Amjad v Transport Accident Commission

[2021] VCC 753

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-00330

MUHAMMAD ZAEEM AMJAD	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2021
DATE OF JUDGMENT:	11 June 2021
CASE MAY BE CITED AS:	Amjad v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 753

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – impairment to the lumbar spine

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Richards & Anor v Wylie (2000) 1 VR 79

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie QC with Mr R Paoletti	Slater & Gordon Lawyers
For the Defendant	Mr S Smith QC with Mr S Pinkstone	Solicitor to the Transport Accident Commission

HER HONOUR:

1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 28 July 2016 (“the said date”).

2Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long-term impairment or loss of a body function”. The body function pursuant to that subparagraph is the spine.

4The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.

5The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.

6The plaintiff relied on three affidavits and was cross-examined.  He also relied on an affidavit of his friend, Rana Ahmed, sworn on 22 February 2021.  Further, the parties relied on medical reports and other documents which were tendered.  I have read all the tendered material.

7Causation and range were the main issues in dispute.[1]

[1]Transcript (“T”) 3

The Plaintiff’s evidence

8The plaintiff is presently aged twenty-seven, having been born in July 1993 in Pakistan.  He is single and lives in a shared house.

9After completing Year 12 in Pakistan, the plaintiff migrated to Australia in about 2013.

10He obtained a Diploma in Management and an Advanced Diploma in Engineering, Robotics and Megatronics. He then commenced a Bachelor of Robotics at Chisholm TAFE, which he was studying as at the said date.[2]

[2]First affidavit sworn on 23 April 2018 – This seems incorrect as the plaintiff later said he was studying a diploma at the time of the accident – T17

3 The Hospital Claim for Compensation form set out the plaintiff had been employed for three months before the accident as a cleaner by Domain Facilities

11While studying, he worked part time.  Between February 2014 and July 2015, he did cleaning work as a facility provider with Highlight Group.  He then performed sporadic work with a number of employers through Hoban Recruitment, which included cleaning work and labouring in factories.  In about April 2016, he began working with Domain Facility Services as a facility provider on a part-time basis.[3]

The accident

12On or about the said date, the plaintiff was riding his motorcycle.  As he proceeded to cross an intersection in Dandenong, a car went against a red light, executing a right-hand turn.  The plaintiff’s motorcycle collided with the side of the car and he was thrown onto the road (“the accident”).

13As a result of the accident, the plaintiff suffered injuries to his spine, left knee, left foot, and psychological/‌psychiatric injury.

14Following the accident, he was transported by ambulance to Dandenong Hospital.  He then felt pain in his left toe and left knee. He underwent a number of scans, which he understood revealed a fracture in his left foot.  He had grazes on both knees which were cleaned and bandaged.  He was discharged the same night.

15On or about 19 August 2016, he attended Medi7 Clayton (“Clayton”) and reported the accident. 

16Some time after the accident, he began to notice pain in his lower back, mid back and neck.  He suffered from increasing back and neck symptoms when he attempted to return to casual work in a factory for a day, in about December 2016. The pain continued, and he ultimately returned to his doctor at Clayton and reported it.[4]

[4]First affidavit sworn on 23 April 2018

17More recently, he had completed a traineeship with Woolworths and had commenced as a night filler, two days a week, working between eight and twelve hours a week.[5]

[5]First affidavit

18The factory work the plaintiff was doing in December 2016 involved cleaning in a laundry, sorting dirty linen – a lot of lifting bed sheets and a little bending and twisting.  He thought it would be okay to start work, but that was not the case, and when he started, he experienced back pain again.  He denied this was the first time he had experienced back pain after the accident.[6]  He thought he only did one or two shifts for Hoban after the accident.[7]

[6]T42

[7]T43

19Hoban placed the plaintiff at different factories.  He did not remember why he did not mention doing factory work for Hoban in 2018 in his affidavit.  He agreed his affidavit created the impression he only did one or two days’ work post accident and he next worked at Woolworths.[8]

[8]T44

20For the first few days after the accident, the plaintiff was not even able to get up, and rested in bed, because both knees were really badly injured and his toes were broken.  The rest of his body “was in a lot of pain”.[9] 

[9]T8

21Back and neck pain “come through like in the next two or three weeks[10] [after the accident] so my whole body was like in a pain at the moment, but those pains didn’t go away because it was a sudden impact on the road”.[11]

[10]T7-8

[11]        T8

22He mentioned his back and neck pain to Dr Kloot, at Clayton.  He had never been to a general practitioner before, as he was an international student.  He consulted her throughout the period after the accident up until the end of 2016.  He thought he saw her three or four times to get monthly loss of earnings certificates[12] for his cleaning work with Domain Facility in Sunshine West.[13]

[12]T8

[13]T9

23It was probably about two months after the accident he first mentioned his back to Dr Kloot.[14]  He told her about it the first time he saw her, if that was August.[15]  He told her was having trouble standing up, bending and moving around.  He was having a lot of pain in his back and neck at that time, “but she kind of didn’t believe because she said, ‘It didn’t mention in your first report, so I can’t really help you with that’.”[16] She told to him he seemed fine, and stopped giving him certificates and he did not get any loss of earnings payments after December 2016.[17]

[14]T25

[15]T46

[16]T9; The TAC Hospital Claim for Compensation form signed by the plaintiff on 28 July 2016, on the said date, set out injuries sustained in the accident were “pain, left knee toes and foot”

[17]T23

24The plaintiff denied he had made up the conversations with Dr Kloot.  He did not recall why he had not mentioned them in his affidavit.[18] It was not right that he first had back pain after the factory work. He could not recall why his viva voce evidence was different to his affidavit.  He could not remember his affidavit and he definitely would have mentioned back pain to Dr Kloot earlier.[19] 

[18]T27

[19]T28

25At the end of 2016, the plaintiff was not “really in [my] sense at that time”.  He was resting a lot; he was not really moving.  He cannot remember much of that time as he was on “high” medication, taking Lyrica.[20]  When it was put to him the records indicated he was not prescribed anything, he agreed that could be the case; he did not remember.[21]  Other than one prescription for Voltaren Rapid in May 2017, when Dr Kloot noted “working factory aches and pains,” there was no reference to any medication.  The plaintiff could not remember this situation.[22]

[20]T26

[21]T27

[22]T31

26The plaintiff did not see any doctor for three months after he started his studies in February 2017 because he “could not afford the private sector”.  Another doctor[23]  at Clayton told him he had to go back to the first doctor who was looking after him from the first day, so he went back to Dr Kloot.  She did not believe him.  He did not know what to do then.  As he was an international student, he had to continue with his visa and it was expiring, “so [I] have to start the study, otherwise I can’t stay in Australia, so I have put the application for the visa for my Bachelor’s to stay in Australia at first place”.[24] 

[23]Dr Masoumi’s note of the attendance on 23 April 2017

[24]T19

27The plaintiff agreed the defendant was paying for his medical treatment.  When it was suggested that in those circumstances he could afford treatment, he said:

“Well, I have to sustain a visa.  That’s nearly 3 grand, more than 3 grand … otherwise I can’t even stay …  No, I still don’t have a written document that says that TAC will pay everything.   So many places I’ve been to where TAC did not accepted (sic) the claim.”[25]

[25]T21

28He guessed the TAC was paying for Dr Kloot.  He did not recall why he could not go to Clayton anytime in early 2017 and get the TAC to pay for the visit.  He had been to the doctors.  They were not accepting the claim for the back.  It was not mentioned, so TAC was not paying him for his back at that time.[26]

[26]T22

29The plaintiff could not recall seeing Dr Wales at Clayton on 25 November 2016, who then noted a slow recovery from the foot fracture.[27]

[27]T25

30The plaintiff did not see anyone else because Dr Kloot –

“… gave me the sense probably it’s just a pain, just have some painkillers and you’ll be all right and I thought probably it would be because I didn’t know, because she said, ‘Your back seems fine to me’, and, how can I say, I was just taking some medication, I was resting on the bed, doing nothing, I thought it would be all right and it didn’t get better.”[28]

[28]T26

31It did not seem strange to him at all that if one doctor was not taking his injury seriously, he did not go to another one.  When asked why, if his pain was very disabling and interfering with his studies, as at April 2018 he had not seen a doctor for a year, he explained:  “Well, I might be thinking like probably after resting, I’ll be fine.”  He did not remember why he thought it would probably get better, having had two years of pain.  He could not remember why he had not gone to see a doctor.  He would have taken something for sure.[29]

[29]T30

Subsequent treatment

32The plaintiff deposed he ceased attending Clayton in about mid to late 2017, as he did not feel his injuries were being properly addressed.

33However, the Clayton notes set out that after seeing Dr Bill Woods in July 2017 for an Adjustment Disorder, the plaintiff next saw Dr Bella Weisman there in May 2018 seeking an extension for university.  That doctor advised him he needed to see the general practitioner who he had earlier seen for a university extension.

34The plaintiff then saw Dr Woods at Clayton from May to August 2018.  During that year, he certified the plaintiff was unable to study because of accident-related injuries.  He referred the plaintiff to Associate Professor (“AP”) Tony Goldschlager, neurosurgeon, for treatment of his accident-related spinal injuries.  He also wrote to the plaintiff’s TAC case manager requesting funding for low back treatment for injuries received in the accident and in August 2018, he referred the plaintiff for physiotherapy for left sciatica due to the accident.   

