Grant v Transport Accident Commission
[2025] VCC 544
•16 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-00598
| JOHN JAMES GRANT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 February 2025 | |
DATE OF JUDGMENT: | 16 May 2025 | |
CASE MAY BE CITED AS: | Grant v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 544 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – lumbar spine – pain and suffering
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Phelan v Transport Accident Commission [2013] VSCA 306; Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Juma v Kone Elevators Pty Ltd [2024] VSCA 217; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Toth v Victorian WorkcoverAuthority [2025] VCC 361; Church v Echuca Regional Health [2008] VSCA 153; Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Connelly v Transport Accident Commission [2024] VSCA 20; Hettiarachchi v Transport Accident Commission [2023] VSCA 27
Judgment: Application for leave to commence common law proceedings dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Arnold Dallas McPherson Solicitors |
| For the Defendant | Mr P B Jens KC with Ms A Capasso | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
1Mr John Grant, the plaintiff, was involved in a transport accident on 2 February 2017. He was a front seat passenger in an Uber vehicle (“the Uber”) which was struck by a tram at the intersection of Princes Street and Fitzroy Street, St Kilda. The tram struck the driver’s side of the Uber (the “transport accident”).
2The plaintiff alleges he sustained injury to his lumbar spine and seeks leave to commence common law proceedings for pain and suffering damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”).
3The plaintiff alleges that he has sustained serious injury as defined pursuant to s93(17)(a) of the Act. The body function relied upon is the spine.
Legal principles
4The relevant legal principles in this application are well known and were not in dispute.
5To succeed, the plaintiff bears the onus of establishing, on the balance of probabilities, that he has sustained a “serious long-term impairment or loss of a body function” in accordance with the Act.
6To satisfy the requirements of “serious”, the plaintiff must satisfy the Court that the consequences of his injury are more than “significant” or “marked” and at least “very considerable”, when judged in comparison with other cases in the range of possible impairment or losses of a body function (often referred to as the “narrative test”).[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129; Phelan v Transport Accident Commission [2013] VSCA 306
The issues in dispute
7Senior Counsel for the defendant was asked at the beginning of the hearing to identify the issues in dispute. He said that the plaintiff’s injuries were insignificant so that any consequences flowing from the injury were minute or non-existent. Therefore, the plaintiff did not have a serious injury. It was in this context that the defendant used the expression “range” with “reluctance”.[2]
[2] Transcript (“T”) 12, Line/s (“L”) 29-30
8It was agreed that the key issues in dispute in this case were:
(a) The nature and extent of the plaintiff’s injury; and
(b) Whether the impairment consequences satisfied the narrative test which is often referred to in the shorthand of “range”.
The hearing
9The plaintiff tendered Affidavits sworn on 23 November 2022 and 12 December 2024 and was cross-examined and re-examined. He was the only witness called.
10The plaintiff tendered an Affidavit sworn by his 15-year-old child on 17 January 2025.
11The plaintiff tendered medical material, including radiology, reports and records of his treating practitioners and a medico-legal report of Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, dated 5 October 2021.
12The defendant tendered the following medico-legal reports:
(a) Mr Garry D Grossbard, orthopaedic surgeon, dated 14 September 2018;[3]
(b) Dr Gregor Schutz, consultant psychiatrist, dated 31 May 2019;[4]
(c) Dr Hazem Akil, neurosurgeon, dated 6 January 2021;[5] and
(d) Dr Terence Saxby, consultant orthopaedic surgeon, dated 27 June 2024.[6]
[3] Defendant Exhibit D2
[4] Defendant Exhibit D3
[5] Defendant Exhibit D4
[6] Defendant Exhibit D5
13The defendant tendered clinical records of the Inkerman Medical Group, covering the period 21 February 2019 to 25 July 2024.[7]
[7] Defendant Exhibit D6
14The defendant also tendered surveillance which was played in court.
What needs to be determined?
15The Court needs to determine the following questions:
· Was the plaintiff a credible or reliable witness?
· What injury was sustained in the transport accident?
· Do the impairment consequences satisfy the “serious injury” test?
Summary
16I have had the advantage of observing the plaintiff in the witness box whilst he was giving evidence and was cross-examined.
17I have read all of the tendered material and rewatched the tendered surveillance. In this judgment, I will refer only to the relevant parts of the tendered materials.
18For the reasons that follow, I find that the plaintiff has not established that the impairment consequences of his transport accident injury are “serious”.
Background
19The plaintiff is 57 years old and is a single father of one child, who is now 15 years old.
20The plaintiff said in his first Affidavit that he had been unemployed since obtaining sole custody of his child in 2012.[8]
[8] Plaintiff Exhibit P1, PCB 11, paragraph [3]
21The plaintiff supports himself and his child with a combination of income from a Centrelink parenting allowance and a family inheritance.
The Plaintiff’s Affidavit evidence
Pain
22In his first Affidavit sworn on 23 November 2022, the plaintiff said:
“I currently experience chronic pain below the beltline of my lower back. The pain affects both sides of my back but tends to predominate my right side. Whilst resting I would rate my pain at about a 3 out of 10. This is exacerbated to an 8 during periods of physical exertion. The pain may last for up to a week and occurs intermittently every to 2 to 3 months. It manifests as a grabbing, shooting sensation and radiates from my lower back down to my gluteal region and posterior thigh. Sometimes the pain extends as far as my knees. Occasionally I experience stiffness in neck and shoulder region. Other times I am overcome with constant pins and needles in my left arm. The pain is constant in my lower back and left leg. This restricts most movement in my lower body.”[9]
[9]Plaintiff Exhibit P1, PCB 12-13, paragraph [10]
23In his second Affidavit sworn on 12 December 2024, the plaintiff said:
“… I have continued to experience symptoms arising from the injuries to my lumbar and cervical spine. I experience pain that radiates into my thighs. I can only stand for short periods of time. The pain in my lower back and the consequent radicular pain is almost always present.”[10]
[10] Plaintiff Exhibit P1, PCB 18, paragraph [3]
Treatment
24In his first Affidavit, he said:
“The following day [viz, the day after the transport accident] I visited my general practitioner in South Melbourne who performed a CT scan of my lumbar spine. The scan revealed a reduced disc between L5 and S1 with an associated L4/5 disc bulge. A further x-ray of my cervical spine uncovered multi-level disc degeneration. I was subsequently diagnosed with aggravated lumbar and cervical spondylosis with posttraumatic chronic pain.
