Valkanoff v Transport Accident Commission
[2022] VCC 58
•8 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-01401
| URSULA VALKANOFF | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2022 (via Zoom) | |
DATE OF JUDGMENT: | 8 February 2022 | |
CASE MAY BE CITED AS: | Valkanoff v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 58 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – Pain and suffering – Credit – Impairment consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Victorian WorkCover Authority v Brassington [2021] VSCA 236; Nikolic v Transport Accident Commission [2020] VSCA 148; Dressing v Porter [2006] VSCA 215; Kelso v Tatiara Meat Co. Ltd [2007] VSCA 267
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Dr J Plunkett | Slater and Gordon |
| For the Defendant | Mr S Smith QC with Mr L Howe | Wisewould Mahony |
HIS HONOUR:
Introduction
1The plaintiff, Mrs Ursula Valkanoff, is a 55‑year-old married lady, currently employed by a building management team in an administrative position, responsible for the operation of a large building in Collins Street, Melbourne, a position that she has held since 2015.
2The plaintiff is a lady who enjoys an active lifestyle. Over the years her interests have included regular physical exercise particularly running and bike-riding.
The accident
3On 18 June 2013, the plaintiff was walking on a pedestrian crossing, lawfully crossing Normandy Avenue, Thornbury, when a vehicle failed to give way and struck her (“the accident”). Perhaps not surprisingly, given that the accident involved a car versus a pedestrian, the plaintiff was knocked with force up onto the bonnet of the car, landing heavily on her right-hand side, several metres from the pedestrian crossing.
4Pausing here, the reader might expect the circumstances of the accident to lead to a conclusion that there would be a very bad outcome for the pedestrian. Fortunately for her, the outcome was not as bad as it could have been.
5A few hours after the accident the plaintiff attended her local general practitioner, Dr Betty Lo, at the Northcote Medical Group. Dr Lo’s note of that date[1] records a history that the plaintiff was hit on the right hip area and fell onto right side onto road. Dr Lo recorded the plaintiff had an ache in the right hip/gluteal area and was “a bit upset but not in great pain”. It was recorded that the plaintiff was fully conscious, with a normal gait, and walked into the room.
[1]Defendant Court Book (“DCB”) 45
6The plaintiff returned to see Dr Lo on 19 June 2013. At that attendance, Dr Lo recorded a “deep-seated ache right lower leg, calf, right buttock, sacral areas, right upper arm” and that the symptoms were “not excruciating, more like ache following a bootcamp”. The plaintiff was referred for x‑rays and prescribed Mobic.[2]
[2]DCB 44-45
7The plaintiff underwent weight-bearing x‑rays of the right hip on 19 June 2013. They were reported as demonstrating no abnormality.[3]
[3]Plaintiff’s Court Book (“PCB”) 215
8The plaintiff returned to see Dr Lo on 1 July 2013. The doctor’s note of that day recorded that the plaintiff’s “lumbosacral ache much less”. It was recorded that the plaintiff had a full range of movement in the lumbar spine, although some slight discomfort with extension. It was further recorded that the plaintiff had a full range of right knee movement, although a bruise was still evident on the knee. By that stage the plaintiff was having physiotherapy treatment, and Dr Lo noted such treatment to be “very helpful”.[4]
[4]DCB 44
9Thereafter, the plaintiff had sporadic attendance on Dr Lo (or other doctors at the clinic) for the transport-accident-related symptoms. One such attendance was in March 2014, when the plaintiff was referred to Mr Brett Jackson, orthopaedic surgeon, for assessment of right knee symptoms. That referral led to the plaintiff having an MRI and one attendance on Mr Jackson, but no active treatment by him.
10The plaintiff’s ongoing treatment has been with physiotherapists at the Thornbury Physiotherapy and Sports Medicine Centre. The current treatment is with Mr Wei Yang Liu and is a physiotherapy treatment approximately once every three weeks.
11Otherwise, the plaintiff has managed her symptoms through conservative measures, including the regular use of Voltaren Gel and a Panadol tablet approximately once every couple of weeks.
This proceeding
12Against that background, this is a proceeding brought by the plaintiff pursuant to s93(a) of the Transport Accident Act 1986 (“the Act”) seeking the leave of the Court to commence a common law proceeding.
13The plaintiff claims to have suffered a “serious injury” by way of a “serious long-term impairment or loss of a body function”.