35As at 23 April 2018,[30] the plaintiff generally managed his back, neck, left knee and left foot symptoms by not being very active and taking Panadol generally a few times a week when the pain was particularly bad.  He also often wore a fabric brace on his left knee.

[30]First affidavit

36In about March 2018, he had an MRI scan of his lower back, neck and left foot.  He understood the lumbar MRI revealed a tear and disc bulges in his lower back which were affecting his nerves.  He understood the scans also revealed degeneration in his neck.

37The plaintiff then continued to experience symptoms of pain and restriction of movement in his lower and upper back, and neck.  The symptoms generally tended to be more on the left side of his body and were worst in the lower back.  The pain could be intermittent, but he tended to experience it daily.  He also frequently experienced headaches.  Sometimes the neck symptoms extended into his shoulders and left arm.  His lower back symptoms extended into his buttocks and legs.

38Movements such as twisting his back caused increasing lower and upper back symptoms.  He could bend over at the waist, but if he did so repetitively, his back symptoms tended to increase.

39Prolonged sitting also tended to cause an increase in symptoms.  If sitting for too long, he often started to shuffle in his seat or stood up and moved around to try to relieve some of the symptoms.  He generally found standing more comfortable than sitting.

40Since the accident, he had also continued to experience pain and restriction of movement in his left big toe and second toe.  He found it difficult to move his toes upwards.  He did not tend to have pain at rest, but when he did actions involving lifting or pushing his toes upwards, he tended to feel sharp pain.

41In addition, he had continued to suffer from intermittent left knee pain since the accident.  He had found he was able to walk and stand without too much pain and difficulty but had not really pushed himself to walk very far because of his back, neck, left knee and foot symptoms.  Actions such as squatting and kneeling tended to be quite painful, and they put a lot of pressure on his left knee, so he tried to avoid them.

42Pre accident, the plaintiff enjoyed playing social games of cricket regularly.  He and his friends used to play cricket on most weekends and were often out for hours.  Sometime after the accident, he tried to play with them; however, he experienced increased symptoms, particularly in his lower back.  Batting caused the most pain because of the twisting motion when he tried to swing the bat.  He had not played cricket since that attempt.

43The plaintiff’s pre-accident passion was motorcycle riding, and he owned a road bike.  This was also his main form of transport, and he rode it almost everywhere. He often enjoyed riding it recreationally during the week and on weekends, on some days covering up to about 200 kilometres.

44The motorcycle was written off in the accident, and he had not purchased a new one.  He felt it would be painful for him to ride because the hunched riding position would put strain on his back and neck, particularly his lower back.  He also was nervous riding a motorcycle because of other drivers on the road.

45Post accident, the plaintiff tended to avoid heavy lifting as it placed too much strain on his back and neck in particular.  When he went shopping, it was usually with housemates, and they tended to carry the heavier bags and he carried the lighter ones, so there was less strain on his spine.  He felt that heavy lifting would also put strain on his knee.

46Pre accident, the plaintiff shared all the household tasks with his housemates, but since then, the injuries to his back, neck, left knee and left foot made it difficult for him to perform a lot of the heavier household tasks such as vacuuming and mopping the floor.

47Post accident, the plaintiff had been feeling stressed and anxious, and worried a lot about his injuries and his daily pain, which he just wanted to go away, and he worried that it would not.  He tended to be more irritable, frustrated and angry since the accident.  He was angry about the fact that the driver caused the collision, and he was regularly frustrated by his physical pains and restrictions.

48He felt as though he was less patient and tolerant than pre-accident and tended to get upset about small things more easily.  He was also upset and frustrated about his loss of independence, having now found himself being reliant upon others to support him, both physically and financially.  He had had to borrow money from friends because he had had difficulty working, and felt upset and embarrassed.

49He often felt low in mood, and like there was not a lot of joy in his life, and he did not enjoy himself as he did pre-accident when he thought his life was heading in a good direction.  His life now lacked direction, and he felt very uncertain about the future, which made him feel sad and added to his feelings of anxiety.  He was also upset about the time which he had already lost trying to recover from his injuries.  He often thought about the accident, and the memories upset him, as did reminders of the accident.

50Since the accident, he felt as though his energy levels had decreased.  He spent a lot of time at home now, doing very little, and it could be hard for him to find the energy to try to be active like he was before.  His concentration and memory had suffered, and he now lacked confidence and self‑esteem.

51Pre accident, he considered himself a very social person and spent a lot of time with his friends, but now spent a lot of time at home, and went out much less.  As a result, he had lost a lot of friends, and felt more isolated and alone.

52He tended to have difficulty getting to sleep and staying asleep, as he often thought about his injuries and problems.  As a result, he was often tired during the day from lack of sleep.

53After the accident, the plaintiff quickly attempted to return to his studies, but struggled.  The pain of sitting at a desk was distracting, and he suffered a lot of problems with concentration and focus.  Both in lectures and at home, he struggled to maintain his focus and absorb information, and as a result, failed all of his units.  He persevered through the next semester but also failed all those subjects.  Consequently, he deferred his studies and took a break, in the hope that his physical and psychological symptoms would improve.

54In February 2018, he resumed studies with a full load of four units, but he experienced the same.  His frustration with this situation made it even harder to concentrate.  He was then very concerned that he would fail some or all of his units again.  He had considered changing his degree to something easier, but it was difficult with his student visa.

55He felt that he would struggle with any full-time work that was physical in nature, due to his back, neck, left knee and left foot symptoms.  He also felt he would struggle with work which required him to sit at a desk for a long period.  He worried about his future career prospects and his ability to cope with work.

56The Woolworths traineeship generally involved tasks such as setting up the shelves and splitting up goods.  He generally worked between waist and shoulder height, and there was no heavy lifting.  He continued to suffer from symptoms, particularly in his back and neck, but he persevered because he had to work and earn money. 

57In his second affidavit, sworn on 13 March 2020, the plaintiff described his further medical treatment.

58In about June 2018, he saw AP Goldschlager, neurosurgeon, who advised him that lower back surgery was a possibility, but they agreed to try more conservative treatment. He also recommended a lower back injection, which the plaintiff underwent in about late 2018.  That reduced his lower back symptoms for a period of time, but only gave temporary relief.[31]

[31]        Confirmed by Dr Woods’ report dated 15 May 2019

59On about 28 August 2018, the plaintiff attended Clayton Sports and Spinal Clinic, but ceased attending after he moved house, as it was too far to travel and he did not feel the treatment was very helpful.

60The plaintiff continued to see Dr Woods, for a while, but the doctor kept moving around.  The plaintiff attended a number of other general practitioners, each on just a small number of occasions, before returning to Dr Woods’ care at Acland Street Medical Centre.[32]  He had not been seeing Dr Woods regularly, as he had provided the plaintiff with a number of repeat prescriptions.

[32]        T32

61Dr Woods’ reports indicate he was treating the plaintiff at Ripponlea Medical Centre in May 2019.  That month, he referred the plaintiff to Metro Pain Group at Clayton for his accident-related back pain, noting the plaintiff was covered by the TAC.  Dr Woods also wrote a letter supporting an extension of the plaintiff’s student visa for medical reasons related to the accident.  

62The plaintiff did not think he saw Dr Woods at Ripponlea after October 2019.[33]He had earlier followed Dr Woods “wherever he was going”.  He was the only one dealing with the TAC for him on his claim.[34] 

[33]T41

[34]T32

63After counsels’ addresses, a number of further clinical notes were provided detailing treatment by Dr Woods from October 2018 to March 2019, TAC certificates from him in June, July, and October 2018 to December 2018, February, March and May 2019 and further notes of Dr Woods’ treatment from October to December 2019.  

64In about late 2019, the plaintiff started seeing Dr Vishal Bhasin, specialist pain medicine physician.  He prescribed a number of medications, and recommended further lower back injections.  He advised the plaintiff he could try a number of different injections to see if one was effective.  They discussed surgery.  The plaintiff was advised it would be a last resort, and he remained reluctant to have it.

65The plaintiff was then taking 125 milligrams of Lyrica at least once per day, and sometimes more when his symptoms were particularly bad.

66He continued to suffer from pain and restriction of movement in his upper and lower back and neck.  Lower back symptoms remained the worst, and often extended up into his upper back and down into both buttocks and legs.  These symptoms were mostly left-sided, but also right-sided.  His neck symptoms were not quite as bad as they were before, but they were still there, and sometimes extended into his shoulders.

67His toe symptoms had improved, but he still had them at times.  His left knee pain had improved and was not as bad as before.  If he walked for long periods, he tended to suffer increased pain in his lower back and left leg.  He had difficulty squatting and kneeling, causing his low back and left leg symptoms to increase.

68He continued to avoid heavy lifting, now mostly because of lower back and left leg symptoms and, to a lesser extent, his neck.  He still required assistance from his housemates with shopping.  He continued to have difficulty performing heavier household tasks, mainly because of his low back and left leg symptoms and, to a lesser extent, his neck.  He continued to avoid doing heavier housework tasks.

69Because of his spinal injuries and left leg symptoms, and loss of concentration and focus, he had to abandon his study of robotics, and did not believe he would ever be a robotics engineer.  That had been a huge loss and upset him a lot.

70He was unable to finish the first semester of the bachelor’s robotics course in 2018 due to pain, particularly distracting pain in his lower back and left leg.  He also continued to suffer from a lack of concentration and focus.  His attendance was very poor due to these issues and he was expelled from the TAFE.

