Tomlinson v Transport Accident Commission
[2013] VCC 201
•25 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05433
| SUZANNE PETA TOMLINSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 30 and 31 January and 1 February 2013 | |
DATE OF JUDGMENT: | 25 March 2013 | |
CASE MAY BE CITED AS: | Tomlinson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 201 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment to the right hip – impairment to the wrists – whether or not the consequences are “serious” – a range case
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833
Judgment: Application dismissed in respect of the wrist injuries.
Leave granted for pain and suffering damages in respect of the right hip injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Seccull | Slater & Gordon Ltd |
| For the Defendant | Mr P B Jens with Mr S A Smith | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 14 November 2011. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from injuries suffered by her arising out of a transport accident which occurred on 8 July 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is set out under s93(17):
“(a) Serious long-term impairment or loss of a body function.”
4 In this application, the plaintiff has, in effect, two separate applications for serious injury.
5 Under s93(17) of the Act, the plaintiff seeks serious injury certification by the Court for:
(i) loss of body function of the right hip and right leg; and
(ii) loss of body functions of the wrist, in particular the right wrist.
6 The inquiry under s93(17)(a) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, to determine whether it is serious and long-term.
7 The serious injury defined in ss(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
8 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury [or disfigurement], when judged by comparison with other cases in the range of possible impairments … be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
9 The plaintiff has sworn and relied upon two affidavits, dated 27 May 2011 and 18 December 2012. The plaintiff gave evidence and was cross-examined in the application.
10 In addition to the sworn statements and sworn evidence of the plaintiff, both parties relied on medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered medical reports and material. None of the authors of the medical reports were called for cross-examination.
11 The tendered evidence in this proceeding was as follows:
· Exhibit A – the Plaintiff’s Court Book (“PCB”) pages 1 to 144 inclusive.
· Exhibit 1 – the Defendant’s Court Book (“DCB”) pages 1 to 83 inclusive.
· Exhibit 2 – the report from High Street Physiotherapy and Sports Medicine Clinic dated 1 February 1999.
12 At the commencement of the application, Mr Seccull, on behalf of the plaintiff, abandoned any claim for serious injury in respect of the lumbar spine or spine generally, the left ankle or left fibula and any psychiatric injury which had previously been set out in the Particulars of Injury dated 5 February 2012. Mr Seccull clearly stated that the serious injury certification was sought in respect of the loss of body function to the right hip and the bilateral loss of function to the wrists and hands.
13 Mr Jens, on behalf of the defendant, identified the issues in the application for serious injury as follows:
(a)Whether the plaintiff’s injury to the right hip is properly described as in “the range” of cases considered as a whole to be a serious injury under the Act given the previous condition of the plaintiff’s right leg;
(b)Whether the symptoms in the right hip are caused by a back injury, not a hip injury;
(c)Whether the alleged injuries to the wrists of the plaintiff were caused or a consequence of the rehabilitation process undertaken by the plaintiff;
(d)The credit and “reliability” of the plaintiff.
The Plaintiff’s Background
14 The plaintiff was born on 24 October 1952 and is now aged sixty years. She lives with her adult daughter, Erin, and her granddaughter.
15 The plaintiff completed formal education until Year 10. In 1999, she returned to studies and completed a mature-aged TAFE course in Intellectual Disabilities. The plaintiff had previously obtained qualifications as a State Enrolled Nurse, Division II, and had worked in that field for a number of years.
16 The plaintiff is a widow. She is right-handed. She is a recipient of a Disability Pension.
The transport accident involving the Plaintiff
17 The plaintiff described the transport accident in her affidavit sworn 27 May 2011 in the following terms:
“… On 6 July 2008 at about 9 a.m. I was seated in the rear passenger side of a car being driven by Reece Howell. Reece had just picked me up from Melbourne Airport and we were heading down Melrose Drive Tullamarine. I was wearing a properly fitted seatbelt. As our car was most of the way through a roundabout, a taxi failed to give way and crashed into my passenger door. I felt immediate pain, particularly in the legs, and found the legs difficult to move. It was hard to get out of the car due to leg pain. I was in shock immediately following the collision. The front passenger seat was crushed against me, trapping me in the car. … .”[3]
[3]PCB 5-6, paragraph 3
18 The plaintiff was taken from the scene of the accident by ambulance to The Royal Melbourne Hospital. In the ambulance report, the accident is described as follows:
“55 yo F pt L rear passenger of station wagon that was struck on left side of car by a taxi travelling at moderate-high speed. Significant B pillar damage and door intrusion into pt’s left side. Pt denines (sic) Head strike or LOC, Pt trapped in car by door damage and inability to move due to pain. GCS 15 throughout treatment and transport. C/- bilateral femur pain with nil obvious deformity.’[4]
