Ibrahim v Transport Accident Commission
[2025] VCC 1465
•9 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-03375
| YOUSEF IBRAHIM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 September 2025 | |
DATE OF JUDGMENT: | 9 October 2025 | |
CASE MAY BE CITED AS: | Ibrahim v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1465 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – spinal impairment – organic impairment – aggravation – psychiatric impairment – chronic pain syndrome
Legislation Cited: Transport Accident Act1986, s93
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis & Ors [1998] 3 VR 833; Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2017) 17 VR 592; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Richter v Driscoll & Ors (2016) 51 VR 95; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr L B R Allen | Just Injury Lawyers |
| For the Defendant | Ms S Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident in Epping (“the accident”) which occurred on 12 August 2020 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long-term impairment or loss of a body function”. The relevant body function in this application is the spine.
4The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant or marked”.[1]
[1] See Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141
6The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[2]
[2] Richards v Wylie (2000) 1 VR 79
7An application was also brought by the plaintiff claiming a psychiatric impairment pursuant to s93(17)(c).
8Sub-paragraph (c) requires any psychiatric impairment be a “severe long-term mental or severe long-term behavioral disturbance or disorder” to meet the serious injury definition.
9The judgment of the Court of Appeal in Mobilio v Balliotis & Ors[3] resolved the meaning of “severe”. Brooking JA without suggesting the use of any particular adjective to mark the distinction, said that “severe” was used in the definition as a stronger word than “serious”.[4]
[3] [1998] 3 VR 833
[4]Winneke P agreed
10A chronic pain syndrome can result in an impairment under sub-paragraph (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the “severe” criteria of a claim under definition (c).[5]
[5]Per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227
11The plaintiff affirmed three affidavits and was cross-examined. He also relied on an affidavit affirmed by his wife, Etedal Souleiman, on 31 January 2025. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
12The plaintiff’s case was that “there’s still ongoing support for his condition having begun as a physical injury but there’s also heavy support for the development of a psychological condition stemming from that initial physical injury”. That psychological condition has been the subject of extensive psychiatric treatment by Dr Pinto, who diagnosed Major Depressive Disorder with Post-Traumatic Stress Disorder, and also Chronic Pain Syndrome.[6]
[6] Transcript (“T”) 1
13The plaintiff has suffered pecuniary disadvantage in combination with pain and suffering, which meets Humphries and Anor v Poljak[7] “serious” or “severe”.[8]
[7] Supra
[8]T3
14It was not in issue that the plaintiff injured his spine in the accident, but the defendant’s case was it was really a soft tissue injury that had been transient, and basically resolved back to what it was pre accident.[9]
[9]T20
15There was also a real issue as to whether any impairment was organic and whether the consequences thereof were serious and long term. The plaintiff had a relatively significant pre-existing symptomatic back and neck condition with treating osteopath, Dr Alivizatos, particularly on attendances on 3 and 6 August 2020, reporting the plaintiff’s symptoms were extreme and acute and being unable to work as a result thereof.[10]
[10]T4
16Further, in terms of the sub-paragraph (c) application, it was common ground that the plaintiff suffers depression and anxiety, but the evidence was against that being severe.[11]
[11]T5
Plaintiff’s evidence
17The plaintiff is presently aged thirty-eight, having been born in January 1987. He is married with two children, aged eight and six.
18After leaving school in Year 10, he commenced an apprenticeship as an electrician but found the study aspect challenging. He then worked as a picker and packer, as a concreter and then did further electrical work, not gaining any qualifications.
19In 2012, he obtained a job in steel fixing. As at the said date, he was working on railway crossings, removing crossings, and also working on the Metro Tunnel.[12]
[12]T41
20He was working a minimum eight-hour days with the potential to work ten to twelve-hour days with overtime. Work as a steel fixer was physical and included carrying, cutting, fitting and measuring steel bars.
Health pre accident
21As at July 2023,[13] he considered he was pretty fit and healthy and he trained at the gym.
[13]Affidavit sworn on 12 July 2023
22He did have a bit of soreness in his lower back in about 2015-16. In his January 2025 affidavit, he corrected these dates to “in or about early 2015 to before my accident in August 2020”.[14] He saw an osteopath, took some cortisone tablets and had a few days off work to rest. He was then able to go back to work.
[14] Affidavit sworn on 31 January 2025
23This episode of soreness made him more aware of his back and the physical nature of his job. After that, he was a bit more cautious about trying to look after his health. Working on uneven ground, made his hips and lower back feel a bit out.
24He attended the osteopath a few times a year for some massage treatment and a general alignment. Sometimes he saw the osteopath infrequently for general treatment. Other times it would be two to three days in a row, depending on what the osteopath recommended.
25In his January 2025 affidavit, he added that before the accident, he maintained his physical health by seeing an osteopath for massage whenever he experienced some soreness and tightness, primarily in his lower back and hips, and occasionally his neck. These visits were not for any specific injury but rather for managing tightness caused by long working hours and sometimes the duties he had at work. He attended a few sessions close together when needed but generally only a few times a year.
26Pre-accident, he experienced tightness in his neck and back, along with minor niggles. He was still able to work and manage these through maintenance. Since the accident, the pain is dull and radiating, and he experiences headaches nearly every day. While some days are better than others, the pain is persistent, particularly in his neck.
27He had not needed to see a psychologist or psychiatrist before the accident. He had had bouts of anxiety from time to time, and was worried he had a heart problem, but was reassured by his GP that this was not the case.[15]
[15]31 January 2025 Affidavit
28Cross examination focussed largely on the plaintiff’s pre- accident spinal condition.
29He did not have a problem in his neck before the accident. His osteopath used to treat his whole spine from top to bottom. He had soreness and tightness. The soreness was, to a degree maybe, pain. He had tight muscles, just because of the nature of his work. He was continuing to work with tight muscles. This tightness did not cause him to not be able to move his neck freely.[16]
[16]T12
30He may have had numbness in his hands before the accident. It was treated with shock waves, maybe in 2016.[17] The numbness went away with the treatment.[18] When told he had complained to his GP of hand numbness in 2019, he agreed he must have got the dates wrong.[19]
[17]T14
[18]T16
[19]T25
31Pre accident, his back was a bit tight, and he had osteopathic treatment, more when he did long hours at work. Tightness did not affect his ability to move his back. He was still working. He could bend fully.[20]
[20]T15
32His osteopathic treatment consisted of massage. He was prescribed tablets, including cortisone.