71He was very upset that he had to abandon his study of megatronics and robotics.  He came to Australia to study that degree, and his aspiration was to be a robotics engineer.  His career path had completely changed due to his accident spinal injuries and because of his difficulties with concentration and focus, and he did not believe he would ever be a robotics engineer. 

72He had tried and failed robotics, and re-enrolled.  It is a really hard degree.  He had difficulty understanding it.  He failed again because of problems with concentration. He could not complete the course, and then took a break for six months.  He could not sit in a class for fifteen minutes to half-an-hour at a time to focus because the pain then started.[35] 

[35]T16

73The plaintiff had a meeting with the teacher, who told him he was not doing well in class despite his efforts.  The plaintiff put in a deferment and then started study again after a gap, but it did not work out for him and he failed again.  He repeated the semester twice and “wasted $30,000 for no reason”.[36]

[36]T16

74Later in 2018, he attempted to undertake alternative studies, commencing a Certificate IV in Automotive at Ashton College.  However, he again struggled due to his pain and lack of concentration, and was expelled from that College.

75In about 2019, he commenced a Certificate IV in Automotive at Brighton College.  Though he had ongoing issues, he was able to finish that qualification in about January 2020, assisted by the fact that some of his Ashton College units were credited at Brighton College.

76In about February 2020, he commenced a Diploma in Automotive at Brighton College.  As at April 2020, he did not feel he was going well.  He had difficulty attending classes, which were held three times a week, because of his pain, particularly in his lower back and left leg, making it very hard to sit through classes.  Issues with concentration and focus also made it hard.  There were a lot of practical classes that involved standing, which was less painful.  The classes were not physically demanding and did not involve heavy lifting; however, he continued to struggle with long days due to pain, particularly in his lower back and left leg, and because of his problems with concentration and focus.

77As of May 2021, his problems with studying had continued.  Due to COVID, he was not required to personally attend classes.  He was able to attend online using Zoom.  He only had to attend some workshops in person.  That made it easier for him to complete his studies, because he did not have to travel as much, and he was able to complete his diploma in about February 2021.  He has been trying to obtain an apprenticeship but has not been successful.

78This course involved about twenty hours a week of face-to-face teaching.  He also had to do four to six hours of reading at home.  Most of the work in the course was done standing.   He had to sit for assessments and reading.[37]  As part of the course, he was required to spend time in a workshop where he learned the basics of car mechanics.  The cars were usually on a hoist, so there was not much bending, but he sometimes had to bend over, which caused back pain.  He was not required to do heavy lifting.[38]

[37]T12

[38]T15

79He is trained to work as a mechanic.  He agreed the job would involve bending into the engine bay of the car to do repairs and that he could be bent for significant periods while attending to those repairs, using heavy tools.  He agreed he had chosen to do that job and trained for it, despite what he said was severe back pain “[b]ecause hopefully one day I will be fixed”.[39]

[39]T15

80Pretty much, after he arrived in Australia in 2013, he studied management, having come to Australia on a student visa to study business management.[40]

[40]        First affidavit – obtained a Diploma in Management

81After a semester, he came back to his engineering degree, because that was what he really wanted to do, and he had an engineering background.  He then had had a plan to become a businessman, but found that was not really his thing, so he started engineering then and finished his Advanced Diploma.[41] He did not complete the Bachelor degree.[42]

[41]T16

[42]T16

82After the accident, the plaintiff still had two units to do in the Diploma.  He completed it after the accident and started his Bachelor’s degree in 2017, but failed miserably, so he deferred for six months and then failed again.  That was the time he figured out he could not do it.[43]  In 2017, his back pain, in particular, was interfering with his passion for robotics.[44]

[43]T17

[44]T18

83In re-examination, the plaintiff explained he was not able to concentrate on robotics because of pain in his back and neck sitting for a long time.[45] “Automotive and robotics are like two different things, they are like on the next level.  Robotics is up high, but the Diploma of Automotive is really kind of nothing, to be honest.”  There was no robotics course in Pakistan.[46]

[45]T45

[46]T18

84He started the automotive degree in about February 2018.  He experienced problems with his back pain and studies pretty well straight away at the start of that year.[47]

[47]T18

85The plaintiff swore a third affidavit on 7 May 2021.

86Dr Woods left Acland Street Medical Centre in about 2020, and the plaintiff had been unsuccessful in his attempts to find him.  The plaintiff attended another doctor, Dr Thomas Verghese, in about early 2021.  Dr Verghese said he would not treat the him because he did not treat TAC patients.  However, he agreed to refer the plaintiff for a lower back MRI scan which was carried out on 22 March 2021.  The plaintiff  “guessed” it was the suggestion of his lawyers that he get a recent MRI scan.[48]

[48]T38

87The plaintiff agreed it was about eighteen months from the time he last saw Dr Woods until he started seeing Dr Verghese.[49]  He has yet to find a new general practitioner.

[49]T35 – he had also seen Dr Verghese in July 2019 – “Was MBA 2016.  Has chronic back pain.  Missed College.”

88In 2020, the plaintiff’s pain medicine physician, Dr Bhasin, recommended that he have a further injection in his lower back, but this had not been approved by the TAC.  The plaintiff had not been back to that doctor for a while, because he felt there was nothing more that could be done without TAC approval.

89The plaintiff is currently taking Lyrica, 150 milligrams once daily, and Noten, 50 milligrams once daily.  On days when he is not working or not doing much, he sometimes does not take both medications because he is trying to avoid using them too much.

90He still has prescriptions for Lyrica at home.  He used to have, like, two a day and then he does not take them much anymore.  Currently, he takes one in two or three days – two to three a week.  He deposed to taking it more frequently because he does sometimes take it every day.[50]  Both affidavits saying he took it daily were a “mistake” when it was in fact two or three times a week.  Sometimes he takes Lyrica every day.  It depends on the pains, it could be pain every day.[51] 

[50]T36

[51]T37

91He continues to suffer from symptoms of pain and restricted movement in his lower and upper back and neck.  The lower back symptoms remain the worst, and then radiate upwards and downwards.  They are mainly left-sided, but also right-sided.  The symptoms in his neck are not quite as bad as they were before, but they are still there.  He no longer tends to have shoulder pain.

92The “whole back is connected”.  The neck is not a problem anymore.  The lower back sometimes got worse and sometimes it feels the same.[52]

[52]T45

93He continues to have difficulties with twisting, bending at the waist, and sitting for prolonged periods.

94The symptoms in his big toe and second toe do not tend to be an issue anymore.  When the pain in his lower back is particularly bad, the symptoms tend to extend down into his feet, but it does not tend to hurt any more when he lifts his toes.  His left knee symptoms do not tend to be an issue anymore.  Actions such as squatting and kneeling can cause lower back pain.

95The plaintiff has not returned to playing cricket or motorcycle riding due to symptoms in his back, particularly his lower back.

96The plaintiff agreed he had not tried riding a motorbike since the accident and did not know whether he could do it.  He confirmed he could not ride a motorbike now because of the back posture, and other drivers are “crazy” towards motorcyclists.[53]

[53]T46

97Problems with lifting continue, and he requires help with shopping.  He has difficulty with heavier household tasks, mostly due to his lower back and left leg symptoms but, to a lesser extent, his neck.  He had bought a handheld stick vacuum-cleaner which was much lighter and easier to use.

98The plaintiff continues to suffer from the psychological symptoms and problems earlier deposed to.

99The plaintiff continues to work as a night filler at Woolworths, working about 20 hours a week, but has ongoing symptoms, particularly in his lower back and left leg.  However, he perseveres, as he has to work and earn money.

100He agreed his student visa enables him to work for twenty hours a week.  If his visa allowed him to work additional hours, he would. 

101When it was put he would probably work full time if his visa allowed it, he said “I’m not sure, but I will try to do more, yes”.  He was not sure, because of the back pains, whether he could work thirty or forty hours a week if he was allowed to.  After work, he needed a long rest with some tablets.  He would try to do more than twenty hours.[54] 

[54]T11

102The plaintiff does night fill grocery, working on three aisles at Woolworths, which contain health and beauty and cleaning items.[55]  He uses big carts on wheels in order to fill the shelves.  Sometimes he loads them before he takes them onto the supermarket floor.  The shelves are filled from the floor up.  The carts are not filled totally for safety reasons.  They are filled to head height, so you can see over the top.[56]

[55]T12

[56]T13

103He agreed most of the job is taking boxes of product, stacking them into the cart from floor level to head height, wheeling the cart into the aisles and then unpacking from head height down to effectively ground level. “Facing” is then done which involves fixing the shelf, putting everything facing forward.[57]

[57]T13

104He agreed the job is highly repetitive in terms of bending, lifting and twisting his spine.  The heaviest weight he is required to lift is probably about 10 kilograms and he usually puts that on the bottom shelves.  He stacks packets of Surf cleaning detergent that would weigh about 1 or 2 kilograms, with four in a box, weighing 8 kilograms in total.[58]

[58]T14

105The plaintiff agreed that in 2015, the year before the accident, he earned $1,500.  There was nothing affecting his ability to work in the years before the accident.  Mostly his father gave him money and he did not need to work.[59]  The plaintiff was earning so little because the robotics course took up so much of his time.[60] 

[59]T32

[60]T33

106However, the plaintiff could not keep asking his father for money.  He did not tell him about the accident.  He was wasting the money his father was sending him because he was failing the semesters.  He told his father to stop sending him money as his father had to look after the plaintiff’s four brothers at home and the money he was sending was a lot of money in Pakistan.  He told his father he had finished the Bachelor degree in robotics.  His father now knows he is doing the apprenticeship and doing automotive.[61]

[61]T34

Summary of the Plaintiff’s taxation records

Financial Year Ending	Payer	Gross Payments
30 June 2014	RNTT Pty Ltd	$2,934
30 June 2016	The Trustee for Hoban Recruitment Unit Trust TAC	$1,592 $5,869
30 June 2018	The Trustee for Hoban Recruitment Unit Trust Woolworths Group Ltd	$6,388 $25,625
30 June 2019	Woolworths Group Ltd	$33,480
30 June 2020	Kreshtan Motors Woolworths Group Ltd	$7,200 $41,520

Lay evidence

107The plaintiff’s friend, Rana Ahmed, swore an affidavit on 22 February 2021.  He met the plaintiff about four or five years ago and moved into a share house with him.

