Sarhanis v Transport Accident Commission
[2023] VCC 331
•10 March 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-02344
| OLGA SARHANIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2023 | |
DATE OF JUDGMENT: | 10 March 2023 | |
CASE MAY BE CITED AS: | Sarhanis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 331 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – left knee impairment – causation – aggravation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Rowe v Transport Accident Commission [2017] VSCA 377; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; De Agostino v Leatch & Transport Accident Commission [2011] VSC 249
Judgment:Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti SC with Mr S Carson | Arnold Thomas and Becker |
| For the Defendant | Mr A J McG Moulds KC with Ms S Manova | Hall and Wilcox |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 7 February 2020 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function relied upon is the left lower limb.
4The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.
6In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant or marked”?[1]
[1] See Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141
7Section 93 of the Act requires, and the Court of Appeal has made it plain in Petkovski v Galletti,[2] R J Gilbertsons Pty Ltd v Skorsis,[3] AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[4] and De Agostino v Leatch & Transport Accident Commission,[5] the task of a judge hearing an application under s93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.[6]
[2][1994] 1 VR 436
[3](2000) 12 VR 386
[4](2012) 34 VR 309
[5][2011] VSCA 249
[6] Rowe v Transport Accident Commission [2017] VSCA 377 at paragraphs [82]-[84]; Transcript (“T”) 7
8The plaintiff swore four affidavits and was cross-examined. She also relied on affidavits sworn by her daughter-in-law, Cathy Sarhanis, on 23 January 2023 and her former employer, Lawrence Han, on 14 and 20 February 2023. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
9The defendant accepts the plaintiff was injured in the accident but disputes the level of impact was of any great force.[7] In issue is whether the plaintiff’s serious left knee condition as at the date of hearing is related to the accident or the result of degeneration as Dr Menz opined.[8]
[7]T9
[8]T8
The Plaintiff’s evidence
10The plaintiff is nearly eighty-one, having been born in March 1942. She is married. Her husband suffers from dementia.
The accident circumstances
11The plaintiff initially deposed that on 8 February 2020, she was parking at the shopping centre in Dandenong North. She was in the process of getting out of the car. She was still seated but had turned her body to the right and had stepped out onto the ground. A white-coloured four‑wheel-drive then drove past and hit the driver’s door of her car. This caused the door to swing shut against her left knee. She exchanged details with the driver of the white car, registration number WTE 401, and the police attended and took down various details.[9]
[9] Plaintiff’s first affidavit sworn on 15 April 2021 (“the first affidavit”)
12More recently, she explained the white car did not hit the driver’s door. It struck the back left corner of her car. The jolt of the impact caused the driver’s door of her car to swing shut on her knee.[10] “Maybe [she] misunderstand with the lawyer and said it the other way around (sic)” in her first affidavit.[11]
[10]Plaintiff’s third affidavit sworn on 14 February 2023 (“the third affidavit”)
[11]T18
13The plaintiff left the witnessbox and took her chair with her. While seated, she demonstrated her position when her left leg was hit by the car door. The door went hard on her left leg while it was still in the car. Her position was shown in the photographs exhibited to her third affidavit.[12]
[12]Photographs taken by the plaintiff’s daughter on 2 October 2022
14The interior trim of the door was broken by the force of her knee and/or leg hitting against it. The door hit her “very forceful, very forceful,” on her knee.[13] She confirmed the damage to the door was shown in another photograph exhibited to her third affidavit.
[13]T43
15The car was already carrying some other damage, but the dents and marks shown on the back left side of the car in the photographs were what she believed were the new dents or scratches caused by the white car hitting her vehicle.[14]
[14]Photographs exhibited to the third affidavit
16She had the assistance of an interpreter in swearing her third and fourth affidavits. Her son interpreted her second affidavit.
17In her fourth affidavit sworn on 20 February 2023, the plaintiff deposed the accident happened on 8 February 2020.
18She was going to work in the late afternoon that day. She had parked a few car spaces from the fish and chip shop (“the shop”) where she worked. It was after 4.00pm, and she was due to start work at 4.30pm.
19After the accident, she made her way to the shop and spoke to her boss, Lawrence. She recalls knocking on the glass window, and he came out the front, and she told him another vehicle had struck her car. She also told him she had hurt her leg. She could recall she was unsteady on her feet as she walked to the shop due to pain. She did not work that night because of pain.
20She tried to work the next evening but only lasted half-an-hour to an hour, as her left leg and knee were too painful and the job required her to be on her feet, and she was not able to keep going.
21She was then working Friday and Saturday evenings. She understood that 8 February was a Saturday, which made her conclude the accident was probably on 7 February, being the Friday night that she did not end up working after the accident.
22She could not remember what day she went to the police station, but she did go, “so they could fix [her] car”. She could not remember if that was before or after she went to the doctor on 30 March 2020.[15]
[15] T36
23A police accident report dated 30 March 2020 set out:
“RP is Olga SARHANIS lic [number omitted] parked her vehicle a holden commodore with reg 1NE8GC was parked in a front on car park out the front of 36 brady Rd, Dandenong on the 8/2/20 at approx. 1615 hrs. RP was getting out of the drivers side door. A wh[i]t[e] jeep with registration WTE401 driver gave details of Emma YACHOU. WTE401 has hit the back of 1NE8GC causing the door to slam into RP's knee. At the time RP believed that there was no injuries but later had to attend hospital for an MRI due to pain in knee. Driver of offending vehicle gave details at the scene however there have been issues contacting her since. Report required for TAC as there is reported to be an injury. Follow up to be made with reg owner of Jeep to confirm details as still listed to a car dealership.”
(sic)
24The plaintiff lodged a TAC claim in March 2020. She did not know when she made the claim.[16]
[16]T36
25The TAC Claim Form dated 31 March 2020 set out:
“I was parking the car and I had stopped the car. I was sitting to get out of the car and when I opened the door to get out she smashed into my car. The door smacked closed on my knee.”