33He could not remember having “needling” treatment, although he thought it was just putting needles in his back. He did not know what “traction” was. Otherwise, the osteopath did not use any further type of equipment. Treatment was always gentle massage and putting on cream.[21]
[21]T18
34He did not know what was the “high velocity thrust” neck treatment his osteopath noted on 4 June 2015.[22] He did not remember hard thrusts. He used to see the osteopath for a massage. He disagreed that pre accident, he lost the ability to move his neck fully. His neck was stiff.[23]
[22]T20
[23]T21
35He agreed, as was noted on 5 September 2019 there was ongoing osteopathic treatment for lower back stiffness.[24] He had some tenderness in his neck the year before the accident. He did not remember the osteopath discussing with him on 5 September maybe he would have an MRI scan if the pain did not go away.[25] He agreed the note of an attendance on 11 November 2019 was very like the 5 September 2019 note.[26]
[24]T23
[25]T24
[26]T26
36He did not remember having restricted movement in his neck in late 2019. It was more stiffness. [27]
[27]T27
37The 3 August 2020 entry, a Monday, set out there was a mild cervicogenic headache and that he could not work due to acute pain in the neck. He thought that was an RDO. He disagreed that he could not work that day. He did not tell the osteopath he could not work.[28]
[28]T29
38He went to work the next day, on Tuesday, 4 August 2020, and continued working until the accident. His neck never stopped him from working.[29]
[29]T30
39On Thursday, 6 August 2020,[30] the osteopath noted “extreme acute pain in the CD junction and [right mid thoracic and [right] lateral brachium”, plus “radicular pain [right] upper limb”. The plaintiff denied having pain in his right arm, and could not recall it. He disputed that and also disputed the note that he could not work, when he was working.[31]
[30]T31
[31]T32
40The further reference to discussion about an MRI scan on 6 August 2020 examination, “just looked like mostly copy and paste” from the note of the examination three days earlier. They did not speak about an MRI scan on 6 August. They did speak about it on 3 August 2020, but it could have been earlier.[32]
[32]T34
41Even if he went to the osteopath for his lower back, he would treat his neck, but if he went for his neck, his neck only would be treated. He was never treated only for his lower back.[33]
[33]T35
42He was treated on 6 August 2020 for tightness or stiffness in his neck. He was working every day unless they had an RDO. Other osteopath attendances after 2015 were on RDOs or after work.[34]
[34]T36
43He had worked a full day on 6 August 2020, and he must have seen the osteopath after work that day.[35] He did not tell the osteopath he had been working all day and his neck really hurt, because that appointment was just a follow-up treatment from the Monday. That note looked like it was “pretty much copy and paste” from 3 August 2020.[36]
[35]T44
[36]T37
44The pain did go away after the 3 August 2020 visit until the accident. He was serious about that evidence. The notes were the same on 3 and 6 August 2020, but that was not what happened.[37]
[37]T59
45The appointment on 6 August 2020 was just a follow-up from the 3 August visit, after which the osteopath wanted to see him in a few days. He went for a follow-up on 6 August 2020, having recovered after the 3 August visit.[38]
[38]T60
46He did remember telling the osteopath on 6 August 2020 that he was feeling better.[39] The note of 6 August 2020 was wrong, because he was feeling better. That was what happened, because he was working.[40]
[39]T61
[40]T62
47He confirmed his pay records indicated up until 23 June 2020 he had taken sick or personal leave totalling $634.46 at a time when his base salary was $1,438 per week.[41]
[41]T39
48He disagreed he had played down his problems with his neck and back before the accident – “It wasn’t that bad, so that is just from me”.[42]
[42]T88
49He disagreed that his spinal problems, particularly his neck, was so bad the week before the accident that he might not have been able to work as a steel fixer on the rails anymore anyway.[43]
[43]T89
50He now has a lot of restrictions with his spine, where before the accident he had none: “I was working, was enjoying life, I was happy and yeah, I can go on. I had no restrictions at all where now I find myself, I’ve got a lot of restrictions.”[44]
[44]T97
The accident
51On the said date, the plaintiff was driving to his father-in-law’s fish and chip shop to meet his cousin. He had taken the day off work because his cousin was doing some electrical work at the shop and the plaintiff had organised to do some work with security cameras being installed there.[45]
[45]T46
52The plaintiff was waiting in his car at a set of traffic lights when he heard a loud bang, and his car was pushed from behind into the car in front (“the accident”). He remembered immediately feeling a bit light-headed and dazed or shocked. He was able to get out of the car, and remembered moving his car off to the side.
53His cousin, who lived nearby, came to the scene. The plaintiff drove to his cousin’s house and rested there for an hour or so before driving his car home.
54The plaintiff agreed it was a low-impact collision. No airbags were deployed, and he was wearing his seatbelt. He was able to move his car to the side of the road and drive it to his cousin’s house after the accident, and then drive it home – a drive of probably 15 minutes.[46]
[46]T51
55After the accident, he had some neck pain, headaches, and a “weird sensation” down his right arm from his elbow to his fingers.
56He saw his osteopath the next day. He thought he could just get a massage and everything would be all right. When told the osteopath recorded he had put gel on his neck, the plaintiff agreed that was exactly what the osteopath had done on 6 August.[47]
[47]T52
57His osteopath referred him to a nearby GP in Albert Street, Preston,[48] who prescribed some cortisone tablets, Tramadol, and Valium, and told him to rest. He tried that for a few days, but when that did not help he went to see his usual GP, Dr Chin, at Brunswick Community Clinic.
[48]Plaintiff had seen this GP once in 2015
Post accident work
58The accident happened on a Wednesday afternoon, and he took Thursday and Friday off.[49]
[49]T45
59After the accident, he did not work a full day. He went to work, but they were “rained off” and were sent home, he thought the following Wednesday.[50] He went to work after the “rained out” day, and left after about an hour because “he could not do it, because the pain was really bad”.[51]
[50]T48
[51]T50
60His symptoms were getting worse, in that he was having more frequent headaches and the neck pain was radiating to his shoulders, and there was an ongoing sensation in his right arm with tingling. He had a number of scans and went to see a neurosurgeon, Dr Awad who referred him to Dr Mittal.
61He could not remember Dr Awad suggesting physiotherapy. All he could remember Dr Awad saying was that there was no need for any surgery and he referred him to a pain specialist. He could not recall talking to him about a return to work.[52]
[52]T63
62Dr Mittal tried some different medications over the following months. The plaintiff then had an ultrasound of his right shoulder, which Dr Mittal believed showed some bursitis. He had a cortisone injection in the shoulder, but that did not relieve his neck pain or pain down his arm.
63As he was continuing to struggle physically, about six to nine months after the accident, he found he was starting to struggle mentally, and then started to see a psychologist, Ms Lee.
64He did a pain-management program through Precision Ascend. Because of COVID, he attended some of the program and also did some sessions via Zoom.
65He then had medial branch blocks in his neck with Dr Mittal. She recommended a neurotomy, funding for which had rejected by the TAC. He had been told that procedure would cost thousands of dollars and it was very expensive. He would have done it if funding had been given.[53]
[53]T66
66He could remember having nerve conduction studies.[54]
[54]T64
67As of mid-July 2023, he was seeing his osteopath every few weeks, and seeing his GP for medication. He was taking Gabapentin and Palexia. He was trying to do home exercises, physiotherapy and hydrotherapy, but found that difficult. Some days he had flare-ups, and other days his mood was too low and he did not feel motivated and could not bring himself to leave the house.
68His mental health had become an increasing problem, and in late 2022, he started to see a psychiatrist, Dr Pinto, who prescribed Stilnox for sleep and Duloxetine, initially 180 milligrams, but reduced to 120 milligrams.
69He then stopped taking Stilnox, and recently had started Temazepam. He was also prescribed mirtazapine, which he took nightly. He was seeing his psychiatrist once a month, and also continued to see Ms Lee weekly.
70At that time, he was continuing to struggle physically and emotionally. He had ongoing symptoms in his neck. There was an ache there most of the time. He had flare ups most days. The pain radiated out to his shoulders, particularly the right. His medication was helping the pain a little bit. He had been getting ongoing headaches since the accident, almost daily. Sometimes they lasted for only half an hour and at other times they were more like migraines.
71He had found that since he stopped working his lower back seemed to seize up, and he could get some lower back pain.
72His neck pain with headaches, together with his mood, were his main problems, and affected him in a lot of different ways.
73He felt like he did not do very much. He had tried Pilates and a gym membership, but had only used them a little. He had not been able to train at the gym like he used to. He could not do gardening, which he previously enjoyed. He had problems with his sleep. He had withdrawn socially.
74He used to look forward to going to watch Essendon, but had only been to the football a handful of times since the accident. He had been “dragged along” by his brother, but it was a great effort to go.
75He has not been to the football more than three or four times since the accident. While his Essendon membership records show twelve attendances in 2021 and six matches in 2023 and 2024, other members of his family had used his ticket after he had requested permission from the Club.[55]
[55]T82
76He really struggled to spend quality time with his young children.
77His relationship with his wife was not what it used to be in terms of their intimate relations. They no longer went holidaying like they used to.
78There had been some improvement in his mood symptoms with Stilnox and Duloxetine. He had really struggled to get himself out of the house, but that year he had been able to force himself to do a little bit more. He sometimes took his daughter to child care up the road, and pushed himself to go to the shops and go for a walk every day. While there had been a bit of an improvement, most of the time he found himself feeling miserable, and had found it really difficult to get enjoyment out of life.
79He went back to visit his workmates once or twice but had not been able to return to his old job.
80In the months after the accident, he went to his father-in-law’s fish and chip shop a few times for a change of scenery and to get out of the house. He might have taken a couple of phone orders. He has never worked the till or out the back of the shop.[56]
[56]T86
81His GP had told him that he was unlikely to get back to working as a steel fixer, and that had been really difficult for him, as he enjoyed the work. There was little he could do otherwise, lacking computer skills. That situation made him very anxious.
