Short v Transport Accident Commission
[2023] VCC 1792
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY EXPEDITED LIST
Case No. CI-22-05384
| CHERIE SHORT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2023 | |
DATE OF JUDGMENT: | 6 October 2023 | |
CASE MAY BE CITED AS: | Short v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1792 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury leave application – transport accident – hip injury – spine injury – pre-existing injuries – credibility of plaintiff – severity of transport accident – whether transport accident caused plaintiff’s injuries – whether CAM lesion caused labral tears – expert conclave
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Cakir v Arnott’s BiscuitsPty Ltd [2007] VSCA 104
Humphries & Anor v Poljak [1992] 2 VR 129
Victorian WorkCover Authority v Brassington [2021] VSCA 236
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McWilliams with Ms F Blair | Zaparas Lawyers |
| For the Defendant | Mr P Elliott KC with Ms K Karadimas | Solicitor to the Transport Accident Commission |
HER HONOUR:
1The plaintiff, Ms Short, was in a transport accident on 27 December 2016. She makes application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injuries to her right hip, left hip and spine.
2The legal principles are well known and are not in dispute. The plaintiff must establish that she has suffered a serious long-term impairment or loss of a body function that, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[1]
[1]Humphries & Anor v Poljak [1992]2 VR 129 at 140
3It is not disputed that Ms Short has a significant condition affecting her spine and both hips and that she requires bilateral hip replacement.
4The issue in this case is whether any of the injuries Ms Short claims are new injuries arising from the transport accident, or, in the alternative, aggravations of existing injuries that meet the test.
Medical history
5Ms Short has an extensive pre-existing medical history.
6MRI in 2006 showed moderate disc extrusion at C5/6 and C6/7. MRI in 2007 showed a new C3/4 disc protrusion. CT on 17 March 2010 showed this protrusion impinging on the thecal sac and spinal cord. In 2009 she had a slip in a supermarket which caused pain in her lower back, neck, hips, right wrist and shoulders. She says that with time most of that pain settled but she continued to have neck and back pain, as well as right shoulder pain, numbness, headaches and intermittent stiffness in her hips.
7In 2013 she was diagnosed with fibromyalgia and prescribed medication for that. MRI on 30 April 2015 showed spondylitic change in the spine with marked foraminal narrowing and disc protrusion.
8MRI on 17 February 2017, after the transport accident, showed spondylitic changes in the cervical spine, and foraminal stenosis at C4/5, C5/6 and C6/7. Although Ms Short claims a serious injury in relation to her spine, the focus in this case was her hips. She claims greater pain in her spine since the transport accident, but the radiology does not show any significant change.
9In relation to her hips, each must be treated as a separate body part.
10Ms Short says prior to the transport accident she had some hip stiffness but denied she had any hip pain.[2] When taken through her medical records, she accepted she had, from time to time, made complaints of hip pain and had received treatment from her osteopath that included hip traction and massage. However, she disputed the accuracy of many of the medical records. She said she had treatment from the osteopath for sciatica and for “glute pain”.[3] She said that complaints of hip pain as noted in her medical records prior to the transport accident resolved relatively quickly and were not of the same intensity or location as her hip pain after the transport accident.
[2]Transcript (“T”) 19, Lines (“L”) 11-L12
[3]T22 – T23
11Ms Short says immediately after the accident she had pain in several parts of her body, including deep in her groin.[4] At the time she did not identify this as hip pain, as she identified the trochanter as her “hip”, rather than the hip socket. She says she continued to complain of pain in her groin, but this was diagnosed as sciatica,[5] and she told other doctors she saw that she had sciatica.[6]
[4]T44, L2-L3
[5]T39, L24-L25
[6]T55
12In July 2017 she attended her neurologist, Valerie Tay, and complained of hip pain amongst other things. Dr Tay arranged an MRI which showed a CAM lesion and anterior superior labral tear on the left hip and CAM lesion with small stellate anterior superior labral tear and partial thickness tear of the indirect head of the rectus femoris on the right hip.
