IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List

Case No. CI-23-00249

DONNA LOUISE SHERIDAN	Plaintiff	
		
v		
		
TRANSPORT ACCIDENT COMMISSION	Defendant	

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JUDGE:	HIS HONOUR JUDGE FRAATZ	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 February 2024	
DATE OF RULING:	22 March 2024	
CASE MAY BE CITED AS:	Sheridan v Transport Accident Commission	
MEDIUM NEUTRAL CITATION:	[2024] VCC 373		

JUDGMENT
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Subject:	TRANSPORT ACCIDENT
Catchwords: 	Serious injury – injury to the right hip and lower back – pre-existing conditions – aggravation 
Legislation Cited:	Transport Accident Act 1986, s93
Cases Cited:	Humphries & Anor v Poljak [1992] 2 VR 129
Judgment:	Application dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr V Morfuni KC with
Mr C Madder	Arnold Thomas & Becker 	
			
For the Defendant	Mr P Jens KC with
Ms A Wood	Hall & Wilcox	

HIS HONOUR:

1	On 9 December 2016, Donna Sheridan was walking across Chapel Street, St Kilda at a pedestrian crossing, when hit by a car travelling at low speed (“transport accident”).  The vehicle struck her on the left side.  She fell onto the vehicle, and then to the ground where there was impact, including to the left side of the head and the left shoulder.  
2	By originating motion filed 26 January 2023, she seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings for damages in respect of alleged injuries to her spine and right hip sustained in the transport accident.  
3	In order to be granted leave, the consequences of any injuries sustained in the transport accident must be “serious” within the meaning of s93(17) of the Act.
4	Born in 1984, Ms Sheridan presented as a successful young woman, leading a full life.  She did her best to give a straightforward account of her history and present circumstances.  This is not a credit case, and I generally accept her evidence.
5	The application, however, suffers from at least two fundamental problems.  
6	In order to succeed in her application, she must establish:
(a)	that she has suffered one or more injuries in the transport accident;
(b)	the nature and extent of any such injury, including whether it persists today; and
(c)	that the consequences of any injury satisfy the narrative test of being “at least very considerable” and certainly “more than ‘significant’ or ‘marked’”.
7	The first problem lies in the extensive history of pathology and symptoms in Ms Sheridan’s right hip and spine which predated the transport accident.  That medical history, together with the absence of any contemporaneous complaint of pain in her right hip or lumbar spine to: 
(a)	any of her treating general practitioner, physiotherapist or chiropractor; 
(b)	the ambulance officers; 
(c)	The Alfred Hospital; or
(d)	the Transport Accident Commission in her initial claim for compensation, 
results in a finding that I am not satisfied she suffered any significant injury to her right hip or lower back in the transport accident.  
8	Secondly, if she did sustain an injury to the right hip or the low back, the evidence as a whole indicates that it has resolved, and is not productive of any consequences to her as at the date of the hearing of this application.
9	Her oral evidence and recent histories to doctors were focussed on pain from her gluteal region.  This injury was not the subject of the originating motion, other than to the extent these consequences might relate to any compensable injury to the right hip or spine.  On the medical evidence available to me, this gluteal pain is irrelevant because it relates to an arthroscopy of her right hip in November 2000 that has left her with an irreparable full-thickness tear of the gluteus medius tendon, and which is responsible for the current symptoms in her gluteal region.
Principles
10	Whether an injury is “serious” depends upon the extent of the impairment or loss of a body function resulting from the injury. 
11	It is not permissible to aggregate the effects of separate injuries to determine whether impairment amounts to a serious injury.  Each injury, and the impairment of a body function resulting from it, must be considered separately unless they produce a single impairment.
12	I have read all of the tendered material, but I will only refer to the evidence to the extent necessary in order to make the following findings.