[4]PCB 18
19 At the time of the ambulance assessment, the plaintiff was complaining of left and right femur pain.
The Plaintiff’s impairment or loss of body function
Left ankle
20 The plaintiff was taken from the scene of the accident by ambulance to The Royal Melbourne Hospital. At The Royal Melbourne Hospital, the plaintiff was diagnosed with a fracture of the distal fibula approximately 6 centimetres above the ankle joint on her left side. This diagnosis followed a left ankle x-ray.[5] The plaintiff makes no claim in this application as result of that injury to her left ankle. Her rehabilitation in respect of this injury has been completed and she has made a good recovery from that injury.
[5]PCB 23
Bilateral wrist injury
21 At the time of attendance at The Royal Melbourne Hospital on the day of the transport accident, the plaintiff made no complaint of pain or injury to her wrists. The plaintiff claims that the impairment and loss of body function to her right and left wrists arose from the rehabilitation process in respect of her left leg. The plaintiff states that in the rehabilitation process she was required to use a wheelchair and crutches. She says the use of those rehabilitative aides have caused injury to her right and left wrists. This proposition is contested by the defendant.
22 The plaintiff stated in evidence that the first time that she had had problems with her right thumb and/or both hands was after the accident in this case. She stated that she used the wheelchair for approximately nine weeks. The problems with her right hands or wrists resulted from the use of the wheelchair and crutches at this time.[6]
[6]Transcript (“T”) 64-65
23 In a report of Dr Frank Laska, consultant physician and rheumatologist, dated 5 July 2004. He was reporting on an injury to the plaintiff’s knees as a result of a work accident which occurred in 1995. In the examination part of his report, Dr Laska noted:
“Musculoskeletal examination reveals that most joints are preserved, but there is osteoarthritis present in the basal thumb joint on the right. … .”[7]
[7]DCB 65
24 The plaintiff’s hands were x-rayed on 23 December 2009. The report of that x-ray publishes the findings as follows:
“There are prominent degenerative changes in both first CMC joints, more advanced on the right. There is no evidence of any established degenerative change involving other joints. The wrists appear clear.
Conclusion:
Bilateral first CMCJ degenerative changes much more prominent on the right.”[8]
[8]PCB 111
Medical Opinions on the Wrist Injuries
Mr Roderick Cunningham, orthopaedic surgeon.
25 Mr Roderick Cunningham, orthopaedic surgeon, in his report dated 27 July 2010, noted a history from the plaintiff that, as a result of the plaintiff using a wheelchair consistently during her rehabilitation, she developed severe bilateral thumb pain involving the base of both thumbs.[9] Mr Cunningham noted that the x-rays of both thumbs showed very significant osteoarthritis. Mr Cunningham injected local anaesthetic and cortisone into both thumbs, which gave the plaintiff reasonable relief.[10]
[9]PCB 42
[10]PCB 43
Mr Anthony Berger
26 Mr Anthony Berger, a specialist in hand and upper limb surgery, reported on the plaintiff’s condition on 23 December 2010. Mr Berger noted that the plaintiff complained about increasing pain in her right thumb and, to a lesser extent, the left thumb, when using a wheelchair, and subsequently, the crutches. Mr Berger stated that the plaintiff described pain in the right thumb, pointing to the region around the carpometacarpal joint.[11]
[11]PCB 45
27 Mr Berger diagnosed the plaintiff with primary osteoarthritis in the carpometacarpal joint of the right thumb and, to a lesser extent, the left thumb, and also the right index finger distal joint.[12]
[12]PCB 46
28 Mr Berger’s opinion was as follows:
“I believe Mrs Tomlinson has pre-existing osteoarthritis in the carpometacarpal joint of both thumbs. I do not believe the motor vehicle accident has caused the arthritis. I also do not believe the use of the wheelchair and crutches has caused the arthritis. I believe these conditions have aggravated the symptoms of the arthritis but have not changed the pathology in any way. I believe that Mrs Tomlinson’s condition has at this stage essentially stabilized although there may be some gradual deterioration with time.”[13]
[13]PCB 47
Mr Stephen Doig, orthopaedic surgeon