82He was worried about how he was going to provide for his family. He was going backwards, and, rather than saving to buy a house, he was using up his savings because he was not working.
83He always thought about how his life was before the accident and then judged and compared everything with that.
84As at January 2025,[57] he was still seeing his GP on average once a fortnight. Dr Chin had recently retired, so he saw Dr Sheaar at the same clinic. He now sees him monthly.[58]
[57]31 January 2025 affidavit
[58] 22 August 2025 affidavit
85He was seeing his osteopath once every two to three months, funded by the TAC, but he now pays for monthly treatment himself.
86He continues to see his psychologist on weekly basis as she has offered. That treatment is now being funded under a mental health care plan through Medicare. He intends to spread out his ten visits[59]
[59]T91
87His appointments with his psychiatrist are on Telehealth. Dr Pinto is based in Berwick, 58 kilometres from the plaintiff’s home. The plaintiff sees him as he was unable to find a local psychiatrist.[60]
[60]T72
88He is taking Palexia SR, 100 milligrams twice daily; Palexia IR, 50 milligrams as needed during flare-ups – sometimes three to four times a week; Gabapentin 600 milligrams, three times a day; Duloxetine, 60 milligrams, twice daily; mirtazapine recently increased to 60 milligrams from 45 milligrams, once daily, and Temazepam, five days on, five days off.
89He has not recently considered reducing his medication. He does not take over-the-counter medication like Panadol and Nurofen, and is relying on Gabapentin. The side effects had not really decreased as he had become accustomed to taking this medication. Gabapentin is one of the drugs that causes drowsiness and loss of concentration.[61] The drowsiness or lack of concentration from the tablets stops him driving for long periods.[62]
[61]T71
[62]T72
90Anti-depressants were having a positive effect “to an extent.”[63] He is taking 120 milligrams of Duloxetine. It has a lot of impact on his ability to communicate. He has not been able to conduct himself over the past few years without requiring that level of medication, and there is no indication from his psychiatrist that he intends to wean him off. He has been left at that level because he is not getting any improvement.[64]
[63] T90
[64]T92
Work
91He had not returned to his pre-injury work as a steel fixer, as he could not do those duties due to persistent neck pain, mainly, and separately his back. Physically he was no longer capable of doing that job.
92He had engaged with a job provider through the TAC to explore return-to-work options, and they suggested he undertake a course, but because of his pain and his difficulty in focusing and concentrating because of his medication he was unable to participate in it.
93He is uneducated and does not hold any formal qualifications, and has only ever done manual work. He was uncertain about what he could realistically do. He was not suited to office work, and his entire work life had involved using his hands and doing manual labour.
94He only knew how to turn a computer on and off. He had an interest in doing a computer course, but had not taken any steps to do so.[65]
[65]T86
95He has been thinking about retraining, but he has not done anything. He agreed he told Dr Walterfang he might be interested in health and safety and would like to do an OH&S course if it were offered to him.[66]
[66]T87
96He could not do unskilled work like a light packer because of his neck pain and also his mental state.[67]
[67]T88
97He could not remember Dr Pinto discussing his work capacity. He had basically done manual work all his life and did not continue the electrical apprenticeship because he could not do the schooling. He can read, but not all words, such as long words.[68]
[68]T93
98In combination, his medications affect his ability to concentrate and perform tasks reliably. He gets drowsy a lot. Days when he is not drowsy are very rare, as he is drowsy most days. He would not be reliable at all to turn up for a job.[69]
[69]T94
99Save for WorkFocus helping him do a resume three or four years ago, there has not really been any engagement with the TAC in terms of retraining since. He is hoping to get back to work after the case finishes.[70]
[70]T95, T89
100Before the accident, no condition of his neck or back restricted his capacity for work in any way at all. He did not have to be protected or supported by coworkers.[71]
[71]T96
Activities
101Pre-accident, he attended various gyms, including Goodlife and Derrimut four days a week. He was able to lift 30 to 35-kilogram dumbbells but had been unable to do so since the accident.
102He attended the gym during the TAC funded osteopath’s program in maybe 2020, 2021, but he was not getting any improvement, so he stopped. He had done Pilates “for a little bit”.[72] For the last three years or so he has not done any physical exercise and has become deconditioned. He disagreed with Mr Siu’s observation that he was very muscular.[73] He denied he was much more active than he would have the Court believe, based on Mr Siu’s comments.[74]
[72]T76
[73]T84
[74]T89
103His father-in-law had built raised garden beds for him, which he could manage to look after a little bit, but his capacity to garden overall was limited.
104He frequently felt foggy and disconnected due to medication, leaving him feeling not entirely present.
105In terms of daily activities, he might go to the shops every now and then with his wife. She works from home doing “gift boxes of sweets and stuff like that”.
106He dresses, showers and toilets himself as usual, and can do some light housework and limited gardening.[75]
[75]T76
107He keeps forcing himself to do more where he can. He is slowly resuming driving, but prefers to keep short distances such as taking the children to school or his son to training, or going to the doctor.
108His standing tolerance is a bit different every day. His neck pain affects his ability to walk, because he gets a headache and light-headed and dizziness.[76]
[76]T74
Progress
109As at January 2025, while he had noticed some improvement with his treatment, it had been some four and a half years since the accident, and he was not like he was before. He remained significantly impacted by the accident, both physically and emotionally, and lived with pain and restrictions daily. His mood was up and down. He was sad and depressed. He felt embarrassed to be that way, and that he was no longer able to be “like other dads” to his children. His life had completely changed since the accident and his injuries.
110It is hard to say whether his pain had improved, because he had been taking medication to help with it. His neck is the main problem. His back is a problem from time to time, with a bit of intermittent pain now and then. He could not remember telling Dr Walterfang, on examination last year, that his pain was less overall.[77]
[77]T73
111The pain medication softens his condition.[78]
[78]T74
112He agreed he told Dr Pinto about some improvement in his mood at the end of last year. He felt good some days, and could drive to doctors’ appointments, but his mood was still up and down, and he did have some terrible days.
113He agreed he told Dr Walterfang late last year that the panic had stopped, and he did not have any flashbacks or nightmares, and his mood had moderately improved.[79] He has had maybe three or four panic attacks this year, when he gets sweaty and tight-chested.[80]
[79]T77
[80]T78
History to examiners
114The plaintiff did not tell Dr Chin he was seeing an osteopath before the accident because he knew he was seeing one.[81] He told Dr Chin he used to see an osteopath, more for a “bit of a service and tune-up”, due to the nature of his job, nothing else.[82] It was not a problem that affected his ability to work.[83]
[81]T53-54
[82]T58
[83]T55
115He denied that he went out of his way to tell Dr Chin he had not neck and low back pain before the accident, because it was not pain. It was not stopping him from working. Even if he had that little tightness in his back, he still classified himself as “pretty fit”. He had never had neck pain before the accident.[84]
[84]T57
116When he first saw Dr Mittal, he told her had been seeing an osteopath before the accident.[85]
[85]T64
117He agreed he did not tell neurologist Mr Ng, to whom he was referred by Dr Mittal, anything about any symptoms in his neck, right arm, or low back before the accident, and that the true picture was that he had symptoms in his neck and also right arm before.[86]
[86]T67
118The plaintiff agreed he did not tell Dr Awad anything about treatment to his neck or back before the accident.[87]
[87]T63
119He confirmed the history taken by Dr Horsley and that he told her osteopathic treatment before the accident was maintenance.[88]
[88]T69
120He agreed he told Mr Khan that he had not any significant medical problems before the accident. He told Dr Jong he had not had any significant neck or shoulder problems before the accident because “to me it wasn’t an injury.” [89]
[89]T70
Lay evidence
121The plaintiff’s wife, Etedal Souleiman, affirmed an affidavit on 31 January 2025. She is now thirty-five, and runs a small business from home. They have known each other since 2013 and have been married since February 2015.
122The plaintiff was a completely different person before the accident, both physically and psychologically. He was “hands on” working as a steel fixer, always working overtime, helping with household chores and with the children, loving spending time as a family.