14Specifically, the plaintiff claims to have suffered “serious injury” to each of her lumbar spine and the right lower limb.
15Pausing again, in respect to the claimed injury to the right lower limb, the plaintiff relied upon a claimed injury to the right hip and the right knee. Via her senior counsel, she submitted that she could aggregate the hip and knee injuries, for the purposes of establishing that the function of her right lower limb was a “serious injury”, in accordance with the principles in Victorian WorkCover Authority v Brassington.[5]
[5][2021] VSCA 236
16As indicated to senior counsel for the plaintiff, I am not necessarily persuaded on the facts of this application that the claimed injury to the hip and knee can be aggregated to the body function of the right lower limb, but it is unnecessary to decide that issue, as it does not affect the outcome of this proceeding, and, in any event, the defendant did not seek to argue that the hip and knee cannot be aggregated to an impairment of the right lower limb. I shall, for the purposes of this proceeding, accept that the hip and knee can be aggregated to the right lower limb, and then consider whether the claimed injury to that body function meets the “very considerable” test.
17The application otherwise proceeded in the “usual manner”. The plaintiff tendered three affidavits sworn by her and gave oral evidence as to the contents of her affidavits and other relevant matters. She then tendered an affidavit sworn by her husband, Mr Geoffrey Storace, together with relevant medical reports and material. The defendant tendered a medical report, extracts from the Northcote Medical Group, and some other limited relevant documentary evidence. I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence and the parties’ submissions.
Credit
18It is convenient at this early stage to deal with the issue of the credit of the plaintiff because that issue was raised by the defendant as a primary reason why the claim for serious injury should fail. In final submissions, senior counsel for the defendant said:
“But really the point of that submission is this, Your Honour, we would say to Your Honour that this is a case in order for the plaintiff to succeed Your Honour must accept the plaintiff as being a witness as truth and a reliable witness. And there is not really anything in the way of objective material which the plaintiff can point to to corroborate her allegation of serious injury.”[6]
[6]Transcript (“T”) 67, Line (“L”) 31 – T68, L6
19Next, the defendant submitted that the plaintiff was a person who was prepared to say whatever comes into her head that she thought might assist her case. Senior counsel for the defendant said further that:
[MR SMITH:] “A similar example comes from the question of the running. Your Honour will recall that the plaintiff was categorical initially that after the motor vehicle accident, the one and only time that she had run was in the Run for the Kids event in April 2017. When confronted with the history that was modified to, “Well, I probably was running eight and a half kilometres three times a week as I told Mr Haw, and I probably was running two to three times a week for four kilometres when I told Dr Lo, but I probably was running four to six kilometres a week twice a week, as I told Mr Selvaratnam.”
HIS HONOUR: Yes.
MR SMITH: And it became entirely unsatisfactory, in our submission. Your Honour could not draw on the basis of the plaintiff’s evidence, any conclusion about, to what extent, if any, her ability to engage in running has been impeded by this injury. The one conclusion that would be open and we would submit, Your Honour, fits very squarely with the evidence, is the lady (indistinct) in a vigorous regime of physical activity, including running on a regular basis, and then transferred over to a equally rigorous regime of physical activity which involves five physical sessions a week of intensive physical training program or yoga.”[7]
[7]T72, L11 – T73, L3
20As has been said many times, in assessing the “seriousness” of an injury the credit of the plaintiff is a relevant factor.