29 Mr Stephen Doig, orthopaedic surgeon, reported on the plaintiff’s condition on 16 July 2009. Mr Doig diagnosed the condition of the right wrist as follows:
“Aggravation of pre existing asymptomatic osteoarthritis in the right first 1st carp-metacarpal and metacarpo-phalangeal joints.”[14]
[14]PCB 71
30 Mr Doig went on to give the following opinion:
“… Her right thumb I consider is related to the accident in that she said that it has come on because she had to use a wheelchair because both legs were out of action for such a long period of time. I consider that that is quite consistent.”[15]
[15]PCB 71
31 Mr Doig maintained that same opinion in his report prepared on 6 September 2010.[16]
[16]PCB 74-76
Mr Michael Fogarty, orthopaedic surgeon
32 Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in this case. In his report dated 20 December 2012, he gave the following opinion in relation to the wrist injuries to the plaintiff:
“… The pre-existing condition of carpometacarpal osteoarthritis of the thumb may have been aggravated and it is likely that this condition will continue to have some effect on the claimant’s ability to undertake domestic and household duties and to enjoy leisure activities.”[17]
[17]PCB 144
Mr Michael Shannon, orthopaedic surgeon
33 Mr Michael Shannon, orthopaedic surgeon, also examined the plaintiff on behalf of the defendant. He reported to the defendant on 3 July 2012. He took a history from the plaintiff where she stated that her right thumb in particular had become painful during the first two weeks of rehabilitation when she was using a wheelchair.[18] Mr Shannon expressed the opinion that the osteoarthritis in the thumbs is clearly pre-existing. Mr Shannon does not relate the injury and symptoms of the right thumbs to the transport accident. In his report, he agrees with the findings made by Mr Berger.
[18]PCB 128
34 In her evidence, the plaintiff was cross-examined about the wearing of a splint which had originally been prepared by Mr Berger. The evidence was as follows:
“Q:You recently saw Anthony Berger in respect of ongoing problems with your hands and thumbs and you intend to see him again?‑‑‑
A:Yes.
Q:Did you see him again?‑‑‑
A:He – on - I think on the first day that I saw him he referred me to his OT lady that does the splints. So I don't think I went back to him. I went straight onto her.
Q:You indicated that you often wear a splint for the right hand and thumb?‑‑‑
A:Yes.
Q:Do you have this splint with you today?‑‑‑
A:No.
Q:Where is it?‑‑‑
A:At home.
Q:Is there any reason why you didn't bring it with you today?‑‑‑
A:Well, I haven't been able to use it because it doesn't function anymore; the straps have all come off.
Q:Did you feel any need to have it replaced?‑‑‑
A:Well, they – I don't know. The pain is still there but I don't think it was significant enough to get more splints made.
Q:Did you make application, for instance, to have – or did you make any enquiry about getting another splint?‑‑‑
A:To whom?
Q:Anyone?‑‑‑
A:I spoke – I think I spoke to my doctor about it, my GP.
Q:You think you did?‑‑‑
A:I think ‑ ‑ ‑
Q:You are not sure?‑‑‑
A:No, I am not sure.
Q:Did the splint do any good for you?‑‑‑
A:It did on the left hand, very good. At the beginning with the right for a while it sort of pulled my thumb forward but, no, not overall.”[19]
[19]T63, L13 – T64, L7
35 I conclude from this evidence that the plaintiff was not suffering pain to the extent that she was seeking the use of the appropriate wrist splint. I accept that the level of pain the plaintiff is suffering is a progression of her osteoarthritis in the right thumb and perhaps the left wrist as well. The osteoarthritis in the right thumb was diagnosed as far back as 2004. The symptoms that the plaintiff is suffering in the left and right wrist are a result of the progression of her osteoarthritic condition.
36 I accept the evidence of Mr Berger, who is an expert in the field. He is of the opinion that the injuries to the hand are not connected to the transport accident and are not caused by the use of the wheelchair or crutches in the rehabilitative stage of the plaintiff’s treatment for the injuries she did receive in the transport accident. Mr Shannon agrees with Mr Berger’s opinion.
37 The plaintiff’s application for serious injury certification in respect of the loss of body function in respect of the left and right wrists and hands is dismissed.