123Before the accident, the plaintiff had pain from time to time because of his work, but it never held him back from coming home and playing with the children.
124The plaintiff used to love the football, whether it was having a kick with the children or going to Essendon games. She was now the one who took the children to the football so they can still enjoy it.
125The plaintiff used to be very social, and was the life of the party, but now he has such a low mood so consistently.
126The vegetable patch in the backyard is nothing compared to what it was before. She does a lot more around the house, to say the least.
127All those factors have put a massive strain on their relationship. They were madly in love before the accident and living what they felt was like an extended honeymoon.
128The accident changed the plaintiff’s life, and he found it embarrassing that she had to take control of household affairs and get help from her father.
129The plaintiff had never had issues with sleep before the accident, but now he awakes in pain. She worries about him and his future, and does not know what is in store for him.
Treaters
Dr Chin, general practitioner
130Dr Chin’s June 2023 report detailed the plaintiff’s treatment for his accident-related ongoing neck and low back pain and psychiatric issues.
131He diagnosed musculoligamentous sprain to the cervical and lumbar spine with intermittent right C7 nerve root irritation and depression. The prognosis remained guarded, given the persistence of the spinal pain. The plaintiff would probably experience flare-ups from time to time.
132The accident resulted in the plaintiff suffering from his neck and lower back pain. He had not had a problem with either prior to the accident that he was aware of.
133It was unlikely the plaintiff would be able to return to his pre-injury employment as a steel fixer, as he continued to experience neck and low back pain. He may be able to do a desk job, but that was unlikely due to his limited education.
134The injury had resulted in the plaintiff feeling depressed and angry. He suffered from continuing insomnia and had low self-esteem. His libido was impaired, and he was withdrawn at times.
Dr Jarrod Alivizatos, osteopath
135Dr Alivizatos first reported on 4 June 2024, having been treating the plaintiff since 30 December 2014.
136The plaintiff initially complained of lower back stiffness which was successfully treated with soft tissue and joint mobilisation. On subsequent visits, he presented with recurring back stiffness which was managed through similar treatment plans and exercises. Despite these symptoms, the plaintiff remained proactive in managing his condition and maintain good spinal function, allowing him to continue working effectively.
137The findings on the 24 August 2020 MRI scan, after the accident, were consistent with the disc irritation observed. Based on the MRI findings and the plaintiff’s symptoms, it was evident that the clinical picture could in fact be related to the accident. The MRI scan demonstrated pathology in the affected areas which aligned with the whiplash trauma commonly associated with car accidents.
138Prior to the accident, the plaintiff exhibited minimal lower back and cervical spine symptoms, with a slight reduction in mobility and surrounding muscular hypotonia. Manual therapy and soft tissue work were highly effective in addressing those symptoms and the plaintiff experienced a full range of motion and normal muscle tone afterwards. Discomfort was also reduced.
139Post accident, the plaintiff now presented with limited side bending bilaterally and extension in the lumbar and cervical spine; a positive quadrant test indicating facet joint irritation bilaterally at both levels; tightness in the upper trapezius and restricted passive joint movement. These symptoms persisted, even after therapy, indicating a significant change from the pre-accident state. Range of motion was visibly reduced and muscle tone remained hypotonic, which was consistent with the accident trauma.
140Commenting on Dr Slesenger’s findings that there had been a return of spinal function to pre injury state, he noted that, when treating the plaintiff pre-injury, the plaintiff would present with reduced cervical and lumbar spine range of motion with surrounding muscular tightness. He would address these findings with soft tissue work on hypotonic musculature and gentle joint mobilisation. The plaintiff would display normal range of motion and normal tone of surrounding muscles after consultation.
141Post accident, the plaintiff would present with more pain on palpation of the cervical and lumbar spine, significantly less range of motion, especially in side bending, and positive bilateral quadrant tests at both levels.
142After delivering manual therapy, he would find that the plaintiff would still have restricted range of motion and hypotonia of the surrounding musculature and pain would also persist.
143In comparing pre and post-accident treatment, the plaintiff would only improve in these areas by approximately 50 per cent; however, this would still assist him in functioning day to day. Based on this, it would be difficult to say the plaintiff’s symptoms had reduced to a pre-injury state.
144In conclusion, the plaintiff’s injuries and clinical presentation could be considered to be consistent with a whiplash injury, such as what occurred in the accident.
145His next report, undated, set out the following:
“… [The plaintiff’s] neck condition prior to treatment was significant in that it would affect his day to day life. On the 3rd of August and the 6th of August, 2020, the [plaintiff] complained of a headache and a severe acute pain respectively. After treatment, the … [plaintiff] reported an improvement in symptoms and did not require a follow up until the 13th of August, 2020, where in the [plaintiff] reported of a motor vehicle accident in which he was rear ended.”
146Post accident, he assessed and treated the plaintiff for cervical spine symptoms, which did not show the same level of improvement as the acute presentations earlier on 3 and 6 August 2020 respectively.
147Unfortunately, it was difficult to say whether or not the accident was a material cause to the production, aggravation, acceleration or exacerbation of the injury due to the presence of symptoms prior thereto.
148He thought it not feasible to say with concrete certainty whether or not the symptoms that the plaintiff was suffering from are accident related. There appeared to be evidence for both and he was unable to say which it was.
149The plaintiff ceased treatment on 1 October 2024.
150In his 20 August 2025 report, he noted the plaintiff’s attendances on 3 and 6 August 2020 with headache and neck pain, both of which effected him to seek treatment. After initial treatment, symptoms improved substantially and a follow-up was not required until 13 August 2020.
151While the plaintiff presented with cervical spine symptoms prior to the accident, the timing of his deterioration immediately thereafter suggested that the accident was at least a cause in the production, aggravation, acceleration or exacerbation of his neck or lower back symptoms.
152It was reasonable to conclude that the accident contributed in part to the plaintiff’s physical injury, although the existence of pre-accident symptoms meant he could not state it was the only cause. There was evidence suggesting the accident played a contributory role in the persistence and possible worsening of the plaintiff’s symptoms post accident compared to pre accident.
153The accident was a cause, though not necessarily the sole or predominant cause, in the development and/or worsening of the plaintiff’s neck and lower back complaints.
Dr Meena Mittal, pain specialist
154Dr Meena Mittal first saw the plaintiff in December 2020, having been referred by neurosurgeon, Mr Awad.
155The plaintiff then complained of pain throughout the cervical spine, which he described as a tightness associated with occipital headaches. There was lower back pain present in the lower lumber spine in a belt like distribution. There was bilateral arm pain, being more predominant on the right and intermittent.
156Under medical history, she noted “Nil other relevant”.
157The cervical spine examination revealed some fear avoidance behaviour with restricted left lateral rotation, flexion and extension. There was obvious bilateral paravertebral muscle spasm and mid trapezius muscle spasm. Upper neurological examination did not reveal any evidence of radiculopathy. There was some restriction of lumbar movement.
158The presenting sources of pain were neck pain secondary to whiplash injury, which was mostly paravertebral muscle spasm. There could be an underlying component of facet joint pain and/or cervicogenic headaches, lumbar spine pain was mostly myofascial plus and/or facet joint pain and bilateral upper limb pain was mostly referred pain from the cervical spine.
159She suggested an increase of Nortriptyline to 50 milligrams and further investigations of the spine and right shoulder.
160She detailed numerous appointments and examinations thereafter, including a rejection from the TAC in February 2022 for bilateral cervical medial branch radiofrequency neurotomy.
161The plaintiff was last seen on 14 September 2022.
162She diagnosed neck pain secondary to whiplash injury, which is essentially a combination of myofascial spasm and facet joint pain. The plaintiff has had a positive diagnostic test to cervical C2-3, C3-4 and C4-5 medial branch blocks, which would indicate pain originating from the facet joints; headaches are cervicogenic in nature; the right shoulder pain is secondary to right shoulder bursitis; the cause of the right upper limb has been difficult to determine specifically and lower back pain secondary to myofascial spasm. There may be an underlying element of facet joint pain.
163The prognosis was guarded.
164She believed the accident was a material cause of the development of whiplash injury and myofascial spinal facet joint pain, noting the plaintiff did not have any significant pre-existing injuries or significant pathology prior to the accident.
