Pisani v Transport Accident Commission
[2014] VCC 462
•14 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03441
| JOSEPHINE PISANI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26 and 27 March 2014 | |
DATE OF JUDGMENT: | 14 April 2014 | |
CASE MAY BE CITED AS: | Pisani v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 462 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – transport accident – injury to the right knee – aggravation of pre-existing condition
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; Spiteri v Visyboard Pty Ltd [2005] VSCA 132; Dahl v Grice [1981] VR 513; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Bendix Mintex Pty Ltd and Ors v Barnes (1997) 42 NSWLR 307; Tabet v Gett (2010) 240 CLR 537; ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook (2009) 237 CLR 656; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; Roads and Traffic Authority v Royal & Anor (2008) 245 ALR 653; Pledge v Roads and Traffic Authority (2004) 205 ALR 56; Faulkner v Keffalinos (1971) 45 ALJR 80; Spence v Gomez [2006] VSCA 48
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms M Lang | Zaparas Lawyers |
| For the Defendant | Mr J Gorton SC with Ms G Cooper | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by her as a result of a transport accident which occurred on 11 March 2008. In the proceeding, the plaintiff relies upon two affidavits sworn by her, dated 25 May 2012 and 19 March 2014, together with affidavits sworn by each of her daughters.
2 In addition, the plaintiff gave viva voce evidence and was cross-examined. The plaintiff’s daughter, Margaret Pisani, also gave viva voce evidence and was cross-examined, as did Mr Justin Hunt, the plaintiff’s treating orthopaedic surgeon. Otherwise, the parties have relied upon a number of medical reports and medical and like records which they have tendered.
3 The injury and impairment of function relied upon by the plaintiff involves:
· A primary injury allegedly suffered by her to her right knee in the transport accident; and
· A secondary injury and resulting impairment to her left knee which it is alleged arises by reason of the need by the plaintiff to favour her right knee after the transport accident and thus causing an aggravation of the pre-existing degenerative condition in her left knee.
4 The defendant puts in issue:
· Firstly whether the transport accident was responsible for causing any aggravation to the underlying condition in either of the plaintiff’s knees; and
· Secondly if any such aggravation occurred, the severity of the consequences associated with such aggravation.
5 The plaintiff is forty-nine years of age. In January 2001, she sustained a lumbar disc injury and an emotional injury in the course of her then employment with Chiquita Mushroom Farm, where the plaintiff had been employed as a mushroom picker and process worker. The plaintiff has not worked since that date and has, for many years, been in receipt of Social Security benefits by reason of the incapacity associated with her psychological state.
6 For some years prior to the transport accident, the plaintiff had suffered from symptoms of pain in each of her knees. In March 2007, she was referred by her treating general practitioner, Dr Chris Clifopoulos, for assessment by the orthopaedic surgeon, Associate Professor Martin Richardson, in relation to the symptoms which she was experiencing in her right knee.
7 On 16 April 2007, the plaintiff was admitted to the Epworth Hospital upon presenting with symptoms of right knee pain with which she was not coping. In the course of that admission, the plaintiff underwent an MRI scan of her right knee which revealed the presence of mild joint effusion with mild degenerative change in the medial compartment of the knee and the presence of a radial tear of the posterior horn of the medial meniscus.
8 On 25 May 2007, the plaintiff underwent a right arthroscopy of the right knee undertaken by Associate Professor Richardson. In the course of that procedure, a partial medial meniscectomy was performed and Associate Professor Richardson observed the presence of Grade 2 and 3 chondromalacia patella in the medial compartment of the right knee.
9 On 26 July 2007, a CT scan of the right knee reported changes within the medial compartment of the knee involving almost complete cartilage loss with bone on bone articulation in the medial femoral condyle and the medial tibial plateau.
10 In the context of the history to which I have referred to above, it is beyond contention that well before the transport accident, the plaintiff suffered from an established degenerative condition in her right knee which was productive of symptoms of sufficient severity to require surgical management.
11 This is a complex case, the plaintiff presenting before that transport accident with a significant symptomatic degenerative condition in her right knee, and my obligation being to determine whether the consequences of any aggravation of that condition by the transport accident gives rise to a “serious injury” as defined by the Transport Accident Act.
12 Given the complexity of the case, I consider it appropriate that I set out in summary form my findings as to the effect which the transport accident had upon the evolution of the degenerative condition with which the plaintiff presented in her right knee, which are developed in the body of the reasons which follow, namely that I am satisfied:
(i) That, in the absence of any aggravation of her condition by the transport accident, the plaintiff presented with a significant degenerative condition in her right knee in respect of which, whilst it was probable that the plaintiff may eventually have required surgery in the form of a total knee replacement, the time frame within which the need for such surgery would have arisen was uncertain and there remained a possibility that the surgery may have been avoided;
(ii) That the nature of the force associated with the transport accident was such that it was likely to have exposed the degenerative condition present in her right knee to trauma capable of causing a considerable aggravation of that condition;
(iii) On the basis of:
· The content of the Northern Hospital record which revealed that the plaintiff presented following the accident with pain in and bruising of the right knee;
· The report made by the plaintiff to the plaintiff’s general practitioner, Dr Tunaley, some four weeks after the accident, that she had more pain in her knee following the car accident;
· The opinion expressed by plaintiff’s general practitioner, Dr Clifopoulos, who managed the plaintiff’s condition both before and after the subject accident, that the accident had aggravated the pre-existing condition in her right knee;
· The opinion expressed by the plaintiff’s treating surgeon, Mr Hunt, that the effect of the accident was to accelerate the degenerative process in the plaintiff’s right knee;
that the effect of the accident has been to exacerbate the pre-existing condition in the plaintiff’s right knee such as to accelerate the need for her to undergo the two surgical procedures which have been undertaken upon her right knee;[1]
[1]A right unicompartmental arthroplasty undertaken 20 May 2009, and a total right knee replacement, which was undertaken on 4 January 2014
(iv) That the effect of the transport accident was not only to bring forward the timing of the surgery, but that the plaintiff’s position with respect to that surgery was altered:
· From its pre-accident position, namely whilst it was probable that the plaintiff may eventually require knee replacement surgery on her right knee, the timeframe for the surgery was uncertain but critical, given the plaintiff’s relatively young age;
· To a position in which within five months of the transport accident, the plaintiff became a candidate for knee replacement surgery; underwent definitive surgery upon her right knee in 2009 and a total knee replacement in 2014, the outcome in respect of which has been poor, both as to the pain the plaintiff experiences and the level of disability which she has.
Reasons as to findings as to the effect which the transport accident had upon the evolution of the degenerative condition with which the plaintiff presented in her right knee.
Did the transport accident aggravate the degenerative condition in the plaintiff’s right knee?
(i) The approach to be taken in determining causation
13 I am satisfied that in deciding the issue which arises as to causation in this proceeding, I must examine all of the evidence which has been adduced by the parties and make findings on the basis of a reasoned analysis of the evidence as to the facts which I am satisfied the plaintiff has established on the balance of probabilities.
14 It is well established that proof by expert opinion is not required to establish the causal connection between an act and an injury.[2] In this respect, the appropriate approach to the analysis required was set out by the Victorian Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir,[3] wherein Tadgell JA stated:
[2]See Dahl v Grice [1981] VR 513
[3][1997] 1 VR 125
“… The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”
15 I am also guided by the approach taken by the High Court in Adelaide Stevedoring Co Ltd v Forst,[4] in which Rich ACJ, when commenting upon the factual circumstances of that case, said:
[4](1940) 64 CLR 538 at 563
“I am greatly impressed by the sequence of events. … I do not see why a court should not begin its investigation, ie before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sensed person uninstructed in pathology”
and MacTiernan J emphasised the impossibility of framing a formula to measure probability and the need to give due weight to the facts of the case as distinct from medical opinion.[5]
[5]See Adelaide Stevedoring Co Ltd v Forst (supra) at 573; see also Dahl v Grice (supra) and Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262
16 This approach to the analysis of causation is entirely consistent with that taken by the High Court in Tubemakers of Australia Ltd v Fernandez[6] and the New South Wales Court of Appeal in Bendix Mintex Pty Ltd and Ors v Barnes,[7] where Mason P, in discussing the approach the common law takes as to causation, said:
[6](1976) 10 ALR 303
[7](1997) 42 NSWLR 307 at 318
“… the trier of fact is entitled (indeed encouraged) to take a ‘robust and pragmatic approach’ to proof of causation. The inability to call lay or expert evidence that shows the precise way that something has happened is not fatal.”