13Ms Short has subsequently undergone a number of procedures with Professor Tran:
(a) a right hip arthroscopy with labral repair on 3 July 2018;
(b) a right hip arthroscopy with labral repair on 6 February 2019; and
(c) a left hip arthroscopy with labral repair on 8 January 2020.
14She has also had injections of steroids and anaesthesia into the hip.
15She continues to have significant pain and has been advised that bilateral hip replacements are now required.
Work History
16At the time of the transport accident Ms Short was working part time, approximately 30 hours a week, at Melton Primary School in an administrative role.
17She says that due to her hip injury she has been unable to continue in that work.[7] She now works as a carer with the NDIS, six hours per week.
[7]Plaintiff Second Further Amended Court Book (“PSFACB”) 22
Credit
18Ms Short’s credit was placed squarely in issue by the defendant. The defendant submitted she was non-responsive in cross examination, was an advocate for her own cause and overall was willing to say things to bolster her own case. In particular, her evidence was challenged in relation to:
(a) the severity of the impact in the transport accident;
(b) her pre-accident hip condition; and
(c) her post accident complaints of hip pain.
19Counsel for Ms Short submitted she was a witness of truth and had made appropriate admissions against interest. Her account of the accident and her experience of pain ought be accepted.
Severity of accident
20Ms Short said her car was struck violently from behind in the transport accident. She said the force of the collision caused her car to be shunted forward into the intersection and her body “bounced back and forward in the seat due to the impact”.[8]
[8]PSFACB 11
21She gave a history to medicolegal expert, Mr Wong, that she remembered feeling pain in both knees and that her knees may have struck the dashboard.[9]
[9]PSFACB 163
22Her osteopath has taken a history that Ms Short’s knees made contact with the car under the steering wheel and she experienced pain immediately.[10] This record also notes that Ms Short was rear-ended by a car travelling at 70 kilometres per hour.
[10]PSFACB 156
23She did not give any evidence that her knees struck the dashboard in her affidavit or when asked by me in oral evidence whether she struck any part of the car. She said, “I don't remember if I hit anything. I just remember – well, I definitely hit the steering wheel”.[11] She said her chest hit the steering wheel. She was unable to estimate the speed of the other car.
[11]T88, L7-L9
24The defendant says her evidence is not credible. Her evidence about hitting the steering wheel was given for the first time in court, was not included in her affidavit, in any history she gave to any doctor and is not recorded in any medical note. I should conclude that it is a recent invention.
25Similarly, the defendant says her history to Mr Wong that she may have hit her knees ought not be accepted. She gave no other history to a doctor of hitting her knees, the medical records do not accord with an impact on the knees, and she did not mention it in her evidence. The defendant says the estimate in the osteopath notes that the other car was travelling at 70 kilometres per hour ought not be accepted, given the minor damage to both vehicles.
26I am not satisfied that Ms Short hit her knees on the dashboard and, in fairness to her, she did not say to Mr Wong that she had hit her knees, only that she might have. If she did hit her knees, it seems likely it was a fairly minor impact as there was no medical record of damage to the knees.
27I am not satisfied that Ms Short hit her chest on the steering wheel. Her first mention of this was in court in response to a question from me. It appears to have been a recent invention in an attempt to bolster her case or a reconstruction in her own mind due to the passage of time.
28The defendant says the severity of the accident has been greatly exaggerated by Ms Short. The damage to her car was very minor, involving a slight displacement of one panel and a small paint chip on her rear bumper.[12]
[12]Further Amended Defendant’s Court Book (“FADCB”) 203-205
29She completed a TAC claim form in which she signed off on a statement that her car was “nudged” into the intersection.[13] Although she gave evidence that this was not a word she used and the claim form was completed over the phone and filled out by someone else, she did not take the opportunity to correct the description of the accident when it arose, although she did correct other things on the claim form.[14]
[13]FADCB 7-9
[14]FADCB 223-227
30No police were called and Ms Short got out of her car and drove the other driver’s car to move it off the road. She and her husband then continued on to the prior dinner engagement. There was no attendance at a doctor or hospital that night. Ms Short’s car was drivable. This conduct is inconsistent with her version of the accident being high speed and significant and of experiencing immediate pain.