Did the plaintiff suffer one or more ongoing injuries in the transport accident
13	The contemporaneous history recorded by The Alfred Hospital emergency department includes that:
(a)	Ms Sheridan suffered a brief period of loss of consciousness in the transport accident on 9 December 2016; 
(b)	she was complaining of left shoulder pain and tingling in her left hand;  
(c)	she had no neck pain or other sensory changes;  
(d)	upon examination, there was mild tenderness over her right hip, with no bruising or swelling;  
(e)	she had full flexion of the right hip and no pelvic tenderness;  
(f)	her left shoulder was tender on palpation, as was her spine at L4, with no other thoracic or lumbar spine tenderness.
14	A number of things occurred on 12 December 2016:
(a)	Ms Sheridan lodged a Transport Accident Commission claim for compensation in relation to injury to the left shoulder and neck; frontal head injury; concussion, with loss of consciousness; and pain in both shoulders, elbows, left clavicle and left rear hip.  There is no mention of any injury to the lower back.
(b)	She attended her long-term general practitioner, Dr Jeffrey Shapiro, whom she had consulted on an ongoing basis since the age of ten.  She reported to Dr Shapiro that, since the accident, she had pain in the left neck, left shoulder, clavicle and soft-tissue of the right upper arm over the triceps.  Dr Shapiro referred her to physiotherapist, Mr John Behrsin, for acute management.
(c)	She attended physiotherapist, Mr Behrsin, who she had previously consulted from October 2009 to March 2010, for hip and lower back conditions.  Mr Behrsin’s notes record that Ms Sheridan provided a history of left neck and shoulder, chest and elbow pain.  Mr Behrsin conducted a full examination, which also disclosed some tenderness of the cervical and thoracic spine. 
15	The application is not supported by her treating practitioners.  
16	There is no report from the plaintiff’s general practitioner, Dr Shapiro, at all; and there is no mention of lower back or right hip pain in his clinical notes between 2016 and 2020.  
17	Dr Shapiro’s notes do record:
(a)	a comprehensive history of lower back and right hip problems for many years preceding the motor vehicle accident; 
(b)	two previous operations on her right hip, and that before the motor vehicle accident, Ms Sheridan was favouring one leg;  
(c)	the left shoulder complaints following the transport accident had resolved by January 2017;
(d)	by August 2020, treatment being provided was to the neck;  and
(e)	the first record of a complaint of right hip and back pain was in September 2020.  Dr Shapiro noted that, “She had two surgeries on her hip few years ago.” There is no mention of the transport accident.  
18	There is no history in Mr Behrsin’s notes of the transport accident being productive of right hip or lower back problems.  In a report to the plaintiff’s solicitor, dated 16 January 2024, Mr Behrsin stated it was not until June 2017 that “some of [Ms Sheridan’s] prior symptoms” in her lower back and hip pain returned.  
19	Save for mild tenderness in the right hip and (upon palpitation) at L4 recorded upon admission to hospital, for which she received no treatment, prior to June 2017 there is no evidence of any complaint of hip or lower back pain.  
20	There is no evidence of the history provided to, or treatment provided by, the initial treating chiropractor, “Jemima”.  The plaintiff then moved to the Northern Spinal Clinic (“Northern Spinal”) in 2020 for chiropractic treatment, due to COVID-19 travel restrictions.  
21	Upon her first attendance at Northern Spinal on 6 August 2020, Ms Sheridan was complaining only of left shoulder pain as a result of a motor vehicle accident, which is consistent with her history to the physiotherapist.
Previous medical conditions
22	Consideration of causation in this proceeding involves a significant medical history.  
23	Ms Sheridan used to compete in gymnastics until age twelve.  In or about 1998, at age fourteen, she had pain in her right hip and was diagnosed with snapping hip syndrome.  Orthopaedic surgeon Mr Philip Griffin performed surgery to release her right psoas tendon.
24	In 2000, she was diagnosed with a labral tear in her right hip and Mr Griffin performed a right hip arthroscopy on 24 November 2000.  He debrided the tear, noting early degenerative changes on the acetabular surface of the hip.  In his opinion, in the longer-term Ms Sheridan would not return to impact-type activities, or anything that involved a lot of twisting and turning, and deep squatting.
