Raita v Transport Accident Commission
[2023] VCC 1877
•19 October 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-00929
| ANNA RAITA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 5, 6 and 9 October 2023 | |
DATE OF JUDGMENT: | 19 October 2023 | |
CASE MAY BE CITED AS: | Raita v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1877 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident ꟷ serious injury application – Transport Accident Act 1986 (Vic) s93 – plaintiff an artist and producer of electronic music – knee injury precluding previous hospitality work which provided pre-accident financial support for artistic lifestyle – alleged “kidnapping” by driver of vehicle which struck plaintiff – whether post-traumatic stress disorder deriving from kidnapping proper to be regarded as a consequence of transport accident assuming “kidnapping” to be a separate incident, injury nevertheless serious.
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
Judgment: Leave to bring damages claim granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Drew Gleeson Legal |
| For the Defendant | Mr R H Stanley with Mr T Storey | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Background
1According to her Senior Counsel, the plaintiff, Ms Raita, is a “free spirit” (Transcript “T” 2, Line “L” 31).
2She was born in Latvia in 1989. She “graduated from secondary school, which was a professional music school, in June 2010.” She then “worked in hospitality and events” in Barcelona before being accepted as a student at the Conservatori del Liceu Music Academy in Barcelona (Plaintiff’s Court Book “PCB” 10, [2]-[4]).
3In Barcelona, she met and married an Australian in 2012, moving to Australia where she has lived since. She travelled around Australia, working “in hospitality as a bartender and waitress”. Her husband worked as a labourer (PCB 10-11, [5]-[6]).
4The marriage broke up in November 2015, at which time she resided in a tent in a caravan park at Byron Bay, New South Wales where she worked as a waitress at the Byron Bay Golf Club. She travelled to Western Australia and then from Perth to Melbourne in 2017, where she found work at the Metropolitan Hotel in William Street, Melbourne.
5Her work hours were 9.00am to 11.00pm. She said she:
“… caught the train from Flagstaff Station to Flinders Street Station and then took another train to Balaclava Station. I started walking home as, at the time, I was living in East St Kilda.” (PCB 11, [9])
6She was struck whilst crossing Hotham Street, suffering a brief loss of consciousness (PCB 11, [9]-[11]).
7A woman passer-by came to her assistance. The woman became involved in a loud argument with the driver of the car which had struck Ms Raita. Ms Raita judged him to be affected by alcohol. She narrated a frightening story in which the driver conveyed her to the Alfred Hospital. He declined to exchange addresses with Ms Raita, and when she threatened to call the police he responded “if you call the police, I will take you far away bitch.” (PCB 12, [14])
8She escaped, then she used her mobile phone to photograph the licence plate of the driver’s car. He punched her and grabbed her hair.
9Eventually, staff from the Emergency Department of the hospital placed Ms Raita in a wheelchair, taking her into the Accident and Emergency Department. A number of scans was taken. She was given a neck brace and painkillers. She was admitted to hospital on 15 September, being discharged on 18 September. Whilst in hospital she completed and lodged a Transport Accident Commission Compensation Claim Form (PCB 11-12, [11]-[18]).
10Ms Raita said that she suffered injuries to her right shoulder and both knees. The motor vehicle had hit her knees and her right shoulder, with her head striking the bonnet. She said she was tender in the neck and right foot and right ankle. Her right wrist was put in plaster (PCB 11-12, [11] and [19]).
11After discharge, Ms Raita received further treatment at the Alfred Hospital. She was referred to a physiotherapist and consulted a general practitioner in East St Kilda. She said “I remained in a leg brace for my right knee for eight weeks following my discharge. I was also referred to Nexus Psychology for treatment.” (PCB 13, [20])
12In May 2018, Ms Raita returned to her native Latvia, “as a family member was ill and I felt I needed the support of my family.” She consulted a trauma surgeon and received injections to both her knees:
“… due to the pain I was in. The injection improved my pain for approximately three to six months but the pain then returned to its previous level. I was in Europe for three and a half months and then returned to Australia.” (Ibid, [21])
13Since then, she said she lived “a reasonably itinerant lifestyle”, living in Portland and south-west Victoria and also various addresses in Melbourne – “[t]his has meant that I have seen numerous medical practitioners since the accident.” (PCB 13 [22]) She was referred to Olympic Park Sports Medicine Centre in June 2019:
“… as I was having difficulties squatting, dancing and surfing due to my knee pain. I had an MRI scan of my knees in August 2019. It was recommended that I engage in a physiotherapy plan but I was unable to afford this.” (PCB 13 [23])
14In the first half of 2019, she also received treatment from an osteopath in Portland. She returned to Europe again in April 2019 for a couple of weeks for her brother’s wedding. She said “I found the flights there and back to aggravate the pain in my both of my knees.” (PCB 13 [25])
15She broke her arm in a separate incident in 2020, and resumed treatment with the Portland osteopath in the middle of that year (PCB 13, [26]-[27]).
