Thacker v Transport Accident Commission
[2021] VCC 814
•22 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Un Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05547
| WENDY FRANCINE THACKER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 11 and 15 June 2021 | |
DATE OF JUDGMENT: | 22 June 2021 | |
CASE MAY BE CITED AS: | Thacker v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 814 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION – LIMITATION OF ACTIONS
Catchwords: Serious injury application – whether serious injury – causation – expert evidence – explanation of reasons for opinion – impairment of body function – whether right leg a body function – impairment to spine and hip – whether impairments serious – whether limitation period should be extended
Legislation Cited: Transport Accident Act 1986 (Vic) s93(17), Limitations of Actions Act 1958 (Vic) s23A
Cases Cited:Parrish v Specialized Australia Pty Ltd [2020] VSC 15; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Davie v Magistrates of Edinburgh [1953] SC 34; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Lexa v Transport Accident Commission [2019] VSCA 123; Brassington v Victorian WorkCover Authority [2021] VCC 74; Humphries v Poljak [1992] 2 VR 129
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Magee QC with Mr P Bourke | Henry Carus + Associates |
| For the Defendant | Mr R Middleton QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1On 22 September 1988, Wendy Thacker was driving her yellow Morris Minor down Ferntree Gully Road with her fiancé, Michael Harford. They were returning home from playing indoor cricket. Ms Thacker was 22 years old.
2Another car turned right in front of them without giving way. There was a collision (“the accident”). Ms Thacker and Mr Harford were taken to the Dandenong Hospital by ambulance. Ms Thacker suffered a comminuted fracture of her right femur (thigh bone) as well as lacerations to one of her fingers and her right ankle. Her right femur was internally fixed with a Russell-Taylor nail. She spent three weeks in hospital and then a further three months attending rehabilitation at the TAC Rehabilitation Centre.
3By March 1989, Ms Thacker was weight bearing on her right leg and had returned to full-time employment at the tax office.
4In the years after the accident, Ms Thacker married Mr Harford, tried to return to gymnastics (which had been a passion of hers until the age of 18 or 19), had the Russell-Taylor nail removed, had a baby son, completed a Bachelor of Commerce degree at Deakin University, divorced, took up exercising at the gym, played several seasons of indoor cricket, worked in a number of office jobs, worked as a personal carer, retrained as a nurse and worked for six years as a community nurse. There were challenges. Ms Thacker had to cope with post-natal depression after the birth of her son; at least two redundancies; workplace bullying; the death of her long-term partner from bowel cancer in 2013; and assisting her son to rehabilitate from an acquired brain injury. But Ms Thacker rose to the challenges and is justifiably proud of having done so.
5On 20 November 2019, some 31 years after the accident, Ms Thacker commenced this proceeding. She claims that the accident has caused long-term and ongoing symptoms for her which have worsened in the last few years. She seeks leave to bring a claim for damages for the injuries she suffered in the accident.
6In order to succeed, Ms Thacker must satisfy the Court that:
(a) she has suffered a serious injury within the meaning of s93(17) of the Transport Accident Act 1986 (TAA); and
(b) it is just and reasonable to extend the period within which an action for damages may be brought under s23A of the Limitations of Actions Act 1958 (Vic).
7For the reasons which follow, I have accepted that Ms Thacker is a witness of truth. I have also accepted that the accident has caused Ms Thacker ongoing pain and associated limitations, particularly in her right hip and pelvis area but also in her lower back. However, I am not satisfied that these symptoms meet the requirements of a serious injury, in the sense that Ms Thacker has suffered a long-term impairment of a body function which is very considerable and at least more than significant or marked. I am also not satisfied that, even if Ms Thacker had suffered a serious injury, it would be just and reasonable to extend the period within which an action for damages may be brought by over 25 years.
Serious injury application
Parties’ submissions
8Ms Thacker said that she suffers ongoing pain in her lower back, sacroiliac joint, pelvis, groin, right thigh and knee, as well as numbness in her right thigh and swelling in her right foot and ankle.[1] She says that she has had ongoing right hip, thigh and lower back pain, of varying degrees since the accident,[2] but has suffered a gradual deterioration in her pain in the last few years.[3] She said that it was now difficult to kneel or squat due to her right knee, that she could not walk for any length of time or stand for periods of greater than ten minutes and that she preferred to avoid the stairs.[4] The numbness in her right thigh onset some time prior to January 2018 and worsened over the ensuing few months to the point where it interfered with her driving longer than 30 minutes.[5] She was able to cope with working as a community nurse for 32 hours per week but said that by the end of the day she got tired and achy and found it difficult to engage in any additional activity.[6] Some specific duties were particularly difficult for her, such as wound dressing and inserting a catheter.
[1]Plaintiff’s affidavit sworn 17 February 2021, para 62-66
[2]Plaintiff’s affidavit, para 25
[3]Plaintiff’s affidavit, para 42
[4]Plaintiff’s affidavit, para 62-63
[5]Plaintiff’s affidavit, para 44, 71
[6]Plaintiff’s affidavit, para 63, 71-73
9Ms Thacker relied upon impairments to two body functions in support of her serious injury application: the right leg and the spine.
10Ms Thacker submitted that the whole right leg could be a body function for the purposes of the definition of serious injury in s93(17) of the TAA, and this included the pain she suffered in her thigh, knee and foot as well as consequential damage to the top of the right leg leading into her hip, the greater trochanter area and her pelvis. In the alternative, she submitted that the relevant body function was the hip extending down into the right thigh.
