Agnesi v TAC

[2024] VCC 1910

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-03685

Alberto Agnesi	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2024
DATE OF JUDGMENT:	29 November 2024
CASE MAY BE CITED AS:	Agnesi v TAC
MEDIUM NEUTRAL CITATION:	[2024] VCC 1910

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious Injury Application – motor vehicle accident – previous work injury - aggravation injury

Legislation Cited:      Transport Accident Act 1986(Vic)

Cases Cited:Abbas v Transport Accident Commission [2015] VSCA 217; 72 MVR 182; Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie [2000] VSCA 50; 1 VR 79; Rowe v Transport Accident Commission [2017] VSCA 377.

Judgment:                  Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram KC with Mr L Allan	Carbone lawyers
For the Defendant	Mr P Jens KC with Ms J Ryan	HWL Ebsworth

HIS HONOUR:

Introduction

1There can prove to be no end of unfortunate circumstances to befall a person either in the workplace or on the road.  Such vagaries of life are writ large in the case of the plaintiff.

2As far as the operation of the Transport AccidentAct 1986 (“the Act”) and applications for grant of serious injury certificates are concerned, where a plaintiff injured in a transport accident has already suffered injury to the same body function, the question is often enough distilled to whether or not the plaintiff has proved on the balance of probabilities that injury suffered in such circumstances has operated to aggravate an earlier injury, and if so, whether the extent of the aggravation of itself, but not in combination with an earlier unrelated injury is a serious injury. This is not always a straightforward exercise.

Particulars of Injury

3The particulars of injury are expressed to be:

a)Serious aggravation of pre-existing injury to the spine;

b) Serious aggravation of pre-existing injury to the lumbar spine;

c) Serious aggravation of pre-existing injury to the cervical spine; and

d) Severe aggravation of pre-existing psychiatric/psychological injury including but not limited to stress, anxiety, and depression.[1]

[1]        Particulars of Injury filed 9 September 2020.

The Transport Accident

4The plaintiff was involved in a transport accident within the meaning of the Act on 19 May 2018. The description of the accident and the plaintiff’s uncontested account of it, and the symptomology of which he complains, without more, might readily suggest a simple and favourable outcome to the application. However, as will be seen, prior to the accident, the plaintiff’s spine was in a very poor state in various of its segments, and neither was he in a good state emotionally. Indeed, the plaintiff deposed that he was in the wrong place at the wrong time when the motor vehicle accident occurred because family members in whose company he was had suggested a pizza outing to help his emotional wellbeing.

Earlier Work Injury

5So as to understand the state of the plaintiff’s pre-existing spine and emotional condition when he was injured in the transport accident on 19 May 2018, it is necessary to examine the circumstances that occurred at the plaintiff’s workplace some years beforehand, when in 2014, he suffered a hit to the head and developed an injury with serious effects physically and emotionally.

6The consequences from the plaintiff’s 2014 work injury were of such a measure of seriousness, that he sought leave to commence common law proceedings. Ultimately, his WorkCover common law damages proceeding was settled at mediation on 23 October 2019 for the sum of $511,589.30, plus retention of statutory benefits.[2]

[2]        Exhibit P1, Plaintiff’s Amended Court Book (“PCB”) 2, at paragraph [10].

7The plaintiff was still labouring from effects from his 2014 workplace injury when he was dealt the further blow of the transport accident on 19 May 2018.

8The substance of the plaintiff’s application is that the transport accident made worse to such an extent the state of his injured spine by way of consequences of pain and suffering and pecuniary disadvantage that it is a serious aggravation.  The defendant’s submission is that there is no evidence of a sufficient worsening caused by the transport accident such that any aggravation should not be assessed as serious.  

Representation

9

The plaintiff was represented by Mr Ingram of King’s Counsel, together with

Mr Allan of junior counsel.  The defendant was represented by Mr Jens of King’s Counsel, together with Ms Ryan of junior counsel.

Relevant Legal Principles

10The application was commenced by reliance on paragraph (a) and paragraph (c) of the definition of “serious injury” contained in section 93(17) of the Act. However, at the hearing of the application, Mr Ingram relied only on paragraph (a), and because the plaintiff had suffered a secondary psychiatric reaction from the workplace injury, the emotional disturbance from the transport accident was limited in the manner recognised in Richards v Wylie.[3]

[3] [2000] VSCA 50; 1 VR 79,79.

11The following brief statement represents settled principles of law.

12It is necessary for a plaintiff to identify the impairment to body function and the injury, or injuries relied upon caused by a transport accident in the determination by the Court of an application for the grant of a serious injury.

13The meaning of “serious” contained in section 97(17) of the Act was explained in the following way in Humphries & Anor v Poljak:[4]

To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[5]

[4] [1992] 2 VR 129, (“Humphries”).

[5] Ibid 140.

14As identified in the extract from Humphries,[6] a determination of the seriousness of any pecuniary disadvantage the plaintiff claims to have suffered as a result of a transport accident is to be assessed in combination with, and not separately, from any pain and suffering consequences.

[6] Ibid.

Aggravation type injuries

15Injuries sustained on separate occasions must generally be assessed separately to determine whether each injury individually, is a serious injury. This means that where a plaintiff brings proceedings for a serious injury in the form of an aggravation of an earlier injury, the court must examine whether the later aggravation is itself a serious injury.[7] The measure of such aggravation as  serious injury is by undertaking an assessment of the consequences attendant a plaintiff from the subsequent injury and not by an accumulation method that includes the consequences from the later injury on top of or added to the first injury.

[7]Petkovski v Galletti [1994] 1 VR 436, 443; [1994] VicRp 32; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; De Agostino v Leatch [2011] VSCA 249, [11]; RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, [2]; [2000] VSCA 51; Guppy v VWA [2010] VSCA 164, [18]-[19].

The Evidence

16The parties, in particular the plaintiff, tendered voluminous evidence in support of his application, all of which was argued as relevant. It was not.

17The plaintiff tendered the following:

(a)   Two affidavits of the plaintiff and exhibits dated 16 April 2020 and 7 March 2024;[8]

[8]Exhibit P1, PCB 1-23.

(b)   Affidavit of Maria Agnesi dated 29 February 2024;[9]

[9]Exhibit P2, PCB 30-32.

(c)   Affidavit of Laszlo Sevaracz dated 16 April 2020;[10]

[10]Exhibit P3, PCB 33-35.

(d)   Radiology including:

·        X-Ray Thoracic Spine and Right Scapula dated 30 May 2014;

·        MRI Thoracolumbar Spine dated 22 June 2014;

·        MRI Cervical Spine Non-Contrast dated 22 July 2014;

·        Whole Body Bone and Spect dated 9 December 2014;

·        CT Cervical Spine dated 10 December 2014;

·        MRI Cervical Spine dated 25 May 2015;

·        MRI Lumbar Spine dated 27 November 2015;

·        CT Cervical Spine dated 1 July 2016;

·        MRI Cervical Spine dated 9 May 2016;

·        CT Brain and Cervical Spine dated 4 October 2019;

·        MRI Whole Spine dated 2 June 2021;

·        X-Ray Lumbar Spine and CT Lumbar Spine dated 11 February 2022;

·        CT Cervical Spine dated 14 June 2023;

·        MRI Both Shoulders and MRI Left Shoulder dated 17 June 2023; and

·         X-Ray and MRI of the Lumbar Spine dated 13 February 2018.[11]

[11]Exhibit P4, PCB 36-56.

(e)   Three reports of Mr Patrick Chan (Neurosurgeon and Spinal Surgeon) dated 20 June 2018, 15 August 2018 and 22 October 2019;[12]

[12]Exhibit P5, PCB 57-64.

(f)    Four reports of Mr Chan dated 30 June 2016, 9 May 2017, 3 February 2018 and 18 April 2018  ;[13]

[13]Exhibit P5, Defendant’s Court Book (“DCB”) 10-25.

(g)   Seven reports of Dr C J Morales (General Practitioner) dated 11 July 2018, 11 October 2018, 21 August 2019, 22 January 2020, 7 July 2021, 31 May 2023 and 30 January 2024;[14]

[14]Exhibit P6, PCB 65-75.

(h)   Two reports of Dr Morales dated 23 March 2018 and 13 June 2018;[15]

[15]Exhibit P6, DCB 3-4,9.

(i)    Report of Dr Stephen de Graaff (Director of Pain Services) dated 19 September 2018;[16]

[16]Exhibit P7, PCB 76-77.

(j)    Three reports of Dr de Graaff dated 2 June 2017, 14 February 2018 and 20 April 2018;[17]

[17]Exhibit P7, DCB 26-30.

(k)   Two reports of Dr Clayton Thomas (Pain Management) dated 8 January 2019 and 16 September 2019;[18]

[18]Exhibit P8, PCB 78-84.

(l)    Nine reports of Professor Richard Bittar (Neurosurgeon and Spinal Surgeon) dated 8 August 2019, 3 September 2020, 14 August 2021, 30 August 2021, 8 August 2022, 24 October 2022, 2 February 2023, 7 July 2023 and 21 February 2024;[19]

(m)     Report of Professor Bittar dated 20 April 2018;[20]

(n)   Report of Dr Julie Wehbe (Psychiatrist) dated 16 October 2019;[21]

(o)   Report of Mr Bernard Lynch (Orthopaedic Surgeon) dated 28 July 2022;[22]

(p)   Three Reports of Mr Stephen Doig (Orthopaedic Surgeon) dated 12 April 2018, 17 September 2019 and 11 December 2020;[23]

(q)   Two reports of Dr Robyn Horsley (Orthopaedic Surgeon) dated 26 June 2018 and 13 August 2019;[24]

(r)   Three Reports of Dr David Kennedy (Physician) dated 30 April 2020, 30 December 2020 and 25 March 2021;[25]

(s)   Dr Leon Turnbull (Psychiatrist) dated 24 March 2021;[26]

(t)    Dr Saji Damodaran (Psychiatrist) dated 17 February 2024;[27] and

(u)   Dr Raf Asaid (Orthopaedic Surgeon) dated 21 February 2024.[28]

[19]Exhibit P9, PCB 85-116.

[20]Exhibit P9, DCB 36-44.

[21]Exhibit P10, PCB 117-123.

[22]Exhibit P11, PCB 124.

[23]Exhibit P12, PCB 125-133.

[24]Exhibit P13, PCB 134-157.

[25]Exhibit P14, PCB 212-227.

[26]Exhibit P15, PCB 228-234.

[27]Exhibit P16, PCB 235-246.

[28]Exhibit P17, PCB 247-253.

18The defendant tendered the following evidence:

(a)   Letter from EML to Dr Morales dated 4 June 2018;[29]

(b)   Three reports of Mr Michael Dooley (Orthopaedic Surgeon) dated 15 February 2021, 8 February 2024 and 25 March 2024; and

(c)   Two reports of Mr Michael Dooley dated 2 November 2018 and 28 August 2019;[30] 

(d)   Report of Associate Professor Doherty dated 20 March 2021;[31]   

(e)   Report of Dr Gary Davison (Occupational Physician) dated 15 October 2018;[32]

(f)    Report of Dr Murray Gee (Occupational Physician) dated 16 July 2019;[33] and

(g)   Report of Dr Dush Shan (Consultant Physician) dated 22 August 2019.[34]

[29]Exhibit D1, DCB 5-8.

[30]Exhibit D2, DCB 45-59, PCB 262-270.

[31]Exhibit D3, DCB 60-71.

[32]Exhibit D4, PCB 254-261.

[33]Exhibit D5, PCB 271-277.

[34]Exhibit D6, PCB 278-286.

The Plaintiff’s Affidavit Evidence

The Earlier Work Injury Affidavit

19On 27 March 2018, the plaintiff swore an affidavit in the Work Injury proceeding in support of an application for leave to commence proceedings claiming common law damages for his 2014 injuries. It was the agreed position of the parties that the plaintiff’s common law damages proceeding settled at mediation on 23 October 2019 for the amount referred to in paragraph 6 of these reasons.