16She was referred by her Portland general practitioner to a clinic known as “Advance Healthcare”, apparently a pain management clinic. This referral was supported by her osteopath, Dr Margaret Beckman. She said “[u]nfortunately, I did not find the treatment offered of assistance and the travel made it difficult for me to attend on a regular basis.” (PCB 13-14, [28])
17In cross-examination, she described her experience at the clinic as follows:
“I saw the doctor for five minutes because it's during the Corona [pandemic] so it wasn't a full proper assessment, he could only see me for five minutes and then he was like hitting, touching my knees and my legs, really uncomfortable and I was going like this because I felt really uncomfortable with the doctor and then after that he just wrote a report.” (T56, L4-10)
18The discomfort was caused by what she saw as the roughness of the doctor’s treatment. She said “[i]t was rough. He was, like, hitting me with the hammer on my knees and on my legs.” (Ibid, L14-16)
19She returned to Olympic Park Sports Medicine Centre in December 2020, and a Dr du Toit administered injections to both knees on 12 January 2021, which gave a period of “some pain relief.” (PCB 14, [29])
20As at the date of her affidavit made 11 August 2022, she said:
“My knees remain sore. I also have problems with my right shoulder and occasionally with my spine. However, my right knee is the most significant problem that I have. I wear a brace on this knee in cold weather.” (PCB 14, [31])
21She said before the accident she was “a very keen surfer”, but now it is difficult for her to surf “due to the stress on my right knee”. Her right knee pain, she said, also reduces her ability to participate in karate, a sport which she previously enjoyed. Her interests are in music, particularly in electronic music. She produces music and is trying to establish herself remotely in the European market. However, dancing is a significant part of that music, and she finds that dancing aggravates the pain in both knees but her right knee in particular. Meditation and contact with nature at beaches or forests gives some pain relief, and she finds it good for her medical health. Her right knee “locks up in cold weather” and is painful. Both knees click and catch occasionally, with pain levels varying relative to her level of activity and being worse in cold weather. Her knee pain disturbs her sleep and occasionally she sleeps with a pillow between her knees. She says she does home-based exercises “for fifteen minutes each day for both of her knees.” (PCB 14, [31]-[37])
22Her right knee pain, she says:
“makes it very difficult for me to squat and kneel. I find that stairs and steps aggravate the pain. I have to be careful with my right knee when getting up out of a chair, particularly a deep lounge chair.” (PCB 15, [38])
23She said that she has difficulty with domestic tasks “such as cleaning bathrooms and floors and so on.” She said the pain in her right knee “has had an impact on my sex life as it limits the positions I am able to use.”
24When her right knee is particularly sore “it causes me to limp.” If this situation persists for more than a day, she begins to suffer pain in her hips, particularly on the right side, and then in her lower back, again particularly on the right side.
25These episodes require her to “rest” and try and keep her right leg elevated. Recovery may take a few days. If the pain does not ease, she consults her osteopath.
26She has a dog named Cobba whom she loves very much. She said:
“… he is great for my mental health. He also gives me a sense of security. Walking him is good exercise for me but if my knee is too sore I only walk him a couple of hundred metres or get a friend to walk him.” (PCB 15, [42])
27She said she uses marijuana “for general pain relief for my right knee.”
28Her difficulties finding employment during the COVID pandemic were intensified “due to the limitations I have because of the pain in my right knee.” Unsurprisingly, she continues to suffer from anxiety. She said “I can still see the man’s face. I do not enjoy going out at night on my own. I occasionally have sleep issues and occasionally have panic attacks.” (PCB 15, [38]-[45])
29She said she discovered the drug Ketamine last year, and this enabled her to dance when acting as a “DJ” at a music event over two days, 15 and 16 September 2022 at Prahran. Nevertheless, she said, after those two days of performance she suffered “[l]ots of pain. I didn't even walk my dog. My friends had to walk my dog.” (T81, L6-8, 16-17, 20-22)
30In cross-examination, Ms Raita was shown a number of video clips from her own social media account or accounts depicting her dancing. Whilst with the assistance of Ketamine or marijuana she says she is able to dance these days she just “sways with the music”. Before the accident, she said, she was able to “really jump around”. She did belly dancing for three years, but now she can merely “sway with the music” as depicted in the video clips (T85).
31Ms Raita seeks a determination that she suffers a serious injury for the purposes of s93 of the Transport Accident Act 1986 and ought, therefore, be given leave to commence a damages claim for negligence pursuant to the terms of that section.
32The evidence demonstrates that she suffers psychological or psychiatric sequelae from the transport accident. Nevertheless, the present application relies solely upon paragraph (a) of the definition of “serious injury” to be found in the statute, that is relative to organic injury, and the body part relied upon is the right knee.
33Ms Raita said in a second affidavit dated 4 September this year, that in March 2019 she suffered an “aggravation” in her knee pain. At that stage, she was studying music at an institution known as the “Melbourne Polytechnic”. The aggravating event occurred when she got on the floor to plug in a charger for her phone. When she put her weight on her right leg she “felt an aggravation of pain” in the right knee. She returned to the Alfred Hospital, had an x-ray, was given crutches and provided with anti-inflammatories. She was then referred to her general practitioner (PCB 17-18, [3]).
34She said she continues to suffer “constant pain” in her right knee, which varies depending on activities, though it is “worse in cold weather.” She said the knee “cracks and clicks and occasionally gives way.” Sometimes she wears a brace when the knee is “really painful, which is usually when the weather is cold or after activity.” (PCB 17-18, [3]-[4])
35Ms Raita said she no longer has active treatment of the knee. She complained that the Transport Accident Commission (“TAC”) refused to fund further Synvisc injections. She said she walks daily for half an hour at a time, sometimes an hour, walking her dog. Sometimes she walks the dog twice a day “if the pain is not as bad.” She continues to practise her meditation and mindfulness “to try and keep my mind off the pain.” She also complains that the TAC has declined to fund the monthly osteopathic treatment which she seeks. (PCB 18, [5]-[6]).