11Ms Thacker submitted the lower back pain she suffered could either be viewed as a consequence of the impairment of her right leg (if it arose as a result of altered gait) or as an impairment of the body function of Ms Thacker’s spine in its own right.
12Ms Thacker submitted that both of these impairments of a body function satisfied the threshold for serious injury when regard was had particularly to:
(a) the requirement for two surgeries of her leg (first to insert the Russell-Taylor nail and then to remove it);
(b) the requirement for a three-week inpatient stay;
(c) the duration of her symptoms for over 30 years;
(d) the reduction in her capacity to engage in sporting activities;
(e) the deterioration of her symptoms in more recent years to the extent that it impacted on her standing or walking for more than 10 minutes, sitting and lifting, and interfered with the performance of home duties;
(f) the loss in flexibility in her hours of work and occupation; and
(g) her ongoing need for physiotherapy.
13The defendant accepted (in accordance with longstanding authority) that the spine could be a body function for the purposes of s93(17) of the TAA, but denied that the whole right leg could be a body function, much less the whole right leg plus the hip, greater trochanter area and pelvis. The defendant also submitted that I should not be satisfied that Ms Thacker’s pain (particularly her back pain, but also the other pain of which she complained) was a consequence of an injury suffered in the accident. Finally, the defendant submitted that the symptoms and limitations relied upon by Ms Thacker did not meet the threshold for a serious injury, given she had been able to work for many, many years with no demonstrable pecuniary disadvantage; to return to indoor cricket; to exercise at the gym; to marry; to have a baby; to purchase a house; to complete a Bachelor of Commerce and nursing qualifications; and to work for six years as a community nurse, all with only sporadic chiropractic, massage or physiotherapy and no significant medication.
Medical Evidence
14Ms Thacker relied upon two reports from a treating GP, Dr Elena Sigalov, and one report from a physiotherapist who she consulted on 13 May 2019. Both attributed Ms Thacker’s symptoms to the accident. Whilst these reports corroborate Ms Thacker’s reports of her symptoms, I prefer to rely upon the opinions of the specialists on questions of causation.
15Ms Thacker also relied upon four reports by Mr Dominic Hannan, an orthopaedic surgeon. He saw Ms Thacker on three occasions, twice in September 2019 and once in May 2020. He noted that x‑rays showed her previous femur fracture was malunited and she had calcification in the region of the greater trochanter. Her hip joint showed only mild degenerative changes. A subsequent MRI showed a partial tear involving Ms Thacker’s gluteus medius and associated bursitis and tendinopathy of the gluteus minimus. He concluded that the tear in Ms Thacker’s hip abductors (and associated bursitis) was a result of the accident, either through the process of inserting the nail into the femur or through direct injury in the accident.
16Mr Hannan recommended an injection of cortisone and local anaesthetic into the right trochanteric bursa augmented by physiotherapy, which Ms Thacker had performed in October 2019. Unfortunately, Ms Thacker suffered chest pain after this injection and, in any event, did not notice any improvement. However, she did find the physiotherapy helpful, and in the report he prepared after he saw Ms Thacker in May 2020, Mr Hannan noted:
“With regards to the hip Wendy started some physiotherapy just last week as the TAC have only just approved this. She is noticing some improvement and she is pleased with how she is going.
Wendy reports that she is still working her 32 hours per week as a district nurse. With the Covid-19 situation she is doing some work in the car with the computers. Twisting and turning does aggravate her hip at times. She finds that standing for about 10 minutes can cause some hip discomfort. She is now bending over better to pick up things off the ground but this still potentially an issue. With her work there is not a considerable amount of walking so she hasn’t quite tested her walking capacity. Her main limitation at the moment is renovating the house. She has trouble when she is in the garden doing the weeding.”[7]
[7]Plaintiff’s Court Book (“PCB”) page 56
17Ms Thacker also relied upon reports from two medico-legal specialists. Dr Craig Mills is an orthopaedic surgeon who assessed Ms Thacker on one occasion, via telehealth, on 23 September 2020, and provided two reports. In his first report, Dr Mills recorded that Ms Thacker had a subtle limp on the right-hand side with a delayed positive Trendelenburg and no hip dysfunction. He said her abductors were weak and she had asymmetric lateral flexion. In relation to leg length discrepancy, he said:
“Leg lengths were equal or less than approximately 1 cm right shorter than the left. Nil whole person impairment due to leg length.”[8]
[8]PCB 68
18Dr Mills diagnosed Ms Thacker with an abductor dysfunction with partial tears of the abductors to the hip, scarring, right lateral cutaneous nerve of thigh dysaesthesia, aggravation to degenerate lumbar spine facets, medial knee osteoarthritis right side, vascular dysfunction to her right lower limb and scarring. He said there had been some slow progression in her right knee osteoarthritis and there was some early right hip osteoarthritis and degenerate changes in her lumbar spine. He attributed all these consequences to the accident. Dr Mills said ultimately she would require repair of her abductors, and possible hip and right knee replacements.
19In his second report, Dr Mills was asked to provide a further opinion specifically in relation to causation of the tearing of the gluteus medius tendon and trochanteric bursitis and the degenerative changes in Ms Thacker’s spine. Dr Mills said that the risk of damage to abductors during femoral nailing was recognised in the literature and in Ms Thacker’s case, where there had been the insertion and removal of a large intramedullary fixation device, “approximates 100%”. He noted that although abductor tears could be age-related, in this case Ms Thacker had both a surgical initiator and an age-related component to progression. He concluded that the abductor issue had been “initiated” as a result of the injury and then following surgeries to insert and remove the nail and that these components had combined with age to result in both chronic tears and trochanteric bursitis.
