Foran v TAC

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-02220

FRANCES FORAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Geelong
DATE OF HEARING:	17 February 2025
DATE OF JUDGMENT:	8 April 2025
CASE MAY BE CITED AS:	Foran v TAC
MEDIUM NEUTRAL CITATION:	[2025] VCC 396

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application - transport accident – injury to the lumbar spine – reliability of evidence regarding pre-existing injuries and onset of pain – history of back pain – multiple prior transport accidents - disentanglement – whether consequences at least very considerable
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries v Poljak [1992] 2 VR 129
Petrovic v Victorian WorkCover Authority [2018] VSCA 243

Judgment: The plaintiff’s application is dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.McNab with Ms P.Prossor	Maurice Blackburn
For the Defendant	Mr R. Kumar with Ms J.Clark	Solicitors for the TAC

HER HONOUR:

1Mrs Foran was in a car accident on 10 August 2016. She was stopped at the lights when a car rear-ended her. She says that as a result of that accident she has suffered a serious injury to her lumbar spine and seeks leave to bring common law proceedings for pain and suffering pursuant to section 93 of the Transport Accident Act 1986 (Vic).
2She has been involved in a number of previous car accidents. As a result of those car accidents, she has had significant problems with spinal pain for many years. She says the spinal pain she suffered prior to 2016 was mostly in her neck and upper back.
3She says that since the 2016 accident her most significant problem has been her lower back pain which was aggravated by the 2016 accident. She says the 2016 accident also aggravated her hip pain.
4She relies on impairment to her lumbar spine as the bodily function affected by the 2016 accident. She says that the impairment is an aggravation of a pre-existing injury.
5The law is not in dispute in this case. Ms Foran must establish that she has an aggravation of a pre-existing injury, that is itself productive of consequences that are more than significant or marked and at least very considerable.[1]
[1] Humphries v Poljak [1992] 2 VR 129
6Unlike many cases where the issue in dispute is whether the consequences for the plaintiff meet the test, often referred to as “range” cases, there was no real dispute that Ms Foran has suffered very significant injuries. She has had two operations on her lumbar spine, she requires methadone for pain, she has severe restrictions in her range of movement and can no longer participate in the two activities from which she derived very great satisfaction – volunteering work and ballroom dancing.
7The dispute in this case is not the severity of her injuries, but whether those injuries can be attributed to the 2016 accident.