165Dr Mittal provided a further report on 13 September 2025, having been provided with the osteopath’s notes.
166She noted the 3 and 6 August 2020 attendances and commented that the frequency of treatment following the accident dramatically increased. It was obvious from the documentation the plaintiff was struggling to manage his neck and lower back pain and there was a significant aggravation of his pre-existing intermittent lower back pain.
167As a result of the accident, the plaintiff suffered an exacerbation of pre-existing mildly symptomatic cervical and lumbar spondylosis.
168Pre accident, those pains did not interfere with his ability to work or day to day activity and the plaintiff was reliant on intermittent simple analgesic medications and intermittent osteopathy. Post accident, there had been a significant exacerbation of the axial spondylosis resulting in persisting neck pain and occipital headaches, and upper limb pain, as well persistent lower back pain. As a result, the accident was a significant contributing factor to his current situation, having markedly changed the course of his pre-existing cervical and lumbar spondylosis.
Investigations
169The plaintiff had an MRI scan, organised by his osteopath, on 10 September 2020. It was reported there was a broad-based posterior disc bulge at L5-S1 just contacting the bilateral descending S1 nerve roots. No other potential neural compromise was seen. There were mild interspinous degenerative changes at L4-5 and L5-S1.
170Following a weight bearing cervical MRI scan on 1 February 2021, it was reported there was mild broad-based posterior central disc bulging at C3-4, 4-5, 5-6 and 6-7 levels, with mild left neural foraminal narrowing at C3-4. However, there was no convincing evidence of compressive radiculopathy at any level, and no focal disc herniation or significant central spinal canal stenosis. Alignment appeared satisfactory. Further evaluation by conventional MRI scan was advised if there was ongoing concern.
171Following a lumbar MRI scan on 2 May 2022, it was reported there was mild disc bulging of L2-L3 and L3-L4 discs, with minimal bulging at L1-L2 and L5-S1. There was no significant central canal compromise, and no exiting neural compression.
172There was an MRI scan of the cervical spine on 3 June 2022. It was reported there was low-grade mid to upper cervical desiccation; shallow right paracentral protrusion at C5-6, which contacts but does not flatten the right hemi cord or budding right C6 nerve; mild to moderate degenerative left foraminal stenosis at C3-4; and no high grade stenoses or definitive neural impingement.
Medico-legal evidence
Dr Saleem Khan, consultant in rehabilitation and pain medicine
173Dr Khan first examined the plaintiff on 25 May 2023.
174He noted a normal lumbosacral x-ray of 29 May 2015. “Past medical history” was “Nil significant medical issues”.
175The plaintiff then complained of pain, aching and throbbing in the neck and bilateral shoulders. He had intermittent occipital headaches. He had intermittent lower back pain with radiation up the back. Neck pain was worse than back pain.
176The plaintiff worked pre accident forty to sixty hours a week and that work involved lifting 40 to 50-kilogram bars. He attempted to return to work a week after the accident, but lasted an hour and was stopped by burning neck and mid back pain. At that stage, he was liaising with Work Focus.
177On examination, neck flexion and rotation to the right was restricted due to pain. There was an active lumbar spine range of movement, with tenderness in the lumbar spine.
178The accident led to persistent cervicogenic headaches, persistent facetogenic neck pain, persistent bilateral neuropathic upper limb pain and persistent somatic lumbar back pain.
179The plaintiff had developed persistent pain involving his neck, upper limbs and lower lumbar spine. There appeared to be a degree of central sensitisation with somatic and neuropathic pain features.
180According to the information provided, and his assessment, the condition was a result of the accident. Based on these factors, the plaintiff did not have a pre-injury work capacity. He could not return to pre-injury duties as a steel fixer.
181The plaintiff also had a substantial prescription of pain and mood medications as a result of which he suffered side effects of brain fog and difficulty concentrating, which would pose a safety risk for return to work.
182Considering these factors, the plaintiff had no meaningful capacity for suitable future employment and that was likely to remain for the foreseeable future.
183Dr Khan re examined the plaintiff on 5 December 2024. He was provided with the osteopath’s June 2024 report and reports from Dr Horsley, Dr Slesenger and Mr Sui.
184On re examination, the plaintiff rated his pain overall at 5/10 on average. He complained of pain, aching and throbbing in the neck and bilateral shoulders, intermittent occipital headaches and intermittent lower back pain. He did not exhibit any abnormal pain behaviour at rest.
185Vocationally, the plaintiff had not been able to return to pre-injury work as a steel fixer. He intimated he would never be able to do that, but said he had liaised with his occupational rehabilitation provider and had prepared a résumé. It had been suggested he do a computer course, but he had been unable to attend due to his pain condition.
186After re-assessing the plaintiff, he thought his pain condition and associated impairments and disability had not resolved.
187There was clinical and radiological evidence for the plaintiff’s organic injuries.
188According to his information and assessment, the current condition was as a result of the accident, noting the plaintiff was a fit and well thirty-four-year-old man with no injuries or pain condition prior thereto. The plaintiff cannot return to pre-injury duties as a steel fixer. He repeated his comments about the substantial prescription of pain medication, and brain fog and difficulty concentrating, resulting in no meaningful capacity for employment for the foreseeable future.
189Dr Khan re-examined the plaintiff on 12 June 2025. The plaintiff’s pain condition remained in a status quo.
190The plaintiff reported pain, aching and throbbing in the neck and bilateral shoulders, with intermittent occipital headaches and intermittent lower back pain.
191The sequelae of the plaintiff’s neck and lumbar injuries have not resolved and he continues to be limited by persistent pain in those regions, with resultant impairment of function.
192There were organic causes for the plaintiff’s Chronic Pain Syndrome. He did not witness any inconsistencies or non-organic behaviour during his assessments.
193The accident caused a significant aggravation of the plaintiff’s pre-existing cervical and lumbar spine pain. The plaintiff had reported intermittent neck and lower back pain from about 2015 onwards and that continued to the accident. The degree of pain prior thereto was of relatively mild to moderate severity and did not significantly hamper his personal activities of daily living or interrupt his ability to keep working.
194When asked about the osteopath’s note on 3 August that the plaintiff could not work, the plaintiff said his cervical spine pain did not stop him working any work days and he was able to go to the osteopath on his RDOs, rather than taking sick leave.
195Having looked at the osteopath’s notes, it emerged that the accident caused a significant aggravation of pre-existing neck and lower back pain- a significant increase in the severity and persistence of the plaintiff’s neck and low back pain after the accident, there was prominent mention of muscle tightness and reduction in cervical and lumbar spine range of motion following the accident, the plaintiff was referred for advanced imaging following the accident including MRI and CT scans whereas prior to the accident he had a lumbar x ray in 2015, the plaintiff was unable to return to work following the accident whereas previously his work duties were not interrupted by his pre existing neck and low back pain.
196The plaintiff cannot return to pre-injury duties as a steel fixer on a physical basis, given the heavy nature of the work and he has a substantial prescription of pain and mood medications. He has no capacity for future employment and would have difficultly finding employment in the open market due to these impairments and his injured worker status.
Dr Robyn Horsley, occupational physician
197Dr Horsley examined the plaintiff on 21 June 2023.
198The plaintiff explained that, as a steel fixer, he first experienced a “sore back” with discomfort in his bilateral hips, with no specific event, in about 2015. He consulted an osteopath. The pain settled after two to three days. He went back to full duties, but the osteopath recommended maintenance treatment three to four times a year, which the plaintiff continued until the accident.
199The plaintiff complained of ongoing symptoms in the neck, bilateral shoulders and lower back and headaches on a daily basis. Neck movement was restricted. His back felt as though it had seized up and there was a general tightness that was not really pain.
200On examination, cervical movement was restricted secondary to fear avoidance.
201The plaintiff was involved in an accident. He presented with intermittent mechanical back and right shoulder pain, an MRI scan in December 2020 confirmed a posterior disc bulge at L5-S1, with no significant neural compromise. The cervical MRI scan in September 2020 suggested a C6/7 right paracentral annular fissure and disc protrusion with no high-grade impingement.
202In terms of neuropathy, on clinical presentation there was mild persistent and altered sensation over the right biceps and a reduction in forearm circumference on the right.