17 Employing this approach to the analysis required of me, I bear in mind that whilst the plaintiff has the onus of satisfying me on the balance of probabilities that the conduct of the defendant was a cause of the injury suffered by her, the plaintiff need only establish that the transport accident materially contributed to the cause of her injury, and not that it was the sole cause of the injury.
18 In considering the issue of causation, I also bear in mind the fact that the analysis which is to be applied in determining whether causation has been established to the requisite legal standard, may well be different to that applied by a medical practitioner when considering causation in a medical setting, where immediate attention may be focussed upon an obvious precipitating cause and not events which materially contributed to the eventual outcome to a greater or lesser degree.
19 My approach to the analysis required on the issue of causation which arises in this case is further guided by the following authoritative statements:
· In Tabet v Gett,[8] Kiefel J observed:
[8](2010) 240 CLR 537
“The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”[9]
[9]at paragraph [11]
· In ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook,[10] the High Court observed that the field of debate in that proceeding, namely causation:
[10](2009) 237 CLR 656 at paragraph [14]
“… is one of the most difficult in the law, and one about which abstract discussion is seldom valuable for courts … .”[11]
[11]at paragraph [14]
· In the course of its judgment in that case, the Court referred to the judgment in March v E & MH Stramare Pty Ltd[12] and commented that a principal and uncontroversial point established by the Court in March was:
[12](1991) 171 CLR 506
“… the proposition that there can be multiple causes of the damage suffered by a plaintiff. Further, the context of the passage quoted from Mason CJ’s reasons for judgment in March v Stramare reveals that Mason CJ was concerned merely to reject the ‘but for’ test as an exclusive criterion of causation. … ;”[13]
[13]at paragraph [27]
and confirmed that the relevant test with respect to causation is that as stated by the Court in Wardley Australia Ltd v State of Western Australia,[14] namely:
[14](1992) 175 CLR 514
“… a test of causation whereby it was a question of fact to be answered by reference to commonsense and experience, and one into which considerations of policy and value judgments necessarily enter. When causation is so regarded, the law has no difficulty in recognising that there can be multiple causes of the one damage.”
20 In Roads and Traffic Authority v Royal & Anor,[15] Kirby J listed the common-law principles that have been accepted by the High Court:
[15](2008) 245 ALR 653
“… as governing decisions on contested issues of causation in relation to claims framed in negligence.”[16]
[16]at paragraph [79]. Whilst his Honour was in the minority, no issue arises as to this statement of general principle
21 Insofar as they are relevant to the present proceeding, the principles are as follows:
(i) “causation is essentially a question of fact. … the decision-maker must reach a conclusion by the application to the entirety of the evidence of common sense and the lessons of common experience …;”[17]
[17]at paragraph [81]
(ii) “the burden of proving causation-in-fact is on the claimant. The standard of proof that must be met is the balance of probabilities …;”[18]
[18]at paragraph [82]
(iii) “whilst the ‘but for’ test may be useful in defining the outer limits of liability where causation is contested, it is ‘not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations’. …;”[19]
[19]at paragraph [83]
(iv) “where several acts or omissions on the part of contesting parties are alleged to be causes-in-fact of a claimant’s damage, the resolution of the contest presents a question of fact that is itself to be decided by reference” to the following considerations:
· The search is not confined to ‘the’ cause because, in some cases, two or more factors may be found to have contributed in a legally relevant way to the damage;
· If a conclusion is reached that two or more causes have played a part in causing the damage, legal liability will attach so long as a nominated cause is held to have “materially contributed” to the result; and in this sense, if one activity is found to have materially contributed to the loss and damage suffered, it is a cause of the loss and damage despite other factors having played an even more significant role in producing that loss and damage.[20]
[20]at paragraph [85]
(v) The way in which individual decision-makers ought to reason to their conclusions about contested issues of causation-in-fact cannot be expressed in terms of imperative rules of universal application. As with most legal reasoning, several considerations will typically combine to bring the mind of the decision-maker to his or her conclusion about the preferable view of the facts.[21]
22 Finally, in Pledge v Roads and Traffic Authority,[22] Hayne J considered the many factors which might be said to be the cause of an event, and commented:
“The distinction is not to be found by attempting to identify the cause of the event. Examination will usually reveal that the event came about as the result of a complex mixture of acts or omissions. It may be right to say of each of those acts or omissions that, but for its happening, the accident would not have happened as it did. It would be wrong, however, to argue from that observation to a conclusion that one or other of those acts or omissions (for example, the driver's failure to keep a proper lookout) is to be given special significance. Equally, it would be wrong to argue from the identification of every act or omission which played a role in the accident happening as it did to the conclusion that legal responsibility attaches to all of those responsible for every one of those acts or omissions. As Windeyer J said in Faulkner v Keffalinos,[23] ‘lawyers must eschew this kind of 'but for' or sine qua non reasoning about cause and consequence.’ - 2#2
[21]at paragraph [88]
[22](2004) 205 ALR 56
[23](1971) 45 ALJR 80 at 86
23 In assessing the issue of causation, I apply the approach to my analysis of the evidence as set out in the authorities to which I have referred above and make the findings I have summarised earlier for the reasons which follow.
(ii) The reliability of Plaintiff’s viva voce evidence
24 The plaintiff gave evidence on the first and second days of the hearing. It was clear that on the first day, the plaintiff clearly struggled with the process involved in giving evidence. Her memory as to the existence of knee symptoms prior to her transport accident, the treatment she required and the timing of that treatment did not accord with her affidavit evidence or the medical record in this case which was largely non-contentious.
25 Equally, it is clear that some histories given by the plaintiff to consulting medical practitioners such as Mr Garde and Mr Flanc were inaccurate as to the presence of pre-accident symptomology in her right knee.
26 I was moved at the conclusion of the first day of the trial day to question the plaintiff’s capacity to give evidence, having regard to her demeanour in which she had presented with a fixed stare, was repeatedly unable to recall relevant facts and on other occasions gave evidence which was totally inaccurate and included a denial that she had any symptoms in her right knee prior to the transport accident.
27 It subsequently became clear that that the plaintiff had ingested considerable amounts of medication prior to her giving evidence and further, that she had, after that transport accident, suffered a minor stroke[24] which may have compromised her ability to think clearly in stressful situations.
[24]Transcript (“T”) 132
28 In the course of her subsequent evidence, the plaintiff’s daughter, Margaret Pisani, said that her mother’s memory was quite bad at the moment, commenting:
“There’s a lot going on. Mum can’t handle to take too much going on all at once.
… When things are happening and when it’s quite – you know, it’s a bad situation or something, she has to – like, yesterday sitting here, it affects her memory. Her brain kind of just shuts off and she can’t seem to remember anything.”[25]
[25]T114, L24-30
29 Further, I note that in his report of 12 February 2013, the plaintiff’s treating surgeon, Mr Hunt, commented:
“Mrs Pisani told me that she had a stroke and was having difficulty with her short term memory as a result of this. … .”[26]
[26]Court Book (“CB”) 98
30 It was my impression of the plaintiff as she gave her evidence on the first day of the hearing, that she was in no way trying to advance her position by being evasive or dishonest. I said as much to the parties at the conclusion of the first day of the proceeding, and a position to the contrary was never put on behalf of the defendant.
