in Painful Hips in Athletes” (2002) 178 American Journal of Roentgenology 973-977.
68I am not satisfied that this establishes that the accident could not have been a cause of the injury to the plaintiff’ship, which she claims as an aggravation of an underlying and previously asymptomatic disorder. It appears Dr McIntosh’s opinion is primarily concerned with whether the forces could have caused the labral tear.
69Dr Owen considers that Dr McIntosh’s report reinforces his opinion that “it is almost impossible to understand how a relatively low speed low energy rear end collision could have had any impact on this claimant’s hip”.[42] He initially accepted “some association” between the hip becoming symptomatic and the vehicle collision, but revised this opinion in the context of Dr McIntosh’s report about the likely forces at play. Given my findings in relation to the limitations of Dr McIntosh’s opinion, Dr Owen’s revised opinion must also be treated with caution.
[42]DCB 101
70Dr Flynn considers the mechanism of injury does support a finding that the incident caused an aggravation of an underlying condition, though she did not consider it likely that it caused the labral tear itself.
71The defendant criticised the other experts for failing to grapple with the mechanism of injury. In the context of a serious injury application. the primary issue for the Court to determine is whether there is a compensable injury that meets the relevant threshold. None of the experts were cross-examined on their opinions, a forensic decision made by both parties which was appropriate in circumstances where the application is a gateway provision,[43] and where parties have obligations pursuant to the Civil Procedure Act 2010 to minimise costs.
[43] Acir v Frosster Pty Ltd [2009] VSC 454
72The Court must examine the whole of the evidence to determine whether there is such a compensable injury. In this case, I am not persuaded that the reasoning of Dr McIntosh excludes the accident as a cause of the injury. Dr Owen’s initial report considered there was a temporary aggravation of an underlying injury, but given the plaintiff’s ongoing symptoms, it is not clear why the aggravation was only temporary, or how, and when, it is said to have resolved.
73There is no evidence that the plaintiff had any hip symptoms prior to the accident and though it is conceded that the accident likely did not cause the labral tear, there is considerable expert evidence that the accident was the cause of the hip becoming symptomatic.
74I note that the plaintiff first complained of left iliac fossa pain on 8 August 2014 and specifically of left hip pain on 18 August 2014, on both occasions noting the pain had been there since the accident. She was not cross-examined on her affidavit material and there is no reason to doubt her evidence that she initially confused the pain she was feeling with the consequences of her miscarriage. It was only some weeks after the accident that the pain was localised to the hip.
75I am satisfied that there is sufficient evidence to support a conclusion that the accident caused serious long-term impairment to the function of the left hip. Accordingly, the plaintiff is granted leave to commence proceedings for common law damages.
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