20In relation to his diagnosis of aggravation to degenerate lumbar spine facets, he said that the treatment of the femoral fracture “has resulted in a leg length discrepancy of approximately clinically 1cm” which had altered Ms Thacker’s pelvic obliquity and asymmetrically loaded her lumbar spine. He said that this resulted in a significant contribution to increase the rate of progression of natural degenerative processes in Ms Thacker’s lumbar spine. He continued:
“In addition, there is likely to have been direct trauma to the spine at the time of the accident and a lengthy period of altered gait also as a result of the additional condition of knee arthritic change with a small contribution in terms of leg length discrepancy there also.
The asymmetric abductor dysfunction also contributes to asymmetric spinal loading during gait.
The spinal arthritis has age related degenerative changes that have thus been significantly accelerated as a result of the motor vehicle accident.”[9]
[9]PCB 75
21Professor Richard Bittar is a neurosurgeon who assessed Ms Thacker on one occasion, on 21 April 2020, and provided two reports. His opinion was limited to consideration of any impairment to Ms Thacker’s spine. He diagnosed Ms Thacker with aggravation of lumbar spondylosis. In relation to causation he said that there was a direct relationship between the accident and her ongoing lower back symptoms and disability and that:
“In my opinion, the transport accident of September 22, 1988 has most likely directly injured her lower back, resulting in ongoing lower back pain. In my opinion, it is also possible that the transport accident related trauma also injured her lower back to the extent that subsequent degenerative change occurred at an accelerated rate.”[10]
[10]PCB 60
22In his supplementary report he explained his views as to causation further:
“The most important aspect of Wendy Thacker’s assessment in relation to her lumbar spine is the history of onset of lower back pain and progression of her pain. I took a detailed history from her when I reviewed her as I was assessing her specifically in relation to a potential spinal injury. I noted that she had not had any previous lower back injuries or symptoms suggestive of a significant lumbar spine condition prior to the transport accident in September 1988. I also note that she was 22 years of age at that time, and a degenerative lumbar spine condition in a 22-year-old would be extremely uncommon. More importantly, I noted that she experienced minor lower back pain immediately after the transport accident but this was overshadowed by her right leg injury. I noted that she noticed more lower back pain as her leg pain improved and her lower back pain persisted over the years that followed. This pattern of pain is inconsistent with a degenerative process, and is also inconsistent with an injury to the lumbar spine that has substantially resolved. It is most consistent with her having sustained an injury to her lumbar spine in the subject transport accident, with some masking of her symptoms by her leg injury. It is consistent with ongoing pain as a result of the transport accident injury.
The progressive worsening of her lower back pain is consistent with her eventual reduction in ability to engage in a variety of recreational activities including indoor cricket. The fact that she was able to remain active over the years does not, as Dr Menz implies, suggest that she did not have a symptomatic lumbar spine condition. It simply suggests that she was very motivated to continue leading as normal a life as possible despite pain. This is what practitioners in the field of spinal injuries and pain medicine tend to recommend.”
23The defendant relied upon two reports by Dr Anthony Menz, an orthopaedic surgeon who assessed Ms Thacker on one occasion, on 11 March 2021. He concluded that some of Ms Thacker’s ongoing symptoms, related to atrophy of the gluteus medius, may be related to the insertion or removal of the nail; however, he said that the tearing of the gluteus medius tendon was most likely age-related. In relation to the trochanteric bursitis, in his first report he said it was “difficult to state” whether it was associated with the accident. In his second report he said that it was “highly unlikely” to be related to the accident. Dr Menz did not believe there was any indication for surgical intervention and he did not believe the prognosis for pain improvement was good.
24In his first report, Dr Menz did not provide any views in relation to Ms Thacker’s back pain. In his second report, he explained that Ms Thacker had not mentioned to him that she injured her back in the accident. He also noted that she had returned to gymnastics about a year or so after the accident and returned to indoor cricket after the accident, which he said indicated that she was unlikely to be complaining of back symptoms. He concluded that the facet joint degeneration shown in the MRI of Ms Thacker’s lumbar spine was solely age-related.
Consideration – causation
25In the decision of Parrish v Specialized Australia Pty Ltd,[11] John Dixon J ruled on the admissibility of a number of (non-medical) expert reports. In paragraphs [23]–[25] of his judgment, John Dixon J considered the High Court decision in Dasreef Pty Ltd v Hawchar.[12] In paragraph [25], John Dixon J summarised the four “rules” for admissibility of opinion evidence which were held to be applicable by Heydon J in Dasreef:
“(a)is the opinion relevant (or of sufficient probative value);
(b) has the witness properly based ‘specialised knowledge’ (the expertise rule);
(c) is the opinion to be propounded ‘wholly or substantially based’ on specialised knowledge (the expertise basis rule); and
(d) is the opinion to be propounded ‘wholly or substantially based’ on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules):
(i)are the ‘facts’ and ‘assumptions’ on which the expert’s opinion is founded disclosed;
(ii)is there evidence admitted, or to be admitted before the end of the tendering party’s case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value; and
(iii)is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert’s specialised knowledge (the statement of reasoning rule)?”
