Borg v Transport Accident Commission
[2025] VCC 384
•4 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05119
| BRIAN BORG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2025 | |
DATE OF JUDGMENT: | 4 April 2025 | |
CASE MAY BE CITED AS: | Borg v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 384 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – innocuous event – causation – chronic pain syndrome – credit
Legislation Cited: Transport Accident Act1986
Cases Cited:Popal v Transport Accident Commission [2023] VSCA 222; Church v Echuca Regional Health [2008] VSCA 153.
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Coote with Ms E Harold | Slater and Gordon Lawyers |
| For the Defendant | Mr F Ryan SC with Ms V Katotas | Solicitor to the Transport Accident Commission |
HIS HONOUR:
The question of an innocuous event
1The question posed in this proceeding is whether a seemingly innocuous event caused a “serious injury”.
Introduction
2Brian Borg (“the plaintiff”) is a now 39-year-old, divorced father of three teenage children. He has a history of manual work, including as a truck driver for Patterson Cheney.
3The plaintiff was at work on 27 July 2020, when he was involved in a ‘transport accident’ which he claimed caused him to suffer either a serious physical injury, or a severe psychiatric injury, within the meaning of s93 of the Transport Accident Act 1986 (“the Act”).
4The plaintiff said he was injured because a co-worker reversed a truck into him when he was standing behind it (“the transport accident”), with sufficient force to cause or trigger a “serious” physical injury. The physical injury relied on was an organically based chronic pain syndrome. In addition, he contended that because of the physical injury, he had developed a psychiatric illness or condition, that was also “serious”.
5The defendant disputed that there was any contact between the truck and the plaintiff. The defendant contended that if there was contact, any force involved was very minor, or innocuous and insufficient to cause any immediate physical injury or the development of an organically based chronic pain syndrome. In addition, the defendant contended that because there was no physical injury, there was no related psychiatric injury/condition, or even if there was, such a condition was not “severe” and did not meet the test of “serious injury”.
6Pausing, s3 of the Act defines a ‘transport accident’ as “an incident directly caused by the driving of a motor car or motor vehicle…”. Therefore, even if the truck did not strike the plaintiff, the incident would meet the definition of ‘transport accident’. That means that the plaintiff must pass through the “serious injury” gateway in s93, even though the transport accident happened in the course of his employment, and he has had an accepted WorkCover claim.
7In fact, the plaintiff relied on an accepted WorkCover claim as evidence in support of his claim for “serious injury”. But, that claim was accepted by the relevant WorkCover Agent and so cannot be said to be an admission that can be used against the defendant. Further, the basis for accepting the claim is not in evidence and the WorkCover Agent does not have the benefit of all the evidence that the parties adduced in this proceeding. Therefore, there is really no useful evidence in the WorkCover claim documents for a consideration of “serious injury”.
8The plaintiff conceded, via his counsel, that if the ‘transport accident’ did not involve an impact between him and the truck, or if it did not produce a physical injury, then the claim for “serious injury” would fail, regardless of whether it was based on the physical or psychiatric injury.[1]
[1] Transcript (“T”) 104, Lines (“L”)1-6
9Regarding the circumstances of the ‘transport accident’ and the claimed injury, lead counsel for the plaintiff said that: “[I]t would be open to find that it appeared that it was innocuous but that there was contact with it between the truck and his groin or stomach area…”.[2]
[2] T 92, L 14-20
10I shall next set out the evidence of the ‘transport accident’. That evidence does not rule out the possibility that there was physical contact between the plaintiff and the truck, but it also supports the conclusion that if there was contact then it was very minor and was innocuous, which returns to the question posed in paragraph one of these reasons.
The plaintiff’s evidence of the transport accident
11In an affidavit sworn 12 May 2022, the plaintiff described the transport accident as follows:
“Transport Accident
On 27 July 2020, I was involved in a transport accident at work.
I was at work. I parked a truck in the driveway of my employer at Derrimut.
I turned off the engine of the truck and got out. I left the keys in the ignition.
I went to the rear of the truck to remove the trade plate from the truck.
Unbeknownst to me, a colleague got into the truck and did not know I was at the rear of the vehicle. He started the truck and reversed into me. I was hit by the truck but not trapped.
I was hit by the truck in my stomach area. I felt like I had been kicked between the legs. I also had an overwhelming feeling of needing to go to the toilet. I went to the toilet but was still feeling unwell and like I had pressure in my abdomen.”[3]
[3]Plaintiff’s Court Book (“PCB”) 12
12The plaintiff was cross-examined extensively about the transport accident. He was taken to descriptions given by him to medical practitioners, which I shall set out, but which broadly conveyed the impression that there was force to the plaintiff’s body when the truck hit him.
