Grant v TAC

[2021] VCC 2065

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-01281

RACHAEL GRANT	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27 & 29 April 2021
DATE OF JUDGMENT:	16 December 2021
CASE MAY BE CITED AS:	Grant v TAC
MEDIUM NEUTRAL CITATION:	[2021] VCC 2065

REASONS FOR JUDGMENT
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Subject:Transport accident

Catchwords:          Serious injury; Cervical spine; Consequences

Legislation Cited:         Transport Accident Act 1996

Cases Cited:Humphries v Poljak I[1992] 2 VR 129; Richards & Anor v Wylie [2000] 1 VR 79; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Demmler v TAC [2018] VSCA 284

Judgment:  Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A W B Ingram QC with Mr Y C Chen	Slater & Gordon
For the Defendant	Mr P Elliott QC with Mr P Bourke	TAC Law

HIS HONOUR:

1Rachael Grant was involved in a transport accident when driving home from work in Epsom Road, Ascot Vale on 22 May 2012.  She was approaching a line of banked up traffic when a vehicle travelling behind her failed to stop and collided with the rear of her vehicle.  She was aware of neck pain, and to a lesser extent, some lower back pain shortly following the accident. 

2In the present application she seeks leave pursuant to s 93(4)(d) of the Transport Accident Act 1996 (“the Act”) to claim damages in respect of her injuries on the basis that she has sustained a serious injury as defined in s 93(17) of the Act.

3Ms Grant relies upon paragraph (a) of the serious injury definition.  Mr Ingram QC, who appeared with Mr Chen on behalf of the plaintiff, identified the cervical spine as the body function said to be relevantly lost or impaired.

4Mr Ingram QC described the persistence of symptoms over a period in excess of nine years as being a persuasive aspect of Ms Grant’s application.

5Mr Elliott QC, who appeared with Mr Bourke on behalf of the defendant, noted the plaintiff’s return to many of her pre-injury activities as being highly relevant to the courts determination as to whether or not leave should be granted.

6Ms Grant was the only witness required for cross-examination.  The parties otherwise relied upon material tendered into evidence from their respective court books.

The lay evidence

7Ms Grant swore three affidavits in support of her application dated 21 November 2018, 11 December 2019 and 1 April 2021.[1]

[1]Exhibit A, pp 6-18

8Ms Grant’s husband, Paul Grant, and a friend and workmate, Kate Allison, each swore affidavits in support of Ms Grant’s application on 11 December 2019.  Neither Mr Grant, nor Ms Allison were required for cross-examination.

9Ms Grant’s affidavits can be shortly summarised.  At the date of the hearing of this application, Ms Grant was 42 years of age, married with two young sons who were born in 2011 and 2015 respectively.  She had completed tertiary studies in business and marketing and worked as a marketing manager for three separate organisations for a period approaching 20 years.

10At the time of the transport accident she had recently commenced as a marketing manager for the Visy organisation, working at Southbank and Campbellfield.

11In addition to her professional career, she had enjoyed an active social, recreational and family life prior to the transport accident.

12In her first affidavit affirmed on 21 November 2018 she described extensive difficulties with her neck and headaches for which she had sought treatment, initially from a general practitioner, Dr Skehan, and subsequently from an osteopath, Dr Prosser, who treated her between August 2012 and early 2016.  She then sought treatment from a myotherapist and later a chiropractor.  She described being referred to a spinal and orthopaedic surgeon but stated:

“I was not interested in undergoing surgical treatment and declined the referral to Mr Quan at that point in time.”[2]

[2]Exhibit A, p 12 [13]

13Ms Grant described her symptoms continuing and eventually she did see Mr Quan in September 2018.  He did not recommend surgery and she persisted with conservative treatment.

