Robertson v Transport Accident Commission

[2020] VCC 115

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CI-19-00602

ALEXANDER ROBERTSON	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2020
DATE OF JUDGMENT:	21 February 2020 (Revised Oral Judgment)
CASE MAY BE CITED AS:	Robertson v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2020] VCC 115

REASONS FOR JUDGMENT
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Subject:  Accident Compensation

Catchwords:             Serious injury application – left hip injury – causation – whether consequences serious

Legislation Cited:     Transport Accident Act 1986

Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Gennimatas v Transport Accident Commission 5 VR 547; Spence v Gomez [2006] VSCA 48

Judgment:                Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram QC with Mr G Pierorazio	Arnold Thomas & Becker
For the Defendant	Mr W R Middleton with Ms A Bannon	Solicitors to the Transport Accident Commission

HIS HONOUR:

1       In this matter I propose to give oral reasons  and you will be provided with a revised transcript and a ruling some time next week.

2 Alexander Robertson came off his motorbike on 24 October 2014, when his back wheel slid out. He fractured the neck of his left femur and had surgery. Some few months later he suffered another motorbike accident, when he crashed into and over a taxi that turned in front of him on 25 February 2015. It is the effect of this accident on his left hip that is in dispute between the parties. This is because Mr Robertson claims that the injury sustained in the second accident, on 25 February 2015, is a serious injury within the meaning of the Transport Accident Act 1986 (Vic).

3       To determine that issue requires findings as to what injury occurred at the time of the first accident on 24 October 2014. This is because the defendant argues that the injury sustained on this first occasion led inexorably to avascular necrosis of the left femoral head and necessitated a total hip replacement , performed on 12 May 2017.

4       The defendant argues that the second accident had no effect, or no discernible effect, on this inexorable course which would allow a finding of serious injury arising from the second accident.

5       Before determining that issue it is necessary to set out the relevant legal test to apply in considering the circumstances in Mr Robertson's case. The starting point for that inquiry is the Court of Appeal's decision in Petkovski v Galletti.[1] That it is for the applicant, in the situation of a pre-existing condition, to demonstrate the injury sustained in the motorbike accident; and further, to demonstrate that such injury has led to consequences which may be considered serious. So much was accepted between the parties.

[1][1994] 1 VR 436, particularly at pp.443-444.

6       However, dispute arose as it was asserted by Mr Robertson that the injury sustained in the second accident had simply to be a cause of the consequences, here the avascular necrosis and the total hip replacement, rather than the sole or only cause of such consequences.

7       Mr Ingram QC and Mr Pierorazio, who appeared for Mr Robertson, cited Ashley J's decision in Gennimatas v Transport Accident Commission 5 VR 547) at paragraphs 39-40 in support of that proposition. I would also add to that Spence v Gomez [2006] VSCA 48 at paragraph 26.

8       In summary then it is necessary to identify the injury caused by the second accident and then determine if it was a cause of the consequences Mr Robertson complains of. I am then required to make a determination as to whether those consequences can, as of today, be determined to be serious consequences.

9       Turning to the first accident. This was the result, in Mr Robertson's words, of a low speed event. He had taken off from a standing start and was turning at about 10 kilometres per hour. His back wheel lost traction and the motorbike fell. He was taken to The Alfred Hospital where he came under the care of Mr Russell Miller, orthopaedic surgeon. X-rays showed a  displaced fracture of the left neck of femur.[2]

[2]Plaintiff’s Court Book (“PCB”) 16

10      Surgery was performed by Mr Miller, involving fixation with three screws to reduce the fracture to anatomical position. Mr Robertson remained in hospital for about two days and then mobilised on crutches. Broadly, his affidavit evidence deposed to returning to work after six to seven weeks and improving with his pain and range of motion. In cross-examination he gave evidence that by late January or early February 2015 he felt confident enough to return to riding his motorbike. He conceded he had remained on Endone in this period and was not playing basketball, running or hiking.

11      At a scheduled standard review on 20 February 2015 with Mr Miller, he was noted to have been making satisfactory process. An X-ray confirmed anatomical reduction but not union of the fracture which had been fixed with the screws.

12      Turning to the second accident. Mr Robertson provided further viva voce evidence to expand on the circumstances of the second accident. In that evidence he described travelling at 50-60 kilometres per hour, colliding with the taxi and falling over it. He landed on the road on his left side. His evidence was that he travelled some five to 10 metres in this fall. This was a much heavier fall than the first accident.

13      Mr Robertson was challenged in cross-examination that he did not really suffer a left hip injury in this accident, but rather that it was more a left ankle problem. I reject that argument, given Mr Robertson's evidence of his heavy fall to the left lower body and his evidence of pain in the left hip at that time. I note his credit was not seriously challenged and I regard him as a witness of truth.