36Ms Raita says she has difficulty carrying out household tasks “especially cleaning”, “[c]leaning the bathroom is particularly difficult as I find it very hard to squat or kneel. If possible, I organise for someone else to do these types of jobs.” (Ibid, [7]) She said the pain in her right knee affects her sleep. Sometimes she puts a pillow under her knee, but “[r]ecently, I found that leaving the electric blanket on while overnight helps the pain and helps me sleep. Approximately twice per week, I go to bed during the day with the electric blanket on because the pain is worse than usual.” (Ibid, [8]) She said that walking up hills or walking on soft sand makes her knee very sore. She said she uses “Reiki” when her knee is more painful than usual (Ibid, [10]).
37Ms Raita says she suffers knee pain “if I drive for longer than an hour.” She said she can drive for longer “but it takes me some time to recover.” Her knee becomes stiff if she sits for longer periods (PCB 19, [11]). She said “[m]y sex life continues to be affected by my right knee pain. I would love to be on top but I cannot do it. This is embarrassing for me.” (Ibid, [12])
38Ms Raita said she does not think she can “return to work in hospitality” because of long periods on her feet being part of the job and the need to lift heavy objects and climb and descend stairs (Ibid, [13]).
39She continues her involvement with music, recently being placed second in a “DJ competition”. She said “[t]he Ketamine makes me feel nothing at all. I feel no pain when I take it. This means I can stand and dance for my DJ sets.” Nevertheless, afterwards she said her knee is “very sore for days afterwards. I rest until the pain settles, if I can, which can take one day or a few days.” (Ibid, [14] and [15])
40She said she is concerned for her future (now being aged 34). She said:
“I am trained in music but it is difficult to obtain regular and well paid work in this industry. I am trying to make a living from it but this is difficult, at the moment. I have no other qualifications, which makes it hard for me to find work where I can sit for longer periods or alternate between sitting and standing.” (Ibid, [16])
Legal considerations
41The Transport Accident Act (“the Act”) establishes a regime whereby there is a general compensation scheme for persons injured in transport accidents in Victoria without proof of fault. Correspondingly, however, the Act restricts the entitlement which an injured person might otherwise have to claim damages for negligence. Section 93(1) excludes damages claims except in accordance with the provisions of the section. Sub-section (2) allows a person injured in a transport accident to recover damages in respect of the injury if the injury is “a serious injury”. Sub-section (17) defines serious injury as follows:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
42Sub-section (3) provides that an injury is to be deemed a serious injury if, in accordance with the permanent impairment provisions of the Act, ss46A, 47(7) or 47(7A), the degree is determined to be 30 per cent or more. Where no such determination of impairment of 30 per cent or less has been made, the damages claim may only be brought if a court gives leave in accordance with ss(4). This requires the application of the definition of “serious injury” quoted above. This is commonly referred to as the “narrative” test.
43In the present proceeding, the plaintiff relies solely on paragraph (a) of the definition. The classic exposition of the operation of the definition of “serious injury” which applies in this case is to be found in the joint judgment of Crockett and Southwell JJ in Humphries & Anor v Poljak [1992] 2 VR 129. Their Honours said:
“ … we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s (4)(d) when reliance is placed upon sub-s (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think "long term" is not an expression likely to give rise to difficulty. To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as "very considerable" and certainly more than "significant" or "marked"? Beyond such guidance it is, we think, not possible to go.” ([1992] 2 VR 129, 140)
44Complications arise where, in the context of an application for leave based on paragraph (a) of the definition, elements of psychological or psychiatric impairment are in play. In Richards & Anor v Wylie (2000) 1 VR 79 the plaintiff had suffered whiplash injuries with pain and stiffness in the neck, shoulders and arms and certain other physical symptoms. The medical evidence indicated that these symptoms could not be organically accounted for and that they seemed to have been produced by psychological factors. The trial judge accepted that the plaintiff had suffered a serious injury for the purposes of paragraph (a) of the definition based upon the physical symptoms despite the evidence that they were non-organically generated. The Court of Appeal, Winneke P, Buchanan and Chernov JJA set aside the grant of leave. Chernov JA said that:
“ It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para (a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment.” ((2000) 1 VR 79, 90)
45His Honour continued, stating that, where the dominant cause was psychological, then the application for leave should be determined under paragraph (c) of the definition. In broad terms, therefore, paragraph (a) is concerned with the consequences of organic injury and paragraph (c) is concerned with injuries which are psychologically or psychiatrically driven. However, in considering the application of the definition in paragraph (a) to physical injury, one considers not only the organic consequences but, in his Honour’s words, “any mental or behavioural disturbances flowing from the physical injury, such as ‘functional overlay’”.