Following this diagnosis I arranged regular physiotherapy and chiropractic appointments. Despite this I have continued to experience pain. In 2018 I commenced hydrotherapy at the request of my rheumatologist. I persisted with these sessions to no avail. The TAC has refused expenses. As such I have commenced at home exercises. I occasionally visit the Inkerman Medical Clinic.”[11]
[11]Plaintiff Exhibit P1, PCB 12, paragraphs [7]-[8]
25In his second Affidavit, he said:
“I have done some physiotherapy under a Medicare plan, which limits the sessions to 5 per year plus I saw a podiatrist. I saw a physio at Balaclava StKilda (sic) Physiotherapy session. I have not seen any marked improvement in my symptoms from this treatment, a (sic) felt a little better after each session for a short period though. I have now ceased all physical therapy as I can not (sic) afford it
… I try to do some home exercises, but often I don’t feel up to it.”[12]
[12] Plaintiff Exhibit P1, PCB 18, paragraph [3]
Medication
26In his first Affidavit, he said:
“I have been prescribed with Maxalgesic (sic). I additionally take 2 (sic) Voltarens alongside 3 (sic) Panamax tablets. I do not like taking medication and have started smoking marijuana to alleviate the pain. I smoke cannabis daily to help with my pain. Prior to the accident I only smoked recreationally on weekends. This has increased to daily use.”[13]
[13]Plaintiff Exhibit P1, PCB 12, paragraph [9]
27In his second Affidavit, he said:
“[I] only attend my GP Dr Anthony Schneeweiss. I take analgesic medication from time to time. Since my accident I have substantially increased my alcohol intake. I drink daily and smoke marijuana daily and this assists me in controlling my pain.”[14]
[14] Plaintiff Exhibit P1, PCB 18, paragraph, [3]-[4]
28He did not mention the use of prescribed medicinal cannabis in any of his Affidavits.
Sleep
29In his first Affidavit, he said:
“… sleeping leads to increased lower back pressure. I often wake with a dull pain at the base of my spine. As a result I experience poor sleep, waking frequently through the night and struggling to fall back asleep. This leaves me tired and moody the next day.”[15]
[15]Plaintiff Exhibit P1, PCB 13, paragraph [12]
30In his second Affidavit, he said that the symptoms described in his first Affidavit continued. He did not refer to sleep specifically in his second Affidavit.
Tolerances
31In his first Affidavit, he said:
“I can only sit for 30 minutes, likewise my tolerance for standing has reduced to 20 minutes when I usually need to sit down. I am able to walk 2 to 3 kilometres providing there is flat terrain over day, enabling me to walk my daughter to school most days. As I can only handle 30-minute car rides I keep public transport and Uber trips as short as possible. I travel locally trying to minimise as much jerking to my lower body as possible.
My symptoms are aggravated if I try to lift and carry objects in excess of 5 kilograms. Thus, I try to keep the weight of groceries well under 5 kilograms. Activities which involve twisting, bending or lifting are bound to exacerbate my pain.”[16]
[16]Plaintiff Exhibit P1, PCB 13, paragraphs [11]-[12]
32Tolerances were not specifically mentioned in his second Affidavit.
Activities of Daily Living
33In his first Affidavit, he said:
“I find it difficult to wash and dry the lower half of my body. Even sitting on the toilet leads to flare ups. Additionally getting dressed is an arduous task. I have to sit on the bed whilst I pull on my undergarments and pants. I often go to bed in socks as I cannot stand bending over to put them on in the morning. I avoid shoes with laces opting for slip on boots such as my RM Williams or thongs.”[17]
[17]Plaintiff Exhibit P1, PCB 13-14, paragraph [13]
34In his second Affidavit, he said:
“I experience difficulty dressing and grooming myself.”[18]
[18] Plaintiff Exhibit P1, PCB 18, paragraph [5]
Domestic Tasks
35In his first Affidavit, he said:
“I struggle to perform basic domestic tasks like cleaning and cooking. Standing on the kitchen tiles aggravates my lower back. This has prompted me to move all cooking utensils to the central bench to avoid bending down to access cupboards. This has also prompted my young [child] to help with the cooking. However, most nights we eat takeaway. I try to give my [child] healthy meals whilst avoiding physical exertion. This has led to me providing frozen slow cooked meals, in lieu of freshly cooked dinners. Ultimately, my [child] is given jobs such as stacking and unstacking the dishwasher as [I] cannot bare (sic) stooping required to fulfil this task.
Additionally, my [child] vacuums and cleans the house, I avoid cleaning due to the associated pain. I refrain from using the clothes hanger as [I] cannot reach to grab pegs, thus I have become reliant on the dryer. I cannot attend to general landscaping duties. As a result the garden, has become overgrown and unkempt.”[19]
[19]Plaintiff Exhibit P1, PCB 14, paragraphs [14]-[15]
36In his second Affidavit, he said:
“I struggle to cook, clean, and maintain the garden.”[20]
[20] Plaintiff Exhibit P1, PCB 18, paragraph [5]
Socialising and relationships
37In his first Affidavit, he said:
“Since the accident I have become physically and socially isolated… I have withdrawn from almost all company. Prior to the incident I was heavily involved in the local football club, helping with functions and fund-raising events. I have returned a few times since the accident but receive no enjoyment as I am required to stand for long periods at a time. I used to go to rock gigs twice weekly but struggle to wait all night for my favourite acts.
It is difficult to keep in touch with family, especially those who live rurally. Pre covid I visited family in Nhill, catching the train. I was able to move up and down the carriage during the journey but was in excruciating pain once I arrived in Nhill. I was consequently unable to participate in the festivities. I went through a similar experience in early 2020 when I travelled to Adelaide with a friend by car. I forced my friend to stop every hour so I could exit the car and stretch my limbs.”[21]
[21]Plaintiff Exhibit P1, PCB 14-15, paragraphs [16]-[17]
38In his second Affidavit, he said:
“I occasionally go out for a lunch with friends but other than that I do not have any significant social outlets… I have become further socially withdrawn.”[22]
Hobbies
[22] Plaintiff Exhibit P1, PCB 18-19, paragraphs [5]-[10]
Lawn Bowls
39In his first Affidavit, he said:
“Prior to the incident I was an avid lawn bowls competitor. I was in the Division 1 team for ten years but have failed to return to competition as I know this will aggravate my lower back. My life revolved around bowls, I used to go to weekly trainings where I would catch up with friends. However, these 4-hour long sessions are now unbearable.”[23]
[23]Plaintiff Exhibit P1, PCB 14, paragraph [16]
40In his second Affidavit, he said:
“… I have not returned to my hobbies, such as lawn bowling, bike riding, participating in the local football club, or going to gigs… I continue to not be able to enjoy lawn bowls or attending my local footy club.”[24]
[24] Plaintiff Exhibit P1, PCB 18, paragraphs [6]-[7]
Barbequing
41Barbequing was not mentioned in the first Affidavit other than referring to a pre-accident interest in selling barbeque equipment.
42In his second Affidavit, he said:
“Prior to the accident I had dreamt of starting a smoked meat catering business. I purchased a number of expensive barbeques and other equipment out of my inheritance. However, this business has never commenced due to my injuries. Since then I have donated the use of my equipment sporting clubs and disaster relief work. For example, my equipment along with others was used to feed thousands of people after bushfires in 2019. The BBQ’s were picked up and used down the bush in Gippsland. A group of friends and I run a website called BBQ Relief Australia. We also donated the equipment after the floods on the Murray in recent years. My friends know that I can move the BBQ’s and if they are used for some event they move them. I have shown people how to use them for their charity event, but I do not move the equipment. I do not receive any income for the use of the BBQ’s. I am happy to be able to provide this equipment for community but equally I am saddened that my dream of starting a business was lost due to this accident. I am a certified judge for Kansas City BBQ Society and a certified table judge. I have been to BBQ events from time to time.”[25]
[25] Plaintiff Exhibit P1, PCB 19, paragraph [9]
Bicycle riding
43In his first Affidavit, he said:
“I also used to enjoy bike riding but struggle to pedal and maintain balance. I attempted to use an e-bike but found the heavy apparatus prone to causing strain.”[26]
[26]Plaintiff Exhibit P1, PCB 14, paragraph [16]
44Bike riding was mentioned briefly in his second Affidavit.