Issues
8In order to determine whether Ms Foran has had an aggravation injury to her lumbar spine and hips that meets the test, I must determine:
(a)   The nature and extent of Ms Foran’s pre-existing lumbar spine and hip injury;
(b)   Whether there was an aggravation of those injuries caused by the 2016 accident; and
(c)   If so whether that aggravation meets the test.
9This requires me to decide whether:
(a)   Ms Foran’s evidence about the nature and extent of her pre-existing injuries is reliable;
(b)   Ms Foran’s evidence about the onset of lumbar and hip pain after the 2016 accident is reliable; and
(c)   The medical opinions relied on are significantly impugned by any unreliability.
10For the reasons that follow I am not persuaded that Ms Foran has established that the 2016 accident has caused an aggravation to her spine, in particular her lumbar spine and hips, that is at least very considerable. Accordingly, Ms Foran’s application is dismissed.
History of back pain prior to 2016 accident:
11Ms Foran had a work related right shoulder injury that caused her to cease working in 1991.
12In February 1994 she was in a car accident. Ms Foran says that after her February 1994 accident she had ongoing neck and upper back pain which was aggravated in subsequent accidents in August 1994 and in 2007. She says her neck and upper back pain required extensive treatment.
13In contrast, her lower back and hip pain was “intermittent” and “generally far less severe” than the pain in her neck and upper back.[2]
[2]        Plaintiff’s Court Book (“PCB”) 20
14In 1997 she saw chiropractor Rick Ames for assessment. He noted she used a cane when walking into his clinic and was not able to climb the stairs to his rooms. He reported that, immediately following the February 1994 accident, Ms Foran had significant low back pain, a migraine headache and an aggravation of her right shoulder condition which had occurred in 1989. She reported to him that the August 1994 accident had “reaggravated” her condition, especially her low back, and from that accident she started to develop pain in the mid-back.
15He recorded that she reported five main areas of pain. The first was neck pain which increased when moving her neck, particularly to look up or down. The second major area of complaint was her low back. She said the pain increased at night and localised in the central lower region and “she pointed to the sacrum and coccyx”. She said she walked with a cane and switched it from side to side depending on which area of her low back was sore. She said that bending and getting in and out of the car increased the pain in her low back and as a result she did not lift or drive much.
16On examination Mr Ames noted significant findings of two large mottled areas bilaterally in the paralumbar region, a decrease in all cervical range of movement, tenderness of T1-T8, tenderness over L1-L5 spinous processes in the right and left sacroiliac joint and the left and right sciatic notch, hypertonicity and tenderness in the quadratus lumborum and erector spinus muscles on the right and the gluteal muscles bilaterally. He noted a significant decrease in the thoracolumbar range of motion with flexion, extension and left and right lateral flexion producing pain in the low back. Sitting lumbar extension test produced pain in the low back and all prone and supine orthopaedic tests were unable to be performed due to pain. A sitting sacroiliac compression produced pain in the low back. There was a decrease in sensation of the L3/4 and L5 dermatones on the right.
17A full spine series of diagnostic imaging from 10 July 1996 was reviewed by Mr Ames. He noted moderate narrowing of the L5/S1 intervertebral disc space and a significant pelvic distortion. These conclusions were similar to full spine X-ray from February 1994. A diagnostic bone scan from 23 June 1995 was also reported as showing degenerative disease of the thoracic spine.
18Mr Ames diagnosed a chronic post-traumatic mechanical spinal pain syndrome affecting the cervical, thoracic and lumbopelvic regions associated with a myofascial pain syndrome in all these regions.[3] Mr Ames concluded that Ms Foran’s condition would likely continue to deteriorate.
[3]        Defendant’s Amended Court Book (“DACB”) 185-191
19A report from physician Bernard Gilligan dated 29 October 1998 noted that following the February 1994 accident Ms Foran had a whiplash injury to her neck, injuries to the thoracic spine, injuries to her right shoulder “more than the left” and a torn left chest muscle. On examination she was noted to have a very stiff cervical spine which she would not move in any direction, and which was partly flexed over the to the left and the left shoulder was held slightly higher than the right. She was noted to have a mild dorsal scoliosis. Examination of her lumbar spine showed that “she would not flex extend or laterally flex in any direction because of pain. Straight leg raising was 45 degrees each side”. Dr Gilligan recorded:
“With regard to her symptoms she stated …Neck Aches. These are improved and she no longer wears a neck brace except on migraine days when the neck becomes very sore and she uses the brace at that time. There is still no tingling in the fingers.”
“Low back pain is constant and she has some pain down to the left ankle. She believes she has a bursitis of the trochanter on the left hip which is treated with cortisone injections by Dr Kinloch.”[4]
[4]        DACB 192-194
20Dr Gilligan concluded that she has “definite areas of improvement” since she was seen three years ago, but still has “disabling symptoms with both cervical and lumbar spine”.[5]
[5]        Ibid 194
21A report from Dr Asthana dated 25 October 1999 noted Ms Foran attended after the February 1994 accident complaining of pain in the neck, right shoulder, left shoulder and back. On examination she was noted to have tenderness in her cervical spine with spasm of paravertebral muscles and painful movements. She was also noted to have “tenderness +++” and painful movements of her lumbar spine.[6] Dr Asthana reported that she sent Ms Foran for X-rays of her neck and back, as Ms Foran had no previous history of neck or back troubles.
[6]        Ibid 100
22Dr Asthana next saw Ms Foran in April 1994. X-rays were normal but Ms Foran had persistent symptoms in her neck, back and both shoulders. A CT scan of the cervical spine was normal. Dr Asthana noted that a second accident on 3 August 1994 aggravated her pain in the cervical, thoracic and lumbar spine and both shoulders. She had hydrotherapy, relaxation therapy, chiropractic treatment and acupuncture. She was provided with a cervical collar and back brace. She was referred to Dr Wallis for neurosurgical opinion. Dr Wallis’ records are not in evidence but Dr Asthana has noted that he concluded she had sustained a soft tissue injury to the neck and back in the February 1994 accident which was aggravated by the August 1994 accident. Dr Wallis “doubted whether there was any room for surgery in her management”.[7] Dr Asthana noted that Ms Foran had pain management with Dr Bruce Kinloch and was taking Kapanol and Tramal daily. Dr Asthana concluded that Ms Foran had a chronic soft tissue injury of cervical, thoracic and lumbar spine and a soft tissue injury of both shoulders, caused by the February 1994 accident and aggravated by the August 1994 accident. She noted that Ms Foran continued to get persistent pain in her cervical spine, lower spine, both shoulders and recurrent headaches.
[7]        Ibid
23In February 2000 Dr Honey saw Ms Foran for psychiatric assessment. He recorded that she described “quite extensive physical symptoms including migraines, restricted movement and pain in the neck, pain in the back between the shoulder blades and pain in the lower back”.[8] He noted that she continued to wear a back brace, that she always walked with a stick and described pain in her hips, particularly with walking.[9]
[8]        Ibid 196
[9]        Ibid 197
24In April 2000 Ms Foran saw rheumatologist Tony Kostos who noted that following the February 1994 accident she had pain “throughout her spine” as well as both shoulders. After the August 1994 accident she had increased pain between her shoulders. Mr Kotsos’ examination focused on her neck and shoulders. He noted that her thoraco-lumbar spine was straight with virtually no movement while sitting or standing and with diffuse tenderness in the paravertebral area.[10] He diagnosed a chronic pain syndrome.
[10]        Ibid 203
25In May 2003 Ms Foran attended pain specialist Dr Steve Jensen. He noted that after her 1994 accident she had developed severe migraines which eventually resolved. She was doing volunteer work at the Werribee Mercy one day a week but this aggravated her neck pain. He noted her main problem at that time was neck pain which had been worse since painting her patio a few months before. He undertook a clinical examination, recording restriction of movement in the cervical spine and tenderness of forward extension of the lumbar spine. She continued to see Dr Jensen until mid-2004.
26Ms Foran had a cervical medial branch block on 23 October 2003 and radiofrequency denervation of the cervical spine on 5 December 2003.
27In 2007 Ms Foran began to see her current general practitioner Dr Trudy Clark at the Drysdale Clinic. From time to time Ms Foran has also seen other doctors at that clinic. Dr Clark reported in 2021 that, when she first began seeing Ms Foran, she had chronic neck, thoracic and lumbar back pain due to facet joint osteoarthritis trigged by the 1994 accident and aggravated by subsequent accidents.[11]
[11]        PCB 79
28In 2007 Ms Foran was involved in another transport accident which aggravated her pain. She returned to Dr Jensen in June 2008. Dr Jensen noted that she “settled back to previous prob[lems] but worse than was before the MVA”.[12] At that time she was taking Mersyndol Forte, Stilnox, Isoptin, Thyroxine and Endep. She was noted to be walking an hour a day but struggling with this and having pain at the end of the day. She was doing water aerobics twice a week, her sleep was affected by pain and grief, and she was not doing many chores because of pain. Dr Jensen recorded an examination of her thoracic and cervical spine.
[12]        Plaintiff’s Supplementary Court Book (“PSCB”) 306
29Ms Foran returned to Dr Jensen on 30 June 2008. He noted at that time that she was maximally tender in her thoracic spine.
30In July 2008 she underwent medial branch blocks at T5, T6 and T7 and radiofrequency neurotomy on her thoracic spine in August 2008. In September 2008 she had radiofrequency neurotomy on her cervical spine. Dr Jensen recorded a significant improvement in her pain and that Ms Foran was going to move closer to her family on the other side of town the next year and get her life “back on track from there”.[13]
[13]        Ibid 302
31On 22 June 2009 she attended Waurn Ponds Physio. At that time her therapist noted:
(a)   she was in a transport accident 15 years ago and had had constant neck and back problems since then.
(b)   She had a further accident in November 2007 with cervical and thoracic spine problems since.
(c)   She was having chiropractic three times a week, walking 5 days a week, doing pilates and had moved house six weeks ago.
(d)   She had a constant ache in her low lumbar spine, worse at the end of day.
(e)   Her mid thoracic spine was easing with chiropractic treatment.
32On examination her therapist noted her lumbar spine was painful. There is no mention under the examination part of the note about cervical or thoracic spine.
33She had 21 attendances at Waurn Ponds Physio until October 2009. The notes from many of those attendances record simply that Ms Foran was continuing with pilates and had no complaints. Specific mention of her spine occurred on 13 August 2009 when she was noted to have lumbar pain worse at night and in the late afternoon and on 27 August 2009 when she was noted to have aching in her lumbar spine when doing stomach pulls.
34In 2012 she began attending chiropractor Ian Adams. The confidential information form completed on 22 March 2012 notes “long term chronic back (upper) neck and hip pain”.[14]
[14]        PSCB 452
35At her first attendance Mr Adams noted Ms Foran had been in a transport accident 18 years ago and had upper cervical pain, mainly on the right, mid thoracic pain and lower back pain. She attended Mr Adams very regularly until the 2016 accident and continued seeing him after the accident.
36In the period prior to the 2016 accident, doing the best I can to interpret the chiropractic notes, it appears she had treatment for her cervical and thoracic spine on almost every attendance. I have reviewed the records in detail, and without recounting each of the more than 150 attendances she had before the 2016 accident, in the majority of those attendances she also had treatment for her lumbar spine (L5) and sacro-iliac joint (RPI). The chiropractic notes record specific complaints of lower back pain on more than 35 occasions in the period between March 2012 and the transport accident in August 2016. In the two years prior to the accident a specific record of low back pain is noted 23 times.
37In November 2013 Ms Foran began seeing Dr McGivern, a specialist in sports medicine. Dr McGivern noted Ms Foran’s pain in order of severity as cervical, then occipital headaches, then thoracic and that her lumbar pain was “least”. Ms Foran had a number of sessions with Dr McGivern in late 2013 and early 2014, focusing primarily on cervical stiffness and headaches.
38In May 2014 Ms Foran commenced Kieser training with Tim Dettman. Kieser training is a form of physiotherapy and rehabilitation. Mr Dettmann noted that the goals of the strengthening program for Ms Foran included decreasing cervical and lumbar pain.
39From 2007 to August 2016 the medical notes from Ms Foran’s general practitioners at the Drysdale Clinic mention “pain” on about 50occasions. There is reference to “back pain”, cervical or neck pain, thoracic pain and hip pain intermittently throughout the records. There are far fewer references to lumbar pain specifically. It is not clear whether reference to “back pain” includes all of the back, or a part of the back and, if a part of the back, which part.
40Without detailing every attendance on her general practitioner, I note the following:
(a)   In 2014 Dr Clark noted on 2 December that Ms Foran had 3-4 weeks of low back pain radiating down both legs to feet with no obvious trigger. On 17 April 2015 she was noted to have very severe pain in multiple joints: “ankles, knees, hips, back, hands”.
(b)   On 15 May 2015 Dr Clark noted that Ms Foran was “beside herself with pain – mainly thoracic”. On 12 October 2015 Dr Becky Hollows has noted “a bad week of pain generally, especially thoracic and neck”.
(c)   On 13 November 2015 Dr Clark noted worsening bilateral hip pain, particularly at night, radiating from hip to knee.
(d)   On 4 December 2015 Dr Clark noted no significant relief with trochanteric bursa injection.
(e)   On 22 December 2015 Dr Clark noted that Ms Foran had a great response to ultrasound guided left gluteal injection and on 29 December 2015 Dr Clark has noted Ms Foran was still experiencing right hip pain and tenderness over the greater trochanter.
(f)    On 29 January 2016 Dr Clark noted that Ms Foran had about 4-6 weeks of relief after the injection but the pain in her left trochanter had returned.
41In June 2015 Dr Clark referred Ms Foran to Sports Medicine specialist Dr Jacqueline Johnston, noting in her referral letter that Ms Foran had long standing issues with neck, thoracic spine and low back pain, and that her pain had been poorly controlled as of late.
42Dr Johnstone noted at that time that Ms Foran reported her thoracic pain was ”like a knife in her back all the time” and that the accident in 2007 had made “the thoracic back so much worse”. Dr Johnstone undertook an examination of cervical, thoracic and lumbar spine, and noted that Ms Foran was sensitive to palpation of the left buttock, had been told she has piriformis syndrome and was tender proximal to the piriformis and over the trochanter and iliotibial band. Dr Johnstone noted “?role for imaging of the lumbar spine” but noted she would “be reluctant to intervene”.[15]