203A Beck Depression Inventory gave a score of 43, suggestive of severe depression, with no suicidal ideation. Other testing suggested severe anxiety.
204The plaintiff had developed a Chronic Pain Syndrome. There appeared to be a significant psychiatric disability based on testing and the plaintiff’s regular consultations with treaters.
205The plaintiff was certainly unfit to return to his previous role as a steel fixer, the physical demands being beyond his physical capacity. He has become deeply deconditioned. He was heading down the path of chronic invalidity based on his presentation.
206The plaintiff had sustained soft tissue injuries to the cervical and lumbar spine, but had gone on to develop a Chronic Pain Syndrome with mental health issues.
207The plaintiff was unable to return to work as a steel fixer. He also had quite significant literacy issues, no computer skills and no non-physical qualifications. He was only thirty-six and had been out of the workforce for three years. He required proactive vocational rehabilitation management in consultation with his psychiatrist and psychologist.
208The plaintiff presented with no realistic capacity for work on the basis of his reduced functional tolerances and overall presentation. His long-term prognosis for work was dependent on his mental health improving, with improved concentration, attention span and motivation to improve functional tolerances. She relied on psychiatric expert opinion.
209On physical grounds alone, the plaintiff was unable to return to steel fixing. He needed to increase his functional tolerances. Any return to work would need to be on a graduated basis, initially up to fifteen to twenty hours per week with a range of restrictions and then see how he coped. That would have to be approved by his psychological treaters.
Dr Domenic Yong, occupational physician
210Dr Yong examined the plaintiff in January 2025.
211The plaintiff then reported neck pain radiating into his right shoulder and down his arm, headaches at the back and front of his head, occasional numbness of his fourth and fifth fingers and pain and stiffness in the lower back, lesser than the neck pain.
212The plaintiff said he had had no previous significant neck, shoulder, elbow or hand condition. In 2015, he had a niggly pain in his back and saw an osteopath, and had been doing so since then a few times a year for feelings of tightness. He said, during that time, the tightness feeling had not been painful and had not led to any significant time off work.
213On examination of the cervical spine, there was tenderness to palpation and restriction of movement.
214The plaintiff sustained a cervical spine soft tissue injury with persisting cervical spine dysfunction and radicular features. He also had a lumbosacral spine soft tissue injury which was improving and largely resolved. His physical conditions had been complicated by a psychological comorbidity which can impact on the recovery of his physical symptoms.
215The prognosis in relation to the plaintiff’s cervical spine was guarded, but should be good in relation to the back.
216The mechanism of the accident injury could reasonably lead to the onset of the cervical and lumbosacral spine conditions and therefore they are related, in the sense that the accident was a material cause of the production of the cervical and lumbosacral conditions.
217He had a different view to Mr Siu. Clinical findings can differ on different days.
218Taking into account physical conditions alone in terms of the neck, the plaintiff could do light duties with a reduction in working hours, noting, given the injuries, reduced tolerances, occupational history, Year 10 education, the absence of a return to work plan, his young age, residence in Preston, fluctuating nature of his symptoms and the side effects of his medication and the prognosis of the neck condition, he had no current capacity to perform suitable employment.
219Dr Yong provided a further report in July 2025, having been given the osteopath’s notes which he referred to in his report.
220He concluded it appeared there were pre-existing spine symptoms and the accident led to increased symptoms and clinical features in the neck and back.
221An increase of those symptoms and clinical features occurred soon after the accident. The accident could reasonably lead to the increase of spinal symptoms and the clinical features.
222Therefore, they are accident related in the sense that the accident was a material cause to the increase of spinal symptoms and clinical features, which was an aggravation of the cervical and lumbosacral spine injury.
Professor Paul D’Urso, neurosurgeon
223Professor D’Urso examined the plaintiff in July 2025.
224While not mentioning any pre-accident spinal issues, Professor D’Urso was provided with the osteopath’s June 2024 report.
225The plaintiff reported suffering from chronic throbbing neck pain which he rated at 5/10 daily, radiating into his right shoulder. He had regular headaches that could be up to 6.5/10 and affected his concentration. He also described intermittent back pain.
226On examination, cervical movement was restricted to 75 per cent of normal in right rotation and in other directions, it was 85 per cent of normal.
227The plaintiff suffered a whiplash injury as a consequence of the accident. That injury is likely to have caused the C6-7 prolapse and aggravated degenerative findings at C3-4. The plaintiff had gone on to develop a chronic pain presentation with secondary adjustment disorder.
228The plaintiff has persisting disability and incapacity as a result of his accident injuries. There was evidence of degenerative change. The plaintiff had developed a secondary chronic pain presentation and a degree of adjustment disorder as a consequence of the accident. His injuries have not resolved at this time.
229On balance the C6-7 prolapse was a consequence of the accident and the accident caused an aggravation of degenerative findings at C3-4. The abnormalities in the lumbar spine are likely to have preceded the accident, but could well have been aggravated by it, therefore there is an organic basis to the plaintiff’s presentation.
230Limitations on heavy repetitive work were appropriate for the foreseeable future. The plaintiff had developed chronic disability and incapacity and it would be recommended he return to part time work, with restrictions, up to twenty hours per week. He would require significant vocational training.
Psychiatric evidence
Treaters
Ms Maria-Jayne Lee, psychologist
231The plaintiff was referred to Ms Lee on 14 May 2021 by Dr Chin.
232In her July 2023 report, she noted, since the injury, the plaintiff described a deterioration in his memory and concentration, with reported difficulty sleeping, regular migraines, feeling more tired than he used to and being less tolerant. He described feelings of guilt and depression because he could not play football with his son.
233The plaintiff then had no current capacity for work for the foreseeable future and it was unlikely he would gain the psychological capacity to work in the foreseeable future.
234The plaintiff met the criteria for Major Depressive Disorder severe and recurrent and Generalised Anxiety with panic attacks.
235Ms Lee’s next reported on 25 November 2024, by which time the plaintiff had seen her for eighty sessions funded by the TAC.
236Her views as to the plaintiffs’ work capacity were unchanged.
237The plaintiff’s current symptom profile met a current mental health diagnosis. His formal test results on the Depression Anxiety Stress Scale and the Post-Traumatic Stress Disorder indicated that his depression, anxiety and stress were in the extremely severe range and PTSD, while present for the initial six months of treatment criteria, was no longer met.
238The plaintiff’s prognosis was ongoing and he would continue to experience Major Depressive Disorder and Generalised Anxiety Disorder, which are chronic, and fluctuating in nature.
239In July 2025, Ms Lee updated the plaintiff’s situation.
240The plaintiff continues to meet the full criteria for Major Depressive Disorder, severe recurrent and chronic and Generalised Anxiety Disorder with panic attacks. His most recent psychometric testing indicates anxiety and depression in the extremely severe range.
241The plaintiff’s mental health conditions were stable, chronic and fluctuating in nature. His mental health injuries were perpetuated by his chronic and severe pain and it was directly related to the accident. The plaintiff has no capacity for work and is unlikely to gain capacity in the foreseeable future.
Dr Melvin Pinto, psychiatrist
242Dr Pinto first reported on 26 August 2023, having seen the plaintiff initially on 26 October 2022.
243When first seen, the plaintiff advised he was he was depressed and sad and he had been struggling for the previous year.
244The psychiatric assessment then was a major depressive disorder with post-traumatic features and a Chronic Pain Syndrome. The plaintiff was also now severely sexual dysfunctional. He had not experienced any features of those illnesses or psychiatric problems prior to the accident, therefore it could be concluded all his current psychiatric illnesses had their origin in the accident.
245The plaintiff also had severe pain and this was also a perpetuating factor in his psychiatric illness. He had been referred to a pain specialist at Precision.
246The plaintiff was then being treated with both antidepressant and hypnotic medication. He advised that the antidepressant Duloxetine, presently 120 milligrams a day, had only helped him a little. He had also been prescribed hypnotics, including melatonin and Zopiclone.
247The plaintiff longed to get back to his ordinary life and ordinary work life as previously. That was not going to be possible because of the damage to his spine.