Post-accident pain and treatment
26After the accident, the plaintiff immediately felt sharp pain in her left knee. The pain became even more severe when she tried to weight-bear on it. However, she was initially hopeful the pain would settle down with time.
27Unfortunately, the pain did not seem to be getting any better. She was limping as a result of the pain. She found it hard to get about, and simply standing from a seated position was difficult.
28She eventually went to see a doctor about the problem and was told to rest and use a knee support. She was also referred for scans and prescribed painkillers and anti-inflammatories.
29Dr Karantonis from Dandenong City Clinic (“Dandenong”) has been her general practitioner (“GP”) for about fifty years. He speaks Greek. She has no difficulty communicating with him.[17]
[17]T13
30Cross-examination focussed on the plaintiff’s attendances at Dandenong just before and after the accident, together with her attendance at Monash Health (“Monash”) on 1 March 2020.
31On 31 January 2020, the plaintiff saw Dr White at Dandenong for back pain. On 5 February 2020, she saw Dr Anthony Karantonis, again for low-back pain. He then noted low-back pain had then settled with Panadol and fully resolved.[18]
[18]T26
32On 14 February 2020, a week after the accident, the plaintiff again saw Dr Karantonis. She only mentioned her stomach because that was the priority. She was in significant pain and was taking painkillers for her left knee.[19]
[19]T26
33She saw Dr Karantonis again on 24 February 2020 for stomach pain. Three days later, she saw a podiatrist at Dandenong, who cut her toenails. She did not mention her knee, because she went there to have her nails cut.[20]
[20]T26
34On 1 March 2020, the plaintiff was taken by ambulance to Monash. The discharge summary set out:
“- yesterday while moving around in kitchen in the morning, gradual onset of left knee pain
- trialled paracetamol at home to no effect
- able to get to sleep
- today at 5am, got up to go to toilet but couldn’t stand up from sitting on toilet and had to get husband to help her
- 1 x vomit this morning prior to endone (liquid contents)
- took 5mg endone this morning to no effect.”
35The plaintiff agreed she told the hospital about left knee pain when moving around in the kitchen the previous day. She had immense pain in her left knee at the time. She needed the ambulance because she could not physically go to the hospital, and she could not get up. [21] Her whole knee was in pain, “… it was like paralysed”. They put her on a stretcher and transported her to the hospital and gave her painkillers.[22] She did not tell the ambulance officers that she had an injury. She did not mention it because she did not realise that there was a link between the car accident and her left knee pain.[23]
[21]T27
[22]T42
[23]T30
36She could not remember being asked at Monash why the pain had flared up. She assumed she was asked, but that really was not her concern at the time. She could recall that she was much more worried about the fact that she was in so much pain and having trouble putting weight on her left leg, even though all she had been doing was walking around the house the day before. She had not done anything physically demanding that day or for a very long time, and yet was at a point by then that she was having trouble standing.[24]
[24] T24
37When it was suggested she did not tell anyone the accident caused her knee pain, she said: “They didn’t ask me where it’s from, where it’s caused from. I just said that my left knee is in pain, but they didn’t ask me what caused it.” The ambulance officers did not ask her either.[25]
[25]T28
38On 2 March 2020, the plaintiff saw Dr Karantonis, who recorded: “niggle[d] L an calf an leg sat [ended] up [Accident and Emergency].” (sic). An x‑ray of left knee showed “nad”. There was then pain across the left distal tibia down to the lower ankle. It was noted there was no soft tissue pain, redness or swelling, and an x‑ray of the left knee was requested.
39She told Dr Karantonis she had been to the hospital, and they had sent her off for an x‑ray. She could not remember what she said to him at that visit.[26]
[26] T31
40On 3 March 2020, she saw Dr Karantonis, complaining of pain with weight bearing on the left. Further investigations were requested, and Endone was prescribed. She could remember getting Endone that day, but it was for her right knee and for her back.[27]
[27]T31
41She did not tell Dr Karantonis about the accident until later, because she did not realise that the pain in her left knee was due to the accident. She did not link it at that stage. She linked it afterwards.[28]
[28]T32
42When told Dr Karantonis reported that at the initial consultation on 3 March 2020, she was not able to provide an antecedent cause for her knee pain, the plaintiff did not remember what she told him about her pain and the accident. She did tell him about the accident – “Didn’t I tell him? I don’t know. I must have.”[29]
[29]T34
43On that visit, she was still less concerned about what might have caused the problem and was more concerned about what could be done with it.[30]
[30]T35
44On 4, 10, 17 and 20 March 2020, the plaintiff again saw Dr Karantonis for her left knee pain, but he did not make any note of the accident. She did not mention the accident because “I didn’t know what it was from and that’s why I failed to mention the accident”. This was because the pain was “recurring” and was continuing. That was when she said, “The pain is due to the accident, it must be”.[31] By “recurring”, she meant that she had pain constantly.[32]
[31]T32
[32]T43
45On 30 March 2020, Dr Karantonis first noted the accident:
“approx 4/52 ago inthe car had a car door hit side the kneedoor slammed ontothe L knee
now assoc on goign localised
severe pain
own car door crushed L leg assoc
4 wheel drive had been reversingpain ++ but forgot to notify Dr.”
(sic)
46She did not mention the accident until late March because “It didn’t click to me that all this pain is due to the accident, but then I mentioned it ... .”[33] She did not realise the root of her pain was due to the accident.[34]
[33]T34
[34]T35
47She did not connect the accident on the earlier visits, although she had suffered increased left leg and knee pain from the time of the accident and had bruising around the knee and over the leg for some time afterwards at the level where the leg was briefly wedged between the sill of the car and the door.
48It was at some stage later in March 2020 that she realised what had triggered the pain. She could not say on what date exactly, but some time in March 2020 she told her GP she thought the accident was probably what had caused the problem. “So then I linked my pain in my left knee to after the accident.”[35]
[35]T23
49She thought the pain would go away after the accident. She made the connection because the pain she was having in her left knee she had never had before, so she linked it with the accident.[36]
[36]T24
50She would have asked her husband to provide an affidavit to confirm this; however, he suffers from Alzheimer’s. She has therefore been limited in who she can rely on to confirm the timing of the accident injury.