13As an overview, in cross-examination the plaintiff was asked to confirm that in the transport accident he was thrown backwards by contact with the truck and he said “yes”.[4]
[4]T 11, L 26-27
14Later, the plaintiff explained that the truck had hit him, he did not know how to explain it, but “Like, it’s been - it pushed me backwards”.[5]
[5]T 12, L 15-17
15The plaintiff also said that immediately after the accident he felt as though he had been struck to the testicles and had crippling pain.[6]
[6]T 12, L 25-29
What the plaintiff told doctors about the transport accident
16The plaintiff’s affidavit and oral evidence of there being force applied to his body and immediate pain when the truck hit him was broadly a history that he gave to all medical practitioners.
History to treating practitioners
17The plaintiff first sought medical attention after the transport accident by telephoning Dr Mahanthage Ariyarathne at the Greenvale Medical Centre. Dr Ariyarathne recorded in tendered clinical notes that the plaintiff had been “hit by truck at work…hit hisR/abdomen and groin, ongoing pain since then, he jumped away…no haematurea, no worsening pain with urination…? Intra abdominal injury, advised to go to ED now”.[7]
[7]Defendant’s Court Book (“DCB”) 117
18In accordance with the advice from Dr Ariyarathne, the plaintiff attended at the Northern Hospital later that day and was probably discharged early the following morning. In a summary of presentation and inpatient management prepared at the hospital, it was noted the plaintiff had been hit by a reversing truck travelling at approximately 10 kilometres per hour at 4.00pm, suffering a direct trauma to the lower abdomen, but then developing pain in the lower abdomen at about 4.30pm and subsequently radiating into the right testicle.
19The date is not in evidence, but some time after the transport accident, and at least by 20 November 2020[8] the plaintiff commenced as a patient at the Gladstone Park Superclinic for treatment for the claimed transport accident related injuries. One of the doctors at that clinic who has treated the plaintiff is Dr Babak Taghizadeh. Regarding the circumstances of the transport accident, Dr Taghizadeh, in a report dated 9 December 2022,[9] obtained a history that the plaintiff had been hit by a truck at work while the truck was moving backwards and that he had been hit on his pelvic area (right side).
[8] PCB 62
[9]PCB 76
20Next, in a report dated 9 February 2023, Dr Taghizadeh described the plaintiff as having “abdominal contusions and ongoing pelvic pain due to crush injury whilst at work”.[10]
[10]PCB 85
21The plaintiff has had physiotherapy treatment from Ms Silvana Rizk. In a report dated 10 February 2025,[11] Ms Rizk said that, “After the incident when the truck reversed into [the plaintiff’s] abdominal/pelvic area, he sustained an acute contusion to the abdominal/pelvic area”.[12]
[11]PCB 97
[12]PCB 97
22The plaintiff has undergone pain management with Dr Vinay Reddy. In a report dated 27 March 2024, Dr Reddy described the transport accident as the plaintiff having been hit on his lower abdomen by a reversing heavy-goods vehicle.[13]
[13]PCB 101
History to medico-legal consultants
23The plaintiff was seen for medico-legal purposes at the request of his solicitors by Dr Clayton Thomas, consultant in rehabilitation and pain medicine. In a report dated 12 January 2024, Dr Thomas recorded the transport accident involved a medium-rigid truck, the plaintiff was getting something from the back of the truck when someone jumped into it and reversed the truck. Dr Thomas recorded how the plaintiff was struck to the right lower abdomen/groin region, was pushed back and felt immediately as if he had been “kicked in the balls”. Dr Thomas also recorded the impact as having caused the plaintiff to be thrown backwards, but he landed on his feet.[14]
[14]PCB 112
24Dr Justin Lewis is a consultant psychiatrist who examined the plaintiff at the request of his solicitors and provided a report dated 13 November 2024. Dr Lewis took a history of the transport accident, including that the truck made contact with the plaintiff’s abdominal area, causing the plaintiff to feel like he had been kicked in the right testicle and that he was out of breath like he was winded. Dr Lewis recorded the plaintiff saying that he had “stumbled”, but did not fall over and recalled other co-workers screaming out at the driver to stop.[15]
[15]PCB 122
25Dr David Fish is a consultant occupational and environmental physician who examined the plaintiff as part of the assessment of his WorkCover claim. In a report dated 16 March 2022,[16] Dr Fish recorded how the truck had reversed into the plaintiff, striking him over the lower abdomen by a protruding bar and how the plaintiff was thrown backwards with immediate pain in his testicle.