[11][2020] VSC 15
[12](2011) 243 CLR 588
26As noted by John Dixon J, Heydon J delivered a separate judgment in Dasreef. The majority, consisting of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, stated that it was “ordinarily the case” that expert evidence must explain how their field of specialised knowledge applied to the facts assumed or observed so as to produce their opinion.[13] However, they expressly declined to place any reliance on the “basis rule” in determining that the expert report in question in that proceeding was inadmissible.[14]
[13]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 604
[14]Supra at 605
27In Davie v Magistrates of Edinburgh [1953] SC 34 at 39–40,[15] Lord President Cooper said that the duty of an expert witness is to:
“…furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”
[15]Cited with approval by Heydon J in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] and in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 624
28This duty is made express by the expert witness code of conduct which is included in form 44A to the County Court Civil Procedure Rules 2018. Paragraph 3 of that code of conduct states that:
“Every report prepared by an expert witness for use in Court shall clearly state the opinion or opinions of the expert and shall state, specify or provide—
...
(e) the reasons for and any literature or other materials utilised in support of each such opinion;”
29The extent of explanation of the process of reasoning of an expert which is required will depend on the field of specialisation, the nature of the opinion expressed and the circumstances of the case.[16] An expert is not required to go into “chapter and verse”[17] for every opinion put forward. Where medical opinion is concerned, a diagnosis may be based upon an intuitive synthesis of clinical observations and radiology, combined with many years of training and experience. This may “require little explicit articulation or amplification once the witness has described [their] qualifications and experience, and has identified the subject matter about which the opinion is proffered.”[18]
[16]Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631]–[632]; Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [170]; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89]
[17]Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (ibid)
[18]Dasreef Pty Ltd v Hawchar (op cit) at 604
30In the present case, no formal objection was made as to the admissibility of the reports of the medical experts. However, senior counsel for the defendant relied upon John Dixon J’s summary of the rules set out by Heydon J in Dasreef and, in particular, his Honour’s observations of the need to provide an explanation of the reasons for an opinion. In doing so, senior counsel for the defendant accepted that what was “good for the goose is good for the gander”.
31The need for the provision of an explanation for a medical opinion is, if anything, more acute in serious injury applications, where cross-examination of medical experts is not ordinarily permitted. In some cases, conflict between medical experts may be resolved by a determination that inaccurate histories have been provided to one or more of the medical experts; or on the basis that the opinions of one or more of the experts should be preferred because of their greater expertise or better opportunity to assess the plaintiff. In others, however, the Court must determine which (if any) of the conflicting medical opinions to accept without any such distinguishing features. In the absence of any explanation of the reasoning for those opinions in a written report:
(a) the opposing party has no means to challenge the (unstated) reasons for the opinion; and
(b) the Court lacks any means for understanding, much less interrogating the validity of the underlying reasons for those opinions.
32In my view, these observations impact upon both the admissibility of medical opinion and the weight to be accorded to that opinion.
33Applying these observations to the present case, I do not accept Dr Mills’ opinion that there is a causal link between the accident and the right lateral cutaneous nerve of thigh dysaesthesia; medial knee osteoarthritis; and vascular dysfunction right lower limb with which he diagnoses Ms Thacker. Dr Mills provides no explanation for why he causally links these conditions to the accident. The first record of Ms Thacker complaining of symptoms of numbness in the thigh is in 2018. No explanation is provided as to how an accident in 1988 could cause onset of a nerve condition in 2018. It is also not apparent that nerve conditions are within Dr Mills’ speciality. Further, Professor Bittar also considered this symptom and proposed a number of differential diagnoses which would require further investigations (which do not appear to have been performed) to assess. Although Ms Thacker complained of knee pain back in 1988, Dr Mills does not explain the causal link between this and the recent diagnosis of knee osteoarthritis. Dr Mills’ diagnosis of vascular dysfunction of Ms Thacker’s right lower limb is presumably based on her complaints of right foot and ankle swelling. However again, no explanation of the causal link between right foot and ankle swelling experienced in 2021 and an accident in 1988 is provided.
34On the other hand, I prefer the opinions of Dr Mills and Mr Hannan that the tear in Ms Thacker’s gluteus medius and associated trochanteric bursitis resulted from the accident, to the opinion of Dr Menz that they are not related to the accident. Dr Mills and Mr Hannan both provide an explanation for their views – the process of inserting and removing the nail split the tissues of gluteus medius and the gluteus medius may also have been directly injured in the accident. As explained by Dr Mills, the accident was thus the initiator of the injury, although it is the combination with age which has resulted in chronic tears and trochanteric bursitis and rendered it more symptomatic in recent years. Dr Mills also supports his views with a citation to a published article in Clinical Anatomy. In contrast, Dr Menz, even when provided with an opportunity to respond to the opinions of Dr Mills and Mr Hannan, simply asserts without explaining his reasoning that he maintains that the tearing of the gluteus medius tendon is age-related and the trochanteric bursitis is unlikely to be related to the accident.
35In relation to the causal link between Ms Thacker’s lower back pain and the accident, I do not accept the opinion of Dr Mills. Dr Mills provides an explanation of the reasons for his opinion in his second report. However, an examination of those reasons exposes significant areas of concern. First, he relies upon a “leg length discrepancy of approximately clinically 1cm…[which] has altered her pelvic obliquity”. However, his own earlier report in fact recorded that Ms Thacker had leg lengths which “were equal or less than approximately 1 cm right shorter than the left [emphasis added]”. Second, Dr Mills’ opinions were based solely on the documentation provided to him and a single telehealth consultation with Ms Thacker. His observations in relation to altered gait, abductor dysfunction and asymmetric spinal loading (and indeed, leg length) must be treated with some caution in this context. Finally, he relies in part on knee arthritic changes which I have not accepted are causally linked to the accident.