21In this proceeding, the plaintiff painted a picture in her affidavits of leading an active life before the accident, enjoying regular exercise, and running, but that since the accident she had been restricted in her ability to exercise because of one or the other of the claimed serious injuries to the lumbar spine and right lower limb. In particular, the plaintiff’s pre-accident hobby of running, and her ability to engage in running/since the accident, were raised as a significant loss in her affidavits. It is convenient at this point to consider the evidence about the plaintiff’s level of physical activity before and after the accident, as it dovetails in with the discussion about her credit. Regarding running and exercise, in her first affidavit she said:
“I did attempt to resume running after the accident but found that not only was my right knee pain worse, I suffered a significant degree of right groin pain and also lower back pain. Running was my primary enjoyment and recreational activity and its loss has been a very significant blow to me. Subsequently, I have limited my exercise at present to yoga and core strengthening exercises at the gym which do not aggravate my injuries as much as the type of exercise which I used to engage in.”[8]
[8]PCB 11, paragraph 17
22In the first affidavit, she also said about running that:
“I used to enjoy running and generally ran about four times a week 8kms per run but am no longer able to undertake that activity.”[9]
[9]PCB 12, paragraph 23
23In her second affidavit, in respect to running and exercise, the plaintiff said:
“My lifestyle activities have continued to be restricted. For example, in approximately July 2021 between lockdowns my husband and I were able to get away to the Grampians and I did some trekking there but I certainly paid for it with increased spinal pain, and also increased right hip pain and right knee pain. Whilst I was out in the country, I attempted to run over a smooth surface but found that I was really struggling after about 2kms. Before I sustained the subject injuries, I regularly ran distances usually 20−24kms during the course of a week. I simply would not have the physical capacity to do that now particularly by reason of my spinal injury but also as a result of my right hip and right knee injuries.”[10]
[10]PCB 15, paragraph 8
24In her third affidavit, on the topic of running, the plaintiff said:
“I have had drawn to my attention the last occasion upon which I completed a run which was 9 April 2017. This run was called "Run for the Kids" and is a charity run supporting the Royal Children’s Hospital Good Friday Appeal.
As I had always been a keen runner, and previously 4.8 kilometres "Run for the Kids" would have been an easy run for me, I ran on this occasion as part of a team from my office in support of our former receptionist Mary who had given birth to a stillborn baby.
This run is a good example of the effects of my injuries upon me. Following the run I was in considerable pain and difficulty for a number of days thereafter, a situation which I had not previously encountered prior to sustaining the injuries which are the subject of this claim.
More importantly, from my perspective, is that this run was the last competitive run that I undertook by reason of those injuries. I realised that my injuries prevented me from engaging in activities of the kind which I previously would easily have undertaken. The time of 32 minutes and 42 seconds would have been a slow time for me given my past history, again reflective of the impact of my injuries upon me.
By way of further example, I had on many occasions completed 10km runs particularly when I was part of Optus Corporate Games with my previous employer. My body, both in respect to my right knee and my lower back, would not be capable of bearing such a physical strain now without significant aggravation and disability in the days and weeks thereafter.
As I have previously deposed, prior to sustaining the subject injuries, I generally ran 20-24 kilometres a week as part of my exercise regime.”[11]
[11]PCB 19, paragraphs 3−8
25For completeness, in the third affidavit the plaintiff also described her current exercise regime as:
“My exercise now is at F45 Gym at 45 Exhibition Street, Melbourne, near where I work, and where subject to Covid-19 lockdowns, I would otherwise attend on a four day on, one day off rolling basis. I have been keen to attend F45 gym both to maintain my core muscles and hence try to reduce my levels of pain, and to preserve my work capacity thus enabling me to sit or stand for longer periods despite the pain I am in.”[12]
[12]PCB 20, paragraph 10
26The plaintiff’s husband said in his affidavit that the plaintiff used to be particularly active, running more than 20 kilometres a week and bicycling extensively, but that she has been significantly restricted in those activities because of the injuries she sustained. He said that pre-accident her prime recreational pursuit was running and bicycling. He said that their lifestyle previously was an active one, with many outdoor activities.[13] I take his evidence into account, but the weight I attach to it is reduced considering the conclusions about the reliability of the plaintiff’s evidence,[14] as I will now move to discuss.
[13]Affidavit of Geoffrey Noel Storace sworn 8 December 2021
[14] Nikolic v Transport Accident Commission [2020] VSCA 148 at [70]
27As is clear, the reader of the plaintiff’s affidavits would easily conclude that she was very active before the accident, and that running was a key part of her exercise regime, but that because of the accident she has effectively been unable to run and that she has had to give up an activity that she loved.
28The issue of running was prominent during the cross-examination of the plaintiff. It initially arose out of a note in Dr Lo’s clinical records that as at early June 2016 the plaintiff was running four kilometres, two or three times a week, with no pain. In response, when that note was put to her, the plaintiff said:
“But the discussion would have been pre-accident. I didn’t run after the accident ... sorry, I – let me correct myself. There was one occasion and that was for the Run for the Kids fund and that was because of a colleague at work had lost her child - - -”[15]
[15]T34, L18-23
29In response to her evidence that she had only run on one occasion, being the “Run for the Kids” event, the plaintiff was pressed in cross-examination as follows:
[MR SMITH:] “But before we go to this note, can I just understand something that you just said to His Honour. Is your evidence that the one and only time you’ve ever gone for a run since the car accident was in the Run for the Kids event in 2017?---Yes.