Expert opinions
46Orthopaedic surgeon, Mr John Skelley, carried out a medico-legal assessment of Ms Raita’s condition on 21 September 2021. He provided a report to the two parties of the same date. As to her right knee, Mr Skelley observed “Ms Raita walked normally with no limp. There was normal leg alignment.” (PCB 24)
47He noted:
“… no muscle atrophy with thigh circumference measured 10cm above the patellar, the same on both sides. There was no swelling or deformity. Leg alignment normal. Patellar tracking normal with painful crepitus on movement. There was no joint tenderness. Knee stable in the coronal and sagittal planes. Movement measured 0-120 degrees left knee and 0‑130 degrees right knee.” (PCB 24)
48He detected no tenderness and normal strength in the right shoulder and recorded certain ranges of movement. As to the neck, he said:
“Cervical posture was normal. No tenderness, flexion and extension normal. Mild symmetrical reduction in lateral flexion and rotation. No paraspinal muscle spasm seen. No radicular symptoms or abnormal neurology signs detected in either arm.” (PCB 24)
49He said:
“The diagnosis of continuing symptoms in both knees is post traumatic chondromalacia patella resulting from the transport accident on 15 September 2017. There was also a partial tear of the posterior cruciate ligament in the right knee consistent with a blow to the front of the knee. In my opinion the injury to the posterior cruciate ligament has healed and the knee is clinically stable on examination and the ligament intact on MRI scan.” (PCB 25)
50As to the right shoulder, the doctor diagnosed “nonspecific soft tissue injury with mild capsulitis, and the continuing symptoms of the cervical spine are due to nonspecific soft tissue injury resulting from the transport accident on 15 September 2017.” (PCB 25)
51Dr Catherine Nyuthe, psychiatrist, carried out a medico-legal assessment of Ms Raita, providing a report to Ms Raita’s solicitors and the Transport Accident Commission by way of letter dated 3 May 2022. She noted:
“ Ms Raita said that initially after her discharge from hospital, she was in denial about what had happened. It had felt like a bad dream. She could not recall most of it despite others asking her repeatedly about the events. Suddenly, approximately two weeks later, she had a flashback of the accident. This had set off a cascade of recurrent panic attacks.” (PCB 31)
52The doctor noted a complaint by Ms Raita that she had developed chronic pain in both knees “but more on the right knee in her shoulders, neck and back”, as well as sleep disturbance and pervasive anxiety, recurrent panic attacks, strong avoidance of leaving home at night “and intrusive images of the driver’s face.” She said Ms Raita complained of often feeling “out of my body” and of generalised muscle tension (PCB 31). According to the doctor, Ms Raita “mentioned that the ongoing stress and anxiety she experienced exacerbated the neck pain and caused headaches” and that she was inclined to avoid shopping centres, especially at night (PCB 32). According to the doctor, Ms Raita “did not endorse any psychotic, hypomanic, manic or obsessive-compulsive symptoms.” (PCB 32) The doctor noted Ms Raita’s complaint “that she was no longer able to surf, practise karate, travel or dance [and] [s]he said that she had tried yoga but found it exhausting.” (PCB 32) According to Dr Nyuthe, Ms Raita told her that she had only had limited treatment from a psychologist at Nexus Psychology and had only seen a psychiatrist on one occasion in 2020 (Ibid). According to the doctor, Ms Raita “experienced intimate partner violence in her marriage and a subsequent motor vehicle accident as a pedestrian. This incident was terrifying, leading to concerns that she might die. She experienced several losses of physical integrity and health, of mobility, of independence and of employment.” The cumulative effect of those traumatic experiences, according to the doctor, “manifested as chronic depressive and anxiety symptoms.” Diagnosing in accordance with the diagnostic manual “DSM5”, the doctor said she believed “that Ms Raita’s symptoms are suggestive of a post-traumatic stress disorder.” (PCB 35) She said that various symptoms indicative of post-traumatic stress disorder, which she noted in Ms Raita’s case, were “typically highly distressing and have led to a significant impairment in social, occupational and other areas of functioning.” (PCB 36) As to prognosis, the doctor said it was “guarded as it is already almost five years since the date of injury. The longevity of symptoms, reluctance to trial antidepressant treatment and comorbid pain disorder may be a barrier to full remission and recovery.” She also stated “Ms Raita’s non-secondary psychiatric symptoms have not yet stabilised as it is possible the level of impairment might improve with further pain management and more assertive psychiatric treatment.” (PCB 42)
53Ms Margaret Beckman, osteopath, who, it will be recalled, has provided treatment from time to time to Ms Raita relative to a transport accident-related injury provided a report on these matters to Ms Raita’s solicitors by way of letter dated 21 March this year. Ms Beckman said:
“ My prognosis for Anna, there is chronic pain and even though Anna feels relief following osteopathic treatments there has been no significant change in her condition. Initially Anna was having weekly then fortnightly sessions, this was spaced out with the aims to transitioning to 100% at home management. Annas pain prevented this from occurring. We have trialled therapeutic breaks, which is when we stop making follow up appointments for a few months and then on return see if the condition has worsened without the treatments. On each of these occasions there was no change. This would indicate that conservative manual treatment has no clinical benefit. Since August 2021 Anna has been having treatment on an ad hoc basis through Allied Health Medicare Referrals.” (PCB 50)
Ms Beckman noted the relief obtained from “Synvisc- hyaluronic acid injections”. She said they had been successful in decreasing Ms Raita’s pain and improving her quality of life; therefore “[t]his is something I believe should be explored as an [on]going treatment given its past success.” (PCB 50)
54Dr Neels du Toit, who, it will be recalled, provided treatment including Synvisc injections to Ms Raita as a practitioner at Olympic Park Sports Medicine Centre, provided a report on her condition and treatment to her solicitors dated 4 April 2023 (PCB 51). The doctor reported upon Ms Raita’s initial presentation at the centre on 30 July 2019, stating:
“The main presenting concern at the time was increased pain with day-to-day activities like walking and standing but also an inability to do dancing and surfing which are activities she used to enjoy. Prior to presenting to me, she had intra-articular hyaluronic acid (Synvisc) injections that improved her symptoms for a period of time.” (PCB 51)
He referred to a number of attendances and concluded:
“In my opinion, she has benefited from intra-articular hyaluronic acid Synvisc injections and I am therefore requesting that she has repeat intervention to continue to improve symptomatic relief in knee pain but also allow for ongoing knee rehabilitation and also return to day-to-day activities and gentle sporting activities with less knee pain.” (PCB 51)
55Mr Matthias Russ, orthopaedic surgeon, saw Ms Raita for a medico-legal examination at the request of her solicitors on 4 August 2023. He took a history of her accident and various treatments, including the injections administered by Dr Neels du Toit. He recorded:
“Currently she says she is unable to discharge her ADLs and needs help and as mentioned above, she relies, as I understand it, quite heavily on the use of ketamine as reported by herself.
