Brooks v Transport Accident Commission - [2022] VCC 2003

IN THE COUNTY COURT OF VICTORIA

AT BALLARART

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-01326

GLENIS KATHERINE BROOKS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE ROBERTSON
WHERE HELD:	Ballarat
DATE OF HEARING:	27 June 2022
DATE OF JUDGMENT:	24 November 2022
CASE MAY BE CITED AS:	Brooks v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2022] VCC 2003

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine – pain and suffering – causation – distracting injury – credibility – impairment consequences
Legislation Cited: Transport Accident Act 1986, s93(4); s93(17)
Cases Cited:Borazio v State of Victoria [2015] VSCA 131; Zlateska v Consolidated Cleaning Services [2006] VSCA 141; Principe v Transport Accident Commission [2016] VSCA 205; Humphries and Anor v Poljak [1992] 2 VR 129; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Haidar v Transport Accident Commission [2016] VSCA 182; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; pullingv Yarra Ranges Shire Council [2018] VSC 248; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Bezzina v Phi [2012] VSCA 161; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436

Judgment: Leave granted to the plaintiff pursuant to s93(6) of the Transport Accident Act 1986 to bring common law proceedings in respect of the cervical spine/neck injury suffered by her arising out of the transport accident on 28 November 2018
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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Jurica with Ms S C Bailey	Slater & Gordon
For the Defendant	Mr P A Scanlon QC with Ms J Zhu	Solicitor to the Transport Accident Commission

Table of Contents

Introduction

Evidence

Relevant legal principles

Background

Medical history

The transport accident

Post-accident medical treatment

The Plaintiff’s medico-legal reports

Mr Thomas Kossmann, orthopaedic surgeon

The Defendant’s medico-legal reports

Dr Anthony Sheehan, consultant psychiatrist
Associate Professor Andrew (Mark) Taylor, consultant psychiatrist
Mr Gary Speck, consultant orthopaedic surgeon

Issues and submissions

The Plaintiff’s submissions
The Defendant’s submissions

Is the Plaintiff credible?

Fibromyalgia and polyarthralgia
Operation of business
Video surveillance of the Plaintiff

Was there a compensable injury suffered as a result of the transport accident? Did the transport accident cause the Plaintiff’s injury?

Permanence

Serious injury

Impairment consequences

Pain

Medication and medical treatment
Work capacity

Sleep
Social life
Activities of daily living
Sports and hobbies

Driving
Relationship with partner

Grandchildren
Conclusion on serious injury

Conclusion

HER HONOUR:

Introduction
1Glenis Brooks (“the plaintiff”) sustained injuries in a transport accident on 28 November 2018 on Urquhart Street, Horsham. Her car was struck from the left by another car, causing it to flip over onto its roof (“the transport accident”).
2The plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”) to commence common law proceedings for damages for pain and suffering in respect of the injuries she sustained in the transport accident. She alleges she suffered a “serious injury” to her neck/cervical spine within the meaning of s93(17)(a) of the Act and that as a consequence the functioning of her spine was impaired.
3A claim that she suffered a “serious injury” within the meaning of s93(17)(c) of the Act was not pursued at trial.
4The principal issues at trial were whether the injuries sustained by the plaintiff were caused by the transport accident and whether the plaintiff had exaggerated her claimed pain and symptoms such that her injury was not a “serious injury”.
5To succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that the injury she has suffered occurred because of the transport accident and is a “serious injury” within the meaning of s93(17) of the Act. The assessment of whether the injury is “serious” for the purposes of the Act, is assessed at the time the application is heard.

Relevant legal principles
6Section 93(6) of the Act provides that:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
7The definition of “serious injury” as set out in s93(17)(a) of the Act is, relevantly:
“(a)    serious long-term impairment or loss of a body function.”
8To determine whether there has been a “serious injury”, it is necessary first to identify the injury suffered. Once the injury is identified, the plaintiff is required to prove that the injury arose out of the relevant transport accident.[1] That is, the plaintiff is required to prove, on the balance of probabilities, a causal link between the transport accident and the injury. It is not necessary to establish that the transport accident was the sole or even dominant cause of the plaintiff’s injury. It is sufficient if it was a cause.[2]
[1]      Borazio v State of Victoria [2015] VSCA 131 at paragraph [63]
[2]      Zlateska v Consolidated Cleaning Services [2006] VSCA 141
9Resolution of disputes about causation can depend upon the plaintiff’s symptoms, complaints and history. Sometimes relevant injuries manifest immediately but in other cases they do not. As the Court of Appeal noted in Principe v Transport Accident Commission,[3] at times a more painful injury masks, or distracts, a person from the pain of a second injury about which a complaint is not initially made. The period of time between an accident and a complaint may suggest it less likely the accident was a cause of the injury.[4]
[3] [2016] VSCA 205 (“Principe”)
[4]      Principe, at paragraphs [79]-[80]
10If there is a causal link between the relevant transport accident and the injury, consideration is required as to whether the injury responsible for such loss or impairment is a “serious injury”; that is, whether there has been a relevant serious long-term impairment or loss of a body function.
11The question of whether an injury is “serious” for the purpose of s93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[5]
“… To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[5][1992] 2 VR 129 (“Poljak”) at 140 (per Crockett and Southwell JJ)
12When assessing the plaintiff’s account of his or her pain and suffering consequences to doctors and the Court, the plaintiff’s credit will often be important. For instance, if the plaintiff exaggerates his or her symptoms or provides an inaccurate medical history, the account may be of less weight.[6] Regardless of the veracity of the plaintiff’s evidence, reliable medical evidence must not be ignored because the plaintiff is or may not be credible.[7]
[6]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [91]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]; Haidar v Transport Accident Commission [2016] VSCA 182 at paragraph [32]; Petrovic v Victorian Workcover Authority [2018] VSCA 243 (“Petrovic”) at paragraph [74]
[7]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]
13Where there is an aggravation of a pre-existing impairment, the plaintiff must show that the aggravation injury arises as a result of the relevant accident, and that in its consequences in and of itself, it is a “serious injury”.[8]
[8]De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraph [60]; also, Bezzina v Phi [2012] VSCA 161 at paragraph [23]
14In assessing whether an injury is a “serious injury” regard must be had to what is retained by a plaintiff as well as what is lost[9] and where a plaintiff can continue to work or return to work, it will ordinarily be difficult to conclude that the pain and suffering consequences are “at least very considerable”.[10] However, a stoical plaintiff who puts up with pain and suffering should not be treated less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury.[11]
[9]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [27]; Stijepic v One Force Group Pty Ltd & Anor [2009] VSCA 181 (“Stijepic”) at paragraph [44]
[10]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]; Stijepic at paragraph [47]; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [15]
[11]Dwyer (supra)

Evidence
15The plaintiff relied upon five affidavits: Three sworn by the plaintiff on 21 December 2020 (“first affidavit”), 30 June 2021 (“second affidavit”) and 3 June 2022 (“third affidavit”); an affidavit of her then partner, Stephen Pizzoni, sworn 10 September 2021 and an affidavit of a work colleague, Jill Dodge, sworn 8 July 2021. Only the plaintiff gave oral evidence. She was then cross-examined and re-examined.
16Both parties relied on medical reports and other material which was tendered in evidence. I have read the tendered documents, together with the transcript of the proceedings. I do not propose to refer to all the material at length in the course of this judgment and will refer only to the aspects of the evidence and reports that I consider necessary to give context to and explain the conclusion reached in my judgment.

Background
17The plaintiff was born in December 1964 and is currently fifty-seven years old. She is single and has two children and two grandchildren. At the time of the transport accident, she was in a relationship.
18The plaintiff completed schooling to Year 11. She had her first daughter when she was eighteen years old. She was a stay-at-home mother and primarily worked in odd jobs in hospitality. In the 1990s, she obtained a diploma in Business Management at TAFE.
19Between 2001 to 2010, the plaintiff worked at the Coastal Leader Newspaper, initially in advertising and then as a manager. She then worked at a cinema in Horsham from 2010 to 2014 as the site manager. Between 2014 and 2017, she worked on Magnetic Island in Queensland as a cleaner and as a sales assistant. In 2017, the plaintiff moved back to Horsham and returned to work at the cinema.
20In 2017, the plaintiff also started her own business called “Onya Back Bedding”. She added furniture to her business in 2018 and the business became known as “Onya Back Bedding & Furniture”. That business has operated since around June 2018, just before the transport accident. It sells bedding and homewares. The plaintiff said she was the sole employee in the business which she was building up from scratch.
21Prior to the transport accident, the plaintiff worked in the business seven days per week. Her duties included putting together, rearranging and moving furniture. The business now operates from 9.00am to 5.00pm Tuesday to Friday and Saturday mornings from 9.00am to 1.00pm. The plaintiff takes time off to rest as needed due to her neck pain.

Medical history
22The plaintiff had consulted Dr Gerard O’Brien, general practitioner, at the Reed Street Medical Centre, since 2011. Prior to her injury, she had, at times, complained of generalised muscle and joint pain and stiffness with associated fatigue. In his report dated 18 August 2021, Dr O’Brien noted the plaintiff did not have active inflammation of her joints as seen in polymyalgia rheumatica; however, in 2012, he nevertheless arranged serology for rheumatoid arthritis and like conditions to exclude a diagnosis of polymyalgia rheumatica.
23The plaintiff also has genetic hemochromatosis, which may cause fatigue, lethargy and joint pain, but not generalised muscular pain and tenderness.