31 It was the position on behalf of the defendant that the evidence of the plaintiff on the first day was so unreliable, having regard to the conflict between the plaintiff’s viva voce evidence and the evidence contained in her two affidavits, that the plaintiff was a totally unreliable witness upon the issue of the nature of her right knee symptoms prior to the accident and the effect, if any, of the accident upon those symptoms and their progression.
32 It was put on behalf of the plaintiff that whilst much of the evidence given by the plaintiff in the afternoon of the first day of the hearing was confused as to its timing, nevertheless the plaintiff maintained her position that it was the transport accident which was responsible for an escalation in her symptoms. Further, it was put that the plaintiff’s evidence during the morning of the second day of the hearing was such that it demonstrated that she was processing questions properly and answering appropriately.
33 I accept that the plaintiff’s demeanour and her response to the defendant’s questions on the second day of the hearing did not suggest that the plaintiff was having difficulties with her memory to the degree which was clearly present on the first day of the hearing.
34 On the second day, whilst the plaintiff understandably struggled at times to recall the timing of some aspects of her long and complicated medical history, generally her evidence was appropriately responsive and contained both appropriate admissions (potentially to her detriment as to the nature of her pre-existing back[27]) and the maintenance by her of her position that the effect of the transport accident had been to cause a substantial alteration in her symptoms.
[27]T133
35 Equally, there were aspects on the first day of the hearing in which the plaintiff made a number of concessions to her potential detriment as to the significance of her mental state prior to the transport accident and her low-back pain which, in my opinion, could not be said were inappropriate or affected by her memory.
36 I am satisfied that the plaintiff was an honest witness who most probably presents with memory difficulties potentially exacerbated by:
· Her longstanding emotional injury;
· Her immediate lack of sleep prior to giving evidence;
· The ingestion of medication; and
· Possibly by reason of the influence of co-morbid medical conditions such as her mild stroke;
37 In these circumstances, I am satisfied that whilst I should disregard any aspect of the plaintiff’s viva voce evidence which:
(i) Did not accord with her relevant medical history;
(ii) Was challenged and was inconsistent by other evidence; or
(iii) Appeared in any way to be inconsistent with established facts or the probabilities attendant to the particular issue in question;
I should not disregard the plaintiff’s evidence completely but should accept any aspect of it to be persuasive when considered in the context of:
· Other independent evidence; or
· The probability associated with the issue the subject of the evidence.
38 I am satisfied that it is appropriate to adopt this approach as I do not find the plaintiff to be a dishonest or a generally unreliable witness. In making this statement, it is trite to observe that whilst in many cases the impression formed by a trial judge of a witness is of crucial assistance to the fact finding exercise to be undertaken, in the present instance it was, in my opinion, vital.
(iii) The forces involved in the accident
39 In paragraph 9 of her affidavit, the plaintiff describes the circumstances of the accident in the following terms:
“… At the time I had increased my speed to nearly 80 kph. I was on the gravel before I knew what had happened. I braked to slow down and the car spun and went down into a ditch to the left of the road about a metre deep and then up and hit a steel fence at the edge of a property near the road. The car ended up on its driver’s side.”[28]
[28]CB 10
40 The description by the plaintiff generally as to the accident:
· was not the subject of challenge; and
· was corroborated by the evidence of her daughter, Margaret, who was a passenger in the vehicle and who, in her affidavit, adopted the description of the collision as given by her mother.[29]
[29]Paragraph 2 of the affidavit of Margaret Pisani sworn 6 March 2014.
41 Given that the plaintiff’s evidence as to the description of the accident was not the subject of challenge and was corroborated by the evidence of her daughter, I am satisfied that the collision was one which had the potential of involving considerable force and of occasioning a significant injury with potential long-term consequences to the plaintiff’s already vulnerable right knee.
(iv)The lay evidence which I accept as to the effect of the transport accident upon the symptoms in the Plaintiff’s right knee
42 In contrast to the first day of the hearing, on the second day of the hearing, the plaintiff accepted, in the course of her evidence,[30] that prior to the transport accident, she was suffering from a painful right knee. She said that the condition of her knee was such that at times it caused symptoms of pain at a level of 8 out of 10; that most of the time she had pain in her knee, but that she –
“… was dealing with the pain. It wasn’t so severe.” [31]
[30]T102-111
[31]T110
43 The plaintiff was consistent in her evidence that after the car accident, the pain she experienced in her knee was more intense. She consistently described the pain as being different to that which she experienced before the car accident.[32]
[32]See the evidence at T121-122
44 The plaintiff’s daughter, Margaret Pisani, both in her affidavit and in the course of viva voce evidence, described her mother having pain in her right knee prior to the accident. She described the surgery undertaken by Associate Professor Richardson as having no effect upon the level of her mother’s right knee pain,[33] but that she thought that the car accident made the pain worse.[34] She said that in the three or four weeks after the car accident, she knew that her mother had pain in her knees; she was not sure however whether it was right or left knee pain or pain in both her knees. She said that she could recall her mother in the three or four weeks after the accident complaining of a change in her knee pain and that “I saw that as well from her”.[35]
[33]T149
[34]T151
[35]T153
45 She described her mother’s symptoms as deteriorating slowly over time but said that within a period of twelve months after the accident, it was apparent to her that her mother’s symptoms were much worse.[36]
[36]T156
46 The plaintiff’s evidence as to the alteration in her symptoms following the transport accident to which I have referred above was consistent with that given by her daughter in her evidence and was also consistent with the evidence of her treating general practitioners to which I will refer in due course.
47 Having had the opportunity to observe the plaintiff as she gave evidence on the first and second days of the trial and to assess the reliability of her evidence as to this issue, I am satisfied that I should I accept it.
48 Further, the plaintiff’s evidence as to her current symptoms and the restrictions which her condition imposes on her life, was, in my opinion, consistent with:
· the impact which an imperfect result associated with knee replacement surgery may have;
· the evidence of the plaintiff’s daughters as to her symptoms and disabilities;
and I accept that evidence.
(vi) The medical evidence relevant to the effect of the transport accident upon the Plaintiff’s right knee
49 Following the accident, the plaintiff was taken by ambulance to the Northern Hospital. The ambulance record does not record the plaintiff as complaining of knee pain.
50 Various entries of the Northern Hospital records make no mention of any injury to the plaintiff’s knees. The records do however describe the plaintiff as presenting with superficial bruising to the right knee and complaining of right knee and ankle pain. On balance I am satisfied that these records support the plaintiff as having sustained, in the transport accident, a blow to her knee sufficient to cause pain and bruising to the knee.
(vi)The pattern of the Plaintiff’s use of medication before and after the transport accident
51 There is no issue that in the present case the plaintiff, prior to the transport accident, presented with a significant degenerative condition in her right knee.
52 Neither is it in issue that:
· The plaintiff presented with a longstanding condition in her back with associated sciatica and a nervous condition with panic attacks which significantly impacted upon her day-to-day life.
· The plaintiff’s longstanding pre-existing conditions (primarily her back condition and her emotional condition) had been such that for many years the plaintiff was being prescribed with significant amounts of prescription-strength pain control, such as Panadeine Forte, Lyrica and Tramal, and medication to control her emotional state, such as Xanax.
53 Given the considerable history of prescription strength medication which the plaintiff was taking both before and after the accident, it is difficult to detect an alteration following the transport accident in the pattern of prescription medication which was being authorised for the plaintiff’s use. Equally, however, notwithstanding the absence of evidence on this issue, I am satisfied that I should take account of the fact that the medication which was being prescribed for the plaintiff’s symptoms of pain prior to the accident was significant and that it is likely that the ingestion by the plaintiff of that medication may have:
· masked, to some extent, the severity of any increase in the symptoms present in the plaintiff’s right knee following the accident; and
· impacted upon the timing and frequency of any complaint by the plaintiff as to those symptoms to her treating doctors.