[15]        PSCB 156
43Dr Johnstone wrote back to Dr Clark on 11 June 2015 noting Ms Foran had chronic pain affecting her neck and thoracic spine, that she had altered sensation in her left lateral thigh and tenderness over L2 and L4 in the midline. Dr Johnstone noted Ms Foran’s left buttock was tender to palpation proximal to her sciatic nerve. Dr Johnstone noted “Unfortunately I do not have an easy answer to improving Frances’ condition. I do not think there is anything focal to treat within her thoracic spine or neck. If her lumbar spine/leg symptoms do not settle, certainly consideration of imaging would be worthwhile”.[16]
[16]        DACB 127
44Ms Foran had ultrasound guided left trochanteric bursa injections on 9 December 2015 and 11 February 2016, and right trochanteric bursa injection on 5 January 2016.
45In April 2016 Dr Clark noted that, in addition to upper back and disc pain, Ms Foran “now has bursitis in both hips causing great pain”.
History of back pain after 2016 accident
46On 11 August 2016, the day after the accident, Ms Foran attended her chiropractor. He noted:
“rear ended by car when sitting at the lights. No P[ins] + N[eedles], P[ain] thru spine, C7 Rx C6L T3Rant T7R T10L RPI L5L DN Spine”.[17]
[17]        PSCB 464
47I have interpreted this note to indicate that Ms Foran presented with pain throughout her spine and she was treated at cervical spine levels C6 (left) and C7, thoracic spine T3 (right anterior), T7 (right) and T10 (left) and lumbar spine L5 (left).
48The adjustments done on this occasion to Ms Foran’s lumbar spine are consistent with the adjustments done to her lumbar spine in the years preceding the 2016 accident.
49On 12 August 2016 Ms Foran attended her general practitioner. Dr Clark has recorded “Involved in another MVA. Sitting at lights in Melbourne and hit from behind. Has aggravated back pain.”[18]
[18]        PSCB 62
50Dr Clark did not prescribe any medication for back pain in addition to the medications Ms Foran usually took.
51On 6 September 2016 Ms Foran returned to Dr Clark for ongoing scripts and to address a productive cough that resulted in her losing her voice. Dr Clark recorded “Pain has returned to baseline after recent MVA.”[19]
[19]        Ibid 63
52Ms Foran did not accept that her pain had returned to baseline,[20] and said that after the 2016 accident “everything hurt”. She said the medication she was on and the ongoing pain was “all stemming from the 94 accident” but there was “a lumbar pain I had never experienced”. She said her neck and upper back pain settled to a similar level to that which she experienced before the 2016 accident but that she continued to have “severe pain in [her] lower back and hips”.[21]
[20]        Transcript (“T”) 71
[21]        PCB 21
53On 16 October 2016 Dr McGivern recorded that Ms Foran presented complaining of bilateral iliac crest and buttock pain. She noted “almost no ROM [range of movement] low back” secondary to pain, a good range of movement in both hips and that the “main feature” was widespread tenderness in the iliac crests.[22]
[22]        PSCB 155
54On 22 November 2016 Ms Foran presented to Dr Clark with ongoing leg pain radiating down to her foot. She was noted to have had a trochanteric bursa injection four weeks prior with no change in her pain. I have been unable to find any record of a trochanteric bursa injection in October 2016 but there was a trochanteric bursa injection in February 2016, prior to the 2016 accident.
55Ms Foran had a bone scan organised by Dr McGivern on 28 November 2016. The clinical indication for that scan was noted as “recent MVA with increased left buttock pain, pain at night, maximum tenderness over left SI joint”.
56On 21 December 2016 Ms Foran had a CT guided injection into the L4/5 facet joint. The clinical indication for this injection was increased buttock pain.
57On 23 January 2017 Ms Foran had a further CT guided injection, the clinical indication for which was “signs now suggest sacroiliac joint pain”.
58In March 2017, about 7 months after the accident, she had the first of three exercise physiology sessions. Her physiologist, Vanessa Pizzinga, has recorded a presentation with 20 years of chronic pain following a car accident and noted that Ms Foran was attending hydrotherapy and water aerobics three times a week. She was driving to Melbourne twice a week and struggled to get out of the car after the 2.5 hour drive but felt better once she started to move. She was walking 40 minutes a day and put her house on the market to move to Geelong “as all her activities are in Geelong” and the move would reduce the time spent in the car. Her goal was to “get back to a beginners level of ballroom dancing, (session goes for 3 hours) and to improve fitness/endurance to prevent fatigue. Also want to improve left leg strength to achieve bilateral strength.”[23]
[23]        PSCB 417
59She attended again in April and in May 2017. There is no specific mention of back or lumbar pain in any of the records of the exercise physiologist. It appears the main goal of those sessions was to improve fitness, endurance and leg strength.
60By May 2017 Dr Clark noted that Ms Foran had completely weaned off her opioid medication and was doing really well and managing her pain.
61On 1 September 2017 Ms Foran had an injection into her sacroiliac joint because of increasing pain in the left side of that joint. A further injection on 6 October 2017 did not record any clinical indication, but was inserted “as close as possible to the joint capsule”.[24]
[24]        PCB 175
62She had trochanteric bursa injections on 13 October 2017, 16 July 2018, 19 July 2017, 29 November 2018, and 13 December 2018.
63In the approximately two and a half year period between the 2016 accident and mid-2019 she attended her general practitioner more than 40 times. There are two occasions prior to 2019 when lumbar pain specifically is mentioned. These are:
(a)   25 July 2017 tender over L4-5 facet joints and left sacroiliac joint.
(b)   10 April 2018 presented for GP management plan – chronic pain, lumbar/neck.
64Other general and specific pain is also mentioned 11 times in the general practitioner record in period between the 2016 accident and mid 2019;
(a)   4 October 2016 a flare of hip symptoms.
(b)   22 November 2016 leg pain radiating down to foot at times.
(c)   10 January 2017 improvement in left leg pain but still fairly significant ongoing back pain.
(d)   8 February 2017 some left gluteal pain.
(e)   8 March 2017 chronic pain despite meds but learning to live with it.
(f)    21 March 2017 recent MVA August 2016 has aggravated degenerative arthritis of the spine/hips.
(g)   4 April 2017 back pain has been bad as currently preparing to sell house.
(h)   2 May 2017 had 3 further episodes of pain lasting 5 mins over last month. Retrosternal radiating to back ass(ociated) with sweating.
(i)    1 December 2017 thoracic pain has been very severe and not sleeping well.
(j)    15 December 2017 pain terrible, sleep terrible which aggravates the pain. Getting muscle spasms.
(k)   26 June 2018 recurrence of symptoms of gluteal tendonitis. Aches and pains have generally been very severe.
65On 25 February 2019 Ms Foran attended her general practitioner with a complaint of “worsening lumbar pain”.
66On 21 May 2019 she attended Dr Clark who noted:
presents for GP management plan - Chronic pain, lumbar/neck 25yrs history of back/disc pain, has decided to consult a neurosurgeon for options - doesn't see herself living with this pain for the rest of her life having regular chiro/massage/dry needling for pain management on a weekly basis, unable to get out of bed otherwise. Frances reports trying to remain as active as possible, has returned to dancing x 2 weekly and walking dogs, volunteers at ALC x 2 weekly for 3-4hrs, was a nurse but had to retire early due to chronic pain. Frances' health goals are to reduce pain and preserve mobility for independence.
67She next attended Dr Clark on 28 May 2019. Dr Clark noted:
Very long consult regarding significant deterioration in pain in all parts of spine, esp lumbar spine. Worsening neck and thoracic symptoms also. Q[uality] O[f] L[ife] severely affected.
Has tried multiple non-surgical/allied health measures but not helping now. Needs to go to bed to cope at times. Recent X-rays with chiropractor- multilevel degenerative change. Cymbalta not helping pain, so wean over next 1-2 weeks, will start Palexia after Cymbalta ceased.
68In June 2019 Dr Clark arranged an MRI of the lumbar spine and referred Ms Foran to a neurosurgeon.
69On 12 June 2019 Ms Foran had an MRI which showed broad annular disc bulge at L3/L4 and L4/L5 with no significant central canal or neural exit foraminal stenosis, osteophytosis at C3/C4 to C6/C7 with multilevel mild neural exit foraminal canal narrowing, intraosseous haemangioma at T9, severe left C5/C6 facet joint arthropathy and moderate to severe L4/L5 bilateral facet joint arthropathy. The conclusion was multilevel cervical uncovertebral osteophytosis with mild bilateral neural exit foraminal canal narrowing.
70In her referral letter of 14 June 2019 Dr Clark noted that Ms Foran had long standing severe neck, thoracic and lumbar pain related to 2 separate motor vehicle accidents, one in 1994 and one in 2016.
71On 24 June 2019 her chiropractor noted that she had significantly improved and that her lower back, thoracic and cervical pain had recently decreased. DCB 134. This may not be reliable indication of Ms Foran’s presentation on that date because two days later she saw physician Dr James Cameron, for a pre-surgical assessment, who reported that “four weeks ago she was involved in ballroom dancing and her back ‘locked up’ during a waltz; she was no longer able to flex or rotate so was unable to continue her usual activities.”[25]
[25]        DACB 137
72It is difficult to reconcile the notes of Dr Clark and Dr Cameron with the chiropractic record on 24 June 2019. Ms Foran’s evidence was,. at that time, she was unable to walk without assistance of a walker. On balance, it is more likely that the chiropractor either inaccurately recorded Ms Foran’s presentation on 24 June 2019, or her condition on that day was improved within a broader picture of significantly increased lumbar pain.
73On June 2019 Ms Foran attended Mr Vellore who noted her history of significant injuries to her back and neck and recorded that since the 2016 accident she had been “progressively deteriorating…especially in the last few months when the lumbar pain became the worst along with sciatica in both legs going down the left leg into the right knee”.[26] She underwent laminectomy and spinal fusion at L4-5 with Mr Vellore in August 2019.
[26]        PCB 95
74On 26 June 2019 Ms Foran saw neurosurgeon Yagnesh Vellore and underwent surgery on her lumbar spine.
75Mr Vellore recommended surgical fusion of L4-L5. On 1 August 2019 Ms Foran had laminectomy and fixation at L4/L5. Ms Foran said that following the surgery she had an initial significant improvement in her low back pain but that her pain worsened again with time.
76In September 2019 she was referred for pain management to Dr Guy Buchanan. She had further cortisone injections into her trochanteric bursa.
77In January 2020 she was reviewed by Mr Vellore who noted she was very happy with her outcome, felt her symptoms were 100% better and “she is cured” and had resumed dancing. Her main problems were noted to be her neck pain.[27]
[27]        PSCB 332
78On 31 January 2020 Dr Clark also noted that Ms Foran had returned to dancing and going to the pool four times a week.
79On 25 February 2020 she was seen by Dr Clark who noted she had chronic pain in the “lumbar/neck”.
80On 26 February 2020 she started physiotherapy with a new therapist who noted that the 2016 accident had led to chronic lumbar spine pain and “quick onset of difficulty walking in last year”. After surgery she was quite functional and “enjoys being active” but reported being quite sore and stiff. She was noted to have long standing cervical spine symptoms.
81Ms Foran underwent a number of CT guided injections in the sacroiliac joint in March, June and September 2020, and a cervical medial branch block in June 2020.
82Ms Foran reported significant increased pain in her lumbar spine. Scans demonstrated possible non-fusion at the surgical site. She had further consultations with Mr Vellore and in November 2020 proceeded to revision surgery with further decompression and intersegmental fixation.
83She had a difficult post-operative course, with the development of a DVT, a pulmonary embolism, and an adverse reaction to a ketamine infusion.
84By 29 September 2020 she was noted to be in a lot of pain and “feeling like she is back to square one again”.[28]
[28]        PCB 100
85In November 2021 Ms Foran was referred to Dr Nash, pain specialist.
86In April 2022 Ms Foran commenced a pain management program with Dr Nash. Dr Nash noted in May 2022 that Ms Foran had persistent spinal pain post fusion surgery, whiplash associated disorder, cervicogenic headache, severe pain flares and significant central pain, nociplastic pain and marked clinical hyperpathia.[29]
[29]        PSCB 322
87She has continued having treatment for her spine including CT guided injections into her sacroiliac joint, her trochanteric bursa and radiofrequency neurotomy to her cervical spine and cervical spinal medial branch blocks. She has also undergone ketamine and lignocaine infusions and a total knee replacement. She fractured her left wrist and nose after a fall in 2024. She had a left thumb trapeziectomy, also in 2024.
88She continues to see her pain specialist, Dr McCoy and to be prescribed methadone for pain.
Use of medication
89In addition to examination of the medical records I have also undertaken an analysis of Ms Foran’s use of medication over time.
90While the use of medication varies from person to person and thus cannot be considered a reliable indicator of the degree of pain a person experiences, Ms Foran has shown that she is prepared to take high levels of analgesia to control her pain.
91An analysis of her use of medication to treat pain since 2007 shows consistent use of a number of medications, most commonly Mersyndol Forte and Targin in the years prior to the 2016 accident.
92At the time of the 2016 accident she was using Targin, Mersyndol Forte and Palexia.
93In the immediate aftermath of the 2016 accident there was no change to her medication. By May 2017 Ms Foran had ceased using both Mersyndol Forte and Targin and was using Panadol Osteo three times a day.
94By 25 July 2017 Ms Foran was noted to have been off all her medication for three months. This is consistent with periods prior to the 2016 accident where Ms Foran ceased medication, before resuming medication when her pain increased.
95In September 2017 Ms Foran resumed taking Mersyndol Forte and in December 2017 Panadeine Extra was added to her regime. She was noted to be no longer using Panadol Osteo.
96In December 2017 she was prescribed Valium for use before bed. Valium had previously been prescribed in 2013.
97She continued on this regime of Mersyndol Forte and Panadeine Extra until February 2019 when Cymbalta was added to her medication in the context of worsening lumbar pain. Cymbalta is an anti-depressant that can also be prescribed for pain. In May 2019 Palexia was re-introduced to her medication regime. In June, Cymbalta was ceased, with a note that it was “no longer required” and Targin was re-introduced. In July 2019 Endep was introduced.
98Following spinal surgery Ms Foran has been prescribed a range of medication, including Endone, Pregabalin, Tapentadol, Buprenorphine, Nortriptyline, Ketamine and more recently Methadone.
Volunteering work
99Ms Foran said that prior to the 2016 accident she was volunteering twice a week for four or five hours at the Grace McKellar Centre. She said she had her own strategies to know what she could and could not cope with in terms of pain, and she could plan her week according to her pain levels each week. She said her lumbar spine pain would “intermittently” impact on her ability to undertake volunteer work before the 2016 accident.[30]   She said every day was different and sometimes there were a few days when her neck and middle back impacted what she was doing. She said she had constant flare-ups of different areas.[31]
[30]        T 113
[31]        Ibid
100She said in terms of her ability to perform volunteer work before the accident, she would estimate that it was impacted by her neck and middle back about 80% of the time and by her lumbar spine about 20% of the time.
101Ms Foran said in her first affidavit that she continued to work in her volunteer role after the 2016 accident but struggled due to persistent pain.
102She says she eventually stopped that work because of “severe low back pain”, although her first affidavit is silent as to when that occurred. Although it was submitted that she resigned from her volunteer role in January 2017,[32] the evidence does not support that submission.
[32]        Ibid
103It was difficult to obtain a clear picture of Ms Foran’s volunteer work activities. Dr Clark has noted in May 2018 that she was volunteering at the Andrew Love Centre, twice a week for 3-4 hours.
104In Dr Clark ‘s June 2019 referral letter to Mr James King for assessment she noted that Ms Foran “was struggling to work (she works as a volunteer massage therapist at Andrew Love)”.[33]
[33]        DACB 132
105When asked when she last did volunteering work she said she thought she did a couple of hours volunteering before her second surgery in November 2020.[34]
[34]        T 98
106She was asked whether she returned to any volunteering in 2020 and she said she had volunteered up until the time she had her second operation.
107She then said that she had returned to volunteering after that second operation, but it was only for a short period of time, perhaps five weeks or so, and then COVID restrictions meant that she was “stood down”.[35] Since COVID she has not returned to any volunteering work because of her pain.[36]
[35]        T 101 L 22
[36]        Ibid 112
108She provided a history to Mr Bittar that she continued with her volunteer work until around June 2019 when she was unable to continue because of back pain and postural intolerance.[37]
[37]        PCB 148
109Doing the best I can on the evidence, it appears that Ms Foran continued with her volunteering work following the 2016 accident. She had periods where she did not volunteer, and periods where she reduced the amount of volunteer work she did, particularly leading up to her surgery in 2019. She returned to it in some capacity after her surgery. She gave it up for good when COVID restrictions were imposed and has not returned to any volunteer position since.
Ballroom Dancing
110Prior to the 2016 accident Ms Foran says she enjoyed ballroom dancing and attended 2 classes a week and 3 social dances a week. She says she no longer participates in this activity due to her severe low back pain.[38]
[38]        Ibid 27
111The records support Ms Foran’s evidence that she danced frequently. In 2013 Dr McGivern noted she was dancing three times a week. In 2014 Dr Jensen noted she danced twice a week. There are various references in the medical records prior to the 2016 accident to Ms Foran being sore after dancing or having returned to dancing, consistent with her evidence that from time to time her pre-existing injuries would impact on her dancing.