The transport accident
24On 28 November 2018, the plaintiff was involved in the transport accident. She was driving her car between two roundabouts on Urquhart Street, Horsham when the left side of her car was struck by another car. This caused the plaintiff’s car to flip over and skid along the roof until it stopped on a median strip. The police and ambulance attended.

Post-accident medical treatment
25The plaintiff said in her first affidavit, immediately following the transport accident, she had neck pain, a headache and difficulty moving her left hand. An ambulance attended. The Ambulance Victoria Patient Care Record identified that the plaintiff had “nil relevant” pre-existing injuries. It also provided a description of the accident including that the plaintiff had pain in her left thumb and no other pain including nil neck stiffness. The list of injuries sustained however, referred to the plaintiff having “neck stiffness”. The plaintiff was recorded as having refused transport to hospital or other assessments, stating “I’m fine”. Paramedics encouraged her attendance at her general practitioner.
26Dr O’Brien first saw the plaintiff following the transport accident on 29 November 2018. He recorded in his report to the plaintiff’s solicitors dated 9 June 2020, that the plaintiff had no apparent injuries as a result of the accident, apart from a painful left wrist which he considered to be a soft tissue injury. An x-ray was ordered to exclude a fracture of the wrist.
27On 29 November 2018, the plaintiff lodged a Transport Accident Commission (“TAC”) Claim Form, on which she recorded her injury details as “- hand injury - left - thumb injury - left - soft tissue injury - neck pain – headache”.
28On 17 December 2018, the plaintiff saw Dr O’Brien again. She had been experiencing pain over her chest since the accident, particularly in her left breast. She was worried that her breast implant had reduced in size and may have ruptured. An MRI scan of the breast confirmed there was no rupture of the prosthesis.
29The plaintiff was referred to Mr Rodney Cooter, plastic, reconstructive and cosmetic surgeon, who reviewed her on 10 January 2019. Mr Cooter believed the plaintiff had breast implant illness but noted that the situation in the plaintiff’s case was that there were “other confounding issues because of the seatbelt trauma to her left chest”. He advised the plaintiff to wait six months and then he would review her again.
30Mr Cooter reviewed the plaintiff again on 12 June 2019 and was concerned about the plaintiff’s breast implants because their material had been associated with anaplastic large cell lymphoma. He recommended a replacement of the breast implant.
31In August 2019, the plaintiff had her breast implants replaced by Mr Cooter.
32In her first affidavit, the plaintiff said she continued to have neck pain and was referred for chiropractic treatment.
33On 22 January 2020, she attended Dr Ming Kam Melvin Ma, chiropractor. Dr Ma said in his report dated 18 February 2020, that the plaintiff reported her neck pain had been at its worst one week prior to the consultation. The pain had been ongoing since the accident and had become worse since August 2019. He recorded that she denied any further traumas or accidents since the motor vehicle accident in 2018. Dr Ma arranged for the plaintiff to have a CT scan of her cervical spine.
34The plaintiff received dry needling, manipulations, impulse and hand massage, and ultrasound treatment from Dr Ma.
35In Dr Ma’s report dated 18 February 2020, he opined the plaintiff had C6-7 spondylosis. He noted that there was an active subchondral cyst and a bone cyst which he said indicated that it was post traumatic as none of the signs were seen on other segments. He also said with whiplash spondylosis, C6-7 is a common location where whiplash is most severe. Dr Ma stated that because the plaintiff was hit from the side in the car accident, and her car rolled upside down, this was consistent with the C6-7 spondylosis being “worse laterally as seen on the scan but not A-P wise”. As the plaintiff had been suffering from neck pain since the car accident and had not received any treatment targeting her neck prior to consulting him, in his opinion, there had been an ongoing progression of the spondylosis until the pain had peaked after the transport accident.
36On 11 February 2020, the plaintiff was reviewed by Dr O’Brien. She was complaining of chronic neck pain which had worsened despite regular chiropractic treatment. Examination revealed a significant reduction in all movement due to muscle spasm and pain. Dr O’Brien referred her for a CT scan of her cervical spine.
37On 13 February 2020, the plaintiff underwent a CT scan of her neck. The cervical spine was reported as normal, but the CT scan of her neck recorded that there was disc space narrowing at C6-7 from degenerative disc changes.
38On 12 April 2020, Dr O’Brien referred the plaintiff for a CT-guided steroid injection of the C6-7 facet joint due to her chronic neck pain.
39Dr Ma prepared a further report to the plaintiff’s solicitors dated 20 May 2020. This followed fortnightly consultations with the plaintiff since 22 January 2020. The plaintiff’s prognosis was observed to be good. She was showing mild disability and her work capacity remained affected, but Dr Ma considered the plaintiff would fully recover when her soft tissue pain settled over the following couple of months.
40In a report dated 9 June 2020, Dr O’Brien referred to his consultations with the plaintiff on 29 November 2018 and 17 December 2018 and his subsequent consultation in February 2020. He noted that the cervical spine CT scan had been reported as normal apart from disc space narrowing at C6-7. The plaintiff’s pain was localised, and examination revealed a significant reduction in all movement due to muscle spasm and pain. Dr O’Brien thought this was due to degenerative changes. He also noted that the degenerative disc changes at C6‑7 corresponded with the pain and tenderness the plaintiff had experienced over her right C6-7 facet joint. His opinion was that, as a result of the transport accident, the plaintiff suffered a soft tissue injury to her left wrist and also likely exacerbation of the spondylotic changes in her cervical spine.

41In his second report dated 25 March 2021, Dr O’Brien said that he considered the plaintiff’s neck pain to be a direct result of the transport accident. Although it was likely that her C6-7 disc-degeneration preceded her accident, she had no symptoms prior to her accident. Dr O’Brien said it was not uncommon to see neck pain escalate weeks and even months after a whiplash injury.
42The plaintiff continued to see Dr Ma until November 2020. In Dr Ma’s further report dated 8 July 2021, he recorded that her condition had worsened since his report dated 20 May 2020. The plaintiff had undergone four further treatments on 15 June 2020, 20 July 2020, 17 August 2020 and 2 November 2020. He opined that her prognosis was fair and that she may suffer a mild level of disability for her neck range of motion, which would mildly affect her capacity for work. Mr Ma said that he remained satisfied that her neck injury was sustained because of the transport accident.
43On 23 December 2020, the plaintiff’s chronic neck pain was treated with a CT-guided cervical facet joint steroid injection at the Melbourne Radiology Clinic.
44On 12 April 2021, the plaintiff had a telephone consultation with Dr O’Brien and was referred for a further CT-guided steroid injection into her right C6-7 facet joint, but this was not ultimately undertaken.
45He also prescribed the plaintiff with an anti-inflammatory agent, along with analgesia to be taken at night, and advised her to continue with remedial therapy.
46Dr O’Brien referred the plaintiff to Dr Fariha Islam, neurologist, on 4 October 2021.
47On 18 October 2021, the plaintiff underwent an x-ray of her cervical spine and an x-ray of her chest. The findings of the x-ray of her cervical spine revealed there were spondylotic changes at C6-7 level with reduced disc height and foraminal narrowing. The vertebral bodies were normally aligned without acute fracture or spondylolisthesis.
48Dr Islam first saw the plaintiff on 26 October 2021. The plaintiff presented with pain in her neck and paraesthesia in her hands, which she said dated back to the accident date. In her report to Dr O’Brien dated 26 October 2021, Dr Islam noted that the plaintiff had symptoms of possible cervical radiculopathy in the C7 dermatome bilaterally. Her CT scan of the cervical spine showed C6-7 spondylosis.
49An MRI scan conducted on 30 November 2021 revealed that at the C6-7 level, there was minor spondylotic change and mild to moderate left foraminal stenosis. The remaining discs were normal.
50In early 2022, Dr Islam changed the plaintiff’s medication regime to include amitriptyline for neuropathic pain, as well as CBD/cannabis oil.
51A nerve conduction study and an EMG were undertaken by Dr Michael McVeigh, consultant neurologist, in January 2022. The results were normal, but the report stated the results did not necessarily exclude radiculopathy.
52In her letter to the plaintiff’s solicitors dated 4 April 2022, Dr Islam reported that the plaintiff had cervical radiculopathy secondary to cervical spondylosis confirmed by an MRI scan of the cervical spine. The plaintiff’s nerve conduction studies did not show any other neuropathy or thoracic outlet syndrome. Dr Islam considered that in terms of prognosis, the plaintiff would have ongoing pain as a result of her condition.
The Plaintiff’s medico-legal reports
Mr Thomas Kossmann, orthopaedic surgeon