248Dr Pinto next reported in December 2024. He was continuing to see the plaintiff for ongoing psychiatric review and treatment usually every four to five weeks.
249The plaintiff was then totally incapacitated, both as a result of his physical and psychiatric illnesses. He was unable to work in his former employment as a steel fixer, or in any other such employment in any part or full-time capacity.
250The plaintiff was suffering from chronic and severe psychiatric illnesses which will need ongoing and long-term psychiatric treatment with both a psychologist and psychiatrist. His psychiatric illnesses alone have affected all areas of his physical, mental and social functioning, including recreational activity.
251Dr Pinto last reported in June 2025. He continued to see the plaintiff about eight weekly.
252The plaintiff remains chronically mentally unwell and was totally incapacitated by his psychiatric problems alone. Further, he continues to have severe physical pain from his spinal problems which continue to affect all areas of life and are a perpetuating factor in his psychiatric illness.
253The plaintiff is now totally incapacitated and unable to perform his pre-injury employment or any other in a part of full-time capacity by reason of his accident related psychological/psychiatric conditions alone.
254There have been no changes in the plaintiff’s mental state since the last report. The plaintiff desperately wishes to return to some form of training or work, which Dr Pinto believed the plaintiff would not be capable of at this time or in the foreseeable future.
Medico-legal
Professor Mark Walterfang, consultant psychiatrist
255Professor Walterfang first examined the plaintiff on 14 July 2023.
256The plaintiff advised he first started to notice depressed mood some six to nine months earlier. He had issues with sleep, he struggled with motivation and enjoying life, he limited his social and family activities and had a significant problem with intimacy. He denied developing nightmares or flashbacks after the accident.
257The plaintiff described his mood had improved somewhat, perhaps 5/10, but he could have lower periods and he was much more withdrawn than he used to be.
258The main current issues were daily headaches from 7-10/10 and pain in the neck and around his shoulders was 5-8/10.
259The plaintiff had virtually given up all of his activities. His affect was quite restrictive and mood depressed, thought form and stream were normal.
260The plaintiff met the criteria for a major depressive disorder single episode in partial remission, given the induction of depressed mood most days, which occurred following the accident and had continued, and had been associated with changes in cognition and enjoyment, with low mood lasting for many days and being accompanied by diminished motivation and sleep disturbance. The plaintiff also met the criteria for panic disorder.
261Even if there were no physical limitations, the presence of the plaintiff’s current psychiatric symptoms, including regular panic attacks, low mood and motivation and poor concentration, certainly precluded him from undertaking any meaningful work. There were also significant restrictions on his capacity to undertake domestic, social and recreational pursuits.
262On re-examination on 29 November 2024, he had been provided with Dr Pinto’s notes.
263The plaintiff advised, with his current analgesic regime, his pain was less, overall 5-6/10 and he could have flare-ups.
264The plaintiff said his anxiety was better overall and the panic episodes had abated, with the last being perhaps six months ago. Sleep had improved with soporifics. His libido remained low.
265The plaintiff said he had started to think about retraining for work, having always done manual work in the past. He said he was interested in doing health and safety type work, or potentially office-based work, but acknowledged he needed significant retraining to achieve this.
266Mental state examination was similar to the previous examination.
267The plaintiff had made modest progress since last reviewed. His panic disorder was now in full remission and his major depressive disorder remained in partial remission, but there had been some improvement with ongoing treatment.
268The prognosis was fair and there had been some improvement with sustained treatment and an abatement of panic symptoms, and a moderate improvement in mood, and the plaintiff was now thinking more hopefully about a return to work in future.
269Looking at it from a psychiatric point of view alone, it would allow the plaintiff to undertake retraining and then a graduated return to work when adequate training had been completed. He noted Dr Slesenger did not consider the plaintiff’s psychiatric diagnosis, which was a key limitation of his report, and a suggestion the plaintiff was fully fit for work.
270Dr Walterfang re-examined the plaintiff on 10 July 2025.
271The plaintiff said, in the last nine months he had essentially continued on medication without change. He described his pain as manageable, mostly in the neck, but also ongoing tension headaches.
272The biggest driver of the plaintiff’s mental state remained his level of pain. His anxiety had improved overall, but he could still develop panic attacks.
273The plaintiff has largely remained stable since the last review and he continued to meet the criteria for major depressive disorder single episode in partial remission, in addition to panic attacks in partial remission.
274On a psychiatric basis alone, the plaintiff is currently unfit for any current employment. While he has expressed interest in undertaking some part time retraining and then considering a graduated return to work when adequate training has been completed, he did not believe the plaintiff is currently fit to undertake this and as a result remained totally incapacitated for his previous work.
Defendant’s medical evidence
Treaters
Dr Jarrod Alivizatos, osteopath
275The plaintiff first attended on 30 December 2014. On that visit and five visits during 2015, the lumbar spine was treated. There were no attendances in 2016.
276In 2017, there were three visits, two for neck treatment and one for the back.
277In 2018, the plaintiff had four visits for back treatment.
278In 2019, there were twelve visits – eight being treatment for the back alone, two for the neck and two for both neck and back.
279In mid 2020, there were two visits for back treatment. The next visits were for neck treatment on 3 and 6 August 2020.
280The plaintiff next attended on 13 August 2020. The osteopath noted the plaintiff had acute neck pain since the accident the previous day. The pain was rated at 8-9/10. It was also noted “consult GP to update the file and maybe prescribe stronger pain medication”.
281No notes of subsequent attendances were tendered.
Dr Mohammed Awad, neurosurgeon and spinal surgeon
282Dr Awad saw the plaintiff at Precision on referral from Dr Chin in November 2020.
283Looking at the plaintiff’s MRI scan of the cervical and lumbar spines, he thought things actually looked relatively well. There was no evidence of any nerve root compression in the cervical spine. The plaintiff had a very small C6-7-disc bulge encroaching upon the right side of the canal, but not causing any compression of any exiting nerve root. The rest of his neck looked well. He had a very small L5-S1 disc bulge, but no evidence of any nerve impingement.
284The plaintiff would just benefit from simple pain management and some physiotherapy and eventually should be able to get back to work.
Dr Ali Mehr, neurophysiologist and specialist rehabilitation physician
285Dr Mehr saw the plaintiff at Precision on referral from Dr Chin in March 2021.
286Clinical examination of the cervical spine showed some evidence of fear avoidance. There was some restriction of movement. There was obvious bilateral paravertebral muscle spasm with increased tenderness in the upper and mid-cervical spine. There was mild trapezius muscle spasm and tenderness. There was no evidence of radiculopathy.
287He agreed with Dr Awad that there was no evidence of nerve impingement. On the needle electromyography, there was evidence of mild C7 nerve root irritation.
Dr Felix Ng, neurologist
288Dr Ng saw the plaintiff at Precision on referral from Dr Mittal in July 2022.
289On examination, the plaintiff was a well looking muscular man, who was not in obvious pain.
290A potential explanation for the plaintiff’s symptoms included ulnar neuropathy or brachial plexopathy or C8 radiculopathy. He did not think carpal tunnel syndrome or C7 radiculopathy would explain the plaintiff’s symptoms. He requested further investigations and review in a month.
291He saw the plaintiff in September, noting the MRI scan of the brachial plexus had not shown a cervical root to explain the brachial plexopathy. The plaintiff had not had much improvement after the ultrasound-guided ulnar injection, other than that which was short lived.
292He thought it important to further exclude an ulnar neuropathy and requested an MRI scan along the course of the ulnar nerve.
Medico-legal
Dr Joseph Slesenger, occupational physician
293Dr Slesenger’s first examination was in March 2022.
294The plaintiff then complained of residual constant neck pain, mild to severe, with pain radiating to both shoulders, mostly on the right.
295The plaintiff advised he was seen by an osteopath for spinal alignment prior to the injury.
296On spinal examination, the plaintiff’s movements improved upon distraction.
297It was a very difficult question to answer what injuries were caused by the accident, but based upon the evidence, he was satisfied the plaintiff had suffered a soft-tissue injury to his cervical spine and chronic neck pain, and a psychological impairment, although that was outside his expertise. There was also evidence of a lumbar spinal injury, however he was concerned as to the continuity of any impairment, and taken as a whole he thought any soft tissue injury to the lumbar spine had, in the most part, resolved.