…
Furthermore, she reports that she has a very low self-esteem since she suffered the right knee injury as she is not able to act in interpersonal and intimate situations as she would like to and she is restricted. She says, also in that she cannot dance. She cannot surf. She cannot discharge any of her previous loved recreational activities.” (PCB 54)
Mr Russ said:
“In summary, Ms Raita has received a significant injury to both of her knee joints which caused patellofemoral pathology which is essentially ongoing and aggravated with increased physical exercise such as discharging DJ work or working in hospitality or having increased activity or sports activities.” (PCB 55)
He said:
“…Ms Raita would most likely benefit from quadriceps strengthening and if necessary to correct the patellar maltracking, a possible lateral release arthroscopically but also receive pain management in the light of ketamine use.” (PCB 55)
He concluded with the observation “[i]t is expected that a patellofemoral arthritis will develop with time.” (PCB 56) He observed “the prognosis of her knee condition appears to be rather poor given her pain management and ongoing symptoms.” (PCB 56)
56The Commission had Ms Raita attend Dr Joseph Slesenger, a specialist occupational physician, on 13 December 2022 for medico-legal purposes. Dr Slesenger provided his report of that assessment to the Commission by letter dated 23 December 2022. As to her right knee, Dr Slesenger said Ms Raita told him:
“…right knee symptoms have persisted with ongoing global pain around the right knee and restricted range of knee movements. She advised that the pain is constant although is variable between moderate and severe pain.” (Defendant’s Court Book (“DCB”) 7).
She also complained of pain and restrictions in the left knee, the right shoulder and the neck, as well as “posterior headaches” (DCB 7). He said that Ms Raita denied a past history of knee pain (DCB 8). On examination, Dr Slesenger noted “[s]he walked with a pronounced right-sided limp with reduced weight bearing on the right side.” Nevertheless, he said “her gait improved upon distraction.” (DCB 10) As to Ms Raita’s right knee, the doctor noted that inspection revealed no wasting. With palpation “there was tenderness over the lateral joint line and the lateral collateral ligament.” He found flexion at 90 degrees and extension at 0 degrees. He concluded that the joint was stable (DCB 12). As to her right thigh, he found a 36 centimetre circumference on the right in comparison to 35.5 centimetres on the left, and calf circumstances of 30 centimetres were equal as between left and right (DCB 13). He reviewed a raft of medical reports and investigations relative to Ms Raita, concluding as to the right knee that Ms Raita had suffered a soft tissue injury including a “PCL tear” with aggravation of chondromalatia, now in the most part resolved. He observed “I am unable to correlate her cervical spine impairment with the injury as there is no reference to such an injury in the immediate post-injury records.” He continued “[s]he also presents with a psychological impairment although this is outside my area of expertise.” Despite Ms Raita’s complaints of ongoing bilateral knee pain, Dr Slesenger observed:
· absence wasting around either knee despite the weakness identified
· failure to avoid to the right side on descending from the couch (she advised that the most significant symptoms on the day of the assessment was her right knee)
· variable limp, which appeared to improve upon distraction.
He made similar observations relative to the complaints of pain and restriction in the right shoulder:
· absence of wasting around the right shoulder despite the weakness and restricted range of movements identified
· non-myotomal weakness throughout the right upper limb
· improved range of shoulder movements upon distraction.