20The March 2018 Work Injury affidavit revealed that the plaintiff was aged 48, and married with 2 children. He left school during Year 12, and in 1993 he commenced as an apprentice butcher at Nino and Joe’s Meats Pty Ltd, a company owned and operated by his parents, and at which business he remained employed after completing his apprenticeship.

The Work Injury and its Consequences

21The plaintiff’s work injury occurred in March 2014, when he was standing on a stepladder in a cool room, and fell backwards. He suffered a concussion and a neck injury which required pain management. He experienced dizziness and developed severe right shoulder pain radiating in to his right arm, with associated paraesthesia in his right arm and hand, mainly involving his middle, ring, and fifth fingers. He returned to employment the day after the accident and worked on intermittently but on reduced hours of 12 hours per week until he underwent a cervical fusion in June 2016 performed by Mr Patrick Chan, following which he remained off work for a lengthy period of time.

The Medical Management of the Work Injury

22The plaintiff was referred to Mr Chan on 4 August 2014.  Mr Chan arranged an admission to Epworth Hospital. Mr Chan recorded a history of chronic lower back pain and L5 pars defect.  He also noted left sided more than right sided leg pain.[35] He recorded a two-month history of bilateral upper limb pain, that was worse on the right hand side, with pain radiating from the plaintiff’s shoulder blades into his arms, forearms, and hands, specifically his ring and little fingers.

[35]Exhibit P5, DCB 13.

23Mr Chan reviewed an MRI scan from 22 July 2014, which revealed multilevel cervical spondylosis and bilateral C3/4, C4/5, and C5/6 foraminal stenosis.[36]  He discussed with the plaintiff a range of treatment options, including conservative treatment, cortisone injections, and spinal surgery. He prescribed a course of oral Prednisolone.

[36]        A narrowing of parts of the spine causing compression of the spinal nerves.

24Following discharge from the Epworth, the plaintiff saw Mr Chan on 19 August 2014, and spinal surgery was again discussed.

25Mr Chan reviewed the plaintiff on 28 October 2014 and surgery was discussed.

26The plaintiff was reviewed by Dr Brazenor, neurosurgeon, in January 2015, who recommended conservative treatment.

27Mr Chan saw the plaintiff next on 17 February 2015, and although his symptoms had improved slightly, including an improvement in his right arm pain, he remained off work.

28Mr Chan saw the plaintiff on 17 March 2015, and he presented with ongoing neck and right arm pain.  Mr Chan referred the plaintiff to Dr Stephen de Graaff.

29Dr Brazenor saw the plaintiff again on 25 May 2015.  He suggested that he return to work on modified duties and part time. He did not recommend surgical intervention.  The plaintiff did not see Dr Brazenor again.[37]

[37]Professor Bittar Report 3 September 2020, Exhibit P9, PCB 86.

30Dr de Graaff saw the plaintiff on 3 June 2015 following referral. He recommended a rehabilitation program.  Outpatient patient rehabilitation followed but apparently without significant benefit for the plaintiff.

31Mr Chan saw the plaintiff on 3 May 2016. By now, the plaintiff had completed a rehabilitation program, but he was continuing to experience significant pain from his right shoulder blade into his right arm, forearm, and hand. He was on light duties, working 12 hours per week[38] at Nino’s and Joe’s Meats Pty Ltd. Mr Chan commented that any increase in the plaintiff’s duties or hours resulted in an exacerbation of his pain.

[38]Exhibit P1, PCB 12.

32Mr Chan recorded that the plaintiff had experienced  ongoing issues of lower back pain since November 2015 when he woke up with significant back pain and left leg temperature coldness.[39]

[39]Exhibit P5, DCB 15.

33The plaintiff also told Mr Chan that his right leg had been more affected by pain than his left leg since the work injury. In cross-examination, the plaintiff’ said that it had always been his right leg that had been affected as a result of the work injury.[40]

[40]T 59, L 31 – T 60, L 3.

34Mr Chan noted that an MRI of the lumbar spine in November 2015 identified disc desiccation at L4/5 and L5/S1 with a disc bulge at L4/5. At L5/S1 there was grade 1 lytic spondylolisthesis, with bilateral foraminal stenosis and lateral recess stenosis. Mr Chan arranged a repeat MRI cervical spine on 9 May 2016 that demonstrated bilateral C4/5 and C5/6 foraminal stenosis with compression of the C5 and C6 nerve roots bilaterally.

35Mr Chan saw the plaintiff on 17 May 2016, and his symptoms had not changed significantly. Mr Chan discussed the possibility of a C4/5 and C5/6 anterior cervical decompression and fusion.

36Mr Chan performed a C4/5 and C5/6 anterior cervical decompression and fusion on 30 June 2016 following which the plaintiff would not work again until September 2022.

37The plaintiff was reviewed by Mr Chan postoperatively on 9 August 2016. The plaintiff said he had experienced some improvement in his symptoms. He also said that he had lower back pain with bilateral leg pain but that radiated more to the right than the left.[41]

[41]Exhibit P5, DCB 16.

38Postoperatively, the plaintiff was regularly reviewed by Dr Morales, his General Practitioner (“GP”), and received treatment by Dr de Graaff.

39The plaintiff’s right arm pain eased following the surgery performed by Mr Chan in June 2016, however, by April 2018, the plaintiff reported to Professor Bittar that his symptoms of neck, arm, back and leg pain had deteriorated in the period of five weeks prior to examination by him.[42]

[42]Exhibit P9, DCB 38.

40In April 2018, Professor Bittar recorded that the plaintiff told him that severe neck pain radiated to his right arm. The plaintiff said in his oral evidence that his right arm pain was constant and similar in character to his neck pain.[43] He also experienced pain in his left arm to a lesser degree, and was suffering headaches three to four times a week.[44]

[43]Transcript (“T”) 28, Line (“‘L”) 20-24.

[44]Exhibit P9, DCB 39.

The First TAC Application Affidavit

41In his first affidavit dated 16 April 2020 made in support of this Application, the plaintiff deposed to a history of symptoms that he believed had been caused by the Work Injury.

42The plaintiff deposed to the circumstances of the transport accident. He said it occurred on 19 May 2018 at approximately 10:30 pm.  He and his family had gone to a pizza restaurant, and had parked their car in St Georges Road, North Fitzroy. On returning to the car to go home, and whilst seated as the front passenger with the vehicle still stationary, it was struck to the rear driver’s side.  The plaintiff’s wife was in the driver’s seat.

43The plaintiff deposed that he was jolted around severely, hitting the windscreen.

44Police, ambulance and fire brigade attended the scene.

45The plaintiff was taken by ambulance to the Royal Melbourne Hospital where CT scans of his whole spine were undertaken.  He was given Endone for the strong pain he was experiencing in his spine.  He was discharged after a few hours.

46A few days later on 21 May 2018, the plaintiff attended Dr Carmelo Morales GP for the first time. Dr Morales continues to treat the plaintiff.

47On 20 June 2018, the plaintiff saw Mr Chan to whom he provided a description of the transport accident that included being thrown around and jolted severely. He told Mr Chan that he had experienced worsening neck pain and right arm symptoms and mid-back pain since.  He told Mr Chan that his major concern was suffering lower back pain and bilateral leg pain. He said he was experiencing pain radiating along both thighs, to both shins, and to both feet. He was also experiencing a cold sensation in both legs with prolonged sitting. He said that his pain generally worsened with prolonged walking and that he had been limping since the transport accident.

48Mr Chan referred the plaintiff for an MRI scan of his whole spine on 8 August 2018. At this stage surgery was not recommended by Mr Chan.

49Before the transport accident, the plaintiff had received pain management from Dr Stephen de Graaff, to whom he returned after the transport accident.

50The plaintiff also saw a pain management specialist, Dr Clayton Thomas, who recommended a ketamine infusion, a suggestion with which Mr Chan agreed.

51The plaintiff deposed that on 4 October 2019 he attended the emergency department of the Epworth Hospital because of chest pain and right arm pain that extended down the right side of his body. He was admitted and investigated for a cardiogenic cause of his symptoms. He was discharged on 10 October 2019.

52Whilst the plaintiff was in the Epworth Hospital a ketamine infusion was aborted because he experienced severe side effects.

53Sometime after October 2019, the plaintiff undertook physiotherapy at Back in Motion in Brunswick, however, he said he found the physiotherapy treatments increased his pain and so he stopped attendance.

54The plaintiff said he continued to consult Dr de Graaff, Dr Thomas, and Dr Morales for severe ongoing pain.

55The plaintiff deposed that by April 2020, he was prescribed Endone (and takes two tablets, four times per day), Targin (taking two tablets per day), and Valium (taking two tablets, twice a day). He said that he sometimes took more pain relief depending on his pain.  He said his consumption of pain and muscle-relaxant medication increased since the transport accident.

56The plaintiff saw Dr Julie Wehbe, a psychiatrist, who trialled him with Transcranial Magnetic Stimulation. The plaintiff said that his anxiety and depression had severely worsened since the transport accident and he had become greatly despondent. He said he had hoped for improvement after the cervical spine fusion performed by Mr Chan on 30 June 2016, however, it had provided only short lived improvements to his pain.

57The plaintiff deposed that he had experienced considerably more severe migraine-type of headaches since the transport accident.

58The plaintiff said that what was an already circumscribed life had been very considerably worsened by the transport accident. His neck pain had increased, his back pain had increased, the referred symptoms in his arms and legs had increased in their intensity, and he was experiencing bilateral leg pain each day whereas, before the transport accident, it was generally right leg pain. He also complained of a greatly worsened psychiatric symptomology.

The Second Affidavit

59In his second affidavit dated 7 March 2024, the plaintiff deposed that throughout 2020, he continued to see Dr Morales.

60The plaintiff said that he saw Professor Bittar on 30 August 2021, who   recommended low back surgery, but approval for surgery was refused by the TAC.

61The plaintiff saw Mr Bernard Lynch, shoulder surgeon, on referral on 28 July 2022, for his right shoulder pain. Mr Lynch recommended that he consult a neurosurgeon rather than undergo shoulder surgery. Mr Lynch thought that most of the plaintiff’s pain was radiating from the cervical spine into the base of his neck, and across to the upper right deltoid region and further neurosurgical review was recommended.[45]

[45]Exhibit P11, PCB 124.

62The plaintiff saw Professor Bittar again on 8 August 2022.

63The plaintiff said he had become anxious about the prospect of a significant low back surgery, and, he deposed that in any event, it was his neck that was giving him a lot of trouble.

64The plaintiff next saw Professor Bittar on 24 October 2022 and once more  the possibility of surgery was canvassed.  

65The plaintiff said that despite suffering considerable pain, but because of financial pressure, in September 2022 he returned to employment with Nino's and Joe's Meats, working in Quality Assurance for about 20 hours per week, but due to worsening pain he stopped work.

66The plaintiff deposed that because the TAC had refused Professor Bittar’s surgery request, he self-funded the procedure and in April 2023, he underwent C6-7 fusion surgery performed by Professor Bittar. Following that surgery the plaintiff reported some relief from his neck pain; however, he said it did not resolve completely[46] and he continued to experience persistent neck pain.[47]

[46]Exhibit P1, PCB 21, [10].

[47]Exhibit P9, PCB 113.

67The plaintiff saw Dr Viral Shah, an orthopaedic surgeon, on 12 July 2023, and he  recommended that he consult a thoracic surgeon.

68The plaintiff saw Professor Bittar on 6 February 2024 for review.  He said he told Professor Bittar that he was still experiencing a good deal  of neck pain  that extended into his right shoulder and arm.

69The plaintiff deposed that he continues to suffer from severe pain in his neck and lower back. He described his neck pain as a dull ache, that travels into his right shoulder, arm and fingers. He experiences numbness and tingling in his right arm that worsens if he keeps his neck in a static position for too long, or if he extends it too far in one direction or another.