[16]PCB 133
26The plaintiff was seen for medico-legal purposes by Associate Professor Laurence Harewood, urologist, at the request of the defendant. In a report dated 5 July 2023, Associate Professor Harewood recorded how the accident occurred when a truck reversed into the plaintiff’s abdominal area, impacting him in the suprapubic region.[17]
[17]DCB 6
27Dr Anupam Pokharel is a consultant psychiatrist who examined the plaintiff at the request of the defendant. In a report dated 27 July 2023, Dr Pokharel obtained a history of the plaintiff describing how he was struck by a reversing truck in the carpark of his workplace. Dr Pokharel recorded that:
“… He stated he was facing the truck at that time and getting stuff from behind the truck when the driver reversed it, not realizing [the plaintiff] was behind the truck. He said the driver stopped when he yelled and banged on the truck, before which the truck lifted him up from the ground. He said everything happened very fast … .”[18]
[18]DCB 22
28Dr Joseph Slesenger is an occupational physician who assessed the plaintiff as part of his WorkCover claim. In a report dated 26 November 2020, Dr Slesenger obtained a history that the plaintiff was injured when a truck reversed into him, causing him to suffer a contusion into his lower anterior abdomen.[19]
[19]DCB 39
Summary of the plaintiff’s description of the transport accident
29The short point is that the plaintiff consistently described explicitly or implicitly an incident of some force when a truck reversed into him, striking him to the lower abdomen.
30Further, the plaintiff’s evidence and description of the transport accident was of an event that caused the immediate onset of disabling pain in his groin, abdomen and testicles, with significant ongoing impairment consequences, including urological symptoms.
Closed circuit television footage
31The transport accident was in fact captured on closed circuit television (“CCTV”) at the employer’s workplace.
32The defendant tendered six short sections of CCTV footage, which either depicted the incident or the aftermath. But I accept that there is a limitation of the CCTV footage, because the distance from the recording cameras, the positioning of the truck and other trucks at the workplace, to some extent obscure the recording of the transport accident.
33Therefore, by reference to the CCTV footage, it is impossible to say exactly what happened in the transport accident, or whether there was physical contact between the plaintiff and the truck. But it is possible to say that the CCTV footage is objective evidence of an innocuous event.
34Two of the CCTV recordings were played in court. I watched those recordings and the other CCTV recordings in chambers during the luncheon recess. Then after the luncheon recess I described my observations from those recordings to the parties in court. What I said in court, by reference to the unrevised transcript is as follows:
“… just for the purpose of the record as it were, just indicate this - that during the luncheon adjournment I watched six more sections of video. The first one I will call V1 is the video that was played in court, and relevantly at about three minutes 13, or - that's how it is stamped on the video, that is when the plaintiff gets out with your little truck and goes around the back. At about 3.36, he appears to use both hands to remove some form of strap. At about 3.43 is the incident.
The incident - at the time of the incident he appears to be holding a black bag in his left hand and has his torso, on my assessment, slightly bent so that his left hip or left side of his body is approaching the van, and the incident seems to suggest or the video seems to suggest rather that whatever happened in the incident, immediately after it - well, there's two parts to it. The van reverses a short distance, or the truck rather, and then it reverses again. By the time it reverses again the plaintiff has moved out of harm's way, but the first section, he appears to have his left hand - the one holding the bag - up in the air in some distance, extended in front of him.
Next, in video two, at about the 30-second mark, there is some further depiction of the incident although it is obscured by what appears to be a small tanker type truck parked closer to the camera. But for what it's worth, that also confirms my impression that he was slightly turned to his left and facing the truck in that direction when the incident occurred and had his hand up with the bag.
Video three, at approximately 1.25 shows the plaintiff walking along - as best I can tell, in an apparently normal manner carrying a black bag. Video four shows something similar at about 1.11 on that video. Video five, at about 19 seconds shows the plaintiff walk through some form of office carrying a bag, taking some document out of it, and video six at about 2.44 on the video appears to show the plaintiff striding - and they are my words - through reception.
Now, in that context perhaps where Ms Ryan is about to start it is clear that the plaintiff has given a consistently unreliable description of the incident, and that is a relevant consideration first of all as to whether it occurred, and secondly what flows from that - and in particular, defendant court book 22, Dr Pokharel in his report of 27 July 2023 had a history that the plaintiff was facing the truck at the time and getting stuff from behind the truck when the driver reversed it, not realising [the plaintiff] was behind the truck. He said the driver stopped when he yelled and banged on the truck, before which the truck lifted him up from the ground.
Now, it may be that his arm extended as you can see on the video - make some contact with the truck. It's hard to say, but I didn't observe him banging on it and I certainly didn't observe him being lifted up from the ground.”[20]
[20]T 67, L 7 ꟷ T 69, L 1
Conclusions about the transport accident and credit
35Having considered the CCTV footage, I conclude that the plaintiff has given a consistently unreliable description of what happened between him and the truck.