25	When she attended Mr Griffin in January 2002, Ms Sheridan was complaining of lower back pain.  Mr Griffin was of the view that most of the symptoms were related to sacroiliac joint irritation, particularly on the right side. Anti-inflammatory medication, physiotherapy and use of a lumbar support brace, was recommended.  
26	In February 2002, her general practitioner referred her to Dr John Findeisen, consultant rheumatologist.  Dr Findeisen noted the degenerative changes on the acetabular surface of the hip, and recorded a history that: 
(a)	since her arthroscopy she had had pain in the right groin, upper anterior thigh and lower back, with symptoms in her lumbar spine having been intermittent for many years; 
(b)	she found it hard to get up from a sitting position and had great difficulty climbing stairs; and 
(c)	on occasions she limped and the right leg gave way.  
27	In the absence of a precise clinical diagnosis, Dr Findeisen recommended symptomatic treatment with Celebrex, 200 milligrams daily, and Glucosamine for the degenerative changes in her hip; physiotherapy and other exercises to strengthen her right thigh and lower back.
28	In September 2008, Ms Sheridan consulted spinal interventional pain management specialist, Dr Neels du Toit, for sharp lower back pain radiating anteriorly to both anterior groins, and also radiating higher up in the lower back and thoracic spine.  Her pain, at that time, increased with prolonged standing.  She was, in 2008, still experiencing hip clicking, without specific groin pain.  
29	On 4 September 2008, in the context of lower back pain, a CT scan of the lumbosacral spine disclosed a mild to moderate posterior disc bulge at L4-5 flattening the anterior theca, but not compromising the regional nerve roots; and moderate disc protrusion at L5-S1 without neural compression.  
30	In Dr du Toit’s opinion, the most likely cause of her lower back pain was from the L4-5 disc.  He recommended medial branch blocks of the lower facets, sacroiliac joint injection, and, as a last option, a discogram to confirm the L4-5 disc as the source of her pain.  He diagnosed her with sciatic pain, and proceeded with caudal epidural and left sacroiliac joint injections in September and November 2008 respectively.  
31	In late 2009, Ms Sheridan consulted Mr Stephen McMahon, orthopaedic surgeon, giving a ten-year history of troubles with her right hip.  Mr McMahon diagnosed impingement of her right hip following review of her x-rays over the years, and his examination confirmed the presence of anterior hip impingement. 
32	During this period, Ms Sheridan consulted physiotherapist, Mr Behrsin, for her right-sided lumbar pain.  Mr Behrsin diagnosed an unstable spine, with the right sacroiliac joint slightly mal-positioned from its neutral position, enough to cause symptoms.  He treated her right hip, back and buttock symptoms between 2009 and 2010.  
33	As a consequence of this ongoing pain, Ms Sheridan had plain x-rays and MRI scans of the right hip, showing some impingement at the femoral head/neck junction and some gluteal tendinopathy.  Her right hip pain continued, and she had a right hip injection on 22 January 2010.  
34	The pain continued.  By 3 September 2015, she again consulted her longstanding general practitioner, Dr Shapiro, for recurrent lower back and hip pain.  
35	In September 2015, Ms Sheridan was referred to another orthopaedic surgeon, Dr Shay Zayontz for assessment of symptoms in her right hip and lumbar spine.  The resultant x-ray and MRI scan of the lumbar spine, pelvis and both hips in September 2015, recorded a history that Ms Sheridan was suffering recurrent lower back and hip pain.  Under cross-examination, Ms Sheridan frankly conceded she was having problems in those areas at the time.
36	The MRI scan of the right hip and lumbosacral spine on 13 September 2015 showed mild degenerative disc bulges at L4-5 and L5-S1, and insertional tendinopathic/partial tearing of the anterior gluteus medius.
Medical treatment after the accident
37	After the transport accident, Mr Behrsin provided extensive treatment for neck and shoulder pain.  By 5 August 2019, when his treatment ceased, Mr Behrsin recorded that Ms Sheridan was generally improved, with her symptoms aggravated if tired or ill.  