31There was no affidavit evidence from the other person in the car, her husband, who could be expected to give evidence about the severity of the accident. The defendant says I ought to draw a Jones v Dunkel inference about the lack of evidence from her husband in the absence of any explanation as to why he did not give that evidence.
32Ms Short says no such inference ought be drawn. While the severity of the accident was in issue, the medical opinion did not primarily concern itself with the mechanism of the injury in terms of the severity of the accident, but the mechanism of the injury in terms of the role of the CAM lesion as opposed to the transport accident in causing the labral tears.
33Ms Short said she had no notice that the severity of the accident would be a fact in issue between the parties, until shortly before the trial. At the time of swearing her first affidavit she was estranged from her husband and although they have since reconciled, the relationship has limitations. In the context of a difficult marriage and no identification by the defendant that the severity of the accident would be in issue, no such inference should be drawn.
34I am mindful that this application is a gateway provision. I do not draw any adverse inference from the lack of affidavit material from her husband. I accept that it was not apparent that the speed of the accident was a significant area of dispute in this serious injury application.
35Further, given the evidence that is before the Court, I am not able to conclude that a collision which caused only minor damage to her vehicle would not also be capable of causing Ms Short’s body to move in a violent motion, even if it did not strike any part of the car.
36The fact that Ms Short attended her general practitioner the following day complaining of back and leg pain is sufficient to persuade me that the collision was more than a “nudge” and did cause movement of her body sufficient to generate that pain.
37The precise details as to the severity of the accident are beyond the scope of this inquiry. All I must be satisfied of is that the accident was sufficiently severe to account for the injuries she alleges.
38I consider some of Ms Short’s evidence unreliable in relation to the accident, in particular that she struck her chest on the steering wheel, but do not conclude that this means the accident did not cause her body to move in a violent fashion within the car and the constraints of the seatbelt.
Pre-accident hip complaints
39The defendant submits Ms Short’s credit is damaged by her evidence and the history given to Professor Tran and Mr Wong that she did not have hip pain prior to the transport accident.
40The defendant points to attendances in 2007 when she presented to her doctor with hip pain for two weeks and was referred for x-ray.
41In 2009, she had a fall at a supermarket and complained of injury to various body parts including hips. The medical records note complaints of pain in the gluteal muscles and the sacroiliac joint.[15] A number of records note a history of doing the “splits” on her fall, landing heavily on her right hip.[16] In evidence, Ms Short denied she had “done the splits” but said rather that her leg had gone out from under her.[17] Ms Short made a legal claim against the supermarket in relation to her fall, claiming hip injury amongst other injuries.
[15]FADCB 14, 155
[16]FADCB 14, 31, 40, 155, 156
[17]T63 – T64
42In 2013, she attended her rheumatologist “very troubled” by right groin aching and pain.[18] Ms Short had reached the point where “something has to be done to alleviate the right groin and the right posterior knee pain”.[19] Ms Short’s evidence was that this pain was not significant compared with the pain she experienced after the transport accident. This evidence is supported by subsequent attendances on her rheumatologist where there is no record of hip pain.[20]
[18]FADCB 34
[19]FADCB 35
[20]PSFACB 242, 243, 244, 245
43I accept that Ms Short did have hip pain prior to the transport accident, at least intermittently, and on occasion that pain was sufficiently severe that it required specialist referral. She refers to hip pain in her affidavit. She says:
“With time, most of the pain settled, however I have continued to have neck and back pain, as well as right shoulder pain, numbness and headaches, and intermittent stiffness in my hips.”[21]
[21]PSFACD 11
44Ms Short says the hip pain in 2007 was a limited episode of bursitis.[22] She says the quality, location and severity of the hip pain prior to the transport accident was different from the pain she now experiences.