36The defendant submitted that the Court ought not accept the plaintiff as a witness of credit.[21]
[21]T 69, L 26-28
37I accept that the plaintiff was not a credible or reliable witness. That conclusion is not based solely on the CCTV footage, although that is certainly a factor in my conclusion.
38In addition to the CCTV footage, the defendant tendered covert video surveillance (“the video surveillance”) it had obtained of the plaintiff on various dates in January 2024.[22] The video surveillance must be considered amongst other things for the time and context of when and how it was obtained, as well as what it demonstrated the plaintiff to do.[23] What it showed was that on several occasions in January 2024, the plaintiff was able to engage in ordinary daily activity without any obvious restriction or impairment for those daily activities. The video surveillance showed that he could put fuel in his car, spend social time outdoors with his children, sit for an extended period, bend to lift a pet, bend to empty the mailbox, drive a car and go shopping.
[22] Exhibit D2
[23] Church v Echuca Regional Health [2008] VSCA 153; 20 VR 566
39In isolation, what is shown in the video surveillance is unremarkable. But what is shown is inconsistent with the description of ongoing consequences as set out in the plaintiff’s affidavits. For example, in his most recent affidavit sworn 11 February 2025, the plaintiff described a litany of ongoing claimed impairment consequences, including what he described as disabling pain in his pelvis, sharp pain in the groin, numbness and the like. He described significant restriction for ordinary day-to-day activity, difficulty driving, sitting, engaging with his children and significant embarrassing symptoms, such as sexual dysfunction, urinary and faecal incontinence.
40The video surveillance casts doubt on the accuracy of the plaintiff’s description of impairment consequences.
41There are also other examples of inconsistencies in the plaintiff’s evidence, such as in his first affidavit where he described having developed hair loss because of injuries suffered in the transport accident. Yet the clinical records from the Greenvale Medical Centre reveal the plaintiff had been treated for hair loss before the transport accident, a history which he had omitted from his affidavits. He also sought to implicate the transport accident in the demise of his marriage, although the medical records[24] reveal other reasons that caused significant problems in the marriage, which the plaintiff conceded in cross examination to be the case.[25]
[24] DCB 115
[25] T 58, L 2-3
42As has been said many times; in assessing the “seriousness” of a claimed injury, credit of the plaintiff is often of critical importance. Further, the opinion of medical examiners, and in particular medico-legal examiners, is often only as reliable as the history provided.[26]
[26]Popal v Transport Accident Commission [2023] VSCA 222
43The plaintiff was an unreliable witness. Whether he was deliberately dishonest is a more difficult and ultimately an unnecessary conclusion to draw. He had been provided the CCTV footage of the transport accident before giving his oral evidence, yet he refused to concede the obvious, namely that whatever happened did not involve him being thrown backwards. Perhaps he genuinely perceived this to have been a major event, when objectively it was not. Regardless, his description of it was at best unreliable.
44Whether the plaintiff was unreliable or dishonest, the practical result is the same. His description of what happened between him and the truck is wrong. In addition, his description of impairment consequences was unreliable and exaggerated.
45The unreliability of the plaintiff is then ‘front and centre’ for the result of this proceeding, because to succeed the Court must accept his subjective complaint that the transport accident caused a physical “injury” that has been productive of a “very considerable” impairment consequence from pain and suffering or pecuniary loss consequences, in isolation or in combination.
46Further, to succeed, where there is no objective support in the medical evidence of any injury that could be described as traumatic, for example so as to explain his claimed urological consequences, the Court must accept the opinion of Dr Thomas that the transport accident caused an organically based chronic pain syndrome.
The relevant medical evidence
47Next, it is convenient to set out the relevant medical evidence about injury, before considering in detail the evidence from Dr Thomas.
48But before doing so, I acknowledge the concession by lead counsel for the plaintiff that if the Court was to conclude that there was no impact with the truck, then the reasoning of Dr Thomas falls away and the reasoning of the psychiatrists fall away as well.[27]
[27]T 104, L1-6
49Having watched the CCTV footage carefully on several occasions, I consider there is a very real doubt as to whether there was in fact contact between the truck and the plaintiff’s stomach, abdomen or groin. The way the plaintiff appeared to me from the CCTV footage was that he was at the rear of the truck, close to it, slightly turned to his left and had his left arm extended. On my assessment of the CCTV footage, there may have been some contact between his left arm and the truck. Perhaps that is what he meant when he told doctors he banged on the back of the truck, although the CCTV footage did not show him banging on the rear of the truck.