51When it was suggested it was “nonsensical” that she did not realise until late March the accident probably triggered her pain, she said:
“So, when I did go to my GP ... he was asking why would you have pain in your left knee and I said to him, I have this pain in my knee ever since I had the car accident.”
“Because I never expected that I’d have pain as a result of this accident otherwise I would’ve gone straight away, if I knew I was going to make a claim I would’ve gone straight away.”
“[At Monash Medical Centre] again I didn’t realise that my knee pain was due to the accident on 1 March.”[37]
[37]T23
52She denied that the pain and disability she related to this accident was temporary and only lasted two or three days. Her pain was constant after the accident.[38]
[38]T23
53The delay in knowing the accident was a trigger, was because before March and before the accident, she never had a problem with her knee. It was after the accident that all this happened: “Why don’t you believe me?”[39]
[39]T24
54She agreed that her knee being struck by the door was a really very important thing that occurred in her life. She cannot do any of her housework, her chores. She cannot do gardening, and it limits her ability to do anything. She agreed she had known from the day that this accident happened that her knee problem that affected her badly was caused by the accident. “I never have a problem like this before.”[40]
[40]T18
55Before the accident she used to walk everywhere. She had no problem. She was able to do all her household chores, her gardening and shopping, go to the Greek club, everywhere she used to go, and now she goes nowhere.[41]
[41]T42
Subsequent treatment
56She was told the scans organised by Dr Karantonis showed a fracture. As her knee was not getting any better, she was referred to orthopaedic surgeon, Mr Patrick Byrne, whom she first saw in April 2020.
57He advised her to keep using a knee support and keep using painkillers and anti-inflammatories. He told her to keep the weight off her knee where possible. She was then using a walking stick to help keep weight off the leg and help with her balance.
58She remained under Mr Byrne’s care, although things did not seem to be getting any better. She was still in a lot of pain and was struggling to get about with her knee and leg being so restricted by pain.
59Mr Byrne eventually referred her for an ultrasound-guided injection of cortisone and anaesthetic into her left knee, which occurred in July 2020. Unfortunately, while it gave her some limited pain relief, it did not give her any lasting improvement. Her knee was still very tender, and she was very much restricted in her mobility and use of the leg.
60Mr Byrne advised a knee replacement was an option, but she was not particularly keen on that suggestion, as she had had a thrombosis previously in her right leg, probably caused by using a knee brace.
61In February 2021, Mr Byrne advised her some further scans showed there was still a lot of damage in her knee, and he suggested a further injection, but told her that it may well not help at all, bearing in mind that the earlier one had not been a success. She was also advised that knee replacement surgery was still an option.
62She followed Mr Byrne’s advice and had another injection into her left knee in April 2021, but that did not seem to do anything much at all.
63As at April 2021, despite the failure of the most recent injection, she still was not at all keen to have surgery. While she struggled with daily pain and restrictions, she was very worried about complications of major surgery at her age. She also understood a knee replacement was not a guarantee of total recovery, as Mr Byrne advised.
64She then realised she was now going to have to do the best she could with her knee. She was still using a brace, as she needed support, and was concerned about the future, about the possibility of future clots.
65She was then relying on painkillers and anti-inflammatories which helped with the pain, but not always. Particularly when the pain was very bad, they did not seem to do much at all. She had to live with the pain all the time, and it was only a question of how bad it would be.
66She was still relying then on a walking stick, which she needed to keep pressure off her knee and for balance. She had had a recent fall, indicating that the stick was probably not enough on its own. She was then looking into a mobility scooter.
Pre-existing conditions
67It had been explained to her that the Transport Accident Commission (“TAC”) had rejected her claim, and it was her understanding that its view was that she already had knee injuries. She agreed her knees had been far from perfect, but she had been still well able to get about and engage in many daily activities that required walking or being on her feet for extended periods.[42]
[42] Plaintiff’s Second Affidavit sworn 15 December 2022, page 3
68This all changed after the accident. The impact of the accident was not something that she fully realised for some time after the accident. The knee was painful immediately, although she initially thought this was bruising or some superficial damage that was going to go away.
69She had the help of an interpreter swearing her third affidavit. Her English was not bad, and she could get by with most basic documents and with talking to others in a shop, but with a more complex legal document she thought it better to have it interpreted.
70While her second affidavit said her “knees” were far from perfect before the accident, she only had problems with her right knee, never with her left.[43]
[43]T18
71The affidavit was basically wrong.[44] She did not have an interpreter when swearing this affidavit.[45] She did not know the reason why the TAC rejected her claim. She had never mentioned that both her knees were damaged. She always said that her right knee was damaged before the accident. Maybe there was a mistake due to the interpreter not being present.[46]
[44]T20
[45]Her son interpreted the affidavit
[46]T21
72The plaintiff had a lot of back pain before the accident – “slip disc - hip pain.” She had a little bit of trouble with her lower back, right hip and knee - “sometimes. A little bit. Not much.”[47] She never had any problem with her left knee.[48] Her GP gave her Endone for her lower back and right knee on occasion.
[47] T12
[48]T13
73She was granted a disabled parking permit in relation to her right knee and back pain in 2012,[49] 2015 and 2018[50] and had a current permit at the time of the accident. She had a permit because she could not walk very far because of her right knee and back.[51]
[49]Discogenic pain and right knee
[50]Discogenic back pain and arthritis knee and hip
[51] T14
Current condition
74As at December 2022, things were still “really bad”. Her left knee was painful all the time. It was only the severity that varied. The injury and its limitations had been a massive blow to her.
75Before the accident, she was able to get about in her car and go shopping. She greatly valued her mobility and independence, and now had to rely much more on her husband. She even struggled with basic household chores, as she struggled when on her feet. Her husband helped with vacuuming and mopping, and she felt very bad having to rely on him, but she did not have much choice.
76She really did not get about very much, as her knee was not up to walking very far, and she had not been able to go to church for a long time, which was upsetting.