Madam, your audio is a bit faint?---I said, yes, yes.
HIS HONOUR: Yes.
MR SMITH: Right, so His Honour should understand one, and only one run, since June 2013?---Yes.
And that was in April 2017, correct; do you agree with that?---Yes, yes.
So, if we go to the entry on this page for the 2nd of June 2016. Your Honour – sorry – you’ll see there it’s recording a consultation with Dr Lo, that for a few months you’d had "Right hip pain when she did a yoga abduction and external rotation of the hip," do you see that?---Yes, I can see that. However, I did not run after the accident.”[16]
[16]T34, L29 – T35, L15
30Pressed further about running after the accident, and telling Dr Lo in June 2016 that she was running four kilometres, two to three times a week, with no pain, the plaintiff said:
“Well, I don’t know that that would’ve said because I can categorically say I did not run.”[17]
[17]T36, L27-28
31Next, the plaintiff was taken to a medico-legal report from Mr Chris Haw, orthopaedic surgeon, dated 20 March 2015[18] and a history recorded by him that:
“She has the knee strapped however on a regular basis by the physiotherapist when she is active. She did resume running 3 times a week for an hour, this approximated to an 8.4 kilometre run,[19] but she has had to stop this in February, due to pain in the right groin, and then the left groin. This was accompanied however by significant low back pain.
...
Subsequently she was then able to resume walking, but since then she has only run intermittently, and when she did run, it felt awkward ...
She said instead of doing the laps around the Optus Oval, she mainly did a couple of laps around the local sports oval and did some sprints.”
[18]PCB 162
[19]I understand Mr Haw to mean that running for an hour equated to an approximate 8.4 km run, which accords with a general understanding of an ordinary running pace and applying basic mathematical principles equates to either 16.8 or 25.2 kilometres per week
32When the history as recorded by Mr Haw was put to her, she said that it would be correct.[20] When asked why she had earlier given oral evidence that she had not run other than in the “Run for the Kids”, she said “Because that’s what I recalled.”[21] Because of that answer, she was then asked, whether she now recalled if February 2015 was the last time that she went for a run, leaving aside the “Run for the Kids”, to which she answered “Yes.”[22]
[20]T37, L19-26
[21]T37, L29-30
[22]T38, L2
33The plaintiff was then taken to the inconsistency with her oral evidence as compared to Mr Haw’s recorded history that she had resumed running around the local oval. She said that the regime of running was not for long and was intermittent. She said further that by 2016 she would have given that regime away.[23] This was then put to her as follows:
[MR SMITH:] “Given it away. So, what His Honour should now understand is running as we’ve described it till February ’15, then spasmodic running through the rest of 2015 and nothing else; correct?---Correct.”[24]
[23]T39, L15
[24]T39, L16-19
34The plaintiff was then questioned about an attendance on Dr Peter Selvaratnam, specialist musculo-skeletal physiotherapist, who she saw for a second opinion on 29 September 2017 and the history then recorded by him as set out in his report of 18 April 2018.[25] Dr Selvaratnam recorded a history that she could only run twice a week, covering four to six kilometres, and required good runners due to her right knee and hip injuries.[26] When it was pointed out to her by the cross-examiner that the history recorded by Dr Selvaratnam was different to the oral evidence she had given, she said regarding that earlier oral evidence “That was my recollection”.[27]
[25]PCB 130
[26]PCB 132
[27]T40, L9
35Next, the plaintiff was taken to a physiotherapy questionnaire which she accepted had been completed by her in November 2019,[28] and how she had not indicated on that document any difficulty for activities such as making sharp turns while running fast, and only moderate difficulty with running on uneven ground. In response to questions from the Court, the plaintiff said that she cannot run regularly like she used to and does not enjoy it like she used to and that by November 2019 running had come to an end.[29]
[28]DCB 151
[29] T47, L17-18
36In final submissions, her senior counsel submitted that the Court should accept that the plaintiff was a credible witness, and that her oral evidence should be understood by her saying that she made a mistake in her evidence about having only run once since the accident, which she then corrected. She had forgotten about the matters which had been recorded in medical reports regarding her level of running, and the Court should accept that she was engaging in a significant amount of running before the accident and has been unable to participate at that level since the accident.