14Ms Grant described particular restrictions with her recreational activities stating that she could no longer participate in running or kick boxing, but had resumed playing basketball with the encouragement of her chiropractor.  She described her social activities as being limited by headaches and pain.  Additionally her domestic duties and activities involving her younger son caused an increase in her symptoms.[3]

[3]Exhibit A, p 10 [20]

15Ms Grant’s second affidavit affirmed on 11 December 2019 described the persistence of ongoing neck pain and headaches.  She stated:

“I am never completely free of neck pain and the pain can range up to 8 on a scale of 10.  I suffer headaches most days and at times of severe headache the headache can virtually last the entire day.  I take conservative treatment with respect to the pain including medications such as Panadol, Nurofen and Voltaren”[4]

[4]Exhibit A, p 11 [2]

16She had remained at work in a full-time capacity, but stated:

“I find that I just get through the work and that by the end of the day, I am frequently suffering increased headaches as well as increased levels of neck pain.  I often rest when I get home from work because I can feel the impacts of a day spent largely sitting.  I often go to bed early and try to ease the level of pain.”[5]

[5]Exhibit A, p 13 [9]

17She again described restrictions with her social, domestic and recreational activities.  She had engaged a cleaner to assist with the domestic activities.   She stated:

“… I have a cleaner that comes in weekly for 4 hours each Friday and this provides a great lift off my shoulders because the house is normally spotless and I am able to maintain it adequately until the next week.  If I had to attempt cleaning tasks without this sort of assistance, I believe that I would suffer ongoing and significant aggravations of pain.”[6]

[6]Exhibit A, p 13 [12]

18Ms Grant also described difficulties with sleeping stating that this had impacted on her personal relations with her husband and also caused her to become frustrated by the pain which again caused difficulties with both her husband and her two sons.

19Ms Grant’s most recent affidavit affirmed 1 April 2021 made reference to further treatment from a pain specialist, Dr Sullivan, and a neurologist, Dr Ghaly.  Dr Ghaly had prescribed Endep medication, initially a relatively low dose of 10 milligrams in mid-2020.  Ms Grant stated in her affidavit:

“I noticed that with the use of this medication there was some improvement in terms of the frequency and severity of my headaches during the latter part of 2020 but that the symptoms began to increase through the early part of 2021.  So, I returned for a further assessment with Dr Ghaly on or around 18 March 2021 and he increased the dosage of Endep/Amitriptyline to 25mgs taken for one week, then 35mgs for one month and then 50mgs after that if required.”[7]

[7]Exhibit A, p 16 [7]

20Her affidavit continued:

“I have pursued a wide variety of conservative treatments over a number of years now with some waxing and waning in my level of symptoms, but they are an ongoing and invasive problem in terms of my lifestyle activities.  The headaches have become a chronic problem for me and are usually present to a lesser or greater extent on a daily basis.”[8]

[8]Exhibit A, p 16 [8]

21When cross-examined Ms Grant agreed that her employment with the Visy Group required her to organise events in major capital cities, which would often involve overseeing these events and liaising with members of the Pratt family and other senior employees to ensure the event ran smoothly:

“So you’d fly over there, have it all organised beforehand, and then you’d go in on the night and make sure it all goes smoothly.  Would that be right?

---Correct, yes.”[9]

[9]Transcript (“T) 20, Line (“L”) 9 to T 21, L 10

22Ms Grant agreed that she had been appointed to Visy as a marketing manager a relatively short time prior to the transport accident:

“It’s a senior job that you’ve got, and you had it at the time of the accident, and you’ve retained that job; is that the situation?---Correct, yes.”[10]

[10]T 22, L 13-19

23Ms Grant agreed in cross-examination that she had returned to playing basketball during the 2016/17 summer season.  She agreed she had played 16 matches in the A Grade competition in that season.  She agreed that she would play once a week at set times in the evening.  She further agreed that she had continued to play approximately 32 games over the course of a summer and winter season as recorded in a document put to her in cross-examination.[11]

[11]Exhibit 1, p 90 & T 36, L 3 to T 37, L 27

24During cross-examination a DVD recording showing Ms Grant playing basketball on 6 August 2019 and 20 August 2019 was played.  The surveillance material covered a period of 22 minutes on the first date and approximately one minute on the second date. 