He said that he had concerns “as to whether there is an underlying somatic symptoms disorder. In support of this, I note evolving symptoms distal to the site of the initial injuries.” Furthermore, he said “I note a fall in 2019, resulting in a right knee injury and this is also likely to be a causal factor with regard to her current presentation.” He said “I have concerns as to whether Ms Raita had an underlying somatic symptoms disorder and this should be addressed by an expert in the relevant field.” (DCB 18)
57The Commission also had Ms Raita assessed for medico-legal purposes by orthopaedic surgeon, Michael J Dooley. He conducted an examination on 31 July 2023 and provided his assessment in a letter to the Commission dated 7 August 2023. He noted Ms Raita advising him:
“She said that she used to be very active with dancing, surfing and engaging in karate. She can no longer carry out these activities because of her knee pain. Currently she is furthering her music studies and she hopes to work as a DJ.” (DCB 23)
As to her knees, Mr Dooley observed on standing there is no deformity evident in the coronal and sagittal planes. There is no rotational malalignment as to the right knee. He said “[t]here is no effusion. There is mild patellofemoral tenderness.” (DCB 23) Mr Dooley diagnosed a soft tissue injury to the right knee (DCB 24). Mr Dooley said:
“It is now six years since the motor vehicle accident. In Orthopaedics in relation to patellofemoral chondral change, chondromalacia etc, there is a wide range of opinion in relation to treatment. Patellofemoral chondromalacia affects females more than males. Ordinary clinical practice shows us that a patient’s past history in relation to their mental health and a psychological reaction to their situation can influence pain. In my view, this applies especially to patellofemoral pain. Again, it is evident from ordinary clinical practice that one can see patients with the same degree of patellofemoral chrondral change and yet there can be a wide range in the reporting of their pain frequency, intensity etc. The majority of general Orthopaedic Surgeons feel that this condition is best treated conservatively with the emphasis on quadriceps strengthening/toning exercises, low impact exercise, simple analgesia, over-the-counter anti-inflammatory medication, alternative medicine, e.g. Glucosamine, Fish Oil etc. There are some general Orthopaedic Surgeons and specialist Knee Surgeons who believe that the condition can be treated operatively with procedures such as debridement, microfracture, chondrocyte grafting etc. My clinical experience is that surgery does not lead to predictable outcome in terms of improving pain and function. I have seen many patients who have had multiple arthroscopic procedures for this condition and who report deterioration of their symptoms in time.” (DCB 25-26)
He continued at some length, elaborating upon these issues and concluded “[i]n my view, there would be no indication to consider surgical intervention in terms of managing Ms Raita’s knees.” (DCB 26) Mr Dooley said “I believe that Mrs Raita would have difficulty carrying out regular heavy physical work or work that involved prolonged standing, prolonged impact activity and regular kneeling and squatting.” (DCB 27) He said “there were changes at patellofemoral chondropathy/chondromalacia etc, at the time of the motor vehicle accident. These changes were asymptomatic.” (DCB 27)
58It will be recalled that Ms Raita was referred for treatment to the clinic known as “Advance Healthcare”. This clinic provided what is described as “multi-disciplinary pain management assessment”. The processes at Advance Healthcare seem to have been somewhat more extensive than a single consultation with a medical practitioner lasting five minutes, which was the impression given by Ms Raita’s evidence. According to the Pain Assessment Report provided by Advance Healthcare (DCB 50) the practitioners involved were Dr Malcolm Ong, described as a senior medical practitioner and with a special interest in multidisciplinary pain management, occupational and environmental medicine and accident and emergency and trauma medicine; Mr Mathew Foreman, a physiotherapist; and Ms Hema Navaratnam, a psychologist. According to the assessment under the heading “Physical Examination”, Ms Raita was found to be:
“Able to sit for 30 minutes with the appearance of mild-moderate discomfort. Transferred with the appearance of mild discomfort. Moderately flexed cervico-thoracic posture in standing and sitting. Gait analysis showed mo [scil no] obvious abnormality. At 170cm and 62kg Ms Raita had a body Mass Index of 21.5 which was in the healthy range.” (DCB 52)
59Her ability to squat was said to be limited to 30 degrees “by anterior knee pain” (DCB 52). There then followed a number of measurements of movement of various body parts, including the knees. The assessment stated, under the heading “Pain classification”:
“Ms Raita had the following clinical features support a moderate likelihood of nociplastic pain as a significant barrier to recovery. Potential mechanisms underpinning the nociplastic pain include central sensitisation, psychosocial factors, immune related factors”. (DCB 53)
60The assessment included Ms Raita’s report of her pain on a scale of 1 to 10, with 10 being presumably the most severe pain imaginable. Pain by way of general activity was said to be 9/10. Mood 10/10 and so forth. The assessment observed:
· Pain disproportionate to the nature and extent of injury or pathology
· Widespread, non-anatomical distribution of pain
· Strong association with maladaptive psychosocial features (eg negative emotions, poor self-efficacy, maladaptive beliefs and pain behaviours, altered family/work/social life, medical conflict)
Amongst the matters remarked on relative to clinical examination were the following:
· Disproportionate, inconsistent, non-mechanical/non-anatomical pattern of pain provocation in response to movement/mechanical testing.
· Positive findings hyperalgesia, allodynia within the distribution of pain
· Diffuse/non-anatomic areas of pain/tenderness on palpation
· Positive identification of various psychosocial factors (eg catastrophisation, fear-avoidance behaviour, distress) (DCB 54)
61There was also a finding under the quote “Mental Health Section” of “[m]oderate levels of pain catastrophising as measured by Pain Catastrophising Scale and clinical assessment” (DCB 55). Under the heading “Recommendations”, the assessment stated:
“Using the ICD-11 Ms Raita had marked severity chronic post traumatic pain of the bilateral knees, lumbar, thoracic, cervical, shoulder regions and headache. There is evidence of symptomatic chondromalacia patellae of bilateral knees but features of central sensitisation cloud her presentation and a nociplastic pain mechanism appears dominant.
