Haroun Hussein Plaintiff v Transport Accident Commission Defendant

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-00615

HAROUN HUSSEIN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHEREHELD:	Melbourne
DATEOFHEARING:	8 August 2024
DATEOFJUDGMENT:	8 August 2024
CASEMAYBECITED AS:	Hussein v TAC
MEDIUMNEUTRALCITATION:	[2024] VCC 1216

REASONS FOR JUDGMENT DELIVERED EX TEMPORE
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Subject: TRANSPORT ACCIDENT

Catchwords: Serious injury application – transport accident – lower back injury – whether organic basis for injury – whether work after accident inconsistent with claimed injury – credit of plaintiff

Legislation Cited: Transport Accident Act 1986 Cases Cited: --

Judgment:Leave granted for the plaintiff to commence common law proceedings for pain and suffering damages and pecuniary loss.

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APPEARANCES:	Counsel	Solicitors
Forthe Plaintiff	Mr A Ingram KC with Mr P Johnstone	Carbone Lawyers
FortheDefendant	Mr D Masel SC with Mr R Ajzensztat	Wisewould Mahony

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

1

2

J U D G M E N T

(Her Honour Judge Clayton)

(revised)

On 7 December 2020, Mr Hussein was involved in a
collision with another vehicle in Carlton. As a result
of the accident he says he injured his back, and in
particular his lower back. Mr Hussein brings this
application for leave to bring common law proceedings
pursuant to s.93 of the Transport Accident Act.
The law is not in dispute in this case. Mr Hussein
must prove that he has a permanent impairment or loss of
a body function that is a serious injury.
The issues to be determined in this case are
whether Mr Hussein has established that he has an organic
basis for his claimed injury, and if so, if it meets the
test of more than significant or marked, and as at least
being very considerable.
For the reasons that follow I am satisfied that Mr
Hussein meets the test, and accordingly he is granted
leave to bring common law proceedings.
Mr Hussein was born in 1982. He completed Year 12
and did one year at university, and then applied for a
Diploma of Policing Practices, and attended the police
academy. He completed his police training in 2002 and
became a probationary constable. He did not enjoy this
work and felt he was the subject of bullying from other
police officers because of his surname and the concurrent
political situation in the aftermath of September 11
2001, and the war in Iraq.
He worked as a truck driver before moving into

VCC:BG

JUDGMENT

1 Hussein v TAC

security. For a period in 2017 and 2018 he ran his own
cleaning business before returning to security work, and
commenced employment with National Security Protection.
At the time of his motor vehicle accident he says
he was working nightshifts, approximately 40 to 60 hours
a week. His Tax Returns demonstrate that in the five
months leading up to his accident he worked variable
amounts between 13 and 40 hours a week. He says that
prior to that period he was working more hours.
Mr Hussein says that on the day of the accident
police and an ambulance attended the scene, and he was
advised to go to hospital. However, he was in a state of
shock and confusion, and he was worried about getting to
work, and as a consequence he drove home after calling
his boss. He had significant pain in his neck and lower
back and the following day he attended a general
practitioner to obtain a sick leave certificate and was
referred for an X-ray of his cervical spine, which he
understood was normal.
He was not referred for a CT scan, or any
investigations into his lower back. He was unsure why
because he said that he had complained of lumbar spine
pain. He denied that the reason the referral was for his
cervical spine only was because he had only complained of
neck pain.
On 23 September 2020 he saw Dr Zaini, who referred
him for a CT of his lumbar spine. He was given a script
and a referral for chiropractic treatment.
Between February and May 2021 he attended a
chiropractor and did not find that treatment helpful. He

