Mullens v Transport Accident Commission
[2022] VCC 1894
•4 November 2022
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01192
| DEBBIE MULLENS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2 November 2022 and 3 November 2022 | |
DATE OF JUDGMENT: | Oral Judgment 4 November 2022 (Revised 8 November 2022) | |
CASE MAY BE CITED AS: | Mullens v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1894 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – Motor vehicle accident – Right knee injury – Underlying osteoarthritis – Whether claimed impairment consequences can be separated from consequences attributable to left knee injury – Whether impairment consequences rise to sufficient degree – Loss of ability to work normal hours and overtime – Loss of functional capacity to perform tasks normally – Inability to perform home renovation work
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Dressing v Porter [2006] VSCA 215; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
Judgment: Application granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Jurica with Ms N Crowe | Slater & Gordon |
| For the Defendant | Mr P Jens KC with Ms K Karadimas | Transport Accident Commission |
HIS HONOUR:[1]
[1]The footnotes of the Plaintiff’s Court Book in this document refer to the pagination on the hard copy version tendered at the hearing
1Debbie Mullens was born in 1959. She is now almost 63 years of age. She has known hard work in her life. She finished school at the Year 10 level in Queensland and worked as a farm labourer, an abattoir worker, cleaner, cook, and at bars. By the time she was in her early 30s, she had four children under her care and was living in a tent, having separated from her first husband.[2]
[2] Transcript (“T”) 67, Line (“L”) 24-27
2In 2012, she and her second husband relocated from Queensland to Stawell, Victoria. Since at least that time she has had bilateral knee problems stemming from osteoarthritis. That did not stop her embarking on training to become a personal care attendant in aged care and then to commence her formal training to become a registered nurse. She is hopeful of qualifying next year as a registered nurse.
3On 7 May 2019 she was driving when she came across a crashed B-double trailer. She pulled over to assist. She was near the crash barrier when another approaching truck careened into the stationary B-double. This pushed the trailer towards her. She was thrown back over the barrier and her right knee was caught and twisted in the barrier.[3] She was immediately in pain with burning and numbness in her lower right leg. She was taken to Wimmera hospital overnight, released the next day, and had two whole weeks off work.
[3] Plaintiff’s Court Book (“PCB”) 11, at paragraph [12]
4She returned to modified duties work but had ongoing problems in the right knee. She saw her long-time orthopaedic surgeon, Mr Dillon. MRI revealed a complete medial collateral ligament rupture.[4] She was placed in a hinge brace for about seven weeks and worked part-time modified duties.
[4] PCB 63
5She managed to increase her hours and duties towards the end of 2019 but had ongoing pain and problems. MRI in November 2019 showed a tear of the anterior horn of the right lateral meniscus with effusion and diffuse synovitis. No further surgery has been performed or recommended by Mr Dillon.
6Pausing there, Ms Mullens claims that the pain and suffering consequences of her right knee injury satisfy the criteria of being a serious injury within section 93 of the Transport Accident Act 1986 (Vic). That injury to the right knee is both the aggravation of the underlying osteoarthritis and the frank musculoligamentous injuries. She abandoned any reliance on injury to the left knee or psychiatric injury. The Defendant conceded that there is an ongoing compensable injury to the right knee. This much could not be disputed given the opinions of Mr Miller and Mr Saxby.
7The Defendant raised three arguments against a determination of serious injury. First, that the alleged pain and suffering consequences arising from the motor vehicle accident could not be separated from the underlying osteoarthritic consequences in the sense of this being an aggravation injury in accordance with the principles of Petkovski v Galletti.[5]
[5] [1994] 1 VR 436
8Second, that the claimed impairment consequences cannot be properly separated from the consequences attributable to the left knee - see Dressing v Porter.[6] Third, that the impairment consequences, so isolated after the preceding two steps, do not rise to the level necessary to qualify for determination of serious injury, see generally Peak Engineering Pty Ltd v McKenzie (“Peak v McKenzie”).[7]
[6] [2006] VSCA 215 at [47]
[7] [2014] VSCA 67
9I reject these arguments. Dealing with an overall assessment of Ms Mullens’ evidence, I found her to be an honest witness. She answered directly and tried to be helpful. She conceded readily when historical clinical notes were put to her. She did not shy away from the Defendant’s thrust in cross-examination that her left knee was problematic before the motor vehicle accident and that she had some right knee osteoarthritic problems. Those repeated concessions stand to her credit.
10She gave, I consider, a logical and obviously honest response that, even though she had these problems, she worked through them full-time with her left knee problem, and she had to do so in order to make a living. I accept her as an honest and hardworking person who tried her best when giving her evidence. It was put that some of the impairment consequences were improperly allocated to the right knee when, in fact, are the result of the left knee or underlying osteoarthritic change bilaterally.
11Such items were said to be bike riding, walking, driving, and her general work duties. I do not accept these on the whole and will deal with them separately when I come to assess impairment consequences individually. But I do note here that I did not consider these matters raised in cross-examination impacted her credit or made her evidence unreliable in total.