The Plaintiff’s oral evidence
45In court, the plaintiff gave the following evidence:
· In re-examination, he said that he got shooting pains through his body through his legs and shoulders with pins and needles at times;[27]
[27]T111, L11-18
· He had not attended his General Practitioner (“GP”) between December 2021 and November 2022. In December 2022, he attended for related matters;
· He did not attend his GP at all in 2023;[28]
[28]T70, L6-28; T18, L12-13
· When he asked his GP to arrange physiotherapy in 2024, he did so after it had been suggested by his lawyers;[29]
[29]T76, L13-17; T85, L19-20
· He was cross-examined about a number of attendances upon his GP including the attendance on 12 July 2024 (which is set out in more detail below). He agreed that he requested his GP to prepare a report at the suggestion of his solicitors;[30]
[30]T82, L6-8
· He said that smoking cannabis assisted his sleep.[31] In re-examination, he said he had used cannabis since he was 18 or 19 years old but was using more since the transport accident for pain and sleep;
[31]T48, L31; T49, L1-2
· He said that he used a walking stick occasionally;[32]
[32]T87, L16
· In addition to his interest in barbequing, he retained an interest in the quality of produce;
· He regularly attends the Southern Grace Diner in Glenhuntly Road Caulfield South with friends for lunch. He had been there twice in the week preceding the hearing;
· He attends restaurants like France-Soir in South Yarra;
· He is part of a group called the Melbourne Debonairs who lunch once a month at various lunch spots – currently at the Melbourne Bowling Club;
· He attends the St Kilda Army Navy Club as well as the “Espy” Hotel (The Esplanade Hotel in St Kilda) where he has seen bands such as Eskimo Joe;
· Lawn bowls was his primary recreational activity. He said that he would attend the lawn bowls club in St Kilda multiple times per week prior to the transport accident;[33]
[33]T22, L28-31 – T23, L1-5
· In re-examination he said he had played lawn bowls once since the transport accident and could no longer do it because of pain in his legs and through his back;[34]
· He continued to be a regular attendee at a number of different bowling clubs,[35] including the Middle Park Bowling Club where he would initiate social functions including barbeques;
· It was difficult to ascertain from his evidence how frequently he attended the Melbourne Bowling Club at Windsor, the St Kilda Bowling Club, or the Middle Park Bowling Club both before and after the transport accident;
· In re-examination, he said that prior to the transport accident he socialised at bowls clubs between five to seven days a week and played bowls once a week on Saturdays. He said that he would be lucky to go to a bowling club once or twice a month now.[36] He did not identify the clubs he attended;
· He had been involved in fundraisers for various musicians;
· He had judged a “fair few” barbeque competitions.[37] Since the transport accident, he had adjudicated on barbeque competitions in every state of Australia. He gave evidence that he had undertaken judging duties at the Creekside BBQ Battle, the Warracknabeal BBQ Battle, competitions near Bordertown (it was not clear whether this was a reference to the Warracknabeal competition or not), and on the Gold Coast and in Perth;
· In addition to being a certified judge for the Kansas City Barbeque Society, he was on the board of the Australian Barbecue Association, a state barbeque association, and several other barbeque associations around the country;
· Barbequing and judging barbeques had been his major social interest prior to the accident. The plaintiff agreed it was still his major interest, despite what his Affidavits said.[38] He was well known within the barbequing industry;
· In re-examination, he said that prior to the transport accident, he was getting organised to set up his own catering company. He said he had been doing a lot of volunteer catering for various sporting clubs such as the St Kilda Bowling Club, St Kilda City Football Club, Emerald Hill Cricket Club;[39] and
[34]T100, L26; T101, L4-5
[35]T32, L11-15
[36]T101, L9-18
[37]T32, L29
[38]T34, L19-24
[39]T101, L28-31 – T102, L1-5
· In re-examination, he said that there had been a difference to his involvement in barbequing after the accident because he no longer did long cooks any more (12 to 18 hours). He said that he did not have a problem with judging as he would be provided with a seat.
46There appeared to be an overlap between the social function of attending bowling clubs, arranging barbeques and lunches and involvement in the hobby of bowling.
47His evidence about when he started to play bowls was somewhat confusing. Initially, he said that he started to play bowls at Toorak and then converted to the St Kilda Bowling Club in about 2005 or 2006.
48He later said that when he returned from Far North Queensland, he returned to the Toorak Bowls Club. He reconsidered his position and said that he started going to the St Kilda Bowls Club in about 2013 to 2014. He said that he would go most days per week and there was a social aspect to the bowling.
49At some unspecified time, the plaintiff became dissatisfied with the management of the St Kilda Bowls Club and transferred to the Melbourne Bowling Club located in Windsor.
Lay evidence
50The plaintiff tendered an Affidavit sworn by his 15-year-old child on 17 January 2025. The child was a passenger in the Uber.
51The Affidavit was generally supportive of the plaintiff referring to the activities that the plaintiff and the child carried out prior to the transport accident. The child set out their observations of the plaintiff in the intervening years.
52The child was seven years old at the time of the transport accident and has continued to live with the plaintiff.
Was the plaintiff a credible or reliable witness?
53I must consider the whole of the evidence, but as has been said many times in serious injury applications, the credit of a plaintiff will often be critical to the resolution of the application.[40] This case is no exception.
[40]See for example Popal v Transport Accident Commission [2023] VSCA 222 (“Popal”); Johns v Oaktech Pty Ltd [2020] VSCA 10
54I am mindful of what the Court of Appeal has said in relation to a plaintiff’s credit in serious injury applications.[41] I am also mindful of the distinction between credit and reliability.[42]
[41]Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Popal (supra)
[42]Juma v Kone Elevators Pty Ltd [2024] VSCA 217
55As President Maxwell said in Haden Engineering Pty Ltd v McKinnon,[43] the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend on assessment of the plaintiff’s credibility. A plaintiff’s credibility and reliability are relevant to the question of whether his evidence should be accepted.
[43][2010] VSCA 69
56Such matters may be relevant to the reliability of the medical evidence presented because the opinions of doctors may be dependent on the credibility and reliability of the history given to them by a plaintiff.
57A finding that a plaintiff is unreliable is not the same as a finding that a plaintiff’s credit has been impugned.
Surveillance
58The defendant tendered approximately 15 minutes of surveillance footage taken on 30 December 2024, 31 December 2024, 4 January 2025, and 9 January 2025[44] which was played in Court and which I have reviewed.