[22]T59, L24 – T60, L3
45In comparison, by 2019 the hip pain was so severe Ms Short was unable to complete a four week multi-disciplinary Network Pain Management Program due to extremely severe levels of diffuse pain.[23]
[23]PSFACB 122
46I conclude that Ms Short has given evidence that diminished the extent and frequency of her pre-accident hip pain. This may be because she wanted to bolster her case. However, it is more likely that the pain she experiences now is different in type and severity so as to cause her to consider the pre-accident hip pain as comparatively unproblematic. She had significant pain in many body parts prior to the accident, including her spine.
47Over the course of her long and complex medical history, the hips play a comparatively minor role prior to the accident, and this may well have caused her to come to the view in her own mind that her pre-accident hip pain was negligible.
48In comparison her hips appear to be her most significant source of pain now. I do not think that her evidence that she did not have “hip pain” before the accident diminishes her credibility.
Post accident hip complaints
49Ms Short gave evidence that her hips were immediately painful but she did not recognise the pain as coming from her hips. Rather, she says she immediately complained of deep groin pain to her general practitioner and was diagnosed with sciatica.
50She says she told subsequent doctors that her pain was sciatica and they accepted this diagnosis. As a result, it was some months before she identified that the cause of her pain was her hips.
51The defendant says this is not credible evidence given that there is an absence of any mention of hip or groin pain and no diagnosis of sciatica evident in the medical records post-accident for at least seven months, despite twelve attendances on medical or other health practitioners in that period. The first mention of hip pain is in a report of Dr Tay on 3 July 2017.[24] There is a mention by her osteopath of “lots of pain” in the lower back and hips and a throbbing right knee on 10 August 2017.[25] MRI in August 2017 shows the CAM morphology and anterior superior labral tear.
[24]PSFACB 107
[25]PSFACB 198
52The defendant says she has retro-fitted her evidence to account for symptoms that actually only came on many months after the transport accident, to try to bolster her case by suggesting those symptoms occurred in the immediate aftermath of the accident.
53The defendant notes that she had numerous attendances on doctors for various complaints of pain and consequences of the transport accident, including in relation to her neck and back. She also had a complaint relating to her wrist. The day after the accident, she attended her general practitioner with complaints of lower back pain radiating to right leg. Her hip was noted to be not tender. Although Ms Short says this was in the context of an examination of the trochanteric structure of the hip, which is not the same as the part of the hip affected by a labral tear, there is no record by the general practitioner that she complained of deep-seated groin pain. This is the doctor who, on Ms Short’s evidence, made the diagnosis of sciatica.
54It is surprising that such a diagnosis is not recorded.
55Ms Short says she had a “lot of adrenaline” going through her system and the pain she felt at the time or immediately after her accident was in the same location as the pain she continues to feel,[26] albeit that it might have been mislabelled and not identified by her as hip pain.
[26]T42, L17-L21
56I find it difficult to accept Ms Short’s evidence that she complained to many doctors of deep groin pain and was diagnosed with sciatica. Although medical records are often far from perfect, it is likely that a positive diagnosis of sciatica would be recorded at least somewhere in the medical records.
57I note that Ms Short had previously been investigated for sciatica,[27] and it may be that her experience of sciatic-type was similar to her pain post-accident and in her own mind she came to the conclusion that her pain symptoms were caused by sciatica.
[27]PSFACB 51, 112
58I do not find Ms Short’s evidence that she immediately complained of deep-seated groin pain which was diagnosed as sciatica, and that she subsequently communicated this to all her doctors who accepted this as the cause of her groin pain, is reliable.
59However, I do not find she gave this evidence in an attempt to bolster her case, but rather that her recollection of what transpired in the weeks and months immediately after the transport accident is not reliable.