108Rana confirmed the difficulties the plaintiff has with lifting, household tasks and shopping due to his back and leg pain.  For this reason, he no longer plays cricket or rides his motorcycle.

109The plaintiff appears depressed since the accident, and Rana has seen him taking painkillers. The plaintiff does not socialise much now, is not the same “party guy” he was before the accident and does not tend to engage with people like he did pre accident.  He has had to rely on friends for support since the accident, and has had to borrow money, which Rana understood has been embarrassing for him.

Treaters

110The case description in the ambulance records of 28 July 2016 set out the details of the accident.  The car accelerated from a Stop light and was travelling at 10 to 15 kilometres an hour when it collided with the plaintiff’s motorbike in the middle of an intersection.  There was minor damage to the left rear of the car.

“Motorcyclist wearing a helmet, still intact with minimal scratches.  On AV arrival, motorcycle lying on the left side with minimal damage PT slid approximately two metres on road, found lying supine.  PT c/o bilateral sore knees.  AV called.”

111At 16:45, spinal immobilisation with cervical collar, anatomical support padding under occipital area successful.  The injury was described as abrasion graze bilateral knee.

112A report from Monash Emergency dated 28 July 2016 set out the plaintiff attended after a low velocity motor vehicle accident.  The history of presenting complaint was a turning car driving around 15 kilometres an hour hitting his motorbike from the left.  The plaintiff fell from the bike onto his back. He was told by a passing nurse to stay on his back and not move.  He did not complain of any midline pain.  A C-spine collar was prophylactically put by AV. 

“… Cleared by ED consultant. 

[Complained of] some pain left knee and left first and second toes.  Nil other pain.  Denies chest pain

…

Neurological and Spine Examination :  Nil midline tenderness

No focal neurology

…

Superficial grazes on the left and right knees
 Left knee full [range of movement], although patella tender …

Tenderness on … left first and second toes [which were x-rayed].”

113The plaintiff saw Dr Kloot at Clayton on 19 and 25 August, 15 September and 26 September, 21 October and 3 November 2016 about his lower limb injuries from the accident.

114The plaintiff was next seen on 25 November 2016 when Dr Wales noted the plaintiff was continuing to recover slowly from his foot fracture.

115When seen by Dr Masoumi on 23 April 2017, it was noted:

“MVA last year, was on TAC since then, as has financial problem so started work since 25/11/2016, now wants to come back to TAC because has problem working and cannot work properly.  

Has pain of L big toe, L knee, R side of the neck and lower back.  Came today for only coming back to TAC.”

116On examination, the low back was tender.

117The plaintiff was advised to see the general practitioner “who first time put him on TAC to discuss the case”.

118The plaintiff saw Dr Kloot on 1 May 2017.  She then noted “studying engineering, working factory aches and pains”.  Voltaren Rapid was prescribed.  

119Dr Bill Woods from Clayton referred the plaintiff to AP Goldschlager on 31 May 2018.

120Dr Woods advised the presenting problem was a motorbike accident on 28 July 2016:

“1) chronic low back pain (under TAC) – suffers from mainly left leg sciatic for a few hours on most days, although it can become constant for days on end; he first noticed it a couple of days after the accident when he started weight-bearing after strict bed rest.  Once a fortnight he feels that the pain ‘transfers’ from the left to the right (i.e. the L leg pain ceases).  His MRI shows some nerve root and thecal pressure, and:

2) Chronic neck pain since the accident.”

121The plaintiff’s medications then included Voltaren Rapid, one tablet twice a day, and Lyrica, 75 milligram capsules, one capsule twice a day for nerve pain.

122Dr Woods wrote to the TAC case manager on 10 July 2018, requesting funding for:

“… medications and physiotherapy for [the plaintiff’s] low back pain with Left leg sciatica due to L4/5 and to a lesser extent L5/S1 disc injuries received in a motorbike v. car road accident in Victoria on 28/7/16.”

123Dr Woods also requested authorisation for funding for a CT-guided left L5 nerve root block with local anaesthetic and cortisone, explaining this would almost certainly be required due to worsening of the sciatica over the past few months despite simple mobilisation and treatment with Lyrica, paracetamol and anti-inflammatories.  He advised there was no doubt that this sciatica was a delayed feature of lumbar disc degeneration due to the original injury, and its progressive nature demands that action be taken as soon as feasible, starting with physiotherapy.

124Dr Woods noted AP Goldschlager’s reports supported this course and gave weight to the wisdom of the TAC approving the injection.  He thought that would be needed soon, as the plaintiff was in a lot of pain and physiotherapy would not give him immediate relief.  He did not want to treat the pain with addictive medications, but he was worried that further delay may make that unavoidable.

125Dr Woods referred the plaintiff to the Sports Spinal Clinic in Clayton on 27 August 2018, with the presenting problem of L5-S1 disc tear due to a motor vehicle accident on 7 July 2016 and left sciatica.  At that stage, the current medication was Lyrica, 150-milligram capsule twice a day, and paracetamol, two tablets, 665 milligrams, three times a day baseline.

126On 15 May 2019, Dr Woods, who was then at Ripponlea, referred the plaintiff to the Metro Pain Group at Clayton for opinion and management of low back pain and left sciatica due to a motorbike accident.  He advised the plaintiff was covered by the TAC and had written to them to approve physiotherapy treatment.[62]

[62]Visits in September 2018

127Dr Woods also then certified the plaintiff was being treated for a back injury sustained in July 2016 in a traffic accident in Australia (he was not at fault and is now covered by the TAC).

128The pain had exacerbated over the last year, probably due to the effects of a nerve root injection wearing off.  Unfortunately, further injections had not helped, and the plaintiff now needed to attend a tertiary referred back pain clinic for opinion and treatment.  He was yet to see them.

129All of this had obviously interrupted the course of the plaintiff’s studies and he would need to remain in Australia for at least a year to be able to both complete his studies and to receive effective treatment for his injury. He strongly recommends that his visa be extended for reasons medical, academic, and of fairness.

130AP Goldschlager wrote to Dr Woods in June 2018, having seen the plaintiff on 26 June 2018.

131In terms of history, he noted that the plaintiff had had a motorbike accident in July 2016.  His bike was hit by a car.  He had a brief loss of consciousness and was taken to the Emergency Department at Dandenong Hospital.  He had neck and back pain at that stage.  The back pain had persisted and become more radicular in nature over the last couple of months.  He had marked sitting intolerance, as well as pain down his left lower extremity.

132AP Goldschlager discussed treatment options, including conservative treatment, consideration of injections or surgery.  The latter was certainly an option of last resort and it was agreed the plaintiff should try conservative treatment.  He had not seen a physiotherapist. AP Goldschlager would ask if the TAC could fund physiotherapy.

133AP Goldschlager noted the plaintiff was seeing his general practitioner for ongoing pain management.  He suggested the plaintiff may need to increase Lyrica; 75 milligrams may be too low for him.  If the pain did not improve, the next step would be to consider a CT nerve root injection.  He would recommend injecting the L5 nerve root in the first instance for diagnostic as well as therapeutic reasons. 

134Dr Vishal Bhasin from Metro Pain Group last reported in May 2020.

135When seen on 5 October 2019 for the first time, the plaintiff advised he was involved in a motorbike accident and was noted to have significant soft tissue injuries to the knees and also a fracture of the left toe.

136Eventually these distracting injuries settled down and back pain became more prominent.  The plaintiff’s back failed to get better and eventually he was referred to AP Goldschlager, spine surgeon, who assessed him to have discogenic pain with a left L4 nerve root impingement.  A CT-guided injection to the left L4 nerve root was done around Christmas 2018 and provided one month’s relief.

137Dr Bhasin had seen the 2018 MRI scan, which showed multilevel disc desiccation at L4-5 and 5-S1 discs.  He believed there may be two annular tears, one at each level. 

138The plaintiff told him that other than the injection, the only treatment he had tried was a little bit of physiotherapy, which did not help, and Lyrica, which he was still on, 100 milligrams a day. 

139The plaintiff reported back pain with bilateral leg pain, with the left being worse.  Back pain averaged around 7 to 8 out of 10 and ranged from 5 to 9 out of 10.

140Dr Bhasin thought the plaintiff had ongoing discogenic pain with some left L5 radicular features.  Given his low mood and some features of sensitisation of diffuse pain in his lower back, he recommended a trial of low dose Milnacipran and then see if they could wind down the plaintiff’s pain and improve his mood.