started hydrotherapy on the recommendation of his
chiropractor, but was limited in his capacity to attend
due to restrictions imposed by the COVID-19 pandemic.
In April 2022 he commenced a physiotherapy exercise
program, but says he did not find this to be a very
helpful tool for pain management.
He then left his employment at National Security in
about July 2022 and started working for another firm
called Monjon, in the guardhouse at the La Ionica chicken
abattoir, which he says involved less shift work, less
standing and less travel to and from work. He says that
this also involved a significant reduction in pay.
He was unable to continue with this work after
about two months and has not work since. He is currently
not employed, and says that he does not consider he can
work because of his injuries. He has consequently not
made any attempt to look for other work, either within or
outside the security industry.
Medical treatment. On 22 December 2020 he had a CT
of his lumbar spine. The reports note back pain for two
weeks. The CT scan showed mild degenerative changes and
disc bulging with no central canal or neural foraminal
stenosis.
A report of his general practitioner dated 24
November 2023, noted he has had assessment and management
for low back pain due to a motor vehicle accident. At
that time he was prescribed Melatonin for sleep,
Ibuprofen and Paracetamol combined, called Maxigesic,
Panadol, Optizorb and Naprosyn, the brand name for
Naproxen.

As at 2022 he was taking Mobic, another form of
non-steroidal anti-inflammatory similar to Naprosyn,
Nurofen, Voltaren and Advil, a simple analgesia.
He found the medication caused constipation, but
nevertheless he estimated he was taking that medication
at least four or five times a week.
The physiotherapist he consulted on one occasion,
Ms Sharon Christian, provided a report dated 23 November
2022, and noted that during a period of six to eight
months of physiotherapy and rehabilitation, Mr Hussein
continued to work normal hours which impacted his
recovery.
After his first physiotherapy consultation he saw a
different physiotherapist. The circumstances in which Ms
Christian provided the report, and the purposes of that
report are not apparent. It is not clear from that
report that Ms Christian has based her opinion on the
records of Mr Hussein's treatment from her clinic. I
therefore give this report no weight.
As at May 2024, Mr Hussein said that he takes about
five to six tablets of Naproxen a day, which reduces his
aching and pain, but does not resolve it. He alternates
Naproxen with Nurofen and Panadol Osteo to reduce the
risk of constipation. He also uses Advil and Voltaren
Gel. He says that this intake of medication represents
his current medication usage.
In October 2022 he consulted orthopaedic surgeon
Mr de la Harpe, who noted MRI showed L5 lysis, widespread
multilevel degenerative endplate changes, no
spondylolisthesis and no significant neural compression.

He diagnosed aggravation of pre-existing degenerative
change and lytic spondylolisthesis of L5 and S1 in the
lumbar spine causing back pain without specific
radiculopathy.
Mr de la Harpe did not recommend surgery and
advised conservative management. He considered Mr
Hussein was not fit for any job that involved manual
labour. He did not consider Mr Hussein was suitable to
return to his previous occupation in security. He
considered that Mr Hussein's arthritic changes would
likely worsen over time.
Mr Hussein has had no interventional treatment, has
not undertaken any pain management courses, and has had
conservative treatment with physiotherapy and some
hydrotherapy. He takes over-the-counter analgesia and
anti-inflammatory medication.
Credit of the plaintiff. The defendant squarely
attacked the credit of the plaintiff and submitted that
he was not a reliable witness and that I ought not accept
his evidence in important respects. In particular the
defendant submitted that Mr Hussein's assertions that he
had constant pain, and his assertions about the level of
that pain, could not be accepted.
There are a number of examples in the physiotherapy
notes of Mr Hussein reporting that he was not in pain, or
not in much pain. For example, at defendant's court book
101, "feeling good, pain and stiffness reduced in the
last few days." Defendant's court book 100, "still gets
some stiffness, but not in much pain", defendant's court
book 100. And then defendant's court book 99, "not in