70He described his lower back pain as felt across both sides of his back and extending into his legs. It is a feeling akin to ants crawling in his back. There is increased pain in his lower back from standing or sitting too long or bending or twisting or performing anything strenuous. He has a reduced range of motion in his back.

71He deposed to struggling around the house because of neck and back pain. Dressing and washing is difficult. Driving long distances increases his neck and back pain, and performing head checks is very difficult due to the neck pain. He said that his ability to do all these things is much worse than it had been before the transport accident.

72The plaintiff deposed that the pain  in the back and the neck greatly disturbs his sleep and that he would be fortunate to enjoy more than a few hours’ sleep each evening.

73The plaintiff said he does not feel capable of working at all, and since surgery in April 2023, the situation has not improved and if anything, it has worsened.

74He deposed to taking Endone for pain relief, 1.5 tablets, four times a day and Targin 10/5 mg at night.

75He said he takes Valium when the pain becomes too much to handle, and usually this consists of 2 tablets (5mg each) once or twice a day. He also takes over the counter Panadol for pain relief.[48]

[48]Exhibit P1, PCB 13; T 73, L 3 – 12.

76The plaintiff deposed that he attended on Dr Ali Kian Mehr, a rehabilitation specialist, for pain relief treatment on about 3 occasions.

77The plaintiff has not undergone surgery for his lower back condition.

Current Treatment

78The plaintiff confirmed in additional oral evidence, that his medication includes one and a half tablets of 5mg Endone, four times daily, and one 10mg Targin tablet at night. He also takes two x 5mg of Valium when pain becomes worse, perhaps once or twice a day as well as 8 Panadol a day.[49]

[49]T 89, L 19.

79The plaintiff said that his neck symptoms have deteriorated since the transport accident. He estimated a worsening of his symptoms in the order of 20-30 per cent than before the accident, and as for his  lower back, he assessed it as  60 per cent worse.[50]

[50]T 90, L 30 – T 91, L 4.

80He described his mental state as a lot worse since the transport accident.[51]

[51]T 96, L 6-9.

81He said that he is reviewed by his GP on an as-needs basis. He is not currently undergoing active treatment for his injuries but he remains under the care of Professor Bittar, Dr Morales and Dr Mehr.

Lay Affidavits Received in Evidence

Maria Agnesi

82Maria Agnesi is the plaintiff’s mother. She swore an affidavit dated 29 February 2024.[52] She deposed that she and her husband established Nino’s and Joe’s Meats butcher shop in Brunswick.

[52]Exhibit P2, PCB 30-32.

83Mrs Agnesi attested that she understands that her son’s inability to work is due to the injuries he suffered in the transport accident in 2018. She said she offered her son a part-time role at Nino's and Joe's Meats as a Quality Assurance officer, a position she described as a mainly sedentary, and a flexible role, but which work she came to believe he struggled with due to his transport accident injuries.

84Mrs Agnesi deposed that as the business grew, she and her husband were happy to give the plaintiff more hours, however, they observed that he was already struggling with 20 hours per week. She said she was aware he had required further surgery in April 2023 although she does not understand it to have resolved his pain and he has not returned to work since.

85Mrs Agnesi’s affidavit was received without objection.

Laszlo Sevaracz

86Mr Sevaracz in an affidavit sworn to on 1 March 2024[53], identified himself as a self-employed Food Safety Consultant who has known the plaintiff for more than 11 years.

[53]Exhibit P3, PCB 33-35.

87He said he considers the plaintiff as highly capable and competent in the work he undertakes as a Quality Assurance Manager. He said he is aware of the plaintiffs transport accident-related injuries and that he has not returned to work following surgery.

88He said he understands that the plaintiff’s employment requires him to be active, including walking, and to be on his feet about 80 per cent of the time.

89Mr Sevaracz’s affidavit was received without objection.

Medical Reporting

Mr Patrick Chan, Neurosurgeon

90Seven reports from Mr Chan were tendered in evidence and shared between the parties.  Four reports predated the transport accident, and ranged in dates from 30 June 2016 to 18 April 2018, and these were tendered by the defendant.[54] The plaintiff tendered three reports from Mr Chan dated 20 June 2018, 15 August 2018 and 22 October 2019.[55]

[54]Exhibit P5, DCB 10-25.

[55]Exhibit P5, PCB 65-75.

91In his report dated 30 June 2016 Mr Chan detailed the surgery performed on the plaintiff for right cervical brachialgia. He said the operation included:

·        Anterior C4/5 and CS/6 microdiscectomy,

·        Right CS and right C6 rhyzolysis.

·        Anterior C4/5 and CS/6 interbody fusion.

·        Internal fixation of C4 to C6.

92In a report dated 9 May 2017, Mr Chan noted the plaintiff’s history that included:

chronic lower back pain and was known to have L5 pars defect. He had left more than right leg pain.[56]

[56]Exhibit P5, DCB 13.

93Mr Chan provided an extensive history of the plaintiff’s cervical spine issues as well as a complaint of lower back pain on 17 May 2016, together with his treatment, surgery and rehabilitation.

94Mr Chan said he reviewed the plaintiff on 9 August 2016, six weeks after his initial C4/5 and C5/6 ACDF (Anterior Cervical Discectomy & Fusion). The plaintiff referred to having lower back pain accompanied by bilateral leg pain but that radiated more to the right than the left and towards his calves and soles.

95Mr Chan recorded that the plaintiff was known to have L5/S1 spondylolisthesis with biforaminal stenosis. Mr Chan recommended that he focus on the rehabilitation of his neck and shoulders and that his lower back condition could be re-assessed in time.

96Noting that the plaintiff had right cervical brachialgia secondary to right C5 and right C6 radiculopathy, which was surgically treated, Mr Chan also reported that despite surgery the plaintiff was suffering from persistent right upper limb chronic neuropathic pain, that he thought could be either related to the right C4 and right C7 nerve root compression or to chronic regional pain syndrome arising from previous treatment. Mr Chan referred the plaintiff for pain management with Dr de Graaff.[57]

[57]Exhibit P5, DCB 18.

97In his report dated 3 February 2018, Mr Chan recorded that the plaintiff was complaining of lower back pain.  He said:

Patient also complained of low back pain (LBP). He is known to have L5 pars defect and chronic LBP.  His LBP was further exacerbated from the same work incident when he was on a ladder and a box hit on him. His pain radiated from right gluteal region into [sic] his right hamstring, right calf, and right toes at the lateral aspect and dorsum.  There was associated numbness of his right toes.  There were occasional left sided symptoms. Sitting and walking for 5 minutes exacerbated his symptoms. There was no description of weakness.

Clinical examination was performed on 23^rd January 2018. He walked with normal gait.  Straight leg raising test exacerbated his LBP only.  Lower limbs' neurological examination revealed reduced sensation on his right sole.  His lower limbs' tone, strength and reflexes were normal.

MRI lumbar spine (27^th November 2015) showed L4/5 and L5/S1 disc desiccation. There were mild grade 1 L5/S1 lytic anterolisthesis. There was L4/5 central disc bulge and central annular fissure. There was right L5/S1 foraminal and posterolateral disc protrusion and fissure compressing on the exiting right LS and traversing right S1 nerve roots.

Mr Agnesi has right leg claudicant pain. For further evaluation, I had requested a repeat MRI lumbar spine and dynamic lumbar spine X-ray. I planned to review him after the above.[58]

[58]Exhibit P5, DCB 20-21.

98Mr Chan said he understood that the plaintiff’s right leg pain was to be further investigated to evaluate if he presented with a surgically reversible condition.[59]

[59]Exhibit P5, DCB 21.

99Mr Chan in his report dated 18 April 2018, that is, one month prior to the transport accident, noted the plaintiff’s presentation included lower back pain and right leg pain. MRI of the lumbar spine and dynamic lumbar spine X-ray of 13 February 2018 showed bilateral L5 pars defect with evidence of instability.  With lumbar forward flexion, there was 1 cm anterior listhesis. With lumbar extension, these changes resolved. There was moderate left and mild right-sided foraminal stenosis contacting the L5 nerve roots bilaterally. There was a small L5-S1 annular fissure.

100With regard to his mechanical back pain and right leg pain, Mr Chan noted that the plaintiff was to undergo further conservative treatment with Dr de Graff who had also referred him on to Dr Clayton Thomas, pain and rehabilitation physician, principally for his cervicogenic brachialgia.

101Mr Chan reported that the plaintiff had right upper limb pain and was experiencing new right shoulder and axilla pain that was associated with worsening pain involving his right arm, right forearm and his right medial three fingers.

102Mr Chan said that the plaintiff’s right shoulder X-ray and right shoulder ultrasound did not exhibit any acute abnormality. Upon lifting of the right shoulder, the plaintiff’s pain was expressed to become unbearable.

103Mr Chan considered that the plaintiff’s condition was likely to be chronic regional pain syndrome of the right upper limb in the context of previous right cervical brachialgia that had been treated by C4-C5 and C5-C6 ACDF.

104Mr Chan’s prognosis of the plaintiff’s condition was poor given the chronicity of his pain and in the context of previous surgery.

105Mr Chan reported that there was no current plan for future surgery, and the plaintiff was awaiting review with Dr Clayton Thomas, for further pain management.

106Mr Chan considered it unlikely that there would be long-term deterioration of the plaintiff’s condition.

107Mr Chan did not think that the plaintiff had a current capacity for his pre-injury work or for work generally given the extent of pain that he had described and his inability to participate in the work generally, however, with support and pain management with Dr Clayton Thomas, he thought there was a potential the plaintiff may be able to undertake some work in the future.

108Mr Chan said the plaintiff “does have significant pain and persistent pain and distress as a consequence of previous injury. The extent of pain continues to impact on the Mr Agnesi’s ability to participate in social and domestic lifestyle.”[60]

[60]Exhibit P5, DCB 25.

109Mr Chan in a letter dated 20 June 2018 and addressed to Dr Morales mentioned that the plaintiff had been involved in a car accident, that was followed by worsening neck pain and that his pre-existing right brachialgia had also become worse and there had been increased middle back pain.  The main concern the plaintiff expressed to him was worsening of his lower back pain together with bilateral leg pain.

110Mr Chan’s report dated 15 August 2018 referred to the MRI of 7 August 2018 that showed previous C4 to C6 anterior fusion. There was a mild-to-moderate foraminal stenoses at the C3-C4 and C6-C7 levels. There was multilevel thoracic spondylosis.  At the lumbar spine, there was a grade 1 L5-Sl lytic spondylolisthesis associated with a small central disc bulge with annular fissure and biforaminal narrowing but no significant neurocompression.  The plaintiff’s symptoms were neck pain, right upper-limb pain, interscapular pain and lower back pain. Neurosurgical intervention was not recommended.  Mr Chan also recommended that the plaintiff be referred to a psychiatrist.

111Mr Chan wrote a supplementary report dated 22 October 2019 at the request of the plaintiff’s solicitors. In it, he noted that the plaintiff had been reviewed by Dr Clayton Thomas and a ketamine infusion had been discussed, a procedure which Mr Chan agreed was appropriate.

112Mr Chan provided a diagnosis of the plaintiff’s spine sustained during his employment, as one of chronic regional pain syndrome of the right upper limb in the context of right cervical brachialgia treatment with C4-C5 and C5-C6 ACDF. He also said the plaintiff had mechanical axial lower back pain with underlying grade 1, L5-S1 lytic spondylolisthesis with biforaminal stenoses and dynamic instability.

113Mr Chan recorded the plaintiff’s symptoms as persistent neck pain, right upper limb pain and lower back pain and of having received ongoing pain management with Dr Thomas and Dr de Graaff. Mr Chan thought the plaintiff would require a ketamine infusion as had been suggested by both Dr Thomas and Dr de Graaff, along with ongoing psychiatric support from Dr Julie Wehbe.