50Based on the CCTV footage, I cannot exclude that there was very minor contact between the rear of the truck and some part of the plaintiff’s stomach or abdomen. But he was not thrown or knocked backwards. His immediate reaction was one of annoyance associated with a “near miss”, as opposed to remonstrating with the driver because of any injury suffered by him. The CCTV footage showed that immediately after the transport accident he walked normally to his employer’s office, and indeed, at one point appeared to be striding quite briskly through a reception area. The CCTV footage does not support a conclusion that he reacted as if he had been “kicked in the balls” or that he had an urgent need to urinate. It is also notable that he did not remonstrate with the driver or appear in any way to be affected by pain, let alone to be suffering disabling pain.
51In my view, the CCTV footage and the objective evidence casts a very real doubt about whether the truck did contact the plaintiff. But overall, I cannot rule out that some light contact may have occurred between the truck and some part of the plaintiff’s body.
52For a consideration of the medical evidence, while there is doubt about it, for the purpose of this proceeding, I will proceed on the basis that there was some very minor, innocuous contact between the plaintiff and the truck.
53But I do not accept that the minor contact caused any type of injury that could be described as a “traumatic”, or “frank” injury. In fact, there is no objective evidence of even any minor physical injury, such as bruising. When he was examined at the Northern Hospital on the day of the transport accident there was recorded that his abdomen was soft but there was “nil signs of bruising”.
54The Northern Hospital records included a subjective finding that the plaintiff was tender in the right testicle. A CT examination of the plaintiff’s abdomen and pelvis was arranged at the Northern Hospital and said to demonstrate a “slight increase in the attenuation of fat of the upper mesentery” and that the CT finding “may represent mesenteric contusion”, which is hardly a firm diagnosis of any physical injury and appears predicated on an assumption of some force applied to the plaintiff’s body by the truck and an acceptance of his complaints of pain. In other words, the initial CT findings are equivocal for injury as being causally related to the transport accident.
55The CCTV footage, in combination with the objective examination findings at the Northern Hospital, support a conclusion that the transport accident was of such low impact that it did not even cause a bruise or a mark on the plaintiff’s body.
56The question then becomes whether such a trivial or innocuous event can cause either a physical or a psychiatric injury to explain the profound impairment consequences now described by the plaintiff.
Treating medical practitioners
Gladstone Park Superclinic
57The medical reports from doctors at the Gladstone Park Superclinic describe the plaintiff’s subjective complaints of pain and discomfort, without providing any clear diagnosis. For example, Dr Taghozadeh in a report of 1 December 2022 described “ongoing pain and discomfort in the right zone of both pelvic area and also lower right abdomen associated with some degree of urinary incontinence”.[28]
[28]DCB 82
58Then in a report of 14 July 2023, Dr Taghozadeh said that the plaintiff “reported to me that he has had abdominal contusions and ongoing pelvic pain due to crush injury whilst at work on 27 June 2020”.[29]
[29]PCB 88
59The CCTV footage proved that there was in fact no crush injury. That impacts the weight to attach to the opinion of Dr Taghozadeh.
Silvana Rizk
60Ms Rizk is the treating physiotherapist who reported on 10 February 2025. Ms Rizk recorded the incident and the plaintiff’s inaccurate history of having suffered an acute contusion to the abdominal/pelvic area. Ongoing dysfunction and pain was recorded by Ms Rizk. The current medical condition was described as chronic pain, weakness in the lower part of the body, muscle spasms in both back and legs.[30] He report is a description of symptoms as opposed to providing any useful diagnosis.
[30]PCB 98
Dr Gregory Jack
61Dr Gregory Jack is a treating urologist who provided a report dated 24 March 2024.[31] Dr Jack recorded the plaintiff’s complaints including that the initial CT scan at hospital showed “internal bruising” which Dr Jack recorded as subjective complaints when he said: “Brian’s words, report not available”.[32]
[31]PCB 99
[32]PCB 99
62Dr Jack was provided with the six sections of CCTV footage relevant to the transport accident and presumably was asked to answer a question about whether an injury within his expertise could have been suffered by reason of the events shown in that footage. Dr Jack said cryptically: “this is outside of my expertise”.[33]
[33]PCB 100
Dr Vinay Reddy
63Next, Dr Vinay Reddy is the treating pain specialist to whom the plaintiff has been referred. In a report dated 27 March 2024, Dr Reddy took a history of widespread complaints of pain. When asked about diagnosis, Dr Reddy said:
“Mr Borg has been suffering from Chronic Right lower abdomen / groin / testicular pain. Pain is a mixture of nociceptive and nociplastic (pain with altered nociception and central sensitisation). Currently nociplastic pain is dominant in nature. Pain has had impact on his emotional health and physical ability.”
64Then when asked to detail the plaintiff’s current condition and symptoms, Dr Reddy said:
“As mentioned above, Mr Borg has been experiencing Chronic Right lower abdomen / groin / testicular pain which is of both nociceptive and nociplastic in nature. his emotional health and physical ability have been affected as he has not been able to return to work from the time of injury. He has had transient benefit from first diagnostic injections where pain reduced from high intensity to mild to moderate with some functional improvement.”