53Mr Kossmann prepared three reports, dated 14 August 2020, 18 August 2021 and 29 March 2022.
54In his report dated 14 August 2020, requested jointly by the plaintiff’s solicitors and the TAC, Mr Kossmann detailed the plaintiff’s medical history, account of the transport accident and post-accident treatment.
55The medical history taken by Mr Kossmann was that the plaintiff was fit and well and had no previous injury or illness prior to the transport accident.
56Mr Kossmann recorded the plaintiff’s presenting complaint as ongoing pain in her cervical spine, which was initially radiating into her arms. She complained of pain in her neck when looking downwards. She also complained of tingling in her fingers and sometimes pain behind her eyes and dizziness. She was attending a chiropractor and using a TENS machine.
57In relation to activities undertaken by the plaintiff after the transport accident, Mr Kossmann recorded that the plaintiff used to go to the gym. She could undertake self-care and personal hygiene tasks with difficulties; she was having difficulties with physical activity and hand functions including grasping, holding and pinching, and she was having difficulty sleeping. At the time of the report, the plaintiff relied on her partner to take care of the household chores. The plaintiff did not have a garden.
58Mr Kossmann noted, on examination via video conferencing, that the plaintiff had pain in the cervical spine radiating into her arms. The plaintiff was instructed to perform movements with her body which were measured using a goniometer directly on the screen. He recorded that the plaintiff has movement restrictions in her left shoulder joint, her left thumb and, to a certain extent, also her right thumb.
59Mr Kossmann did not have access to any radiological investigations.
60Mr Kossmann reported that the prognosis of her cervical spine was guarded. He recommended that she undergo an MRI scan of the cervical spine and depending on the outcome of the investigation, he thought she may have to undergo further treatment. He recommended in the meantime that she receive pain and anti-inflammatory medication, and opined she might also benefit from physiotherapy, hydrotherapy and continued chiropractic treatment.
61Mr Kossmann also reported that the prognosis for her left shoulder was guarded and made the same recommendations as outlined above.
62He recommended that the plaintiff should be referred for hand therapy for the issues with her thumbs and for further investigations with x-rays, MRI scans and a referral to a hand surgeon.
63He opined that the plaintiff had no work capacity to engage in any physically demanding work, or work involving walking long distances, on uneven ground, upstairs and downstairs, inclines and declines, using ladders, squatting or using her upper extremity. He believed that the plaintiff would be able to work on modified/light duties. At the time of the report, she was working in hospitality and also undertaking administrative-based roles. He found that she should have been able to continue with that type of work in a full-time capacity.
64In his subsequent report, requested by the plaintiff’s solicitors, and dated 18 August 2021, Mr Kossmann recorded the plaintiff’s presenting complaint as constant pain in her neck. She felt grinding in her neck when moving her head. She could not lift anything. When looking down she had increasing pain in her neck. She had tingling in her fingers, which was present more on the right side. She suffered from headaches and sometimes had pain behind her eyes and dizziness.
65The plaintiff told Mr Kossmann that she had been attending a chiropractor but had not been undergoing any further treatment in recent times. She said she used her sauna and took hot showers to ease her pain. She continued to use her TENS machine. At the time of the report, the plaintiff had a partner who did most of the household chores.
66Mr Kossmann recorded that on examination, the plaintiff had pain in the cervical spine, which was radiating into her arms. He remained of the view the plaintiff had no work capacity to engage in any physically demanding work. However, he believed she would be able to continue to work on modified/light duties, working in her own business full time.
67Mr Kossmann identified that the plaintiff had complained about pain in her cervical spine immediately after the transport accident. He was of the view the plaintiff was more concerned about her breast implants, which were causing her significant psychological stress and had distracted her from the pain issues affecting her cervical spine. He considered the plaintiff realised she had ongoing pain issues in her cervical spine once the issues with her breast implants had resolved.
68On examination, Mr Kossmann said the plaintiff may be suffering from a partial thoracic outlet syndrome on the right side, but the symptoms might take time to develop.
69In his third report, requested by the plaintiff’s solicitors, and dated 29 March 2022, Mr Kossmann noted that since his previous examination, the plaintiff had been supplied with medical marijuana, which had led to a decrease in her symptoms and improved her overall condition.
70The plaintiff told Mr Kossmann that she continued to operate a bedding and furniture store and was working six days per week and paid people to set up the furniture.
71The plaintiff detailed how since her previous examination she had been taking care of the household chores by herself. Her relationship with her former partner had broken down. She used gym equipment at home.
72Mr Kossmann found, on examination, the plaintiff had pain in her cervical spine, radiating into her arms. In previous examinations, she had displayed clinical signs of partial thoracic outlet syndrome on the right side. She had undergone further investigations by other medical practitioners. Mr Kossmann noted Dr Islam had documented the plaintiff was able to elevate her arms without issues. However, Mr Kossmann observed that Dr Islam had not tested the plaintiff for specific signs of thoracic outlet syndrome. Further, Mr Kossmann said that Mr McVeigh had documented that he could not find any evidence of carpal tunnel syndrome on either side, neuropathy or neurogenic thoracic outlet syndrome on the right, but he did not perform the examination with elevated arms. In Dr Kossmann’s opinion, those other examinations had been performed incorrectly without elevating the plaintiff’s right arm and without applying the clinical tests specific for thoracic outlet syndrome.
73Mr Kossmann opined that the plaintiff suffered from symptom-free cervical spondylosis prior to the accident, which was aggravated by the accident. He said he was satisfied that her neck injury was sustained as a result of the accident. He remained of the view that following the accident, her main concern was with her breast implants which may have distracted her.
The Defendant’s medico-legal reports
Dr Anthony Sheehan, consultant psychiatrist
74Dr Sheehan examined the plaintiff via videolink due to COVID-19. He prepared two reports, dated 14 August 2020 and 18 June 2021. Both the plaintiff’s and the defendant’s solicitors provided letters of instruction to Dr Sheehan for the initial report.
75Dr Sheehan took a history from the plaintiff, recording that she had a painful neck and left hand following the accident and was examined by a paramedic in the ambulance.
76The following day, she attended her general practitioner in respect of her left hand and left thumb injury. She was told there was no fracture and that she had a soft tissue injury. The plaintiff reported having two weeks off work with continuing difficulty in using her left hand.
77The plaintiff also had bruising across her chest from the seatbelt. This had caused pain in her left breast. She subsequently underwent breast implant replacement surgery in August 2019.
78The plaintiff told Dr Sheehan she continued to have persistent pain and difficulty with her neck. She spoke to a chiropractor who recommended a CT scan. She was told that there was either “a fracture or cysts” and that she likely had suffered a whiplash injury. She reported continuing to see her chiropractor on a weekly basis and her general practitioner as required.
79The plaintiff said she struggled with her sleep pattern due to her neck condition. She said she woke every time she moved. She reported issues with her memory and concentration. She had difficulty remembering names and she took notes as memory prompts. She was able to concentrate at work, but this could be impacted by pain.
80Dr Sheehan received a letter of instruction from the plaintiff’s solicitors requesting a medical reassessment and updated report. On 18 June 2021, he provided an updated report, with assessment conducted via video due to COVID-19.
81Dr Sheehan recorded that since his last assessment, the plaintiff had undergone a CT-guided steroid injection into her cervical spine in December 2020. The plaintiff had described that time to him as “the best month of my life”. She reported a significant reduction in her pain symptoms following the CT-guided steroid injection, although there had been some return. Since the injection she reported being able to do more of the housework.
82The plaintiff said her neck pain was less frequent, although it could increase with activity. She described it as “more like a pressure pain. There is grinding and I can hear it.” She said she avoided anything physically demanding for fear of aggravating her neck injury. Her sleep pattern was still disturbed, and she woke up three times a night. She reported experiencing fatigue with her concentration at work and starting things but not finishing them.
83Dr Sheehan recorded that the plaintiff worked six days per week from 9.00am to 5.00pm.
Associate Professor Andrew (Mark) Taylor, consultant psychiatrist
84Associate Professor Taylor assessed the plaintiff via video conference on 16 August 2021 and prepared a report dated 25 August 2021.
85Associate Professor Taylor took a history from the plaintiff that after the accident an ambulance was called but she decided not to go to hospital. The next day she consulted her general practitioner. The worst injury the plaintiff said she had was soft tissue damage to her left hand, as well as a sore neck. She had two weeks off work.
86In relation to treatment, she consulted a chiropractor, Dr Ma, in January 2020. She continued to see Dr Ma a few further times that year. He advised her to undergo a CT scan. The plaintiff did not consult a physiotherapist or any other surgical practitioners for her physical injuries.
87Associate Professor Taylor noted the plaintiff’s pain arose “virtually on a daily basis in the neck and shoulders”. Occasionally, the plaintiff said she had headaches and her energy was “non-existent”.
88The plaintiff reported sleeping from 9.00pm to 6.40am or 7.00am in the morning, but she said her sleep was broken due to neck pain. She also said occasionally she got nightmares – about once a month. Associate Professor Taylor recorded that the plaintiff did not experience flashbacks in one part of his report but noted in another, she experienced many flashback-type memories.
89The plaintiff was able to drive but reported feeling anxious when driving, particularly in Melbourne.
90The plaintiff also reported that her memory was "shocking”.
91The plaintiff said she had not been doing any exercise. She liked to sit at home and watch Netflix and she said she went to the shops and the cinema sometimes. She reported being able to undertake all activities of daily living such as cooking, cleaning, washing and shopping.
Mr Gary Speck, consultant orthopaedic surgeon
92Mr Speck examined the plaintiff on 3 August 2021 and prepared a report dated 24 August 2021 and a supplementary report dated 6 June 2022.
93He took a history from the plaintiff and noted her current pain could vary between 0 out of 10 and 8 out of 10. Tilting her head to the side gave her neck pain and leaning forward caused more pain. Heat helped and she had bought a sauna for her home which she used on a nightly basis. Medication and heat pads also assisted.
94He reported in his first report that the plaintiff described taking Tramadol twice in the previous month and paracetamol and codeine, requiring prescription on a variable basis, usually at night once or twice each week. She otherwise used paracetamol.
95The plaintiff’s symptoms in the neck were central and extended into the shoulder blades as an aching feeling. If she moved her head suddenly, she got a stabbing sensation and a sensation of crunching, although it was not audible. She described restrictions in her activity including walking for an hour, sitting for more than an hour and standing for a prolonged period.
96She operated her own business on a regular basis from Monday to Friday from 9.00am to 5.00pm and on Saturdays from 9.00am to 1.00pm. She described getting assistance from casual labour to assemble furniture as needed.
97Since the accident, she had lost the urge to exercise.
98Mr Speck reported that the plaintiff was able to drive, although travelling after two hours became uncomfortable.
99He noted that when cleaning, the plaintiff generally avoided vacuuming but could use the cordless vacuum.
100The plaintiff remained independent in showering, toileting, dressing and shaving her legs, although she preferred to get beauty treatments for her fingernails and toenails.
101Upon examination, Mr Speck identified the plaintiff had pain in the midline and the lower neck, out to the base of the neck, moreso on the right than the left, through the trapezius muscles. She had 60 degrees flexion of the cervical spine. Her extension was 40 degrees but with a sensation of crunching and pain in the lower neck. Her lateral flexion was 40 degrees to the left and 20 degrees to the right, with right-sided neck pain in each direction. She had 45 degrees of rotation to the left and right but with neck pain.
102There was tenderness in the midline at the C5-6 and C6-7 levels on palpation posteriorly and the right trapezius was more tender than the left, with the muscle being tighter. There was some subjective sensory alteration on light touch and pinprick over the ulnar side of the forearm.
103After noting the treatment history, Mr Speck said that other than the plaintiff’s Claim for Compensation completed on 29 November 2018, there were no further recorded symptoms related to her neck. He recorded the plaintiff had indicated she had significant pain following the incident, requiring substantial narcotic analgesics and sleeping upright in a chair. There was no record in the documents provided of substantial prescription of analgesics other than the immediate post-operative visit to Dr O’Brien. Mr Speck noted that the clinical history given to both Dr O’Brien and Dr Ma indicated an onset of neck pain in August 2019. Mr Speck opined that the symptoms in the plaintiff’s neck were not associated with any evidence of radicular pain or neurologic deficit. They had not stopped her undertaking her usual work. Due to her positive response to the C6-7 facet joint injection, the plaintiff’s symptoms were considered to be consistent with pain arising from degenerative motion segment. Mr Speck said that the changes on the cervical spine scan were consistent with the plaintiff’s age.
104Mr Speck provided a supplementary report dated 6 June 2022 at the request of the defendant’s solicitors. He was provided with surveillance footage of the plaintiff. Having reviewed the footage and having read the surveillance report, he opined that the footage demonstrated good movement of the plaintiff’s neck, with capacity to use both arms without obvious restrictions due to pain. Mr Speck did note that, in any event, on examination of the plaintiff on 3 August 2021, the plaintiff had full range of shoulder abduction. Mr Speck noted that the smoothness and rapidity of the plaintiff’s movement of her neck and rotation in the surveillance footage was better than that observed during his examination.