12Turning, then, to the Defendant's first argument that the transport accident-related injury impairment consequences could not be properly separated from the underlying osteoarthritis and its sequelae. This calls for an assessment of the pre-existing state of Ms Mullens prior to the date of injury. She had osteoarthritis in both knees. This first seems to have become problematic in about 2013 when she first saw Mr Nelson, an orthopaedic specialist. These problems were mainly to do with her left knee.[8]
[8] PCB 52
13Some medication and weight loss assisted her. No surgery was required, however. She worked on full-time in aged care. She had an active life, enjoying cycling and walking at that stage, I find. However, in 2014 her left knee became more troublesome and she saw Mr Nelson during 2015. It was suggested she had not been frank about these problems prior to 2015. However, I find that while she might not have remembered specific dates for MRIs and the like, she clearly disclosed these worsening left knee symptoms.[9]
[9] PCB 10, at paragraph [8]
14It was also suggested to Ms Mullens that the left knee symptoms persisted despite the arthroscopic procedure performed by Mr Dillon in February 2015. This was on the basis that in cross-examination she gave evidence that at around this time she decreased her bicycle riding and her long distance walking. It was put to her that while her Affidavit suggested she cycled and walked consistently until the May 2019 motor vehicle accident, in fact, she had reduced these recreational pastimes significantly by mid-2015 on account of the left knee problems.
15I accept that her Affidavit does mislead in regard to these two matters, but I do not consider this to taint her evidence overall. This is because during this period, she, (1), recovered well from surgery, (2), returned to work as per usual,[10] (3), there was no evidence from her doctors that from 2015 to about February 2018 suggesting significant ongoing left knee problems,[11] and, (4), Mr Dillon was consulted with worsening left knee pain only in February 2019.
[10] PCB 59
[11] PCB 61
16In addition, the Plaintiff was working full-time, as I have said, as a personal care attendant during this period. This is work of a physical nature. This supports the proposition that the bilateral knee symptoms were not as severe as the Defendant suggests.
17She accepted that from 2018 onwards she had night-time discomfort. I accept based on Mr Dillon's report of February 2019[12] that she often took paracetamol, and on rare occasions Endep. When pressed about difficulties at work, she said, and I quote, 'I just got on with it.'[13]
[12] Ibid
[13] T25, L18; T30, L20-21; T39, L9
18Overall, then, I find that by the time of the motor vehicle accident on 7 May 2019 she had longstanding osteoarthritis of both knees. The left knee was worse and had required arthroscopic investigation. That had assisted her greatly, but by early 2019, problems had worsened in that left knee. This had kept her away from recreational walking and cycling, but she had retained the ability to work full duties as a personal care attendant and to continue her training at this stage as a nurse.
19As Mr Dillon noted, she could work 8 hour shifts. This stands as a strong indicator of her capacity and supports her evidence given in cross-examination that she would just get on with things. She had good range of motion, I find, in the right knee, and there was no need for surgery.[14] Her right knee did not limit her to any great extent and required no medication or management, I find.
[14] PCB 61
20Turning to assess the right knee injury sustained in the motor vehicle accident. This was a right knee MCL complete rupture. I find there continues to be ongoing evidence of laxity and instability in the musculoligamentous structures.[15] This is clearly delineated from any pre-existing osteoarthritis. In addition, it is accepted that there has been an aggravation of her underlying osteoarthritic change. See Mr Miller and Dr Saxby.
[15] PCB 71; PCB 125
21I pause here to also comment on the submission made by Defendant's counsel as to the fact that Mr Kossman combined both the right and left knees in his assessment. I would reject that submission and I note that Mr Kossman very clearly sets out the symptoms related specifically to the right knee.[16] Returning then to the symptoms which demonstrate the aggravation of her underlying osteoarthritic change and the problems which stem from the ongoing musculoligamentous changes about the right knee.
[16] PCB 122
22I will start by identifying the impairment consequences Ms Mullens allegedly suffers from. I will then make findings as to what consequences are attributable to the right knee injury.
23Work: Ms Mullens is now able to only work reduced hours. The state of the evidence is incontrovertible about this. Dr Slesenger is unchallenged as the occupational expert in this case. He opines that Ms Mullens now should only work 40 hours per fortnight. Previously, that is, prior to May 2019, she worked in the range of 60 to 80 hours per fortnight and took overtime when she could.
24Now, as a matter of fact, she works about 48 hours per fortnight. I find this reduction in her work capacity is due to her right knee injury. This is because, (1), her work history is solid and shows a strong desire to work and be independent rather than malinger in any way, (2), historically she worked on full time and full duties work, even with her worsening left knee problems, (3), she did not, prior to May 2019, reduce her hours because of any right knee osteoarthritis.
25I find this reduction, then, in her capacity to work to be substantial. At a minimum, it is a loss of 12 hours per fortnight. Additionally, she gave evidence, which I accept, that she has had to modify her work duties now to assume less physical work which requires less time on her feet. She gave evidence of not being able to cope with three 12 hour shifts and having to quit that position and move to a much smaller facility where she was not working such hours.