(vii) The Immediate histories provided by the Plaintiff to her general practitioners following the accident and the medical opinions expressed by them
54 Two days after the accident, on 13 March 2008, the plaintiff contacted Dr Clifopoulos, her general practitioner, by telephone and reported to him that she had been involved in a car accident, at which time Dr Clifopoulos altered the pain management medication which the plaintiff had been employing prior to the transport accident, substituting Mersyndol for Panadeine Forte.
55 On 17 March 2008, Dr Clifopoulos made the following entry into his medical records:
“MCA - now feeling sore.”
56 On this occasion, Dr Clifopoulos again prescribed Mersyndol for the plaintiff’s use.
57 On 3 April 2008, a telephone consultation took place between the plaintiff and Dr Clifopoulos, in respect of which he made the following note:
“Telephone discussion with patient. Persistent MCA.”
58 On 14 April 2008, Dr Clifopoulos made a further entry into his record:
“Reason for contact: MCA.
Sees another GP for MCA.
Telephone conversation with specialist/other provider – not a case conference. Dr. G Papadopoulos re patient and their management. Cl difficile infection settled, needs rpt scope.
MCA (Motor car accident) injury. … .”
59 In a medical report dated 18 February 2014, Dr Chris Clifopoulos states that he had managed the plaintiff’s condition since July 2005. He noted, as at 24 April 2007, that the plaintiff had suffered a right knee injury in the form of a medial meniscus tear which was treated by the performance of an endoscopic meniscectomy. He continued:
“… Post operatively she complained of knee osteoarthritis in her right knee and this has been complicated by a motor vehicle accident on 13th March 2008.
From perusing my notes it appears that her right knee osteoarthritis had deteriorated as the result of the said accident and she had been treated conservatively for this. Her medical management included analgesia (Durogesic Patch), anti-depressants, Lyrica, Panadol Rapid for pain relief, Solprin and other medication which she had been prescribed for unrelated medical conditions.
She had been sent off for physiotherapy locally and asked to wear a knee support and brace. She had requested an orthopaedic assessment so she was referred on 3rd June 2008 to Mr Justin Hunt with regard to her knee injury. She also requested a review by a chronic pain specialist and she was referred to Dr Andrew Muir for review of this as well.”[37]
[37]CB 35-36
60 Dr Clifopoulos went on to comment;
“It appears that the patient has suffered chronic knee injuries particularly on the right side and this has been exacerbated as a result of her motor vehicle accident.
…
In conclusion I believe that on the balance of probabilities that the motor vehicle accident in March 2008 probably aggravated and accelerated the pre-existing degeneration in the patient’s left knee and right knee. … .”[38]
[38]CB 36
61 On 11 April 2008, the plaintiff consulted a general practitioner, Dr Scott Tunaley, who at that time, obtained from the plaintiff a history that she had been involved in a car accident two weeks ago and that she had suffered a number of injuries to her right side and back. The notes of Dr Tunaley contain the following entry:
“Right knee arthroscopy May 2008.[39]
Dr Martin Richardson,
Since car accident more pain.”
[39]Given that this note was made in April 2008 the reference by Dr Tunaley to “May 2008” must have been a reference to the plaintiff’s 2007 surgery.
62 On 23 April 2008, Dr Tunaley made the following entry in his notes as to the plaintiff’s presentation at that time:
“Had treatment to neck and knee.”
63 Dr Tunaley has provided detailed reports dated 15 November 2010 and 14 July 2013. In his first report, Dr Tunaley confirms the plaintiff’s presentation to him on 11 April 2008 in which he obtained a history that the plaintiff had undergone a right knee arthroscopy at the hands of Associate Professor Richardson and that the pain in both the knees “was more since the accident”.
64 Other than providing a detailed chronology of the plaintiff’s presentation to him since the transport accident and the course of her condition, Dr Tunaley commented that he was not in a position to comment upon whether the accident aggravated the pre-existing arthritis in the plaintiff’s right knee, commenting:
“… this would take expert opinion to decide. … She obviously had significant osteoarthritis prior to the car accident as noted, and how much is due to the accident is beyond my level of expertise.”[40]
[40]CB 49
65 In deciding the issue as to whether the transport accident had an effect of any significance upon the plaintiff’s symptoms of pain in her right knee, I am of the opinion that the plaintiff’s report to Dr Tunaley of increasing symptoms following the transport accident, together with the statement by Dr Clifopoulos that the plaintiff’s right knee arthritis had deteriorated as the result of the accident, should be accorded considerable weight given:
· The contemporaneous nature of the entries made by Dr Tunaley; and
· The position of Dr Clifopoulos as the plaintiff’s longstanding general practitioner who was well familiar with her pre and post-accident symptoms.
66 In assessing the content of the notes of these two witnesses, account needs to be taken of the fact that, whilst causation of the symptoms assumes considerable significance for lawyers and judges, it is trite to say that treating medical practitioners invariably focus their attention upon the management of the condition with which their patient presents.
67 In the circumstances I do not find it surprising that there is no further mention in Dr Tunaley’s notes as to the relationship between the transport accident and the plaintiff’s symptoms after that which was recorded by him on 11 April 2008, in that his primary focus would always have been directed to the management of the plaintiff’s symptoms rather than their cause.
68 I am of the opinion that Dr Clifopoulos, given his management of the plaintiff’s presentation both before and after the transport accident, is well placed to opine as to the effect of the transport accident upon the plaintiff’s pre-existing condition. Indeed, I am satisfied that Dr Clifopoulos is most probably in a superior position to opine on the issue as to whether the accident had any impact upon the condition of the plaintiff’s right knee when compared with the position of most other medical practitioners who have opined on the issue, and that his evidence that the accident exacerbated the condition in the plaintiff’s right knee is of significant probative value.
69 The medical notes of Dr Clifopoulos provide only a cryptic clue as to that relationship, having regard to his recording of the fact of the transport accident on a number of occasions without providing any detail as to why the recording was made.
70 When account is taken however of:
· The fact that that the medical notes of Dr Clifopoulos were created really to provide an aide memoire and record for his own use; and
· The opinion expressed by Dr Clifopoulos as to the relevance of the transport accident upon the progression of the plaintiff’s underlying condition at the time at which he was first asked to opine as to this issue, at the time at which he provided his report of 18 February 2014;
I am satisfied that the statement made by Dr Clifopoulos in his report should be accorded very significant weight upon the issue as to the relationship between the progression of the plaintiff’s condition and the accident.
(viii) The opinions expressed by the medical specialists as to the relationship between the accident and the Plaintiff’s need for knee replacement surgery
71 As to the consultants who have opined upon the issue of causation in the case, whilst Mr Paul Kierce expresses vehement opinion that the accident played no part in the progression of the underlying condition present in the plaintiff’s right knee, he is largely a lone voice upon this issue and I do not find his opinion persuasive when compared to that of Mr Hunt, given the superior position of the latter to opine upon the issue of causation.[41]
[41]See my comments in paragraph 80 to justify this position
72 Mr Peter Gard, in a report commissioned on behalf of the defendant dated 28 April 2010, commented:
“I feel that it is plausible that the transport accident may have aggravated the pre-existing and already substantial osteoarthritis within the knees, but to what extent would be impossible to say. … .”[42]
[42]CB 11
73 In expressing that opinion, it appears that Mr Gard had no access to the history to which I have referred given by the plaintiff to Dr Tunaley as to the increase of her symptoms and the opinion expressed by Dr Clifopoulos on the issue of causation.