[44] Defendant Exhibit D1
59The following is a summary of my observations:
· On 30 December 2024, the plaintiff was not sighted. (It was not clear why this footage was tendered.)
· On 31 December 2024, the plaintiff was seen walking down the street from his home to the local shops obtaining a newspaper and a coffee and then walking home.
· On 4 January 2025, the plaintiff was seen undertaking the same activities as on 31 December 2024.
· On 9 January 2025, the plaintiff was seen undertaking the same activities and carrying a small plastic bag of groceries in his right hand.
60The film was relatively innocuous. The plaintiff’s left shoulder was lower than his right shoulder. The plaintiff was walking in what could be described as a normal manner without limping or using a walking stick. The film did not display the plaintiff performing any activities inconsistent with his claimed impairment consequences.
61I have had regard to the comments in Church v Echuca Regional Health[45] about the use of surveillance film to discredit the credibility of a plaintiff.
[45][2008] VSCA 153
62In this case, the film falls short of discrediting the plaintiff.
Submissions on credit and reliability
63The parties made brief submissions on this issue.
64Counsel for the plaintiff said that the Court should accept the plaintiff’s credit, particularly because he made concessions against his own interest which, it was submitted, had the ring of frankness and truth.
65Senior Counsel for the defendant submitted that the plaintiff was candid in the witness box.
Findings on credit and reliability
66The practice in serious injury applications is that the plaintiff’s Affidavits are treated as their evidence-in-chief. The Affidavits are expected to address the impairment consequences claimed and to include relevant matters.
67As recently discussed by Judge Pillay in Toth v Victorian Workcover Authority,[46] failing to disclose a material matter may have consequences in terms of the Court’s confidence in accepting that it has been told the whole truth.
[46][2025] VCC 361
68I have taken into account the effect of the passage of time on human memory and am reminded of what was said by Besanko J that, when doing so, the Court must also consider the process of memory being overlaid with perceptions or self-interest, as well as the capacity for the human mind to rationalise events after they occur.[47]
[47]Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at paragraph [163]
69I accept the defendant’s submission that the plaintiff was a disarming witness who presented in a candid way. I also accept the submission made by Counsel for the plaintiff that the plaintiff “made concession after concession against his own interest”.[48]
[48] T165, L27-28
70However, I find that the plaintiff’s oral evidence was in stark contrast to his Affidavits and was on occasions contradictory. This makes it difficult for the Court to accept either the Affidavit evidence or the oral evidence where the two conflict.
71In addition to the examples of contradictory evidence noted above, the following are further examples of the contrast between the plaintiff’s Affidavit evidence, his reports to medical practitioners and his oral evidence:
A Socialising:
· The plaintiff deposed “My ability to enter a new relationship has been destroyed by my injuries. I am not able to get out and meet knew (sic) people.”[49]
[49] Plaintiff’s Exhibit P1, PCB 20, paragraph [11]
· To the contrary, the plaintiff agreed in oral evidence that he was the sort of person who could strike up a conversation with a fellow person, and agreed he still had the ability to be by the bar and have a chat and enjoy people’s company.[50]
[50] T31, L27 – T32, L4
B Employment:
· His evidence about his employment history was jumbled and unclear:
§In his first Affidavit, he said that he had worked in the electronics field as a theatre technician for a period of 15 years and also as a roadie. He ceased work after obtaining custody of his daughter in 2012. He said he wanted to return to employment since the transport accident but had been unsuccessful in doing so. He said that before the accident he was interested in selling barbeque equipment, but that dream had been quashed;[51]
[51]Plaintiff Exhibit 1, PCB 15, paragraph [20]
§The Centrelink Medical Certificates in 2018 and 2019 referred to the plaintiff running a catering business which involved heavy hands-on work;[52]
[52]Plaintiff Exhibit P13, PCB 76-78
§He told Dr Sullivan that he was working as a theatrical technician, managing his own catering company, but that he had stopped working in the catering company in about 2011;[53]
[53]Plaintiff Exhibit P3, PCB 30
§He told Dr Lewis that he had been a single parent since 2013 and was not in regular work;[54]
[54]Plaintiff Exhibit P10, PCB 62
§He told Mr Grossbard that he had been a single parent since 2012 and had just become involved in a new project of selling barbeque equipment at the time of the transport accident;[55]
§He told Dr Schutz that he worked up to 2015. He had been doing sound and lighting at a rodeo concert venue for approximately 20 years. He stopped and then became a full-time carer for his child. He had built up a large amount of barbeque equipment and had planned to start his own catering business;[56]
§He told Dr Akil that he used to be self-employed in catering but stopped work in about 2013;[57]
§He told Dr Saxby that he had worked in entertainment as a theatre technician for 15 years or more. At the time of the transport accident he had stopped that work and was setting up a catering business but had not actually begun that work and had not really worked since 2010;[58] and
§In oral evidence the plaintiff told the Court that he had not been involved in any paid employment since 2007. He then amended the date to 2012. After reconsidering the situation, he reverted back to his original position and agreed that he last worked in paid employment in the entertainment industry in 2007 or 2008 and that he had not worked in paid employment since.[59]
C Pain:
§The plaintiff said his pain ranged from a rating of 3/10 to 8/10 which was chronic and almost always present and which restricted his standing and movements.
[55]Defendant Exhibit D2, DCB 6
[56]Defendant Exhibit D3, DCB 12
[57]Defendant Exhibit D4, DCB 17
[58]Defendant Exhibit D5, DCB 11
[59]T26-28
72In re-examination, there was no explanation given for the differences between his oral evidence and his Affidavits.
73I find that the Affidavits were inaccurate in several respects. First, as to the nature and extent of his involvement in socialising at the lawn bowls clubs. Secondly, his ability to socialise is not as restricted as portrayed in the Affidavits. His lunching habit appears to be more than “occasional” as stated in his second Affidavit. The plaintiff is clearly an active member of a number of social groups.
74I also find that the plaintiff overstated his pain levels. If the plaintiff’s pain was as stated in the Affidavits it is difficult to see how he could have engaged in barbeque judging throughout Australia or how he could engage in the level of social activities disclosed in cross-examination. I find that he had a tendency to exaggerate or overstate his restrictions.
75His Affidavits understated his restricted social life and overstated his levels of pain. I find that it is not possible to reconcile these discrepancies. I am unable to accept either the plaintiff’s Affidavit evidence or his oral evidence.
76I find that he was an unreliable witness. I make no findings as to his credit.
77Given the doubts I have as to his reliability, I have carefully assessed the plaintiff’s descriptions of his current claimed impairment consequences in light of the whole of the evidence and have looked for external corroboration of his claimed consequences.
The Plaintiff’s Medical Evidence
Radiology
78The plaintiff tendered the following radiology reports:
· CT scan dated 14 February 2017
· Chiropractic spinal scan dated 7 April 2017
· X-ray lumbar spine dated 28 February 2019; and
· MRI lumbar spine dated 20 March 2020.
79The CT scan of 14 February 2017 was addressed to a Dr Leena Jatkar. It was reported to show narrowed L5-S1 disc space with osteophytes; a broad-based posterior disc bulge at L4-5 which extended to the right foramen, which was slightly narrowed; a mild broad-based posterior disc bulge at L5-S1, and degenerative changes in the facet joints at L4-5 and L5-S1.