114Given the prolonged nature, the intensity and the degree to which pain was affecting the plaintiff’s function, Mr Chan considered that his incapacity would continue for the foreseeable future.

115Mr Chan said that the plaintiff was likely to be precluded and restricted in employment or activities that involve bending, lifting, twisting, stooping, pushing, pulling, lifting, repetitive movement of the above, repetitive and prolonged use of the spine, overhead activities, kneeling, squatting, crouching and prolonged sitting, walking or standing and that such incapacity will continue for the foreseeable future.

116Mr Chan did not consider the plaintiff was able to perform his pre-injury duties and this was likely to be permanent and neither did he believe the plaintiff possessed a capacity to perform suitable employment, taking into account his incapacity, age, education, place of residence, skills and work experience and that such incapacity was permanent.

117Mr Chan reported that as a consequence of the plaintiff’s work injury, he was likely to be precluded or restricted in relation to social, domestic and recreational activities to a significant extent and that this would continue for the foreseeable future.

Dr Stephen de Graaff, Pain Specialist

118Dr de Graaff provided four reports dated 2 June 2017, 14 February 2018 and 20 April 2018 and 19 September 2018.[61]  The last report post-dated the motor vehicle accident.

[61]Exhibit P7, PCB 76-77, DCB 26-30.

119In his first report dated 2 June 2017, Dr de Graaff discussed the plaintiff’s neck and upper limb pain, and that an MRI had revealed severe foraminal stenosis from C3 down to C7, and he remarked that Mr Chan thought that it was likely that the plaintiff would progress to surgical decompression in the future.

120On 14 February 2018, some 3 months before the transport accident, in a letter to Mr Chan, Dr de Graaff noted the plaintiff’s dire situation of never being without pain, and that his neck and arm pain had deteriorated since undergoing a cervical spine injection on October 6, 2017, targeting the right C7 nerve root,[62] and also referred to the plaintiff’s low back pain ‘which you have been monitoring over a period of time.’[63]

[62]Exhibit P7, DCB 28.

[63]Exhibit D2, PCB 263; Exhibit P9, PCB 90.

121Commenting on an MRI of the plaintiff’s lumbar spine taken the previous day, Dr de Graaff reported that:

…on review, there has not been a dramatic change in the overall profile with severe lumbar disk degeneration at the L4-L5 and L5-S1 levels with some compromise of the right L5 and traversing S1 nerve root. In the past you have considered surgery for this situation and given that he continues to have significant mechanical back pain and neuropathic pain down to the toes and his right lower limb with associated numbness and sensory change, there may be a role for that.[64]

[64]        Exhibit P7, DCB 28.

122Dr de Graaff observed that pain management had not had any beneficial impact for the plaintiff.

123On 20 April 2018, Dr de Graaff referred the plaintiff to Dr Thomas for an opinion on the management of his back pain.

124In his report dated 19 September 2018, postdating the transport accident, Dr de Graaff said that since he had last seen the plaintiff he had been involved in the motor vehicle accident in which both his wife and son were injured and he had been left with “increased neck pain, shoulder pain, back pain and now bilateral leg pain. Previously there was principally right lower limb pain.”[65]

[65]        Exhibit P7, PCB 76.

125Dr de Graaff addressed the MRI’s of the plaintiff’s full spine that showed his previous anterior fusion at C4-C6 was intact, but there was foraminal stenosis at C3-C4 and C6-C7.

126Dr de Graaff said that the plaintiff had significant wear and tear of the L4-5 disc with a small bulge, but no significant neural compression.

127Dr de Graaff’s opinion was that as a result of the transport accident, the plaintiff’s functioning had deteriorated both mentally and physically and he believed that he would benefit from physiotherapy and that a referral to a psychiatrist or psychologist would be appropriate.

Dr Carmelo Morales, General Practitioner

128Dr Morales provided nine reports ranging in date from March 2018 to January 2024.[66]

[66]Exhibit P6, PCB 65-75, DCB 3-4, 9.

Pre Transport Accident

129Dr Morales in his report dated 27 March 2018, prior to the transport accident, summarised the plaintiff’s condition:

1. Mr Agnesi has issues of neck pain, right shoulder, right arm pain and left fingers paraesthesia, secondary to severe cervical spondylosis with bilateral C4-5, C5-6 severe foraminal stenosis.

2. Mr Agnesi has a long history of lumbar back pain and symptoms of nerve compression dating at least to December 1997. However following the same accident where a box hit his head and right shoulder, (19/03/2014), he has had a significant exacerbation of this pain.[67]

[67]Exhibit P6, DCB 3.

130Dr Morales recorded that the plaintiff complained of low back pain that was “different to his usual pain” he had experienced shortly after the work accident in 2014.[68]

[68]Exhibit P6, DCB 3.

131Dr Morales said that a recent MRI of the plaintiff’s lumbar spine revealed “bilateral L5 pars defects with anterolisthesis of L5 on S1 leading to moderate left and mild right neuroforaminal, canal narrowing with both exiting L5 nerve roots contacting disc. Small L5/S1 annular fissure present".[69]

[69]Ibid.

132Dr Morales considered that both conditions had not stabilised, and the plaintiff had also recently experienced a new extension of his right shoulder pain radiating into his right axillae and that neck and arm pain continued unabated.

133Dr Morales thought that the plaintiff’s condition would be prone to recurrent exacerbations and that his degenerative disease would worsen over time.  He did not regard the plaintiff as able to return to his pre injury duties and he considered that his capacity for future work was “very doubtful.”[70]

[70]        Ibid.

134He wrote that the plaintiff was experiencing daily pain which required opioid based analgesics.

135Dr Morales reported that the plaintiff had become very irritable and snappy with his family and he was not engaging in social activities.  He considered that the plaintiff was significantly depressed.

Post Transport Accident

136Subsequent to the transport accident of 19 May 2018, Dr Morales provided a report to the defendant insurer in relation to the work injury dated 13 June 2018, in which he diagnosed:

1. Severe cervical spondylosis with bilateral C4-5 C5-6 severe foraminal stenosis, he has severe neck, right shoulder, right arm pain along with paraesthesia of his thumb and other fingers.

2. Lumbar spondylolisthesis, (anterolisthesis of L5 on S1), with mild right L5 – S1 neuroforaminal stenosis and moderate left L5 - S, neuroforaminal stenosis causing left sided sciatic radiculopathy. He also has a small L5 – S1 disc annular fossae.[71]

[71]        Exhibit P6, DCB 9.

137In another of his reports related to the work injury and dated 11 July 2018,[72] Dr Morales commented that the plaintiff’s severe anxiety and depression was severely affecting his ability to manage his pain levels and was also impacting on his family relationship and general life.

[72]Exhibit P6, PCB 65.

138In his report dated 21 August 2019,[73] Dr Morales said that the plaintiff was continuing to suffer from chronic pain and severe depression.

[73]Exhibit P6, PCB 68 – 69.

139Dr Morales wrote that the plaintiff presented with severe cervical spondylosis with C4-5, C5-6 severe foraminal stenosis causing radiating pain into his upper limbs. He was continuing to experience major neck pain and left fingers paraesthesia. He had lumbar spondylosis and spondylosis at L5-S1.  He had bilateral L5 nerve irritation.

140Dr Morales said that the plaintiff’s work injury had caused a severe exacerbation of his underlying degenerative condition, both in his cervical and lumbar spine.  He had chronic neck, shoulder, arm pain and left hand paraesthesia.  He also had chronic low back pain radiating into his left leg and now also his right leg.  He described a numbness in his legs when sitting.

141Dr Morales said that the multiple treatment modalities for pain had only provided the plaintiff limited benefit. A ketamine infusion had also been discussed but the plaintiff was concerned about possible side effects based on conflicting advice he had obtained.

142Dr Morales reported it as highly probable that the plaintiff’s pain would never resolve and he was not capable of returning to his pre injury duties as a butcher. He could not see the plaintiff returning to any work and said that aside from the issue of pain, his psychological state would make it impossible to cope with work, with this also being likely to exist for the foreseeable future.

143Dr Morales reported that the plaintiff related that he was incapable of doing domestic duties and that recreational activities were equally difficult.

144Dr Morales said that the plaintiff’s pain had been persistent and severe and had prevented him from returning to his usual life style, rendered him an invalid, and triggered major depression which appeared to be engraved and his suffering had impacted his family, especially his wife.

145In his report dated 22 January 2020, Dr Morales wrote that the plaintiff had consulted him on 21 May 2018, two days after the transport accident.  The plaintiff described the incident and said that he had been “flung forward hitting the windscreen with his head. He had developed thoraco lumbar back pain after he was flung forward by the impact.”[74] The plaintiff described the development of paraesthesia in his right and left first and second fingers.  Dr Morales said that the pains the plaintiff had developed following the transport accident were:

·        Thoracic back pain, (mid spine)

·        Left leg pain and bilateral lower limb paraesthesia and an increase in pain when standing.[75]

[74]Exhibit P6, PCB 70.

[75]Ibid.

146Dr Morales wrote that the plaintiff had further complained that since the transport accident he has felt “weights” in his legs when walking.[76]  His neck pain and right arm radiculopathy had flared.

[76]Ibid.

147Dr Morales said that although the transport accident had “clearly” caused its own injuries, it was difficult to discern what they were from amongst the plaintiff’s other symptoms.

148Dr Morales believed that the plaintiff remained severely incapacitated by his cervical and lumbar spine problems, coupled with his severe depression.

149Dr Morales’ report dated 7 July 2021 elaborated on the effects on the plaintiff of the transport accident.[77]  He recorded that the plaintiff had felt a lot of pain in his thoracic and lumbar spine on impact.  On 21 May 2018, he had complained of neck, right shoulder, right arm and right upper chest pain. He had described paraesthesia in his right and left first and second digits and worsening thoraco lumbar back pain.

[77]Exhibit P6, PCB 71.

150Dr Morales said that an MRI of the cervical and lumbar spine taken in August 2018 mentioned a “small central disc protrusion at L4-5 and L5-S1”,[78] which was not mentioned in the February 2018 MRI, however, he did not consider that there was any major difference between the two scans.  

[78]Ibid.

151Dr Morales suggested that the transport accident had aggravated and exacerbated the plaintiff’s pre-existing spinal problems. He reported that the plaintiff’s symptoms that had worsened since the transport accident as follows:

(i)neck pain and referred arm pain were more severe;

(ii)increased frequency of headaches (some severe and with migrainous features);

(iii)worsening depression;

(iv)increased low back pain radiating into his legs; and

(v)worsening right leg pain.

152Dr Morales suggested that once the plaintiff’s depression lifted, he would be capable of a supervisor and/or a management role, but physical labour would not be possible.  He said that any return to work would need to be graduated and part time initially.

153Dr Morales assessed the plaintiff’s social, domestic and recreational activities as heavily reduced both by pain and very low mood, which he also thought very likely to be chronic/ long term.

154In his report dated 31 May 2023, Dr Morales said that the plaintiff had experienced a significant exacerbation of neck, right shoulder and right arm pain coupled with headaches, all comprising symptoms related to his severe cervical spondylosis along with which, he was continuing to suffer lumbar back pain with radiation into his legs.

155Dr Morales said that the motor accident had aggravated the plaintiff’s pre-existing problem, as opposed to there being no definite new injuries.

156Dr Morales referred to intractable neck pain, right shoulder, right scapular, right arm pain along with lumbar back pain and right sided sciatica and numbness in his legs and intermittent paraesthesia in the soles of his feet.

157He listed the plaintiff’s medications as:

(i)Endone 5mg 10mg o qid (orally 4 times a day);

(ii)Targin 15/7.5mg T nocte (twice at night);

(iii)Valium 5mg T o BD (twice orally daily); and

(iv)Paracetamol 500mg.