77She felt a great sense of loss of her independence, and it upset her to think that this was the way things would be for the remainder of her life.
78She still used a knee brace, although she was worried about a clot. She now had a walking frame to help her get about but tried to avoid it unless she really had to, and she felt it best to keep as active as possible.
79Her sleep was still not good. She was struggling to get to sleep due to pain since the accident, and she would put a pillow under her knee in bed to help with the pain, but it did not always work.
80She was taking Tramadol daily, and Panadeine Forte two or three times each week on average. She was seeing Dr Anthony Karantonis each fortnight.
81As at 14 February 2023, her pain and restriction have not changed. Her mobility issues remain the same.
82She still used her knee brace some of the time, and a walking stick practically all the time. She struggled with weight bearing and walking very far, and if she walked for a longer distance, she used her walking frame or her scooter.
83She still sees Dr Karantonis. She is taking Tramadol and Panadeine Forte. She usually takes three Tramadol in the morning and one at night. She takes significantly more Panadeine Forte, usually two each morning and sometimes one or two in the afternoon if going somewhere of an evening, which is rare.
84The tablets also help with some shoulder pain that she has been having after she had a fall when her knee gave way. There had been some suggestion of cortisone injections for her right shoulder, although they had not gone ahead.
Impact on work
85At the time of the accident, the plaintiff was doing some part-time work in a fish and chip shop. For about a month, she had been working seven hours a week, from 4.00pm to 7.30pm on Fridays and Saturdays.[52]
[52] T11
86She tried to keep working after the accident, but only lasted about half-an-hour or so before she had to stop due to leg pain.
87In December 2022, the owner pleaded with her to assist as they were short-staffed, so she worked a two-hour shift on a Friday and one on a Saturday, cutting meats, lettuce, and tomatoes. She had knee pain and had to sit after a short period of time, as she could not stand any longer.
88She has no paperwork or wage records associated with this job. She was paid in cash.[53]
[53]T11
89She chose to work in the shop as this is all the work she knows. She used to have her own shop. She also used to work in a sandwich bar in Hallam a year before the accident, about three to four hours in the morning.[54] She stopped that job because they wanted her to work more hours, and she could not do so because of the pension.[55]
[54]T41
[55]T39
Lay evidence
Lawrence Han
90Mr Han swore his first affidavit on 14 February 2023. He is the proprietor of the fish and chip shop in Brady Road, Dandenong North, and employed the plaintiff for about a month in early 2020. She worked for two evenings each week from 4.00pm till 7.30pm.
91The plaintiff was a good employee, and he was happy with her work performance. He could recall her coming in to work one afternoon and telling him she had hurt her leg and knee after a car accident in the car park. She said that a car bumped into her car. He did not see the accident. He could not say what date it was, but recalled she worked for only a short period that day before telling him she was in pain and had to go home.
92She then came in to work the next afternoon but only worked about half-an-hour before leaving.
93The plaintiff had recently assisted at the shop, as they were very short staffed in December 2022, working a two-hour shift on a Friday and one on a Saturday, cutting meats, lettuce, and tomatoes. She had to quit after a certain period as she was experiencing pain in her knee and could not stand any longer. Otherwise she had not worked since shortly after the accident.
Cathy Sarhanis
94The plaintiff’s daughter-in‑law, Cathy Sarhanis, swore an affidavit on 23 January 2023.
95Ms Sarhanis could remember visiting the plaintiff along with her husband either a day or two after the accident on 8 February 2020. She could remember the plaintiff discussing with her the accident circumstances and her left knee injury.
96The plaintiff told her that she had parked her car at the shopping centre in Dandenong North and was in the process of getting out of the car from the driver’s seat. Another vehicle hit her car, which resulted in the driver’s door closing in and hitting her left knee.
97She can recall the plaintiff experiencing pain in her left knee at the time, and she believed the plaintiff was going to consult her GP. At the time, she recalled they had also spoken about the fact that the plaintiff had not been able to contact the other driver who was involved in the accident.
98On 31 March 2020, she emailed the TAC to advise the correct accident date was 9 February 2020, which was in fact not correct.
The Plaintiff’s medical evidence
Treaters
Dr Anthony Karantonis, GP
99Dr Karantonis reported in February 2021 and August 2022.
100In his first report, he noted the plaintiff presented on 3 March 2020 complaining of left knee, pretibial and calf pain and difficulty with weight bearing. At the initial consultation she was unable to provide an antecedent cause. Investigations were requested.
101Initial x‑rays of 3 March 2020 and ultrasound of the left knee showed no fractures and mild osteoarthritis. A subsequent CT scan of the left tibia was reported as normal. Ultrasound showed a medial meniscal protrusion associated with an intact Baker’s cyst. None of the above findings were sufficient to explain the significant pain and inability to weight bear; however, a decision was made to seek an orthopaedic opinion from Mr Tran.[56]
[56]It does not appear Mr Tran saw the plaintiff
102On 30 March 2020, the plaintiff stated that approximately four weeks earlier she had been getting out of her car when a reversing four-wheel drive hit her door and her left knee and leg were caught and crushed between the car and the door causing severe pain. The police attended but she had forgotten to mention this when questioned originally as to possible injuries.
103In view of this new information, an MRI scan was requested to exclude a subacute compression fracture not visible on x‑ray or CT scan. An April 2020 MRI scan was reported to show both femoral condyle and medial tibial plateau fractures, leaking Baker’s cyst, and extruded medial meniscus.
104A note was made by the radiologist that even on a retrospective examination of the earlier radiology, the fractures were not visible.
105Mr Byrne’s advice was sought. He provided intra-articular steroid injections with local anaesthetic and a knee brace. If all else failed, a knee replacement would be required. A bone scan requested by Mr Byrne confirmed the fractures and injuries.
106In October 2020, wearing a compressive knee brace, the plaintiff went on to develop a DVT and had required anticoagulation. That was a direct result of her knee injury and treatment.
107There was ongoing knee pain with weight bearing and very little improvement, despite a variety of neuropathic medications, analgesia, and narcotic medications.