112In April 2016 Dr Clark noted that Ms Foran was trying to remain as active as possible, walking and dancing when able.[39]
[39]        PSCB 60
113After the accident Dr McGivern noted on 11 October 2016 that Ms Foran had been “dancing x 3 weekly” prior to her accident.
114In March 2017 Dr Clark noted that Ms Foran had not been able to go dancing since most recent MVA.[40]
[40]        Ibid 68
115Also in March 2017, her physiotherapist noted that her goal was to return to dancing 3-4 times a week.
116By April 2018 Dr Clark has noted that Ms Foran was “dancing and [doing] lots of walking”.[41]
[41]        Ibid 75
117That Ms Foran was dancing by April 2018 is supported by a note of her osteopath in May 2018 that Ms Foran was “tender lumbar and thoracic region [which had] occurred whilst dancing a couple of days prev[iously]”.[42]
[42]        Ibid 499
118In June 2018 her treating chiropractor, Kane Fraser, noted that she had had significant improvement and “dances up to 5 times per week, which is the most she has for years”. Ms Foran said she tried to remain active but disputed that she ever danced five times a week and said that was not possible as it was only “social ballroom”. However, in her affidavit she said that prior to the accident she usually attended two classes and three social dances a week.
119In February 2019 her osteopath noted that she had danced both Saturday and Sunday and “got through fine” but with “some tenderness”.
120In April 2019 she was noted to be “sore after dancing”.
121In May 2019 Dr Clark noted that Ms Foran was in so much pain she had decided to consult a neurosurgeon because she “doesn’t see herself living with this pain for the rest of her life” and that cortisone injections had helped reduce pain and mobility in her hips but not her lumbar spine. Dr Clark noted that Ms Foran was still “trying to remain as active as possible” and “has returned to dancing x 2 weekly and walking dogs”.[43]
[43]        Ibid 81
122On 26 June 2019 Dr Cameron noted that Ms Foran was “involved in ballroom dancing” and her back had locked up during a waltz four weeks earlier.
123After her surgery the Epworth outpatient notes reported that she had been dancing three nights a week prior to surgery and her goal was to return to that level of dancing.
124By 15 November 2019 Ms Foran had returned to walking more than 3km daily but had been advised to hold off returning to dancing for another month.[44]
[44]        Ibid 248
125By January 2020 her neurosurgeon, Mr Vellore noted “she has begun dancing once again”.[45]
[45]        Ibid 332
126On 31 January 2020 Dr Clark noted Ms Foran was back dancing, and going to the pool four times a week.
127In February 2020 she reported to her physiotherapist, James Nelson, that she was dancing three times a week.[46]
[46]        PCB 104
128On 26 February 2020 Mr Nelson noted Ms Foran was “especially sore towards end of day which is an issue with dancing of an evening”.[47]
[47]        PSCB 415
129On 13 March 2020 Mr Nelson noted that she was “quite sore from dancing last night”.[48]
[48]        Ibid 414
130On 8 January 2021 Epworth outpatient notes record that Ms Foran needed to practice her curtsey for ballroom dancing.[49]
[49]        Ibid 254