80The chiropractic scan of 7 April 2017 was addressed to a Dr Jessica Bravo at 278 Inkerman Street, St Kilda. It is not clear on the face of the report what type of scan was performed. It was reported to show narrowed L5-S1 disc space with osteophytes and facet joint degeneration.
81The lumbar spine x-ray dated 28 February 2019 was addressed to a Dr Yusuf – the commissioning medical clinic was not specified, although it is understood that Dr Yusuf is from the Inkerman Medical Group. The lumbar spine x-ray was reported to show slight narrowing of the L5-S1 disc space with minor facet joint change at L4-5 and L5-S1. The x-ray referred to a previous scan dated November 2017 which was recorded as showing L4-5 and L5-S12 disc bulges. This scan is not in evidence.
82The MRI scan of the lumbar spine dated 20 March 2020 was commissioned by Dr Caroline Simpson of the Harp Family Medical Centre, Kew East. The scan report referred to a minor disc bulge at L2-3 with no spinal canal or foraminal narrowing; a disc bulge at L3-4 level with mild bilateral foraminal narrowing and mild spinal canal narrowing; a disc bulge at L4-5 level with mild right foraminal narrowing and mild spinal canal narrowing with no evidence of neural impingement; and a disc bulge at L5-S1 level with mild left foraminal narrowing without evidence of neural impingement and no spinal canal narrowing. The summary of the scan stated it revealed:
· Multi-level degenerative change;
· L2-3 mild disc degeneration with end plate oedema; and
· No major spinal canal or foraminal narrowing was seen.
Treater’s material
ChiroCure Clinic
83The plaintiff tendered an invoice/statement from ChiroCure Clinic which referred to invoices and payments for attendances covering the period 18 February 2017 – 7 April 2017 (inclusive) and clinical notes from that clinic referring to attendances on 17 February 2017, 18 February 2017, 2 March 2017, 4 March 2017, 7 March 2017, 11 March 2017, 15 March 2017, 21 March 2017, 29 March 2017, 7 April 2017, 26 April 2017, and 8 June 2017 which refer to low back pain, sciatic pain and neck pain. There was no reference to the transport accident in the material.[60]
[60] Plaintiff Exhibit P7, PCB 45-60
Inkerman Medical Group
84The plaintiff tendered a part of a letter of referral from the Inkerman Medical Group, 290 Inkerman Street, St Kilda, addressed to Dr Daniel Lewis, rheumatologist, dated 15 November 2017.[61] The author of the referral is unclear.
[61]Plaintiff's Exhibit P8, PCB 64
85The document indicated that the plaintiff was a new patient. He first attended the Inkerman Medical Group in April 2017, two months after the transport accident. His next attendance was in October 2017 when he was complaining of widespread pain in his hips, lower back, neck and shoulders. According to the referral letter, which incorporated the clinical notes, the plaintiff told the doctor that he was running a catering business which was a hands-on business and involved heavy work. He said he had been involved in the transport accident and had attended chiropractic sessions. He was finding he could no longer get through the day and found that he was shuffling and in pain.
86The plaintiff also tendered three unsigned Centrelink Medical Certificates[62] issued from the Inkerman Medical Group:
· 1 March 2018 (Dr Hoadley)
· 21 June 2018 (Dr Hoadley)
· 12 September 2019 (Dr Simpson).
[62]Plaintiff’s Exhibit P13, PCB 76-78
87Each of the Centrelink Medical Certificates certified the plaintiff as suffering from two medical conditions – which were described as “low back pain L5 S1 degeneration and right hip pain”.
88The plaintiff also tendered a selection of clinical notes from the Inkerman Medical Group covering the period 5 April 2017 – 21 February 2019[63] which confirmed that he attended the clinic for transport accident-related issues on six occasions.
[63]Plaintiff’s Exhibit P11, PCB 65-69
Dr Daniel Lewis, rheumatologist
89The plaintiff tendered two letters from Dr Lewis dated 8 December 2017 – the first was addressed to the TAC[64] and the second was addressed to Dr Hoadley of the Inkerman Medical Group.[65]
[64]Plaintiff’s Exhibit P9, PCB 61
[65]Plaintiff’s Exhibit P10
90The letter to the TAC contained a request for approval to develop a 12-week multidisciplinary program. Dr Lewis opined that the plaintiff had long-standing but asymptomatic osteoarthritis of his lumbar spine which had been aggravated by the transport accident.
91In the letter to Dr Hoadley, Dr Lewis commented on his clinical examination of the plaintiff. He said that there were no pain behaviours demonstrated, and the plaintiff was observed to sit comfortably and walk with an even gait. Dr Lewis noted that there was no muscle spasm but there was marked restriction of movement of the lumbar spine on extension, lateral flexion, and forward flexion. The plaintiff was very tight in the hamstrings. He had slight stiffness of the cervical spine. Neurological examination of the upper and lower limbs was completely normal.
92Dr Lewis opined that the CT scan of the lumbar spine showed very longstanding degenerative changes with the loss of disc height at the L5-S1 level.
93Dr Lewis said that the plaintiff presented with lumbar spine dysfunction without radiculopathy following a relatively trivial motor vehicle accident.
94It was Dr Lewis’ opinion that the transport accident rendered the plaintiff’s previously asymptomatic osteoarthritic spine symptomatic. He noted that the plaintiff had a dependence on cannabis and alcohol but was using a low dose of opiates on an intermittent basis.
95Dr Lewis said that it would be important to monitor the plaintiff’s narcotic use closely. Dr Lewis was reluctant to prescribe any narcotics.
96It was his view that at the time he examined the plaintiff, there was no indication that any medication was improving the plaintiff’s functional quality of life.
97Dr Lewis said the plaintiff required a multidisciplinary and multimodal approach to pain management. It was his view there was no need for pharmacological therapy or interventional therapies such as facet joint injections.
Dr Anthony Schneeweiss, general practitioner
98The plaintiff tendered a report from Dr Anthony Schneeweiss, GP, Inkerman Medical Group, dated 5 December 2024, along with a letter of instructions dated 29 October 2024.[66]
[66] Plaintiff Exhibit P4, PCB 35-38
99In a short report, Dr Schneeweiss diagnosed L5-S1 disc degeneration. He said that the transport accident was a significant contributing factor.
100Dr Schneeweiss said that the plaintiff was incapacitated for work, had substantial pain, could sit, and stand for short periods. The plaintiff was not involved in any prescribed physical therapies but was taking analgesic medication for pain.
Ms Kathryn Moore, physiotherapist
101The plaintiff tendered a report from Ms Moore, physiotherapist, dated 14 February 2025.[67]
[67] Plaintiff Exhibit P5, PCB 39-40
102The plaintiff attended Ms Moore for the first time on 31 July 2024 and had five physiotherapy sessions with her.
103According to Ms Moore, the plaintiff reported lower back pain, bilateral leg pain (more so on the left thigh), left-sided neck pain, shoulder pain and left arm pain extending to the left shoulder with pins and needles in the left arm.