Ms Raita is likely experiencing some form of adjustment related psychological issue and post-traumatic stress in the context of her injury and persistent pain condition. However, further review of her psychological symptoms is required in order to establish a clear diagnosis.” (DCB 56)
62The assessment under the heading “Treatment” stated, “Ms Raita would likely benefit from a multi-disciplinary pain management program 2-3 times a week for 8-12 weeks.” (DCB 57)
Conclusions
63Mr Stanley and Mr Storey began their closing address by saying that in assessing the consequences for this plaintiff of her transport accident:
“We must look at what she can do as well 9what she can’t do to get an appreciation of how her life is varied and whether this injury has been demonstrative of serious consequences to meet the threshold.” (T90, L30 ꟷ T91, L3)
64They noted that Ms Raita had a passion for music and that she commenced study in 2019, two years after the transport accident, and completed a fairly intensive course of 10 weeks (this is apparently a reference to the course completed by Ms Raita at the Melbourne Polytechnic). They said this indicated the knee injury did not interfere to any great extent with her completion of a course which “involved some physicality”. They said she told Dr Slesenger that “she was required to set up performances to collaborate with other artists, to set up the stage.” (DCB 9, T91, L4-15) They said Ms Raita had said she planned to teach music but that COVID intervened. They referred to PCB 34 in the report of Dr Nyuthe. They said, accurately summarising the evidence given by Ms Raita in cross-examination, as I recollected:
“ She enjoyed the challenges of creating a piece of music from various sounds, working hard on it. Each track would take up to two weeks, I think was her evidence. She critically re-listened to it, make [scil. made] adjustments. She felt pride when it was achieved to her liking.” (T92, L5-10)
65They continued:
“ It was clear from the plaintiff’s evidence that it was a very enjoyable activity that she’s maintained and that has not been impeded by her knee injury. She has now got 19 tracks that are sitting there on Spotify. She is received in Europe and Germany. She has two record labels – record labels that clearly see her potential, have a financial interest to see her potential [achieved].
She has more tracks in store with the right record label and clearly will continue to produce music into the future.” (Ibid, L14-23)
66Therefore, they said, “if we just look at activities that she's retained, she's maintained an activity which brings her a lot of joy.” (Ibid, L28-30) More recently, they said, she has taken up work as a DJ, she undertook a course with a total of one hundred students and finished second (T93, L6-7). They said it was wrong to regard these things as attained only by the use of illegal drugs, “it is illogical for the only time to require pain relieving medication is when dancing. It is illogical.” (Ibid, L23-25)
67Mr Stanley and Mr Storey correctly summarised the evidence. Since the accident and despite her injury, Ms Raita has been able to “follow her passion” for electronic music and move into production of music in this format. She has attained affiliation with two record labels. However, the electronic processes cost money, the record labels have to meet promotional expenses, it is only if a particular song turns out to be very popular that the record label would make a profit and presumably it is only after a song has become profitable that any remuneration would accrue to Ms Raita (T24). Typically artists struggle. Ms Raita has not made any breakthrough at this point and given the proverbial insecurity of the artist’s life, it could not be regarded as more probable than not that she would ever be able to derive a “living” from her artistic output as a producer of electronic music (T79).
68Whilst Ms Raita remains able to “follow her passion” artistically, the Commission’s consultant orthopaedic surgeon, Mr Dooley, conceded that the injury suffered by Ms Raita in the transport accident would preclude her from work in the hospitality industry as a waitress or bartender – the occupation by which she, whilst with her former husband – supported their itinerant lifestyle. No alternative gainful employment has been identified for Ms Raita not involving the same sort of physical stressors and requirements to remain on her feet as would now seem to rule out hospitality. This is a very important consequences of the transport accident.
69I now turn to the “pain and suffering” which Ms Raita says she has suffered. Mr Stanley and Mr Storey referred to and relied upon the decision of the Court of Appeal of Richards & Anor v Wylie (2000) 1 VR 79 which, in the context of s93 of the Transport Accident Act 1986, considered the relationship between paragraph (a) of the definition of serious injury – the one relied on in this proceeding – and paragraph (c), referring to “severe long-term mental or severe long-term behavioural disturbance of disorder”. They quoted from the decision of the learned president of the court, Winneke P, arguing, “that the intention of the legislation is to create a division between the two.” (T101, L29-31)
70They conceded that his Honour did not state that “psychiatric responses can never be included in sub-paragraph (a).” (T103, L26-27) Consequently, they said it was wrong to simply identify the dominant causal factor and then consider all the consequences, psychiatric or organic, for the purposes of paragraph (a) of the definition (T105). Mr Brett KC and Mr Pierorazio contended that the effect of Richards & Anor v Wylie has traditionally been seen by reference to the judgment of Chernov JA, which has been frequently quoted in the years since Richards & Anor v Wylie and which is quoted earlier in these reasons. They said that this passage was supportive of their contention that it was proper to have regard to psychological sequelae for the purposes of paragraph (a) of the definition where the predominant cause of the injury was organic.