36I turn then to the question of whether I should accept the opinion of Professor Bittar or Dr Menz in relation to the lower back pain. Professor Bittar expressed the view that Ms Thacker’s lower back pain was directly related to the accident. Professor Bittar explained that facet joint degeneration may be age-related but may also result from an injury to the spine. An injury to the spine may also render symptomatic age-related facet joint degeneration which would otherwise be asymptomatic. Professor Bittar noted that there is often a poor correlation between findings on neuroimaging and severity of pain. To Professor Bittar, the most important aspect of Ms Thacker’s assessment was the history which he took of onset of lower back pain immediately after the accident and the progression of that pain. He said that it was very unlikely that a 22‑year-old would have a degenerative spine condition, so this back pain indicated a significant spinal injury. The persistence of this back pain over the years and subsequent progressive worsening of her symptoms supported his opinion that Ms Thacker suffered an initial injury to her spine in the accident and that her current symptoms were causally related to that injury.
37Dr Menz also relied upon the history provided to him by Ms Thacker in support of his view that her symptoms of lower back pain were solely age-related. He did not address Ms Thacker’s symptoms of lower back pain at all in his first report. In his second report, he noted that the reason he did not do so is that Ms Thacker did not indicate to him that she had injured her back in the accident. He also noted that Ms Thacker had returned to gymnastics and indoor cricket after the accident. In this context he concluded that it was unlikely that she suffered ongoing back symptoms.
38Resolving the conflict between the opinions of Professor Bittar and Dr Menz therefore requires a consideration of the veracity and reliability of the account given by Ms Thacker of her symptoms of lower back pain. In her affidavit, Ms Thacker said that she had “ongoing…lower back pain, to varying degrees from the time of the accident”. To Professor Bittar she explained that she noted “minor lower back pain immediately after the transport accident; however, this was overshadowed by pain related to her right leg injury. As her leg pain improved, she noticed more lower back pain, and her lower back pain has persisted over the years that followed.” Under cross-examination she admitted that she was not sure if she suffered lower back pain in hospital,[19] and said that the back pain really presented itself whilst she was attending the TAC rehabilitation centre.[20] She recounted a specific memory of complaining “bitterly” about her back pain to the point where she was unable to lie flat on the physiotherapy bed when undergoing TENS treatment, so that they had to use a slippery board to angle her legs so she could perform the exercises.[21]
[19]T24, L6-7
[20]T31, L12-14
[21]T32, L22-26
39I formed the view that Ms Thacker was a credible witness who was doing her best to tell the truth, including by making a number of frank admissions during cross-examination.[22] It was clear that she was angry at the TAC and at times explained the underlying reasons for that anger in a manner that was not responsive to the questions asked. But that does not make her a liar. Her evidence of suffering back pain when undergoing TENS treatment was quite specific. Such a specific memory cannot easily be rejected on the basis that it was unreliable due to the effluxion of time, as opposed to being rejected as not credible. Although there is no reference to back pain in her TAC claim form signed 1 October 1988 or in any of the TAC Rehabilitation Centre reports tendered in evidence, the clinical notes of the TAC Rehabilitation Centre were not available (and may have contained a reference to back pain) and the TAC claim form contained a very brief summary of her injuries. I accept the evidence of Ms Thacker that she suffered lower back pain at the time she attended the TAC rehabilitation centre.
[22]eg: T39, L26-29; T41, L12-24; T48, L13-18; T68, L14-19
40However, I do not accept that Ms Thacker’s lower back pain can fairly be described as “persistent” since the accident. Whilst I do accept that Ms Thacker is a truthful witness, as she herself said, “[s]ome things you commit to memory, some things are inconsequential”. It is much more likely that she remembers the times when she had pain over the last 32 years, than all the times when she did not have pain. The clinical records tendered in evidence record only sporadic bouts of back pain, generally triggered by some particular factor such as pregnancy, or a fall. If she had suffered ongoing and persistent back pain throughout the last 32 years it would have been reported by her to her doctors, and recorded more frequently in the clinical notes, particularly in the context of other complaints of pain.
41In light of these findings, I do not accept Dr Menz’ views that Ms Thacker’s facet joint degeneration is solely age-related. His views are at least partly based on the fact that Ms Thacker did not “indicate” to him that she injured her back in the accident. I accept that it is more likely than not that Ms Thacker’s lower back was injured in the accident and that that injury has contributed to Ms Thacker’s current lower back pain. However, I am not satisfied that the entirety of Ms Thacker’s current lower back pain can fairly be viewed as a consequence of the accident in view of the recent deterioration of her symptoms and the sporadic nature of her previous complaints of back pain. Professor Bittar himself notes the difficulties in relation to diagnosis as a result of the limited imaging and recommends a number of additional investigations, which do not appear to have been performed.
Consideration – whether serious injury
42In order to meet the definition of serious injury, Ms Thacker must satisfy the Court that she has suffered a serious long-term impairment of a body function. There are three requirements inherent in this definition. There must be an identified body function which is impaired. It must be serious. It must be long-term. I have accepted that Ms Thacker continues to suffer impairments to her hip and spine as a result of the accident some 33 years later. Clearly this satisfies the requirements of “long-term”. However, this alone does not suffice.