60I am not persuaded that these matters seriously damage Ms Short’s credibility. The passage of time and her very long and extensive medical history are likely to adversely affect her recollection.
61To the extent that her evidence is unreliable I do not discard her evidence, but rather look for other evidence for corroboration.[28]
[28]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
Did the transport accident cause Ms Short’s hips injuries?
62The primary issue in dispute is the cause of Ms Short’s condition in each hip.
63Two medicolegal experts provided reports, Mr Menz and Mr Wong. In addition, Ms Short’s treating orthopaedic surgeon, Professor Tran, provided his opinion.
64Briefly, the opinions were as follows:
Mr Menz
65Mr Menz says Ms Short has CAM lesions, which are a type of bony growth on the acetabular. The CAM lesions would have been there for many years and were not caused by the accident. Over time, the CAM lesions have caused labral tears. In turn the labral tears have caused damage to the cartilage resulting in arthritis in each hip. This is the natural progression of the underlying process.
66Mr Menz says:
“… there is an actual history of this type of pathology, unrelated to any motor vehicle accident in which CAM causes labrum, which causes arthritis. That is the natural history which occurs, and that’s what has occurred for this lady, with her now severe arthritis”.[29]
[29]T141, L24-29
67As a result, Ms Short now needs bilateral hip replacements. The transport accident has had no bearing on the development of the CAM lesions, the labral tears or the arthritis. This is because the impact was not sufficiently severe to cause labral tears.
68The fact that she complained of hip pain before the transport accident shows that the process was underway. The fact that she did not complain of hip pain until seven months or so after the accident shows that the development of the disease process had nothing to do with the transport accident. He further stated that “seven-month delay onset” or “18 month delay onset” of symptoms can be explained by the natural history of developing increased labral tears and increased arthritis.[30] In forming the view that the CAM lesions were the cause of the labral tears, Mr Menz relies on a number of clinical studies which indicate a high association between CAM lesions and the development of labral tears. Mr Menz says:
“I think the labral tear is solely caused by the CAM-type morphology. But it does have a CAM lesion, there are many studies which show a higher proportion of parties have subsequent labral tear. And the paper I’ve quoted was 86 per cent association once there is a CAM lesion. I’m aware of a second paper which shows up to 90 per cent of people, once they have a CAM lesion, they have a labral tear in (indistinct) of cases. So on the really strong weight of probabilities that labral tension was caused by the CAM”.[31]
[30]T150, L17-L21
[31]T132, L3-L13
69If the accident was very severe, he would accept that it could be possible that it caused labral tears. It would have had to produce sufficient impact that the hips abducted, in order to cause the labral tears. If the plaintiff complained of hip pain immediately after the transport accident, he would accept that this might indicate an injury or aggravation of an injury caused by the accident.
70However, based on his assumption that the impact was not significant, Mr Menz said the seatbelt did not allow for much abnormal movement of hip joints due to the low impact nature of the accident, and therefore the car accident did not have any role to play in aggravating the plaintiff’s underlying condition.
Mr Wong
71Mr Wong says Ms Short has CAM lesions which would have been present for many years and were not caused by the accident. She may have had labral tears before the accident, but he would defer to Mr Tran’s view about that, as the operating surgeon. Mr Wong opined that it “is very difficult, if not impossible to know definitively, when the labral tear occurred”, as labral tears “are very common”.[32]
[32]T131, L2
72If she did have labral tears before the accident, they were not particularly symptomatic, given her history that she had no pre-accident hip problems. The accident likely worsened the severity of the labral tears, if they existed prior to the accident, especially if she hit her knees which could have pushed the femur back into the hip socket. However, even if the plaintiff had not struck her knees on the dashboard, or had not been “thrown violently around”, the car accident could still have caused her injuries or an aggravation of injuries.[33]
[33]T153, L30 – T154, L5
73Mr Wong concludes that the accident worsened her underlying condition because she complained of significant pain in the groin after the accident. If she had complained of pain before the accident, depending on the location and severity of the pain, this could indicate the presence of pre-existing labral tears, however labral tears can also be asymptomatic. Asymptomatic tears can become symptomatic after trauma. He considered she now had damage to the cartilage, synovitis, and would likely require bilateral hip replacements.