104Ms Moore noted the findings of the MRI scan of March 2022.
105It was her opinion that the transport accident was the cause of the plaintiff’s initial lower back and “shooting leg pains” and that disc bulging at L5-S1 and ligamentous strain may have caused his low back pain. She said that it was “feasible” that the bilateral thigh pain may be attributable to a mild disc bulge at L3-4 with bilateral foraminal narrowing.
106She opined that the chronic nature of the plaintiff’s pain “would likely be due to a combination of factors which may include neural plasticity changes, habitual postures, muscle weakness and joint stiffness and psychosocial influences”.[68]
The Plaintiff’s medico-legal reports
[68] Plaintiff Exhibit P5, PCB 40
Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist
107The plaintiff tendered a report from Dr Richard Sullivan, Interventional Pain Specialist and Specialist Anaesthetist dated 5 October 2021.[69]
[69] Plaintiff Exhibit P3, PCB 30-34
108It is not clear whether Dr Sullivan conducted a clinical examination of the plaintiff as it is not mentioned in the report. It is also not stated whether the plaintiff attended the examination in person or via Telehealth.[70]
[70]The plaintiff agreed in cross-examination that this was possibly a ‘Zoom’ attendance: T17 L5-6
109Given the commentary attached to the presumptive diagnoses made (discussed below) and Dr Sullivan’s final comments about not being able to provide an AMA assessment “without undertaking an in person clinical examination” and suggesting that a supplementary report be prepared “once your client is able to attend in person for his medico-legal clinical examination”,[71] it appears unlikely that a clinical examination was conducted.
[71] Plaintiff Exhibit 3, PCB 33
110Dr Sullivan noted the following:
“Mr John Grant reports chronic pain at and below the beltline of his lower back. It is bilaterally but does tend to predominate on the right side. He describes this as an aching pain that can become grabbing and stabbing in character. He reports that at complete rest, the pain is around 3/10 on numerical rating scale but it increases over the course of the day with significant activity resulting in severe exacerbations of pain, 8 or more out of 10 on numerical rating scale. Such significant exacerbations can last for many days up to a week and leaves him incapacitated outside of personal cares and largely bedbound.
Such pain exacerbations can occur once every two to three months. He uses rest and analgesic medications to manage the pain.”[72]
[72] Plaintiff Exhibit P3, PCB 31
111The plaintiff told Dr Sullivan that he experienced pain which extended from his lower back into the buttock and thighs as well as pain in both shoulders and neck which appeared to be related to activity.
112The plaintiff told Dr Sullivan that the transport accident occurred on 2 February 2016 (not 2017).
113Dr Sullivan was told that the plaintiff had previously worked as a theatrical technician and in a catering company but had stopped that work when he became the full-time carer of his infant child. The plaintiff told Dr Sullivan that before the transport accident he worked 40-50 hours per week often lifting heavy barbeque equipment weighing between 150-300 kilograms to a catering location and before then standing for 8-12 hours cooking and preparing food.
114Dr Sullivan was not provided with any radiology, and specifically stated that it would be prudent that he be given the CT scan dated 14 February 2017 (both the imaging and the report) which he said should be compared to any post-accident contemporaneous scanning of the spine. Despite being told by the plaintiff that the accident occurred in 2016, he noted that the written records confirmed that the accident occurred in 2017.
115Dr Sullivan referred to the “paucity”[73] of supporting radiological investigations and opined on the following diagnoses which he described as “presumptive”:[74]
· Likely aggravation of lumbar spondylosis
· Likely aggravation of cervical spondylosis; and
· Post-traumatic chronic pain with “hallmark features of central sensitisation (this should be confirmed on clinical examination looking for evidence of regional hyperalgesic response/exaggerated pain response to stimulus).”[75]
[73] Plaintiff Exhibit P3, PCB 33
[74] Plaintiff Exhibit P3, PCB 33
[75] Plaintiff Exhibit P3, PCB 33
116Dr Sullivan opined that the prognosis was poor, and that the plaintiff was likely to have ongoing chronic pain.
The Defendant’s Medical Evidence
Mr Garry Grossbard, orthopaedic surgeon
117The defendant tendered a report of Mr Garry Grossbard, orthopaedic surgeon, dated 14 September 2018.[76] Mr Grossbard examined the plaintiff on 4 September 2018 – the examination was a joint IME (independent medical examination) arranged at the request of the plaintiff’s solicitors and the defendant. The purpose of the joint examination was for an impairment assessment.
[76]Defendant Exhibit D2, DCB 6-10
118The plaintiff told Mr Grossbard that he was drinking six to eight alcoholic drinks per day, smoking one gram of marijuana per day and taking Panadol Osteo.
119On clinical examination, Mr Grossbard found no tenderness on palpation of the cervical spine and a full range of neck motion. There were no neurological abnormalities in the upper limbs and a full range of motion in both shoulders. The spine was not tender. There was diminished flexion and extension of the lumbar spine without evidence of spasm. Lateral flexion was 30 degrees in each direction. There was one centimetre of calf wasting on the left side. Mr Grossbard did not comment on the clinical significance (if any) of the calf wasting.
120Mr Grossbard opined that the plaintiff suffered an injury to his neck and lumbar spine in the presence of previous degenerative disease.
121Mr Grossbard observed that the plaintiff attended his office using a walking stick. He noted that the plaintiff had an improved gait when crossing the street outside Mr Grossbard’s office. He continued to use a walking stick.
122Mr Grossbard opined that the plaintiff had zero impairment from the transport accident.
Dr Gregor Schutz, Consultant Psychiatrist
123The defendant tendered a report from Dr Schutz dated 31 May 2019.[77] This report was tendered for the histories provided by the plaintiff and details of the plaintiff’s post-accident lifestyle and activities which were contrary to the plaintiff’s evidence.
[77]Defendant Exhibit D3, DCB 11-16
124Dr Schultz recorded that the plaintiff was on Amitriptyline two tablets at night for pain and sleep and taking Panadol Osteo.
125Dr Schutz took a history that the plaintiff had always been a drinker, and he continued to drink six to eight standard drinks most days, sometimes more. He had three DUI charges over 20 years. He continued to smoke cannabis one gram a day and had done so for 15 to 20 years.
126Dr Schutz recorded that the plaintiff had not been able to play bowls but was judging barbeque competitions but was no longer participating in such competitions.
127Dr Schutz found that plaintiff had no diagnosable psychiatric condition.
Dr Hazem Akil, neurosurgeon
128The defendant tendered a report of Dr Akil dated 6 January 2021.[78] Dr Akil examined the plaintiff on 6 January 2021 for an impairment assessment. At that time, the plaintiff said he was on Panadeine Forte as well as Voltaren. He said he smoked cannabis to improve his pain levels.
[78]Defendant Exhibit D4, DCB 17-27
129On clinical examination, Dr Akil found the plaintiff had a mild reduced range of movement in flexion and extension of his lumbar spine but no sensory deficit or any motor deficits of the lower limbs.
