Highdale v TAC
[2025] VCC 1059
•1 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-04103
| CRAIG HIGHDALE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2025 | |
DATE OF JUDGMENT: | 1 August 2025 | |
CASE MAY BE CITED AS: | Highdale v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1059 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMPENSATION
Catchwords: Serious injury – sub-paragraph (a) of the definition of “serious injury” – injury to the lumbar spine – two transport accidents – pain and suffering
Legislation Cited: Transport Accident Act 1986
Cases Cited:R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Richards v Wylie [2000] VSCA 50; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application granted under sub-paragraph (a) in relation to each transport accident
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton KC Mr A Dimsey | Stringer Clark Lawyers |
| For the Defendant | Mr S Jurica Mr S Smith | TAC |
HER HONOUR:
1Mr Highdale applies for a serious injury certificate under sub-paragraph (a) of section 93(17) of the Transport Accident Act 1986 in respect of the pain and suffering consequences of injuries to the lumbar spine suffered in each of two transport accidents. The first transport accident occurred on 1 December 2016, when he was struck from behind by a vehicle while riding his motorbike. The second transport accident occurred on 17 May 2018 when he was struck from behind by another vehicle while driving his ute.
The issues
2The plaintiff says that he has suffered serious injury as a result of each of the two transport accidents, taken separately.
3The plaintiff says that as a result of the first transport accident he suffered a fracture in his lumbar spine as well as an aggravation of pre-existing but asymptomatic degenerative changes at L4-5. While the fracture healed, the degenerative changes at L3-4, L4-5 and L5-S1 became symptomatic and caused a permanent impairment of the lumbar spine in the form of persistent daily lower back pain with referred pain into both legs. His back movements became restricted, he had difficulties performing the heavier duties occasionally required at work; and there were significant limitations on his domestic and recreational activities. He needed daily and strong medication, and required hydrotherapy and physiotherapy as well as referral to a neurosurgeon for treatment. He also suffered significant psychological issues as a result of his persisting pain and the impact of that pain on his daily and recreational activities. On this basis, he says that he meets the narrative test for serious injury in relation to the pain and suffering consequences of the first transport accident.
4The plaintiff says that although his lumbar fracture healed, as a result of the second transport accident he suffered further aggravation of pre-existing and symptomatic degeneration of the lumbar spine at a number of levels and the development of stenosis at L4-5. The resulting symptoms included persistent pain and sciatic symptoms requiring ongoing strong medication. The pain interfered with his sleep, prevented him from maintaining full time employment in project work involving lifting and moving equipment, required further neurosurgical investigation, and made him give up completely any of the limited domestic or recreational activities he was able to perform prior to the second transport accident. He gave up all work for a few months then resumed in casual work which only required computer testing and did not involve moving equipment. Neurosurgical opinion was to the effect that decompression at L4-5 was a reasonable option to improve his quality of life.[1] In addition, he suffered a significant aggravation of his psychological condition, requiring psychological treatment for some months in 2020. The plaintiff says that the pain and suffering consequences of the second transport accident also meet the narrative test for serious injury.
[1] See the report of Professor Paul D’Urso dated 18 March 2024, Plaintiff’s Court Book (‘PCB’) 148.
5The defendant says that on the whole of the evidence the plaintiff has failed to adequately separate out the consequences of each transport accident and that he has failed to satisfy the narrative test for serious injury in respect of each of them.
6At the hearing, Mr Highdale gave evidence and was cross-examined. No other witnesses were called. I have considered all of the evidence tendered and the submissions of counsel.
7On the authorities,[2] in applications involving successive transport accidents, it is necessary to consider each transport accident separately and to determine whether the consequences of any impairment of function resulting from that transport accident meets the narrative test for serious injury.
[2]R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51.
8In addition, where an application is considered under sub-para (a) of the definition of serious injury, the Court is required to assess the physical consequences of any physical impairment as well as any mental or behavioural disturbances flowing from the physical injury.[3]
I have therefore considered each transport accident in turn, to consider what permanent impairment of the lumbar spine, if any, flows from the injury sustained in that transport accident, and whether the pain and suffering consequences of that impairment meet the narrative test for serious injury.