Loss of body function to the right hip
38 The plaintiff sought serious injury certification for the loss of body function of her right hip as a result of the transport accident on 8 July 2008. In these reasons, it will become clear that there are a number of diagnoses for the precise injury to the plaintiff’s right hip. It was appropriately conceded by Mr Jens, acting on behalf of the defendants, that it was not necessary for the Court to make a finding as to the precise nature of the diagnosis if it was satisfied that the injury to the hip was a direct result of the transport accident and it was serious.[20]
[20]T164
39 Immediately after the accident, the plaintiff was attended by ambulance officers. I have previously referred to the description of the accident relating to the plaintiff and the position she was in when the ambulance officers arrived at the scene of the accident.[21] The plaintiff was complaining of left and right femur pain. The observations made by the ambulance officers at that time were that the plaintiff’s left and right femur pain was described as sharp and aggravated by movement and palpation.[22]
[21]See paragraph 18 of these Reasons for Judgment.
[22]PCB 20
40 The plaintiff was taken to the Royal Melbourne Hospital by ambulance on the day of the transport accident. On her attendance in the Emergency Department of the Royal Melbourne Hospital, the plaintiff reported pain in both thighs, worse on the right side.[23] On examination, the plaintiff was noted to have tenderness over both mid thighs and the lower back.[24] The plaintiff had a number of x-ray examinations, but relevantly had an x-ray of her pelvis. The x-ray report for her pelvis stated:
“Both femora project appropriately. No fractures evident. Incidentally, enthesophytes at the iliac crests bilaterally.”[25]
[23]PCB 23
[24]PCB 23
[25]PCB 23
41 On 18 July 2008, the plaintiff returned to the Royal Melbourne Hospital Fracture Clinic for review. The plaintiff reported right hip pain. She was diagnosed with non-displaced acetabular fracture on the basis of a bone scan performed on 16 July 2008. At the Fracture Clinic, the plaintiff’s right hip was x-rayed again, but was reported as normal.[26]
[26]PCB 24
42 The bone scan was performed on the plaintiff on 16 July 2008. The conclusion of the bone scan was stated as:
“Recent right acetabular fracture.”[27]
[27]PCB 108
43 The plaintiff was reviewed on a number of occasions at the Fracture Clinic relating to the injuries she received in the accident. Consistently, the plaintiff complained of right hip symptoms throughout her reviews in 2008. On 16 January 2009, the plaintiff complained of right thigh pain. An MRI of her right hip, which was performed on 2 January 2009, was noted as reporting that the plaintiff was suffering from:
“1 Myxoid degeneration or chronic anterosuperior labral tear with mild adjacent oedema.
2 Low-grade trochanteric bursitis.”[28]
[28]PCB 24 and 110
Dr Toma Mikhael, general practitioner
44 The plaintiff then attended her general practitioner, Dr Toma Mikhael, on 10 July 2008. Dr Mikhael reported on the muted injuries of the fracture to the left lower fibular, but also noted that the plaintiff continued to complain of pain to her right hip and opined that the reason for that was she had a fracture to her acetabulum.[29] Dr Mikhael also was of the opinion that, as a result of the injuries in the transport accident, the plaintiff was suffering from dysfunction, pain and stress as a result of those injuries.
[29]PCB 26
Dr Stephen Hill
45 The plaintiff attended North Eastern Rehabilitation Centre from 11 July 2008 until 8 September 2008. It was reported by Dr Stephen Hill that the plaintiff had significant right leg pain whilst an in-patient, which led to a bone scan demonstrating acetabular fracture of the pelvis on the right.[30]
[30]PCB 27
46 Dr Hill noted that at outpatient review, the plaintiff continued to complain of pain, particularly whilst weight bearing through the right leg, and a CT scan of the right hip was organised which questioned whether there was presence of bone fragments. An MRI was then organised for January 2009 in an orthopaedic review with Mr Roderick Cunningham, orthopaedic surgeon, following that. Dr Hill noted that Mr Cunningham indicated that the MRI had a suggestion of cartilage tear, but did not have clear evidence of resolving acetabular fracture. He noted that it is a distinct possibility that she (the plaintiff) could suffer osteoarthritic changes in that hip necessitating further medical and surgical input in the future.[31]
[31]PCB 28
Dr Robert Young, general practitioner
47 The plaintiff was then seen by Dr Robert Young at the Melton Medical Clinic on 13 January 2009. On that occasion, she was complaining of significant pain and disability. The plaintiff was complaining of ongoing hip and thigh pain. Dr Young noted that an MRI, which had been performed, showed evidence of a tear of the labrum (cartilage in the hip) and some loose fragments and, in his opinion, believed that the plaintiff would need an arthroscopy.[32] This opinion ultimately proved to be very predictive of what in fact happened to the plaintiff at a later stage.