38	In September 2020, Ms Sheridan consulted orthopaedic surgeon, Dr Anita Boecksteiner for treatment in relation to her hip and back pain.  Her history at the time included that, prior to the transport accident:
“Her right hip always hurt if she walked a lot, or danced, or wore high [heels]. Cycling has never been comfortable, walking up hill is now a strain … .” 
39	Her report to the treating general practitioner dated 30 September 2020 includes a history of deterioration of symptoms in the right hip “after a pedestrian car accident”, but there is no record of a motor vehicle accident as being productive of symptoms in the lower back or of any pre-existing low back issues.  In her opinion, a torn ligament might explain the symptoms in the hip, and she referred Ms Sheridan for further radiological investigations.
40	Dr Boecksteiner’s views are clear as to the right gluteal pain.  Following an MRI scan of the right hip on 5 October 2020 which disclosed a “previous full thickness tear” of the gluteus medius tendon and bursitis, her report dated 16 November 2020 states that the gluteal changes represent the previous surgical access site.  
41	An injection into the right trochanteric bursa in January 2021 reduced her hip pain by more than 50 per cent. 
42	While Ms Sheridan’s application proceeds on the basis that the transport accident is causing ongoing difficulties in her hip, on 25 June 2021, Dr Boecksteiner sent a referral to orthopaedic surgeon Mr David de la Harpe for advice and treatment of her symptoms.  In terms of causation, the referral states:
“Her right hip was scoped years ago. She was a gymnast.” 
43	Mr de la Harpe examined Ms Sheridan on 10 August 2021, and found:
“… the right hip was a little irritable in flexion and external rotation. There was no neurological abnormality in the lower limbs. An MRI scan of her lumbar spine shows two levels of degenerative disc at L4-5 and L5-S1. There is an annular tear at L4-5. There is obvious pathology around the right hip as well.”
44	His report back to Dr Boecksteiner dated 13 August 2021 records longstanding problems with the right hip.  There is no mention of the transport accident.  He thought “her main problem is related to the hip and soft tissue structures around.”
45	In his opinion surgery on the lumbar spine was not indicated; instead Mr de la Harpe referred her for an L4-5 CT-guided epidural.  This procedure provided Ms Sheridan with significant relief.  In terms of causation, Mr de la Harpe’s opinion in his report of September 2022 was equivocal at best:
“She also has now from a spinal point of view degenerative changes in her lumbar discs. She did not give me a history of one specific accident.”
46	On 13 October 2021, Dr Boecksteiner wrote to general practitioner Dr Fernando in these terms: 
“[Ms Sheridan] had a great response to the epidural injection at L4/5, almost a month with no pain then the deep lateral to posterior gluteal pain came back.
 Now the back is stiff again.
 I have formulated a plan for her.
 The Glute medius partial width full thickness tear with retraction, thinning and fatty infiltration, is irrepairable.
 It is the size of a hip arthroscopy portal and may just be the scar from that.
 On scan the Bursa is still large and tender to touch. 
The back feels tight again.”
(sic)
47	Despite an invitation to do so, counsel for Ms Sheridan was not able to point to any medical evidence as to the origin of the gluteal pain, other than as referenced in the reports of Dr Boecksteiner.  
48	Although there is some support in the medico-legal reports for a connection between the transport accident and the current impairment, the histories provided to the examining doctors need to be examined carefully.  
49	In his final report dated 1 November 2023, Mr de la Harpe recorded a history that “at the time of the accident she suffered immediate pain over the lateral aspect of the right hip, the lower back and right gluteal region.”  He deferred diagnosis in relation to the hip to Dr Boecksteiner.  As to the lumbar spine, he stated:
“From previous imaging studies prior to the accident it would seem there likely be some mild degenerative changes associated with the hip and the lumbar spine, and that there was a previous epidural injection performed by Dr Neels Du Toit and specifically a caudal epidural on 30/09/2008 indicating that there must have been some symptoms felt to be due to the spine prior to the accident.