158Dr Morales reported that the plaintiff’s ability to:

(a)   Bend, lift, twist or stoop is severely limited by pain.

(b)   Pushing, pulling and lifting is similarly severely limited because of the severe pain this would cause.

(c)   Overhead activities are impossible because of neck and arm pain

(d)   Kneeling, squatting, crouching, prolonged sitting, walking, or standing are movements would all cause pain

(e)   Walking up inclines or down inclines aggravates the plaintiff’s back and leg pain

(f)    Using steps and ladders are impossible and potentially dangerous

(g)   Fine and manipulative use of his cervical and lumbar spine, right upper limb and bilateral lower limbs, and

(h)   Manual dexterity is impossible.

159Dr Morales wrote that the plaintiff’s social, domestic and recreational activities were heavily limited by pain. Increased physical activity is accompanied by exacerbations of major pain. His social activities were limited to short periods because of his need to sit / stand/ walk to relieve his pain.  He could not stay seated or standing for prolonged periods because of exacerbations of his pain and with pain causing limits to his domestic and recreational activities.

160Dr Morales thought the plaintiff was unable to carry out the physical requirements of his work in the meat industry and the incapacity would be indefinite but he would have the ability to supervise or do some bookwork for limited hours.

161Dr Morales said the plaintiff presented with spinal osteoarthritic changes that he believed would worsen over time. 

162In his report dated 30 January 2024, Dr Morales referred to the plaintiff’s C6-7 cervical spine surgery performed in April 2023. He said the plaintiff continued to suffer persisting pain but it had perhaps reduced in severity.

163The plaintiff continued to require Endone/ Targin for pain management.

Dr Clayton Thomas, Rehabilitation and Pain Management

164Dr Thomas saw the plaintiff and reported for the purposes of his work injury.  He prepared several reports postdating the transport accident but none of them mentioned it.

165Dr Thomas saw the plaintiff on 4 January 2019.[79]  He complained of severe right interscapular pain, pain down the right upper limb to the hand, weakness and dropping of objects in his right hand, lower back pain on the right-hand side, pain in the right leg, both anterior and posteriorly all the way to the foot. He said his pain was 10/10 at worst, 8/10 at best and 8/10 on average.

[79]Exhibit P8, PCB 78-80.

166Dr Thomas believed that the plaintiff suffered from a significant injury and that pain remained very problematic. He thought there was clearly a significant emotional dimension to the plaintiff’s presentation and psychiatric care was appropriate. He was not convinced that any treatment was likely to lessen the plaintiff’s disability and ideally he needed to engage simultaneously in both psychiatry and pain management.

167Dr Thomas reviewed the plaintiff in March and May 2019, and discussed with him a possible ketamine infusion and other options for pain management.

168Dr Thomas in a report dated 16 September 2019,[80] noted that the plaintiff’s level of incapacity seemed marked, and in the absence of improvement, was likely to continue into the foreseeable future.  There were many functional restrictions and he did not think the plaintiff possessed a work capacity.

[80]        Exhibit P8, PCB 81-84.

169Dr Thomas wrote that the plaintiff presented with high levels of pain, anxiety and distress on each occasion he had seen him and could benefit from a ketamine infusion.

Professor Richard Bittar, Neurosurgeon

170Ten reports from Professor Bittar were tendered.[81]  He treated the plaintiff and also provided medico legal reports for the purposes of the work injury and subsequently in response to the transport accident.

[81]Exhibit P9, PCB 94-116, DCB 36-44.

The First Report

171Professor Bittar’s first medico legal report to the plaintiff’s solicitors was dated 20 April 2018 and therefore pre dated the transport accident.[82]  He detailed a history of the plaintiff suffering from neck and upper limb complaints since the work injury in March 2014.

[82]Exhibit P9, DCB 36-44.

172Professor Bittar also mentioned a note by Mr Chan that the plaintiff had experienced ongoing issues of lower back pain since November 2015, when he woke up with significant back pain and coldness in the left leg. The plaintiff had told Mr Chan that since the work injury his right leg was more affected by pain than his left leg.

173The plaintiff reported suffering from intermittent lower back pain, which he experienced two to three times a day and that could last from one hour, up to three days at a time.  His back pain varied between aching, stabbing, and throbbing.  He reported it was sharp and whilst both sides were affected, it was more so on his right side.  The lower back pain had an average severity of 7-8/10 with a maximum severity of 10/10.  Lifting, pushing, pulling, coughing or sneezing, straining, walking, twisting, bending, standing and sitting exacerbated pain. The plaintiff said he could sit, walk or stand for up to 5-10 minutes before his pain became problematic.  Medications, heat packs, frequent postural changes and recumbency assisted with pain relief.  He also experienced intermittent leg pain 2-3 times per day that tended to occur at the same time as his back pain.  Both legs were affected with the right leg more severely.  His leg pain radiated down the back of his leg in to his calf and foot, particularly in to his great toe.  His leg pain had an average severity of 8/10 with a maximum severity of 10/10.  It had the same exacerbating and relieving factors as his lower back pain.

174Addressing the plaintiff’s neck pain, Professor Bittar noted that he suffered from constant neck pain which varied in character.  The plaintiff described the pain as sharp, dull, burning, throbbing, gnawing, stabbing and aching at times.  His neck pain radiated to the occipital region as well as in to his right shoulder and arm and in to his left retroscapular region.  The average severity of his neck pain was 9/10, with a maximum severity of 10/10.

175Professor Bittar said that the plaintiff’s neck pain was exacerbated by sitting, standing, repetitive or sudden neck movements, maintaining his neck in one position for prolonged periods, prolonged computer use or driving, forceful pushing or pulling, coughing and sneezing or straining, repetitive arm movements, using his arms above shoulder height as well as neck flexion, extension or rotation. The plaintiff could walk, sit, stand or use a computer for 5-10 minutes before his neck pain deteriorated.  He could lift only 1-2 kg before he experienced significant pain.  His neck pain improved with recumbency and medications, albeit only slightly.  His neck pain prevented him from undertaking significant reading and he had a great deal of difficulty concentrating.

176The plaintiff’s neck pain radiated in to his right arm.  His right arm pain was constant and similar in character and severity to his neck pain.  He experienced a lesser degree of pain in the left arm that radiated in to his biceps and triceps before radiating in to his forearm, wrist and hand. His entire hand was affected.  He had associated numbness and pins and needles in the same distribution as his right arm pain.

177He experienced headaches which occurred 3-4 times per week, typically lasting several hours each time.

178Professor Bittar wrote that overall the plaintiff’s symptoms, including his neck pain, arm pain, back pain and leg pain were deteriorating.

179Professor Bittar diagnosed the plaintiff with:

(a)   Aggravation of cervical spondylosis that had been treated surgically;

(b)   Right C7 radiculopathy secondary to foraminal stenosis;

(c)   Adjacent segment disease; and

(d)   Aggravation of lumbar spondylosis/spondylolisthesis.

180Professor Bittar believed that the work injury of 7 March 2014, was the significant contributing factor to the plaintiff’s plight and that his condition had not stabilised in the sense that his symptoms were worsening and were unlikely to improve in the foreseeable future.

181As a consequence of the work injury and impairment of the plaintiff’s neck (excluding any psychological or psychiatric condition), Professor Bittar did not believe that he had the capacity to perform his pre-injury duties or suitable employment, and that such incapacity was permanent.

182Professor Bittar considered that the plaintiff would be severely restricted in social, domestic and recreational activities and was clearly experiencing significant distress, suffering and anxiety as a result of his condition.

Updated Medical Report

183Professor Bittar provided an updated medical report dated 8 August 2019,[83] and therefore, a few months after the subject transport accident. He reiterated his conclusions expressed in his previous report, and he remained of the opinion that the conditions diagnosed were work related, and with the incident of 7 March 2014 being the significant contributing factor. No mention was made by Professor Bittar of the transport accident.

[83]        Exhibit P9, PCB 85-93.

184Professor Bittar’s prognosis included that the plaintiff was likely to suffer from significant pain and disability into the foreseeable future.

The Second Report

185On 3 September 2020 Professor Bittar reviewed the plaintiff via telehealth and provided a report.[84]  On this occasion, the history Professor Bittar related included the circumstances of the work injury and the transport accident.

[84]Exhibit P9, PCB 94-104.

186According to Professor Bittar, the plaintiff had noted a significant increase in neck pain and in his mid-and lower back pain immediately after the impact sustained in the motor vehicle accident.  The plaintiff told him that his lower back pain began to radiate into both legs, rather than simply into his right leg, and which Professor Bittar said was the case prior to the transport accident.

187Professor Bittar commented that in addition to ongoing neck pain and arm pain, and very significant lower back pain radiating into both legs, the plaintiff reported frequent headaches, which the plaintiff said had been minimal and infrequent prior to the transport accident and had occurred around once a month, and were of shorter duration and lower severity than he now suffered. Professor Bittar’s previous work injury related opinion recounted headaches that occurred 3-4 times per week, typically lasting several hours each time and in this report did not explain how more frequent or severe they had become since the transport accident.

188Professor Bittar related the plaintiff’s account that his lower back pain and bilateral leg pain were much more severe than prior to the transport accident, and he said that he considered it was an important consideration that the plaintiff’s left leg pain had only been present to a significant degree since the transport accident.

189Professor Bittar said that the plaintiff was experiencing a burning sensation in both legs and groins that had intensified over the past month.

190Professor Bittar wrote that the plaintiff had not been able to return to any type of work.

191Professor Bittar reported the plaintiff as presenting with the following symptoms:

(a)   Lower back pain. Constant lower back pain, equal in severity on both sides both sides and radiating into the mid-back region with an average severity of around 8/10, and a maximum severity of 10/10. The pain is exacerbated by a variety of factors, including bending, twisting, lifting more than very light objects, pushing, pulling, coughing, sneezing, straining, sitting for more than five minutes, standing for more than 10 minutes, and walking for more than around two minutes. His back pain improves with heat packs, medications, recumbency, and frequent postural changes. His lower back pain is significantly worse than it was prior to the transport accident with the plaintiff estimating it as around 70-80% worse than prior to the transport accident. That account by Professor Bittar is difficult to fathom as an aggravating set of effects from the transport accident, given that the description from Professor Bittar is almost identical with his previous work related injury report when he said that “His back pain varied between aching, stabbing, and throbbing.  He reported it was sharp and whilst both sides were affected, it was more so on his right side.  The lower back pain had an average severity of 7-8/10 with a maximum severity of 10/10.  Lifting, pushing, pulling, coughing or sneezing, straining, walking, twisting, bending, standing and sitting exacerbated pain”. The plaintiff said he could sit, walk or stand for up to 5-10 minutes before his pain became problematic”.

(b)   Bilateral leg pain. Constant pain radiating into both legs, associated with his lower back pain. His leg pain is generally "heavy" in nature, and when it flares up, it is "burning." The pain radiates into his groins, and through his buttocks, into his hamstrings, calves, and feet. Both legs are affected equally. The leg pain has an average severity of 8/10, with a maximum severity of 10/10. It has similar exacerbating and relieving factors as his lower back pain. He reported his leg pain being at least twice as severe as it was prior to the subject transport accident.

(c)   Neck pain. Constant neck pain, of varying character that was sharp, dull, burning, throbbing, gnawing, stabbing, and at times aching. His neck pain radiated to the occipital region as well as in to his right shoulder and arm and into his left retroscapular region. The plaintiff described the average severity of his neck pain as 6/10 to 7/10, with a maximum severity of10/10. He said his neck pain is exacerbated by sitting, standing, repetitive or sudden neck movements, maintaining his neck in one position for prolonged periods, prolonged computer use or driving, forceful pushing or pulling, coughing and sneezing or straining, repetitive arm movements, using his arms above shoulder height as well as neck flexion, extension or rotation. He said he could walk, sit, stand, or use a computer for 10 minutes before his neck pain deteriorates. He said he could lift only 1-2 kg before he experiences significant pain. The neck pain improves with recumbency and medications, albeit only slightly. He said he is prevented from undertaking significant reading, and he has a great deal of difficulty concentrating because of neck pain.