[32]PCB 29
48 In his report dated 15 September 2011, Dr Young says as follows:
“She has continued to suffer right hip pain although an X-ray in February 2011 of both hips and pelvis was normal. However an MRI done on the 16th of August 2011 showed some irregularity of the articular cartilage of the weight bearing aspect of the acetabulum and associated wear of the labrum with a small tear. … I have no doubt that this has all been aggravated by the accident and that the tear of the labrum has occurred at the time of the accident. This would explain the normal X-rays, but abnormal MRI, which picks up the soft tissue injuries.”[33]
In the same report, Dr Young again confirms his previous opinion that the plaintiff will eventually “probably require hip arthroscopy”.[34]
[33]PCB 36
[34]PCB 37
49 In a report dated 5 September 2012, Dr Young noted that the plaintiff was continuing to have ongoing pain in her right hip. He referred the plaintiff to Mr Parminder Singh at the Bellbird Private Hospital, where she underwent an arthroscopy of the right hip. The operation was to repair a labral tear. Dr Young noted that the plaintiff had good progress, but developed some inflammation of the right hip joint which slowed down her recovery. He diagnosed this as synovitis. In his view, the plaintiff was unfit for work in the future.[35]
[35]PCB 39
Mr Roderick Cunningham, orthopaedic surgeon
50 The plaintiff was referred to Mr Roderick Cunningham, orthopaedic surgeon, for examination and review. The plaintiff was seen by Mr Cunningham on 2 March 2009. At that time, the plaintiff was complaining of pain in the anterior aspect of her right leg. She also had pain in her right groin. Mr Cunningham reported:
“Clinically in her right hip she found it difficult to lie flat, with a 15° or 20° flexion posture of the right hip. She was reluctant to voluntarily flex her right hip past 90° and passive flexion seemed uncomfortable past that point. Internal and external rotation was markedly limited, as was her abduction. There was no localising pain. She walked with a limp. There was no pain on palpation of the trochanteric bursa.
…
Her bone scan of 16/7/08 was ultimately seen which showed increased uptake in the medial aspect of the right hip, and by 5/3/09 that increase in uptake had resolved. Her CT scan of 28/11/08 was viewed and showed a topical minor crack through the anteromedial wall of the base of the acetabulum. She had an MRI scan performed at John Fawkner Hospital on 2/1/09, the conclusion of that reading:
‘1.Myxoid degeneration or chronic anterosuperior labral tear with mild adjacent oedema.
2.Low grade trochanteric bursitis’.”[36]
He concluded that MRI did not disclose any evidence of bony damage to the medial aspect of the hip.
[36]PCB 42
51 Mr Cunningham gave the opinion that the plaintiff had a minor injury to the medial wall of the right acetabulum. A labral tear of the right acetabulum was not completely excluded. In Mr Cunningham’s opinion, given the plaintiff’s ongoing hip problems, it was appropriate for a hip arthroscopy to be planned and she was referred to a Mr John O’Donnell for that to occur.[37]
[37]PCB 43
52 In a later report dated 10 December 2012, Mr Cunningham noted in his examination on 16 February 2012, that the plaintiff had a limited range of motion of the right hip. He noted that the plaintiff had pain on palpation over the posterior aspect of the greater trochanter. Mr Cunningham reviewed the MRI scan of the plaintiff’s right hip and concluded as follows:
“There were features of degenerative change and superior acetabular rim and labrum and given the presence of a small anterior bone protuberance to the femoral neck, this may be the result of impingement.”[38]
[38]PCB 44
Mr Cunningham noted that the plaintiff was then referred to Mr Parminder Singh, orthopaedic surgeon, who specialises in hip arthroscopies.[39]
[39]PCB 44
Mr Bernard Lynch, orthopaedic surgeon
53 The plaintiff was examined by Mr Bernard Lynch, orthopaedic surgeon. Mr Lynch noted that the right hip of the plaintiff showed a full range of movement, but irritability when testing its range. Mr Lynch reviewed the radiological examinations of x-ray and bone scan of the plaintiff. He concluded that the right hip was normal. On 28 June 2011, Mr Lynch opined that he felt her current problem, with the ache around her right buttock and right groin, was most likely low grade chronic referred pain from the upper lumbar spine.[40] In short, Mr Lynch’s opinion is that the pain suffered by the plaintiff in her right hip originates in her lumbar spine. Mr Lynch, in his report dated 28 June 2011, noted that, in his view, there was no evidence of right hip pathology. He noted that the plaintiff was concerned that she had ongoing pain in her right hip and she felt there was something wrong. He assured her there was no surgically correctable pathology.[41] I note, in review of Mr Lynch’s opinion, that he is a lone voice when expressing the view that there was no right hip pathology.