74 In a further report dated 17 September 2010, Mr Gard maintained his previous opinion, commenting:
“Mrs Pisani does mention, at least, that she had bruising of the right leg and knee pain in her TAC claim form, therefore one needs to consider whether there has been contribution from the motor vehicle accident to the progression of her osteoarthritis. Judging from the observed pathology at the previous arthroscopy and the mentions of knee pain by General Practitioners prior, in my view the motor vehicle accident would be a very minor contribution to the overall situation with Mrs Pisani’s knee. I do not feel confident to say that the contribution from the motor vehicle accident was zero, but I do think it was likely to have been small, and her progression to osteoarthritis was highly likely in any event, even without the motor vehicle accident.
I am not the arbiter as to whether TAC has liability for the right knee or not. I can certainly say that Mrs Pisani has severe osteoarthritis, that it was certainly present prior to the motor vehicle accident, and might have been slightly aggravated by the motor vehicle accident. The progression of her osteoarthritis to a worse and worse state was inevitable irrespective of the motor vehicle accident, but may have been mildly hastened by the motor vehicle accident.
Mrs Pisani is certainly in a desperate situation, and the assistance of the TAC in facilitating Medicare would very much benefit her quality of life.”[43]
[43]CB 14
75 I am satisfied that had Mr Gard been aware of the evidence to which I have referred from the plaintiff’s treating doctors, together with that as to the plaintiff’s presentation to the Northern Hospital following the accident, he may well have opined more robustly in support of the effect of the transport accident upon the plaintiff’s underlying condition.
76 Mr Michael Dooley, an orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 23 May 2013. At the time of providing his report, Mr Dooley commented:
“With no treating surgeon’s reports in relation to Ms Pisani’s knees and no x-rays to view, it is difficult to fully assess her knee problem. … .”[44]
[44]CB 39
and continued:
“… Clearly, in the vast majority of motor vehicle accidents whether they be of low impact or greater, some impact could occur to the knees. My overall feeling today is that it is unlikely that any significant injury was sustained to either knee in the motor vehicle accident. … .”[45]
[45]CB 39
77 Given the uninformed position from which Mr Dooley expressed his opinion, in that he was denied access to:
· The vast radiological evidence available in the case; or
· The medical records and reports of the Northern Hospital, Dr Clifopoulos or Dr Tunaley;
I do not find the opinion expressed by Mr Dooley as to causation to be persuasive. It is relevant however to the issue which arises for me, namely to assess the consequences of the accident upon the plaintiff’s underlying condition that Mr Dooley opined:
“… It is clear that prior to the motor vehicle accident Ms Pisani had naturally occurring degenerative osteoarthritis affecting the medial compartment of both knee joints. The natural history of this condition is slow but steady evolution in time.”[46]
I will refer to the significance of this latter statement by Mr Dooley in due course.[47]
[46]CB 40
[47]See paragraph 106 of these reasons.
78 Mr Charles Flanc, a general and vascular surgeon, has assessed the plaintiff on a number of occasions between 21 February 2011 and 17 May 2014. At the time at which he provided his final report, Mr Flanc had access to:
· A series of x-rays undertaken upon the plaintiff’s right knee between November 2005 and July 2008.
· Medical reports from Dr Clifopoulos and Dr Tunaley.
· The relevant history obtained by Dr Tunaley that the pain in both of the plaintiff’s knees was more severe since the accident.
· Correspondence between Mr Justin Hunt and Dr Clifopoulos as to the surgery undertaken by Mr Hunt.
· Reports by Mr Hunt to the plaintiff’s solicitors as to the relationship between the transport accident and the degenerative condition in the plaintiff’s right knee in which Mr Hunt had opined:
“It is probable that the transport accident that she was involved in on 11 March 2008 has caused an acceleration of the degenerative process in her knees and has been responsible for the premature development of symptomatic osteoarthritis. … .”[48]
[48]CB 141
79 In his final report, Mr Flanc opined:
“On balance, I consider that the transport accident probably aggravated the preexisting degenerative condition of the right knee, possibly by retearing the posterior horn of the medial meniscus and increasing the severity of her pain.
Whether the progress of the degeneration has been accelerated by the accident requires comments by experts in knee surgery.
…
I noted that she had severe arthritis of both knees before the transport accident of March 2008. On the balance of probabilities, it is likely that the arthritis of both knees would have been severe at this stage irrespective of the accident of March 2008.
However, I also consider it is likely that the disability and pain in the right knee would have been less severe if the transport accident of 11 March 2008 had not occurred.”[49]
[49]CB 155-156
80 Mr Justin Hunt, the plaintiff’s treating orthopaedic surgeon, who has undertaken two procedures upon the plaintiff’s right knee and one procedure upon her left knee, has authored a number of reports in this case and also attended for cross-examination.
81 In the course of the closing submissions by counsel for the defendants, I made a number of comments as to the fact that of all the specialists who had opined in this case, Mr Hunt was best placed to opine upon the issue of causation, having been involved, as he had, in the plaintiff’s management for a considerable period of time and having had the opportunity to assess first hand the progression of her condition. I am firmly of the opinion that this is the case. Indeed no position was put on behalf of the defendant to the contrary.
82 I considered Mr Hunt to be a careful, precise and extremely reliable witness. There is no contention to the contrary on behalf of either of the parties to the proceeding.
83 In his reports, Mr Hunt had commented on a number of occasions as to the impact of the transport accident upon the condition present in the plaintiff’s right knee.
84 In the course of a number of reports, Mr Hunt noted that the plaintiff:
· Had first consulted him on 27 July 2008 with respect to her right knee.
· Had provided him with a history that she had been involved in a transport accident on 11 March 2008 in which she had lost control of her vehicle when she was travelling at approximately 80 kilometres per hour, causing the vehicle to spin, enter a ditch and come to rest on a high gate.
· Presented to him with a history of severe osteoarthritis in the medial compartment of the right knee and with ongoing symptoms of pain arising from that condition which was quite debilitating.
85 After investigating the plaintiff’s presentation, Mr Hunt states that he recommended that the plaintiff undergo either a high tibial osteotomy or a unicompartmental arthroplasty of her right knee. It is clear that before providing this opinion, the complexity of the plaintiff’s presentation given her age, was such that Mr Hunt thought it appropriate to seek an opinion from the Orthopaedic Unit at The Alfred hospital as to the way the plaintiff’s condition should be managed.
86 At this time at which he gave the plaintiff the above advice, Mr Hunt reports that he discussed with the plaintiff the difficulties associated with performing a knee replacement procedure, given her relatively young age.
87 Having regard to the fact that this discussion took place on 4 August 2008, it is clear that the plaintiff’s symptoms were, at that time, such that the performance of a total knee replacement procedure was seriously being considered.
88 On 8 April 2009, Mr Hunt performed bilateral knee arthroscopies upon the plaintiff’s knees. Given her relatively young age, he advised the plaintiff that she should undergo, and thereafter performed, a unicompartmental arthroscopy upon her right knee on 20 May 2009. Whilst the plaintiff immediately post-operatively developed an excellent range of motion in her knee, within twelve months of the surgery the plaintiff was presenting to Mr Hunt with “recurrent ongoing severe knee pain symptoms”.[50]
[50]Report of Mr Hunt 31 January 2011
89 Mr Hunt reports that by August 2010, the plaintiff was presenting with severe symptoms in her left knee. Eventually those symptoms were such that on 11 June 2011, Mr Hunt performed a left knee replacement procedure, including patellar resurfacing in management of the plaintiff’s ongoing left knee arthritis.
90 In his report dated 31 January 2011, Mr Hunt opined as to the relationship between the transport accident and the plaintiff’s ongoing right knee symptoms:
“It is probable that the transport accident that she was involved in on 11th March 2008 has caused an acceleration of the degenerative process in her knees and has been responsible for the premature development of symptomatic osteoarthritis.