105In conclusion, Mr Speck said that the opinion he had previously expressed in his report dated 24 August 2021 remained unchanged.

Issues and submissions
The Plaintiff’s submissions
106Counsel for the plaintiff submitted that first, the plaintiff was suffering from C6-7 spondylosis with reduced disc height and foraminal narrowing or stenosis which was caused by the transport accident. This was supported by the TAC Claim Form, which referenced an injury to the plaintiff’s neck, along with the medical reports of Dr Ma, Dr O’Brien and Mr Kossmann. Further, any injury due to the plaintiff’s breast implant treatment was a distracting injury which, once resolved, enabled the plaintiff’s neck pain to be distinguished.[12]
[12] Principe (supra) at paragraph [79]
107Second, there was nothing in the reports of the independent medical assessors or in the surveillance footage which substantially contradicted the plaintiff’s claim or brought the plaintiff’s credit into question.
108Third, the C6-7 spondylosis and foraminal stenosis injury sustained by the plaintiff, produced impairment consequences which met the threshold required for the injury to constitute a “serious injury”.
The Defendant’s submissions
109The defendant submitted, first, that the plaintiff did not suffer an injury to her cervical spine as a result of the transport accident. Reliance was placed on a suggested failure of the plaintiff to seek medical treatment for her neck between November 2018 and January 2020. Specifically, the lack of complaint by the plaintiff of neck pain at the time of the accident; the lack of complaint of neck pain to Dr O’Brien on the day following the accident; the lack of complaint of neck pain to Dr O’Brien at the consultation on 17 December 2018 and the fact that the CT scan ordered by Dr O’Brien in February 2020 was reported as being normal.
110Second, even if the plaintiff did suffer an injury to her cervical spine as a result of the transport accident, the plaintiff had pre-existing degenerative changes to her cervical spine. Consequently, any injury suffered by the plaintiff was an aggravation of the pre-existing degenerative condition.
111Third, the consequences of the injury or aggravation injury did not give rise to a “serious injury”. There was no serious long-term impairment or loss of body function. Reliance was placed on the plaintiff’s continuing ability to drive her motor vehicle, to do her shopping, to attend to activities of daily living, to go to the pub, to play the pokies and to socialise. Additionally, the defendant relied upon what had been retained by the plaintiff as opposed to what has been lost. It was contended the plaintiff had a retained work capacity.
112Counsel for the defendant submitted that when the video surveillance footage was considered, in conjunction with the activities the plaintiff was still able to undertake, including her work activities, the plaintiff’s impairment consequences did not rise to the level required to be considered a “serious injury”.