25Ms Grant agreed that she was the person identified in the surveillance material, and described the basketball games as being played over two 20 minute halves.  She agreed that the first video played showed her to be involved in the game for approximately 36 minutes.[12]

[12]T 40, L 8 to T 41, L 7

26Ms Grant also accepted that there was little break between the summer and the winter seasons, depending on whether her team had participated in finals.  In the years 2017 to 2020 she had certainly participated in finals when playing in a lower grade, although she was not sure about making finals when playing in A Grade.[13]

[13]T 42, L 4-22

27Mr Elliott QC cross-examined Ms Grant in some detail about her failure to make mention of difficulties when playing basketball to a number of medical practitioners.[14]

[14]Dr Hayman (Exhibit A, p 70); Mr Owen (Exhibit 2, p 4); Ms Hateley, physiotherapist (Exhibit A, p 46) & Mr Rogers, neurosurgeon (Exhibit 2, p 12)

28When further cross-examined about medical histories Ms Grant disagreed with a recorded history from 2015 stating that she suffered headaches “once every few months.”[15]

[15]T 53, L 3-8 & Exhibit 2, p 96

29Ms Grant agreed that she had ceased kick boxing, which was part of a general fitness regime, prior to the birth of her first child in 2011.  She stated that she had suffered an arm injury and also changes to her work location had caused her to cease this activity which she had previously enjoyed.  She was also cross-examined on a number of photographs from her Facebook and Instagram accounts between approximately 2015 and late 2020.[16]  In particular Ms Grant agreed one of the entries showed her with friends in New York where she had holidayed for approximately eight days in July 2017.[17]

[16]Exhibit 2, pp 58-88

[17]Exhibit 2, p 88 & T 69, L 21 to T 70, L 3

30When re-examined Ms Grant confirmed that she was currently taking 35 milligrams of Endep as prescribed by Dr Ghaly with the prospect of this increasing to 50 milligrams.  She also commented on the surveillance video stating that it had been frustrating to watch in terms of her lesser degree of intensity in games than prior to the accident.  She had played basketball since the age of six.[18]

[18]T 74, L 19 to T 75, L16

31The affidavit material provided by Ms Grant’s husband and her work colleague and friend, Ms Ellison, were not the subject of cross-examination.  Mr Grant described his wife as:

“… a very active and sporting person … had no restrictions in terms of neck function and did not suffer from any headache problems (prior to the transport accident).”[19]

[19]Exhibit A, p 19 [2]

32He referred in considerable detail to his observations concerning his wife apparently suffering from headaches “which are present most days” and the observations he had made of her restrictions in day-to-day activities and in sporting activity and social functions.  He described her as being very stoic.[20]

[20]Exhibit A, p 22 [11]

33Ms Aitkin is an events projects manager with Visy and her affidavit describes knowing the plaintiff over a period of six years.  She was aware of the transport accident.  Her affidavit describes observations:

“I have noticed on regular occasions that the plaintiff suffers from stiff and rigid neck movements … The plaintiff has complained to me on numerous occasions of suffering pain in her neck.

The plaintiff has also complained of headaches … and I observed the presence of such headaches because the plaintiff’s skin goes pale and she has a glazed look over her eyes.

When these sorts of symptoms emerge I often advise the plaintiff to go and have a rest or even to go home but she is very stoic and insists on maintaining her workload and pulling her weight at work and will often work through the pain.”[21]

[21]Exhibit A, p 24 [4] to [6]

The medical material relied upon by the plaintiff

34Mr Ingram QC tendered into evidence the following reports from practitioners who had treated the plaintiff:

·        Corrine Brownsea, myotherapist, dated 27 April 2018;[22]

·        Dr Kirsty Prosser, osteopath, dated 7 May 2018;[23]

·        Dr Michael Skehan, general practitioner, dated 30 May 2018;[24]

·        Dr Gerald Quan, spinal and orthopaedic surgeon, dated 12 October 2018;[25]

·        Dr Nicole Gallagher, chiropractor, dated 22 November 2018 and 3 October 2019;[26]

·        Dr Jacob Landsberger, general practitioner, dated 11 December 2019;[27]

·        Ms Louise Hateley, physiotherapist, dated 14 December 2019;[28]

·        Dr Richard Sullivan, pain specialist, dated 8 August 2020;[29]

·        Dr Mina Ghaly, neurologist, dated 12 October 2020.[30]

[22]Exhibit A, p 31

[23]Exhibit A pp 32-33

[24]Exhibit A, p 34

[25]Exhibit A pp 35-38

[26]Exhibit A, pp 39-43

[27]Exhibit A, pp 44-45

[28]Exhibit A, pp 46-47

[29]Exhibit A pp 48-51

[30]Exhibit A, pp 52-54

35The recent opinions expressed by both Dr Sullivan and Ms Ghaly suggest the motor vehicle collision in May 2012 caused an aggravation of cervical spondylosis resulting in persistent neck pain and associated daily headache.[31]  Dr Ghaly additionally diagnosed migraine in addition to the cervicogenic headache and occipital neuralgia based upon the clinical symptoms and triggered by the chronic neck pain since the whiplash injury.[32]  The earlier treating material is consistent with Ms Grant’s complaints of ongoing neck pain and headaches subsequent to the transport accident.