Background
[3]Richards v Wylie [2000] VSCA 50 [28] (Chernov J).
9The plaintiff is 58 years old. He left school in year 11 and completed a traineeship in electrical technology. He has worked in the electrical industry since then.[4]
[4] PCB 6.
10Prior to the first transport accident, he had been working full time for 7 years as a senior electrical technician for Zinfra. Most of his work involved technical computer work, although at various times during a project he would work on the tools, testing and moving testing equipment. He has a past history of anger management issues, and suffered depression after earlier relationship breakdowns. He had surgery for a left knee condition and had also suffered from restless legs and sleep apnoea, for which he received treatment.
11He was fit and very active outside work, and enjoyed hunting, camping and fishing, 4WD outings, riding his motorbike and trail bike riding. He was able to mow his garden and carry out home maintenance. He had a big boat for fishing, as well as a tinny. He had no back problems and had no difficulty working full time. When projects at work reached the point where he had to move or carry equipment to sites, he was unrestricted in his ability to do so.
Consequences of the first transport accident
12X-ray of the lumbar spine on 12 December 2016[5] did not reveal any spinal injury. However, the MRI of the lumbosacral spine on 11 January 2017 reported a complaint of “persistent lower back pain. Paraesthesia in right thigh following MVA on 1/12/16”.[6] The report noted oedema in the pedicle of L5 vertebra on the right extending to parts interartcularis but, given the limitations of MRI, could not identify a discrete fracture. The report noted facet joint arthropathy at L3/4 and L4/5. At L4/5, the report noted:
facet joint hypertrophy results in mild narrowing of central spinal canal. Minimal abutment of budding right L5 nerve root is also seen in subarticular recess. At tiny posterocentral protrusion is seen at L5/S1 disc in association with an annular tear causing minor ventral thecal sac indentation only.[7]
[5] Ibid 105.
[6] Ibid 106.
[7] Ibid.
13The radiologist recorded the following conclusion:
IMPRESSION
Degenerative changes are seen particularly at L4/5 and L5/S1 levels as described. Non specific marrow oedema in pedicle and pars interarticularis of L5 vertebra on right L5 vertebra on right ? stress reaction. CT may be obtained to rule out an occult fracture if clinically appropriate.[8]
[8] Ibid.
14CT scan of the lumbar spine on 24 January 2017 was reported as confirming “an ununited undisplaced fracture…through the posterior aspect of the right inferior articular process of the L4 vertebra….which most probably accounts for the appearances on the recent MRI scan”.[9]
[9] Ibid 107.
15According to his affidavits, some time after the first transport accident, Mr Highdale took a month off work due to his back pain.[10] Upon his return to work he continued to struggle with back pain and had some days off work. He had to move around when using his computer, and struggled with moving equipment or walking longer distances on site. He found work physically exhausting due to his back pain.
[10] Ibid 8.
16At first after the transport accident, he experienced persistent pain in the lower back which sometimes extended down the right leg. He tried to manage his back pain with analgesics including Panadeine Forte, Nurofen and Voltaren, and tried to avoid stronger medications. However, he could not manage his back pain this way and in 2017 he was prescribed Targin and Panadeine Extra. In 2018 he was prescribed Lyrica and Panadeine Forte, as well as Amitryptyline and Pramipexole. He also had hydrotherapy and physiotherapy but his symptoms persisted.
17His back pain prevented him from fishing in his big boat, or riding his motorbike, or regularly camping and going on 4WD outings. He found he could not walk long distances on uneven ground and had limited standing or sitting tolerances. Engaging in these recreational pursuits caused his back pain to flare up, so he limited or modified these activities. He was unable to go fishing in his big boat due to back pain. At home, he was no longer able to do heavy activities around the house, such as collecting firewood.