26She also gave evidence about her nurse placement at the Kilmore Hospital. It was suggested to her in cross‑examination that she was well able to manage, although as a trainee nurse. However, her evidence was that at one time she was only required to treat two patients, and she had to sit a lot of the time to write care plans. In fact, she gave evidence that her nurse supervisor would often tell her to rest at the nurses' station to look at care plans and rest her leg.
27This is strong evidence of a substantial alternation in her capability to perform functional tasks normally. I find that this is a substantial change in her occupational capacity. I find, based on the evidence of Dr Miller and Dr Slesenger, this is attributable to her right knee injury. I consider this is a substantial impairment consequence.
28During these last few years, it must also be noted that Ms Mullens has continued to train in the hope of completing her training to become a registered nurse. The fact that she has worked to support herself and studied to further herself stands to her credit and bolsters my finding that the impact on her work functionality and capability is significant, because she clearly has the determination to succeed at work and is not held back by those limitations.
29The next impairment consequence is that Ms Mullens walks with a limp since the motor vehicle accident.[17] She cannot remain on her feet walking or standing for long periods. While it seems true that her walking and standing tolerances were impacted by the left knee issues from certainly 2018, the limp I find derives as a direct consequence of the motor vehicle accident.
[17] PCB 13, at paragraph [27]; PCB 121; PCB 138
30This can be seen clearly when regard is had to Mr Dillon's report of 22 February 2019 preceding the motor vehicle accident. It reports a normal gait. After the motor vehicle accident, the position is entirely different. I find that the motor vehicle accident significantly has worsened her standing and walking tolerances.[18]
[18] PCB 19, at paragraph [14]
31In addition, as I noted, there is ongoing laxity and instability. She gave evidence that at times the knee can give way. The next impairment consequence relied on is the inability of Ms Mullens to renovate her home at Yaapeet. The evidence is she bought this home prior to the motor vehicle accident and was planning on doing the renovation herself. I consider it telling that she bought this home with the intention to self-renovate, as it demonstrates her clear belief and plan that she could renovate it from a physical standpoint.
32She had previous home renovation experience and there is no reason to consider that she would not normally, but for the 2019 motor vehicle accident, be unable to complete this renovation work. Her evidence is that she cannot do this renovation work because of the right knee injury. She gave moving evidence of the importance for one of the first times in her life of having her own place. It was obviously a project of her dreams and hopes, a place she wanted to retire to. It was put that a woman of her age and with her left knee problems would never have embarked on such a project.
33I reject that submission given her past work history, which demonstrates real drive and determination to achieve her aims. I find that her inability to complete the renovation on the Yaapeet home is because of the right knee injury and sustained in the motor vehicle accident.[19] Turning to assess her pain consequences, prior to the motor vehicle accident, she had been taking paracetamol and occasional Endep.[20]
[19] PCB 13, at paragraphs [27]-[28]
[20] PCB 61
34When she saw Mr Dillon in February 2019, he had prescribed one month of Tramadol, which the Plaintiff gave evidence she did not take because it affected her work. After the motor vehicle accident and presently, she takes Panadol, occasionally Tramadol and Celebrex.[21] She now takes the Tramadol if she is not working and it will not impact her work, such is her pain. I find that the right knee pain stemming from the motor vehicle accident is constant to the point where consistent use of pain medication is required to maintain function and capability.
[21] PCB 135; PCB 17 at paragraph [7]
35The additional use of Tramadol and Celebrex is evidence of the worsening of her pain since the motor vehicle accident to a substantial degree. The Defendant submitted that Ms Mullens' driving had not been affected by her right knee injury because it was her left knee that had resulted in her changing to an automatic car and requiring constant breaks in her trips.
36I accept the Defendant’s arguments as to the change from a manual to an automatic vehicle being unrelated to her right knee. This much was conceded in cross-examination. However, as set out above in my findings related to her worsening pain and the ongoing musculoligamentous injury associated with the right knee injury, I do find that she needs longer and more frequent breaks when driving now than prior to the motor vehicle accident on account of the right knee injury. These matters, then, are enough to answer the Defendant's submission based on Peak v McKenzie as to what degree is Ms Mullens disabled.
37The answer can be summarised into the following points that demonstrate more than considerable or marked pain and suffering consequences: (a), a loss of the ability to work anything like normal hours and overtime, (b), a loss of functional capacity to perform work tasks normally, which involve prolonged walking, standing or heavy lifting not easily avoided tasks in personal carer work on nursing work, (c), an inability to perform home renovation work, (d), ongoing pain for right knee problems requiring constant medication, (e), a changed physical state with lax and unstable MCL and effusion, giving way of the knee on occasions, a resultant limp and difficulty with stairs and uneven ground.
38For these reasons I determine that Ms Mullens has sustained a serious injury to her right knee in the motor vehicle accident on 7 May 2019.
0
2
1