(d)   Right arm pain. His neck pain radiates in to his right arm. His right arm pain is constant and is similar in character and severity to his neck pain. He experiences a lesser degree of pain in the left arm. This pain radiates into his biceps and triceps before radiating into his forearm, wrist, and hand. His entire hand is affected. He has associated numbness and pins and needles in the same distribution as his right arm pain. His right arm pain has an average severity of 6/10, with a maximum severity of 8/10.

He reports that his neck pain and arm pain are of similar severity to prior to the transport accident.

(e)   Headaches. He continues to experience headaches, which occur once or twice a week, typically lasting 8-10 hours on each occasion. His headaches generally occur when his neck pain flares up. They have an average severity of 7/10 to 8/10 and are associated with nausea (he takes Ondansetron in order to control this symptom). He reports that his headaches were much less severe than they were prior to the subject transport accident and were much less frequent.

192Professor Bittar commented that the effects on the plaintiff of his symptoms included that his social life was severely disrupted due to a combination of sitting and standing intolerance, severity of pain, medication side effects, and concerns about re-injury.

193Professor Bittar reported that the plaintiff’s recreational activities were also severely restricted.  He previously enjoyed playing the guitar and accordion, as well as riding his bike but had been unable to participate in them since the injury at work. Professor Bittar did not report that these activities were made worse or reduced further by the transport accident.

194His domestic activities were also said to be severely restricted, including his ability to shop, clean, cook, or garden. Professor Bittar did not report that these activities were made worse or reduced further by the transport accident.

195Professor Bittar classified the plaintiff’s quality of life as being overall severely diminished. His sleep was also severely disrupted by pain. However there was no attempt by Professor Bittar to explain the extent or degree or manner in which the same had altered for the worse since the transport accident.

196Professor Bittar expressed the opinion that the plaintiff’s condition deteriorated following the transport accident on 19 May 2018.  The effects of his symptoms on his social, domestic, and recreational activities had increased significantly, and his quality of life had diminished even further. Unfortunately and unhelpfully, Professor Bittar did not justify that opinion.

197Professor Bittar stated that as a result of the transport accident, the plaintiff had suffered:

(a)   Cervicogenic headaches; and

(b)   Aggravation of lumbar spondylosis/spondylolisthesis.

198In Professor Bittar’s opinion, the plaintiff’s cervicogenic headaches and aggravation of lumbar spondylosis/spondylolisthesis were a direct consequence of the transport accident in 2018.

199Professor Bittar assessed the plaintiff’s neck pain and right arm pain as due to his previous work-related injury in 2014.

200Professor Bittar said that the plaintiff did have work-related cervical spine pathology, but this was aggravated in the transport accident leaving him with more severe headaches.

201Professor Bittar asserted an opinion that the plaintiff’s significantly symptomatic lumbar spondylosis, which was related to his previous work-related injury, had become more symptomatic and disabling for the plaintiff as a result of the subject transport accident.[85]

[85]Exhibit P9, PCB 101.

202Professor Bittar said that the plaintiff had already been totally incapacitated for employment due to his pre-existing work-related injuries and that the transport injuries had not had any significant impact on the chance of him returning to any type of work.

203Professor Bittar expressed the opinion that the transport accident had significantly increased the plaintiff’s pain levels and resulted in a diminished quality of life. His ability to socialise had diminished significantly since the subject transport accident, as had his ability to undertake any types of physical activities with his wife and children. The transport accident had also had a detrimental impact on his ability to undertake bending, lifting, repetitive and/or prolonged use of the lower back, as well as kneeling, squatting, crouching, prolonged sitting, walking, or standing, and overhead activities. As I have already mentioned, none of these opinions were the subject of explanation.

204In Professor Bittar’s opinion, the plaintiff’s incapacities would continue for the foreseeable future.

205Professor Bittar also reported that the plaintiff’s personal care activities had been impacted by the transport accident and that prior to the transport accident, he would occasionally require assistance from his wife in showering and dressing, but that such assistance was much more frequently required due to worsening of his symptoms.

206Professor Bittar reported that as a consequence of the transport accident related injuries, the plaintiff is more restricted in relation to social, domestic, and recreational activities than he was previously and he said it seemed clear to him that the plaintiff was experiencing considerably more pain, suffering, distress, and anxiety as a result of his transport accident injuries. I must say, I found Professor Bittar’s impressions untethered from any assistance to the reader of the earlier reporting in explaining how he arrived at these conclusions.

207Professor Bittar said that in his opinion, the plaintiff’s significantly symptomatic lumbar spondylosis, which was related to his previous work related injury, had become more symptomatic and disabling as a result of the transport accident.

Report dated 14 August 2021

208In his report dated 14 August 2021[86] Professor Bittar commented on the report from Mr Dooley, dated 15 February 2021,[87] who diagnosed the plaintiff as having only suffered a “soft tissue injury” as a result of the motor vehicle accident. Professor Bittar disagreed with Mr Dooley’s diagnosis, because, in his view, soft tissue injuries do not typically cause persistent pain, but rather pain which improves and usually resolves within six to eight weeks.  The principal reason for him disagreeing with Mr Dooley, however, was that not only did the plaintiff’s back pain worsen after the transport accident, but so too did his leg pain. Professor Bittar noted that leg pain is unusual following a soft tissue injury to the lower back, and it was clear that the plaintiff had reported worsening lower back pain in the early stages after the transport accident, thereby calling into question Mr Dooley’s diagnosis and reinforcing his own opinion that the most likely diagnosis is aggravation of lumbar spondylosis.

[86]Exhibit P9, PCB 105-107.

[87]Exhibit D2, DCB 45-51.

Report dated 30 August 2021

209In his report dated 30 August 2021,[88] Professor Bittar reviewed the plaintiff’s MRI scan performed from Epworth Hospital, that he said demonstrated a grade 1 anterolisthesis at L5-S1 together with disc bulging and loss of disc space height at L4-5.

[88]Exhibit P9, PCB 109.

210Dr Bittar remained of the opinion expressed in his 3 September 2020 report, that the plaintiff may prove to be a candidate for an L4-5 and L5-S1 anterior lumbar interbody fusion and that he intended to correspond with the TAC for approval. Approval would not prove forthcoming.

The Later Reports and Letters

Letter to Dr Morales dated 8 August 2022

211In a letter dated 8 August 2022 and addressed to Dr Morales,[89]  Professor Bittar reported that he did not think that the plaintiff had recovered from his transport accident related injury but observed that the plaintiff was reluctant to have a spinal fusion. Professor Bittar also wrote that the plaintiff’s main issue is neck pain radiating into his right shoulder and down his right arm.  He said an MRI he arranged of the plaintiff’s cervical spine demonstrated a degree of foraminal narrowing on the right at C5-6, and a lesser degree of foraminal narrowing at C6-7.

[89]Ibid.

Report dated 24 October 2022

212On 24 October 2022,[90] Professor Bittar again reported that the plaintiff continued to be troubled by neck pain radiating into his right arm, forearm and hand, and that there was associated lower back pain radiating into his right leg.

[90]        Exhibit P9, PCB 110-111.

213On examination Professor Bittar noted that the plaintiff presented with a relatively normal gait. No limp for example was observed. Neurological examination did not reveal evidence of radiculopathy or myelopathy.

Letter to Dr Morales 2 February 2023

214In a letter dated 2 February 2023 to Dr Morales,[91] Professor Bittar confirmed that he was to perform a C6-7 anterior cervical decompression and fusion, which he said was “absolutely related to the transport accident.”[92]

[91]        Exhibit P9, PCB 112.

[92]        Ibid.

215Professor Bittar wrote that the plaintiff had been making a good recovery from his previous C4-5 and C5-6 anterior cervical decompression and fusion that Mr Chan had performed, when he suffered the transport accident and his condition deteriorated immediately.  Professor Bittar said he believed that the deterioration to be almost certainly due to injury to the C6-7 level, the level below the plaintiff’s previous fusion and which state of affairs, supported his opinion that the requirement for a C6-7 anterior cervical decompression and fusion was transport accident related.

Report dated 7 July 2023

216Professor Bittar furnished a supplementary report dated 7 July 2023.[93] He explained that he had recently performed the C6-7 fusion and he reported that the plaintiff had ongoing significant neck pain that he attributed to the transport accident injury.

[93]Exhibit P9, PCB 113-114.

217Professor Bittar considered that in light of the plaintiff’s failure to experience a significant improvement in his condition as a result of cervical spine surgery, he was likely to remain totally incapacitated for suitable employment into the foreseeable future. In his opinion, the plaintiff’s ongoing incapacity for employment was now properly called to be assessed as a consequence of the transport accident related injury rather than to his other injuries or any unrelated conditions.

Report dated 21 February 2024

218By way of report dated 21 February 2024 Professor Bittar said that having reviewed the plaintiff, and despite there having been some improvement in his arm symptoms, he had significant ongoing neck pain and was seeing a physiotherapist.[94]

[94]        Exhibit P9, PCB 115-116.

219Professor Bittar considered that “a lot” of the plaintiff’s shoulder issues were related to the sternoclavicular joint.[95]  He said that Dr Shah, orthopaedic surgeon, had suggested the plaintiff see a thoracic surgeon.

[95]        Exhibit P9, PCB 116.

220Commenting on the report of Mr Dooley which Professor Bittar incorrectly dated as 8 February 2012 as opposed to 8 February 2024, he said he disagreed with Mr Dooley that "Mr Agnesi's psychological condition dominates his clinical presentation."[96] Professor Bittar thought that although the plaintiff might have psychological consequences as a result of his injury, his clinical presentation was consistent with organic injury as opposed to a predominantly psychological condition although he recognised that an assessment of an individual psychological condition was beyond his area of expertise or that of an orthopaedic surgeon or neurosurgeon. Professor Bittar wrote that the plaintiff had reported some improvement in his neck related conditions, such as would be expected following his surgery and postoperative recovery, and thus was a contraindication to Mr Dooley's suggestion that psychological factors dominated the plaintiff’s clinical presentation. Professor Bittar also commented that the plaintiff’s reporting of pain around the sternoclavicular joint was consistent with findings on imaging as well as on clinical findings.

[176]Exhibit P9, PCB 94.

441A further argument relied on by Mr Jens, is the apparent failure by the plaintiff to have referred at all to the transport accident to some medico legal practitioners during the currency of his work injury litigation and at the medical examinations he underwent related to it. The plaintiff ‘s evidence was that he thought he would have said so, despite the absence of reference in some reports. In my judgment, it is more probable than not, that had the plaintiff mentioned the transport accident,  it would have been included by the author even if, the plaintiff’s attendance had been as part of the management of his work injury and work claim.

442It is instructive to consider the evidence in support of this argument  upon which the defendant relied.

443Professor Bittar’s report dated 20 April 2018 to the plaintiff’s solicitors when   addressing the attribution of symptomology in the context of the work injuries said:

Alberto Agnesi is a 42-year-old right handed butcher. He has not worked since June 29, 2016 at which time he was working modified duties for approximately twelve hours per week. He ceased work due to impending cervical spine surgery and has been unable to return to work post-operatively. He complains of neck pain radiating in to his right arm, as well as lower back pain.[177]

[177]Exhibit P9, PCB 36.

444Professor Bittar went on to say:

He commenced work with Nino's and Joe's Meats Pty Ltd as an apprentice after leaving school during Year 12 in 1993. He completed his apprenticeship and remained with the same employer. He has experienced lower back pain during the course of his work as a butcher and had not experienced any back pain prior to commencing work with Nino's and Joe's Meats.[178]

[178]Ibid.