Is the Plaintiff credible?
113A key issue in the case was the plaintiff’s credit and, in particular, whether she had exaggerated her pain and restriction.
114The defendant pointed to considerable material which it said demonstrated that the plaintiff lacked credibility, and which cast doubt on the reliability of her account to doctors about the cause of her injury and the seriousness of her impairment consequences.
115The plaintiff was cross-examined generally about her pre-existing medical conditions; the operation of her business, and her activities depicted in video surveillance footage with a view to demonstrating that the plaintiff was not a trustworthy witness and had exaggerated the nature and extent of her injuries, both in her affidavit material and when describing them to medical practitioners.
Fibromyalgia and polyarthralgia
116The plaintiff was challenged about her attendances on Dr O’Brien and his note of polyarthralgia in the medical record. It was put to the plaintiff that on the morning of her accident, she was already suffering from stiffness and aches and pains in the joints including the knees. The plaintiff did not accept that. She said in re-examination, that she did not know what polyarthralgia was and had never been diagnosed with that condition. She recalled that she had been seeing her general practitioner for swelling in her joints and aches in her knees. She could not recall being sent for pathology and serology tests or being prescribed any requisite medication.
117In my view, nothing turns on this line of questioning. It is to be expected that the plaintiff would not necessarily recall each individual consultation with Dr O’Brien. Further, Dr O’Brien said that the plaintiff did not have active inflammation of her joints as seen in polymyalgia rheumatica, but, in 2012, he nevertheless arranged serology for rheumatoid arthritis and like conditions to exclude a diagnosis of polymyalgia rheumatica.
118The aches in the plaintiff’s knees may have been caused by the breast implant condition from which the plaintiff was suffering at the time of her accident, particularly as it can cause swelling in joints and allergic reactions. However, it is unnecessary for me to reach a conclusion about this. I do not consider this aspect of the cross-examination impacted on the plaintiff’s credibility or reliability.
Operation of business
119The plaintiff was cross-examined about the way she operated her business and, in particular, her decision to pay her employees in cash. It was suggested by paying employees in cash and not declaring income to the taxation office, the plaintiff was operating a business which defrauded the Commonwealth. It was submitted that this impacted upon her credit generally.
120The plaintiff denied that the business was a cash business but frankly accepted that she was paying cash to people without deducting tax. She said she intended to stop. She explained that while she knew the employees needed to be placed on the books correctly, this had not been done because she could not offer them full-time work and could not afford to pay them as employees. However, she did explain that for three years when she was with her previous partner, he had paid the wages of the people who worked for her business, and she had inherited the arrangement.
121The plaintiff was also taken to the profit and loss statement for her business for the financial year ending 30 June 2019. That showed sales in the business of $41,652. It then listed deductions including bank charges, freight, motor vehicle expenses, printing and stationery and replacement.
122In the financial year ending 30 June 2020, the plaintiff’s sales were $267,713. The expenses of the business were listed. They totalled $34,110. The plaintiff was asked whether the payment of staff was a legitimate expense. She said, “in normal circumstances, yes”. There was no reference in the taxation return to a deduction for wages. The plaintiff frankly said her taxation return was inaccurate in that respect but explained that the workers were originally subcontracted from her boyfriend’s business.
123By the end of the financial year ending 30 June 2021, the sales had increased to $515,168. This meant that the sales in the business had effectively doubled. The plaintiff said she had worked full time to the end of that financial year. She could not say how many of the sales were cash sales. She estimated a few per cent.
124For the twelve months preceding the hearing, that is the financial year ended 30 June 2022, the plaintiff said she had not provided any information to her accountant about her employees.
125It was further submitted that because the plaintiff had returned to work two weeks after the accident, worked up to seven days a week, had engaged in activities without interruption and had transformed the business such that sales had increased from $41,000 to $500,000, it was inherently unbelievable that she was suffering the pain and restriction she claimed due to her neck injury. On this point, emphasis was placed on the opinion of Dr Speck and the history the plaintiff provided to him on 24 August 2021.
126I accept that the way the plaintiff operated the business was not optimal and her disregard of taxation and financial reporting obligations was unsatisfactory. These matters give me reason to question the plaintiff’s general credibility and the reliability of her evidence as to the level of pain and restriction she experiences in her neck. However, unacceptable business management is not necessarily inconsistent with the plaintiff’s claimed back pain or level of restriction. For that reason, I regard the effect of the video surveillance evidence and my observations of the plaintiff in the witness box as being more relevant in assessing her credibility.
Video surveillance of the Plaintiff
127Video surveillance footage taken on 18, 19 and 20 March 2022 was played to the Court.
128On 18 March 2022, the plaintiff was observed speaking on her telephone, turning her head and lifting a sign at the entrance of her shop. On the same day, there was separate footage of the plaintiff standing alongside a car speaking with the driver whilst placing a young child in the car. The plaintiff was observed to move her head freely. She then walked along the road, turning her head and looking in shop windows. The video showed the plaintiff driving her car and speaking on her mobile telephone.
129Video footage was taken on 19 March 2022 throughout the day. One video showed the plaintiff looking down at her mobile telephone and texting as she walked. She was later observed standing outside her business speaking to another woman and moving her head, looking down and turning. The plaintiff again lifted a sign.
130In separate footage taken on 19 March 2022, the plaintiff could be seen at a supermarket bending down to place groceries in a basket.
131In further footage taken on 20 March 2022, the plaintiff was observed attempting to lift and move her grandchild by his arm.
132Overall, the video footage did appear to support the view that the plaintiff was able to engage in activities without apparent restriction and to move her neck relatively freely. She seemed to enjoy her work and appeared to have a reasonable degree of social interaction. She appeared able to use her neck more than might be expected in light of the limitations she claimed. She did not appear to have to modify what she was doing to account for neck pain.
133On the face of it, and in light of the plaintiff’s contrary affidavit and oral evidence, the physical activities engaged in by the plaintiff in the surveillance footage did raise a question about the credibility and reliability of the plaintiff’s account of her injury and symptoms, in particular, whether the extent of the physical restrictions she experienced as a result of her neck injury were exaggerated.
134It is important to note that questions of credibility and reliability are to be determined on the whole of the evidence. In reaching a conclusion about the credibility of the plaintiff and the reliability of her evidence, in addition to the matters pointed to by the defendant, I have also considered the responses the plaintiff gave to questions asked in cross-examination, how the plaintiff gave evidence, as well as the totality of the evidence including contemporaneous records.
135First, the plaintiff gave evidence in a frank and straightforward way. She was cross-examined about the video surveillance evidence. It was suggested to her, contrary to her evidence, she could move her neck without restriction and pain, and her neck was “moving beautifully”. She responded that “it does seem that way” and that the video extracts showed complete movement of her neck which did seem to be inconsistent with her claim. Notwithstanding this, she was completely forthcoming with her answers and did not attempt to obfuscate at all. Her demeanour was not that of a person who was deliberately attempting to exaggerate her evidence.
136Second, the plaintiff provided a reasonable explanation for her ability to move her neck when the video surveillance was filmed. She explained the discrepancy between the video surveillance and her evidence by saying that although she was moving her neck, apparently without restriction, she was on medication, and she was not without pain.
137The plaintiff explained that her regime to deal with pain was based on advice from Dr Islam, who had directed her to take one to five prescription CBD/cannabis oil drops as needed for pain. Generally, she took one to four drops from an eyedropper under her tongue each night if she was in pain, although she said she did not take as much on her workdays. If she was not in much pain, she only took one to two drops, but if her pain was greater, she took three to four drops.
138The night before each of the surveillance footage videos were taken, the plaintiff explained she had taken prescription CBD/cannabis drops to assist with her pain. She said the amount of CBD/cannabis oil taken was more than she took on the day she attended court to give evidence. She said if she did not take CBD/cannabis oil, she was very sore, but taking it helped her with her pain and movement.
139In re-examination, the plaintiff said that when she took prescription CBD/cannabis drops, she was not her usual self. She felt vague. The plaintiff was challenged about this. She was asked if she thought she looked vague in the surveillance footage while she was conversing and going to the supermarket. The plaintiff said that it would be hard to tell from the video without hearing her voice. I agree. The video surveillance footage does not enable a reliable assessment of whether the plaintiff felt vague, just as it does not enable a decisive view that she was not in pain.
140I accept that the plaintiff has been prescribed CBD/cannabis oil for pain and that it was her practice to take less on days she worked. Nevertheless, I accept her evidence that the CBD/cannabis oil assisted in alleviating or masking her pain. It provides an explanation as to why the plaintiff was able to move her neck relatively freely in the video surveillance footage.
141Third, the plaintiff’s claimed level of pain and restriction was supported by the plaintiff’s presentation while giving evidence. It was apparent at times, the plaintiff’s movements appeared restricted. She turned her whole torso rather than simply her neck when answering questions.
142Fourth, the video surveillance evidence captured only a very discrete snapshot in time. It was filmed over only three days. Even if the plaintiff was able to move her neck freely on the three days the footage was taken, this does not confirm that she was always able to move her neck in that way. The footage of her neck moving freely comprised only a portion of the 25 minutes of footage played from total footage of approximately 29 hours. It was equivalent to less than 2 per cent of the overall footage taken.
143Having considered the totality of the evidence, I have concluded that while the plaintiff’s general credibility was tainted, she was an honest witness and had not exaggerated her evidence in relation to her injury and claimed level of pain and restriction.
144Even if this conclusion is incorrect, and the plaintiff was not credible or reliable, it does not mean I am bound to reject the plaintiff’s claim to have suffered a serious injury. As has been said on many occasions, medical opinions based on reports by plaintiffs may be of less weight if the plaintiff is shown to be an inaccurate historian. That does not mean they must be discounted entirely.
145The case must be determined on the whole of the evidence including contemporaneous records, objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit and evidence corroborative of the plaintiff’s account. Taking each of these matters into account, even if an adverse credit finding was warranted, for the following additional reasons, it would be inappropriate to reject the plaintiff’s application based only on her credit.
146First, the plaintiff’s account of the onset of her pain is consistent with her physical presentation to Ambulance Victoria immediately after the transport accident when the plaintiff claimed to have neck stiffness.
147Second, her account is also supported by the reference to “neck pain” in the TAC Claim Form lodged on 29 November 2018, one day following the accident.
148Third, the plaintiff’s complaints of breast pain to Mr Cooter on 10 January 2019 and his observation that there were “other confounding issues because of the seatbelt trauma to her left chest” suggest the pain the plaintiff was experiencing had a source other than merely her breast implants.
149Fourth, as Dr Ma noted, the presence of an active subchondral cyst and a bone cyst on the CT scan of the spine suggested that the C6-7 spondylosis was post traumatic. The location of the spondylosis at C6-7, which was in a location where whiplash is commonly most severe, also supported post trauma application. Further, the fact that the C6-7 spondylosis was “worse laterally as seen on the scan but not A-P wise” was consistent with the car being hit from the side and rolling onto the roof.
150Fifth, there is an objective basis for the presence of the plaintiff’s current neck pain. The most recent MRI of the cervical spine confirmed the plaintiff has C6-7 spondylosis and left foraminal stenosis. The condition is a degenerative condition. This means it is possible that even in the time since the footage was taken, the plaintiff’s pain had increased.
151Further, Dr Islam also diagnosed radiculopathy and neuropathic pain. This diagnosis is distinct from the degenerative spinal condition. To the extent that it is productive of pain, it is additional to that created by the degenerative spinal condition.
152Sixth, the plaintiff’s account of her current pain was accepted by Mr Kossmann and Dr Islam, whose evidence I prefer to that of Mr Speck, notwithstanding that Mr Speck was the only medical practitioner who viewed the video surveillance footage.
153Mr Speck’s opinion in relation to degeneration of the plaintiff’s cervical spine was that the plaintiff did not suffer neck pain until August 2019. In fact, the Ambulance Victoria records disclosed that the plaintiff complained of neck stiffness immediately following the transport accident and the plaintiff’s TAC Claim Form lodged on 29 November 2018 also referred to neck pain. Because Mr Speck does not appear to have been provided with the Ambulance Victoria records, his report was based on an incorrect underlying factual assumption that the plaintiff had not made a contemporaneous complaint of pain. His overall conclusions, including his opinions with respect to the video surveillance footage, are consequently inherently problematic as they proceed from an incorrect foundation.
154In my view, because Mr Kossmann took into account both the clinical notes of Dr O’Brien and Dr Ma, as well as the Ambulance Victoria report dated 28 November 2018, his opinion is to be preferred to that of Mr Speck. Mr Kossmann considered that following the transport accident, the plaintiff was suffering from a distracting injury, namely breast implant disease. I accept this opinion. Just because there is nothing recorded in Dr O’Brien’s clinical notes following the transport accident about the plaintiff having neck pain, does not mean she was not experiencing it, or that I must conclude her injuries were not consistent with the accident or were exclusively precipitated by a degeneration in her cervical spine which manifested well after the transport accident. As Dr O’Brien observed in his second report, it is not uncommon to see neck pain escalate weeks and even months after a whiplash injury. As in Principe,[13] it is a reasonable conclusion that the breast implant disease masked the pain symptoms from the plaintiff’s neck injury. It did not matter that the neck pain symptoms were not constantly present or were not at the forefront of the plaintiff’s complaints.