43I do not accept Ms Thacker’s submissions that the whole of her right leg, encompassing her hip, pelvis and greater trochanter area, can be viewed as a single body function. Such a finding would be inconsistent with the views of Chernov JA, with whom Winneke P agreed, expressed in Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at [23]:
“In my view, the short answer to [counsel’s] principal submission is that the two injuries in question impaired two separate body functions, namely, the plaintiff’s right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function. A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of [the relevant provision in the Accident Compensation Act]. Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg.”
44In Lexa v Transport Accident Commission [2019] VSCA 123 at [40], the Court of Appeal referred to Lu as the leading authority by the Court of Appeal. At [46], the Court of Appeal in Lexa explained that the Court distinguishes:
“…between a physical act or operation (involving a part or some closely connected parts of the body) and an ‘activity’ to which the physical act or operation may be applied. The physical act or operation will be one of a number of physical acts or operations that need to be coordinated and applied in order to perform the activity. A ‘body function’ is therefore distinguished from a higher level activity that combines a number of physical acts or operations.”
45Ms Thacker relied upon the decision of Judge Purcell in Brassington v Victorian WorkCover Authority [2021] VCC 74, in which Judge Purcell concluded that, in the factual circumstances of that case, the relevant body function was the right lower limb. The decision in Brassington turned in particular upon the close connection between the two relevant body parts in that case, being the right ankle and the knee. It does not stand as authority for a general proposition that any impairments to the length of the right lower limb may be aggregated.
46Having said that, the question of whether or not the entire right leg may be viewed as a single body function does not make a significant difference to the result in this case. I have not accepted that Ms Thacker’s osteoarthritis of the knee, foot or ankle swelling or right thigh numbness were a result of the accident. In any event, these symptoms were relatively minor. I have also found that Ms Thacker’s lower back pain (if anything) stemmed from a direct injury to her lower back rather than as a consequence of her fractured femur or the impairment of her hip joint.[23] If her lower back pain is to be considered, it must be considered as an impairment of a separate body function, being the spine.
[23]Compare Tavendale v The Age Co Ltd [2009] VCC 642, as explained by the Court of Appeal in Lexa v Transport Accident Commission [2019] VSCA 123 at [49]-[50]
47I accept that impairment of the hip joint (including the greater trochanter area), pelvis and upper right thigh[24] amounts to impairment of a single body function. This area is analogous to the shoulder joint, which was considered to be a single body function in Lu. It was apparent from Ms Thacker’s evidence, the histories that she provided to the medical experts, and the diagnoses of those medical experts, that her most significant symptoms arose from the tear to her gluteus medius and associated trochanteric bursitis. These symptoms can be considered to be an impairment of a single body function, which I will refer to as the hip.
[24]For convenience, I will refer to this as an impairment to the “hip”
48I turn, then, to consider whether the impairment of either Ms Thacker’s hip or spine amounts to a serious injury. I must consider the consequences of each of these impairments and determine whether, when judged by comparison with other cases in the range of possible impairments or losses, it can fairly be described as at least “very considerable” and certainly more than significant or marked.[25]
[25]Humphries v Poljak [1992] 2 VR 129 at 140
49In relation to the experience of pain, relevant factors typically include what the plaintiff says about the pain in Court and to the doctors; what the plaintiff does about the pain, for example in terms of obtaining treatment, taking medication or avoidance of activities; the opinions of the medical experts and any objective evidence.[26] It has been said that the “endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence’.”[27] The Court must take care not to penalise a stoic plaintiff.[28] On the other hand, a finding of ongoing pain, even constant pain, does not necessarily dictate a finding of serious injury.[29] Each case must be determined by reference to the consequences to the particular claimant, when compared to the range of comparable cases.
[26]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [11]
[27]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199]
[28]Haden Engineering Pty Ltd v McKinnon (op cit) at [13]
[29]Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12
50In the present case, Ms Thacker had an initial period of incapacity and underwent two surgeries (one to insert the nail and one to remove it). She also underwent an intensive period of rehabilitation. However, she was able to return to full-time employment within a matter of months and retain that employment (with some breaks due to child-rearing and retrenchment) for many, many years. At one point, she was even able to combine study and full-time employment.
51I accept that Ms Thacker has suffered ongoing pain, of varying degrees of severity since the accident. However, that pain has been sporadic. Specific bouts of pain resolved with physiotherapy or chiropractic treatment or after the trigger had passed (such as pregnancy or a fall whilst playing indoor cricket).
52Ms Thacker has also suffered ongoing restrictions on the range of movement of her hip which has had some impact on her gait and also her sexual relations, but not so much as to prevent her bearing and raising a child, maintaining a relationship, playing indoor cricket or working out at the gym.
53I accept that Ms Thacker was not able to successfully return to gymnastics. However, gymnastics was not one of her current activities at the time of the accident, but rather a past activity she had enjoyed when younger. Her attempt to return to gymnastics was in about 1990, the year that the nail was removed. She did not make any further attempts to return to gymnastics.
54Ms Thacker was able to successfully return to indoor cricket when she attempted to do so, playing three to four seasons in about 2006-2007. Ms Thacker accepted that her injuries did not stop her from playing cricket[30] and said it may have been the passage of time which reduced the level at which she played.[31] Ms Thacker was also able to workout at the gym for four years, including pressing weights, cycling and using the cross trainer.[32]
[30]T39, L26-29
[31]T84, L18-19
[32]T41, L19-24
55In more recent years, Ms Thacker’s physical symptoms have deteriorated. Ms Thacker relied particularly on the impact of her current symptoms on her mobility. It is difficult to separate out the impact of the impairment of her hip or spine and her other non-accident-related symptoms on her mobility. For example, she says at paragraph 64 of her affidavit that it is difficult to squat or kneel due to her right knee. In paragraph 63, she appears to draw a link between an inability to go for a long walk or remain on her feet with her symptoms of right foot and ankle swelling. It appears from paragraph 44 of her affidavit that it is the numbness in her right thigh which interferes with her driving.