…
Mrs. Pisani’s diagnosis is of severe osteoarthritis of the knees (post traumatic), predominantly medial compartment arthritis with disabling pain symptoms.”[51]
[51]CB 88
91 Notwithstanding the total knee replacement undertaken on the plaintiff’s left knee, the plaintiff continued to complain of significant symptoms emanating from her left knee. In his report dated 30 December 2011, Mr Hunt commented:
“With regard to her left knee Mrs. Pisani remains debilitated due to ongoing pain symptoms and again, there is no evidence of complication arising as a result of the surgery.
…
Mrs. Pisani is somewhat desperate to have further operative intervention in her right knee in the form of a full knee replacement procedure, but given the ongoing pain symptoms in her left knee I have advised her that I would be reluctant to proceed, as it is possible that she may be worse off if she were to sustain a complication at the time of revision from a unicompartmental to a full right knee procedure.”[52]
[52]CB 96-97
92 In his report of 12 February 2013, Mr Hunt described the plaintiff’s presentation with continuing symptoms of bilateral knee pain and he maintained the position previously expressed that it was likely that the transport accident had caused an acceleration of the degenerative process in her knees and had been responsible for the premature development of symptomatic osteoarthritis, commenting:
“Mrs Pisani’s diagnosis is of aggravated osteoarthritis as a result of a transport accident sustained on 11 March 2008, involving both the left knee and right knee. Symptomatic osteoarthritis has been demonstrated on imaging and has also been found at the time of knee arthroplasty surgery in both of her knees.”[53]
[53]CB 100
93 As to the plaintiff’s degree of disability, Mr Hunt opined:
“I believe that Mrs Pisani is profoundly disabled. Her mobility is significantly restricted and this impacts on all aspects of her life.”[54]
[54]CB 101
94 In a further report dated 11 February 2014, Mr Hunt stated that on 17 January 2014, he performed revision surgery upon the plaintiff’s right knee which involved the undertaking of a full knee replacement.
95 In the course of the above report, in opining as to the relationship between the transport accident and the plaintiff’s subsequent condition, Mr Hunt commented upon the nature of the collision and the records of Associate Professor Richardson to which he had access as to the plaintiff’s pre-existing condition, and opined:
“Therefore, based on the history that has been obtained in the medial (sic) records, Mrs Pisani’s condition is likely to have been aggravated by the injury that she has had to her knees. She had advanced arthritis present at the time of an arthroscopy performed before the transport accident as seen on both imaging and arthroscopic surgery on her right knee, but in the context of a chronic pain syndrome and the type of trauma sustained as a result of the motor vehicle accident, it is likely to have caused an aggravation of both her left and right knee osteoarthritis symptoms.[55]
[55]CB 102C
and continued:
“There was clearly significant osteoarthritis in her knees prior to the transport accident. It is the worsening of the symptoms that she perceives following the transport accident which is the feature that indicates an aggravation of her symptoms relating to the transport accident.”[56]
[56]CB 102E
Mr Hunt was asked:
“Do you believe the need for the bilateral knee replacements has been brought forward as a result of the motor vehicle accident that occurred in March 2008”
to which he responded:
“Yes.”[57]
[57]CB 102F
96 In the course of his viva voce evidence, the opinions expressed by Mr Hunt in his reports as to the relationship between the plaintiff’s pre-existing underlying arthritic condition, the transport accident and the plaintiff’s surgical management after the transport accident were explored in detail by the parties.
97 It became clear during the course of his evidence that Mr Hunt was well familiar with the plaintiff’s pre-existing condition, the surgery undertaken by Associate Professor Richardson and his findings in the course of that surgery.[58]
[58]T181, L14-26
98 Mr Hunt accepted that the history that the plaintiff’s left knee condition had progressed to knee replacement surgery possibly indicated that her right knee may have progressed in the same way, but commented that the progress of pathology in bilateral knees may vary substantially, one knee not always being the mirror image of the other. Whilst Mr Hunt opined that there was likely to be some consistency in the evolution of arthritis in each of the plaintiff’s knees, I give that evidence little weight in assessing the issue as to whether, but for the transport accident, the plaintiff would have undergone a right knee replacement or the timing of such a procedure. I am influenced to take this position having regard to the evidence given by Mr Hunt in re-examination (when the history given by the plaintiff that the condition in her right knee had caused her to favour that knee and to put increased pressure on her left knee; which history was not the subject of challenge by the defendant[59]) namely:
“Well, anybody with a limp usually develops trouble with secondary pains elsewhere, whether it be lower back pain or trochanteric bursitis on the side of the hip. Yes, so there’s a possibility that there would be some aggravation of other areas with a persistent limp relating to an arthritic knee or some other lower limb structure.”[60]
[59]See the statement made by the plaintiff as to this issue in paragraph13 of her affidavit dated 25 May 2012
[60]T202, L21-27
99 In the course of his evidence, Mr Hunt was taken to the Northern Hospital records which recorded the presence of superficial bruising over the plaintiff’s right knee and the performance of an x-ray of the knee, and commented that the performance of that x-ray was consistent with the view held by him that the x-ray would have been undertaken in response to a complaint of the presence of knee pain and an observation of bruising to the knee.[61]
[61]T102, L1-19
100 As to the impact of the transport accident upon the progression of the condition in the plaintiff’s right knee, Mr Hunt gave the following evidence:
Q:“We have in this case a woman who is not yet 50 and yet has had, firstly, a partial knee replacement in her right knee and most recently a full knee replacement in her right knee. In the absence of the motor vehicle accident, are you able to give an assessment as to what would have been the likelihood of her undergoing such early procedures in her right knee without the motor vehicle accident?---
A:As I mentioned before, there’s probably a reasonable probability that she would have ended up having some sort of procedure at some point in time on her right knee in addition to the arthroscopy that she had beforehand because of the – certainly because of what we see now, further down the track, but also just because there was significant wear change inside her knee at that stage.
Q:You were asked about the importance for your diagnosis of aggravation in the motor vehicle accidents as to – evidence as to complaints of knee pain or the level of them before and after the motor vehicle accident. Do you recall those questions from Mr Gorton?---
A:Yes.
Q:If you were told that, quite apart from the complaint to the Northern Hospital, that on 11 April – so just over a month after the motor vehicle accident – the plaintiff has told Dr Scott Tunaley that she had had a right knee arthroscopy in May 2008 with Mr Martin Richardson, “Since car accident more pain. Left knee needs doing as well.” Is that the sort of - I nearly did it again. Would you comment on the significance of that entry a month after the motor vehicle accident?
A:Well, yes, I guess that is consistent with her perceiving that the knee is more painful after she has been involved in the motor vehicle accident as opposed to before it.”
HIS HONOUR:
Q:“You provide a report – I think it’s the last report - in court book 102E. You’ve just spoken about her perception after the car accident. The last paragraph of that report, ‘There was clearly significant osteoarthritis in her knees prior to the transport accident. It is the worsening of the symptoms that she perceives after the transport accident which is the feature that indicates an aggravation of her symptoms relating to the transport accident.’ Am I right? …
This is at 102E.
…
Q:You have used the same term in your answer to the question just recently asked of what was the relevance, and you said it was relevant to her perception of the symptoms following the transport accident?---
A:Yes.
Q:My role in this process is to be satisfied that the transport accident materially contributed to the end result, which at this state is the surgery that was undertaken by you earlier this year. What I need is your view about that. I can tell you, from my analysis of material contribution, I will be corrected if I’m wrong, but the test is that it has got to be more than a de minimis contribution. ‘de minimis’ is a Latin term of trivial. So in the scheme of things where does it lie?---
A:Yes. You ask me the question now, shall I give an answer?