[40]PCB 48
[41]DCB 83
Mr Parminder Singh, orthopaedic surgeon
54 Mr Parminder Singh, orthopaedic surgeon, first examined the plaintiff on 30 March 2012. Mr Singh understood that the acetabular fracture to the right hip was treated conservatively, requiring no surgical intervention at the time of the accident. He noted that the plaintiff walked with a mild limp. Mr Singh examined the plaintiff and reviewed the radiological reports. In his view, the MRI taken in August 2011 showed signs consistent with a labral tear and ligamentum teres tear.[42] Mr Singh diagnosed the plaintiff as having signs and symptoms consistent with femoral acetabular impingement and early arthritis. He sought approval from the defendant and ultimately performed surgery on the plaintiff on 3 May 2012. The surgery he performed included a “right hip arthroscopy partial capsular synovectomy, excision of os acetabuli, labral repair, debridement of grade 1 rim lesion, ligamentum teres debridement, femoral ostectomy and capsule repair”.[43]
[42]PCB 51
[43]PCB 52
55 Mr Singh, after this operation in May 2012, reviewed the plaintiff on 8 June 2012. He also reviewed the plaintiff on 22 June 2012, when he noted signs in the right hip consistent with synovitis. On 13 August 2012, Mr Singh noted that the plaintiff presented with a mild groin ache only. At that stage, she was demonstrating a good range of movement in her right hip. This was the last occasion that Mr Singh saw the plaintiff prior to the hearing of this application. In his report dated 10 December 2012, he gave the following prognosis:
“I would expect her prognosis for her hip would be return to full time employment with no restrictions. She may have a small degree of residual ache in her hip in the long term and I would recommend for her to take a non-steroidal anti-inflammatories her[sic] this ache.”[44]
[44]PCB 56
56 The plaintiff clearly gives evidence that her right hip condition has deteriorated since her last visit to Mr Singh. It was unfortunate that Mr Singh had not reviewed and reported upon the plaintiff’s condition immediately prior to the application in this case. I note that the plaintiff had ceased her physiotherapy treatment on 20 July 2012, some three weeks before her last visit to Mr Singh. I accept the plaintiff’s evidence that her right hip pain has continued and is significant for her.
Mr Stephen Doig, orthopaedic surgeon
57 The plaintiff had been examined by Mr Stephen Doig, orthopaedic surgeon, on a number of occasions. The last of the examinations was reported on 20 December 2012. In his report, Mr Doig noted that the plaintiff gave him a history of her surgery by Mr Singh. He noted:
“She said that more recently she has started to develop more pain in the hip and in the groin. She has not had any recent follow up as far as the hip was concerned but she is now thinking that if she does not settle down then she will need to go back and see her treating surgeon as far as this is concerned. She said that prior to the surgery she had deteriorated quite a lot. She was having more and more pain. She said that she was losing her balance and having considerably more in the way of trouble. … She said that she is still on Feldene and Panadol Osteo.”[45]
[45]PCB 80
58 Mr Doig diagnosed that the plaintiff had suffered from:
“Right hip and acetabular fracture with a labral tear now treated with arthroscopic debridement but with recurrent pain.”
Mr Doig went on to state that he thought the arthroscope was an appropriate procedure which gave the plaintiff initially some good relief, but unfortunately she has continued to have troubles.[46] In Mr Doig’s opinion, the prognosis is guarded.