56Nevertheless, I accept that the impairment of Ms Thacker’s hip does restrict her capacity to stand for longer than ten minutes or to walk for long distances. I also accept that her back pain is exacerbated if she walks more than 15-20 minutes or stands for more than 10 minutes.
57I also accept that her pain has some impact on her capacity to perform household chores, particularly heavier maintenance tasks, and to perform some aspects of self-care such as toenail clipping. However, she remains able to care for herself and to cook, clean and maintain her home.
58Ms Thacker also remains able to work for at least 32 hours per week. Ms Thacker very frankly admitted that these hours suited her for lifestyle reasons. She also said that she enjoyed her current role as a community nurse. Although some specific duties of that role cause her difficulty, she is able to work around these difficulties with movements and stretching.
59A loss of flexibility in the workforce can be a pecuniary disadvantage, however there is no evidence in this case that this is a loss that Ms Thacker feels particularly keenly; that her current position is tenuous; or that she would have difficulty obtaining a similar position should it become necessary to do so.
60Ms Thacker has been treated over the years with chiropracty, massage and physiotherapy. She has found physiotherapy particularly helpful in managing her symptoms. She had one injection into her hip, although that treatment seems not to have been helpful. She takes Panadol for her pain and occasionally takes Diclofenac and uses topical treatments such as Voltaren osteo gel or Deep Heat. It is possible that Ms Thacker will require surgery to her hip in the future. However, this is only a possibility. Dr Mills said that she would require repair of her abductors, however his views were based on a single telehealth consultation and a review of the provided documents. I prefer the views of Mr Hannan, who assessed Ms Thacker on three occasions and said it was rare to have the area operated on, and the views of Dr Menz, who said he did not believe there was any indication for surgical intervention.
61Although impairment is concerned with what is lost, the significance of what has been lost can be informed by what is retained.[33] There have been many, many years in which the impact of the impairments to Ms Thacker’s hip and spine have been far less than they are now. Counsel for Ms Thacker frankly conceded that had she brought this application in 1991, she would not have established that she had a serious injury within the meaning of Humphries v Poljak [1992] 2 VR 129. Although in more recent years Ms Thacker’s condition has deteriorated, she retains the capacity to work in an occupation she finds enjoyable on hours that suit her lifestyle. She manages her pain with over-the-counter medication and physiotherapy, which she finds helpful. She is able to care for herself and cook and clean and maintain her house.
[33]Dwyer v Calco Timber (No 2) [2008] VSCA 260
62It is not enough that Ms Thacker has suffered a long-term impairment of a body function, or even that she has suffered a significant long-term impairment of a body function. The impairment must be at least very considerable. Having considered all of the above matters, I am not satisfied that Ms Thacker has suffered a serious injury, either by reason of the impairment to her hip or to her spine.
Application for extension of time
63In view of my findings in relation to serious injury it is not necessary for me to determine the application for an extension of time. However, for completeness, and in deference to counsel’s very helpful submissions, I will record my findings on the assumption that Ms Thacker did establish that she had a serious injury.
64The parties were agreed on the principles to be applied and the critical factors for consideration. I may extend the limitation period under s23A of the Limitation of Actions Act 1958 (Vic) if I am satisfied that it is just and reasonable to do so, having regard to the factors in s23A(3) and any other relevant factors. In doing so, I do not weigh the factors against each other; rather, I perform an exercise in intuitive synthesis in order to arrive at a conclusion as to whether it is just and reasonable to extend the limitation period having regard to all the relevant factors.
65In the present case, the parties accepted that the critical factors were:
(a) the delay and the reasons for that delay;[34] and
(b) the prejudice to the defendant of that delay.[35]
[34]Sections 23(3)(a)(e) and (f)
[35]Section 23(3)(b)
66The delay was clearly very considerable. Ms Thacker’s cause of action arose in September 1988. She did not commence this proceeding until November 2019, some 31 years later.
67Counsel for Ms Thacker submitted that her delay could be explained on the basis that she was (correctly) advised that she would be unsuccessful if she brought a serious injury application within the limitation period. It was only with the deterioration of her symptoms in recent years, and the receipt of medical evidence in relation to those symptoms, that it became apparent that Ms Thacker might successfully meet the requirements of a serious injury.
68The evidence in relation to the advice Ms Thacker received at the time was very vague. Ms Thacker could recall very little by way of specifics in terms of the advice she was given. She could not say whether or not she had been advised about the existence of a limitations period. She could recall attending a meeting with a lawyer in a book-lined office at which she “believed” she was told that she did not have a sufficient injury to warrant a claim. However, she was not able to provide any specificity as to when that meeting was. It may have been in 1991 or it may have been many years later. During the course of cross-examination, she referred to three sets of lawyers, plus a fourth, Slater & Gordon, who she consulted after the limitations period had expired. She also said that it would not have mattered how much proceedings cost as they were desperately saving for a house at the time.