65Dr Reddy was also provided the CCTV footage of the transport accident, asked to review it and whether it was Dr Reddy’s opinion that the work related injury sustained on 27 July 2020 remains a material cause of the plaintiff’s injury. In response to such a question, Dr Reddy said:
“Six videos were sent to me and they are dated as 27 July 2020. I assume that person of interest in the video is Mr Borg, as I am not certain from the video.
I assessed Mr Borg as a treating pain physician. On the balance of probabalities my opinion is that the injury sustained on 27 July 2020 is the material cause of the above mentioned Chronic pain condition.
66Dr Reddy was finally asked whether the CCTV footage was consistent with the plaintiff’s history, diagnosis, prognosis and the doctor’s opinion. Dr Reddy said:
“On the balance of probabilities above surveillance is consistent with Mr Borg's history, diagnosis and my opinion. I am not able to comment on his prognosis.”
67Dr Reddy provided a further report date 25 May 2024 and again set out a history of ongoing treatment, including various diagnostic blocks that the doctor had performed. Dr Reddy repeated that the plaintiff was suffering from chronic right lower abdomen/groin/testicular pain. Dr Reddy repeated the opinion that the pain was a mixture of nociceptive and nociplastic pain. Central sensitisation was said to be the dominant cause of the plaintiff’s pain.
68Dr Reddy provided a third report dated 29 October 2024 opining that the plaintiff’s condition was stable.[34]
[34]PCB 108
69The reports from Dr Reddy reveal an initial assumption of a physical injury caused by an impact between the plaintiff’s lower abdomen and a reversing heavy goods vehicle, with the subsequent development of widespread pain. It is unclear whether Dr Reddy ever had available any of the other objective medical material. Dr Reddy noted the role of a treating physician and because of that role appears to have given the plaintiff the benefit of the doubt (in the doctor’s words, on the balance of probabilities) even when presented with the CCTV footage, to continue to accept that there was some triggering physical injury to explain the development of a pain condition.
70I am not critical of Dr Reddy’s approach as a treating practitioner for not taking a critical approach to the reliability of the plaintiff. But having made my own assessment of the reliability of the plaintiff based on the CCTV footage, the video surveillance (which Dr Reddy has not seen) and the other occasions in the objective evidence where he was shown to be unreliable, I am not prepared to give the plaintiff the benefit of the doubt necessary to accept Dr Reddy’s opinions to link an ongoing physical condition to the transport accident.
Balance of medical opinions
71Pausing here, there are the other medico-legal opinions, the authors of which I have mentioned during the section devoted to the plaintiff’s description of the transport accident. I do not propose to spend time dwelling on those opinions. There is no other opinion (apart from Dr Thomas) that supports an argument that the plaintiff suffered a discreet or frank injury, such as some form of urological trauma, that is the cause of any ongoing impairment consequences.
72So far as the medical evidence is concerned, the plaintiff’s whole case is built around a contention that there was a triggering blow to his abdomen or stomach, which caused him to suffer immediate disabling pain and consistent with the development of an organically based pain condition. The only support for that contention is the opinion of Dr Thomas.
Dr Clayton Thomas
73That brings me to the opinion from Dr Thomas, who is the proponent of the organically based pain syndrome as the cause of the plaintiff’s ongoing impairment consequences. In fact, to cut to the chase, if I accept Dr Thomas’ opinion, then the plaintiff’s application may succeed, but if I reject his opinion, then the plaintiff’s application must fail. As the plaintiff’s lead counsel appropriately accepted, the case for an ongoing organic pain condition stands or falls based on Dr Thomas. But this concession was said by his counsel to be: “buttressed by all the other investigations which have concluded that there isn’t a neurological cause so that sits comfortably with central sensitisation as being causative”.[35]
[35] T 65, L 25-31
74Dr Thomas saw the plaintiff for medico-legal purposes at the request of his solicitors. His first report is dated 12 January 2024. It was that report in which Dr Thomas obtained the history of the plaintiff being struck in the right lower abdomen/groin region, then pushed back and feeling immediately as if he had been “kicked in the balls”, with sufficient impact to cause him to be thrown backwards.[36]
[36]PCB 112
75In his first report regarding diagnosis, Dr Thomas said:
“Diagnostically, he is suffering from an organic injury. He is suffering from a chronic pain syndrome.
I think there is both a nociceptive cause for his problem and central sensitisation. I think there is a significant degree of central sensitisation. Palpation in the right lower back referred pain to the right testicle.
I think it is likely that he has pathology relating to this region.
The prognosis is for ongoing pain and disability.”