14      Further, the contemporaneous notes show:

(a) he had improving pain prior to the second accident and was now marginally worse ;[3]

[3]Defendant’s Court Book (“DCB”) 18

(b) the records show he had left hip pain and not ankle pain;[4]

[4]DCB 23, 24

(c) the left hip pain was now noted to be causing difficulty in weight bearing, when quite clearly before this day and on 20 February 2015 it was not;[5]

(d) his treating doctor recorded him with pain in the left hip, as tender over the site of the left hip and was so concerned that he ordered an ultrasound on 2 March 2015.[6]

[5]DCB 25

[6]DCB 22

15      What is also noteworthy is that Mr Miller reviewed the CT scan of the left hip on 25 February 2015 and he considered it showed a non-united fracture with 'slight displacement compared to the x-ray film on 20 February 2015.[7]

[7]PCB 16

16      No other doctor has viewed the films as Mr Miller has, with his knowledge. While the radiologist reporting the CT scan does not record this,[8] she does note that clinical correlation was necessary prior to confirming the conclusion.

[8]DCB 21

17      Mr Miller was not only the treating surgeon for the first accident but he subsequently went on to review Mr Robertson numerous times, perform arthroscopic surgery and ultimately, the total hip replacement. He was, on any view, uniquely placed to offer his opinion on what the CT images of 25 February 2015 showed and how they correlated to the clinical findings. I accept his view.

18      This leads to a finding then of the injury caused by the second accident. It was said by Mr Robertson's specialist, Mr Miller and a medico-legal orthopaedic specialist, Mr Gardiner, that the second accident caused a direct impact trauma to the left hip that was a cause of the ultimate development of avascular necrosis, necessitating a total hip replacement.[9]

[9]See Mr Gardiner at PCB 26 and Mr Miller at PCB 18

19       I accept that was the injury caused.

20      The defendant relied on the opinion of Mr Mills and Mr Menz, both orthopaedic specialists. Mr Mills was of the view that even without the second accident there was a 70 per cent chance of Mr Robertson developing avascular necrosis and requiring a total hip replacement.[10] He did note, however, that it was impossible to calculate a risk for Mr Robertson of developing avascular necrosis after the first accident alone.

[10]DCB 10

21      It does not seem to me that Mr Mills' position much assists the defendant. This is because he leaves entirely open the possibility that Mr Robertson might not have developed the avascular necrosis and had the total hip replacement after the first accident. As a result, his opinion sits comfortably with the opinions of Mr Miller and Mr Gardiner, in that it allows for their thesis that the second accident caused trauma to the left hip that was a cause of the avascular necrosis and ultimate total hip replacement.

22      The defendant also relied heavily on the opinion of Mr Menz, who considered that the second accident caused no injury that had a role in the development of the avascular necrosis. I would reject that opinion for the following reasons. First, Mr Menz has not seen the scans of 25  February 2015. He has had only the reports. There is disagreement as to the interpretation of the CT scan of 25 February 2015. I have already set out my finding that it records a worsened displacement of the fracture line. I have set out above why I prefer Mr Miller's interpretation.

23      Mr Menz relies in part for his ultimate opinion on the failure of the scans on 25 February 2015 to show displacement. Given my finding that there was slight displacement, I consider this significantly dilutes Mr Menz's ultimate opinion. Secondly, Mr Menz is at odds with Mr Miller, Dr Gardiner and even Dr Mills. All these practitioners accept, implicitly or explicitly, that the second accident has or could have played a role in Mr Robertson's avascular necrosis and total hip replacement. Dr Menz's opinion then is isolated. Thirdly and allied with the first point is my opinion that Mr Miller is best placed to opine on Mr Robertson's condition and its causes, given his extensive treatment of him.

24      Having set out those findings as to the injury caused by the second accident, I turn to consider the consequences. In doing so I am mindful of the need to strip out those consequences flowing from the first accident and I do so. Here the injury that was occasioned in the second accident was at least a cause of serious consequences for Mr Robertson, given my acceptance of Mr Miller and Mr Gardiner's opinions.

25      Further, Mr Robertson was a credible witness. His evidence as to the consequences is essentially unchallenged. They must, in my opinion, mandate a finding of serious injury. In short form, those consequences are:

(a) the development of pain/limitation of movement as the avascular necrosis developed leading to the total hip replacement;

(b) fulminant avascular necrosis requiring major total hip replacement surgery on 7 May 2017, noting also the development of arthritis in the joint for a man who was at that stage very young to have such surgery;

(c) the requirement for at least one to two future total hip replacements;[11]

[11]PCB 4, 15

(d) limitations with walking, standing and sitting for long periods which are noted by Mr Robertson to be difficult, even now ;[12]

[12]PCB 9

(e) travelling on long flights is difficult. This poses problems particularly for Robertson, given that he has family in Singapore who he would regularly see. Further, he noted difficulties in flights to Perth and an inability to accompany his friends to the United States;[13]

(f) physically he remains challenged doing things such as running, climbing, stairs and lifting heavy weights. For a young man who was physically active it will be a long time to live with his disability.

[13]PCB 10

26      In summary then I will grant the plaintiff a serious injury certificate arising from the accident on 25 February 2015.

27      I will hear the parties as to costs.

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