[13] Supra
155There is also evidence of radiculopathy and neuropathic pain, contrary to Mr Speck’s opinion. Dr Islam diagnosed the plaintiff with cervical radiculopathy secondary to cervical spondylosis in her report dated 4 April 2022. Dr Islam’s diagnosis took into account the plaintiff’s subjective numbness in both arms in the C7 dermatome, her reduced triceps reflex, the results of the MRI scan of the cervical spine undertaken on 30 November 2021, as well as the results of the nerve conduction study and EMG which had been undertaken on 17 January 2022. The EMG and nerve conduction study, although producing results presiding in the overall normal range, did not necessarily exclude radiculopathy. Because Dr Islam has specialised knowledge in the area of neurology, I prefer her opinion to that of Mr Speck on the issue of whether the plaintiff was suffering from neuropathy or radiculopathy.
156Finally, the plaintiff’s level of pain and restriction was independently corroborated by both her former partner, Mr Pizzoni, and Ms Jill Dodge, who was a stallholder at Horsham Collectables and Décor. Their evidence was not challenged.
157Mr Pizzoni said that he had seen first-hand “that the accident has had a dramatic impact on Glenis and her ability to do many things and her attitude in general to life. I see her struggle with pain all the time and at times has said that … she wished she wasn’t here due to it.” He described how the plaintiff is now “very restricted in her movement, ability to reach things, carry heavy things, looking over her shoulder in a car etc. where she has to turn her body instead of her neck to look the other way. Glenis didn’t have these restrictions before the car accident.”
158Ms Dodge described herself as a work colleague of the plaintiff. She said the plaintiff sold second-hand antiques and collectables at the Horsham Collectables and Décor until the beginning of 2022. Her evidence was they did not socialise outside of work. Ms Dodge said she was aware the plaintiff had been in a car accident. She had noticed changes in her physical health since that time. She explained her background as a disability carer for ten years and said she had observed the plaintiff in pain. She had seen the plaintiff grimace and said her pain was demonstrated by the way she held herself. Her agility had been affected and she was a lot slower and more guarded. She could no longer lift furniture as she did.
159Considering the totality of the evidence, I have determined that there was objective evidence unaffected by credit available to support a conclusion that the plaintiff suffered an injury and pain to her neck at the time of the transport accident. Consequently, I accept the plaintiff’s accounts of her pain and restriction.

Was there a compensable injury suffered as a result of the transport accident? Did the transport accident cause the Plaintiff’s injury?
160Based on the radiological reports, including the CT scan of the cervical spine taken on 13 February 2020; the x-ray of the cervical spine taken on 18 October 2021; and the MRI spine – cervical radiculopathy taken on 30 November 2021, as well as the opinions of Mr Kossmann and Dr Islam, I have concluded that the plaintiff suffered an injury as a result of the transport accident, namely C6-7 spondylosis with reduced disc height and foraminal narrowing or stenosis, as well as cervical radiculopathy secondary to cervical spondylosis.
161I have reached that conclusion principally because there were no radiology reports prior to the accident which supported a finding of pre-existing degenerative changes in the plaintiff’s spine. Further, as set out already, the first complaint of neck pain was provided to the paramedics immediately following the transport accident and is recorded in the Ambulance Victoria records. Additionally, the plaintiff’s car was hit from the side and rolled onto its roof. This, together with the location of the plaintiff’s injuries at C6-7, lends further support to the conclusion that the transport accident caused the plaintiff’s injuries.
162However, even if the plaintiff had pre-existing degeneration of her cervical spine before the transport accident, as was argued by the defendant, and suggested by Dr O’Brien, I find that the condition was asymptomatic at the time of the transport accident. I have formed that view because the evidence did not suggest that there were any symptoms of degeneration of the spine before the transport accident which were causing the plaintiff pain or restriction.
163If the plaintiff’s cervical spine condition was asymptomatic prior to the transport accident, to determine whether the plaintiff sustained a “serious injury” then applying Petkovski v Galletti[14] the consequences of the aggravation injury would have to be assessed to determine whether the additional long-term consequences of impairment (or loss) of a body function[15] consequent upon the aggravation injury, are “serious”, in the sense that they can be fairly described as at least “very considerable” and certainly more than “significant” or “marked” when judged by comparison with other cases in the range of possible impairments or losses.[16]
[14][1994] 1 VR 436 (“Petkovski”)
[15](Ibid) at 443
[16]Poljak at 140 (per Crockett, McGarvie and Southwell JJ)
164In circumstances where any cervical spine injury was asymptomatic prior to the transport accident, nothing much turns on whether the injury is classified as a new injury or an aggravation injury. The additional long-term consequences of impairment of an aggravation injury are, in practical terms, the same as any impairment consequences of a sole injury to the plaintiff’s cervical spine arising from the transport accident. The relevant enquiry is therefore whether the injury was permanent and whether the impairment consequences which arose because of the transport accident were “serious”, in the sense that they can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.

Permanence
165Having considered the medical reports, I am satisfied that the plaintiff’s injury is permanent. Initially, the plaintiff complained of neck stiffness. That graduated to neck pain. Over time, the neck injury and the plaintiff’s pain gradually worsened consistent with the fact that her condition is a degenerative condition. Dr Islam opined that the plaintiff will be required to use CBD/cannabis oil for the foreseeable future. Mr Kossmann also considered the plaintiff’s prognosis to be guarded. I consider, in those circumstances, the plaintiff’s injury will probably persist through the foreseeable future with no significant improvement over time.

Serious injury
166Whether an injury is a “serious injury” depends on whether the pain and suffering consequences of the injury are at least very considerable and certainly more than significant or marked. Ultimately what is required is a value judgment after consideration of the totality of the evidence.