18As at 27 April 2018, CT scan of the lumbar spine was reported as showing, relevantly:
Previously seen right L5 pars interarticularis fracture is well united.
Minor defect remains at the fracture site but most fracture has healed with good body union.[11]
[11] Ibid 108.
19As at 4 May 2018, MRI scan of the lumbar spine was reported as showing: normal vertebral alignment above L5; no impingement of the conus cord; significant reduction of oedema within right pedicle and lamina of L5; no fracture detected; facet arthropathy particularly at L4/5 and L5/S1, but no radicular compression at L4, L5, S1.[12]
[12] Ibid 109.
20
X-ray of the lumbar spine on 17 May 2018 was reported as showing early osteophytes L3 to L5, with facet hypertrophy L3/4 to L5/S1 but “no spondylosis.”[13]
The conclusion reported was:
Features suggest lumbar spondylosis.[14]
[13] Ibid 110.
[14] Ibid.
21There were no contemporaneous records in evidence concerning Mr Highdale’s consultations with his general practitioners at the Breed St Clinic in relation to either of the transport accidents. The reports of one of the doctors at that practice, Dr Alagarswami,[15] are of limited assistance because they merely conclude that as a result of both transport accidents Mr Highdale has suffered persistent daily back pain which impact his daily life.
[15] Ibid 34, 52.
22However, Mr Highdale was referred to neurosurgeon, Mr Craig Timms, who saw him on 27 March 2018.[16] At that time, Mr Highdale told him that before the first transport accident he had no lumbar pain symptoms but that after that accident he used physiotherapy and some pain medicines, but developed pain in his back, and, at times, down both legs, more on the right side. He said he had a reduced capacity to sit, stand and mobilise; was unable to sit for prolonged periods on his motorbike, particularly in the flexed position.
[16] Ibid 53.
23On examination, Mr Timms found normal neurological function. Mr Timms considered that Mr Highdale had probably suffered a fracture of his L5 vertebra which gave him persistent symptoms.
24In cross-examination at the hearing, Mr Highdale said that his back pain had not settled prior to the second transport accident.
25Mr Timms opined on 15 February 2025 that as a result of the first transport accident Mr Highdale “suffered an L5 fracture and developed back pain and has developed some sciatic disturbance since that time.”[17] He noted that the “traumatic injury and fracture of his spine at L5...has likely led to an accelerated rate of deterioration of his spine.”[18] Mr Timms noted that Mr Highdale had continued working full time and “was able to perform most of his activities after recovering from that accident.”[19]
[17] Ibid 55.
[18] Ibid 56.
[19] Ibid.
26I turn to the medico-legal opinions concerning the impact of the first transport accident.
27Professor Peter Teddy, neurosurgeon, opined on 11 March 2021 that Mr Highdale’s “current persistent symptoms of lower back and limb pain are entirely compatible with being the result of his injury of 2016 with some aggravation by virtue of the accident of 2018….(where) he apparently sustained no bony injury”.[20]
[20] Ibid 143.
28Professor Paul D’Urso, neurosurgeon, opined on 18 March 2024[21] that in the first transport accident, Mr Highdale sustained injuries to his lumbar spine in the form of a fracture of the right L4 vertebra as well as an aggravation of pre-existing degenerative findings in the lumbar spine, particularly at L3-4, L4-5 and at L5-S1. Mr Highdale told Professor D’Urso that he had never been the same since the first transport accident. Professor D’Urso concluded that the first transport accident was “of sufficient severity to precipitate the onset of Craig’s symptoms with subsequent disability and incapacity”.[22]
[21] Ibid 147.
[22] Ibid 147-148.
29Mr Kevin Siu, neurosurgeon, opined on 7 October 2024[23] that Mr Highdale has “certain features of lumbar canal stenosis, given rise to symptoms of claudication with a decreasing distance he can walk…..he has a neurosurgical condition which may warrant intervention but this developed as a result of age-related progressive lumbar spondylosis” and not as a result of either of the transport accidents. In a further report dated 30 May 2025,[24] Mr Siu confirmed his diagnosis and earlier opinion.