141The plaintiff was seen again in December 2019.  In his December 2019 letter to the TAC, Dr Bhasin noted the plaintiff reported ongoing back pain with leg pain.  Dr Bhasin thought there was a likely discogenic cause. 

142Dr Bhasin requested a day stay procedure involving epidural steroid placement with catheter and adhesiolysis. 

143In his most recent report of May 2020, Dr Bhasin reported the plaintiff last attended on 2 December 2019, having been seen earlier on 15 October 2019.

144The history obtained in December 2019 was that the plaintiff reported some ongoing slight improvement in his back pain after trialling prescribed medication which was strong neuropathic medication which could sometimes help with sensitised disc pain.

145At that stage, the plaintiff seemed keen for further intervention, and funding was requested for the suggested day procedure. The plaintiff told him that he was awaiting to attend an IME on 24 February 2020.  Dr Bhasin planned to review the plaintiff after approval came through but as of May 2020, there had been no response from the TAC.

146Dr Bhasin thought it possible that the plaintiff’s pain may be relatively refractory to improvement and that without significant spinal intervention, he may continue to have that pain.  He considered the plaintiff would continue to struggle with spine loading tasks and may have some capacity for ongoing light duties.

Investigations

147Mr Miller organised an MRI scan of the plaintiff’s lumbar spine in March 2018. 

148It was concluded there was disc desiccation present at L4-5 and L5-S1.  At L5-S1, there was a broad-based disc bulge in the midline with a small annular tear.  That was contacting and effacing the anterior margin of the thecal sac.  There was also contact with the descending left L5 nerve root in the left lateral recess.  In L5-S1, there was a broad-based disc bulge in the midline and in the left para-midline region, with contact and effacement of the descending left S1 nerve root in the left lateral recess.  There was L4-5 and L5-S1 disc disease as described.

149In the cervical spine, the intravertebral discs at C2-3, C3-4, C4-5, C5-6, C6-7 and C-7-T1 were entirely normal and there were no signs of neural displacement.

150The plaintiff had a CT nerve root sheath injection on 24 December 2018.

151A lumbar MRI scan was organised by Dr Verghese in February 2021.  It was concluded there was a moderate broad-based disc bulge at L5-S1 contacting and  displacing the proximal traversing left S1 nerve root. 

152At L3-4, there was no disc bulge or protrusion, and no central canal or neural foraminal narrowing.

153At L4-5, there was a mild broad-based disc bulge, small postero-central annular fissure and mild bilateral facet joint arthropathy. There was no central canal or neural foraminal stenosis.  At L5-S1, there was a moderate broad-based disc bulge with a postero-central annular fissure.  The bulge was sightly asymmetric within the left paracentral region.  It is contacting and displacing the proximal traversing left S1 nerve root.  There was mild bilateral facet joint arthropathy.  There was no central canal or neural foraminal stenosis.

Medico-legal evidence

154Mr Russell Miller, orthopaedic surgeon, first examined the plaintiff in November 2017.

155The plaintiff told him of the accident when he was thrown off his motorbike, landing on the road.  The plaintiff reported ongoing problems with neck, back and left lower extremity pain.

156At the time of the accident, the plaintiff was a TAFE student and had returned to study six months after the accident, but his studies had been interrupted and he planned to return to study in January 2018.

157On examination, the plaintiff reported neckache, discomfort and pain.  He had lower back discomfort and pain, radiating into the buttocks and further down the legs, particularly the left.   He had ache and discomfort in the left knee and left foot, and had problems with anxiety, depression, lack of concentration and probable development of a Chronic Pain Syndrome.

158The plaintiff had used a range of medications in the past and was currently not taking any.  He had not had any physiotherapy or hydrotherapy.  He had not had specialist review and there were no plans for further surgery.  He was not having any other treatment.

159Mr Miller had available left lower limb radiology, but no spinal investigations.

160Mr Miller diagnosed a musculoligamentous strain to the cervical and lumbar spine, and aggravation of degenerative disease in the spine with no evidence of more severe injury.  He thought the plaintiff required an MRI scan to exclude underlying pathology in the spine, but he believed there was a likelihood the plaintiff had developed a Chronic Pain Syndrome which influenced his current clinical presentation.  He thought the spinal injury and left foot injury were consistent with the accident.

161Due to the spinal injury, Mr Miller thought the plaintiff would have difficulty with work involving repetitive bending, lifting of weights more than 5 kilograms, and would have a requirement to shift his posture regularly.  It was also likely that the development of a Chronic Pain Syndrome would further impact on his capacity to return to work.

162Mr Miller provided a further report after spinal investigations had been carried out.  He noted that the lumbar MRI scan revealed disc degeneration at L4‑5 and L5‑S1 level, and disc bulge at the L5‑S1 level contacting the left S1 nerve root.  The cervical spine MRI scan revealed loss of normal cervical lordosis.

163Noting his earlier report, Mr Miller concluded the plaintiff had suffered a musculoligamentous strain and aggravation of degenerative disease in the lumbar and cervical spine.  Degenerative disease was not revealed.  Other pathologies had not been identified.  He remained of the view the prognosis for the cervical and lumbar spine was only fair.  He thought the plaintiff would require ongoing conservative treatment and was unlikely to benefit from any form of surgical intervention.

164On re-examination in November 2020, the plaintiff said his major problem was his back, with low backache, discomfort and pain, particularly radiating into the left, with feelings of numbness and tingling.  He said his back and leg pain was much worse than when he was last reviewed.  It caused him problems with prolonged sitting, standing, repetitive bending and lifting, and difficulties with work and sleep disturbance.

165The plaintiff had neckache, discomfort and occasional pain.  He had continuing problems with anxiety and depression, and probable development of a Chronic Pain Syndrome.  He advised that his left knee and foot symptoms had largely resolved.

166The plaintiff was then taking Lyrica and Noten.  He had previously had an injection into his spine which provided temporary relief and he had not had physiotherapy or hydrotherapy.  He had been referred by AP Goldschlager.  They discussed surgery, but for the moment the plaintiff was pursuing conservative treatment.  He was having ongoing pain management under the review of Dr Bhasin, and was planning to have an epidural steroid injection once approval was obtained.

167The plaintiff advised he had returned to his studies in automotive technology, albeit with difficulty.  He had also returned to work as a part-time casual filler in the supermarket due to financial needs.

168Mr Miller thought the plaintiff had suffered a musculoligamentous strain to the cervical and lumbar spine.  There was no evidence of radiculopathy, neurological deficit or structural injury.  It was likely the injury had been complicated by the development of a Chronic Pain Syndrome.  The symptoms were much less severe in the cervical spine, with a good prognosis. The prognosis for the lumbar spine was fair.  The plaintiff’s adverse mental state reaction was likely to influence his current clinical presentation.

169Mr Miller confirmed the spinal injury was consistent with the accident.  He regarded the plaintiff’s condition as substantially stabilised.

170The plaintiff was examined by Professor Bittar, neurosurgeon, in November 2020.

171The plaintiff then complained of constant low back pain, which was generally sharp in character, worse on the left side.  It had an average severity of 6 out of 10, with a maximum of 9.  It was exacerbated by a range of movements, prolonged sitting and standing, and walking for more than an hour.

172The plaintiff also experienced bilateral leg pain, with intermittent pain radiating into the left buttock, hamstrings and calf, and into the right buttock and hamstrings.  That pain varied in frequency and had an average severity of 4 out of 10, with a maximum of 6.  He was then taking Lyrica and Noten.  He took paracetamol several times a week, as required.

173Professor Bittar noted the accident circumstances, the plaintiff being conveyed by ambulance to Dandenong Hospital thereafter, and the findings set out in the hospital report.

174Professor Bittar noted that over the next two to three weeks, the plaintiff began to experience pain in his lower back, as well as in his neck.  His neck symptoms had largely settled, and he experienced only occasional neck discomfort now.  There was a full range of neck motion that day.  Lower back symptoms had remained problematic and moderately disabling.

175In addition to an impact on his sporting and recreational activities, Professor Bittar noted that due to his pain and its impact on his ability to concentrate, the plaintiff abandoned his study of robotics and his ambition to become a robotics engineer.

176Professor Bittar thought the lumbar MRI scan of March 2018 demonstrated a broad-based disc bulge at L4‑5 with an annular tear, the left L5 nerve root being contacted in the lateral recess, and at L5‑S1, a broad-based disc bulge contacting the left S1 nerve root.

177On examination, the plaintiff had mild restriction of lumbar spine flexion with moderate restrictions on extension. There was bilateral lumbar paravertebral tenderness with muscle spasms.  Straight leg-raising was normal and there was no neurological abnormality.

178Professor Bittar thought the plaintiff presented with L4‑5 and L5‑S1 intervertebral disc injury prolapse, for which the subject transport accident had been the dominant contributing factor.

179He thought the plaintiff’s prognosis was guarded, noting he had longstanding and debilitating symptoms and that he required further investigation and treatment.

180The plaintiff was then working up to 20 hours a week as a night filler with Woolworths on modified duties.  He thought the plaintiff was permanently incapacitated for any type of work involving heavy lifting or repetitive bending and twisting but had a capacity for a more sedentary role.  However, his ability to perform would most likely be adversely affected by a variety of factors ― constant pain, limitations on his ability to sit, and side effects from medication, particularly Lyrica.