Professor Tran
74Professor Tran says Ms Short has CAM lesions which would have been present for many years and were not caused by the accident. He considered the labral tears unlikely to have been caused by the CAM lesion, because of the location of the lesions in relation to the labral tears and because of her lack of significant restriction caused by hip pain pre-accident. He could not find evidence, at arthroscopy, that the lesions were impinging on the labrum, so as to cause the tears. When he performed the plaintiff’s hip arthroscopy, he observed that:
“…the location of her damage was not in the location that is typical of CAM lesion cartilage damage and labral tears, it was much more consistent with an instability picture…or traumatic picture…”[34]
[34]T135, L26-L31
75She had a good range of movement in the hip under arthroscopy which would suggest the CAM lesions were not causing significant issues for her.[35] As a result, he elected not to resect the lesions.
[35]T134, L22-L24
76The most likely cause of the labral tears was the accident, because it was a traumatic event and she had immediate onset of deep groin pain. He accepted that if she had no pain at all after the accident in the groin or in any other site that could be referred or deflected pain, such as the legs, or lower back, then the transport accident was not the cause of the labral tears. He said it is often difficult for patients to identify the source of their pain, and the pain from hips can be quite diffuse. Other pain can be distracting, so immediate back or neck pain might be the focus, and it is not until that pain is resolved or identified that hip pain also becomes apparent.
77Labral tears can be asymptomatic, so there is no way of knowing for certain whether she had labral tears before the accident. Even a relatively low impact accident could cause labral tears, as it depends on the motion of the body in the accident. He considered that the labrum, being a circumferential structure, can be damaged in any position and not purely abduction.
78In his view, the CAM lesions were not causing any particular problem with the hips pre or post accident.
79Therefore it was reasonable to conclude that it was the accident that caused the labral tears and consequent pain, which eventually became localised to the hips.
80Alternatively, a severe enough impact can cause inflammation, which causes symptoms. He considered Ms Short now had chondral damage, synovitis and required bilateral hip replacements.
81Professor Tran took a history that the accident impact was at “high speed”. He opined that it “seems fair enough” that the car accident caused the plaintiff’s injury. He says:
“If her body went back and forth violently, then I would say the car accident, on likelihood, has a large part to do with her symptoms”.[36]
[36]T153, L17-L19
82However, he also gave evidence that, in his experience, even transport accidents that do not involve knee damage or hip abduction can result in labral tears. Even if the impact of the accident was less violent than Ms Short says, a lesser impact that did not cause hip abduction could still have caused the injury.
Did the CAM lesions cause the labral tears?
83The primary dispute between the experts was whether the transport accident was a cause of Ms Short’s current symptoms of pain and progression of disease to the point where she now requires hip replacements. All agreed that the CAM lesions were not caused by the accident. All agreed that the labral tears caused damage within the joint. Whether that damage is synovitis, cartilage damage or arthritis is of secondary importance in this application, because the cause of any of those changes is the labral tears and the result of those changes is that Ms Short needs bilateral hips replacements.
84Therefore, the crucial issue is whether the labral tears were caused by, or worsened by, on the one hand, the transport accident as opined by Professor Tran and Mr Wong, or on the other hand, by the CAM lesions as opined by Mr Menz.