…
Given the subsequent investigations of both the hip and the spine… I would say that the injury has worsened some degenerative change in the lumbar spine from the progression on the MRI records.”
50	In other words, based on the historical MRI scan records, in his opinion, Ms Sheridan suffers from a persisting aggravation of a pre-existing condition of degenerative change in the lumbar spine as a result of the transport accident.  Mr de la Harpe does not explain the apparent change in opinion from his earlier report of September 2022.
51	Mr de la Harpe stated that: 
(a)	Ms Sheridan will require ongoing treatment for her lumbar spine, including conservative management such as physiotherapy, chiropractic exercises and intermittent spinal injections; and 
(b)	although surgery is not indicated presently, there is a possibility that Ms Sheridan will experience ongoing deterioration of her lumbar spine which may necessitate surgery in the future.
52	Mr de la Harpe does not refer, in any of his reports, to the treatment and opinion of Mr Behrsin; the extent of problems and treatment prior to the transport accident; or the absence of any complaint of lower back symptoms to the general practitioner after the transport accident.  The history provided by Ms Sheridan to him of “immediate pain” in the lower back and right hip is inconsistent with the contemporaneous records.  
53	Without a complete and accurate history, his report is of limited assistance in forming a view as to the extent of any aggravation-type injury suffered in the transport accident.  If he was provided with treatment notes of Dr Shapiro and Mr Behrsin at the time of preparing his final report, his path of reasoning in relation to causation is not adequately exposed.  I place limited weight on his final opinion.
54	Orthopaedic surgeon Dr Terence Saxby’s report dated 27 April 2023 records his opinion that:
“The lumbar spine condition, I believe, was a preexisting condition and does not appear to have been significantly aggravated by the transport accident based on the history.
…
 The right hip condition appears to be a degenerative condition affecting the gluteal tendons and musculature and perhaps some trochanteric bursitis. However, there was significant pre-existing history with two surgical procedures on the right hip. Therefore, it is difficult to be certain of the exact extent of the transport accident, but I believe the transport accident would have caused an aggravation of the right hip condition mainly in the form of trochanteric bursitis. There was evidence at the time of the injury that there was tenderness over the trochanteric bursa and a subsequent MRI scan confirmed trochanteric bursitis.
 …
 I believe there is a pre-existing right hip condition that has been aggravated by the transport accident, but in my opinion, the transport accident aggravation would only have been a temporary aggravation and Ms Sheridan’s present condition would have been the same regardless of the transport accident. That is to say, in my opinion, the injury to the right hip at the time of the transport accident was of relatively low energy and is not likely to have caused a permanent aggravation.”
55	Asked to comment on the report of Mr de la Harpe dated 1 November 2023, Dr Saxby reiterated his opinions that:
“…the lumbar spine condition was pre-existing with lumbar spondylosis, and I based my opinion that the transport accident did not cause an aggravation of the spine condition… on the records of the Alfred Hospital which did not specifically mention an injury or problems with the lumbar spine and a CT at the time showed no bony injury to the lumbar spine. I also rely on the notes of Dr Shapiro from the 12 December 2016 and 19 December 2016 which once again make no mention of lumbar spine pain or problems.
…
 …the right hip condition has not been aggravated by the transport accident. Once again I base this on the notes from the treating doctors around the time of the injury. The Alfred Hospital notes only mild tenderness over the right greater trochanter and no swelling or bruising, and there was full flexion of the hip. This is essentially a normal examination. If there was significant trauma, one would have expected swelling or bruising or significant tenderness over the hip region. Also, if there was a hip pathology the range of motion of the hip would be affected. The tenderness over the trochanteric region would be considered a trochanteric bursitis and it is difficult to know where this is the pre-existing trochanteric bursitis or made worse by the injury.
 Once again, in Dr Shapiro’s notes from 12 December 2016 and 19 December 2016 he does not make any mention of the right hip problem. Once again, if there had been significant change or an increase in symptoms they would have been maximum at the time of the injury and one would have expected Ms Sheridan to be complaining of symptoms in her right hip when she presented to her general practitioner.”