37I do not accept the submission made on her behalf regarding the correction to her oral evidence. The plaintiff gave unequivocal oral evidence that she had only run once since the accident. The true picture, to the extent that a true picture was obtained, had to be teased out, and was certainly not volunteered. It is impossible to reach a conclusion with any degree of confidence, both as to the plaintiff’s level of running in the years before the accident and the several years after the accident. Her evidence about running is unreliable. All that can be concluded is that she continued to run regularly for several years after the accident and certainly at a level greater than deposed to in her affidavits and in parts of her oral evidence.
38Further, as already set out, in her first affidavit the plaintiff said that she had subsequently limited her exercise to yoga and core-strengthening exercises at the gym. The second affidavit is silent as to her attendance at the gym. But in the third affidavit, sworn after video surveillance[30] demonstrated her attending at an F45 gymnasium, the plaintiff was more expansive and said:
“My exercise now is at F45 Gym at 45 Exhibition Street, Melbourne, near where I work, and where subject to Covid-19 lockdowns, I would otherwise attend on a four day on, one day off rolling basis. I have been keen to attend F45 gym both to maintain my core muscles and hence try to reduce my levels of pain, and to preserve my work capacity thus enabling me to sit or stand for longer periods despite the pain I am in.
I have recently viewed surveillance footage provided by the Defendant showing me walking to and from F45 Gym when at work. Under my leggings there is strapping supporting my knee and I always wear support strapping when undertaking my gym work. At F45 Gym, I do a variety of exercises including light weights, exercise bikes and forward and backward lunges and squats. Particularly with the backward lunge and squat, I repeatedly notice pain emanating from my right knee joint as I exercise. I do not aggravate back pain in the gym workout because we are instructed muscular spinal support and I thereby avoid unduly straining my spine.”[31]
[30]Exhibit D1
[31]PCB 20, paragraphs 10-11
39The defendant tendered and played to the plaintiff the video surveillance taken of her on various times on 20 November and 4 December 2021. The video surveillance demonstrated her attending at an F45 gym. She was observed to walk to and from the gym in an unrestricted and brisk manner. The plaintiff was cross-examined about the types of activities that she engages in at the gym. Based on her evidence, she is at least moderately active at the gym. She confirmed her regular attendance at the gym. In cross-examination, it was put that when running came to an end in November 2019, that was when she commenced attending the F45 gym four times a week, and she agreed.[32]
[32]T47, L18
40The overwhelming inference is that the plaintiff only said something about her regular attendance at an F45 gymnasium when she realised “that the gig was up” after video surveillance was provided to her. She certainly did not volunteer in either the first or second affidavits that she was attending a gym and engaging in (at least) moderately physical activity four times a week, including regularly on the mornings before she went to work.
41In all the circumstances, I accept the submissions made on behalf of the defendant. This is a proceeding in which the plaintiff’s credit has been impugned. Her evidence about her level of activity, and in particular her level of running after the accident, is unreliable, and I cannot accept it. The evidence reveals that she maintained a level of regular running for many years after the accident, until about the time she commenced a regular gym program. She is still an active person. I do not accept her evidence as to the claimed extent of the impact on her ability to exercise.
The medical evidence
Treating practitioners
42I do not propose to deal with the medical evidence in detail. Firstly, because the medical material is limited. Secondly, the outcome of this proceeding does not turn on a medical issue, but rather turns on the identification of impairment and impairment consequences, and whether such consequences meet the “very considerable” test. Such an assessment is impacted by the unreliability of the plaintiff’s evidence about impairment consequences regarding exercise tolerances.
43But briefly, returning to Dr Lo, she has provided several reports, the most recent of which is dated 20 December 2021.[33] In that report, Dr Lo says that the plaintiff had largely resumed all of her baseline functioning and had been able to return to fulltime work and carry out all pre-injury duties. Dr Lo reported persistent right knee discomfort and being unable to do exercises involving impact, for example running. Dr Lo recorded discomfort with excessive right knee use; right hip area discomfort – episodic; and lower back pain – not severe, which did not impact on any specific physical function. She described the plaintiff as likely to continue to have a degree of discomfort and functional limitations.