108The diagnoses at that stage were left femoral and tibial fractures and left DVT. The condition had not stabilised, and in all likelihood would require a total knee replacement. This would be complicated by the plaintiff’s risk of blood clotting. The injuries were permanent and had not stabilised at that stage.
109The injuries had affected all areas of the plaintiff’s daily activities and severely limited her ability to move walk and function normally
110In his August 2022 report, Dr Karantonis repeated the contents of his earlier report.
111He added that whilst the plaintiff was putting on her pyjamas in August 2021, her left knee gave way and she fell heavily, injuring the right side of her head, her right shoulder, right knee and chest.
112With ongoing pain and restricted shoulder movement, ultrasound assessment showed evidence of a supraspinatus full thickness tear and subacromial bursal impingement.
Mr Patrick Byrne, orthopaedic surgeon
113Mr Byrne first saw the plaintiff in April 2020 when she presented with a painful knee following a car accident. The injury occurred approximately two months earlier.
114She stated when she was getting out of her car, another vehicle drove past and hit her on the left knee. She developed pain over the medial aspect of her left knee, and complained of severe pain on weight bearing. She also reported significant pain at rest. In view of the fact that she had severe pain, she was referred for investigations.
115On initial attendance, an x‑ray which showed no obvious fracture, and a CT scan of the left tibia and fibula revealed no acute fracture. The MRI revealed a bone bruise/occult fracture in the medial femoral condyle and the medial tibial plateau. The plaintiff was advised to continue with her knee support, anti-inflammatories, and limited weight bearing.
116On review on 6 May 2020, the plaintiff reported her left knee pain was slowly improving, but she was still complaining of discomfort over the anterior medial aspect of her left knee.
117Repeat x‑rays revealed some mild degenerative changes but no obvious fracture. He advised the plaintiff to allow further time to see if her pain would eventually resolve.
118On review on 1 July 2020, the plaintiff was complaining of ongoing pain in the left knee, and in the intervening period, had been diagnosed with a DVT for which she was on medication. She was still requiring Tramal.
119On review following the July 2020 MRI scan, the plaintiff was advised the occult fracture of the medial tibial condyle had resolved; however, there appeared to be progression of the fracture involving the medial femoral condyle.
120He described the report of the July 2020 CT scan of the left knee.
121On review three days later, the plaintiff stated that her pain was not getting any better. There was an ultrasound-guided injection of the left knee joint with cortisone and local anaesthetic in July, and a bone scan of the left tibia later that month.
122On review on 24 July 2020 after the injection, the plaintiff was still complaining of ongoing pain over the medial aspect of the knee. Mr Byrne recommended she wait a further three weeks to see if there was any beneficial effect from the cortisone injection.
123On 14 August 2020, she reported that there had been no real improvement. She was advised the option would be to consider a left total knee replacement if the pain persisted, but she did not want to consider that at that stage, as she was still recovering from the DVT.
124The plaintiff returned, still complaining of pain, on 2 February 2021, and she was referred for up-to-date weight-bearing x‑rays and a repeat MRI scan. There was also an ultrasound of the left lower limb.
125There was a repeat MRI scan of the left knee in February 2021, and a review on 23 February 2021. The plaintiff was advised of the results and told she could adopt an expectant approach. She could consider a repeat injection, noting the last one had only provided a marginal improvement. He advised her that the definitive treatment to give her long-term relief would involve a replacement, but she was keen to avoid that procedure. She was given a referral for a repeat ultrasound-guided injection and did not want to consider any surgery.
126The plaintiff was discharged to the care of her GP on 23 February 2021 as he thought her condition had then stabilised. There was a possibility she may require further intervention to try and alleviate her left knee pain. He thought the definitive treatment would be a total joint arthroplasty to give her long-term relief, but this would involve major surgery with the associated risks, particularly venous thrombosis. She was not keen to consider that procedure.
Investigations
127An x-ray of the left ankle and knee was carried out on 2 March 2020. No acute fracture was detected. There was mild medial femorotibial joint compartment osteoarthritis
128A CT scan of the left tibia of 3 March 2020 was reported to show no specific abnormality or evidence of an occult fracture.
129An MRI scan of the left knee of 30 March 2020 was reported to show subchondral insufficiency fractures of the medial femoral condyle and medial tibial plateau without disruption of the overlying subchondral plate or articular surface collapse. Mild to moderate patellofemoral arthritis was noted.
130A further MRI scan of the left knee was conducted on 1 April 2020. The clinical note set out “crush medial aspect of the left knee 4 weeks ago, cannot weight bear, initially ? occult crush fracture.”
131The MRI was reported to show subchondral insufficiency fractures of medial femoral condyle and medial tibial plateau without disruption of the overlying subchondral plate or articular surface collapse. This was almost certainly secondary to a full-thickness obliquely oriented radial tear separating the posterior horn of the medial meniscus from the meniscal root, with partial extrusion of the medial meniscus body Mild to moderate patellofemoral osteoarthritis, small effusion, leaking Baker’s cyst. These early changes are usually only visible on MRI and in retrospect, cannot be detected on previous MRI.
132The plaintiff underwent an MRI and CT scan of her left knee on 7 July 2020. It was reported the MRI scan revealed a likely impaction fracture rather than an insufficiency fracture given the mechanism involving the medial femoral condyle demonstrating progression with subcortical fragmentation and fibrocystic change and nominal flattening of the articular condyle. It was noted that there had been a mild reduction in the degree of marrow oedema and an almost complete resolution of the injury involving the medial tibial condyle.
133It was reported the left knee CT scan revealed a mild depression of the left medial femoral condyle subchondral bone plate with associated subchondral sclerosis and subchondral cysts in keeping with the plaintiff’s known subchondral fracture.
134A repeat MRI scan of the left knee dated 8 February 2021 was reported to show a radial tear of the medial meniscus which extruded peripherally. A chronic osteochondral lesion involving the medial femoral condyle with flattening of the articular surface and subcortical syst formation was noted, as well as marrow oedema in keeping with an old insufficiency fracture. No acute injury was noted.