[31]Exhibit A, p 50

[32]Exhibit A, p 53

36Mr Ingram QC also tendered clinical notes from the various treating practitioners which had been the subject of cross-examination.[33] 

[33]Exhibit A, pp 107-118

37Finally a number of medico legal opinions were tendered from the following medical practitioners:

·        Mr Russell Miller, orthopaedic surgeon, dated 6 July 2018;[34]

·        Dr Brendan Hayman, psychiatrist, dated 11 July 2018, 23 October 2019 and 9 February 2021;[35]

·        Professor Richard Bittar, neurosurgeon, dated 13 August 2018, 20 December 2018, 23 November 2019 and 27 January 2021;[36]

·        Professor Mark Cook, neurologist, dated 6 February 2021.[37]

[34]Exhibit A, pp 55-61

[35]Exhibit A, pp 62-83

[36]Exhibit A, pp 84-101

[37]Exhibit A, pp 1020106

38Mr Miller had provided a report jointly to the solicitors for both parties following an orthopaedic assessment conducted on 5 July 2018.  At that time he noted the neck as being her major problem, together with frequent associated headaches.  He also noted some associated anxiety and depression.[38]

[38]Exhibit A, p 57

39Mr Miller noted the existence of some degenerative disease in the cervical spine and a probable disc injury at the C4/5 and C5/6 levels.  He found no evidence of radiculopathy or neurological deficient and no structural injury.  He regarded ongoing symptoms as likely at that stage.  He further stated:

“It is likely that this lady had pre-existing disease in the cervical spine.  It is likely that this has been aggravated by the motor vehicle accident and further superimposed injury has occurred.  The current clinical status of the spine is regarded as being accident related.”[39]

[39]Exhibit A, p 59

40Professor Bittar first saw Ms Grant in August 2018.  In his first report he diagnosed her condition as follows:

“In my opinion Rachael Grant presents with the following:

1.     Aggravation of cervical spondylosis

2.     Cervicogenic headaches.”[40]

[40]Exhibit A, p 87

41Professor Bittar re-examined Ms Grant on 23 November 2019 and confirmed his earlier diagnosis.[41]

[41]Exhibit A, p 95

42Professor Bittar prepared a further report on 27 January 2021 following a tele‑health consultation.  He essentially confirmed his earlier opinion and stated:

“The impact of her neck pain and headaches on her social, domestic and recreational activities, as well as her quality of life has not altered significantly since her previous review.[42]

[42]Exhibit A, p 99

43Professor Cook provided a report to the plaintiff’s solicitors on 6 December 2021.  He described Ms Grant on examination as:

“… a well appearing tall thin woman who provides an extremely clear and candid account of her circumstances.  There was no suggestion of exaggeration or embellishment.”[43]

[43]Exhibit A, p 104

44Following the examination and his review of investigative material, Professor Cook stated:

“Ms Grant was involved in a significant motor vehicle accident on 22 May 2012, in which she sustained a flexion extension injury of the cervical spine, resulting in a minor disc prolapse.  There are no symptoms or signs that suggest radiculopathy.  There is certainly significant neck pain though, which interferes with her day-to-day activities and particularly recreationally.  She has tried to push through this and maintain normal activity to the extent that she can, often on the advice of treating practitioners, though she is not sure this has helped and might have aggravated the pain.  I see some of this activity has been captured by surveillance cameras but I don’t think this is at all inconsistent with her reported complaints.  The surgical advice she has received is generally counsel against surgery and I would agree with that, though she may get further benefit from steroid injections or other interventions.  I expect she will be left with pain in the long-term through, and given the time that has elapsed the situation can be regarded as clinically stable.”[44]

[44]Exhibit A, p 105

45It is unnecessary to discuss the opinions expressed by Dr Hayman as there is no reliance placed by Ms Grant on any non-organic consequences of her injuries.