76Dr Thomas then set out the plaintiff’s subjective description of significant and disabling impairment consequences.
77Next, Dr Thomas provided a report dated 4 March 2024 having received the relevant CCTV footage of the transport accident. He said that:
“It is not possible to indicate that the truck struck him as the view from the CCTV was not fully on him but you can see that he quickly moved backwards away from the truck.”
78Dr Thomas then went on to say that:
“The nature of these chronic pain syndromes is that often there is a disconnect between the event and the subsequent development of these pain syndromes. This is not uncommon in a variety of different types of organic pain syndromes, chronic pain syndromes including whiplash and associated disorder which is predominantly a disorder in which central sensitisation occurs. Similarly for complex regional pain syndromes. As such, you can get severe pain syndromes to occur after similarly at times innocuous initial triggers.
I have no concerns at the evidence that has been sent by video footage to me related to the report that I performed and sent to you dated 12 January 2024.
My opinion stands as outlined in that report having reviewed the footage which appear to be six different CCTV cameras at different angles.”
79Next, Dr Thomas provided a third report dated 18 September 2024, clarifying medical terms as follows:
“1. Nociceptive cause. Nociceptive refers to a mechanical problem. Inflammation of a tendon. Abnormality of a joint. Osteoarthritis. Nociceptive nerve receptors, therefore, would cause pain with certain activities. For instance, with an arthritic joint, generally speaking, if you would get the joint into a comfortable position, the pain would go away. The pain would be worse with over activity of that joint but would ease and potentially go away with inactivity and getting into a comfortable position.
2. Central sensitisation or nociplastic pain is when the normal somatic nerves have become sensitised so that instead of not being involved in pain transmission, normal sensations are being interpreted as being painful. Nociplastic pain or central sensitisation is considered an organic chronic pain syndrome.
Central sensitisation can be present in the presence of other pain conditions.
For instance, a chronic joint pain over time could become sensitised so that you could have both nociceptive and central sensitisation in the same area. In these situations when the joint has been surgically treated, for instance, a joint replacement, the expectation is that the joint might become more stable and the like but the operation may make no difference on the pain.
Nociplastic pain syndromes also tend to occur in the presence of significant emotional distress when the normal pain defenses are not functioning well.”
80Finally, Dr Thomas provided a short addendum report dated 17 March 2025 in which he said that chronic pain syndromes with central sensitisation can occur to any part of the body and was responsible for the plaintiff’s urological symptoms. Dr Thomas said that with these pain syndromes, investigations are not helpful and can often be normal.[37]
[37]PCB 120
81Dr Thomas is a consultant in rehabilitation and pain medicine, and I have carefully considered his evidence. But I do not accept it in this proceeding.
82First, Dr Thomas initially proceeded on the false basis that there was a triggering event involving some force between the plaintiff and a truck.
83Second, Dr Thomas initially proceeded on an acceptance of the plaintiff’s subjective complaint of immediate and disabling pain after the transport accident, with a continuation of such symptoms, which is inconsistent with the conclusions that I have made.
84Third, where at best there was a very minor and innocuous event involving the plaintiff and the truck, but not of sufficient force to even cause a bruise, it is hard to understand Dr Thomas’ conclusion that the transport accident caused an organically based chronic pain syndrome, whatever label is given to it.
85To accept Dr Thomas’ opinion there must be an acceptance that immediately after contact between the plaintiff and the truck, there was triggered an organically based pain syndrome. I do not understand how that can occur, other than as expressed by Dr Thomas in his pithy comment that there can often be a disconnect between the event and the subsequent development of these pain syndromes.
86There is something of a hint in Dr Thomas’ second report by his use of the phrase “subsequent development of these types of pain syndromes” said by him to be not uncommon in situations including whiplash. But whiplash is an event that could be described as a “traumatic” event, and in such a scenario it is easier to understand how there might be the subsequent development of a pain syndrome. Of course, in this proceeding there was no such initiating event that bears any resemblance to whiplash. There was only an innocuous event.
87True it is that Dr Thomas went on to say at a high level of generality that severe pain syndromes can occur after at times innocuous initial triggers. Because of that broad thesis about the aetiology of pain syndromes, it seems he saw no reason to alter his opinion regarding the plaintiff, even after watching the CCTV footage.
88But on the facts of this proceeding, firstly I do not accept that there was a physical injury that could be described as an initial trigger. Secondly, I do not accept the plaintiff’s extreme description of disabling pain immediately after the transport accident and continuing.
89My conclusions about the transport accident and the lack of injury must then be considered in an analysis of the thesis contended for by Dr Thomas, that an innocuous event can cause an organic pain syndrome. As I have said, apart from expressing that as a general proposition, Dr Thomas provided no path of reasoning as to why the innocuous event shown on the CCTV footage caused the plaintiff to suffer an organically based chronic pain syndrome.