71In my view, the passage quoted earlier in these reasons from Chernov JA and relied on by Mr Brett KC and Mr Pierorazio is supportive of their contentions. Supports for this view may also be found in the judgment of Buchanan JA, where, having noted the need to draw distinction between psychological and psychiatric sequelae on the one hand and an organic sequalae on the other, for the purposes of considering the operation of the two parts of the definition of “serious injury”, his Honour said:
“That is not to say that mental or behavioural disorders have no part to play in considering whether the requirements of para (a) have been met or that physical incapacity is irrelevant in considering the applicability of para (c). Just as the physical consequences of a mental or behavioural disorder may have a bearing on the severity of the disorder, a mental or behavioural component can affect the question whether a physical injury is serious and long-term. However, there must be existing organic or physical injury if the injury is to be judged according to the criteria found in para (a) of the definition. If physical incapacity is due to a mental or behavioural state, it is not a serious injury within the meaning of para (a).” (2000) 1 VR 79, 89)
72Taken together, the judgments of Buchanan JA and Chernov JA therefore support the contentions on this point advanced by Mr Brett KC and Mr Pierorazio.
73Turning to the facts of the present case, all examiners are agreed that Ms Raita suffered an organic injury to her knee. Whether it is to be “downplayed” by the appellation “soft tissue” or not, no-one suggests that even if the injury is to be regarded as a mere “soft tissue” injury, that it has entirely resolved. The fundamental requirement therefore for the operation of paragraph (a) of the definition has been made out in the circumstances of the present case. In my view, whilst there is material from experts on both sides of the controversy implicating psychosocial factors as magnifying and prolonging Ms Raita’s pain, the evidence does not go the distance of establishing that the cause of her persisting pain and restrictions is predominantly psychiatric, rather than predominantly organic. The opposite seems to be the case. In those circumstances, the pain and suffering alleged by Ms Raita would seem to be properly regarded as a consequence of the transport accident for the purposes of paragraph (a) of the definition, subject only to a further point raised by Mr Stanley and Mr Storey, to which I now turn.
74Mr Stanley and Mr Storey referred to the decision of Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67. In that case, the issue posed on appeal was explained by Maxwell P as follows:
“It is difficult enough for a judge to decide whether the ‘pain and suffering consequences’ of a workplace injury satisfy the statutory definition of ‘serious injury’. But the task becomes a good deal more difficult when, by the time of the trial, a separate injury is also producing pain and suffering consequences for the claimant. This difficulty arises, for example, where between the time of the relevant injury and the Court’s assessment of its consequences, the claimant sustains a different injury which itself has relevant, and continuing, pain and suffering consequences. The present is just such a case.
The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and … at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.” (Ibid), paragraphs [1]-[2])
75Mr Stanley and Mr Storey contended that these principles were engaged because the post-traumatic stress disorder which Ms Raita was diagnosed as suffering from should be regarded as a consequence, not of the transport accident, but of the immediately following events, which could be regarded as a “kidnapping”.
76The events relative to Ms Raita’s interaction with the driver immediately after his vehicle struck her were said to be highly distressing to her and were not dwelt upon in cross-examination. Despite the sensitivity in this regard of cross-examining counsel, Mr Stanley, Ms Raita required a stand-down of the Court for some time to recompose herself. In these circumstances, unsurprisingly, the immediate aftermath of the impact with the vehicle and the events occurring before Ms Raita was admitted to hospital, were not probed during cross-examination. It was only during the defendant’s closing address that I became aware that a distinction was to be drawn between the impact and the other events. The contention that the two were to be seen as separate was made by Messrs Stanley and Storey, with little elaboration. There was no attempt so far as I could see to analyse the language of the Transport Accident Act or refer to any other cases which might be regarded as having a direct similarity or to be analogous with the present situation. Accordingly, I propose assuming, without deciding, that the distinction contended for is properly made. It would be wrong to suppose that post-traumatic stress disorder or “the shock of the moment” represents the only type of psychological or psychiatric impairment or disability which a person may suffer as a result of a transport accident. Section 46B of the Transport Accident Act draws a distinction between psychological or psychiatric impairments deriving from the “shock of the moment” being primary on the one hand and those which are secondary to physical injury. For instance, a feeling of depression and frustration following from pain and restriction of bodily function. The cross-examination to which Ms Raita was subjected for the understandable reasons explained, was not calculated to bring out such a distinction here. Common experience in personal injury litigation is that “functional overlay”, the amplification and prolongation of physical pain deriving from the physical injury beyond what organic consideration would lead one to expect, is a common reaction to organic injury and flows frequently, even in the absence of “primary” impairments, such as post-traumatic stress disorder. Despite the limitations of the evidence, I conclude with some hesitation, that there was and is an organic injury which can be regarded as the predominant cause of Ms Raita’s presentation and that, in accordance with s46B of the statute, any “functional overlay” or psychiatric reaction magnifying physical pain is “secondary” to the organic injury and therefore proper for consideration as to the consequences of that organic injury.
77By extension, the restrictions on Ms Raita’s “lifestyle”, precluding her from previous activities such as surfing and karate, may also be seen as consequences of the transport accident and the injury for the purposes of paragraph (a).
78To the extent that Ms Raita has been able to transcend her pain and physical restrictions for the purpose of performing as a DJ by the use of illegal drugs such as ketamine and marijuana, this should not devalue the consequence of the pain and suffering and restriction. The achievement is transitory. On her evidence despite feeling no pain at the time, she is “laid up” afterwards. There is the further consideration that the drugs involved are illegal. If one accepts her evidence, she can only return to her pre-accident lifestyle if “doped up”.
79Putting all these consequences together, I conclude that the consequences of the transport accident and injury are to be regarded as “very considerable” and so this application should succeed.
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