85For the following reasons I prefer the evidence of Professor Tran:
(a) He is the treating surgeon and has had the benefit of seeing inside Ms Short’s hip joints during surgery. He is best placed to know whether the location of the CAM lesions in Ms Short’s hips makes it more or less likely that they would have caused the labral tears. I place significant weight on his opinion that the location of the CAM lesions was not impinging on the labrum and does not account for the labral tears;
(b) He has considerable experience in hip arthroscopies and has visualised many CAM lesions and labral tears;
(c) Mr Menz’s view that the CAM lesions caused the labral tears was based on his review of medical literature which included studies which showed high (86 per cent and 90 per cent) incidence of CAM lesions causing labral tears. While this shows a clear correlation between those two things, the studies themselves do not prove that Ms Short’s labral tears were caused by the CAM lesions. Those studies provide an underlying basis for concluding that many labral tears are caused by CAM lesions but tell me nothing about the cause of the labral tears in Ms Short’s case;
(d) I accept Professor Tran’s evidence that he has seen many labral tears without CAM lesions and many CAM lesions that have not caused labral tears. All experts accepted that labral tears can be caused by things other than CAM lesions, including car accidents;
(e) Professor Tran’s explanation about the way in which pain can present in hip injuries, which includes presenting as leg pain and lower back pain, accords with Ms Short’s experience of leg and back pain immediately post-accident; and
(f) Although Ms Short had hip pain prior to the accident, I accept her evidence that it was significantly different to the hip pain post-accident. Professor Tran has based his assessment on an assumption that she did not have hip pain prior to the accident. Although this assumption is not correct, I accept that her hip pain prior to the accident was not significant in the context of her overall pain, as compared to her hip pain post-accident. Professor Tran’s report was not based on a history that was sufficiently inaccurate that it materially effects the reliability of his opinion.
86According to Professor Tran, symptoms associated with labral tears can “a lot of times…present non-classically” with complaints of pain occurring in areas other than the “classic” area of the groin.[37] For example, he noted that pain can be experienced radiating down the legs, around the side of the hips, in the buttocks or in the back, which delays an accurate diagnosis of the hip condition.[38] Mr Wong also notes that whilst pain emanating from labral tears “tends to be associated with groin pain more commonly”, it can develop towards the back (in what is described as a “c‑shaped pain”) and, as a result, can be confused with sciatic type pain.[39]
[37]T151, L4-L16
[38]T151, L6-L16; T166, L30 – T167, L1
[39]T131, L18
87Mr Menz opines that an arthroscopy is an artificial situation with limited manipulation of hip joint and therefore does not show whether the CAM lesion prior to the accident was impinging on the labrum.[40] Mr Menz’ opinion assumes that Professor Tran failed to acknowledge the difference between range of motion observed under arthroscopy and the range of motion observed in daily life.
[40]T178, L11-L19
88However, Professor Tran’s conclusion was based on both arthroscopic examination and clinical findings. He gave evidence that “it’s really important for me not to only read the imaging, but to understand the patient and their range of motion”.[41] He was satisfied that Ms Short had a good range of movement prior to the accident. As a very experienced hip arthroscopist, he clearly appreciated the difference between range of motion examined under arthroscope and range of motion in daily life, and based his assessment on both.
[41]T134, L16-18
89Although the evidence shows that Ms Short did make complaints from time to time of hip pain or other pain that could have derived from the hip prior to the transport accident, she was also still able to be active, and appears to have exhibited a good range of movement. She was able to continue to work and worked in the same capacity after the Woolworths injury as she had prior to that injury. Despite her prior complaints of hip pain and hip injury, she was still able to participate in social tennis games.
90The medical records disclose constant complaints of pain, albeit not identified as hip pain, from the time immediately post-accident. The type of pain complained of could have derived from the hip, according to the evidence of Professor Tran, which I accept.
91I accept Professor Tran’s evidence that her complaints of pain were consistent with a hip injury.
92I accept Professor Tran’s explanation that hip pain can often be difficult for a patient to identify and that it can present in a number of ways.
93The pain she experienced post transport accident eventually localised to the hip by around July 2017. MRI confirmed the presence of labral tears.
94Therefore, I do not accept the assumptions that underpin Mr Menz’s report – that she had no pain deriving from the hips after the accident and the pain she now experiences is the natural progression of the underlying disease process.
