Mourkakos v Transport Accident Commission
[2012] VCC 1328
•17 September 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06147
| MARIANTHI MOURKAKOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 10 and 11 September 2012 | |
DATE OF JUDGMENT: | 17 September 2012 (Revised) | |
CASE MAY BE CITED AS: | Mourkakos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1328 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Transport accident - plaintiff suffered multiple injuries - all injuries are potentially an aggravation of pre-existing medical conditions - whether any of the injuries had consequences which met the statutory tests
LEGISLATION: Transport Accident Act 1986, s93(4)(b)
CASES CITED: Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd [2012] VSCA 60
JUDGMENT: The plaintiff has leave to bring a proceeding at common law to recover damages for the claimed injuries
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Ms A Malpas | Zaparas Lawyers |
| For the Defendant | Mr R Meldrum QC with Mr S Jurica | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 22 December 2010 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 16 January 2006.
2 Mr V Morfuni SC appeared with Mr A Malpas of Counsel for the plaintiff and Mr R Meldrum QC appeared with Mr S Jurica of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under sub‑s(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under sub‑s(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the neck, left shoulder, right knee, and for a psychiatric injury.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined
· Dr Piperoglou, psychiatrist, gave evidence and was cross-examined
· Dr Ng, general practitioner, gave evidence and was cross-examined
· Panagiotis Mourkakos gave evidence and was cross-examined
· Vassiliki Tsiotas gave evidence and was cross-examined
· The plaintiff tendered her Court Book (“PCB”) pages 1-25f and 31-117: Exhibit A
· The defendant tendered a Transport Accident Commission occupational therapy report dated 21 January 2010: Exhibit 1
· The defendant tendered the clinical notes of Dr Piperoglou, psychiatrist: Exhibit 2
· The defendant tendered one page of the clinical notes of Southern Health, Mental Health Services: Exhibit 3
· The defendant tendered the clinical notes of Dr Ng: Exhibit 4
· The defendant tendered extracts from the clinical notes of Dr Ng: Exhibit 5
· The defendant tendered its Court Book (“DCB”) pages 1-44: Exhibit 6.
Foreword
7 Mr Morfuni opened the plaintiff's case on the footing that the plaintiff suffered an aggravation of a pre-existing psychiatric condition, and injuries to her neck, left shoulder and right knee in the relevant transport accident. He submitted that one, or some of them, met the relevant statutory test.
8 After reviewing the evidence of the witnesses who gave oral evidence, the documents which the plaintiff and the defendant tendered and the references to the transcript to which I was taken by Mr Morfuni and Mr Meldrum, I concluded that the best approach in this proceeding was to determine which of the injuries was more likely than the others to amount to a “serious injury”.
9 In short, I am not persuaded that the aggravation of the pre-existing psychiatric condition meets the statutory test. Nor am I persuaded in that regard with respect to the injuries to the neck and the left shoulder.
10 In the end, I consider that the injury which was more likely to meet the statutory test is the injury to the plaintiff's right knee.
The Right Knee
11 On 16 January 2006, the plaintiff was a front seat passenger in a car driven by her husband. A four-wheel drive car came from a side street through a stop sign and then collided into the car in which the plaintiff was a passenger.[1]
[1]PCB 15
12 An ambulance was called to the scene of the transport accident. An ambulance officer completed a form. The writing on the form discloses, among other things, a note of “bruises + pain to the R knee”. The form has an outline of the human body with a front and rear view. On the front view the ambulance officer shaded in an area just above and just below the right knee to demonstrate the area of the bruising and pain to the plaintiff's right knee.[2]
[2]PCB 107b
13 In her first affidavit sworn 6 April 2010, the plaintiff said that immediately following the occurrence of the transport accident she “… was aware of pain … in the right knee”.[3] She was taken to the Monash Hospital, where she was admitted. An x-ray was taken of her right knee on 16 January 2006. The radiologist reported that no abnormality was seen on the x-ray. I infer from the fact that an x-ray was taken that the medical practitioners who treated the plaintiff at the hospital considered the plaintiff’s right knee injury warranted that level of investigation.[4] The plaintiff was discharged on 16 January 2006 into the care of her own general practitioner.