Q:Yes, absolutely?---
A:Terrific, thanks. I think my view has been that, I guess is that on the basis of from what I understand of Ms Pisani’s history, and I have seen her on numerous occasions, and also her husband, I sort of understand their family, it’s complex and the involvement of her knees at a young age is also unusual, to the degree that she has had this really quite severe arthritis. Her involvement in a car accident makes it rather complicated to understand what would have happened to her knees if she hadn’t been involved in the accident, but there has definitely been a fair bit of involvement of her local doctor and things in the lead-up to that accident, so it was clearly an evolving picture of worsening arthritis up until the point where she had the car accident. Given that she, and this I guess is the difficulty for me making a sort of easy judgment about, yes, I feel very strongly that this is an aggravation versus one that needs, I guess, much more consideration is because of this evolving arthritis without evidence on her imaging of a fracture, which would have made it very easy to say, ‘Okay, this is definitely a feature which would indicate that there has been substantial injury to the knee,’ but you don’t need a fracture to get an aggravation of arthritis. A blunt injury to the knee would be enough to make the pain symptoms worse. In this particular instance, she was involved in a motor vehicle accident and there has been ongoing symptoms in her knee following the transport accident, and she has perceived that the pain symptoms have been worse. It is not really possible to measure that, and I have been in a role treating this woman for her knee arthritis symptoms and my feeling was that I couldn’t discount that the accident hadn’t caused a significant worsening of her symptoms that ultimately culminated in more invasive treatment. I guess that’s my position. It didn't necessarily come easily, but ultimately that's my view”.[62]
[62]T202, L28 – T205, L31
101 And further, in the course of cross examination:
Q:“Does it follow from that, Mr Hunt, that probably Mrs Pisani would have come to have had the right knee replacement in the years some time 2009, 2010, 2011, that time, even if she had never been in the car accident?---
A:That could have been the case.
Q:Are you able to say whether that’s probably the situation?---
A:That’s probably my phone, I’m sorry, Your Honour. It’s probably my rooms calling me.”
HIS HONOUR:
Q:“That’s all right.”
MR HUNT:
A:“No, don’t worry about it. Unfortunately it’s probably going to ring. I did try and turn it off but I mustn’t have - - -“
HIS HONOUR:
Q:“Mr Hunt, if it’s your rooms and you’re worried about it, answer the phone. I’m not fussed.”
MR HUNT:
A:“No, it’s fine. They’ll just be wondering where I am, that’s all, but I’ll call back in a second. That will go to message bank. It’ll be fine. So I think in relation to what – if I just continue on with what you were saying with regard to whether or not it’s likely that she would have ended up with a knee replacement anyway, which I think was the question that you were asking, it’s quite possible and even probable that she would have ended up with a knee replacement on the right side because of the full‑thickness cartilage loss within her knee, but knee arthritis can fluctuate over time and people who I do see in my clinical practice often have what seems like a knee that’s progressing towards problems with severe pain and ultimately you will think that they will need a knee replacement may not progress to that point. So it’s not really a bygone conclusion that that situation would occur in this woman’s knee. My feeling was that given the history of an injury to a knee that’s already arthritic, that there was a significant chance that the arthritis has been aggravated by that car accident. That’s where I wasn’t able to say that it’s a normal process of degenerative change. Rather, that this woman has already got an irritable painful knee. She has been in a car accident. She has complained of pain after the event and it’s documented on her emergency department record. Then she has had ongoing symptoms in that knee. Hence that was my feeling about her situation, that the accident itself has caused pain at the time. No doubt she had an arthritic knee at the time when she had the accident but it’s the aggravation of her symptoms that concerned me and, I guess, led me to the belief that the accident had been involved in, if you like, potentiating the inflammatory change in the knee, which then has led to, you know, ongoing pain symptoms which have been difficult to manage.[63]
Q:Thank you. I do want to come back to this notion of the aggravation and the acceleration and what that means, but, as I understood that – and correct me if I’m wrong – that although one can’t be certain about these things, it is your opinion that she would probably have had the right knee replacement in the years following 2008, even if she had not been in that car accident?---
A:That could be the case, yes. It probably would be the case. If we see what has happened with her left knee and she has progressed, then – but, as I said, I cannot predict for certain because arthritis of the knees can fluctuate quite a lot over years.
Q:But more likely than not?---
A:Yes.”[64]
[63]T186, L18 – T187, L19
[64]T185, L18 – T188, L1
102 It is put on behalf of the defendant that this response by Mr Hunt related to the timeframe the subject of the previous question by Mr Gorton SC, in which Mr Hunt was asked to comment upon the probability as to the plaintiff requiring a knee replacement in 2009 and 2010 and 2011. I am not satisfied, having regard to the break which occurred between the question and the answer, which was punctuated by a telephone call and a discussion as to whether Mr Hunt should answer it, that the answer was responsive to the particular timeframe introduced in the question. Rather, I interpret the answer as being a statement made in general as to the progress of the plaintiff’s arthritic condition without the outside influence of trauma being superimposed upon the condition, and whether the condition was such that it would probably have necessitated surgery in any event, rather than a statement as to the timing of that surgery.
103 In making this finding, I do so on the basis of the impression I formed as to the way in which the evidence developed, aided by the introduction by Mr Hunt to this expression of opinion, namely his comment:
“So I think in relation to what – if I just continue on with what you were saying with regard to whether or not it’s likely that she would have ended up with a knee replacement anyway, which I think was the question that you were asking”
which confirms the impression I formed at the time that Mr Hunt was dealing with the likelihood, but for the transport accident, of a knee replacement procedure being undertaken at some time in the future as distinct from the whether the procedure may have been required in 2009, 2010 or 2011.[65]
[65]My analysis of the response by Mr Hunt to this question when it was asked at T186, L3-8, being that he acknowledged the position as a possibility.
Conclusions
104 I am satisfied, having regard to:
(i) The trauma involved in the transport accident which, in my opinion, was such that might well aggravate the significant pre-existing symptomatic degenerative condition in the plaintiff’s right knee;
(ii) The plaintiff’s presentation to the Northern Hospital with bruising and knee pain;
(iii) The plaintiff’s history provided to Dr Tunaley that her symptoms of knee pain were worse following her involvement in the transport accident;
(iv) The opinion expressed by Dr Clifopoulos that the plaintiff’s symptoms of knee pain had been exacerbated by the transport accident;
(v) The repeated opinions expressed by Mr Hunt from a very early stage that the effect of the accident was to have aggravated the osteoarthritic condition in the plaintiff’s right knee;
that the transport accident was responsible for an aggravation of the pre-existing condition in the plaintiff’s right knee of the type and manner described by Mr Hunt in his reports, namely –
“…the transport accident that she was involved in on 11 March 2008 has caused an acceleration of the degenerative process in her knees and has been responsible for the premature development of symptomatic osteoarthritis. … .”[66]
[66]CB 141
105 It is trite to say that the need for surgery of the type involved in a knee replacement is largely symptom related. It follows, having regard to the poor relationship between the presence of significant osteoarthritic changes and pain associated with those changes, that the ability to predict the timing of surgery necessary to deal with the symptoms generated by those changes is extremely uncertain. That this is so is reflected in (and in my opinion explains) the comment made by Mr Hunt that it was not really a bygone conclusion, notwithstanding the plaintiff’s pre-existing condition, that she would have come to surgery in her knee, notwithstanding the possibility, and even probability, that this would have been the case.
106 Taking into account the combination of:
· The absence of any suggestion that the plaintiff, notwithstanding the pre-accident degenerative condition in her right knee, was a candidate for knee replacement surgery in the near future;
· The evidence of Mr Dooley that the natural progression of the pre-accident condition with which the plaintiff presented was one involving slow and steady evolution in time;[67]
[67]The speed with which the plaintiff’s condition evolved following the transport accident was in my opinion in stark contrast to Mr Dooley’s expectation as to the normal progression of such a condition and accordingly provides support for the influence of the accident in the timing of that progression .