Was Ms Foran a reliable witness?
131Ms Foran has an extensive medical history and a long history of pain in her spine.
132In her first affidavit she says that after a car accident on 3 February 1994 her “main issue” was ongoing neck and upper back pain. This was aggravated by subsequent accidents on 26 August 1994 and 15 November 2007. She does not deal with her pre-existing injuries in either of her two subsequent affidavits.
133She says in that first affidavit “over the years the years I have suffered from pain predominantly in the area of my neck and upper back, for which I have undergone extensive treatment. From time to time I had pain in my lower back and hips, but this was intermittent and generally far less severe than the pain in my neck and upper back.”
134She was adamant that her pain following the February 1994 accident was confined to her neck and thoracic spine and denied that she had lumbar pain at that time. When taken to medical records from that time she said that she could not recall complaining of lumbar pain and that “it’s a long time ago”.   Understandably there were many medical attendances on doctors which she could not remember. She agreed that she had been given a lumbar support brace by Dr Asthana which she used “as required” including for dancing. She agreed, when taken to medical records, that from 1994 at least, she had had chiropractic treatment for her cervical, thoracic and lumbar spine, although she maintained that her pain was “not so much in the lumbar” prior to the 2016 accident.[50]
[50]        T 26, T 27 L 7-8
135She says that immediately after the 2016 accident she had severe pain in her lower back as well as an increase of pain in her neck and upper back. She spent the day resting on the couch.
136Ms Foran says on 12 August 2016 she attended her general practitioner Dr Trudy Clark at the Drysdale Clinic who recommended she keep seeing her chiropractor Mr Adams.
137She says she was referred to Dr Jeanne McGivern in October 2016 who, she says, arranged scans for her lower back and pelvis.
138Ms Foran says she underwent a course of treatment for her lower back, sacroiliac joints and both her hips.[51]
[51]        PCB 22
139She says that in addition to her low back pain, since the 2016 accident she has ongoing pain in both her hips. She gets mild relief from cortisone injections but the pain increases again with time.[52]
[52]        Ibid 22
140In her first affidavit Ms Foran said that in mid-2019 she had a severe flare up of pain in her lower back.
141In oral evidence Ms Foran said her back had “locked up” during a dance. She said in the weeks leading up to that particular dance her she was finding it extremely hard to walk.[53] She said “it was like I had concrete at the bottom of my lumbar and I just couldn’t walk without a walker at that point”.[54]   She agreed that this onset of difficulty walking came on quite suddenly in 2019 and precipitated her attending Dr Clark.[55]
[53]        T 96
[54]        T 97
[55]        T 96
142When asked how, despite the “concrete” feeling in her back and her evidence about needing a walker, she was able to dance, Ms Foran said “the dance was, you just got up if you felt that you could do it and I was asked up for that even though I was just saying I was going to watch tonight because – but I was asked up to do this waltz that I loved and everything just stopped, I couldn’t move.”[56]
[56]        T 97 L 24-29
143She agreed that the episode at the dance when her back locked up was “the pinnacle of the concrete” in terms of how her back felt.[57]
[57]        T 98 L 3
144She was asked in re-examination about her symptoms after the 2016 accident and she said “As soon as the car hit me I had enormous pressure in my lumbar spine, yes.”[58]   She was asked:
After the initial sensation of that enormous pressure in your spine what happened with that symptom?---It just didn't get any better.
Did you have any other symptoms in your lumbar spine?---My hips were affected.
So, from that period in 2016, August of 16 when you were involved in the transport accident up until that sensation of concrete feeling in your lumbar spine, what symptoms did you have in your lumbar spine?---Just intense chronic pain.[59]
[58]        T 115 L 16-17
[59]        T 155 L 18-27
145Some of Ms Foran’s evidence was difficult to follow. She thought the attendance with Mr Cameron was prior to the second surgery.[60] She acknowledged that she was getting confused.[61] On occasion she seemed frustrated by the attempts of counsel to delineate which pain occurred when, saying that it all arose from the February 1994 accident.
[60]        T 114
[61]        Ibid
146In summary Ms Foran says:
(a)   She has had considerable spinal pain since February 1994, but this was largely confined to her thoracic and cervical spine.
(b)   She had intermittent problems with her lumbar spine and hips before the 2016 accident.
(c)   Her neck and thoracic pain and intermittent lower back and hip pain generally did not prevent her from engaging in her volunteer work, her ballroom dancing or her activities of daily living before the 2016 accident.
(d)   After the 2016 accident, she continued to have thoracic and cervical spine pain at about the same level as before the 2016 accident, but her lumbar spine pain significantly increased, such that it became the most significant pain she experiences. Her hip pain has also worsened in severity and frequency since the 2016 accident.
(e)   Her lumbar spine pain became increasingly worse and by 2019, she was in such severe pain that she sought surgical treatment.
(f)    As a result of her lumbar spine pain, she is unable to engage in her former activities of volunteer work and ballroom dancing, she has required two surgical procedures, and experiences constant significant pain, requiring very high levels of analgesia.
(g)   She now has low back pain that is constantly 6-7/10 and regularly flares up to 8-9/10. She has a flare up of pain most days. She tries to alleviate the pain by taking medication, currently methadone, and lying down.
147She says she has suffered an aggravation of her underlying lumbar spine condition that is at least very considerable.
Reliability of Ms Foran’s evidence about pain prior to 2016 accident
148For the following reasons, I do not accept Ms Foran’s account of her lumbar and hip pain prior to and after the 2016 accident.
149Analysis of the medical records shows that lumbar pain was a significant factor after the February 1994 accident:
(i)Chiropractor Mr Ames has noted lumbar pain as second only to cervical pain.
(ii)At least from time to time she needed a cane because of lumbar pain, and wore a back brace.
(iii)Mr Gilligan has recorded lumbar pain as “constant”.
(iv)Dr Asthana has noted “tenderness ++++” and painful movements of lumbar spine.
(v)Dr Asthana reported that the 3 August 1994 accident aggravated Ms Foran’s pain in her cervical, thoracic and lumbar spine and in both her shoulders.
(vi)Dr Asthana’s report in 1999 noted that Ms Foran continued to get persistent pain in cervical spine, both shoulders and lower spine, and gets recurrent headaches.
(vii)Drs Honey, Kotsos, Jensen and Clark have all noted chronic lumbar pain, even where there is also an acknowledgment that the cervical spine was more painful.
(viii)None of the records support the proposition that the lumbar pain was intermittent.

150After the 2007 accident her thoracic spine became a more significant focus of pain although the cervical and lumbar spine continued to be painful.
(i)In 2008 she had medial branch blocks in the thoracic spine.
(ii)In 2009 she had radiofrequency neurotomy on her thoracic spine.
(iii)Her physiotherapist noted in 2009 that her cervical and thoracic pain had worsened after the 2007 accident but her lumbar spine pain was still “constant”.
(iv)From 2012 she had chiropractic treatment with Mr Adams who noted the focus of her pain was thoracic and cervical, but who also treated her lumbar spine at the majority of attendances and specifically noted low back pain frequently.
(v)In 2014 Dr Clark referred Ms Foran to Dr Johnstone noting chronic lumbar pain.
(vi)Dr Johnstone noted lumbar pain in 2014 and noted that imaging of the lumbar spine may be useful.
(vii)From late 2015 there were frequent mentions in the medical records of hip and buttock pain.
(viii)From late 2015 Ms Foran had multiple injections into the hips for pain.
(ix)In April 2016 Dr Clark noted that, in addition to upper back and disc pain, Ms Foran “now has bursitis in both hips causing great pain”.