pain, just feels stiff and tight” and so on.
The defendant submits that the picture is one where
in April 2022, some 15 months after the accident, Mr
Hussein presented for physiotherapy. On 3 June 2022 he
reported lower back pain, worse in the cold at a level of
eight out of 10. However, the defendant says the
physiotherapy notes thereafter show that his pain is
generally improving, to the point where he is not in
pain, though continuing to complain of back stiffness and
tightness.
Thereafter for the duration of his physiotherapy
treatment the picture is one of manageable stiffness and
tightness with occasional flare-ups.
The plaintiff accepted that the physiotherapist's
notes were an accurate reflection of his state at the
time they were made. He also, on re-examination, said
that he had never been free of pain in his spine since
the accident, and said that when he referred to tightness
or discomfort to his physiotherapist, he used those words
interchangeably with pain.
The defendant notes that in his first affidavit
dated 8 August 2022, Mr Hussein says he has constant pain
in his low back, but the severity of the pain varies.
However, just three days before swearing that affidavit
Mr Hussein attended his physiotherapist and reported that
he was not having much pain, but was just uncomfortable.
The defendant says Mr Hussein's account of constant pain
is unreliable and ought not be accepted. I make the
observation that not having much pain is not the same as
not having any pain, and is not necessarily inconsistent

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JUDGMENT

6 Hussein v TAC

with Mr Hussein's sworn affidavit that he had constant
pain of variable severity.
Mr Hussein's evidence about what he meant by pain,
tightness, stiffness and discomfort do make assessing his
actual pain levels more difficult. The physiotherapy
notes appear to differentiate between stiffness or
tightness and pain, and specifically note that while
Mr Hussein might be tight or stiff on occasion, he has no
or little pain.
I do not consider Mr Hussein was attempting to
mislead the court, but rather that, as he said, since the
accident there has been something constantly wrong with
his back. He said – and I quote from transcript 45: 14
"Sounds different, but at the time that's how
I felt, every day was different. The pain
levels are different, I can't predict my back
pain every day. Whatever I said, I was being
honest at the time, yes."
He also said, at T44, that the level of pain he was in at
the time that he described it to the physiotherapist was
with medication, and he said that he may have used the
word stiff to mean “a thing that's
not right in my back." At T46.
It is impossible to objectively assess another person's
experience of pain. We rely on self identification of
pain and subjective ratings on pain scales to get some
insight into the individual's experience of pain. It is
difficult to know whether when one person describes
tightness, this is the same or a different experience
from another person's pain.
On balance and having regard to the whole of the
evidence, I do not think that the physiotherapy notes

significantly undermine Mr Hussein's credit or his
reliability. I accept his explanation that when he
refers to tightness, he was referring to something he
considered to be painful, thus his attendance at
physiotherapy.
I also consider that if a person experiences very
frequent pain, it is likely that the overarching
impression the person has is of constant pain, even if
there are periods where the pain is absent. In both of
Mr Hussein's affidavits he deposed to varying pain
levels.
The defendant attacked the plaintiff's credit on
other bases: that he had not disclosed in his affidavit
that he had returned to work within a very short period
of time, in an attempt to bolster his case. The
plaintiff said there was no reason he had not put that in
his affidavit. I am not satisfied that there was any
attempt to hide this fact, and certainly his consistent
evidence to doctors, medico-legal examiners and this
court, is that he got back to work after a very short
period of sick leave.
The defendant put it to the plaintiff that he did
not complain of lumbar pain on the day after the
accident, given the X-ray referral was only for the neck.
The plaintiff disputed he had not complained of lumbar
pain. But even if he had not complained of lumbar pain
the following day, I am not persuaded this establishes
that he is now not giving reliable evidence about the
existence of lumbar pain, given his multiple subsequent
complaints about lumbar pain.

The defendant notes that Mr Hussein told
Dr Slesenger that he returned to work after the accident,
working full time and duties as described in
Dr Slesenger's report, which is different from his
evidence in court that due to the COVID-19 pandemic, the
student population in the building where he was working
had reduced by about a third to a half, and that he had
altered his duties in response to the demands of his work
and his injury.
The defendant says that Mr Hussein had also told
Dr Awad that he not been provided with any workplace
adjustments, which was inconsistent with his evidence
that his boss had provided workplace adjustments, and
that in fact his history to Dr Awad was that he had
continued to perform the same types of duties as before
the accident, including patrols, fire stairs and lifts,
walking through external areas and corridors.
The defendant says this should cause me to less
readily accept his evidence about his post accident
duties, given his lack of disclosure in his affidavit
evidence, or to any doctors about the apparent alteration
in that work after the accident.
I granted the plaintiff leave to give additional
evidence about the situation at his work over the COVID-
19 pandemic and his duties after his accident. I accept
generally Mr Hussein's evidence about those matters. It
was significantly different from the evidence his counsel
said he would give, and I formed the impression that this
was because he was giving truthful evidence as best he
could recall, and was not trying to bolster his case. He