[46]PCB 81
Mr Michael Shannon, orthopaedic surgeon
59 The plaintiff was examined by Mr Michael Shannon, orthopaedic surgeon, on behalf of the defendant in this matter. Mr Shannon reported on 28 July 2010 that, on examination of the plaintiff’s right hip, he noted she had a normal range of movement but there was some tenderness over the trochanteric region and in the gluteal muscles.[47] In his review of the radiological examinations of the plaintiff, he noted a CT scan of the right hip on 28 November 2008 which showed slight irregularity of the acetabulum with a small bone fragment anteriorly.[48] At that time, Mr Shannon was of the opinion that the plaintiff had suffered some degenerative changes to the hip and mild trochanteric bursitis. In his view, it was more likely that the plaintiff had suffered some direct trauma to the trochanteric bursa rather than an acetabular fracture.[49]
[47]PCB 119
[48]PCB 120
[49]PCB 121
60 Mr Shannon examined the plaintiff on behalf of the defendant after the surgery performed by Mr Singh. The report of Mr Shannon dated 3 July 2012 notes that the plaintiff stated the surgery seemed to have helped, but recently she had noticed again a catching sensation getting up from the toilet. On his examination at that time, Mr Shannon noted that there was no fixed flexion deformity, but she did have a limitation of other movements in the hip is a little irritable on rotation.[50] Mr Shannon noted the MRI scan of the right hip in August 2011 and reported it showed features of degenerative change in the superior acetabular rim and labrum with a small anterior bony protuberance at the femoral neck which may be the “result of impingement. The reverse is probably more likely that if this protuberance is present it is a cause of impingement”.[51] Mr Shannon’s prognosis for the plaintiff was that the position with the plaintiff’s hip was a little uncertain for someone dependent on the findings at arthroscopy. He found that the plaintiff clearly had early degenerative change of the right hip with apparently a labral tear identified on MRI scan. He was of the view that such pathology in the right hip could have been aggravated by the accident. He noted that the restriction of movement the plaintiff suffered may well be secondary to the recent arthroscopic surgery performed by Mr Singh.[52] He was of the view that the plaintiff faced the possibility that her right hip condition had not fully stabilised after the recent arthroscopic surgery. He went on to opine that, in the long term, she may well require a hip replacement.[53]
[50]PCB 129
[51]PCB 130
[52]PCB 133
[53]PCB 134
Mr Michael Fogarty, orthopaedic surgeon
61 Mr Michael Fogarty, orthopaedic surgeon, also examined the plaintiff on behalf of the defendant. The examination took place on 19 December 2012. Mr Fogarty took a history from the plaintiff about her surgery on 3 May 2012. The plaintiff noted that the procedure had helped her right hip pain a bit, but she had developed similar pain again more recently.[54] In respect of the right hip, Mr Fogarty took a history from the plaintiff that she had some pain in the right groin and at the top of her right leg, but not so much in her right buttock at this time. He also noted that her right knee was not troubling her much now at all.[55] Mr Fogarty noted that there was a slightly reduced range of motion in the right hip. He also noted that the right knee, which had been previously injured, had full range of movement and that the joint was stable and not swollen.[56] Mr Fogarty found that the plaintiff has suffered an injury to the superior labrum of the right hip. He noted that there is a loss of function of the right hip with a reduction of range of motion. He noted that the acetabular fracture referred to by other practitioners had not been confirmed, but there was a labral tear which has been confirmed at the right hip. Mr Fogarty noted a low grade trochanteric bursitis in the right hip which has an effect on the function of the right hip.[57]
[54]PCB 139
[55]PCB 140
[56]PCB 141
[57]PCB 143
62 Mr Fogarty’s prognosis for the right hip of the plaintiff was as follows:
“The prognosis for the claimant’s alleged serious injuries is fair for the right hip with a slightly increased risk of the development of osteoarthritis within this joint in the next ten to twenty years, good for the left ankle where there is now a healed fracture of the left fibula, fair for the arthritic condition at the base of the right thumb.
…
The alleged serious injury in which I believe impacts most on this claimant’s ability to undertake domestic and household duties or to enjoy leisure activities is persisting groin pain associated with injury in the region of the anterosuperior aspect of the labrum in the right hip.”[58]
I accept that Mr Fogarty clearly has assessed that the plaintiff’s main ongoing problem with injury as a result of this transport accident is her right hip.
[58]PCB 144
63 The plaintiff had previously had one instance of pain in her right pelvic region. She attended her general practitioner, Dr Peter Byrne, on 26 October 2005. As a result of that visit, there was an ultrasound performed on her right hip. I accept that the condition of the right hip complained of in October 2005 by the plaintiff had resolved well and truly prior to the accident the subject of this application. The hip symptoms and injury are a direct result of the transport accident on 8 July 2008.