Impairment consequences
Pain
167The plaintiff described her level of neck pain and restriction in her affidavits. As detailed, immediately following the accident, the plaintiff said she was in shock and had neck pain, a headache and difficulty moving her hand. She said she attended her general practitioner, Dr O’Brien, the next day with pain in her neck and left thumb. She said due to ongoing neck pain she was subsequently referred for chiropractic treatment in January 2020. She understood that a CT scan of her cervical spine revealed C6-7 spondylosis.
168In her first affidavit, the plaintiff said she continued to suffer from pain and stiffness in her neck. The pain increased when she looked left, right, up, down, and with bending. She also said the pain radiated into her arms and her left shoulder, and she sometimes experienced tingling in her fingers.
169In her second affidavit, the plaintiff again said that the neck pain travelled into her arms and left shoulder. She experienced tingling in her fingers and a sensation of pulling in her neck. She also felt lightheaded and suffered from headaches.
170The intensity of the pain varied. She reported the neck pain increased with activities involving reaching, pushing, pulling, twisting, and movements that required use of both her arms. She tried to limit movement of her neck.
171In her third affidavit, the plaintiff said she continued to experience pain in her neck. She said she had “pretty much” constant neck pain. Most of the time, she had a pulling-type of pain in her neck. This was usually when she was moving her neck. She did not get the tingling in her fingers like she used to. The intensity of her neck pain still varied, depending on what she was doing and had been doing during the day. The CBD/cannabis oil helped with her pain. She described the pain as dull pain and not as sharp up to lunchtime. After lunch, the pain generally started to get more intense and worse. She tried to push through the pain. The pain was worst at night.
172At the hearing, the plaintiff was observed to experience difficulty turning her head and using her neck. She turned her entire body to face in different directions. She said her pain level that day was 4 out of 10 and although she was moving her neck, she said it was not without pain. She said she could sometimes feel lightheaded, and she suffered from headaches; two a week, mostly at night. She described how her neck pain got worse with activities involving pushing, pulling, twisting and reaching. Generally, any activity requiring movement was difficult for her.
173The plaintiff’s descriptions of her pain and restrictions were supported by Dr O’Brien, who opined, as early as 2018, that the plaintiff’s pain was localised, and examination revealed a significant reduction in all movement due to muscle spasm and pain. At that time, Dr O’Brien noted that the degenerative disc changes at C6-7 corresponded with the pain and tenderness the plaintiff had experienced over her right C6-7 facet joint.
174Although Dr Ma subsequently described the plaintiff’s level of disability of her neck range of motion as mild, I prefer Dr O’Brien’s description, particularly given he was the plaintiff’s treating general practitioner, whereas Dr Ma was her chiropractor.
175In his report dated 14 August 2020, Dr Sheehan referred to the plaintiff having pain in her neck whenever she flexed or extended her neck. He noted she had difficulty turning to the right and had restrictions in lifting. Her mood was low due to pain in her neck, limited activity and because of her breast surgery. The plaintiff also reported to Dr Sheehan that her memory and concentration were “shocking”.
176In his second report, Dr Sheehan noted the plaintiff had experienced a significant reduction in her pain, although there had been some return. The plaintiff had described her neck pain to Dr Sheehan as “more like a pressure pain. There is grinding and I can hear it.”
177When examined by Associate Professor Taylor on 16 August 2021, the plaintiff said she experienced pain “virtually on a daily basis in the neck and shoulders”. Once or twice a week she also said she got a headache.
178To Mr Kossmann on 29 March 2022, the plaintiff complained of pain in her cervical spine. Mr Kossmann reported that since the plaintiff had been supplied with medical marijuana, her pain and symptoms had decreased, and her overall condition had improved. Notwithstanding this, the plaintiff reported grinding in her neck when moving her head and said that if she looked downwards, she had increasing pain. She had occasional sharp pain in her neck if she moved too much, and she had difficulty lifting anything.
179In addition, following referral to Dr Islam, a diagnosis was made of cervical radiculopathy secondary to cervical spondylosis, confirmed by an MRI scan of the cervical spine. Dr Islam stated that the plaintiff would likely have ongoing pain as a result of her condition. She changed the plaintiff’s medication regime to include amitriptyline for neuropathic pain, as well as CBD oil. The plaintiff had previously been taking Tramadol, codeine and paracetamol for pain as identified by Mr Speck and Associate Professor Taylor. She also said she had taken Targin.
180The evidence of Ms Dodge and Mr Pizzoni also supported the extent of the plaintiff’s pain and how her activities of daily living have been impacted.
181I accept that the level of pain the plaintiff suffers is significant. It is constant and is experienced every day. It is felt as a pulling-type of pain in her neck. It is of variable intensity. It can be dull when the plaintiff has taken legal cannabis oil but becomes sharp when the effects of the cannabis oil wear off. I accept the pain the plaintiff has experienced has impacted on her life in a substantial way. She is required to take prescription medication to alleviate her pain. I am also satisfied that because of the degenerative nature of the plaintiff’s condition, she will continue to experience pain in the future.
Medication and medical treatment
182In her first affidavit, the plaintiff described consulting Dr O’Brien the day after the transport accident. She returned to see him in December 2018, experiencing pain in her chest and in her left breast. She was worried her breast implant had ruptured. She had her breast implant replaced by Mr Cooter in August 2019.
183Due to ongoing neck pain, she sought chiropractic treatment in January 2020. Her chiropractor, Dr Ma, referred her for a CT scan of her cervical spine. She then underwent a range of treatments including dry needling, manipulations, impulse and hand massage and ultrasound treatments. Her neck pain continued to cause her discomfort.
184She continued to see Dr O’Brien and Dr Ma for monthly dry needling, acupuncture and RPN shockwave treatment. At the time the plaintiff swore her first affidavit, she described taking Targin and Tramadol.
185In her second affidavit, the plaintiff described undergoing a CT-guided cervical facet joint injection. She continued to attend Dr O’Brien and to take Tramadol and Targin.
186On 16 August 2021, Associate Professor Taylor recorded that the plaintiff told him the only prescription she had required was for the addictive painkillers Tramadol and codeine which she used irregularly, perhaps once a month. He later noted the plaintiff used codeine a few times each week, perhaps a maximum of four or five pills per week.
187In her third affidavit, the plaintiff said Dr O’Brien had recommended a second injection in her neck, but it had not been approved by the TAC and so had not been performed. She also recounted having a further MRI scan and x-ray of her neck, as well as a nerve conduction study.
188She said, in late 2021, she was referred to a neurologist, Dr Islam, and was prescribed nerve medication. She said the nerve medication “bombed … [her] out” and she no longer takes that medication. She continues to see her neurologist, Dr Islam, as needed. Dr Islam prescribes CBD/cannabis oil, and the plaintiff takes two to three drops under her tongue each day. She no longer takes other pain medication. She also no longer sees Dr O’Brien or the osteopath.
189In a letter sent by Dr Islam to the plaintiff’s solicitors dated 4 April 2022, Dr Islam noted that she had tried the plaintiff on amitriptyline for her neuropathic pain, as well as CBD/cannabis oil. She recommended continued use of those medications and noted that the prognosis was the plaintiff would have ongoing pain as a result of her condition.
190In his third report, Mr Kossmann also considered the plaintiff’s prognosis to be guarded, and recommended that she continue with the cannabis oil treatment.
191I accept that the plaintiff is currently being prescribed and is taking daily CBD/cannabis oil. She will require this through the foreseeable future.
Work capacity
192At the date of the transport accident, the plaintiff was working nightshifts of 20 hours per week at the Horsham Centre Cinema. She was also operating her own furniture and bedding business, “Onya Back Bedding & Furniture” selling bedding and furniture. She officially opened the business at the end of 2018 but had been organising and setting up the business during 2017 and 2018. She had been running the business for roughly a month before the accident. She said in her final affidavit, that at the time of the accident, she was working at the business from 9.00am to 5.00pm, seven days a week.
193In her third affidavit, the plaintiff said she generally worked Tuesday to Friday from about 9.00am to 5.00pm and Saturday from 9.00am to 1.00pm.
194In re-examination, the plaintiff said her hours have gradually gone down since the accident. She generally no longer worked Sundays – the shop was closed that day – and she had a girl come in on Mondays and on a Saturday. She said she took time off work for rest days to help with her neck pain.
195Her work duties now include doing administration, sales, greeting and serving customers, paperwork and invoicing and ordering stock.
196She said she struggles to sit at her desk and finds that it has gotten harder.
197She said previously, she put furniture together. She can no longer arrange or assemble furniture in the showroom and pays two or three men to do that for her about once or twice a week. The men are her former partner’s workers. She started using them after the accident. They put lounges and beds together and move mattresses. They work anything from one to three hours at a time, depending on what needs to be done. The plaintiff said she is losing money paying other people when she would have normally done the work herself.
198It was put to the plaintiff in cross-examination that her affidavits were sworn to convey the extent of her impairment. She accepted this. It was suggested that her level of impairment and restriction was not as great as stated in her affidavits and she was able to work full time. The plaintiff did not agree. She said she no longer worked full time. She explained that she takes Mondays and Saturday afternoons off.
199The plaintiff also relied on affidavits from Ms Dodge and Mr Pizzoni. As already outlined, Ms Dodge said in her affidavit, that she had noticed changes in the plaintiff’s physical health since the accident. She could no longer do things that she did prior to the accident, and she had observed the plaintiff in pain. She could see she was a lot slower than she had been.
200Further, Ms Dodge said that prior to the accident, the plaintiff assembled all the pre-packed furniture herself. Following the accident, she had a man put the furniture together and move it around. She could no longer lift furniture as she had done previously.
201Mr Pizzoni described how the transport accident had resulted in a “profound impact” on the plaintiff’s ability to do all the hands-on tasks in her own furniture shop. He confirmed that the plaintiff now paid some of his workers and some other men to lift and move her furniture. The plaintiff no longer assembled the furniture herself.
202I accept that notwithstanding the plaintiff is still able to work most days of the week, she does so in pain. She is substantially restricted in undertaking heavy manual lifting, pushing and moving furniture which she previously performed. She is now much slower than she once was.
203The defendant impressed upon me the need to consider what the plaintiff has retained. I accept that regard must be had to what was retained by the plaintiff as well as what is lost. The plaintiff could continue to work. On the one hand this lent support to the conclusion that the pain and suffering consequences were not “at least very considerable”.[17] However, the plaintiff put up with pain and suffering and demonstrated a degree of stoicism by her willingness to continue to try to operate her business. She should not be treated less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury. More than that though, prior to the transport accident, the plaintiff was working two jobs: She was operating her own furniture and bedding business, “Onya Back Bedding & Furniture” during the day and she was working nightshifts at the Horsham Centre Cinema. She is now limited to working in her furniture business.