Medico-legal evidence
Mr John O’Brien, orthopaedic surgeon
135Mr O’Brien saw the plaintiff in the company of her son in September 2022.
136The plaintiff gave a history of the accident circumstances consistent with her viva voce evidence. She described the driver’s door suddenly closing, striking the medial aspect of her left knee, which was immediately painful. She was able to get out of the car, stand aware of pain, exchange details with the other driver, and could drive home.
137She said she continued to have some pain over the medial aspect of her left knee. However, two days afterwards, she woke with extreme pain which resulted in her briefly being unable to walk. She called an ambulance and went to Dandenong Hospital.
138The plaintiff said that she continued to have significant left knee pain localised to the anterior medial aspect of the knee, with some pain extending down the anterior aspect of the left tibia. This was associated with swelling and aggravated by weight bearing.
139She saw her local doctor and was sent for an MRI scan of her knee and then referred to Mr Byrne. She was prescribed medication without symptomatic benefit. Mr Byrne ultimately advised that she required a total knee replacement, but she was scared of surgery and declined the suggestion.
140A cortisone injection into her left knee definitely improved her pain for a month or so, but then it recurred. After a second cortisone injection there was some temporary symptomatic benefit, but then it did not improve, and she required regular use of analgesic medication.
141On examination, the plaintiff described constant pain localised to the anterior medial aspect of her left knee and upper shin. At rest, the severity of the pain was 3/10. It was severely aggravated as she stood from the sitting position and when standing, at which time it could reach 9/10.
142He noted the April 2020 MRI which was reported to show an insufficiency fracture of the medial condyle and medial tibial plateau, without disruption of the overlying subchondral plate or articular surface. An obliquely orientated radial tear separating the posterior horn of the medial meniscus from the meniscal root with partial extrusion of the medial meniscal body was also reported. Mild to moderate patellofemoral osteoporosis was noted.
143The July 2020 MRI however was reported as demonstrating a likely impaction fracture rather than an insufficiency fracture involving the medial condyle, demonstrating progression with subcortical fragmentation and fibrocystic change and nominal flattening of the articular condyle. There was reported reduction in the degree of marrow oedema, almost complete resolution of the injury involving the medial femoral condyle.
144The plaintiff reported a direct injury to the medial aspect of her left knee in the incident. Following this, she reported increasingly severe anterior medial left knee pain, significantly aggravated by any weight-bearing function.
145Investigations including an MRI scan were reported as demonstrating extensive oedema in the medial femoral condyle, suggesting the possibility of a subchondral insufficiency fracture, in addition to a full-thickness radial tear in the medial meniscus.
146Since that time, the plaintiff reported continuing pain with only very temporary relief from two cortisone injections.
147Current physical signs indicated the presence of osteoarthritis patellofemoral in medial compartment of the left knee, now associated with restricted flexion of the knee; the knee itself, however, remaining stable.
148The described appearance of bone oedema from the initial MRI scan some months after the injury suggested an acute bone injury underlying the left knee pain, which has become increasingly severe, the pain with progressive degeneration in the medial compartment of the knee. Therefore, the injury was consistent with the stated cause and progressive pathology.
149The prognosis was poor, and the plaintiff would require increasing amounts of analgesic medication, noting that she was significantly disabled by chronic knee pain and severely affected by any weight-bearing activity.
150Mr O’Brien was forwarded Dr Menz’s report. He noted investigations undertaken shortly after the accident certainly showed evidence of pre-existing osteoarthritis, as Dr Menz stated, there was pre-existing pathology. The plaintiff, however, specifically reported that the knee injury resulted in significant left knee pain, which had clearly become chronic and a source of definite restriction of her general activities.
151Mr O’Brien therefore concluded that the reported injury did result in exacerbation of pre-existing osteoarthritis of the left knee, resulting in reasonable indication for a total knee replacement, which to date the plaintiff had declined. On the basis of the history, the reported injury is responsible for the severity of the plaintiff’s current left knee symptoms.
The Defendant’s medical evidence
152The ambulance records of 1 March 2020 set out:
“77 y/of lives at home with husband, o/a complaining of posterior left knee pain since 2/7 Nil trauma/injury . o/e pt states 10/10 pain with movement. Nil sign of deformity, swelling or haematoma … .”
153No bruising, haematoma, swelling or redness was noted.
Medico-legal
Dr Anthony Menz, orthopaedic surgeon
154Dr Menz examined the plaintiff on 5 October 2022.
155Inter alia, he was provided with a disability parking permit application, the team care arrangements, the Monash discharge summary of 1 March 2020, reports of an MRI scan of the left knee in March 2020 and an x‑ray and MRI scan of the left knee of 8 February 2021, together with clinical notes of Dandenong and Mr Byrne.
156He described the accident where the door closed on the plaintiff’s knee. She sustained a direct blow to the left knee from the closing door, and the degree of that force would have been of a minor nature.
157She did not go to the hospital or see her GP in the first few weeks. The first recording of medical attention was when she attended Monash on 1 March 2020 with left knee pain as a result of her moving awkwardly in the kitchen, as recorded from the Monash ED.
158The next medical attention the plaintiff received was from her GP on 30 March 2020,[57] and then she mentioned that she had knee pain as a result of the car accident.
[57]He makes no mention of a number of other visits from 3 March 2020 where the plaintiff complained regarding her left knee
159Her GP sent her for an MRI scan in April 2020, which showed significant and obviously pre-existing arthritis with wear down to bare bone particularly in the medial compartment of the knee joint.
160The MRI scan diagnosed the plaintiff as having an insufficiency fracture on the medial femoral condyle. By definition, that fracture is a small micro fracture which is caused by normal stressors in abnormal bone. That is, this was not caused by the accident.
161She was referred to Mr Byrne, who gave her an injection, with minimal benefit.
162A bone scan in July 2020 just confirmed what the MRI scan had far more accurately confirmed three months earlier.
163There was a second injection in April 2021 which gave the plaintiff very limited benefit.