· The evidence given by Mr Hunt that there is no necessary relationship between a severe bone on bone condition being present in the knee and the timing of knee replacement surgery;
· The fact that the plaintiff was being considered for right knee replacement surgery within five months of the happening of the transport accident,[68]
[68]See the report of Mr Hunt dated 31 January 2011, CB 84-91
I am satisfied that the transport accident materially contributed to the timing of the evolving condition in the plaintiff’s right knee so as to hasten her need for knee replacement surgery. In making this finding I am satisfied, having regard to the evidence of Mr Hunt that, whilst the plaintiff presented with a pre-existing condition in her right knee which was such that it was probable that at some stage in her life she would have been a candidate for knee replacement surgery, in the absence of the transport accident:
· the timing of such surgery: and
· to some extent the need for such surgery:
were attendant with uncertainty.
107 In making the latter finding I rely upon the opinion expressed by Mr Hunt that the progression of symptoms associated with knee arthritis can fluctuate over time, and his experience in his clinical practice where he often sees conditions which appear to be progressing in a manner in which they will require knee replacement surgery but which do not progress to that point.
108 I accept the opinion expressed by Mr Hunt that the role of the accident potentiated an inflammatory change in the plaintiff’s knee which in turn led to ongoing symptoms of pain which were difficult to manage and that the plaintiff’s condition, by reason of the transport accident, was altered to one in which, whereas before the transport accident the plaintiff presented with a condition in respect of which it was probable that she may require knee replacement surgery in the fullness of time,[69] her need for surgery of this type was accelerated such that it arose as an issue within five months of the happening of the transport accident.
[69]Bearing in mind that probabilities do not always materialise in a medical setting – see my comments in paragraph 89.
109 Notwithstanding the presence of the various opinions expressed by the medical experts to which I have referred which are either equivocal as to the effect of the transport accident upon the deterioration in the plaintiff’s right knee condition or take direct issue with it, I prefer and accept the evidence of Mr Hunt on the issue for the reasons to which I have referred. Further, that Mr Flanc, who was well briefed with material to enable him to opine upon the issue (in contrast to the positions of Mr Kierce, Mr Dooley and Mr Gard), supports the position taken by Mr Hunt and lends marginal persuasiveness to that position.
110 Lest there be any doubt as to my findings, I interpret the passage of evidence by Mr Hunt at T186, L18 to T188, L1 to involve the expression of the opinion that the transport accident influenced not only the timing of the plaintiff’s knee replacement surgery, but also converted the plaintiff’s pre-accident position from one in which it was “quite possible and even probable” that surgery might eventuate at some uncertain time in the future, into one in which the need for surgery arose within five months of the accident.
111 In his report of January 2011, Mr Hunt comments that he discussed the scenarios associated with knee arthroplasty in young adults with the plaintiff, and mentioned:
“… the problem with multiple revisions and subsequently, possibly, knee fusion procedures due to loss of bone stock”[70]
and further, the fact that given her young age, even a unicompartmental arthroplasty carried the risk of the component loosening over time and the need for a revision procedure.
[70]CB 86
112 Given the plaintiff’s relatively young age, I am satisfied that the consequence of the accident in bringing forward the timing of the surgery which but for the transport accident would have been postponed and may have been avoided,[71] represents a consequence of very considerable significance, increasing as it does the likelihood that the plaintiff will develop problems with the prosthesis and be exposed to the risks associated with revision surgery.
[71]See my comment at footnote 56
113 It is clear that the plaintiff’s outcome from the surgery undertaken by Mr Hunt has been less than perfect. The plaintiff underwent a unicompartmental arthroplasty to her right knee on 23 June 2009, following which her continuing symptoms were such that she underwent a total knee replacement on 17 January 2014.
114 Since her surgery there has been little long-term improvement in the plaintiff’s level of pain and she experiences significant pain and has been severely restricted in her ability to walk and to stand and must employ elbow crutches in order to do so.
115 Having found in favour of the plaintiff upon the issue as to whether the transport accident was a cause of the plaintiff undergoing surgery in respect of which her recovery has been poor, the defendant takes no issue with the fact that I should assess the plaintiff’s position as now being stabilised notwithstanding the evidence by Mr Hunt that the plaintiff is still recovering from her recent surgery.
116 This, in my opinion, represents an appropriate concession on behalf of the defendant given the unsatisfactory outcome of the knee replacement procedure undertaken upon the plaintiff’s left knee. It is appropriate however that I record my opinion that the position taken by the defendant in this regard represents that which I would have expected of a model litigant and further, that it is consistent with the impression I have formed of the general approach adopted by the defendant in the contesting of this matter, which is to be commended.
117 I am satisfied that in assessing the consequences to the plaintiff of the injury sustained to her right knee by reason of the transport accident, that the transport accident was a relevant cause, in the manner to which I have referred earlier, of the plaintiff undergoing each of the surgical procedures on her right knee which followed the transport accident, the outcome of which will result in the plaintiff continuing to suffer from significant symptoms of pain and associated disability in her right knee.
118 I am further satisfied that those symptoms, whilst they may be, to some extent, exacerbated by the plaintiff’s fragile emotional state, are primarily organically sponsored. See the evidence of Mr Hunt at Transcript 189-200 and that of Mr Andrew Muir at Court Book 83.1 – 83.2, which I accept as being persuasive as to this issue.
119 In this instance, the plaintiff clearly presented with a pre-existing condition of some consequence in her right knee. That condition had required her to undergo arthroscopic surgery from which she had made a poor recovery with respect to the pain she was experiencing in her knee, in that the surgery was primarily only designed at dealing with and removing the fragment of her meniscus which was responsible for the symptoms she was experiencing in association with her knee locking.
120 As I said however, there is no suggestion that the plaintiff’s symptoms prior to the transport accident were such that she required knee replacement surgery in the immediate future. Rather, I am satisfied that whilst the plaintiff’s pre-accident condition was such that there was a probability that at some stage in the future the plaintiff would be required to undergo knee replacement surgery, the timing of that surgery was unpredictable, having regard to the idiosyncratic nature of the progression of osteoarthritic conditions and there remained a possibility that such surgery may be avoided.
121 I am satisfied the plaintiff has established that the effect of the accident was to increase the symptoms present in the plaintiff’s right knee such that within five months of the transport accident the plaintiff underwent knee replacement surgery (which but for the accident would not have been undertaken at that time) and that the effect of the surgery gives rise to consequences associated with:
(i) The need to undergo knee replacement surgery at a relatively young age;
(ii) The unsatisfactory outcome of the surgery, in that the plaintiff continues to suffer from significant symptoms of pain which significantly disable her such as to require her to walk with the assistance of elbow crutches; ingest large quantities of medication to deal with her pain; compromise the plaintiff’s mobility to such an extent that she is unable to stand or walk for significant periods of time;
(iii) The exposure of the plaintiff to the risk of future surgery (arising by reason of the fact that her young age at the time of the surgery increases the likelihood that her prosthesis will loosen or will deteriorate in functionality over time) and the risks associated with revisional surgery as described by Mr Hunt in his medical report of 31 January 2011;
122 In my opinion these consequences considered, in isolation of any other consequences of the transport accident upon the function of the plaintiff’s left knee or her pre-existing emotional state, are such that they meet the definition of “serious injury” as employed by the Act.
123 Further, although the plaintiff presents with other co-morbidities, I am satisfied that her right knee condition materially contributes to the disabled state in which she now presents given its role in increasing the symptoms of pain which she experiences and heightening the restrictions in her daily life as described in the affidavits of her daughters.
124 It follows that I am satisfied that the plaintiff has established that the transport accident has caused an aggravation of her pre-existing condition, which aggravation itself constitutes a serious injury by reason of the fact that the consequences associated with the aggravation itself are such that they give rise to a serious long-term impairment of the relevant body function;[72] in this instance, the function of the plaintiff’s right knee.
[72]Spence v Gomez [2006] VSCA 48
125 Accordingly, I am satisfied the plaintiff is entitled to the leave sought in this proceeding.
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