95Instead I accept Professor Tran’s evidence that the pain she experienced after the transport accident likely was from her hips, albeit that it took some time for it to be identified as such.
96I accept his evidence that even transport accidents that do not involve knee damage or hip abduction can result in labral tears, as this derives from his considerable experience in performing hip arthroscopies and identifying labral tears in the context of transport accidents. His experience includes identifying labral tears in the absence of pain, CAM lesions that have not caused labral tears and labral tears in the absence of CAM lesions.
97On the balance of probabilities, the transport accident was the cause of the labral tears. The labral tears consequently resulted in the development of inflammatory conditions in both hips and the need for total hip replacement in each hip is a consequence of the transport accident.
98I am satisfied that each hip has sustained a serious injury within the meaning of the test.
99I am satisfied that, as a result of her hip injury, she is unable to work in her former occupation or the number of hours she used to work before the accident, and has suffered a pecuniary loss.
100Accordingly, the plaintiff will be granted leave to issue proceedings for common law damages for pain and suffering and pecuniary loss.
Did the transport accident cause a serious injury to the spine?
101The focus of the hearing was on the hip injuries and not the spine. On the medical material there is insufficient evidence of progression of the spinal condition caused by the accident, and insufficient evidence of an increase in pain in the spine that would satisfy me that the aggravation of his spinal injury was itself sufficient to meet the test.
102Mr Myron Rogers, neurosurgeon, diagnoses Ms Short with a complex, chronic history of physical and psychological ailments. He considers the transport accident caused “at most” mild soft tissue injuries to the neck, low back, gluteal muscles and knees.[42] He says the radiologic findings in relation to the spine are consistent with constitutional degenerative change. He considers she has a chronic pain condition with central sensitisation prior to the transport accident. She says it is worse post-accident and Mr Rogers considers that this demonstrates that her pre-existing chronic pain condition has not resolved to the pre-accident state. He considers any disability is caused by a pain condition rather than a physical injury.
[42]FADCB 109
103Mr Hui Lau, neurosurgeon, notes the major issue for Ms Short is her hip condition. To the extent that she has an injury to the spine, he says it is an aggravation of her pre-existing cervical spondylosis.[43] He notes no major progression on radiology of the spine but considers there is evidence of cervical myelopathy on clinical examination which was not present prior to the accident and is a clear sign of progression of her cervical spondylosis. The evidence for the myelopathy is the positive Hoffman’s sign and brisk upper limb reflex, neither of which are conclusive symptoms of myelopathy. These are symptoms that can arise from any number of causes including fibromyalgia and are not limited to cervical myopathy.
[43]PSFACB 181
104Mr Lau says the increase in pain arises from the transport accident, as a result of the compression of the spine causing myelopathy.
105Mr Menz does not agree Ms Short has cervical myelopathy. He could not find any evidence of myelopathy and noted she was not particularly symptomatic and self-managed her neck.[44]
[44]FADCB 76
106Dr Paul Smith did not consider she had any myelopathic features and there was no clear radicular or myelopathic defects.[45]
[45]PSFACB 96, 99
107Mr Lau is the only doctor to diagnose a myelopathy. Having regard to the observations of the other medical practitioners, and the fact that the symptoms Mr Lau identifies as indicative of myelopathy arise from other causes, I am not satisfied that she has cervical myelopathy as a result of the transport accident.
108I accept that her back, both lumbar and cervical, continues to cause her significant problems. I accept that I can consider the effect on both parts of the spine for the purposes of determining whether the back injury meets the relevant serious injury test.[46]
[46]Victorian WorkCover Authority v Brassington [2021] VSCA 236
109However, there is clear evidence of disease causing significant pain prior to the transport accident. There is insufficient evidence that, to the extent that the underlying condition has been aggravated as a result of the transport accident, that aggravation is itself sufficient to amount to a serious injury. I am not satisfied that the injury to the spine is a serious injury.
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