[23] Defendant’s Court Book (‘DCB’) 4.
[24] Ibid 12.
30Dr Anthony Kam, radiologist, opined on 24 March 2025[25] that the radiological investigations after the first transport accident revealed the following pathology: pre-existing mild degenerative change at the lower lumbar facet joint degenerative change; and new right L4 pedicle stress injury/fracture.[26] He opined that the first transport accident “may have caused”[27] the stress fracture at the L4 right pedicle.
[25] Ibid 21.
[26] Ibid 25.
[27] Ibid.
31Mr Highdale was assessed by psychiatrist Dr David Weissman on 15 February 2021.[28] In his report of the same date, Dr Weissman noted that Mr Highdale was tearful during much of the interview. He said he could not go surfing, or fishing or mow the lawn. He felt depressed and anxious about his future. His sleep was interrupted by pain. His sex drive had declined. He was no longer able to ride his motorbike. He had occasional thoughts about the first transport accident but none about the second transport accident.
[28] PCB 124.
32Dr Weissman concluded that Mr Highdale suffered from a “mild to moderate chronic Adjustment Disorder with Depressed and Anxious Mood with mixed disturbance of emotions, behaviour and conduct predominantly caused by the first/subject transport accident with some exacerbation/aggravation due to the second transport accident.”[29] He recommended further psychological therapy for six to nine months. He did not recommend anti-depressants.
[29] Ibid 134.
33Dr Nigel Strauss, psychiatrist, took a history from Mr Highdale on 20 May 2025[30] that after the first transport accident he continued to suffer from back pain but did not develop any psychiatric symptoms such as post-traumatic stress symptoms or anxiety and depression. Dr Strauss’s report does not refer to any mention by Mr Highdale of psychiatric sequelae of the second transport accident.
[30] Ibid 150.
34Dr Strauss noted that Mr Highdale reported he was currently taking daily opiate medication for his pain as well as antidepressants. He was showering every few days but dressing daily. He was working full time. Due to his back pain, he could no longer do domestic chores, shopping or cooking and could no longer mow the lawn. He had given up fishing, camping or collecting firewood. He had become largely inactive and frustrated because of this. He had become socially isolated. He had become more and more depressed due to his debilitating back pain. His marriage was suffering. He would cry at times and had some suicidal thoughts. He felt useless and hopeless. He was taking strong medication to sleep. He was taking anti-depressants. He was no longer having psychological treatment. He was not looking after himself and had lost 10 kgs. He spend 4 days in hospital. He did not enjoy eating.
35Dr Strauss diagnosed Mr Highdale as suffering from a moderately severe major depressive illness due mainly to his back condition, which had recently stopped him from working, although he was motivated to return to work. His major depression had gradually worsened over the last few years.[31]
[31] Ibid 157.
36Dr Strauss noted:
This man struck me as a genuine individual who is not coping well with genuine physical injuries and he has decompensated significantly from a psychological perspective.[32]
[32] Ibid.
37Dr Strauss opined that Mr Highdale’s psychiatric problems “are a result of his inability to do things.”[33]
[33] Ibid.
38Dr Strauss considered that:
…as a result of his first accident he has developed a major depressive illness which has been exacerbated by the effects of his second accident. Each accident in my opinion is contributing equally to his major depression.[34]
[34] Ibid.
39Dr Strauss opined that Mr Highdale’s psychiatric problems were affecting him to a significant extent, socially and recreationally. Dr Strauss concluded that his significant depression renders him vulnerable to suicidal behaviour and warrants treatment.
Consequences of the second transport accident
40Mr Timms saw Mr Highdale on 31 May 2018,[35] shortly after the second transport accident. Mr Highdale reported worsening pain and sciatica as a result of the second transport accident. In the light of the healed fracture at L5, Mr Timms considered that no surgical intervention was needed and recommended conservative management with CT guided cortisone injection, analgesia, physiotherapy, hydrotherapy and massage, as well as the wearing of a supportive lumbosacral brace.