445Professor Bittar addressed the state of the plaintiff’s back and said:

He complains of lower back pain and whilst I note that you have specifically referred to his neck in your letter of instructions, I will include his lower back related symptoms for the sake of completeness. His lower back pain is intermittent and he tends to experience this 2-3 times a day. Each episode of back pain is of variable duration, lasting from one hour up to three days at a time. His back pain varies in character between aching, stabbing, throbbing and sharp. Both sides are affected but the right side is more severely affected. His lower back pain has an average severity of 7-8/10 with a maximum severity of 10/10. It is exacerbated by lifting, pushing, pulling, coughing or sneezing, straining, walking, twisting, bending, standing and sitting. He can sit, walk or stand for up to 5-10 minutes before his pain becomes problematic. His back pain improves with medications, heat packs, frequent postural changes and recumbency.[179]

[179]Exhibit P9, PCB 39.

446Professor Bittar also said:

Overall his symptoms are deteriorating (including his neck pain, arm pain, back pain and leg pain).[180]

[180]Ibid.

447Professor Bittar addressed the balance of the plaintiff’s presenting symptoms and said:

…He experiences intermittent leg pain 2-3 times per day and this tends to occur at the same time as his back pain. Both legs are affected with his right leg being more severely affected. His leg pain radiates down the back of his leg in to his calf and foot, particularly in to his great toe. His leg pain also varies in character and is described as stabbing, aching, gnawing, throbbing and sharp at times. His leg pain has an average severity of 8/10 with a maximum severity of 10/10. It has the same exacerbating and relieving factors as his lower back pain.

He experiences constant neck pain which varies in character. He describes this as sharp, dull, burning, throbbing, gnawing, stabbing and aching at times. His neck pain radiates to the occipital region as well as in to his right shoulder and arm and in to his left retroscapular region. The average severity of his neck pain is 9/10 with a maximum severity of 10/10.

His neck pain is exacerbated by sitting, standing, repetitive or sudden neck movements, maintaining his neck in one position for prolonged periods, prolonged computer use or driving, forceful pushing or pulling, coughing and sneezing or straining, repetitive arm movements, using his arms above shoulder height as well as neck flexion, extension or rotation. He can walk, sit, stand or use a computer for 5-10 minutes before his neck pain deteriorates. He can lift only 1-2 kg before he experiences significant pain. His neck pain improves with recumbency and medications, albeit only slightly. His neck pain prevents him from undertaking significant reading and he has a great deal of difficulty concentrating.

His neck pain radiates in to his right arm. His right arm pain is constant and is similar in character and severity to his neck pain. He experiences a lesser degree of pain in the left arm. This pain radiates in to his biceps and triceps before radiating in to his forearm, wrist and hand. His entire hand is affected. He has associated numbness and pins and needles in the same distribution as his right arm pain.

He also experiences headaches which occur 3-4 times per week, typically lasting several hours each time. His headaches do not tend to occur when his neck pain flares-up.[181]

[181]      Ibid.

448Commenting on how the plaintiff had been affected in varied aspects of his life, Professor Bittar reported that:

His social life is severely disrupted due to a combination of sitting and standing intolerance, severity of pain, medication side effects and concerns about re-injury.

His recreational activities are severely restricted. He previously enjoyed playing the guitar and accordion, as well as riding his bike. He is unable to participate in these activities since the injury at work.

His domestic activities are also severely restricted, including his ability to shop, clean, cook or garden.

Overall his quality of life is severely diminished.

His sleep is also severely disrupted by pain.[182]

[182]Ibid.

449Professor Bittar the offered the following diagnosis:

1.Aggravation of cervical spondylosis which has been treated surgically.

2.Right C7 radiculopathy secondary to foraminal stenosis.

3.Adjacent segment disease.

4.Aggravation of lumbar spondylosis/spondylolisthesis[183]

[183]      Exhibit P9, PCB 41.

450Lastly, Professor Bittar assessed the plaintiff as permanently incapacitated for any work and with the incapacity being permanent, and that having undergone a two level fusion, he believed that the plaintiff “is likely to experience worsening degenerative changes at the levels adjacent to that fusion. In my opinion, such changes are currently symptomatic.”[184]

[184]      Exhibit P9, PCB 43.

451Ms Wehbe, the plaintiff’s treating psychiatrist, in her report dated 16 October 2019 made for the purposes of the work injury referred to the motor vehicle accident,[185] but Ms Wehbe said that according to the plaintiff the effects of it had been to his wife and on her  reduced capacity because of it to care for him.

[185]      Exhibit P10, PCB 117-123.

452In June 2018 Dr Horsley took a history that included the occurrence of the transport accident and of the plaintiff having said “that his neck pain initially increased but settled back to a stable level.”  However, she then said, “His back has been worse since the accident. There has been no change in treatment but he has been recently assessed by Mr. Chan who has arranged for a follow-up MRI of his cervical spine, thoracic and lumbar spine.”[186]

[186]      Exhibit P13, PCB 135.

453Dr Horsely reported that:

Mr. Agnesi states that prior to the recent motor vehicle accident, he experienced intermittent back pain that varied on the visual analogue scale from 4 out of 10, up to 10 out of 10. Back pain could last from a couple of hours over one day, up to lasting for a couple of days. It was associated with right leg pain, which radiated posterolaterally down to the dorsum of the right foot. He could experience pain going through to the sole of the foot like a knife. He states that the pain in his right leg was also similar to his back, it varied on the visual analogue scale from 4 out of 10 up to 1 0 out of 10. He states that there was paresthesiae throughout the whole of the right leg.

Since the motor vehicle accident, four to five weeks ago, he states that the discomfort is now 8 to 10 out of 10 on the visual analogue scale and he now experiences, in addition to right leg pain, 'whole left leg coldness and numbness'. There is no specific pain. This is on a chronic basis.[187]

[187]Exhibit P13, PCB 140.

454Dr Horsely addressed diagnoses and said:

·     Mr. Agnesi presents with ongoing mechanical back pain on a background of preexisting lumbar spondylosis - spondylolisthesis. On MRI, he has an annular fissure at L5/S1 which is likely to be an ongoing pain generator.

·     His presentation is further complicated by a motor vehicle accident four to five weeks ago. Clinically, he has a mildly positive left sided slump test. I note that Mr. Chan has organised a follow-up MRI of his cervical, thoracic and lumbar spine and will review him in due course once the investigations proceed.[188]

[188]Exhibit P13, PCB 145.

455In her reassessment of the plaintiff dated 13 August 2019,[189] Dr Horsely reported on the plaintiff’s symptoms in the context of the work injury claim. She also referred to the transport accident. She said:

Mr. Agnesi experiences chronic neck pain. It worsened post car accident, but has settled back to his post-surgical level.

…

[189]      Exhibit P13, PCB 147-157.

Since the motor vehicle accident in May 2018, Mr. Agnesi's chronic low back pain has worsened. He states that the pain varies on the visual analogue scale from 5 out of 10, up to 10+ out of 10. It does 'come and go', however. It occurs every couple of weeks. It can last for three to four days. The longest it has been in place, is about ten days. He also experiences right leg pain when he experiences back pain; it radiates posterolaterally to the dorsum of the right foot. His leg pain varies from 4 up to 1 0 out of 10. He can experience paresthesiae throughout the whole of the right leg when this occurs.[190]

[190]      Exhibit P13, PCB 150-151.

456Mr Doig’s report dated 17 September 2019,[191] referred to the plaintiff’s account of the transport accident as essentially a  temporary exacerbation:

He said that this aggravated his neck and his back, but only for a short period of time and then it settled back to what it had been prior to that motor vehicle accident. He said that that did not have any significant long lasting effect on his current situation.[192]

[191]Exhibit P12, PCB 128-130.

[192]Exhibit P12, PCB 128.

457Mr Doig’s next report dated 11 December 2020,[193] after addressing the history he obtained from the plaintiff of the effects of the transport accident, endeavoured to differentiate them from the  effects on the plaintiff of the previous impairments.. Mr Doig reported as follows:

My assessment on this gentleman is essentially unchanged. He states that he had a large heavy box fall upon his head whilst he was descending a ladder at work on 7/3/15. He developed right-sided neck pain and continued to have ongoing neck pain radiating down the right arm as a result of this. He had surgery for this which has not been particularly successful in relieving his ongoing pain. He stated that he developed some low back pain as well although that appeared to come on sometime after the initial incident. He was then involved in a motor vehicle accident which he states significantly aggravated his back in particular and to a lesser extent, to his neck.

In my first report I noted that he had complained of back pain all the way through from the first accident even though I had been asked to specifically assess him as far as his neck was concerned. I note that there was an MRI scan of his back done 23/6/14 which indicated there were bilateral LS Pars defects and some spondylolisthesis at L5-S 1. I note that there was a further MRI scan done of his back dated 8/8/18 which shows L4-5 disc dessication with bilateral chronic Pars defects at L5-S1 and some narrowing of the disc space with a minimal Grade 1 anterolisthesis present. The comment on this is that there is no evidence of recent traumatic injury and that there was spondylosis in the lumbar spine. There was also an MRI of the cervical spine done at that same stage after the motor vehicle accident, which once again indicated that there was no evidence of a recent traumatic injury and that there was a consolidated C4-C6 anterior fusion without stenosis at that level. However they did note that there was moderate foraminal stenosis at C3-4 on the right side and at C4-5 and CS-6 on the left side. There was moderate foraminal stenosis bilaterally at C6-7.

As a consequence of that, when considering the radiology it does not appear that there was a significant change with the exception of course of the cervical fusion done from the early radiological signs and as a consequence of that I consider that the motor vehicle accident has caused an aggravation of the pre-existing significantly symptomatic cervical and lumbar spondylosis. The radiological findings do not demonstrate a significant aggravation of the preexisting condition to both the cervical and lumbar spine. The disc bulge noted on the MRI scan of 13/2/18 at L4-5 indicates that there was some mild central canal narrowing and on the MRI scan from 8/8/18 that again indicates a small posterior disc bulge at L4-5. The chronic Pars defects are noted on both and therefore the radiology does not go along with a significant aggravation of radiological findings. This does not mean that he has not aggravated his lower back and cervical spine. I consider the collision did exacerbate his medical condition and the injuries.

As far as his present symptoms and treatment are concerned, he is continuing to complain of ongoing pain and discomfort present both in the cervical spine and the low back with pain radiating down the right upper limb and pain radiating to both legs. He does not have hard focal neurological signs that go along with this.

As a result of the transport accident injuries, I consider he will be restricted in employment activities involving lifting, bending, pushing, pulling or carrying, kneeling squatting or crouching, or prolonged sitting, walking or standing, to a mild to moderate extent. The reason it is mild to moderate is that he was already significantly prevented in doing those activities to a large extent because of the previous injury.

As a consequence of the transport accident-related injuries, he does not have the capacity to perform suitable employment at this stage. However again, this is markedly affected by the previous injury particularly to the cervical and to a lesser extent, to the lumbar spine.

As a consequence of the transport accident injury he is restricted in his social, domestic and recreational activities. He said the transport accident affected his walking, bending and lifting capacity compared to what it was like before the motor vehicle accident. He said the pain was radiating down his right leg beforehand and he says it now radiates down both legs and therefore it has aggravated him quite considerably. He states this has caused him considerable pain and that is consistent with the situation. The treatment here is very conservative. I can see no indication for further surgery as far as he is concerned particularly from the way that he presents today.[194]

[193]Exhibit P12, PCB 131-133.

[194]      Exhibit P12, PCB 132-133.

458It seems to me, that Mr Doig was endeavouring to report on the vexed situation he was confronted by of the plaintiff who had presented to him with effects of his already injured spine caused by the work injury, but who since the transport injury and because of it, was expressing a worsening of pain that further impeded his functional and domestic and recreational life.