151It is understandable that more than 30 years after the February 1994 accident which appears to have initiated her back problems, it is not possible for Ms Foran to accurately recall the areas and time of onset of her pain. I do not consider that Ms Foran was attempting to mislead the court or to give inaccurate evidence. However, I am not satisfied that her evidence about the level and frequency of her lumbar pain prior to the 2016 accident was reliable.
152It is clear that the severity of pain caused by different parts of her spine fluctuated over time. On some occasions her thoracic spine was most significant, particularly after the 2007 accident. On some occasions her primary concern was her migraine headache.
153In a general sense, I accept that prior to the 2016 accident the more significant areas of pain, over the long term, were her cervical and thoracic spine. However her lumbar spine, her hips and buttocks were significant areas of pain prior to the 2016 accident on far more than an intermittent basis.
154On the basis of the medical material, I am satisfied that Ms Foran had ongoing significant lumbar pain and that, in the twelve months or so before the 2016 accident, her hip and buttock pain had become very significant.
Reliability of Ms Foran’s evidence about pain post-2016 accident
155I am also not satisfied that Ms Foran’s account of immediate and severe lumbar back pain following the 2016 accident is reliable for the following reasons:
(a)   After the 2016 accident, and contrary to Ms Foran’s evidence about the immediate nature of the onset of pain, there is no mention of lumbar pain in any of the medical records until 25 July 2017.
(b)   It is likely that Ms Foran would have told her long-term treaters of the immediate onset of a new and different pain, a pain Ms Foran describes as something she had never felt before.
(c)   Had Ms Foran told her treaters about her new and different lumbar pain, on the balance of probabilities, Dr Clark and Mr Adams would have made a note in their records.
(d)   Dr Clark has recorded that Ms Foran’s pain had returned to baseline by September 2016. It is unlikely Dr Clark would have recorded this if it was not the case, as Ms Foran says.
(e)   I would have expected that the immediate onset of a new and different pain following a car accident would have warranted further investigation at that time. There was no lumbar spine investigation until Dr McGivern organised scans in late 2016. However, the indication for those scans was Ms Foran’s complaints of hip and buttock pain, not lumbar pain. As set out above, hip and buttock pain had been significant prior to the 2016 accident.
(f)    Contrary to counsel’s submission that I ought to give some significant weight to the fact that scans of the lumbar spine were arranged in the aftermath of the 2016 accident, but not before, I note scans of the thoracic and lumbar spine were done in September 2009 and showed narrowing at the L5/S1 disc space. The October 2016 X-ray was unchanged from this previous report.
(g)   Also Dr Johnstone had previously contemplated the role for lumbar investigations if Ms Foran’s condition did not improve. Particularly as the indication for the scans organised by Dr McGivern was buttock and hip pain, I am not persuaded that this supports Ms Foran’s evidence that there was a sudden onset of new and different pain immediately after the 2016 accident.
(h)   Although Ms Foran said she had “intense chronic pain” from the period after the transport accident in August 2016 until she had the surgery in 2019,[62] this was a response drawn from her in re-examination when she had previously described the feeling in her lumbar spine after the 2016 accident as “intense pressure”. Her evidence about “intense pressure” was first mentioned in re-examination. I have not seen any evidence that she previously described the feeling in her lumbar spine following the 2016 accident as “pressure”.
(i)    Ms Foran also said her lumbar symptoms all came on “in that short period” prior to the surgery in 2019. This evidence is consistent with medical records of multiple practitioners, including her long-term general practitioner, that she experienced a severe deterioration in her lumbar spine in 2019.
(j)    The conclusion that Ms Foran’s condition significantly deteriorated in 2019 rather than immediately after the 2016 accident is also supported by her evidence that her back “locked up” while dancing in 2019, that in the months leading up to surgery she had an increasing feeling of “concrete” in her lumbar spine, and the notes of Dr James Cameron.
(k)   It was not until 2019 that there are consistent and specific notes of lumbar pain in the medical and treater records. After the 2016 accident and before 2019 there were only two specific mentions of lumbar pain in her general practitioner notes.
(l)    Her use of medication, while fluctuating, did not differ in the period immediately after the 2016 accident.
(m)     She was able to go off her medication completely for a period of at least three months in 2017. This is inconsistent with her evidence that her lumbar pain was immediately and consistently severe following the 2016 accident.
(n)   It was not until 2019 that her use of medication significantly and consistently increased from pre-2016 levels.
(o)   Although by 2019 her ability to engage in ballroom dancing and volunteer work was significantly impacted, the evidence does not support a finding that there was a consistent decline in her ability to undertake these activities from the time of the 2016 accident.
(p)   She continued with her volunteer work immediately after the 2016 accident and thereafter on at least some basis, until giving it up for good following COVID restrictions in 2021.
(q)   She did not dance for a period following the 2016 accident but thereafter returned to dancing in 2017 and 2018 and up until the time of the significant deterioration in 2019. Indeed, on her evidence and the contemporaneous reports of Dr Cameron, her very severe deterioration in 2019 may have been causally connected with dancing.
[62]        T 115 L 27
156The evidence that supports Ms Foran’s claim that her lumbar spine was immediately and consistently painful after the 2016 accident is the fact that she had L4/5 facet joint injection in December 2016 and subsequent sacroiliac joint injections in January, September and October 2017.
157However the indication for these injections was iliac crest and increased buttock and gluteal pain. This was pain that had also been noted prior to the 2016 accident. While, on the medical material available, I cannot discount the possibility that it indicates some increase in lumbar pain, I consider it highly relevant that lumbar pain is not specifically noted as the clinical indication for the injections or the scans, and that there are few references to lumbar pain in the records prior to 2019.
158For these reasons, I am not satisfied that Ms Foran experienced an immediate onset of severe lumbar pain after the 2016 accident, which has steadily declined ever since, leading to surgery.
159The evidence supports instead that Ms Foran suffered a severe deterioration in her lumbar spine in 2019. It is this 2019 aggravation that resulted in two operations, and a rocky post-operative course. Her currently inability to participate in volunteer work and ballroom dancing has arisen after the 2019 deterioration and subsequent surgeries.
160I turn now to consider whether the 2016 accident caused or materially contributed to the deterioration in 2019.