[3]PCB 15
[4]PCB 98
14 The plaintiff saw Dr Ng on 17 January 2006. He noted, among other things, “MCA passenger on 16/1”. The plaintiff saw him again on 24 January 2006. He noted, among other things, “…bruising below R knee…”.[5]Dr Ng’s handwritten clinical notes are very difficult to decipher. By 9 November 2006, Dr Ng recorded occasions when he saw the plaintiff in type. As far as I can tell from the handwritten clinical notes between 25 January 2006 and 9 November 2006, there are no notes relevant to the plaintiff's right knee.
[5]Exhibit 5 at page 3
15 On 27 February 2007, Dr Ng recorded the following history: “Involved in MCA 16/6/6. Sore knees since?...”. Later in the same note, he recorded: “Trialled Voltaren cream for sore neck since MCA – pt tried for knees - helped.” Dr Ng examined the plaintiff and noted “alert, not distressed, ambulatory without major discomfort, medial aspect of both knees - no major tenderness, mid-tibias - slightly tender, no calf tenderness”.[6]
[6]Exhibit 4 at page 7
16 Dr Ng referred the plaintiff to have an x-ray of both knees, which was taken on 13 April 2007. The radiologist prepared a report dated 14 April 2007 in which he referred to a reduction of the medial compartment joint space seen on both sides, but otherwise considered that there was no significant bone abnormality which could be identified.[7] Dr Ng referred to the x-ray in his clinical note dated 19 April 2007 and to the reduction of the medial compartment.[8]
[7]PCB 103
[8]Exhibit 4 at page 8
17 The next clinical note which refers to the plaintiff's right knee is 30 April 2009. The relevant part of it reads “x ray of r knee report noted early OA rx Mobic 7.5 repeat Mersyndol F for headache and pain.”[9]It is unclear to me whether there was a subsequent x-ray or Dr Ng was referring to the x-ray taken on 13 April 2009 in which the radiologist referred to the appearance of medial compartment osteoarthritis. In any event, Dr Ng prescribed the plaintiff Mobic, which is an anti-inflammatory, for treatment of her right knee pain. I infer that the balance of the note is not relevant to the plaintiff's right knee, but for headache and pain unrelated to her right knee.[10]
[9]Exhibit 4 at page 12
[10]Exhibit 4/12
18 The next clinical note which refers to the plaintiff's right knee is 18 January 2011. The relevant part of it reads “… also painful r knee with extension to involvement of r foot…”. Later in the same note there is a reference to a referral to Mr Pirpiris, orthopaedic surgeon.[11]
[11]Exhibit 4/16
19 Mr Pirpiris first saw the plaintiff on 25 February 2011. He was asked by Dr Ng to review the plaintiff relevant to generalised spinal pain affecting her neck and lower back, with radiation of pain in the left upper limb and right lower limb. Mr Pirpiris also examined the plaintiff’s right knee and found:
“Ms Mourkakos also complained of clunking in her right knee with intermittent catching. She complained of pain in the right knee. The pain was associated with the catching sensation. She had a range of motion in the right knee of 0-120° with significant tenderness over the medial joint line of the right knee."[12]
[12]PCB 66
20 Mr Pirpiris referred the plaintiff to have an MRI scan, which was taken on 16 March 2011 for her neck and right knee.[13] He agreed with the radiologist's conclusions, which were as follows:
“Small radial tear of the free edge of the body of the lateral meniscus. Full thickness chondral fissuring of the lateral patellar cartilage associated with mild subchondral bone marrow oedema at the median eminence."[14]
[13]PCB 106-107
[14]PCB 107 and Mr Pirpiris’s report at PCB 66
21 He then expressed the following opinion:
“In terms of the right knee, she does have meniscal pathology in her knee. There is also a degree of underlying chondropathology. One could argue that as the knee was asymptomatic prior to the accident and has caused significant symptoms subsequent to the accident, the accident may have contributed to an exacerbation of any underlying meniscal degeneration, or may have contributed to the tears present in the menisci."[15]
[15]PCB 68
22 The solicitor for the plaintiff was concerned to have Mr Pirpiris address the question of causation of the pathology in the right knee demonstrated on the MRI scan. In that connection, he said:
“The ability of a car accident to cause a meniscal tear in the knee once again depends on the amount of energy transfer at the time of the accident to the knee itself and one would be guided by the Police or Ambulance Report at the time. It would require a fairly significant intrusion to the car. Should this be the case, and should her symptoms not have been pre-existing, then a case may be made that some of the symptoms may be related to the accident itself. There is also a degree of degenerative change within the knee joint so the situation is a little complex."[16]
[16]PCB 71. Mr Pirpiris gave that opinion in January 2012
23 What is clear from the foregoing is that the plaintiff did suffer a direct blow to her right knee in the transport accident. The ambulance report contains a history that there had been such a direct blow.
24 There is a contemporaneous record of investigation of the plaintiff's right knee at the Monash Hospital, and a note made by Dr Ng in his clinical notes of bruising to the right knee on the occasion when the plaintiff saw him on 24 January 2006. There are then occasions when the plaintiff reported persisting pain in her right knee to Dr Ng which I have referred to in paragraphs 14 to 18 above.
25 In addition to the foregoing, the plaintiff was referred to Mr Grossbard, orthopaedic surgeon, on a medico-legal basis. The plaintiff saw him on 7 April 2009. He obtained the following history from her relevant to her right knee, as follows:
“This lady has continued to have pain affecting the right knee. It is particularly noticeable going down stairs but there is no swelling or locking of the knee. The pain comes on as sharp, sudden episodes. She has had no treatment for her knee at this stage and denies any previous knee problem."[17]
[17]PCB 73
26 Dr Grossbard examined the plaintiff and found the following:
“Her knee was of normal appearance with no muscle wasting, no knee joint effusion and the knee was stable. Her range of movement was from 0-130°. She was tender to palpate on the medial and lateral joint lines on both the right and left sides but there was considerable patello-femoral irritability on the right side only."[18]
[18]PCB 74
27 Mr Grossbard was of the opinion that the injury to the plaintiff’s right knee was due to a direct blow and that her symptoms were largely of a patello-femoral nature. Mr Grossbard did not have the benefit of the ambulance report, Dr Ng's clinical notes, any radiological imaging, nor the opinion of Mr Pirpiris. His opinion is of importance, because it is confirmation that the plaintiff did suffer an injury to her right knee.
28 That brings me to the opinion of Mr Pirpiris. It is clear that he had some doubts about causation, which he considered could be satisfied by reference to the ambulance report and Dr Ng’s clinical notes. I have summarised the content of the ambulance report and Dr Ng's clinical notes, which demonstrate very clearly that the plaintiff suffered a direct blow to her right knee which resulted in bruising, and that subsequently, she continued to complain of pain in her right knee, for which he obtained treatment from Dr Ng, and such was its persistence that Dr Ng finally referred her to Mr Pirpiris for his specialist opinion.