[33]PCB 41
44Mr Jackson saw the plaintiff on one occasion for assessment of the plaintiff’s right knee. In a report dated 1 September 2014, he described how, based on the MRI scan reported 15 April 2014,[34] he would have expected the plaintiff to make a complete recovery of knee function, but review was required.[35] The plaintiff did not return to see Mr Jackson. There has been no further specialist orthopaedic referral.
[34]PCB 218
[35]PCB 26
45The plaintiff’s physiotherapy treatment was initially with Mr Nando Giovannucci and he has provided reports. More recently, the plaintiff has attended Mr Liu as her physiotherapist and his reports summarise the treatment at the Thornbury Physiotherapy and Sports Medicine Centre. In his most recent report dated 7 September 2021,[36] Mr Liu records examination findings in respect of the lumbosacral spine with restriction in a range of movements. He further noted examination findings of the right hip joint and otherwise described examination of the right knee as revealing an active full range of motion. Mr Liu described the plaintiff sustaining an acute musculoligamentous and joint trauma affecting the lumbosacral spine, right hip joint and right knee due to the accident. He said, similar to Mr Giovannucci, that the right knee joint trauma had resolved but that the lumbosacral spine and right hip joint dysfunction remains chronic. He otherwise recorded the need for ongoing physiotherapy and described the prognosis as guarded. He noted the plaintiff had a functional capacity for her fulltime work. In respect to impairment for day‑to‑day function, his reports are of limited use, but he did set out the following relevant history:
“Ms Ursula Valkanoff initially reported lumbosacral spinal pain which was aggravated by sneezing, coughing, walking, sitting and riding her bike. She reported right anterior pain radiating into the posterior thigh and calf. She reported right anterior hip joint pain which was aggravated by bending, putting shoes and socks on and off and running. She reported anterior upper limb pain which was aggravated by lifting.”
[36]PCB 154
46The plaintiff attended Dr Clayton Thomas, consultant in rehabilitation and pain medicine, for assessment on one occasion on 22 October 2018. In a report dated 17 April 2019[37] Dr Thomas sets out the history obtained by him, his clinical impressions and then answered specific questions put to him. Relevantly he described that low back pain worried her the most and that diagnostically she suffered “lower back pain, worse to the right than the left” and that he did not suggest any treatment or review appointment.[38] But in so far as he obtained a history of consequences, he recorded that she was attending physiotherapy once a fortnight and was “brilliant for a few days afterwards” and was otherwise attending a gym three times per week for a 45 minute class and went for yoga once a week. His prognosis was for pain and disability to remain.
[37] PCB 140
[38] PCB 142
Medico-legal practitioners
47Turning next to the medico-legal reports, commencing with Mr Haw, whose reports are now out of date and now of limited assistance in respect to the current impairment consequences. But they are of some assistance in respect to matters of history and diagnosis. I take into account the conclusions reached by him as expressed in his report of 20 March 2015 where he diagnosed injury to the lower back, most likely damaging the lumbosacral disc and giving rise to intermittent symptoms from the lumbosacral segment.[39] I also take into account that regarding the right knee and right hip he said that it was likely that the plaintiff sustained traumatic damage to the articular cartilage on the lateral aspect of the patella groove on the lateral femoral condyle, giving rise to a local mild synovitis, and that she may have sustained a minor tear in the labrum of the right hip.[40]
[39]PCB 163
[40]PCB 164
48Mr Russell Miller is an orthopaedic surgeon who has examined the plaintiff and provided reports. In his most recent report of 27 August 2021,[41] he recorded his examination findings including some restriction of movement in the lumbar spine, tenderness over the right hip, Grade 1 quadriceps wasting of the right leg with a small effusion in the right knee, mild patellofemoral joint crepitus, and pain on patella compression. He diagnosed injury to the spine, described by him as injury to the thoracolumbar spine with musculoligamentous strain, aggravation of degenerative disease, and probable minor fracture to the T11 vertebral body. In respect to the right hip, he opined that the symptoms were likely to reflect referred pain from the lumbar spine and mild trochanteric bursitis. In respect to the right knee, he opined that the plaintiff had injury to the patellofemoral joint and probably the medial meniscus. Mr Miller stated the prognosis for the spine was only fair, the prognosis for the right hip itself was good, and the prognosis for the right knee was only fair.[42] Mr Miller said further that the plaintiff would be unlikely to benefit from surgical intervention to the spine or hip, but it would be reasonable to consider arthroscopic intervention for the right knee. With respect to a lifestyle evaluation, without separating the lumbar spine from the right lower limb, he noted some reduced capacity for heavy domestic and gardening activities. He noted that the plaintiff had previously enjoyed regular gym work and yoga and had returned to those activities in a limited way.