The medical material relied upon by the defendant

46Mr Elliott QC tendered into evidence a single report from an orthopaedic surgeon, Dr John Owen, dated 26 July 2019,[45] and two reports from Mr Myron Rogers, neurosurgeon, dated 20 November 2019 and 1 March 2021.[46]

[45]Exhibit 2, pp 4-11

[46]Exhibit 2, pp 12-20

47Dr Owen examined Ms Grant on 16 July 2019 and succinctly opined that she had suffered an aggravation of degenerative disc disease at the C5/C6 level.  He did not regard the injuries as resolved at that time.[47]  As to prognosis he stated:

“Her prognosis is to remain much the same.  I doubt whether the condition will deteriorate dramatically, nor will it improve.”[48]

[47]Exhibit 2, p 7

[48]Exhibit 2, p 9

48Mr Rogers first examined Ms Grant at the request of the defendant’s solicitor on 20 November 2019.  He provided a report on the same date.  At that stage he diagnosed Ms Grant’s injuries as follows:

“Ms Grant’s injuries are:

a)  resolved soft tissue injury of the cervical spine without radiculopathy, on a background of mild degenerative change at C5/C6 and

b)  chronic cervicogenic headache.”[49]

[49]Exhibit 2, p 15

49He recommended that she would benefit from referral to a rehabilitation and pain management specialist stating:

“… this may lead to her participating in a program which would attempt to help her better self-manage the chronic symptoms she complains of.”[50]

[50]Exhibit 2, p 16

50Mr Rogers conducted a further examination of Ms Grant on 1 March 2021, and again reported to the defendant’s solicitors on the same date.  At that time he noted Ms Grant had been referred to Dr Ghaly and Dr Sullivan and had commenced on the Endep medication.  He stated:

“She found this medication has made the occipital headaches less frequent and mildly reduced their severity.”[51]

[51]Exhibit 2, p 18

51Ms Grant had ceased weekly physiotherapy at the time of his second examination.  As to diagnosis he stated:

“The transport accident caused at most a now resolved soft tissue injury to the cervical spine on a background of mild degenerative change at C5/C6.  There is no radiculopathy.

…

As a result of the transport accident Ms Grant developed chronic headache which has had a mild impact on her functional status.

…

Ms Grant’s current symptoms have no impact on her activities of daily living.

…

Ms Grant continues to work full-time.”[52]

[52]Exhibit 2, p 19

52In addition to the medico legal opinions to which I have referred, Mr Elliott QC additionally tendered clinical notes from a number of treating practitioners which were the subject of matters raised in cross-examination.[53]

[53]Exhibit 2, pp 21-57 & 91-97

Analysis

53The threshold for leave to be granted to Ms Grant is based upon well established legal principles.  In short Ms Grant is required to demonstrate that the consequences resulting from the impaired body function are both long-term and serious. 

54In the present application made some nine years after the transport accident occurred, I have little difficulty in accepting that the consequences relied upon by Ms Grant can fairly be described as long-term.  Indeed with the exception of Mr Rogers, who describes the plaintiff’s injury as resolved (while noting her ongoing complaints of pain and headache) there seems to be no medical opinion suggesting that the symptoms experienced by Ms Grant are likely to change appreciably in the foreseeable future.

55The central issue for determination is whether or not the consequences suffered by Ms Grant can, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and certainly more than “significant or marked”.[54] 

[54]Humphries & Anor v Poljak [1992] 2 VR 129 [140]

56Mr Elliott QC provided a very detailed outline of submissions referring to the authorities of Dwyer v Calco Timbers Pty Ltd (No 2)[55] and Haden Engineering Pty Ltd v McKinnon[56] as providing guidance in assessing the ultimate merits of Ms Grant’s application.  He additionally referred to the principles set out in Richards v Wylie[57] which permit a court to consider the emotional or psychological response to an organic injury in certain circumstances.

[55][2008] VSCA 260

[56][2010] VSCA 69

[57][2000] 1 VR 79

57In final address Mr Elliott QC submitted that however the consequences of injury to Ms Grant  were viewed, her return to full-time employment and her accepted participation in a wide range of sporting, recreational and social activities  did not warrant a grant of leave.