29 The inference I draw is that Mr Pirpiris would more readily accept that the pathology found on the MRI scan is more likely than not to have occurred as a result of the transport accident if there was a direct blow to the knee. It would appear, before he specifically addressed the question of causation, that he had concluded that the plaintiff had suffered right knee meniscal tearing and chondropathology which was causing her significant pain and interference with her capacity to function effectively. He considered that she might have symptoms into the future “for a protracted period of time”.[19]
[19]PCB 68-70
30 In her first affidavit sworn 6 April 2010, the plaintiff said that she continued to experience discomfort in her right knee and swelling several times a week, which would last until she was able to get off her feet for a few hours. The plaintiff also stated when she wakes up she is aware of pain in her right knee.[20] In her second affidavit sworn 24 January 2012, she repeated that she experiences pain and swelling in her right knee which fluctuates in severity. It is aggravated by everyday activities such as standing or walking for prolonged periods. She suffers an increase in pain when she walks up or down stairs or steps. The pain is worse at night and affects her sleep. She is aware of a clunking in her right knee. Her capacity to walk is now limited. She referred to one occasion in early 2011 when she went to her church. She stood from a seated position and was met by severe pain in her knee.[21]
[20]PCB 18 and 20
[21]PCB 24
31 The foregoing evidence of the plaintiff of the consequences which she directly associates with the injury to her right knee appear to me to be in keeping with the history she gave to Dr Ng, Mr Pirpiris and Mr Grossbard.
32 The plaintiff was subsequently referred to a number of specialists who examined her on a medico-legal basis. She was examined by Mr Flanc, vascular and general surgeon, on 20 April 2011 and 1 February 2012. On the second occasion he examined the plaintiff, he had been provided practically all of the radiological imaging, medical reports and clinical notes.[22] He obtained a history from the plaintiff that she suffered pain on walking and climbing stairs, which is consistent with some of the matters referred to by the plaintiff in her second affidavit. In relation to whether the relevant transport accident caused the pathological changes seen on the MRI scan, he said:
“A severe direct blow to the knee could have aggravated the pre-existing degenerative condition of her knee, but whether the meniscal tears reported on the MRI scan could have resulted from that blow is difficult to say and requires the opinion of an expert in the field, in this case Mr Marinis Pirpiris.
On the balance of probabilities, it is likely that the disability of her right knee is significantly related to the motor car accident of 2006."[23]
[22]PCB 91-93, 96-97 and 97a
[23]PCB 97f
33 Mr Miller, orthopaedic surgeon, examined the plaintiff on 25 July 2012. He was also provided with practically all of the relevant radiological imaging, medical reports and clinical notes.[24] He obtained a history from the plaintiff that she had pain and discomfort in her knee, difficulty kneeling and squatting, and that she intermittently walked with a limp. On examination, he found a small effusion in the knee, patella-femoral joint crepitus, and pain on patellar compression. He then expressed the following opinion:
“She has suffered an injury to the right knee with probable aggravation of patello-femoral disease in the right knee, medial meniscal tear and chondro pathology in the knee. I believe the prognosis for the right knee is only fair."[25]
[24]PCB 97i and 97m-97n
[25]PCB 97o
34 Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 13 November 2008. He made no significant reference to the plaintiff's right knee injury.[26]
[26]DCB 1-3
35 Mr Dickens, orthopaedic surgeon, examined the plaintiff on 22 November 2010. He was provided with what he described as “enclosures”, but he did not say what they were. He obtained a history from the plaintiff that she had pain in her right knee when she bent at the knee. The pain was worse going up and down stairs. She experienced swelling. The right knee gave a feeling that it would give way and she noticed a click when the right knee did give way. She described her knee as being unstable. Mr Dickens found no abnormality at all on examination. He was of the opinion that she had suffered a soft-tissue injury to her right knee.[27]
[27]DCB 6, 8-9
36 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 8 December 2011. He obtained a very brief history that she complained of constant ongoing pain affecting her right knee. On examination, he found generalised tenderness of the right knee and a full range of movement. He was provided with the MRI scan of the right knee. He was of the opinion that the plaintiff had suffered what he described as “an impact type injury to the right knee”. He considered that such an injury involved soft-tissue bruising and may have involved damage to the articular surfaces of the patellofemoral joint. However, he could not explain the constant ongoing right knee pain nearly six years following the occurrence of the relevant transport accident, based on that sort of organic pathology. Otherwise, he considered that the plaintiff would note some ongoing intermittent pain in her right knee, and that she would not suffer any major functional difficulty with it.[28]
[28]DCB 31-34
Findings
37 Firstly, I find that the plaintiff suffered an impact-type injury to her right knee in the relevant transport accident which resulted in bruising noted by the attending ambulance officer and by Dr Ng.