56	I prefer the opinion of Dr Saxby.  It is consistent with the pre-existing conditions, previous treatment, and contemporaneous histories to Dr Shapiro and the allied health practitioners.
57	The report of consultant orthopaedic surgeon, Mr John O’Brien dated 25 July 2023 records a history that Ms Sheridan had returned to “full activity until the motor vehicle accident” and “there were no symptoms prior to the reported accident in December 2016.”  That is plainly incorrect.  Ms Sheridan readily agreed, under cross-examination, she was having difficulties with her right hip and back right up until the transport accident.
58	This incorrect history infects Mr O’Brien’s opinion that her current symptoms from the “soft tissue pathology involving tendinopathy of the gluteus minimus and medius tendons” are related to the transport accident. 
59	Associate Professor Bruce Love prepared three reports at the request of Ms Sheridan’s solicitors.  Ms Sheridan’s history to Associate Professor Love was that she had made “a good recovery” from hip surgery at age fourteen, without referring to any ongoing symptoms.  This reflects the similar histories given to other doctors over time.  Ms Sheridan candidly, in cross-examination, agreed her hip was limited in its function.
60	Further, Associate Professor Love recorded a history that the hip symptoms “have now been present since 09.12.2016 without signs of resolution”.  Based upon this history, Associate Professor Love set out his ultimate opinion in his report dated 20 June 2023:
“In view of the absence of significant symptoms prior to the motor vehicle accident it can be stated that it is more probable than not that the [tendinopathy adjacent to the right hip] condition has been caused as a direct result of the motor vehicle accident.”
61	Unfortunately, this opinion has been expressed on a false premise, having regard to the significant symptoms and treatment prior to the accident, and the absence of any record of symptoms in the months following it. 
Findings
62	I accept the defendant’s submission that the return of “prior symptoms” in the hip and lower back in June 2017, which had previously been treated by Mr Behrsin and others, are unrelated to the transport accident.  The extensive treatment and history of those symptoms set out above supports this finding.  There is an abundance of evidence of pre-existing injury to the hip and symptoms in the spine.  
63	Immediately prior to the transport accident she had pain and loss of function in both her lower back and right hip. 
64	Current pain from a disc bulge at L4-5 is at the same location where Ms Sheridan previously suffered a disc bulge at L4-5 and L5-S1, with compression on the exiting nerve root on the left, prior to the transport accident.
65	Treatment for the right hip, including injections since the transport accident, provided relief from discomfort to the extent that her current major problem is not her right hip, but her right gluteal.  She takes prescription pain medication for her gluteal condition.
66	In accordance with the opinion of Dr Boecksteiner, I find that consequences of pain in the right gluteal region, and any related loss of function, do not relate to the transport accident.
67	A “different pain” she experienced in the right groin has apparently been treated.  There is no evidence, as at the date of the application, that the pain in her groin she suffered in the past that “cripple[d] her with pain for days on end”, is currently an issue for her.  There is no wasting of her muscles.
68	Ms Sheridan did not complain of, or receive any no treatment for, symptoms in the lower back or right hip after the transport accident until there was a return of her previous problems in the lower back and hip six months later.  
69	There is no history recorded in the general practitioner’s clinical notes of lower back or right hip symptoms in the four-year period after the transport accident, nor any report from Dr Shapiro to explain this absence.
70	I am not satisfied on the evidence as a whole that Ms Sheridan would be in any different position going forward had the transport accident not occurred.
Conclusion 
71	The findings above are sufficient to dispose of the application.  Ms Sheridan has not established that her current lower back or right hip condition – accepting that she does have ongoing pain and restrictions – is compensable.  I am not satisfied that she suffered the claimed injuries in the transport accident.  Any minor aggravations to the pre-existing conditions in her lower back and right hip have since resolved. 
72	The application is dismissed.
73	I will hear the parties as to costs.
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