130Dr Akil reviewed the radiological report of the CT scan dated 14 February 2017. He also reviewed the imaging. He opined that the CT scan showed a reduced disc space between L5 and S1 vertebras and associated disc bulge.
131It was Dr Akil’s opinion that the plaintiff suffered an aggravation of lumbar spondylosis in the transport accident.
132Dr Akil recommended continued physiotherapy with a referral to a pain specialist.
Dr Terence Saxby, orthopaedic surgeon
133The defendant tendered a report of Dr Saxby dated 27 June 2024.[79] Dr Saxby examined the plaintiff on 27 June 2024.
[79]Defendant Exhibit D5, DCB 28-39
134On clinical examination, Dr Saxby noted that there was no spasm or deformity in the lumbar spine. The range of motion of the lumbar spine was 70 degrees flexion, 20 degrees extension, rotation left and right 20 degrees and flexion left and right 20 degrees. Straight leg raising was 70 degrees bilaterally. There was normal power and sensation in the lower extremities and the plaintiff had a normal range of motion of his hip.
135Dr Saxby found a mild restriction of motion in all directions which was somewhat greater than he would expect from the pathology and the investigations.
136Dr Saxby was provided with the report of the CT scan of February 2017. It was his opinion that the findings on the CT scan would be presumed to be lumbar spondylosis which is a degenerative condition of the lumbar spine.
137It was his opinion that the changes in the lumbar spine had been present for quite a time prior to injury. In other words, there was a pre-existing degenerative change. These changes, according to Dr Saxby, are common age-related changes in the population.
138Dr Saxby’s opinion was broadly in accordance with the opinion of Dr Akil that there had been an aggravation of pre-existing degenerative changes as a result of the transport accident. However, Dr Saxby said he expected that any transport accident-related aggravation would have been temporary.
139It was Dr Saxby’s opinion that the plaintiff’s presentation to him in June 2024 related to the progression of the underlying degenerative condition rather than the transport accident.
Inkerman Medical Group
140The defendant tendered clinical records of the Inkerman Medical Group covering the period 21 February 2019 to 25 July 2024.[80]
[80]Defendant Exhibit D6, DCB 48-67
141The relevant entries appear to be:
· 31 January 2020 – the plaintiff attended Dr Caroline Simpson with his child. The plaintiff had been diagnosed with pneumonia. According to the clinical note, the plaintiff had been off work with a sore back. It was recorded that he had started a barbeque Facebook page which had gone viral with nearly 15,000 members and that he was setting up a not-for-profit group to help firefighters with barbeque food. It was recorded that “He is very active in the barbeque community”. According to the clinical note, Dr Simpson told the plaintiff that he was fit enough to re-enter the workforce in some capacity once he had recovered from pneumonia;[81]
· 12 October 2021 – the plaintiff attended Dr Schneeweiss in relation to a COVID-19 vaccine. He also wanted to discuss/consider medicinal marijuana for pain relief. Dr Schneeweiss recorded that he had a brief chat about this and referred the plaintiff to “Dr DH” for discussion;
· 4 March 2024 – the plaintiff attended Dr Schneeweiss, who recorded that he had not seen the plaintiff for some time. The plaintiff reported that he was in a dispute with the TAC and that the TAC asked him to get some “treatment” so as to show he is receiving some treatment. It was in this context that Dr Schneeweiss referred the plaintiff to physiotherapy;
· 6 March 2024 – the plaintiff attended Dr Herbst (presumably the doctor mentioned by Dr Schneeweiss). The plaintiff was smoking recreational cannabis up to two grams per day and wanted to consider medicinal cannabis. It was a discussion, according to the notes, about switching to cannabis oils. It appears that a prescription for cannabis oil was provided; and
· 12 July 2024 – the plaintiff attended Dr Schneeweiss for the primary purpose of dealing with an upper respiratory tract infection for which he was prescribed an antibiotic Amoxil. The plaintiff also wanted to discuss his TAC claim for his back. The doctor recorded the following;
“… he mentioned ‘can I write a report,’ but i (sic) hjave (sic) advised that I only saw him 3 years later and all records supoenered (sic); I really do not think a separate report from me is required or of advantage i (sic) advised him.”[82]
[81]The plaintiff was cross-examined about this attendance: T58, L3-31, T59, L1-31, T60, L1-15
[82]Defendant Exhibit D6, DCB 66
What injury was sustained in the transport accident?
142Having considered all the tendered medical material, I find that the plaintiff suffered an aggravation of pre-existing asymptomatic degenerative changes in his lumbar spine in the transport accident.
143This finding is consistent with the opinions expressed by Dr Lewis, Dr Saxby and Mr Grossbard, the presumptive opinion of Dr Sullivan, and is broadly consistent with the opinion of Dr Akil.
Do the impairment consequences satisfy the “Serious Injury” test?
Plaintiff’s Submissions on “Serious Injury”
144It was submitted that:
· The plaintiff has suffered an aggravation of lumbar spondylosis particularly at L5-S1 which had not ceased;
· The plaintiff has continued to complain of pain and symptoms, albeit intermittently from 2017 until 2025;
· The plaintiff had no symptoms prior to the transport accident, and since the transport accident he has had ongoing pain and problems in the spine including shooting pains down his left leg;
· The pain and symptoms had never gone away from the time of the transport accident;
· Prior to the transport accident, the plaintiff had been interested in establishing a barbeque business, and was unable to do so;
· The following impairment consequences would meet the test of being more than significant or marked:
§Ongoing pain which includes low back pain and shooting pain through the legs
§Limited sitting tolerances
§Limited walking and standing tolerances
§Problems with lifting
§Problems with sleeping
§Problems with self-care
§Restrictions with domestic tasks such as cleaning, vacuuming and cooking
§An inability to play lawn bowls
§Limited socialising
§An inability to barbeque
§An inability to remain actively involved in the local football club; and
§An inability to attend gigs.
Defendant’s Submissions on “Serious Injury”
145The defendant submitted:
· This was not a loss of earning capacity case. The application rests on the pain and suffering consequences;
· The Court needs to consider what has been retained as well as what has been lost;
· The plaintiff continued to be a man with an active mind and active life who was involved in a wide range of activities associated with bowling clubs and socialising and barbequing as well as judging barbeques;
· The plaintiff was the initiator of many social events;
· The plaintiff has enjoyed the socialising aspect of attending bowling clubs and enjoyed the company of friends;
· There was no suggestion from the plaintiff that he had to take medication to prepare himself for activities;
· The plaintiff participates in life in a full and active way.
146In relation to the medical evidence, the defendant submitted:
· On clinical examination in December 2017, Dr Lewis found a completely normal neurological examination;
· Dr Sullivan did not conduct a clinical examination and was “crying out for” radiological investigations which were not provided. It was also noted that Dr Sullivan was not asked to provide an updated report;
· The referral to the Metro Spinal Clinic was made at the suggestion of the plaintiff’s lawyers;
· The physiotherapy treatment in 2024 commenced at the suggestion of the plaintiff’s lawyers; and
· Any transport accident impairment consequences did not satisfy the statutory test as they were not more than significant or marked or at least very considerable.