[41]PCB 175
[42]PCB 180
49Dr Nathan Serry is a consultant psychiatrist who has provided two reports regarding the plaintiff. Insofar as those reports are of any assistance to the assessment of claimed serious physical injuries, I have taken them into account. In his report of 16 August 2021, he recorded that the plaintiff told him that recreationally her life was now very different. She no longer tends to go on long bicycle rides with her husband but might ride for very short distances. He recorded the plaintiff had never returned to participating in water sports and that she told him she enjoyed walking but does not undertake any high impact activities.[43]
[43]PCB 194
50Next, regarding the spine, the plaintiff was examined by Professor Richard Bittar, consultant neurosurgeon. In a report dated 2 July 2021, he described a most likely diagnosis of aggravation of lumbar spondylosis. He made further recommendations in respect to radiological examinations of the spine and discussed possible treatment options, depending upon what was revealed in any further radiology.[44] He described the prognosis as guarded. He obtained a history that the plaintiff’s low back and right hip pain was more severe and disabling than knee symptoms. He said that the plaintiff had sustained a serious injury[45] to her lower back, but she had been very motivated to remain as active as possible and that it was likely she would continue to experience a significant degree of pain in the long term.
[44] The plaintiff has not pursued these recommendations
[45] I assume this is an expression of a medical opinion and is not a legal opinion
51Next, regarding the knee injury, the plaintiff was seen by Mr Iain McLean, orthopaedic surgeon. In a report dated 30 September 2021, he obtained a history of right knee pain persisting with aching. He recorded that if the plaintiff attempted heavier activities or loading related to an attempted jog, then there was an increase in pain. She was able to walk around 5 kilometres but with an awareness of soreness afterwards, and that she would generally tape her knee when walking. He recorded that the plaintiff now undertook lighter and modified gym activities. He opined that there was ongoing complex pain and functional disability of the right knee, suggesting further patellofemoral chondral pathology. He said the prognosis was guarded,[46] and that the plaintiff would be limited for heavier impact or loading, twisting type activities relative to the right knee.[47]
[46]PCB 210
[47]PCB 211
52Mr McLean provided a further report dated 9 December 2021, but that is of limited relevance as it is related more to the diagnosis and responding to a report obtained by the defendant for Mr Gary Speck.
53It is timely then to turn to Mr Speck’s report dated 6 December 2021.[48] Firstly, to the extent that Mr Speck expressed opinions that the plaintiff’s ongoing low back, right hip or right knee symptoms were unrelated to the accident and instead were caused by underlying or unrelated conditions, I disregard those opinions. I do so because firstly because they are against the weight of the medical evidence and secondly because the defendant did not press the issue of “causation”. But relevant to the critical issue of impairment and consequences, Mr Speck obtained a history of current regular gym attendance and that pre-accident the plaintiff ran, but that she now felt that her back and knee inhibited that activity. He recorded his physical examination of her spine, right hip and right knee. He noted that the plaintiff had not had any specialist treatment over the last three years and was managing with anti‑inflammatory gel and Panadol when necessary, strapping her right knee, and passive physiotherapy.[49] He opined there was no need for any surgical treatment for the knee or back and that ongoing exercise to maintain good aerobic fitness, core control of the spine and appropriate exercises for her patellofemoral tracking issue as his suggested ongoing treatment, together with intermittent use of analgesics and anti-inflammatory medication.[50]
[48]DCB 6
[49]DCB 25
[50]DCB 28
Does the plaintiff have a “very considerable” consequence?
54I accept that the plaintiff suffered injury to the lumbar spine, right hip and knee (aggregated to the right lower limb). I accept the probable diagnosis of aggravation of lumbar spondylosis, mild trochanteric bursitis affecting the right hip, and some form of patellofemoral chondral pathology affecting the right knee.