made appropriate concessions, at times against
interest.
The fact that he was given tacit permission by his
boss to not to do as many patrols, and on his evidence
just sort of avoided doing some of the elements of the
job that might previously have been required, would not
necessarily be something a worker would recognise and
identify as a “workplace adjustment”. It is clear from
his evidence that there was no formal arrangement in
place to accommodate his injury, but that nevertheless he
made arrangements to limit his work activities to suit
his injury.
For these reasons I am not persuaded that there has
been a sufficient attack on Mr Hussein's credit for me to
consider that his evidence overall is unreliable. As
always, I am required to consider the whole of the
evidence.
Consequences. Mr Hussein says he has constant pain
in his lower back, it varies in severity. He struggles
to sit, stand or walk for prolonged periods because of
back pain. He has difficulty bending, lifting and
twisting, and these will make his pain worse. He said
his pain is usually a dull ache in his central lower
back, but he often experiences a stabbing pain in the
back of his legs down to his knee. This occurs after
prolonged standing.
He says on a good day his pain is about four to
five out of ten, and on a bad day his pain is nine to ten
out of ten. He says he has about three bad days a week
and finds that he is most comfortable lying on a couch

and avoiding all forms of physical activity.
At the time of his accident he was living separated
from his wife and children, and was doing his own
laundry, cooking, cleaning and gardening. He is now
restricted in what he can do around the house. Before
his injury he did his own home maintenance, including
building a pergola, which he would now not be able to
do.
He says he finds it difficult to sleep at night and
often wakes because of pain, and gets only about three or
four hours of sleep a night as a result, compared with
his previous seven hours of sleep. As a result he feels
tired and lethargic during the day.
Before his accident he says he was active and
played soccer, squash and tennis with his children, and
he had played competitively, but not for some time prior
to the accident. He enjoyed hiking and would be able to
walk for two to three hours. He is now very limited and
says he would not be able to walk twice around Plenty
Valley Shopping Centre without a break.
He used to enjoy mountain bike riding, but no
longer rides. His exercise now he describes as a light
walk to the shops for a cup of coffee.
His libido is low because of the pain. He
struggles with mental health and tends to be anxious. He
worries about the future and whether he will ever get
better. His pain has caused him to become depressed, and
this has not resolved. He says as a result of his
injuries he is unable to work.
Findings on consequences. Aside from the level of

VCC:BG

JUDGMENT

11 Hussein v TAC

pain and his capacity to work, the plaintiff was not
directly challenged about any of his claimed
consequences. Plainly enough however, if I am not
satisfied that his evidence establishes that he has
constant or near constant pain, it would be difficult to
accept his evidence about the consequences of that
pain. Similarly, if I am not satisfied about his level
of pain, I could not be satisfied that his inability to
work is a consequence that arises from that pain.
The defendant submits that Mr Hussein's ability to
work for 18 months at National Security, undertaking his
former duties on a full time basis, is persuasive
evidence against a finding that he is or was in
significant pain. The defendant submits I cannot be
satisfied that he left National Security because he could
not cope with the work because of pain, but rather that
the job at Monjon suited him better because it was not
shift work.
However on the evidence I am satisfied that after
his accident, Mr Hussein did tell his boss that he could
not do his job in the way he previously had. Previously
he was required to do hourly patrols of the external part
of the building into the laneway at the back. However I
am satisfied on the plaintiff's evidence that he largely
ceased doing this, and that due to the COVID-19 pandemic,
traffic in and out of the building was substantially
reduced.
Although the building did not empty out, the
numbers of students living in accommodation reduced by
about a third to a half. Given that guests were not