181On balance, Professor Bittar thought the plaintiff’s lumbar spine condition was likely to continue to impact adversely on his work capacity, social, domestic and leisure activities, and the need for medical treatment into the foreseeable future.

182Mr Paul D’Urso, neurosurgeon, examined the plaintiff in February 2020.

183The plaintiff told him that he was discharged from the Emergency Department on the same day as the accident.  He initially had pain affecting his knees, particularly the left, and also affecting his left foot.  He stated he rested for a week or two, mostly in bed, but then began to notice increasing back pain.

184The plaintiff stated that his knee and foot injury recovered fully, but he continued to suffer with back pain, which he rated at 7.5 out of 10, with radiating pain into both legs, particularly the left.  He could sit for only twenty minutes before the pain limited him.  He woke occasionally at night because of pain.

185The plaintiff was then working part time at Woolworths and studying robotics full time.

186Mr D’Urso thought it appeared the plaintiff was symptomatic from a disc prolapse at L4‑5 and L5‑S1, causing some subarticular stenosis on the left for the traversing L5 and S1 nerve roots.  It would appear the accident precipitated the onset of symptoms and could well have contributed to the development of the disc prolapse in the lumbar spine.

187He thought the plaintiff was likely to have a degree of ongoing disability and incapacity related to the prolapses.  There would be a degree of degenerative progression with time which could be difficult to determine and predict.  The plaintiff was also at risk of a disc rupture which could cause an acute worsening of his condition and possible neurological deterioration.

188Mr D’Urso would place permanent restrictions on the plaintiff’s work capacity and that he not be required to perform repetitive bending, twisting or lifting, or lifting weights from below the knee or above the shoulder.  He should avoid lifting weights in excess of 10 to 15 kilograms, have the ability to ambulate freely in the workplace, and avoid sitting, standing and walking postures in excess of an hour at a time. 

189He thought the plaintiff should continue with a conservative strategy and participate in a self-management program of core strength exercise under physiotherapist supervision.  He considered the plaintiff would be prone to a degenerative progression of the condition and was at risk of rupture of the discs at those levels.

190Dr Nathan Serry, psychiatrist, examined the plaintiff in December 2017.

191The plaintiff told him of landing on the road after the motorbike accident.  He said he was taken by ambulance to Dandenong Hospital with lower limb injuries and was discharged after some hours.

192In terms of ongoing physical symptoms, the plaintiff said, whilst his toes and knees had improved, he had been left with neck pain, headaches and low back pain.  He advised that pain was not constant, but he was also aware of having been diagnosed with high blood pressure, for which he had been prescribed medication.  He said the only medication he took was for blood pressure.

193At the time of the accident, the plaintiff was studying a Bachelor of Robotics at Chisholm Institute, which he deferred, stating that following the accident, his study level deteriorated markedly and he hoped to return to studies in February 2018.  He had completed a traineeship with Woolworths but had not as yet commenced work as a nightfiller.

194The plaintiff said that since the accident, he just wanted everything to be fixed up.  He was stressed and worried, given his ongoing pain; in particular, the neck pain and headaches, and the fact he had elevated blood pressure.  He advised he would become irritable and frustrated and was less tolerant.  He felt low in mood intermittently and there was not terribly much joy in his life.

195The plaintiff reported his concentration and memory had both deteriorated, and that when he did attempt to return to his TAFE studies, he failed all of the units.

196The plaintiff said that the accident was a turning point in his life.  Before it, his life was heading in a positive direction in every way, but that was no longer the case.

197Dr Serry thought the psychiatric illness arising from the accident was that of an Adjustment Disorder with Anxious and Depressed Mood, with some mild features of traumatisation.

198Dr Serry re-examined the plaintiff in March 2020.

199Since the previous assessment, the plaintiff stated the main issue for him had been low back pain, which was present most of the time, but fluctuated in severity.  He was on Lyrica, anti-hypertensive medication, and was attending a pain management program.

200The plaintiff advised that he attempted twice to return to his Bachelor of Robotics but failed and said that he was expelled.  He was then studying Automotive at Brighton Institute of Technology, having commenced at the start of 2019.  Before that, he attempted to study at another institute, but without success.  He was also doing night fill at Woolworths.

201Since the previous assessment, the plaintiff stated he continued to struggle psychologically, and he specifically described feeling rather fed up by the process he had been involved in.  He could not understand why his treatments had been delayed and he felt that he had been the victim of a degree of discrimination and racism by various doctors and departments.

202He reported his concentration and memory were also poor, his studies had been affected, and he had been expelled from two institutes.  His sleep was very poor and erratic.  He felt stressed and anxious most of the time.

203In terms of study, he said his aim had been to complete Robotics, as that sort of course was not available in Pakistan.

204From a psychiatric point of view, Dr Serry thought the plaintiff now presented as having been worn down, not only by his pain but by the compensation process.

205Dr Serry’s opinion was entirely unchanged in terms of the effects of the accident on the plaintiff.  From a diagnostic viewpoint, the plaintiff would now be considered to have a moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood, and with some features of traumatisation.

206He thought the plaintiff should continue with the pain management program and hopefully there would be a psychological component of that program to assist him with pain management strategies.  As he earlier recommended, more aggressive management of the plaintiff’s accident-related injuries, both physical and psychological, was appropriate, and he should be referred to a clinical psychologist.

The Defendant’s medico-legal evidence

207The plaintiff was examined by psychiatrist, Dr Justin Lewis, in April 2020.

208The plaintiff told him that he was involved in a transport accident whilst riding home from TAFE on his motorbike wearing a helmet.

209The plaintiff described the accident circumstances and being transferred to Dandenong Hospital via ambulance, where he was self-discharged after three hours.  He stated he felt compelled to leave Emergency in order to renew his visa which would have expired had he not renewed it that day.

210The plaintiff stated he fractured two left toes in addition to having bruised knees.

211The plaintiff stated he was studying robotics at the time of the accident.

212The plaintiff said he developed lower back pain following the accident.  He described it as chronic in nature, rating it 6 out of 10 on average, and it was slightly greater on the left side.

213The plaintiff told Dr Lewis of review by a neurosurgeon and pain surgeon and having an injection which took the edge of his pain.  There was a referral for pain management, which had been interrupted regarding what he referred to as TAC liability issues.

214The plaintiff stated there had not been any significant improvement in pain with the passage of time and he said he had just got to live with it.

215The plaintiff was then working at Woolworths at least 10 hours a week and his back pain symptoms were invariably aggravated with work. 

216He described the onset of depressed mood soon after the accident on a background of pain, physical restrictions and poor response to treatment.

217The plaintiff stated that the accident had impacted his life “in every way”.  He advised his mood deteriorated thereafter, secondary to pain and physical restrictions which significantly impacted on his ability to study.  He previously attended Ashton College doing automotive studies, but could not keep up with the course work as a consequence of memory difficulties.

218The plaintiff described significant financial strain and reported feelings of despondency and frustration with the insurer who he thought had been slow to respond to requests for physical treatments.

219The plaintiff described disturbed sleep and chronically lowered energy levels. He also described ongoing cognitive difficulties and being forced to withdraw from his studies on two occasions as a result thereof.

220At that stage, he was attending Brighton Institute 20 hours a week.  He had withdrawn from a Bachelor in Robotics secondary to cognitive difficulties after the accident.

221Dr Lewis thought the plaintiff presented with an Adjustment Disorder with depressive features of mild severity.

222He thought the plaintiff ‘s capacity to study had been significantly impacted by the accident.  He described significant cognitive difficulties secondary to pain and likely medication factors.  He noted that many individuals taking Lyrica do describe cognitive difficulties.

223According to the plaintiff, he had had to withdraw from two courses secondary to cognitive difficulties and irregular attendance.  He was coping quite well, studying automotive 20 hours a week.

224Dr Lewis suspected the plaintiff had been significantly impacted with his studies for at least the first two years after the accident, possibly more, and there were no other reasons as to why he might otherwise have developed cognitive difficulties. 

225He thought the plaintiff’s work capacity was likely to be impacted by work demands that required periods of sustained tension, focus or problem solving, and he would have difficulty with work that involved high order complex problem solving.  He thought the duration of cognitive difficulties was likely to parallel the course of the pain condition.

226The plaintiff also described difficulties with heavy, domestic tasks.  He reported social reticence and giving up previously enjoyable recreational activities.

227Dr Lewis thought the plaintiff would potentially benefit from a referral to a clinical psychologist.  He thought there were no obvious inconsistencies on examination.

228Both Mr Myron Rogers, neurosurgeon, and Mr Gary Speck, orthopaedic surgeon, were asked for a desktop review as to the relationship between the accident and the plaintiff’s lumbar complaint.

229Having been provided with the ambulance and Monash Health records and also the Clayton notes, both practitioners felt there was no connection between the accident and the plaintiff’s current spinal complaints given the gap of nine months between the accident and the first report of back pain to his general practitioner on 23 April 2017 – Clayton notes.

230Mr Rogers, in his report of 20 April 2021, concluded that the transport accident did not result in an injury to the plaintiff’s lumbar spine, and the degenerative changes seen involving the L4-5 and L5-S1 discs would have been pre-existing and were not caused by the accident.