Did the 2016 accident cause an aggravation that itself is sufficient to meet the test
161The focus of the plaintiff’s claim was on an aggravation to her lumbar spine and, to a lesser extent, an aggravation to her hips.
162On her evidence, although there was an increase in pain in all areas following the 2016 accident, her pre-existing cervical and thoracic spine pain returned to pre-2016 accident levels.
163After analysing the medical material, I have found Ms Foran’s evidence unreliable about both the severity of her lumbar pain before the 2016 accident, and the timing of the onset of her lumbar pain after the 2016 accident. This means I must examine other evidence to determine whether there is a causal connection between the 2016 accident and Ms Foran’s current condition.
164I turn to consider the expert evidence relied upon.
Medical reports
Professor Richard Bittar - Neurosurgeon
165Ms Foran relies on reports of Professor Bittar dated 20 June 2024 and 12 February 2025.
166In his 2024 report Professor Bittar noted a past medical history of significant injury to the cervical spine and upper back as a result of prior transport accidents. He recorded that Ms Foran did not have a past history of significant lower back related symptoms.
167He recorded the plaintiff’s history that after the 2016 accident she immediately experienced “severe lower back pain as well as some increased pain in her neck and upper back”. He reports that this pain was present from the time Ms Foran left the scene of the accident, requiring her to rest for the remainder of the day before attending her long-term chiropractor for treatment of her lumbar spine.
168Professor Bittar noted on examination Ms Foran had severe restriction of lumbar spine flexion. He diagnosed an aggravation of lumbar spondylosis, persistent pain following spinal surgery and pseudoarthrosis (failure to fuse following spinal surgery).[63]
[63]        PCB 149
169He opined that the 2016 accident was a significant contributing factor to Ms Foran’s current condition and considered it highly unlikely that she would have required spinal surgery had the 2016 accident not occurred.
170Professor Bittar wrote his 2025 report after seeing Dr Drnda’s opinion. He noted Ms Foran’s history of neck, thoracic, right shoulder and lower back injuries prior to the 2016 accident.
171He disagreed with Dr Drnda’s conclusion that the 2016 accident temporarily aggravated the tissues around the lumbar spine but did not injure the spine itself. He said “I believe that the transport accident was the cause of Ms Foran’s lumbar spine condition, as evidenced by the onset of severe lower back pain immediately following the accident and the persistence of these symptoms which ultimately led to the need for surgical intervention.”
172In his opinion there was no evidence to support the view that her ongoing condition was substantially due to any pre-existing lumbar spine pathology.
173He disagreed with Dr Drnda’s assessment that the surgical intervention was not required. Professor Bittar concluded that the reported improvement of Ms Foran’s symptoms following the surgery supported the justification for that surgery, and that the persistence of back pain following the surgery did not “negate the appropriateness of the procedure”.
174He acknowledged that Ms Foran had a history of chronic pain prior to the 2016 accident but maintained that the 2016 accident was “a significant contributing factor to the current injury and impairment of her spine” because of the “temporal relationship between the accident and the onset of severe lower back pain”, and the need for subsequent surgical intervention.
175Although Professor Bittar acknowledged in his second report Ms Foran’s pre-existing chronic pain and injuries to her lumbar spine, it is not apparent whether he had examined the extensive medical material that demonstrates long term complaints about lumbar pain. Counsel for Ms Foran submitted that Professor Bittar’s opinion that she had no significant pre-existing lumbar spine pain ought to be interpreted to mean that Professor Bittar was aware of her pre-existing lumbar pain, but did not consider it to be significant. However, if this is the correct interpretation, which I do not accept, Professor Bittar is an outlier in discounting the prior lumbar spine history.
176Professor Bittar says there is no basis for a conclusion that Ms Foran’s condition was caused by any underlying degenerative disease. However, the medical records tend to support a conclusion that there was underlying degenerative disease that had been symptomatic for many years, rather than being rendered symptomatic for the first time by the 2016 accident.
177The premise of Professor Bittar’s opinion is that there was a temporal relationship between Ms Foran’s severe onset of lumbar pain and the 2016 accident.
178I have already found that such a relationship does not exist. Mr Bittar offers no other basis upon which he concludes that the 2016 accident was the cause or a significant contributing cause of Ms Foran’s pain.
179He does not grapple with the medical records which demonstrate a deterioration in her lumbar pain in 2019. He expresses no opinion about whether or not a deterioration in 2019 is or can be causally linked to the 2016 accident.
180His opinion is reliant on an incorrect history provided by Ms Foran about the immediate onset of severe lumbar pain after the 2016 accident, and an incorrect assumption that her severe lumbar pain that caused her to have surgery in 2019 had been present and consistent since the 2016 accident.
181Professor Bittar’s report does not provide any assistance in determining whether Ms Foran’s deterioration in 2019, the need for surgery at that time, and her current condition can, on the balance of probabilities, be attributed to the 2016 accident.
Dr Peter Wilde - Orthopaedic surgeon
182The plaintiff also relies on the opinion of Dr Peter Wilde dated 4 November 2019. Dr Wilde recorded a history that Ms Foran had previously injured her neck and upper spine and had had neck symptoms ever since. He noted that “She told me that she did not experience backache before the most recent MVA”.   This history is clearly incorrect.
183He noted that she reported “very severe” pain across her back immediately after the accident which was so severe that she was unable to return to her volunteer work for 18 months. This is also clearly incorrect.
184He has noted that “for no apparent reason the pain seemed to escalate severely” in June 2019. This is consistent with the medical records at that time.
185Dr Wilde noted that, as at November 2019, Ms Foran had minimal pain, and was able to return to work doing a half day a week volunteer work and expected to soon be doing 2.5 days a week. He noted that she had not returned to ballroom dancing but hoped to do so soon.
186He diagnosed an aggravation of L4/5 lumbar spondylosis without radiculopathy “on the basis that Ms Foran had no pain prior to the MVA and reported continuous lumbar pain since”.
187He noted that “all her previous medication and treatment were for a neck and upper thoracic spine injury from a motor vehicle accident 25 years previously”.
188He considered that the 2016 accident was “a significant contributing factor to the aggravation of pre-existing L4/5 lumbar spondylosis with 2mm anterolisthesis”.[64]
[64]        PCB 163
189This opinion is based on an incorrect history of no lumbar pain prior to the 2016 accident and immediate and continuous pain after the 2016 accident.
190It provides no assistance in determining whether the escalation of pain in 2019 was caused by or contributed to by the 2016 accident.
Professor Stephen Davis - Neurologist
191The plaintiff relies on the reports of Professor Davis dated 13 October 2021, 11 October 2022 and 12 March 2024.
192Professor Davis noted in his 2021 report that Ms Foran told him that she had pain in the neck and between the shoulder blades and low back pain following the 2016 accident. He reviewed various records, including physiotherapy and chiropractic reports. His first report was primarily an impairment evaluation.
193In October 2022, Professor Davis provided a further report after reviewing additional material, including progress notes from Ms Foran’s general practitioner. He confirmed his opinion that Ms Foran’s lumbar problems chiefly related to the 2016 accident but said the earlier accidents may have been contributory to some degree.[65]
[65]        PCB 117
194In his 2024 report Professor Davis noted that Ms Foran “undoubtedly” had a history of lumbar pain and cited, by way of example “3 to 4 weeks low back pain radiating down both legs to the feet on 2 December 2014”.   He also referred to chiropractor Kane Fraser’s report of May 2018 noting low back pain for many years but with increased severity following the 2016 accident. In light of Ms Foran’s lumbar pain before the 2016 accident, Professor Davis altered his impairment evaluation to reduce the percentage to which that impairment was attributable to the 2016 accident.
195Professor Davis reviewed at least some of the medical material that was before the court and has grappled with the pre-existing lumbar condition.
196He appears to have based his opinion in relation to causation on an assumption that there was immediate lumbar pain after the 2016 accident that continued unabated until 2019 when she underwent surgery.
197If he has considered the evidence of a severe deterioration in 2019, he has not disclosed any path of reasoning to assist me to understand the basis upon which he considered that the 2016 accident caused the 2019 deterioration.
Mr Stephen Doig – Orthopaedic Surgeon
198The plaintiff relies on two reports of Mr Doig dated 16 December 2021 and 26 September 2022.
199Mr Doig records a history that the morning following the 2016 accident, Ms Foran was extremely sore in the low back. He has noted that her condition did not “settle down” and she continued to have ongoing pain and discomfort in her low back which slowly and steadily became more and more severe.
200After four years of conservative treatment she was not getting any better and became markedly worse around June 2019.
201Mr Doig had some limited history of lumbar pain, recording that Ms Foran’s local doctor had reported cervical and thoracolumbar pain in 1997 and her chiropractor had reported occasional low back pain.
202Mr Doig diagnosed multiple disc injuries to the lumbar spine which he considered were consistent with the 2016 accident.
203In his subsequent report of 26 September 2022 Mr Doig noted that “in the past history that she gave me she did not really mention the lumbar spine although in those initial notes that I was sent, there was a report from the chiropractor and the local doctor in 1997 indicating that she had some cervical and thoracolumbar pain, but that appeared to be at that stage more that it was her thoracic spine”. He noted the subsequent notes he had been provided with “indicate fairly strongly that there was a significant lumbar spine component to her pain prior to the 2016 accident”. This caused him to alter his assessment of the apportionment of the 2016 accident to his evaluation of her condition. Nevertheless he concluded that the 2016 accident was a significant contributing cause of her lumbar back pain.
204His reason for this conclusion is his understanding that an increase in Ms Foran’s lumbar back pain was temporally connected with the 2016 accident, and that her lumbar spine continuously and steadily declined from that time until 2019.
205As set out above, I do not accept that as a correct history. This impugns the reliability of the opinion provided.
Dr Anthony Kam – Radiologist
206The defendant relies on a report of Dr Kam of 27 December 2022. He was unable, on the radiological images available, to identify any pathology which had arisen from the 2016 accident. He noted mild anterolisthesis of L4/L5 secondary to facet joint degenerative change and narrowing of L5/S1 disc space. He opined that these changes were pre-existing or unrelated pathology not caused by the 2016 accident.
207I accept that the presence of pathology post-dating the accident could be of assistance in establishing a causal link between the 2016 accident and Ms Foran’s symptoms. The absence of such pathology, however, does not exclude the 2016 accident from being a cause of her current symptoms. It is possible that the 2016 accident caused an aggravation of an underlying condition that is not demonstrated on the radiology, for example triggering an underlying condition to become symptomatic.
208Therefore, while Dr Kam’s opinion does bolster my finding that the evidence does not support an immediate and sudden onset of a new and different lumbar pain following the 2016 accident it does not rule out the possibility that the 2016 accident nevertheless caused an aggravation of some pre-existing condition that caused a significant increase in lumbar pain.
Professor John Laidlaw – Neurologist
209The defendant relies on the report of Professor Laidlaw dated 23 March 2023. Professor Laidlaw undertook a comprehensive desktop review of the medical material. He did not examine Ms Foran.
210While it may be appropriate, at times, to criticise the opinion of a doctor who has not examined the plaintiff, Professor Laidlaw was not asked to give an opinion about Ms Foran’s current condition or her restrictions.
211Professor Laidlaw was asked for his opinion on the causal link between the 2016 accident and her injuries. It is unlikely there would be any significant advantage in conducting a clinical examination in order to determine whether the 2016 accident was the cause of her condition in 2023, given that she had had two surgical procedures since 2019, and the subject accident was more than six years earlier.
212Professor Laidlaw carefully reviewed the extensive documentation of Ms Foran’s treatment over the years prior to and post her 2016 accident.
213In his opinion, Ms Foran had evidence of spondylosis prior to the 2016 accident. He noted that spondylosis typically progresses slowly with age, though it is often not symptomatic. He said Ms Foran had a very long and progressive history of a chronic pain condition affecting many areas including her neck, thoracic spine, back, hips, and lower limbs both before and after the 2016 accident. He noted that the exacerbation of her symptoms in mid-2019 that occurred after dancing had similar characteristics to exacerbations noted by her chiropractor in 2013-2014 and by her general practitioner in December 2014 and May 2016.
214He did not consider her spondylosis was the main cause of her pain, as her chronic pain condition affected other areas unrelated to the spine. Further, many spinal treatments had not provided lasting improvement as would have been expected if the spondylosis was the source of pain. He noted that spondylosis is often asymptomatic.
215He could find no evidence of any specific organic injury caused by the 2016 accident. He did not consider that the 2016 accident caused, aggravated, accelerated or exacerbated an injury to Ms Foran’s spine.
216Based on his experience, his understanding of the medical literature, and his extensive review of Ms Foran’s medical history, Professor Laidlaw concluded that Ms Foran had a pain syndrome that had continued and progressed.
217While he has not had the benefit of obtaining Ms Foran’s personal account of her medical history and pain, he has also not been given an inaccurate version of that history.
218Professor Laidlaw’s diagnosis of a chronic pain syndrome is consistent with the diagnosis of Mr Ames and Dr Kotsos many years earlier.
219He does diagnose spondylosis but does not support Professor Bittar’s opinion that the spondylosis is the cause of Ms Foran’s pain.
220Professor Laidlaw has undertaken the most comprehensive review of the medical material and did not find a temporal link between the 2016 accident and the onset of significant lumbar pain, nor the deterioration of pre-existing lumbar pain. He linked Ms Foran’s deterioration in 2019 to her underlying condition, not the 2016 accident.
Dr Armin Drnda - Neurosurgeon
221The defendant relied on the reports of Dr Drnda dated 5 September 2024 and 12 February 2025.
222Dr Drnda recorded a similar pre-2016 accident history to that given by Ms Foran to other medico-legal practitioners and in court - longstanding chronic pain for many years predominantly in the neck and upper back, and intermittent pain in her low back and hips which was far less severe.
223Dr Drnda reviewed the radiological imaging where it was available and otherwise reviewed the reports of the imaging. He concluded that her spine appeared normal for her age, and there were mild degenerative changes throughout the joints and discs without significant canal or foraminal stenosis anywhere in the spine. He noted that the L5/S1 disc space was significantly reduced, as was also noted by Dr Kam both before and after the 2016 accident.
224He concluded there was no injury to the lumbar spine itself following the 2016 accident, but there was a temporary aggravation of the soft tissues of the lower back region.
225He concluded that her long standing chronic pain syndrome initially presented in the neck and thoracic spine and then spread down the spine “as expected”. He said she had central sensitisation which is an organic change in the central nervous system pain pathways. Her current presentation was entirely related to her pre-existing chronic pain syndrome and was not contributed to by the 2016 accident.
226He did not consider that the 2019 surgery was medically indicated. He disagreed with “every point” in Professor Bittar’s response to his report. In particular he noted that there was no immediate alleviation of the reported leg pain following the first surgery which took three months to resolve. He considered Ms Foran’s prolonged recovery from her leg pain supported his opinion that she had a central sensitisation condition. He also considered it highly unlikely that Ms Foran had sciatica as she had no spinal canal or foraminal stenosis. Her reported “sciatica” was likely referred leg pain or part of her pain condition caused by central sensitisation.
227Dr Drnda has not explained why he considered Ms Foran had a soft tissue injury to her low back caused by the 2016 accident. I infer that, in arriving at this conclusion, he has accepted her history that she had immediate onset of increased low back pain. I infer his opinion that the soft tissue injury has since resolved is based on Dr Clark’s record that Ms Foran’s pain had returned to baseline some weeks later together with the lack of any change in her medication in the immediate aftermath of the 2016 accident.
228I do not consider it necessary to determine whether the 2019 surgery was or was not clinically indicated. Plainly enough, there are contradicting medical opinions about this. The issue for me is not whether surgery was the appropriate treatment, but whether the 2016 accident was the cause the deterioration in 2019 which resulted, rightly or wrongly, in the subsequent surgery.
229I am persuaded by Dr Drnda’s report that the 2016 accident was not the cause, or a significant contributing cause to the 2019 deterioration.
230Dr Drnda has dealt with both the pre-existing 2016 lumbar pain, the timing of the onset of lumbar pain post 2016 accident, the cause of the deterioration in 2019 and has explained his reasons for concluding that her condition was not caused by the 2016 accident. He has grappled with and disclosed his path of reasoning to support his findings in relation to the cause of Ms Foran’s underlying condition.