allowed to visit and that movement about the city was,
for large periods of time during 2020 and 2021,
significantly restricted, I accept that it is likely that
Mr Hussein was able to curtail his workplace activities
so that he could be more sedentary.
I accept his evidence that in the context of the
pandemic and the significant reduction in foot traffic
for large periods of 2020 to 2021 within the central
business district, there would have been no or much less
need to deal with intruders. And I accept that during
the period after his accident until he left National
Security, he did not have to undertake heavy manual tasks
such as ejecting
intruders.
Mr Hussein gave evidence and histories to multiple
doctors that his condition gradually declined during the
course of his employment with National Security after the
accident. This is consistent with his evidence that
during COVID his restrictions were accommodated by his
employer, who had told him:

21

"Just do what you've got to do, if it means
you've got to sit for the rest of the shift,
I don't care, just do it."
That is a transcript 54, line 6.
He said he was able to undertake far fewer patrols, he

estimated 80 per cent reductions, transcript 53, and that
he was able to do 50/50 sitting and standing. He said he
was initially managing the work with pain and taking
medication.
It was not until April 2022 that he began attending
physiotherapy which is consistent with his evidence that

his condition gradually worsened and he became ultimately
unable to cope with his work. I am satisfied that he
ultimately ceased work as a consequence of his pain.
Prior to his accident, he had been working variable
hours but was not challenged in his evidence that he
worked for National Security since 2018 and in other
security and cleaning work before that time.
I am satisfied that he has experienced the
consequences he claims because of his pain. This raises
two questions. Firstly, does the pain have an organic
basis, and secondly, if that pain does have an organic
basis whether it meets the relevant test.
Looking now at the expert opinions to Peter Blombery.
Dr Blombery examined Mr Hussein in August 2022 and
November 2023. On examination he reported Mr Hussein's
assessment of pain as seven to eight out of 10 in his
lower back with no pain in his neck. He recorded a
history that Mr Hussein had previously had paraesthesia
in his legs but that was no longer the case. There was
no change in temperature or colour in his legs and no
bowel or bladder dysfunction.
He recorded a history that after a period on reduced
hours he'd returned to normal work on a full time basis.
He developed increasing back pain and ceased that
employment in June 2022 when he could no longer cope.
He commenced employment closer to home working only
eight-hour shifts but at the time of his consultation
with Dr Blombery he could no longer cope with that work.
Dr Blombery considered that previously asymptomatic

degenerative changes were rendered symptomatic by the
accident and Mr Hussein had developed a pain syndrome in
the affected areas with sensitisation of pain nerve
pathways. He considered this to be an organic disorder
of the pathways and diagnosed post-traumatic pain.
Dr Blombery considered Mr Hussein's prognosis for
recovery was poor and he noted that in the majority of
patients who had a central sensitisation disorder, the
development of the process results in persistent pain.
He describes this as an organic disorder of the pain
nerve pathways which is not functional or psychological.
The defendant criticises Dr Blombery on the basis that
he discloses no path of reasoning for his conclusion that
Mr Hussein has a pain disorder or syndrome and has not
excluded a psychological cause of the pain syndrome.
However, I note that Dr Blombery diagnoses a
mechanical injury, that is that a previously asymptomatic
degenerative change became symptomatic in the context of
the accident and that was complicated by the development
of a pain syndrome which he explains as an organic
disorder of those pathways.
It is not my understanding that in the context of a
mechanical injury, for example, degenerative change that
is rendered symptomatic by trauma, it is necessary to
exclude a psychological basis for the development of a
pain disorder.
I am satisfied that Dr Blombery has disclosed his path
of reasoning which is based on examination of Mr Hussein,
the medical records, his clinical findings and his