Findings on “Serious Injury”
147Applying the analysis in cases such as TTB SMS Pty Ltd v Reading[83] and Connelly v Transport Accident Commission,[84] I am required to assess the plaintiff’s impairment by comparison with other cases in the range of possible impairments or body functions and determine whether it can fairly be described as being “more than significant or marked” and “at least very considerable”. I am also required to consider the claimed consequences collectively to determine whether the relevant test has been met.
[83][2020] VSCA 203 at paragraph [31]
[84] [2024] VSCA 20
148There is a supporting lay Affidavit from the plaintiff’s child. The Affidavit referred to the child’s observations of the plaintiff’s health and level of activity before the transport subject accident and the claimed consequences after the transport accident.
149This Affidavit must be read taking into account the child’s current age (15), the child’s age at the time of the transport accident (seven), and the fact that the plaintiff is the child’s custodial parent.
150I accept the defendant’s submission that little weight should be placed on this Affidavit even though the deponent was not cross-examined.
151There are no other supporting lay Affidavits produced. There could have been material from the friend who drove the plaintiff to Adelaide, who could have given evidence about the need to stop the car frequently so that the plaintiff could stretch, or people involved in barbequing.
152I find that the plaintiff is independent with his personal activities of daily living. He can undertake domestic activities, including gardening, albeit with some increased ache or pain at the time or the following day. On the evidence, the plaintiff does most of the cooking for his family, which is hardly surprising given the age of his child.
153It is difficult to reconcile the discrepancies between the plaintiff’s complaints of pain contained in his Affidavit and his oral evidence, compared to that provided to the medico-legal experts. Two examples are:
· When the plaintiff attended Mr Grossbard in September 2018, he was using a walking stick. He did not present to any other doctor using a walking stick. He was not seen using a walking stick in the surveillance. He said in oral evidence that he used a walking stick infrequently. There is no medical material to support the need for a walking stick.
· In 2021 Dr Sullivan was provided with a florid description of exacerbations of pain which occurred every two to three months and which could leave the plaintiff largely bedbound for many days up to a week. The plaintiff did not mention being bedbound in his Affidavits or his oral evidence.
154Whilst I accept that the plaintiff may experience some level of pain, it is not constant pain. He does little about the pain. He has not sought medical treatment for a number of years. His re-engagement with physiotherapy was at the behest of his legal team.
155I find that his medication use is modest – requiring the occasional use of over-the-counter medication. In his first Affidavit, the plaintiff said he was smoking cannabis daily to help with pain. Medicinal cannabis was not mentioned in his Affidavits or in the report from his GP. No material has been produced from the doctor who prescribed cannabis oil on one occasion. The plaintiff did not refer to the use of cannabis oil. No additional treatment is planned.
156With regard to sleep, interference with sleep was referred to in the first Affidavit. It is not mentioned specifically in the second Affidavit. In oral evidence, the plaintiff said that smoking cannabis helped him sleep.
157The plaintiff conceded in cross-examination that he was a long-term cannabis user. He has continued to smoke cannabis.
158There is an absence of medical evidence to support the ongoing use of cannabis. Given my earlier finding as to the plaintiff’s reliability, I am unable to reach any conclusion as to his current cannabis use and its relationship, if any, to his lumbar spine.
159At its highest, the documentary evidence is that the last chiropractic treatment was in 2017. The plaintiff says he attended some hydrotherapy in 2018. There was then a significant break in treatment until 2024 when the plaintiff had five sessions of physiotherapy. The plaintiff conceded that the physiotherapy was arranged because his solicitors had advised him to do so.
160The Court is concerned about the solicitors’ involvement in making recommendations relating to treatment. Such behaviour is inappropriate, as stated in the Practice Note.[85]
[85]County Court Common Law Division Practice Note PNCLD 1-2025. See Clause 25.52
161Dr Schneeweiss, whilst supportive of the plaintiff, did not refer to any attendance dates, any clinical examination or radiology. His report provides no path of reasoning, and his opinions appear to be heavily based on what the plaintiff told him.
162Ms Moore’s opinion that the chronic nature of the plaintiff’s pain “would likely be due to a combination of factors which may include neural plasticity changes, habitual postures, muscle weakness and joint stiffness and psychosocial influences”[86] is not explained in her report. Given this and the plaintiff’s concession that he went to physiotherapy in 2024 because he was told by his lawyers to do so rather than on any medical advice, I place little weight on her opinion.
[86] Plaintiff Exhibit P5, PCB 40
163Dr Sullivan’s medico-legal report is problematic. It is over three-and-a-half years old. He did not conduct a clinical examination of the plaintiff, and he did not have access to any radiology. I place little weight on his opinions.
164The test is not the plaintiff’s perception of his impairment but whether the whole of the evidence supports the claimed impairments.
165There is little objective evidence to support the plaintiff’s application. The medical practitioners who support the plaintiff appear to have relied heavily on the plaintiff’s reporting and the radiology.
166It is important that the relevance of radiology is not overstated. As Chernov JA said in Dordev v Cowan & Ors,[87] the fact that there is pathology (in this case radiology) does not, of itself, establish consequences of any particular degree of gravity or a specific source. It was noted that doctors had to depend on the accuracy of histories provided to them by their patient as to their true level of disability. His Honour therefore reasoned that medical opinion based on accounts by a witness as to their symptoms may have little or no probative weight where a court has determined that the witness was not reliable.[88]
[87] [2006] VSCA 254
[88]Ibid at paragraph [19]
167When considering medical records such as clinical notes, I have adopted a cautious approach,[89] given their intended use, which is to assist in forming a diagnosis and, where appropriate, a treatment plan for a patient.
[89] Hettiarachchi v Transport Accident Commission [2023] VSCA 27 at paragraphs [57]-[58]
168There is no medical support for the plaintiff’s assertions that the transport accident led to an injury which has had the impairment consequences of the nature claimed.
169No doctor has said that he is unable to engage in lawn bowls or barbequing because of his back condition.
170I have found that the plaintiff suffered an aggravation of pre-existing asymptomatic degenerative changes in his lumbar spine in the transport accident. I accept the opinion of Dr Saxby that any transport accident-related aggravation would have been temporary. This view is consistent with a “relatively trivial motor vehicle accident” as described by Dr Lewis in his report of December 2017 and the mild findings on clinical examinations conducted by Dr Saxby in June 2024.
171When considering what he has retained, there was a distinct contrast between his current activities as revealed in his Affidavits and what was said in cross-examination. Whilst the surveillance film was inconsequential, it is hard to ascertain the precise frequency of the plaintiff’s attendance at various bowling clubs and the nature of his socialising, other than to say both are more significant than revealed in the Affidavits.
172In undertaking the value judgement required of the Court, and bearing in mind the whole of the evidence, including the unreliability of the plaintiff’s evidence, I am not persuaded that the impairment consequences could be fairly described as being “more than significant or marked” and as being “at least very considerable” when considered in the range of impairments.
Disposition
173The application is dismissed.
174The parties are requested to provide a minute of orders including orders for costs.
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