90The weight, if any, to attach to Dr Thomas’ opinion is diluted by his initial acceptance of what the plaintiff told him both about the force involved in the transport accident and the onset of immediate disabling pain. When provided with the CCTV footage, Dr Thomas ignored the unreliability of the plaintiff and instead adhered to his earlier opinions, without explaining why.
91Dr Thomas does not provide a path of reasoning in his subsequent reports to explain why the inaccurate history provided by the plaintiff does not influence a consideration of the relevant diagnosis. He does not explain why an unreliable history of the triggering event does not alter his opinion on causation. He does not explain why the unreliability may not also be a relevant factor for the described impairment consequences. Instead he provided opinions at a high or general level, but with no clear path of reasoning why for this plaintiff, he adhered to his initial opinions.
92While Dr Reddy may be excused as a treater for not being so concerned about issues to do with causation, a medico-legal consultant, in accordance with the expert witness obligation to the court, should at least acknowledge that the expert opinion was at least initially based on a history that had been proven to be false and then provide coherent reasons to explain why that does, or does not, alter the previously expressed opinion.
93In short, without sufficiently explaining his path of reasoning, Dr Thomas has given the plaintiff the benefit of the doubt, which I am not prepared to do.
Result – physical injury
94This is a proceeding in which there was a very minor, innocuous event, albeit a transport accident, involving the plaintiff and a truck.
95After a consideration of the whole of the evidence, I conclude that the innocuous transport accident did not cause any immediate physical injury. There is also no objective evidence of any ongoing physical injury. The only evidence of physical injury is the plaintiff’s subjective description, which is unreliable and must be rejected.
96For the plaintiff to succeed in this proceeding, first there must be an acceptance of his subjective complaints of pain and impairment consequences from the transport accident. I do not accept his subjective description of the transport accident, or of the symptoms that developed immediately and thereafter, or of his description of ongoing pain and impairment consequences.
97Also, for the plaintiff to succeed in this proceeding, there must be an acceptance that he has an ongoing organically based chronic pain syndrome, caused by the transport accident, as per the opinion from Dr Thomas. For the reasons expressed, I do not accept that to be the case.
98Further, it should not be forgotten that even if there is an ongoing physical injury, the impairment consequences must be “very considerable”. Once again, where the plaintiff bears the onus, his unreliability means that the true assessment of any ongoing impairment consequences is simply not possible. Accordingly, he failed to establish the true extent of any impairment consequences. In addition, and on balance, in part because of the video surveillance, but also because of what is retained, such as the fact he can still drive a car, care for his children, and play his racing simulation for extended periods, any true impairment consequences are likely not “very considerable”.
99Therefore, the claim based on a physical injury fails.
The psychiatric injury
100As a corollary, the claim based on psychiatric injury must also fail because it was predicated on the basis that there was an ongoing physical injury that caused the claimed psychiatric consequences.
101But as a broad observation, even if the plaintiff has a psychiatric condition that is causally related to the transport accident, there is insufficient evidence to conclude that such a condition is “severe”.
102First, there is limited useful evidence from treating practitioners about any psychiatric condition. The plaintiff has apparently attended a psychologist named Gina Liuzzi, but there is no evidence from her. The most recent opinion from Dr Taghizadeh was a report dated 25 April 2024,[38] where it was said that the plaintiff required ongoing pain management by a psychologist/psychiatrist for mental health. There is no evidence that he has consulted a psychiatrist.
[38]PCB 90
103Second, the opinions of the medico-legal psychiatrists are also of limited weight because they were also based on an inaccurate history
104The medico-legal opinion from the psychiatrist Dr Justin Lewis recorded the plaintiff describing how when he was not caring for his children, he was mostly looking at the four walls,[39] as well as a broad description of significant psychiatric symptoms. There is a real doubt as to the accuracy of what he told Dr Lewis, based on the video surveillance. But based on extensive cross-examination about the plaintiff's ongoing involvement in his main hobby of computer based simulated motor car racing, there is a real doubt if he is as psychiatrically affected as he portrayed to the Court and to the doctors.
[39]PCB 124
105I also note that in respect to both the claimed physical injury consequences but perhaps more so for the claimed psychiatric consequences, there is no corroborative evidence from friends or family to support the plaintiff’s uncorroborated description of impairment consequences.
106Therefore, even if the plaintiff does have a compensable ongoing psychiatric condition, overall, I conclude that the plaintiff’s psychiatric condition is something less than “severe” and is not, of itself, a “serious injury”.
107Therefore, for the reasons given the plaintiff’s application is dismissed.
108I shall hear from the parties as to consequential orders.
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