expertise.
Mr Hazem Akil, neurosurgeon. Mr Akil saw Mr Hussein
in September 2022 for medico-legal examination. He
diagnosed an examination of (indistinct)
spondylolisthesis and lumbar spondylosis affecting L3/4,
L4/5 and L5/S1. He considered the mechanism of injury
and pattern of pain was consistent with the road traffic
accident.
He considered Mr Hussein's prognosis was guarded and
he would not be able to return to pre-injury duties as a
security guard or do any job that requires him to stand
or sit for longer than 30 minutes or repetitive bending,
pushing or pulling. He considered a desk-based job where
he could alternate sitting or standing would be more
suitable.
On re-examination in 2024, he said Mr Hussein had a
full range of motion in his cervical spine with no
difficulty and no sensory or motor deficit in his upper
limbs. He noted forward flexion of the lumbar spine was
limited to under 10 degrees with no sensory or motor
deficit affecting the lower limbs and deep tendon
reflexes present and normal.
He maintained his opinion that the cause of
Mr Hussein's lower back pain was an aggravation of lumbar
spondylosis caused by the traffic accident.
Dr Eman Awad, occupational physician, examined
Mr Hussein in May 2024. She noted Mr Hussein's history
that he returned to his pre-injury role shortly after the
accident working full time hours and duties and that he

found the work difficult because it required prolonged
standing for 12-hour shifts and that he had resigned in
about July 2022.
She noted that he then obtained a job as a security
guard but was unable to continue after about six weeks
and has had no retraining and was unemployed. Dr Awad
considered Mr Hussein was incapacitated from his former
employment. She did not consider that there were any
workplace adjustments to that work that could facilitate
a return to that work. She considered Mr Hussein had a
partial capacity for a sedentary role of about 25 hours a
week but would require retraining and workplace
adjustments.
Orthopaedic surgeon, Dr Anthony Menz, examined
Mr Hussein in September 2023. He opined that Mr Hussein
would have sustained a mild to moderate soft tissue
injury to his lumbar spine. He noted mild pre-existing
degenerative changes to the lumbar spine which might have
been aggravated to a minor degree by the accident.
Dr Menz said he could not explain why Mr Hussein
continues to complain of pain as radiological
investigations show no traumatic injury and only minor
age-related degenerative changes. Any injury Mr Hussein
sustained would have resolved within three to six months
and consequently Mr Menz opines that there is a
significant functional component associated with the
ongoing symptoms.
He considered that Mr Hussein could undertake all his
domestic activities but "he just leaves them to his

children to do."
Dr Menz opines that the mild age-related degeneration
which in his opinion predated the accident may have been
aggravated to a minor degree by the accident but he
cannot explain why Mr Hussein continues to complain of
lower back pain.
He says any injury would have resolved within three to
six months and therefore concludes that Mr Hussein must
have a significant functional component. The difficulty
with this opinion is that Mr Hussein's symptoms did not
resolve within three to six months. I accept his
evidence that he continued to experience pain albeit at
various levels of severity from the time after his
accident.
Dr Menz works on the assumption that any aggravation
of the underlying condition and any soft tissue injury
would have resolved and therefore the only explanation is
that there is a significant functional component. This
opinion appears to be based on Dr Menz's assumption about
the usual course of injuries rather than the particular
circumstances of Mr Hussein's injuries.
Further, although he acknowledges that Mr Hussein
might have had an aggravation of underlying degenerative
changes he does not explain why such an aggravation must
necessarily have resolved or is not productive of
Mr Hussein's ongoing symptoms.
Dr Slesenger, occupational physician, opined that on
the basis of the evidence he had reviewed, Mr Hussein had
suffered a soft tissue injury to his lumbar spine