231Mr Speck, in his report dated 26 April 2021, concluded that there was no lumbar spine injury arising from the accident and that the accident was not the cause of the injury to the spine shown in the March 2018 MRI.  The only accident injury was soft tissue injury to the knees and fractured toes.

232Certificates of Capacity provided by Dr Kloot for the period 26 July 2016 to December 2016 set out that the plaintiff had no capacity for employment due to his foot, toes and knee pain.    

233In the TAC Hospital Claim for Compensation Form signed by the plaintiff on 28 July 2016, accident injuries were listed as “pain left knee and toes on right foot”.

Overview

234There are two main issues in dispute in this case – causation and also range.

235The thrust of the defendant’s case was that the plaintiff did not suffer an injury to his lower back in the accident, given the delay in reporting any problem to his general practitioner until 23 April 2017.  Expert opinion was obtained from two medico-legal examiners who, on the papers, concluded, in those circumstances, there was not a link between the accident and the plaintiff’s current back complaints. 

236It was also submitted that any accident-related consequences were not serious given the plaintiff’s change of study from robotics to more physically demanding automotives and his ability to work in a manual job at Woolworths.

237Counsel for the plaintiff submitted the plaintiff’s spinal complaints continue to be accident related and that he made these complaints from an early stage to his general practitioner, Dr Kloot, but she failed to act on them.  The inability to continue in robotics and a number of other consequences were relied upon in terms of seriousness.

Credit

238As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[63]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[63](2010) 31 VR 1 at paragraph [12]

239Counsel for the defendant submitted the plaintiff was a most unimpressive witness, most unreliable and that the “late breaking” suggestion of the numerous complaints to the general practitioner in 2016 should not be accepted.  It was contrary to what the plaintiff had deposed to and was not corroborated by that doctor and there was, accordingly, no basis for such a finding – “one may view it as a matter of convenience to now recall it, given the problems with the nine month gap”.[64] 

[64]T47

240Further, the plaintiff had overstated his use of medication and he had ‘fudged’ his medical treatment for his back, with no back treatment in 2016 or 2017.[65]

[65]T47

241In response, counsel for the plaintiff submitted, far from being an unimpressive witness, the plaintiff was one who made appropriate concessions.  He was clearly a most impressive young man who, finding he was struggling with his studies, gave thought to the rest of his family rather than seeking money from his father.  For five to six months after the accident, he had been hoping to be able to cope with his back pain, but it was apparent he could not when he was working in the laundry.  He gave Dr Woods and Dr Masoumi the history of spinal pain from the outset.  This was consistent with Dr Woods’ referral letter to AP Goldschlager, and the neurosurgeon’s response.[66]

[66]T53

242In response, counsel for the defendant submitted that the plaintiff’s evidence in this regard was not only not cogent evidence, but it was self-contradictory in terms of onset of the pain after working in the factory, rather than telling Dr Kloot straight away.[67]

[67]T60

243Counsel for the plaintiff submitted that the affidavit evidence about the onset of pain after working was not inconsistent.  The affidavit could have been clearer, but it was not inconsistent with the plaintiff’s ultimate viva voce evidence.[68]

[68]        T62

244During the hearing, I had concerns about the plaintiff’s credibility and the reliability of his evidence as to the onset of his spinal pain, given the first mention of an accident-related complaint in the Clayton notes on 23 April 2017 – some nine months after the accident.

245In particular, there appeared to be significant differences between the plaintiff’s affidavit evidence and his viva voce evidence as to the date of the onset of spinal pain.  In his first affidavit, on one view, he described the onset in December 2016, when he went back to laundry work, although he also deposed that some time after the accident he began to notice pain in his lower and mid back and neck.  

246However, for the first time in cross-examination, he mentioned spinal pain complaints to Dr Kloot in the months following the accident and her refusal to treat him for his condition, as it was not part of the TAC claim.

247Also, in terms of consequences, I had difficulty accepting the career/course change from robotics to automotive engineering was accident related, with the plaintiff taking on a more physical role with the mechanics job than a more scientific role in robotics.

248I also had difficulty understanding how he was able to do work as a supermarket shop filler with Woolworths and able to earn up to $40,000 a year, given his claimed physical limitations in what is, as he acknowledged, a manual job.

249However, after the hearing had finished, having read the plaintiff’s clinical notes tendered at that time which contain various certificates and details of treatment and specialist referrals, there was some corroboration of his evidence as to the various matters with which I was concerned.

250In particular, I accept the plaintiff’s explanation why his spinal complaints were not noted until April 2017.  I also accept his evidence as to the consequences of his accident injury he has described.

251The plaintiff cannot be criticised for the way his affidavits are drafted by his legal practitioners.  A proper reading of the clinical notes, had they been available earlier, would have confirmed two practitioners at Clayton, who saw the plaintiff after Dr Kloot, suggested he go back to her as she was the original treater.

252It was not until the plaintiff came under the care of Dr Woods at Clayton, and at subsequent clinics, that his accident-related spinal injury was finally treated.

253Significantly, the notes set out the two occasions where the plaintiff was told to go back to Dr Kloot – first, when he saw Dr Masoumi on 23 April 2017, when the transport accident injuries were first noted and an action item there was “Advised to see the GP who first put him on TAC to discuss the case”.

254Again, when seen at Clayton, this time by Dr Weisman on 16 May 2018, she noted:

“[P]resented for an extension for the uni due to long standing medical condition

I have explained to pt that i have not seen him before for this medical condition so he will need to see the GP WHO seen him before for the same purpose.”

(sic)

255The plaintiff started to see Dr Woods regularly from 17 May 2018, where the reason for the visit was low back injury complaining of chronic pain, and Lyrica was prescribed. 

256Dr Woods first mentioned the accident in the plaintiff’s spinal complaints when he referred him to AP Goldschlager on 31 May 2018.  Dr Woods has consistently mentioned the accident since in referrals and numerous certificates given by him, seeking extensions and special consideration for the plaintiff in his studies.

257The plaintiff’s affidavit is clearly wrong where he says he ceased treatment in Clayton in mid 2017, as the notes of that clinic indicate, that after a gap until May 2018, there were ongoing attendances until the end of 2018. Subsequently thereto, he saw Dr Woods at a number of clinics until October 2019, and more recently has seen another general practitioner, Dr Verghese, earlier this year, having also seen him in July 2019.

258Taking into account this further medical evidence, I accept that the plaintiff did complain to Dr Kloot of spinal pain in the month or so after the accident and that he suffered back pain post accident before his December 2016 return to factory work, when he again had back pain as he explained.  I accept he was focussing on his more obvious lower limb injuries which were slowly recovering, as Dr Woods reported in late 2016.  When he began to mobilise, his spinal difficulties became apparent and he mentioned them to Dr Kloot.  As Dr Woods noted in July 2018, the plaintiff first noticed sciatica a couple of days after he started weight bearing after being stuck in bed.

259As an international student who had been in Australia only a short time before the accident and who did not have a general practitioner, the plaintiff was unaware what he should do next when told by Dr Kloot she was not prepared to treat his back.  This situation was not made easier when other practitioners at Clayton told him he should be being treated by the doctor who first saw him, Dr Kloot.[69]

[69]T52

260Consistent with the plaintiff’s evidence as to Dr Kloot’s refusal to treat him for his spinal complaints, while the TAC accepted the plaintiff’s claim and were funding his treatment, the Claim Form completed on the accident date, when the plaintiff was at the hospital, described lower limb injuries only.

261The TAC has however funded numerous spinal investigations and several physiotherapy attendances.

262Also consistent with the plaintiff suffering a spinal injury in this accident is that he was thrown from his motorbike onto his back on the roadway as the ambulance notes confirmed.  He slid approximately 2 metres on the road, and was found lying supine.  Further, he was fitted with a cervical collar at the accident scene.

263Having accepted the plaintiff suffered a spinal injury in the accident, experienced back pain when he started to mobilise, and reported it prior to April 2017 to his general practitioner, I reject the views of Mr Rogers and Mr Speck, that any current spinal impairment is not accident related on the basis of a nine-month gap from the accident to the first recorded complaint in April 2017.

264Mr Miller, Mr D’Urso and Professor Bittar support a causal link between the accident and the plaintiff’s current back complaints, having based their opinions on an acceptance of ongoing spinal pain since the accident.

Diagnosis

265Treater, Dr Woods, thought the presenting problem was an L5-S1 disc tear due to the accident and left sciatica.  Dr Bhasin thought the plaintiff had ongoing discogenic pain with some left L5 radicular features.   

266Medico-legal opinion is in similar terms, with Mr Miller diagnosing a musculoligamentous strain to the cervical and lumbar spine, and aggravation of degenerative disease. 

267Professor Bittar thought the plaintiff presented with L4‑5 and L5‑S1 intervertebral disc injury prolapse, for which the accident had been the dominant contributing factor.

268Mr D’Urso thought it appeared the plaintiff was symptomatic from a disc prolapse at L4‑5 and L5‑S1, causing some subarticular stenosis on the left of the traversing L5 and S1 nerve roots, with it appearing the accident precipitated the onset of symptoms.

269Counsel for the defendant conceded this is the sort of pathology that could sponsor back pain.  However, while the plaintiff was not entirely pain free, it was submitted “to the extent he has pain, it is so modest and so un-incapacitating as to be nowhere near serious …”.[70]

[70]        T61

270Neither examiner relied on by the defendant diagnosed any accident-related spinal condition. Mr Rogers simply stated the degenerative changes involving the L4-5 and L5-S1 discs would have been pre-existing and were not caused by the accident.  Mr Speck diagnosed soft tissue injuries to the knees and a fracture of the first left metatarsal.