164Dr Menz noted that the plaintiff fell over at home in August 2021.
165There was a review with Mr Byrne in August 2020 who now wished to proceed with a total knee replacement. The current situation was that the plaintiff’s left knee pain was getting worse with time, and Mr Byrne wished to proceed to that surgery.
166Dr Menz noted that in the past the plaintiff denied any previous problems with her left knee; however, she attended her GP in 2016 with knee pain, and in 2015, applied for and received a disabled car park due to low-back pain and arthritis in both hips and knees.
167He summarised the reports of the MRI scans of the left knee of 30 March 2020 and 8 February 2021. He was not provided with the report of the July 2020 MRI scan.
168A repeat MRI scan of the left knee dated 8 February 2021 was reported to show a radial tear of the medial meniscus which extruded peripherally. A chronic osteochondral lesion involving the medial femoral condyle with flattening of the articular surface and subcortical syst formation was noted, as well as marrow oedema in keeping with an old insufficiency fracture. No acute injury was noted.
169The plaintiff had her open car door hit against her knee as a result of a second car colliding with the opposite side of her car as she was getting out. It appeared as though she was not complaining of any significant knee pain in the first few weeks, and when she attended Monash Hospital on 1 March 2020, she said she had left knee pain as a result of moving abnormally in her kitchen. There was no mention of any injury from an accident three weeks earlier
.170X‑rays showed age-related and significant degeneration in both knees, and Mr Byrne wished to proceed with replacement surgery.
171Dr Menz diagnosed pre-existing and significant osteoarthritis of her knee which was symptomatic prior to the accident. The accident may well have aggravated it further. The accident was not the cause of the pre-existing arthritis.
172The natural history of arthritis in the knee is that it gradually gets worse with time, and that was what was occurring with the plaintiff. As such, he believed the prognosis for any improvement was nil as her knee arthritis just gets worse with the passage of time. He believed it appropriate to undertake the knee replacement surgery, but it was not related to the accident, as the arthritis was pre-existing.
173He did not consider the accident was the cause of the plaintiff’s current condition, which was severe symptomatic osteoarthritis of her left knee.
174In response to a number of questions from the defendant’s solicitors, on balance, he did not consider the accident caused any significant aggravation of the pre-existing and significant osteoarthritis of the plaintiff’s left knee. The accident was on 8 February 2020, and she first mentioned the symptoms to her GP six or seven weeks later. Prior to that, she had injured her knee at home on 1 March 2020 when she twisted on it and obviously caused a significant problem, as she attended Monash Hospital.
Overview
175There is no dispute the plaintiff was involved in the accident in February 2020 while seated in her car which was hit from behind by another vehicle, causing her car door to strike her left leg.
176The plaintiff reported the accident and complained of knee pain to her boss, Lawrence Han, on the day of the accident, and two days later, to her daughter-in-law.
177Counsel for the plaintiff submitted that the accident involved a considerable degree of trauma, jamming the plaintiff’s knee in the position it was in, to the extent that the trim of the door was damaged.[58]
[58]T66
178While the occurrence of an accident was not in dispute, the defendant did not accept that there was a significant level of force or trauma involved. It was submitted the force required to break the internal lining of the car was not something about which the Court could form a sensible view. The car has not been inspected. There is no evidence about the force needed to fracture an internal lining. It is not possible to form a view to support the plaintiff’s thesis that there was a lot of force – “ All we know is there was contact.”[59]
[59]T47
179This was a part of a limited attack on the plaintiff’s credit in this case. It was submitted that if she had complete certainty in her mind that the accident involved a significant degree of force belting her left knee and ongoing significant pain, it was not something that she would forget to tell people. It was “nonsensical” that it only dawned on her in the later part of March 2020 when she has had ongoing pain since the date of the accident.[60]
[60] T47
180In support of this submission, the defendant also relied on the plaintiff’s failure to seek any medical attention for her knee – although she had a good relationship with her longstanding Greek GP – until her attendance at Monash on 1 March, at which time she made no mention of the accident. She also did not mention the accident to the ambulance service when transported to Monash that day. It was not until 30 March 2020 that she told Dr Karantonis about the accident, although she saw him on a number of occasions from 2 March 2020 when she did mention left knee pain. [61]
[61]T46
181Counsel for the plaintiff submitted the plaintiff’s question – “Why don’t you believe me?” was not a bad one. “Why would she not be believed? There is no real evidence here that goes to her credit other than the ambiguity in her affidavit. There is no film. There is no real attack on her credit at all. And [t]here is a woman well into her seventies, still prepared to go to work in a fish and chip shop. That is some evidence of the fact that she was still pretty mobile and still pretty active, despite the fact that she might have had previous problems with her back and right knee.”[62]
[62] T67
182I accept the plaintiff’s evidence that there was damage to the door trim as indicated in the photograph taken after the accident. That damage was in the area where she said the door hit her knee “very forceful”.
183Immediately after the accident, she reported the accident and her left knee injury to her boss and told her daughter-in-law about it two days later. Their evidence was not challenged.
184I accept that the plaintiff did not tell Dr Karantonis about the accident until 30 March 2020, although complaining to him of knee pain four weeks earlier, as she thought her left knee was going to get better and then it did not. Having not had left knee pain before the accident, she told him of the accident circumstances.
185Other factors such as the plaintiff’s advanced age and her limited English also explain why she did not mention the accident to the ambulance service or at Monash on 1 March.
186There has been no alternative cause of her left knee symptoms and restrictions proffered at all, other than a reliance on Dr Menz’s view of degeneration. As counsel for the plaintiff submitted, the plaintiff’s evidence was unequivocally that her left knee pain started on the said date and thereafter, continued and deteriorated, and by the end of March 2020, she accepted that what the problem was in respect of her left knee had commenced with the accident.[63]
[63] T66
187The history of left knee pain onset recorded by Monash was not inconsistent with injury to the left knee in the accident. There was no twisting or other event as described by Dr Menz. There was no history of any other precipitating event – just waking up that morning and ambulating around the house having problems. In those circumstances, it was not put to the plaintiff that another intervening event or trauma caused the pain in her left knee and subsequent attendance at Monash.[64]
[64] T60
188The plaintiff clearly had knee pain from soon after the accident which prevented her from working at the shop, and within three weeks, had deteriorated so much she needed to go to Monash.[65]
[65] T65
189In my view, the plaintiff was a truthful witness. It is not in dispute she injured her left knee in the accident.