55Of course, the next step is to identify and analyse the impairment and impairment consequences from each claimed serious injury, noting that an injury can be serious even if impairment consequences are caused by a separate and unrelated injury/condition.[51] But that analysis, particular of the subjective complaints of impairment consequences, must be undertaken by reference to the conclusions I have come to regarding the credit of the plaintiff and the unreliability of relevant parts of her evidence.
[51] Dressing v Porter [2006] VSCA 215 at [47]
56While I accept that the plaintiff has ongoing fluctuating pain impacting her low back, right hip and right knee, but viewed objectively, the level of pain is not great, as evidenced by the fact that she does little to manage it, other than a regular physiotherapy session for her back and hip; the use of an over the counter pain gel; occasional Panadol; and strapping of the knee for more vigorous exercise such as attending at the gym. Further, she did not return for review with Mr Jackson and has had no further orthopaedic referral (other than for medico-legal purposes) which is suggestive that ongoing symptoms are manageable.
57It was submitted by her counsel that the plaintiff requires frequent medication and so, in accordance with well-known principles,[52] that raised a real prospect of a “very considerable” consequence. I do not accept that submission. I do not consider the amount of Panadol that the plaintiff uses to be frequent. It could be said that she makes frequent use of Voltaren Gel, but the nature of that treatment is very much at the lower end of the scale and not what I consider to be a signpost towards a very considerable consequence. But regardless, the medication used is some indication as to the extent of symptoms. There was a discussion in the evidence about the plaintiff suffering gastric side effects from medication, but to some extent that is irrelevant as no medical practitioner suggests the plaintiff should use stronger medication to manage her symptoms. Viewed objectively, the use of a pain killing gel and an occasional Panadol is very much suggestive of low-level symptoms and as such does not suggest a “very considerable” consequence. In fact, in my assessment, it suggests the opposite.
[52] Kelso v Tatiara Meat Co. Ltd [2007] VSCA 267 at [199]
58Next, while I accept the plaintiff is having regular physiotherapy for her back and right hip - and that is of some significance - but, that treatment is not described by Mr Liu in terms that suggests it is a major form of treatment. He described it in his most recent report as comprising electrotherapy, anatomical dry needling, advice on postural care and a self-managed exercise program. He also said that with the treatment there had been an improved functional outcome involving the spine and right hip, with resolution of right knee symptoms and that physiotherapy had been affective in ameliorating her symptomatically.[53] True it is that he does go on to record a subjective complaint by the plaintiff that she had not had a statistical improvement in function, but that, of course, needs to be viewed in light of the whole of the evidence as already discussed and in particular the conclusion that her subjective evidence of impairment for activity such as running is unreliable and ought not be accepted as accurate.
[53] PCB 158-159
59In assessing the seriousness of the injury, it is relevant to assess not only what has been lost but what is retained, particularly in the present proceeding where it is difficult to know what has been lost because of the unreliability of the plaintiff’s evidence about running and attending a gym. What is known objectively is that she was able to run regularly for many years after the accident until ceasing at about the time she switched over to a regular gymnasium program. To the extent that the tendered video surveillance was of any assistance, it showed she was able to engage in brisk walking, even if it is as described by her as her normal walking pace.[54] She continues to work in an unrestricted manner and, in fact, has increased her work hours since the accident, and is able to exercise at the gym before commencing work. She has also been able to enjoy overseas travel. She has mostly passive physiotherapy and limited use of medication.
[54] T52, L12
60I accept the impairment consequences to the plaintiff are not trivial, but I do not accept that they are more than marked or significant and I do not accept that they meet the test of “very considerable”.
61Accordingly, based on my view of the objective evidence and in what is also a value judgment, the plaintiff has not suffered a “serious injury”. I make that assessment without attempting to individually identify impairment consequences separately from each of the spine or the right lower limb, because it is unnecessary to do so. Even if the injury to the spine and the right lower limb could be combined, which of course they cannot, the impairment consequences in total simply do not in my opinion meet the “very considerable test”. Even if the claimed impairment consequences were to be ascribed individually to one or the other of the claimed physical injuries and noting that in her second affidavit, she said she was “most troubled” by the injury to the spine,[55] the identified impairment consequences from one or the other of the claimed injury to the spine or the right lower limb simply do not meet the “very considerable” threshold.
[55] PCB 15 at [3]
62Accordingly, for the reasons given, the proceeding is dismissed, and I shall hear from the parties as to the consequential orders and orders in respect to costs.
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