Pain

271As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[71] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[72]   

[71]Supra

[72]        at paragraph [11]

272The plaintiff continues to suffer from pain and restricted movement in his lower and upper back and neck. The lower back symptoms remain the worst, and then radiate upwards and downwards.  These symptoms are mainly left sided, but also right sided.  Neck symptoms are still present but not as bad as they were before. He continues to suffer the same back problems with twisting, bending at the waist, and sitting for prolonged periods.

273In February 2020, the plaintiff told Mr D’Urso of ongoing back pain radiating into both legs, particularly the left.  A similar description was given to psychiatrists, Dr Serry and Dr Lewis, in the following months. 

274In November 2020, the plaintiff reported to Mr Miller his major problem was his back with low backache, discomfort and pain, particularly radiating into the left, with feelings of numbness and tingling, reporting this pain was much worse than when last seen.  There was also neckache, discomfort and occasional pain. The plaintiff also complained of constant low back pain, worse on the left side, when seen by Professor Bittar that month and told him of fluctuating bilateral leg pain.

275Mr Rogers and Mr Speck did not examine the plaintiff.

Treatment

276The plaintiff has undergone a range of treatment since his accident-related spinal injuries have been attended to.

277Initially, he took simple Panadol for pain relief.  He was first prescribed Lyrica in May 2018, and the last prescription appears to be in October 2019.  He still takes this medication on a regular, but not daily basis.  In late 2019, Dr Bhasin also trialled strong neuropathic medication to try to help with sensitised disc pain.

278The plaintiff has attended various general practitioners since the accident for his spinal injuries, particularly Dr Woods from May 2018 to the end of 2019.  The plaintiff last saw Dr Verghese earlier this year when he ordered further investigations.  While there was an eighteen-month gap between the last attendance with Dr Woods and the visit to Dr Verghese, this was not because the plaintiff’s condition had improved.  I accept his evidence as to ongoing pain and restriction during this period and his frustration with that this situation persisted despite strong painkilling medication and other treatment.    

279Dr Woods referred the plaintiff to neurosurgeon, AP Goldschlager, in July 2018, who discussed surgery but recommended ongoing conservative treatment.  The plaintiff has also been referred for physiotherapy, attending Clayton Sports and Spinal in late 2018 on several occasions.  A CT nerve root sheath injection in December 2018 arranged by Dr Woods gave the plaintiff limited relief.

280Dr Bhasin saw the plaintiff for pain management in late 2019 on two occasions. When he last saw him on 2 December 2019, he requested funding from the TAC for an epidural steroid placement with catheter and adhesilysis.  At that stage, he noted the plaintiff was awaiting an IME on 24 February 2020.

281While the defendant was critical this request had not been chased up,[73] Dr Bhasin’s notes set out this request letter was resent to the TAC on 29 May 2020. It appears the TAC has yet to make a decision as to funding of this procedure.

[73]        T48

Other consequences

282The main consequence claimed by the plaintiff is having to give up his chosen career in robotics because of his spinal pain and difficulty concentrating.

283While his first study in Australia was a short Diploma in Management, the plaintiff soon changed to study in robotics – a course not available in Pakistan.  He was undertaking the Diploma and had two units to complete at the time of the accident. He completed those units with difficulty and then enrolled in the Bachelor’s degree, which he unsuccessfully attempted on two occasions.

284He then changed to automotive studies , completing that course in early 2021, but is yet to get a job in that field.

285Counsel for the defendant submitted the plaintiff changing to a career as a mechanic, where, by his own evidence, he is going to spend extended periods of time bending forward, was a “very curious” profession for someone to train in when they have a serious back injury.[74]    

[74]T49

286In response, counsel for the plaintiff submitted the plaintiff had given very cogent explanations of his attempts to continue with his study, having to mislead his father.  He had a “red hot go” and was not able to concentrate on high level engineering studies which were required for robotics, as distinct from less intellectual mechanical work.  That is a huge loss of the aspiration that he would ever become a robotics engineer.[75]  While he had finished the course, he seemed to be more in hope than expectation that he would be actually able to work as a mechanic.[76] 

[75]T56

[76]T55

287There is significant material in the Clayton notes detailing the plaintiff’s difficulties with his study and the need to take leave from his courses.   

288On 23 April 2017, Dr Masoumi at Clayton provided a certificate for the plaintiff to be absent from his studies for one day due to a medical condition.  On 17 July 2017, Dr Woods certified the plaintiff unfit for his studies for the rest of the year due to a medical condition.

289Dr Woods certified the plaintiff was unable to study due to illness from 17 May to 30 June 2018, noting his involvement in a motorbike accident and his difficulties studying effectively that semester.  He noted the plaintiff experienced a similar inability to study and perform academically last year and he advised him to restart his studies in 2018, obviously too early. 

290Dr Woods advised the plaintiff was unable to continue his academic studies at present and should be allowed to withdraw for medical reasons, without financial or academic penalty.

291In another certificate that month, Dr Woods set out the plaintiff was suffering from a lumbar disc injury with neurological sequelae and chronic pain, and had been referred to a neurosurgeon.  His treatment was supported by the TAC and he was from Pakistan, and it was not possible for him to receive like treatment back home, for reasons of both availability and financial impossibility. 

292Dr Woods advised it was essential the plaintiff remained in Australia for at least the next twelve to eighteen months for medical and like treatment and this period may well be extended indefinitely depending on outcome and progress.

293In August 2018, Dr Woods noted:

“starts physio. stopped Lyrica as thought was a one-off course. review of xrays etc. motiv counsel re not losing heart - people always get better, it just FEELS like forever.  …

I think one of the main probs is that he has to keep working to finance his studies so he’s working and studying too.  … .”

(sic)

294The physiotherapist at Sports and Spinal recorded on 19 September 2018 that the plaintiff had to lie on his back to do assignments for four to five hours.

295When Dr Verghese at Union Medical Centre saw the plaintiff on 2 July 2019, he noted:

“… MBA 2016.  Has chronic back pain.  Missed college.”

296As these notes and certificates confirm, the plaintiff had problems studying from 2017 as a result of his accident injuries.  As Dr Lewis explained, many individuals taking Lyrica describe cognitive difficulties.

297I accept that this change in career, post-accident, although unusual, was a result of the plaintiff’s accident injuries – his physical pain and cognitive difficulties resulting from his pain and strong medication.  As a result thereof, he has been unable to pursue the career he wanted in robotics and is trying to get work in a more physically demanding role in automotives where he will have to put up with his pain – as he does in his work at Woolworths – as he has to support himself.

Work

298Counsel for the defendant submitted there had been an improvement in the plaintiff’s condition such that he was able to return to work in late 2016; however, in my view, this return to work was due to financial necessity – certainly not improvement.

299While the plaintiff agreed he would try to work more than 20 hours a week if his visa allowed it, and the Woolworths work is relatively physical,[77] I accept the plaintiff works significant hours in this job with pain as he needs to support himself financially.    

[77]        Defendant’s submission at T49

300A number of TAC Certificates provided by Dr Woods in 2018 and 2019 set out that, due to poverty, the plaintiff was being forced to work when he should be resting, noting he was suffering from chronic pain which caused depression and memory concentration problems.

301These certificates corroborate the plaintiff’s evidence that he has continued to work at Woolworths out of financial necessity and he does so with pain.

302As the plaintiff’s counsel submitted, the plaintiff has given very frank evidence about the work he does at Woolworths and has not downplayed that, but he has said that he requires a lot of rest after his shift.[78] 

[78]        T54

303As a number of examiners have advised, it is appropriate to place restrictions on the amount of physical work the plaintiff can undertake as a result of his lumbar condition, given his ongoing difficulties with bending, lifting and prolonged postures.

304In my view, the plaintiff is somewhat of a stoic, getting on with work and study as best he can with physical pain and the need, at times, for strong medication.[79]

[79]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [4] per Nettle J

305In addition to problems with physical work, as a result of his spinal condition, the plaintiff can no longer play social cricket with his friends.  He would have difficulty  riding a motorcycle – a pastime he used to enjoy and also a means of transport – because of the hunched position he has to adopt when riding.  

306The plaintiff is restricted in his ability to do the heavier housework and shopping.

307His evidence in relation to these consequences is corroborated by his friend’s affidavit.[80]

[80]T59

308The plaintiff is still a relatively young man, now aged only twenty-six.

309In Stijepic v One Force Group Aust Pty Ltd,[81] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms, and of consequential inhibitions upon his enjoyment of life.

[81] [2009] VSCA 181 at paragraph [43]

310The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

311I am also entitled to take into account the expected mental consequences of the plaintiff’s physical injury when assessing seriousness.  He has been frustrated and upset by his accident related limitations and pain and diagnosed with an Adjustment Disorder[82] which can be taken into account in a Richards & Anor v Wylie[83] context.[84] 

[82]Diagnosis of Dr Lewis and Dr Serry

[83](2000) 1 VR 79

[84]T59

312As the plaintiff has continued to experience spinal pain for in excess of five years without significant improvement despite treatment, and all examiners consider his prognosis is guarded, I am satisfied that his impairment is long term.

313Taking into account all the evidence, I am satisfied that the plaintiff’s spinal impairment is “serious”.

314Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.

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