459Mr Doig then assessed the plaintiff’s ability to undertake employment activities from the transport accident as being “mild to moderate” because he was already “significantly” prevented in performing  them because of the 2014 work injury.  As to suitable employment, Mr Doig made a similar observation that the plaintiff’s capacity was markedly affected by the work injury, particularly to the cervical and to a lesser extent, the lumbar spine. Addressing social, domestic and recreational aspects of the plaintiff’s life, Mr Doig related that the plaintiff said that there had been an adverse effect since the accident but without any exposition of what this entailed, save to say that the plaintiff related to Mr Doig that pain had radiated down his right leg before the transport accident, and it was now radiating down both legs and this aggravated him quite considerably.

460I consider it is a relevant fact in the assessment of the seriousness of the aggravation injury as a result of the transport accident, that although Mr Doig did not envisage further surgical intervention when he penned his report, that state of affairs was overtaken by the fusion surgery Professor Bittar performed in April 2023. As I have said, I am satisfied and I accept Professor Bittar’s opinion that the surgery he performed was because of the effects caused to the plaintiff by the transport accident.

461To the criticisms made by Mr Jens of the reporting by Professor Bittar, Mr Ingram’s response was that up to the date of his reporting in February 2018, and therefore, before the transport accident in May 2018, Professor Bittar applied his expertise to the work injury and, therefore, the history he obtained should be understood with that specific claim in mind.

462In April 2018, before the transport accident, Professor Bittar expressed a very pessimistic prognosis for the plaintiff’s cervical and lumbar spines, and indicated that the plaintiff’s symptoms were worsening, and were likely to continue to worsen.

463In his 8 August 2019 report,[195] written some 15 months after the transport accident, Professor Bittar did not refer to it, and by and large, he confirmed the opinion he had previously expressed of the plaintiff’s work injuries and their consequences. In reporting on the plaintiff’s symptoms and which  Professor Bittar continued to attribute to the work injury, he wrote:

He complains of intermittent lower back pain which occurs several times per day, sometimes lasting one hour but sometimes lasting several days at a time. His back pain varies in character and the right side is more severely affected than his left. The average severity of his back pain is around 4/10 with a maximum severity of 10/10. It is exacerbated by a variety of factors including lifting, pushing, pulling, coughing, sneezing, straining, walking, twisting, bending, sitting and standing. He can sit, stand or walk for up to around 15 minutes before his lower back pain becomes problematic. His back pain improves with heat packs, medications, recumbency and frequent postural changes.

He experiences intermittent pain radiating into his legs, and his leg pain occurs at the same time as his back pain. His right leg is more severely affected than his left. His leg pain radiates through his buttock into his hamstrings, calf and foot. His leg pain also varies in character and has an average severity of 7/10 with a maximum severity of 10/10. It has similar exacerbating and relieving factors as his lower back pain.

He experiences constant neck pain which varies in character. He describes this as sharp, dull, burning, throbbing, gnawing, stabbing and aching at times. His neck pain radiates to the occipital region as well as in to his right shoulder and arm and in to his left retroscapular region. The average severity of his neck pain is 9/10 with a maximum severity of 10/10.

His neck pain is exacerbated by sitting, standing, repetitive or sudden neck movements, maintaining his neck in one position for prolonged periods, prolonged computer use or driving, forceful pushing or pulling, coughing and sneezing or straining, repetitive arm movements, using his arms above shoulder height as well as neck flexion, extension or rotation. He can walk, sit, stand or use a computer for 5-10 minutes before his neck pain deteriorates. He can lift only 1-2 kg before he experiences significant pain. His neck pain improves with recumbency and medications, albeit only slightly. His neck pain prevents him from undertaking significant reading and he has a great deal of difficulty concentrating.

His neck pain radiates in to his right arm. His right arm pain is constant and is similar in character and severity to his neck pain. He experiences a lesser degree of pain in the left arm. This pain radiates in to his biceps and triceps before radiating in to his forearm, wrist and hand. His entire hand is affected. He has associated numbness and pins and needles in the same distribution as his right arm pain. His right arm pain has an average severity of 6-7/10 with a maximum severity of 10/10.

He also experiences headaches which occur once or twice a week, typically lasting eight to nine hours each time. His headaches tend to occur when his neck pain flares-up. His headaches have become more severe over the past 12 months.[196]

[195]Exhibit P9, PCB 85-93.

[196]Exhibit P9, PCB 88.

464Professor Bittar summarised the effects on the plaintiff of his presenting symptoms and said:

His social life is severely disrupted due to a combination of sitting and standing intolerance, severity of pain, medication side effects and concerns about re-injury.

His recreational activities are severely restricted. He previously enjoyed playing the guitar and accordion, as well as riding his bike. He is unable to participate in these activities since the injury at work.

His domestic activities are also severely restricted, including his ability to shop, clean, cook or garden.

Overall his quality of life is severely diminished.

His sleep is also severely disrupted by pain.[197]

[197]Exhibit P9, PCB 89.

465Professor Bittar excluded the capacity for employment of any sort on the plaintiff’s part.  

466The singular attribution of the work injury that Professor Bittar gave to plaintiff’s presenting symptomology changed decidedly when he was requested by the plaintiff’s solicitors to report on the transport injury, which he did on 3 September 2020.  He wrote as follows:

His right arm pain began to deteriorate in around March 2018. It continued to deteriorate following the subject transport accident (see below); however this deterioration subsequently stabilised and returned to its pre- transport accident level.

He continued to see Rehabilitation Specialist Dr Stephen De Graaff and underwent a pain management program.

Prior to the subject transport accident, his lower back pain was associated with pain in the right leg. He was not experiencing any significant left leg pain prior to the subject transport accident.[198]

[198]Exhibit P9, PCB 96.

467Professor Bittar provided a more detailed account of the effects on the plaintiff of the transport injury in his report to the plaintiff’s solicitors dated 14 August 2021.[199]  In this report, Professor Bittar addressed the medical opinion from Mr Dooley dated 15 February 2021, who had questioned the existence of worsening lower leg pain in the plaintiff following the transport accident because, inter alia, the plaintiff had not mentioned the transport accident to him on the two occasions he had reviewed him. Professor Bittar speculated why it might have been that the plaintiff did not mention the accident to Mr Dooley.  He suggested that Mr Dooley may have been concentrating on the previous work-related injury, hence the lack of mention by him of the transport accident or perhaps Mr Dooley may not have recorded information that was given to him by the plaintiff.  Mr Jens, to coin a phrase, contended that it was ‘a bit rich’ of Professor Bittar to rationalise the omissions in Mr Dooley’s reporting of the accident by laying them at his feet and not with the plaintiff, when some of Professor Bittar’s own post-accident reporting omitted mention of the transport accident.  It is certainly the case that Professor Bittar did not address or explain the absence in his earlier reporting that post-dated the accident of its occurrence.   

[199]Exhibit P9, PCB 105-107.

468However, and despite earlier omissions of reference to the transport accident, Professor Bittar mentioned that the plaintiff had presented to Mr Chan on 20 June 2018, complaining of worsening lower back (and neck) pain following the transport accident, which Professor Bittar correctly identified was contemporaneous evidence that the transport accident was associated with worsening of the plaintiff’s lower back pain. Mr Chan had also sent the plaintiff for an MRI scan of the whole spine, including the cervical and lumbar spines, on 8 August 2018. Professor Bittar observed that the clinical notes on that radiology report included “…recent MVA. Worsening neck pain, right brachialgia, back pain, bilateral leg pain and lower back pain”.[200]

[200]Exhibit P9, PCB 106.

469Despite Mr Jens submitting that I should be cautious in acting on the plaintiff’s evidence, the defendant did not directly challenge the plaintiff’s honesty.  In assessing the plaintiff’s reliability, I have considered that the transport accident was only mentioned at all by the plaintiff after the release for the work injury was executed. However, I do not know in every instance what the plaintiff’s solicitors in the work case included or omitted in the history and instructions that accompanied requests for medico legal examinations sent after May 2018, and I am reluctant to distil from the omission in some written reports of the transport accident during the currency of the work injury, a deliberate obfuscation or dishonesty by omission in  order to enhance and  not distract from the work injury claim. I accept the plaintiff gave truthful evidence.  

470In any event, and ultimately, the issue is less why the transport accident was not mentioned in the course of the work injury medical examinations, than whether the injury caused by transport accident is an aggravation that has caused a serious injury to the spine.  In arriving at my finding on that issue, the matter of the plaintiff’s financial detriment as well as the surgery performed by Professor Bittar are relevant considerations.

471On the question of the plaintiff’s employment status, and financial detriment, and if this should be fairly attributed as consequences of the transport accident, the facts are that following the work injury in 2014, but prior to the surgery performed by Mr Chan in 2016, the plaintiff was working but only limited hours and in lesser duties than in his pre injury employment.  Following the operation performed by Mr Chan due to the work injury, the plaintiff did not work at all for some years and was not working at the time of the transport accident in May 2018. More than for four years after the transport accident, and from September 2022 to April 2023, he managed about seven months of employment in a special position created for him by his parents but to which he was unable to return following the surgery performed by Professor Bittar on 6 April 2023. The plaintiff was in the fortuitous situation that his family was able to specifically create an employment role for him that was fashioned to accommodate his circumstances. The plaintiff’s capacity, as limited as it appears to have been in that position, was lost following the 6 April 2023 surgery by Professor Bittar that was required as a result of the aggravating effects of the transport accident.  I further accept that the preponderance of evidence is that the plaintiff has no retained or future capacity for reliable employment and that this is a permanent feature of his life.  I also accept the plaintiff’s evidence that he would have intended to continue in that role that he had performed, albeit, to a limited degree.[201]

[201]T 96, L 19-20.

472It is correct, as Mr Jens pointed out, that there are no shortage of reports obtained by the same firm of solicitors who represented the plaintiff for his work injury and in this application, that prior to the May 2018 motor vehicle accident, and because of the work injury in 2014, the plaintiff was totally incapacitated for employment and was significantly impeded for a variety of enjoyment of life and domestic activities and was also functionally limited in body movements. However, the plaintiff’s evidence that he was experiencing some improvement is corroborated by the revived capacity in the job created for him at Nino’s and Joe’s Meats. That the transport injury has eliminated this capacity, modest as it appears to have been, the loss of a work capacity, is a significant consequence.

473The plaintiff did not dispute that  as a  result of the work injury he suffered variable levels of pain over an extended period of time mainly affecting his cervical spine but also, although to a lesser extent, his lumbar and middle spines. That state of affairs, of course, led to the performance of a double-level fusion undertaken by Mr Chan on 30 June 2016.

474Subsequently, the plaintiff did manage some work even if of a limited and sedentary type that he was lucky enough to have provided to him by his family  but it revealed him with a work capacity and one from which he was obtaining financial benefit.

475The employment lasted just seven months but ended because of the plaintiff’s pain that Professor Bittar assessed as warranting surgery and which he carried out by way of a cervical fusion the need for which he attributed as absolutely because of the effects from the transport accident.  I assess it as constituting a  significant aspect of pain and suffering consequences  for the plaintiff, that as a result of  the transport accident, he required the cervical spine fusion performed by Professor Bittar and that otherwise had not been foreshadowed or recommended before the transport accident. Further surgery has been identified by Professor Bittar as possibly warranted.  The plaintiff has suffered a financial detriment. The pain levels the plaintiff  experiences has increased and so has the frequency of pain with  pain radiating pain bilaterally into the plaintiff’s legs on a constant basis since the transport accident. When these facts are assessed as a whole, I am satisfied the aggravation is a serious aggravation in that it is very considerable and more than significant or marked and is long term. If one adds to this, the permissible consideration that may be afforded the emotional effects that have accompanied the physical consequences of the aggravating transport accident to the spine, to the degree permitted in accordance with Richards v Wylie, then I am fortified in my finding.[202] I am satisfied that the plaintiff is entitled to the relief sought in his originating motion.

[202]      Richard and Anor v Wylie (2000) 1. VR 79; [2000] VSCA 50.