[35] Ibid 55.
41In his affidavits, Mr Highdale stated that he took a month off work after the second traffic accident.[36]He returned to work full time but took days off work when his back pain flared up.[37] He found his difficulties at work worse than after the first transport accident. His back pain was constant and “significantly worse” after the second transport accident.[38] He was unable to sit or stand for extended periods. The dosage of pain medications he was taking (Panadeine Forte, Panadeine Extra, Celebrex, Palexia, Endone, Norflex, Norspan patches and Baclofen) sometimes had to be increased, and the medications affected his ability to concentrate. He was tired all the time and “really struggled,” just “limped through the day and got home and went to bed.”[39]
[36] Ibid 19. There is some inconsistency as between the first and fifth affidavit in terms of the time taken off work after the second transport accident, and this inconsistency is reflected in some of the medical reports.
[37] PCB 28-30.
[38] Ibid 29.
[39] Ibid 28-30.
42At the hearing, Mr Highdale said that he is now wearing a buprenorphine patch which he changes weekly. In addition, he takes one Endone tablet three to five times per week for breakthrough pain.
43In mid-August 2024, he was made redundant. At the hearing, Mr Highdale said he ceased work because of his back pain and because he could not do the physical work required during some phases of projects at work. However, he returned to work full-time in a casual position as a specialist electrical tester in May 2025. That position did not involve project work. He has not had any work for the past two weeks.
44He received specialist pain management treatment from Dr Gavin Weekes and Mr Andrew Muir in 2019 and 2020. He was prescribed various medications. He had a CT guided cortisone injection in early 2019 but this gave him limited benefit. He had some psychological treatment for nine months or so in 2020. He took antidepressants for some period of time. He underwent a number of medial branch blocks in 2021 and 2022 which only gave him short term benefit. He also had radiofrequency ablation.
45Mr Timms did not see Mr Highdale again until 25 January 2023. At that time, Mr Timms recorded a complaint of more symptoms in the legs and a belief that he was losing control of his leg function. The updated MRI and CT scan revealed developing foraminal stenosis in his spine at L4-5, but Mr Timms could not see cauda equina compression that would account for his leg symptoms. On review on 4 April 2023, Mr Timms considered that treatment options included conservative treatment or surgical decompression in the form of a lumbar laminectomy at L4-5 and L5-S1. At that time, Mr Highdale agreed to have the decompression and Mr Timms applied to the TAC for approval of the surgery but the request was rejected. Mr Timms did not see Mr Highdale again.
46Mr Timms considered that as a result of the second transport accident, Mr Highdale suffered “an exacerbation of back pain and sciatica and appears to have developed lateral recess lumbar stenosis in his spine at L4/5 and L5/S1”[40] which was shown on recent investigations.
[40] Ibid 55.
47Given that the fracture had healed, Mr Timms concluded that Mr Highdale’s current symptoms “seem to be largely attributed” to the second transport accident.[41]
[41] Ibid 56.
48Professor D’Urso opined that the second transport accident caused a further aggravation of Mr Highdale’s degenerative spine condition as well as a significant deterioration in his quality of life in that he was no longer able to do domestic chores or vigorous sports.[42] Professor D’Urso recommended a number of restrictions on Mr Highdale performing activities involving lifting, twisting, standing, sitting, kneeling, squatting, crouching, climbing ladders. He suggested that a laminectomy at L4-5 would decompress the subarticular L5 nerve root.[43]
[42] Ibid 148.
[43] Ibid.
49In May 2025, Mr Siu repeated his earlier opinion that Mr Highdale’s lumbar symptoms result not from either transport accident but from age-related degeneration. He noted, however, that although he was on anti-depressants, Mr Highdale’s mental health had “deteriorated significantly” since he was last seen.[44] Mr Siu recommended psychiatric and psychological treatment.
[44] DCB 17.