developing chronic lower back pain with radiating
features. He formed the opinion that Mr Hussein's injury
was unlikely to be severe given his ability to remain at
work for 18 months after the injury and performed tasks
including intermittent heavy tasks and training
instructors.
He opined that there were multiple inconsistencies in
Mr Hussein's presentation including improved range of
spinal movements upon distraction, inconsistency in
seated to straight-leg raise, no myotomal weakness
throughout the lower limbs and evidence of manual tasks
being performed despite the level of activity described
at evaluation.
He considered that the incident-related impairment had
resolved and considered Mr Hussein could return to work
in security or an administrative role.
Dr Slesenger considered his inconsistent findings on
examination to be very significant, however, I accept the
submission of the plaintiff that to some extent Dr
Slesenger's opinion is impacted by his
understanding of the work Mr Hussein was undertaking
after the accident and his view that the work was
incompatible with his claimed injuries. He notes in his
report that it is unclear whether his employer was aware
of the condition.
I accept Mr Hussein's evidence that his boss was aware
of his back condition and within a month of the incident
had advised Mr Hussein to do what he had to do to manage
on his shifts.

While Dr Slesenger's findings on examination may have
been inconsistent, I do not consider they are
sufficiently significant to undermine a finding that
there's an organic basis for injury particularly as
Dr Blombery has considered Dr Slesenger's findings and
these inconsistencies did not disturb Dr Blombery's
finding that there was a pain condition.
Gary Speck, orthopaedic surgeon, conducted an
examination of the plaintiff for medicolegal purposes.
He reviewed the imaging of the CT scan of 23 December
2020 and agreed with the report. He did not identify any
facet joint degeneration at L4/5 level on the bone
windows. He reviewed the MRI imaging and agreed with the
report apart from the fact that there was degenerative
facet arthropathy at L4/5. He noted that this was best
assessed on CT scan. He noted disc degeneration at L1/2
with Schmorl's nodes and Schmorl's nodes at L3/4/5.
Sorry, L3/4 and L/3 with dissection at L3/4 and L5/S1.
He noted those changes were constitutional in nature,
that is, not related to the accident.
Mr Speck found that Mr Hussein's current presentation
was a soft tissue injury at the time of accident which
had resolved in the presence of constitutional changes in
his low back. He considered Mr Hussein likely had a
somatic symptom disorder or chronic pain syndrome without
evidence of ongoing physical injury and said the
persistence of pain and increasing disability was
consistent with a somatic symptom disorder not ongoing
soft tissue injury.

He said the variability of reported restrictions where
they were able to be objectively assessed indicated
exaggeration of the restriction. He noted that Mr
Hussein sat apparently comfortably for 70 minutes during
the interview. He did not consider that Mr Hussein's
symptoms arose from a physical basis.
Analysis. Is there an organic basis for the injury?
The hot contest in this case, aside from whether the
claimed consequences meet the relevant test, is whether
there is an organic basis for Mr Hussein's claimed
injury. The defendant says I cannot be satisfied that
there is an organic basis and that it is the plaintiff's
obligation to establish on the balance of probabilities
that such an organic basis exists.
In circumstances where highly experienced experts, Dr
Menz, Dr Slesenger and Mr Speck, have all raised the
prospect that there is a mental health, functional loss
or somatic disorder at play, the obligation is on the
plaintiff to exclude the possibility that any
psychological, mental or behavioural component is a
factor in his condition.
The defendant submits I cannot be satisfied that there
is an organic basis for his condition because there is no
indication on radiology of any pathology to explain his
symptoms, he was able to persist in working for more than
18 months after the accident in an occupation that
required intermittent heavy tasks, the evidence discloses
he had a gradual decline in his condition over time,
there are inconsistencies in his presentation that give

rise to questions about the organic basis, for example,
on Dr Slesenger's examination.
His capacity to work for more than 18 months after the
accident is inconsistent with his claimed level of pain
and impairment. The defendant says that the medicolegal
opinions the plaintiff relies on are dependent on the
plaintiff's subjective reports of pain. Given that the
plaintiff's reports of pain are unreliable, those
opinions are likewise rendered inaccurate.
Further, the defendants says the opinion Professor
Blombery, who concludes that Mr Hussein has an
aggravation of pre-existing changes with the development
of a pain syndrome, does not disclose a path or reasoning
and specifically does not exclude a psychiatric basis for
the diagnosis. The defendant says a pain syndrome is a
diagnosis of exclusion and in the absence of excluding a
psychiatric basis as the cause the diagnosis cannot be
accepted.
For the following reasons I am satisfied there is an
organic basis for Mr Hussein's pain. There is no dispute
that he was involved in the accident and that he attended
his doctor the following day and had an x-ray. Two weeks
later he was still in pain and was referred for lumbar
spine CT scan. The medical opinion is in agreement that
Mr Hussein likely had a soft tissue injury at that time.
Radiology shows degenerative changes to the lumbar spine.
He saw Mr De la Harpe in October 2022. At that time Mr
De la Harpe diagnosed an aggravation of a pre-existing
condition. He did not consider that the aggravation must