Consequences for the Plaintiff from her Right Hip Injury
64 I find that the preponderance of the medical evidence supports that there is a real and ongoing injury to the plaintiff’s right hip as a result of the transport accident. The plaintiff has undergone the appropriate surgery to date, which was performed in May 2012. Despite that surgery, she continues to have pain and discomfort in her right hip and that has considerable consequences for her. The consequences for the plaintiff as a result of her right hip injury are as follows:
Sleep
65 The plaintiff deposes that the right hip pain continues to disturb her sleep. She states that the pain can wake her and keep her awake.[59] The plaintiff confirmed this was the position in her evidence.[60] The plaintiff deposed in her second affidavit that she had severe pain and difficulty even getting a good night’s sleep as a result of the hip injury.[61] Even after the surgery performed by Mr Singh, the plaintiff still suffers from disturbed sleep by virtue of her pain.[62] The fact that the plaintiff suffers from continual disturbed sleep patterns is a very significant consequence for her.
[59]PCB 7, paragraph 11
[60]T 74
[61]PCB 11, paragraph 4
[62]PCB 12, paragraph 6
Pain
66 The plaintiff deposed in her first affidavit that she suffered pain to her right hip.[63] In her evidence and to her medical practitioners, she has complained of pain in her right hip and continues to do so right up until the present time. The plaintiff complains that the pain in her hip affects the length and type of walking that she can undertake, the manner in which she can dress, her ability to negotiate stairs or even getting up from the floor. I accept the plaintiff’s evidence about her difficulties with pain. The plaintiff has had considerable setbacks in her life, which is ancillary in the evidence to the actual injuries in this case, and she is a very stoical and hardy woman. I accept her complaints of pain as being genuine and she is consistent in that with respect to her medical practitioners.
[63]PCB 7, paragraph 10
Medication
67 The plaintiff has, over the period of time since the accident, taken a number of medications to try to ease her pain. In her first affidavit, the plaintiff deposed to taking Panadeine Forte, on average two to three days a week with two tablets per day. She also deposed to taking a number of paracetamol tablets in order to alleviate the pain level.[64] In her evidence, the plaintiff stated that she continues to take medication in the form of Feldene and Panadol Osteo to alleviate the pain symptoms in her right hip.[65]
[64]PCB 7, paragraph 9
[65]T156
Lack of Mobility
68 The plaintiff gave evidence that, as a result of her right hip injury, she has considerable difficulty in negotiating stairs, getting up from a seated position or even walking on rough ground.[66] The plaintiff deposed that she had difficulty playing with her grandson because of her inability to be flexible and active on her feet.[67] The plaintiff stated that she had, prior to the accident, commenced going to a gymnasium, which she described as “Contours or Curves”.[68] She said, as a result of the transport accident, she is now unable to attend that gymnasium circuit. She described the circuit as being active three days a week and took her some 28 minutes each circuit. As a result of the injury to her right hip, she has been unable to resume that activity and this is a considerable consequence for her. It also indicates that the right knee injury that the plaintiff had suffered from much earlier in time had now resolved to a position where she was able to be far more active. A large part of the cross-examination of the plaintiff related to her right knee injury and she stated that the real reason she could not do many things was because of that injury. I accept the plaintiff had returned to gymnasium work and was quite active, and this is supported by the medical opinion in relation to the current state of the right knee.[69]
[66]PCB 7, paragraph 10
[67]PCB 8, paragraph 15
[68]T140
[69]T149−156
Volunteer Work
69 The plaintiff, prior to the accident, was involved in volunteer work at the local medical clinic. As a result of the injury to her hip, she has been unable to return to the volunteer work that she performed. She had been not in paid employment and enjoyed her role as a volunteer at the medical clinic, which gave her the outlet of social contact combined with a “feel good” factor for her life. This is a considerable loss to the plaintiff, particularly given all the other setbacks she has suffered in her life. These setbacks include the death of her husband, the death of her daughter and surviving cancer.
Conclusion
70 After consideration of all the evidence, I am of the view that, taking into account all of the consequences suffered by the plaintiff as a result of her right hip injury, I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable. I find that the plaintiff’s right hip injury and consequences will last into the foreseeable future and the condition of her right hip will probably deteriorate, based on the medical opinions.
71 I conclude that the application for serious injury certification in respect of the bilateral wrist injury, in particular, the right wrist injury, are not made out and are dismissed.
72 Accordingly, pursuant to s93 of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the right hip injury suffered by her in the transport accident on 8 July 2008.
73 I will hear the parties on the issue of costs.
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