Findings
231Given the very extensive treatment and frequent complaints of significant pain to Ms Foran’s hips and buttocks, her diagnosis with bursitis of the hips and the injections into the trochanter in the months preceding the 2016 accident, I am not persuaded that any aggravation of pain in the hips can be attributed to the 2016 accident, nor that it represents a significant aggravation injury.
232The focus of this application was primarily on the increased pain in her lumbar spine.
233I have already made findings that Ms Foran’s evidence about her degree of lumbar pain before the 2016 accident is not reliable and that Ms Foran had significant pain on an ongoing basis in her lumbar spine before the 2016 accident.
234I have also made findings that Ms Foran’s evidence that she experienced immediate onset of a new and severe lumbar pain after the 2016 accident is not reliable.
235It is well established that an inaccurate history can significantly impact the reliability of expert opinion, particularly when that opinion is based on subjective reports of pain.[66]
[66]        Petrovic v Victorian WorkCover Authority [2018] VSCA 243
236In this case I am satisfied that the inaccurate history of pre-2016 accident pain and immediate onset of severe pain post 2016 accident has significantly impugned the expert opinions on which the plaintiff relies.
237I consider Dr Drnda’s opinion that Ms Foran suffered a short-lived soft tissue injury to be most consistent with the medical and other evidence. Ms Foran complained to her general practitioner about increased back pain, and attended her chiropractor for treatment of all levels of her spine in the days immediately following the 2016 accident. This is also consistent with Dr Clark’s note that Ms Foran’s pain had returned to background levels some weeks after the 2016 accident, that she was able to have a period completely off medication in 2017, and the evidence that Ms Foran returned to dancing and volunteer work prior to her deterioration in 2019.
238It is possible that Ms Foran sustained an aggravation of an underlying spondylosis, as opined by Professor Bittar. If this is correct, I am not persuaded that any such aggravation was permanent and progressed inevitably to the surgery in 2019. This is because, on the medical evidence, Ms Foran’s main difficulty after the 2016 accident was in her hips and buttocks, which had been already causing significant difficulty prior to the accident. Further, she was able to return to dancing in 2017, and went off her medication completely for a period of at least 3 months. This is not consistent with a picture of continuous and deteriorating pain caused by a symptomatic spondylosis.
239In 2019 there was a further deterioration of Ms Foran’s lumbar pain. This is reflected in her evidence, her general practitioner notes, the increase in her medication and the fact that, despite short term relief from pain for some periods after surgery, her overall course in terms of lumbar pain has significantly declined.
240Dr Drnda provides an explanation for this deterioration as the expected and inevitable course of Ms Foran’s underlying pain syndrome. His opinion takes into account an accurate history.
241Even if I accepted Professor Bittar’s opinion that the 2019 surgery was warranted because Ms Foran had a symptomatic spondylosis, I am not satisfied that the 2016 accident was the cause of the aggravation of the underlying spondylosis, given the timing of the onset of symptoms.
242I am not persuaded that the deterioration in Ms Foran’s condition that occurred in 2019 was caused or materially contributed to by the 2016 accident.
243When considering the consequences of the 2016 accident, the evidence is:
244she had an increase in pain in all regions of her spine which subsided to background levels by September 2016:
(a)   Although there is some evidence that she was unable to return to ballroom dancing for a period after the 2016 accident, it is clear that by 2017 she was back to ballroom dancing;
(b)   She continued to volunteer after the 2016 accident;
(c)   She did not take any additional medication after the 2016 accident and was able to go off all her medication for a period of at least 3 months in 2017;
(d)   Although she had injections into her trochanteric bursa after the 2016 accident, she had also required this treatment prior to the 2016 accident; and
(e)   She had injections into the facet joints and sacroiliac joints after the 2016 accident but the indication for those injections was increased buttock and gluteal pain, a pain that pre-dated the 2016 accident.
245I am not satisfied that the consequences that can be attributed to the 2016 accident were permanent or meet the test for “at least very considerable”.
246Therefore, despite the very significant injuries Ms Foran now has, she has not established on the balance of probabilities that the 2016 accident was the cause of those injuries and the consequences she says have resulted.
247Accordingly she has not made out her case that the 2016 accident has caused consequences that are at least very considerable.
248Her application is dismissed.

[2025] VCC 396

8 April 2025