58Mr Ingram QC submitted that the consequences in terms of pain and suffering alone would justify a grant of leave.  He also made reference to Dwyer v Calco Timbers (No 2) and additionally referred to the approach to be taken in applications of this nature as set out in Demmler v TAC.[58]

[58][2018] VSCA 284 especially at [52] to [57]

59Mr Ingram QC submitted that Ms Grant had displayed a degree of stoicism in both her return to work and her engagement in recreational activities.  He made reference to the comments made by Nettle JA in Dwyer as to the manner in which a court should approach such an application where an applicant had displayed a degree of stoicism following the injury:

“… it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being at less strength of character, simply resigned himself to his injury.”[59]

[59]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

60I regard Ms Grant as a reliable and honest witness who did not seek to embellish nor exaggerate the consequences of her spinal injury.  Mr Elliott QC had submitted that Ms Grant’s failure to report worsening symptoms to a number of medical practitioners who saw her at times approximate to her basketball games, was indicative of a lack of severity of her injuries.  I cannot accept this submission. 

61The medical reports relied upon by both parties contain numerous references to Ms Grant informing doctors that she had returned to basketball at the suggestion of her physiotherapist, but had engaged in this activity with less intensity being conscious of her ongoing injuries.  I was also impressed by her responses during cross-examination to the various activities and events which were depicted in the social media material tendered in evidence on behalf of the defendant.

62Further, the unchallenged evidence from Ms Grant’s husband, and from her co‑worker Ms Allison, lead to a conclusion that whilst she has returned to her pre‑injury occupation she continues to experience neck pain and frequent headaches on a very regular basis. 

63The frequency and objectively observed severity of these ongoing symptoms impacts negatively on her family life and the ability to perform domestic activities outside of working hours.

64Further, Ms Grant is a relatively young woman and I am satisfied she has experienced neck pain and ongoing headaches from shortly after the transport accident when she was only 33 years of age.  The vast majority of medical opinions to which I have referred suggest that these symptoms will continue indefinitely into the future.

65I do not find that there has been any pecuniary disadvantage as a consequence of the transport accident, but I am satisfied that in addition to the pain and suffering alone Ms Grant’s particular circumstances as a mother of young children with a previously very active social, recreational and professional life must cause her to  experience considerably greater frustration with the ongoing impact of her injuries than a person who had led a less active life.

66I am not satisfied that Ms Grant has lost her previous activity of muay thai, or kick boxing, as a consequence of the transport accident.  Her own evidence conceded that this activity had ceased probably prior to the birth of her first child in 2011.  Nevertheless the fact that she had engaged in vigorous activity of this type in my view makes the impact of her ongoing injuries more acute in her case as it effectively would preclude her from engaging in similar activities in the future whilst she is still a relatively young woman.

67Further, the extensive treatment which has been sought by the plaintiff over a period approaching nine years as at the date of her application, leads strongly to a conclusion that she remains affected by the neck pain and headaches to such an extent that she has been motivated to continually explore avenues to ameliorate her ongoing symptoms.  Most recently the medication provided to her by Dr Ghaly has only been of limited effect.  The many forms of physical therapy which she has explored have not lead to a permanent amelioration of her ongoing pain and suffering.

68I am satisfied that the very active lifestyle to which Ms Grant has remained committed, have in effect magnified the consequences of injury in terms of her activities of daily living.  I cannot accept the opinion of Mr Rogers that she has recovered from her injuries in circumstances where I accept that she experiences ongoing symptoms of neck pain and headaches on a very frequent basis. 

69When applying the most useful template set out in Haden I am satisfied that the consequences in terms of neck pain and headaches, when compared with a range of other cases in the range of possible impairments, can fairly be described as at least very considerable and certainly more than significant or marked.

Conclusion

70I am satisfied that the consequences to Ms Grant resulting from the injury to her cervical spine, being ongoing neck pain and cervicogenic headaches, satisfy the statutory threshold and can fairly be described as a serious injury for the purposes of s 93(4)(b) of the Act.

71I propose to grant leave in accordance with the statutory provisions. 

72I will hear from the parties in relation to the formal orders sought and on the question of costs.

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