inevitably have resolved or that Mr Hussein's symptoms
could not be accounted for by such an aggravation.
Mr De la Harpe saw Mr Hussein nearly two years after
the accident, well after the period in which Dr Menz says
the soft tissue injury would have resolved. Mr De la
Harpe is the treating surgeon and I give significant
weight to his opinion.
Both Dr Blombery and Dr Akil are satisfied that there
is an organic basis for Mr Hussein's injury in
circumstances where they are aware of his employment and
the nature of that employment and do not consider it
detracts from the existence of such an injury.
Professor Blombery specifically rejects the analysis
that Mr Hussein's symptoms can be explained by a
functional or psychological disorder as proposed by Dr
Menz, Dr Slesenger and Mr Speck. He discloses his path
or reasoning that that process of sensitisation develops
as a result of an organic disorder in the pain nerve
pathways and is not a functional or psychological
disorder.
Given his finding that there is an organic condition,
I do not accept that he needs to exclude a psychological
disorder. There is no evidence that Mr Hussein had ever
previously complained of back pain or ever previously had
any treatment for back pain. It is not uncommon in cases
of this kind to find lengthy general practitioner records
attesting to a long history of complaints of back pain.
That is not this case. The evidence supports the
conclusion that the accident caused the onset of lower

back pain which has not resolved and which has become
more difficult to cope with over time to the point that
Mr Hussein was unable to continue in his former
occupation.
Ultimately, it does not matter much whether Mr Hussein
has an aggravation of an underlying lumbar spondylosis or
a pain syndrome or both. The issue is whether the
accident caused an organic injury and I am satisfied that
it did.
Do the consequences meet the test? The next question
is whether that organic injury causes consequences that
meet the relevant test. I have already accepted that it
was pain that caused Mr Hussein to cease working as a
security guard. I have now made a finding that the pain
has an organic basis and on the evidence before me was
caused by the accident. There is no evidence of any
other cause either pre-existing or subsequent for his
pain.
The loss of his capacity to work in his former
employment is a significant factor that I take into
account in determining whether the consequences for Mr
Hussein are more than significant and marked to the
extent of being at least very considerable.
Mr Hussein has had no invasive treatment and largely
uses only over the counter analgesia. His accounts of
his levels of pain are, as the defendant has noted and
criticised, inconsistent. The physiotherapy records
disclose that there were certainly times when the pain,
whether that is stiffness or tightness, was not at the

levels he now says are constant.
But for his incapacity to do his former work, this
would be a very marginal case in which the consequences
may not meet the test. Although Dr Awad opines that Mr
Hussein has capacity for some sedentary work at around 25
hours per week, even if I accept that Mr Hussein was not
working 40 to 60 hours a week on a regular basis prior to
the accident, he was certainly working, in general, more
than 25 hours a week.
In the context of a motor vehicle accident, Mr Hussein
has suffered a pecuniary disadvantage which I am
satisfied is more than significant or marked to the point
of being very considerable. A loss of work capacity such
as he has sustained clearly meets this test in my
opinion. As a consequence, I am satisfied that the
consequences for Mr Hussein do meet the test and Mr
Hussein will be granted leave to issue proceedings for
common law damages for pain and suffering and pecuniary
loss. Those are my reasons.
- - -

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Haroun Hussein Plaintiff v Transport Accident Commission Defendant [2024] VCC 1216

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[2024] VCC 1216

8 August 2024