190Further, the defendant’s case was that it was unlikely on the evidence that the plaintiff had a symptomless left knee. The arthritis in her left knee had to be symptomatic.[66] That was not what she said in her affidavit.[67]
[66] T46
[67]T45
191However, counsel for the plaintiff submitted there was no possibility of any conclusion the plaintiff had pre-existing left knee symptoms or any problems with her left knee before the accident.
192When cross-examined, the plaintiff was adamant that she had no symptoms or problems with her left knee before the accident, and since then, she had. It was conceded there might be some ambiguity in her affidavit, but the plaintiff maintained her position, that from the time of the accident, she has had ongoing left knee problems deteriorating to the extent she had to go to the doctor within 21 days, go to hospital, and then be referred to Mr Byrne.[68]
[68]T62
193Her knee was subjected to a degree of trauma, having been previously asymptomatic, and is now symptomatic to the extent that a total knee replacement is required.[69]
[69]T66
194I accept that the plaintiff’s left knee was asymptomatic before the accident, and she has had significant problems with it since that time. At the time of the accident, she was on her way to work. However, she has only worked a couple of hours since the accident and her knee pain continues to be severe.
195In terms of her pre-accident health, notes from Dandenong between October 2018 and March 2020 contain no complaint of left knee pain, but mentioned right shoulder, cardiac, sciatic, right knee, left calf, respiratory, BP, anxiety problems during frequent attendances.
196The disabled parking permits did not mention her left knee, despite Dr Menz’ s comment they do.
Seriousness
197There is no issue that the consequences of the plaintiff’s current left knee condition – in particular the need for surgery – meet the statutory threshold of serious. The Court is also required to find, as the Court of Appeal directed in Rowe,[70] that the injury occurred as a result of the transport accident.
[70]Supra
198Dr Menz agreed there was the need for knee replacement surgery, but it was not related to the accident. The defendant’s case was based on his view that the plaintiff’s current left knee condition is degenerative and there was only a temporary aggravation as a result of the accident. [71]
[71]Petkovski v Galletti (supra); T58-59
199Counsel for the defendant submitted that the proper conclusion ought to be that there was impact to the knee, that the knee then pretty well recovered, and that the history provided to the ambulance officers of gradual onset of pain and the arthritis has come to the fore should be accepted.[72]
[72]T47
200It was submitted the proper inference to be drawn is the plaintiff’s left knee condition improved considerably and that she was able to continue with her daily activities. She might not have gone back to work, but she had only been in the job for a month. If her knee was stopping her going to work, all the more reason to mention it to the doctor.[73]
[73]T57
201It was submitted that the only conclusion from the plaintiff’s failure to mention the accident in those early days was that there was an impact to the knee in the accident and it recovered for all intents and purposes after that. The impaction fracture has nothing to do with the accident because of the delay in the severity of symptoms.[74]
[74]T50
202Taking into account all the evidence, I reject this submission supported by the opinion of Dr Menz.
203There were a number of issues with Dr Menz’s opinion. Without any explanation, while having the correct history of the impact, he concluded the degree of force in the direct blow to the left knee would have been of a minor nature. He had no photograph of the door or any documentation upon which to base this description.
204He misquoted the Monash notes as to the history of onset of knee pain in two different respects and then concluded what had happened with the plaintiff at home the day before that attendance, was a significant event. The plaintiff moving awkwardly in the kitchen was not in the Monash report nor was there any note of her injuring her knee at home when she twisted on it.[75]
[75]T60
205It was also incorrect that the plaintiff first mentioned knee symptoms to her GP six to seven weeks after accident when in fact, she had complained of knee pain to him on 2 March 2020, the day after her attendance at Monash.
206In terms of the plaintiff’s pre-accident knee condition, having been provided with only the 2018 disabled permit application which mentioned discogenic back pain and arthritis knee and hip, in his report, Dr Menz stated that permits before the accident related to both knees.
207Dr Menz did concede there could have been an aggravation of the plaintiff’s left knee condition in the accident, but the natural history is the knee is gradually getting worse, and that is what is occurring.[76]
[76]T54
208However, there was no path of reasoning as to how he came to this view as to when and why any accident-related aggravation had ceased and, as stated above, there were many inaccuracies in the factual basis on which he formed this view.
209Mr Byrne provided a treating practitioner’s report only in which he simply noted the plaintiff presented with a painful left knee following a motor vehicle accident – the injury occurred approximately two months earlier. He had the wrong history that the other car hit the plaintiff on the left knee; however, he made the link to the accident in his report, noting that the plaintiff had been having persisting pain since her injury and the symptoms did not appear to be improving.[77] He felt the definitive treatment was total joint arthroplasty.
[77]T64
210Mr O’Brien had the correct history of the accident circumstances but was mistaken as to when the plaintiff attended the hospital putting the attendance at Monash much earlier, just two days after the accident. He did, however, accept while there was pre-existing pathology, the accident injury resulted in significant knee pain which had definitely become chronic and a source of definite restriction in of the plaintiff’s general activities. The reported injury did result in exacerbation of pre-existing osteoarthritis of the left knee, resulting in reasonable indication for a total knee replacement.
211While there was some debate about the radiological findings of an insufficiency or impaction acute fracture as the radiologist reported, I am not satisfied there was any radiological change as a result of this accident; however, a fracture is not required to establish seriousness.
212I accept that in this case, a previously asymptomatic degenerative knee has been made considerably worse by the trauma in the accident.
213Taking into account all the evidence, I am satisfied that the plaintiff has a serious impairment of the left knee which was caused as a result of the accident.
214Accordingly, I grant leave to the plaintiff bring proceedings for damages in relation to the accident.
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