69A letter was sent to the TAC on her behalf by Macpherson & Kelly on about 17 May 1991 contending that Ms Thacker had suffered serious injuries in the accident. The TAC responded on 2 July 1991 by stating that “At the present stage, I do not believe your client’s injuries conform with the definition of a “serious injury”.” Macpherson & Kelly ultimately responded to this letter on about 16 October 1991 stating simply that “We confirm that we have received no further instructions from our client.” There was further engagement between the TAC and Ms Thacker directly in 1995 after claims were submitted for radiology and physiotherapy. At one point, TAC had booked Ms Thacker in for an assessment by a medical expert. However, I find that ultimately the appointment was cancelled after Ms Thacker informed the TAC that her issues had resolved.[36]
[36]DSCB 112, the contents of which were not denied by Ms Thacker
70I accept that in more recent years Ms Thacker was told she had “Buckley’s” of successfully making a claim against the TAC by her GP. It was only after Ms Thacker consulted a physiotherapist in 2019, who told her that her symptoms were attributable to the accident, that she began to consider that she might have a claim against the TAC. There is no suggestion that there has been any relevant delay by Ms Thacker since that point in time.
71I am prepared to infer that Ms Thacker was advised she did not have good prospects of establishing that she had a serious injury at some time in the early 1990s. As conceded by her counsel, she did not in fact have good prospects of establishing that she had a serious injury at that time, so it is likely that was what she was advised. However, it is also likely that Ms Thacker’s decision not to proceed with any claim was informed by a pragmatic desire to minimise her expenses and not expend money on an uncertain claim at a time when she was saving for a house.
72It is well established that general prejudice is presumed to arise by reason of delay. In the present case, where the delay has been very considerable indeed, that delay can also be presumed to be considerable. It is not necessary for the defendant to specifically prove such prejudice. It arises not just because of the presumption that memories have faded and evidence been lost or destroyed, but also because of the oppression in allowing an action to be brought long after the circumstances which gave rise to it have passed and when people should have been able to assume that claims could no longer be made against them.[37]
[37]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-3
73The existence of specific prejudice may be a further relevant factor over and above the presumed general prejudice which arises from delay. The defendant relied upon specific prejudice in relation to liability, contributory negligence and causation/quantum.
74I am not satisfied that the defendant has suffered specific prejudice in relation to liability or contributory negligence. The driver of the other vehicle involved in the accident was named only as “Greg” and was never identified by the police. Given the seriousness of the accident and his apparent fault, I assume that the police would have used reasonable endeavours to locate him at the time. The inability to locate the driver has not resulted from Ms Thacker’s delay. I am satisfied that both Ms Thacker and Mr Harford can be located. It may also be that the owner of the vehicle is able to be located – only initial enquiries have been made at present. In any event, there is nothing to indicate in the police report that Ms Thacker was in any way at fault for the accident. To the contrary, the evidence is that the driver of the other vehicle was entirely at fault. It is mere speculation to suggest that the defendant might have had a defence to liability or a defence of contributory negligence which has been lost as a result of the delay.
75In relation to the question of causation/quantum, however, I do accept that the defendant has suffered specific prejudice. If leave to bring a proceeding is granted under s93 of the TAA, Ms Thacker will be able to bring a claim for damages for all components of the “compensable injury” suffered by her as a result of the accident. Her claim will not be limited to damages for the particular impairment of a body function which satisfies the serious injury gateway.[38] I therefore must consider not just the prejudice to the defendant in defending a claim for damages for her hip symptoms but also in defending a claim for the lower back symptoms, right knee and foot symptoms and psychological symptoms.
[38]Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232
76To take the lower back symptoms as an example, Ms Thacker has put forward the evidence of Professor Bittar that the accident caused those symptoms. There are two key lines which the defendant might have sought to rely upon to defend against this claim. It may attack the factual assumption that there has been a persistence in her symptoms since 1988. In this regard, the defendant will be hampered by the lack of clinical notes from the TAC Rehabilitation Centre and from her treating GP in the period from 1998 to 1993 and 1997 to 2001. It may also be difficult to locate and obtain the clinical notes of the chiropractor(s) who treated Ms Thacker. The defendant may also seek to rely on the objective observations of her lower back. In this regard, the defendant will be hampered by the lack of any radiology or other observations of her lower back between September 1988 and September 2019. Of course, it may be said that these difficulties will also hamper the plaintiff in pursuing her claim. However, it does not seem to me that this is a complete answer to the defendant’s claim of specific prejudice, particularly where Ms Thacker has put forward the evidence of Professor Bittar that the accident caused her lower back symptoms.
77In the case of Ms Thacker’s hip and right thigh, there is at least some radiology. But the TAC has lost the opportunity to have Ms Thacker assessed by an independent medical expert more contemporaneously with the accident. The TAC actually took steps to avail itself of this opportunity in 1995, when it booked Ms Thacker in for a review by a doctor, but this appointment did not go ahead after Ms Thacker advised that her problems had resolved.
78I accept that the loss of a capacity to bring a claim for personal injuries which might otherwise have prospects of success is a significant prejudice to Ms Thacker and that this is itself a relevant factor. However, in the present case the delay has been really very considerable. Although the delay is explained, an explanation for delay is not necessarily in and of itself sufficient to justify an extension of time under s23A. Having considered all of the above, and particularly the presumed prejudice by reason of the extensive delay and the specific prejudice to the TAC’s defence on causation/quantum, I am not satisfied in the circumstances that it is just and reasonable to extend the limitations period.
Conclusion
79The proceeding is dismissed. I will hear from the parties on the question of costs.
Certificate
I certify that the preceding 26 pages are a true copy of the reasons for decision of Her Honour
Judge Tran delivered on 22 June 2021.
Dated: 22 June 2021
Cathy Baldwin
Acting Associate to Her Honour Judge Tran
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