50Dr Kam noted that after the second transport accident the radiological examinations continued to show “pre-existing mild degenerative change at the lower lumbar facet joints”. He opined that that there was no radiological evidence that the second transport accident caused any spinal pathology.[45]
[45] Ibid 25.
51In terms of psychiatric sequelae, Dr Weissman opined in 2021 that Mr Highdale’s chronic adjustment disorder was predominantly caused by the first transport accident and was aggravated somewhat by the second transport accident.[46] He recommended that Mr Highdale continue with psychological treatment for a further period but did not recommend anti-depressants.
[46] PCB 134.
52Dr Strauss opined in May 2025 (as outlined above at paragraph 38) that each transport accident contributed equally to Mr Highdale’s current and moderately severe major depressive disorder, which renders him vulnerable to suicidal behaviour, and which requires psychiatric and psychological treatment on top of the anti-depressants currently being taken.
Findings and reasons
53I found Mr Highdale to be a straightforward and genuine witness. He acknowledged at times that he could not recall what he said to doctors about his symptoms, but I accept his evidence concerning the pain and suffering consequences of each of the transport accidents, as best as I am able to discern them from that evidence. I note that his evidence concerning his pain and restrictions following each transport accident is largely supported by the radiological investigations, by the reports of his treating neurosurgeon, Mr Timms, his treating pain management specialists, and by medico-legal neurosurgeons Professor Teddy and Professor D’Urso. I consider that he is a very stoic man who has continued to work in spite of the pain and restrictions caused by his lumbar spine and psychiatric conditions.[47]
[47]Sabo v George Weston Foods [2009] VSCA 242 [71].
54In the light of the absence of problems with the lumbar spine prior to the first transport accident, I prefer the neurosurgical opinions of Professor D’Urso, Professor Teddy and Mr Timms to those of Mr Siu.
55On the whole of the evidence before me, I consider that as a result of the first transport accident, Mr Highdale suffered a fracture to the lumbar spine which healed, as well as aggravation of pre-existing but asymptomatic changes at L3-4, L4-5 and L5-S1 which resulted in a permanent impairment of the function of the lumbar spine requiring daily narcotic medication, physiotherapy, hydrotherapy. The sequelae of that organic impairment included the persistence of intrusive pain requiring daily narcotic medication, interruption of sleep, severe limitation on his domestic and recreational activities and limitation on some of his work activities, and a psychological reaction in the form of a chronic adjustment disorder or depressive disorder.
56I consider that the consequences of the first transport accident are more than considerable when compared with other cases in the range of permanent impairments.
57On the whole of the evidence before me, leaving aside the consequences of the first transport accident, I consider that as a result of the second transport accident, Mr Highdale suffered aggravation of the pre-existing and symptomatic degenerative changes in the lumbar spine by way of the development of stenosis at L4-5. That aggravation resulted in worse lumbar pain and sciatic symptoms, requiring more frequent topping up of medication for breakthrough pain than prior to the second transport accident. The other consequences of this aggravation include a complete cessation of domestic and recreational activities against a background of considerable limitations associated with the first transport accident. Another consequence is the inability to perform to any extent any non-computer related activities at work, and the restrictions in relation to sitting and standing, lifting and twisting which were imposed by Professor D’Urso. The psychological reaction to the persistent pain and the complete inability to perform domestic or recreational activities has been one of social withdrawal and the development of a moderately severe depressive disorder with vulnerability to suicidality, a condition requiring psychological and psychiatric treatment on top of the anti-depressants currently being taken by Mr Highdale. The fact that in these circumstances Mr Highdale continues to work casually full-time in employment where it is available and does not require him to move equipment, reflects his ongoing stoicism.
58In all of the circumstances, taking the second transport accident alone, I consider that the pain and suffering consequences of the impairment of the lumbar spine flowing from the second transport accident, combined with the psychological reaction to that impairment, are more than considerable when compared with other cases in the range of permanent impairments.
Conclusion
59Leave is granted to the plaintiff to issue common law proceedings in respect of each of the transport accidents.
60I reserve the question of costs.
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