38 Secondly, I find that the plaintiff continued to suffer from pain in her right knee from the time of the transport accident. Such is confirmed by the fact that she had x-rays at the Monash Hospital; x-rays on referral by Dr Ng; attendances on Dr Ng recording persisting problems; prescription of medication by Dr Ng, and examinations by Mr Grossbard, Mr Pirpiris, Mr Miller and Mr Dooley who were presented with a clinical picture which was consistent with the plaintiff having suffered an impact-type injury to her right knee.
39 Thirdly, it is clear enough that Dr Ng, Mr Grossbard, Mr Pirpiris, Mr Miller and Mr Dooley accept, although to varying degrees, that the pathology demonstrated on the MRI scan is consistent with pathology produced by the transport accident. The opinion of Dr Thomas is irrelevant, and I do not accept the opinion of Mr Dickens, because it is so out of keeping with the other medical evidence.
40 Fourthly, the evidence of the plaintiff contained in her affidavits, and also her oral evidence, are consistent with the consequences which one would expect to see following an injury to the right knee of the kind suffered by her. That is confirmed by the acceptance by Dr Ng, Mr Grossbard, Mr Pirpiris, Mr Miller and Mr Dooley of the question of causation, and in particular, by reason of the fact that none of them are critical of the plaintiff's complaints except perhaps Mr Dooley, who rather thinks that by now the plaintiff's symptoms should have resolved. It is clear that others disagree with him on that account.
41 Fifthly, I accept the plaintiff's evidence that she suffers pain in her right knee and the limitations with respect to her mobility which I have summarised in paragraph 30 above.
42 Sixthly, Mr Meldrum analysed the evidence predating the relevant transport accident and referred to occasions when the plaintiff had complained of bodily pain encompassing the whole of her body, and other complaints of pain of a distribution which I accept are unusual and very probably not having any particular organic source. However, I do not accept the submission insofar as it was put that the severe psychiatric illness which the plaintiff suffered both before and after the relevant transport accident have so obscured the consequences of the right knee injury, that it is not possible to determine what consequences are generated by her psychiatric illness, as opposed to the consequences of the impairment of the right knee.
43 Seventhly, I find that the plaintiff suffered an organic injury consistent with the opinion of Mr Pirpiris which has resulted in an impairment of the function of the plaintiff's right knee which is both long-term and serious. I find that the combination of the complaints which the plaintiff has made of pain; the treatment she has been provided by Dr Ng in the form of investigations of her right knee; the prescription of medication to treat her pain; the interference with her mobility and capacity to function physically; and with a relatively poor prognosis, satisfies the statutory test that the consequences to the plaintiff of the impairment of function of her right knee are “serious”.
44 I have not paid particular regard to the evidence of Mr Mourkakos (the plaintiff's husband), nor Ms Tsiotas (the plaintiff's daughter). I do not accept the criticism made of them by Mr Meldrum. I consider that they gave their evidence fairly, but perhaps with a tinge of bias in favour of the plaintiff. Their evidence was of a very general nature and was basically directed to the consequences produced by all of the plaintiff's injuries, and in particular, the psychiatric illness.
Afterword
45 It is unnecessary for me to consider whether the other injuries opened by Mr Morfuni amount to a serious injury. It is sufficient that if one injury constitutes an impairment of function with consequences which are serious, for the plaintiff to be granted leave to bring a proceeding at common law to recover damages.
Orders
46 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
47 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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