[17]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]; Stijepic (supra) at paragraph [47]; Haden (supra) at paragraph [15]
204Appropriate weight must be given to the plaintiff’s post-accident impairment condition and the other objective consequences suffered by her. While it is acknowledged that the plaintiff has retained an ability to work in her own business, it was evident that she does so in considerable pain and after reducing her working hours and the tasks she performs. What she has retained is only one part of the assessment and it is not determinative in this case that the plaintiff’s injury was not serious.
Sleep
205In her first affidavit, the plaintiff said that following the accident, she had disrupted sleep. She struggled to get comfortable due to pain and stiffness. She previously slept on her side, but she described having to sleep on her back using a special pillow and with a heat pack under her neck. She said she struggled to get to sleep and stay asleep. She woke frequently and was often tired during the day.
206She recounted having had nightmares and flashbacks of the accident including of hanging upside down in the car and skidding along the road. She said she remembered the sound of crushing metal and the smell of petrol which still terrified her.
207She also reported nightmares to Dr Sheehan which he referred to in his report dated 14 August 2020. At that time, the nightmares had reduced in frequency and were occurring once a month.
208In her second affidavit, the plaintiff said the flashbacks had reduced and were now occasional.
209In his second report dated 18 June 2021, Dr Sheehan noted that the plaintiff’s sleep pattern was still disturbed. She woke up to three times a night due to discomfort in her neck. She also continued to experience occasional dreams related to the transport accident about once a month.
210In her third affidavit, the plaintiff said the CBD/cannabis oil which she was taking, helped with her sleep. But if she forgot to take the CBD/cannabis oil, she woke frequently in the night due to neck pain. She described a recent experience where she had stayed with a friend and had forgotten to take the CBD/cannabis oil. She described having “a really terrible sleep”.
211I accept that the plaintiff’s difficulty sleeping is due to her neck pain. I accept that the plaintiff takes cannabis oil to assist with her sleep.
Social life
212Before the accident, the plaintiff said she had an active social life. She enjoyed seeing live music and going dancing. However, she said she did not do those things now. She said putting COVID-19 to one side, she socialised a lot less now.
213This was confirmed by Dr Sheehan in his report dated 14 August 2020. He noted that the plaintiff did not really go out, save occasionally for tea with her partner or to see a girlfriend. The plaintiff reported to Dr Sheehan that she tended to watch a lot of television.
214Before the accident, the plaintiff said in cross-examination that her social life was pretty full. In her first affidavit, she said since the transport accident, her social life had been “not that great”. She said, “I don’t have the urge to go out really”. She said whether she went out depended on whether she had pain. If she went out, usually she felt pretty sore the next day.
215In cross-examination, it was put to the plaintiff she was working full time, actively socialising and before her relationship broke down, she had been able to go out with her partner for dinner, to the pokies at the pub or to restaurants.
216The plaintiff accepted that before her relationship broke down, she went to the pub occasionally. She accepted she used to go and play the poker machines and had even played them this year. She agreed she had visited the local bottle shop and bought alcohol which she had taken when she visited friends. But she disagreed that her work and social life were back to normal. She said that even up to February 2022, she and her former partner did not go out as much as they had before the transport accident. It was put to her that her relationship was breaking down and that was why she had not gone out. The plaintiff explained that her relationship had been breaking down because of her neck. She said she still could not do what she would want to do without pain. She said she always has pain.
217I accept that the plaintiff’s social life has been impacted by the pain she experiences as a result of the transport accident.
Activities of daily living
218In his report dated 14 August 2020, Dr Sheehan noted that the plaintiff was able to do some household chores. Her partner undertook most of the grocery shopping and meal preparation.
219The plaintiff told Mr Kossmann, as he reported in his third report, that the plaintiff’s domestic situation had changed. She and her partner had split up and the plaintiff now took care of the household chores. She did not have a garden.
220In her first affidavit, the plaintiff had said before the transport accident, she enjoyed cleaning and it was important to her to have a clean home. She explained that since the transport accident, simple tasks like putting dishes in the dishwasher caused her pain. Sweeping, mopping and hanging clothes on the clothesline had all become painful. She said she used a dryer and a clothes hoist. At that time, her partner was having to do more around the house. The plaintiff said if she did perform light housework, she had to have a rest.
221In her second affidavit, the plaintiff described having difficulty performing tasks such as putting dishes in the dishwasher. She said she pushed through the pain and attempted some activities but then needed to rest and take painkilling medication.
222In her third affidavit, the plaintiff said she now lived with a friend. She detailed how she tried to avoid doing the housework as it would generally increase her neck pain. The plaintiff said she tried to do some lighter housework, and she is now able to put the dishes in the dishwasher, but she leaves the heavier jobs like mopping and cleaning the bathroom to her housemate, who now does most of the housework.
223She said before the accident, she did a big shop once a week. Now, she tends to do smaller shops, so there is less lifting involved. She said in cross-examination that she still does the shopping because she has to with full movement of the neck.
224The plaintiff said she showers herself, washes her hair and dresses herself.
225I accept that although the plaintiff is able to perform basic personal care and some light household tasks, including loading the dishwasher, she is unable to perform tasks which involve lifting, twisting or heavier housework. The activities she does undertake I have concluded are undertaken with pain and restriction.
Sports and hobbies
226In her first affidavit, the plaintiff said that before the accident, she exercised regularly at home, walking or doing aerobics or light weights. She said since the transport accident, she was no longer motivated to go for longer walks.
227She confirmed this in her second affidavit.
228In her third affidavit, the plaintiff described herself as previously being a “gym junkie”. She said she previously walked 7 kilometres, either in the morning or at night, and would use the home stepper and gym equipment to do weights. She said she now avoids doing those activities because of her neck pain. She said going for walks of 1 or 2 kilometres aggravates her neck pain.
229The plaintiff reported to Dr Sheehan that prior to the transport accident, she regularly attended a local gym with a girlfriend, four to five days a week. She had since ceased that activity.
230Mr Kossmann also noted in his third report that the plaintiff previously attended a gym but now used gym equipment at home.
231Before the accident, the plaintiff said she enjoyed cooking. She does not cook very often now as the meal preparation and chopping of vegetables aggravates her neck pain.
232I accept that the plaintiff has experienced a decline in her overall ability to participate in, and enjoy, sporting and leisure activities. While she is still able to undertake some home gym exercises, she does not feel able to attend a gym. She is also unable to walk as far as she previously did and what walking she is able to do she undertakes with pain. She is restricted in her ability to cook as she previously did.
Driving
233In her first affidavit, the plaintiff detailed that before the transport accident, she was a confident driver. She continues to drive, but she avoids the city and traffic. She said she hyperventilates and feels anxious. She is now an anxious passenger. This was confirmed in Dr Sheehan’s report dated 14 August 2020, who also noted that the plaintiff experiences hyperventilation, palpitations and shortness of breath when driving.
234I accept the plaintiff’s driving ability has been impacted, although in a practical sense, I do not consider it substantially affects her day-to-day life.
Relationship with partner
235The plaintiff said that the transport accident impacted her sexual relationship with her partner and that they have now broken up. She said she was no longer able to engage in intimate acts insofar as they involved the use of her neck. She said that she felt she ultimately lost her relationship with her partner because of her neck injury which she described as being “horrible” for her.
236At the time he swore his affidavit, Mr Pizzoni confirmed that after the transport accident, their intimate relationship had been impacted and their sex life was “almost non-existent now”.
237The plaintiff’s relationship with her partner ceased in February 2022.
238The plaintiff was cross-examined about her reduced social activity. It was put to her that she was less active socially, not because of neck pain, but because her relationship was breaking down. The plaintiff responded by indicating that her relationship broke down because of her neck pain and the impact it had on her ability to participate fully in her sexual relationship. When she was asked, “how did that happen”, she broke down in tears. It was distressing to watch. She was clearly embarrassed at having to provide an account of her sexual relationship, and I was left in no doubt that the plaintiff genuinely felt the loss of her relationship was because of her neck injury as she said in cross-examination and explained in her third affidavit.
239In any event, the plaintiff was not challenged about why her relationship broke down. I consequently accept her evidence. I accept that the loss of her relationship is an impairment consequence which was of considerable significance for her.
Grandchildren
240The plaintiff has two grandchildren born after her transport accident. She said she finds it difficult to lift, carry and play with her grandchildren. This is disheartening for her.
241She described having a panic attack when visiting her daughter in Brisbane and described how she considered her lack of confidence limited her ability to assist her daughter to look after her granddaughter.
242She was cross-examined about her interaction with her grandchildren. She said her grandson comes and sees her regularly at 6.30am on the days her daughter works. Her daughter starts work at 6.00am.
243It was put to the plaintiff that she has regular childcare duties looking after her grandson. The plaintiff explained that her grandson comes to her house, and she puts him into his cot. He has a bottle and goes back to sleep. Someone else comes to her house at 8.00am to then look after him. She said he also comes on weekends as well for a couple of hours while her daughter feeds the horses. He is more active then. From time to time, the plaintiff said she is called on to babysit but she said she has her friend, Jess, there as well to assist her. She explained that although she can lift her grandson, it is not without pain, so she avoids it. She would like to do a lot of things with him, including chasing him, but she avoids doing those things because of the repercussions and the pain.
244I accept that although the plaintiff has some interaction with her grandchildren, the activities she is able to undertake are very limited. She relies on other people to assist her in minding her grandchildren.
Conclusion on serious injury
245I have considered the plaintiff’s evidence as a whole and the consequences she claims. It is apparent the plaintiff suffers constant daily pain. The pain is experienced as a pulling-type of pain in her neck of variable intensity, ranging from a dull pain to a sharp stabbing pain.
246The medical opinions of Mr Kossmann and Dr Islam support the view that the plaintiff will require prescription of ongoing daily CBD/cannabis oil by way of medication through the foreseeable future to treat her pain.
247Even with the use of CBD/cannabis oil, the plaintiff’s injury significantly impacts her. Although her sleep has improved, she continues to experience occasional dreams related to the transport accident. Her neck pain becomes sharp when the effects of the CBD/cannabis oil wear off. Without the cannabis oil, the plaintiff would wake up to three times a night due to discomfort in her neck.
248The plaintiff is unable to perform all her activities of daily living, even with the assistance of CBD/cannabis oil. She is also unable to perform any heavy household chores such as mopping and vacuuming.
249She is no longer in a relationship and I accept her relationship deteriorated because of her neck condition. Consequently, she has been forced to rely on her housemate to assist her with housework activities and minding her grandchild.
250While the plaintiff is still able to work, she does so in pain which is manageable only because she is taking CBD/cannabis oil. The hours she can work are reduced and she cannot do any heavy work, such as assembling or moving furniture, or activities which involve lifting, pulling or twisting. While the ability to continue working is something the plaintiff has retained and, on one view, could be said to tend against a conclusion of a serious injury, that is not the conclusion I have reached in this case.
251The plaintiff operates her own business. The fact that she has continued to work in the face of the pain she experiences is creditable. She has also continued to work impacted by the deleterious effects of CBD/cannabis oil, including that she is vague, has trouble concentrating and struggles with her memory. Further, she is now required to pay others to assist her. Additionally, because she works in her own business, if she does not work, her income and ability to support herself would be adversely diminished.
252Her social life has been impacted.
253She cannot exercise to the same extent and in the way she enjoyed before the transport accident.
254Additionally, she has lost the ability to interact with her grandchildren in an unfettered way.
255When the impairment consequences are considered as a whole, the pain and suffering consequences the plaintiff experiences are real and ongoing.

Conclusion
256Taking into account the totality of the evidence, when judged in comparison with other cases in the range of possible impairments and losses, I am satisfied the impairment consequences for the plaintiff are “at least very considerable” and certainly more than “significant” or “marked”. I find that the plaintiff has suffered a serious injury.
257Accordingly, I grant the plaintiff leave to commence common law proceedings for damages in respect of the injury she suffered to her neck/cervical spine in the transport accident.
258I will hear argument with respect to costs.

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