298He had reservations with regard to the plaintiff’s overall presentation, both on clinical examination and the previous existing relationship with his osteopath pre-injury.
299Taking the evidence as a whole, there was a functional element to the plaintiff’s presentation. His lumbar spinal impairment had in the most part resolved and his cervical impairment had in part resolved.
300On the evidence presented, the plaintiff could not return to his pre-injury role. With a range of restrictions he could return to work, initially four hours a day, four days a week, increasing to pre-injury hours over six to eight weeks. He could return to work in a light packing or light assembly role.
301On re-examination in February 2024, the plaintiff described residual neck pain with radiating pain into the occipital region, headaches, lower back pain, which had persisted although it was more intermittent and he advised of significant psychological symptoms.
302The plaintiff had not returned to work but had been supported by a return to work co-ordinator and was considering retraining. Computer retraining had been suggested, however the plaintiff advised he was unable to sit at a computer due to his headaches and neck pain.
303The osteopath’s reports were noted, including mild cervicogenic headaches on the visit in August 2020. He also summarised the contents of the clinical notes of the visits on 3 and 6 August 2020.
304The plaintiff continued to present with the residual axial spinal pain affecting his neck, mid-back and lower back. In addition, he advised that he had developed global body pain.
305He accepted the plaintiff appeared to have suffered cervical spine soft tissue injury, aggravating pre-existing cervical spine impairment, now resolved, and was presenting with chronic neck pain, now resolved. There was a soft tissue injury of the lumbar spine, aggravating degenerative disease of the lumbar spine, now resolved and presenting with chronic lower back pain that is resolved.
306There was a significant functional element to the plaintiff’s presentation and indeed that was the cause of his residual impairment, having again on examination found improved range of movement on distraction.
307The clinical records disclosed indicated the plaintiff had longstanding lower back pain predating the accident and also suffered severe neck pain in the accident. He was satisfied any residual axial spinal symptoms related to the plaintiff’s pre-injury status rather than the index accident.
308Based on the organic physical incident-related impairment alone, the plaintiff could return to his pre-injury role.
309The pre-injury osteopathic records indicated a significant impairment predating the accident. He also noted evidence of manual tasks being performed at the time of the previous evaluation, and this was the basis for his view that pre-existing axial spinal symptoms had in reality resolved when the plaintiff first seen.
310In any event, however, he advised against the plaintiff returning to his pre-injury role, given the manual handling and postural demands associated with the role. With restrictions, the plaintiff could return to work four hours a day, four days a week.
311The plaintiff retained capacity for suitable employment and he could return to work performing suitable alternative duties, although would require retraining assistance provided by a return to work co-ordinator.
312On re-examination on 13 January 2025, the plaintiff advised of residual neck pain and restricted range of movement in his neck and right shoulder. There had been a significant improvement in his right upper limb symptoms after the introduction of Gabapentin. He had residual lower back pain, which he described as a stiffness and tightness, which was mild and did not radiate into his lower limbs.
313There were similar findings on clinical examination to the earlier examinations. The plaintiff continued to present with residual axial spinal symptoms, with thoracic and upper limb radiating symptoms.
314Dr Slesenger confirmed his earlier diagnosis. His opinion had not changed since last seeing the plaintiff. He had taken into consideration the opinions outlined by other treating clinicians, in particular the osteopath.
315There was a degree of inconsistency between serial examinations by medico-legal assessors. The plaintiff advised of significant restriction to his spinal movements on recent examination, but these were noted to improve upon distraction and were inconsistent.
316On further re examination in August 2025, his opinion had not changed.
317While other examiners had different conclusions, he remained of the opinion the plaintiff had significant axial impairment predating the accident and these symptoms had been present for about five years and would have continued regardless of the injury,
318He was satisfied the plaintiff suffered an aggravation of these symptoms at the time of the accident however this is now resolved. His opinion took into account the serial assessments in which he noted serial inconsistencies.
Mr Kevin Siu, neurosurgeon
319The plaintiff was examined by Mr Siu on 25 November 2024.
320The plaintiff reported he did have some lower back pain in 2015 which he attributed to heavy work. He had a couple of days off and continued to see an osteopath maybe five or six times a year.
321The plaintiff was still complaining about tightness in the back of his neck. He could get frequent flareups as often as once a week.
322On examination, there was some restriction of cervical spine movement. There was a significant improvement to what was seen by other examiners. Dr Horsley had noted restrictions in neck movement were because of fear avoidance.
323There was no sensory impairment, there was no reduction in power and he was amazed that the plaintiff was really very muscular and in good tone, and he suspected he was really quite active. The neurological examination was normal.
324His observations were of pretty normal cervical and lumbar spine. The plaintiff reported symptoms and was diagnosed with Chronic Pain Syndrome, which was a reasonable approach.
325The plaintiff indicated he thought his life was slowly getting back to normal and he was a bit more active, although he could not return to work due to frequent flare-ups in neck and back pain.
326He thought the plaintiff sustained a soft tissue injury in the neck and back against a background of pre-existing mild lumbar and spinal spondylosis.
327The accident had contributed to the plaintiff’s symptoms, but he could not identify any organic basis. It is not unreasonable to label this as Chronic Pain Syndrome, but the plaintiff should continue with psychological and psychiatric support, perhaps be offered a gym membership so that he can try to return to his pre injury life.
328Having read the reports of Dr Khan, Dr Yong, Dr Slesenger and Dr Pinto he remained of the view the plaintiff had suffered a soft tissue injury. As far as the causation, the accident would have transiently exacerbated the cervical pre-existing condition. With the occupant seated, restricted by a seat belt there would have been very little stress to the lumbar spine.
Dr Dush Shan, psychiatrist
329Dr Shan examined the plaintiff on 28 July 2025 by Telehealth.
330The plaintiff’s main complaint was constant pain.
331In mood, the plaintiff was generally depressed and did not indicate noticing much improvement from treatment.
332On mental state examination, the plaintiff did not present with clinically significant symptoms that were observable during the examination itself. His thought processes were quick and clear. There was no evidence of clinical anxiety, depressed mood or irritability. His perception was normal. He was alert, oriented and showed no disturbance of memory or concentration but it is accepted that if in significant pain or anxious, he can be lacking in concentration at times.
333The psychiatric diagnosis is Major Depressive Disorder, currently mild. With the exercise of clinical judgment, that condition does not currently constitute incapacity for work. If the plaintiff can concentrate on occasions when he drives, he should be capable of concentrating on a course unless he has a learning disability such as ADHD.
334The prognosis is for persistent mental health complaints in relation to persistent physical complaints.
Overview
335There is no issue the plaintiff suffered an aggravation of his spinal condition in the accident. What is in dispute is whether any accident-related spinal condition persists, whether it is organically/physically based and whether the consequences thereof are serious and long term.
336In this case, where there is a pre-existing spinal condition, I must consider what the evidence discloses as to the plaintiff’s pre accident spinal condition and determine whether any additional impairment resulting from the accident is serious and long term.
337In Petkovski v Galletti,[90] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[90] [1994] 1 VR 436
338The plaintiff’s credit is particularly relevant when considering the issue of aggravation in this application.
339As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[91]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[91](2010) 31 VR 1 (“Haden Engineering”) at paragraph [12]
340Further, I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors,[92] that in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[92][2006] VSCA 254 at paragraph [14]
341Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to his credit.
Defendant
342The defendant strongly attacked the plaintiff’s credit, particularly in relation to his evidence about his pre-accident spinal condition and histories given by him to medical examiners.
343It was submitted the plaintiff was a wholly unreliable witness in court, in the course of obtaining medical treatment and also when seen by medico-legal examiners, “really trying to minimise his pre-existing spinal conditions and/or attribute all of his present symptoms to the accident and nothing else”.[93]
[93]T100
344While he deposed that he was fit and healthy pre-accident, and “boldly” claimed he did not have a neck problem, eventually he admitted to some soreness and tightness, being reticent to call it “pain”. It is clear in Dr Alivizatos’ records, that the pre-accident treatment was not just maintenance. Whether or not there were symptoms, there was in fact treatment for flare-ups in pain, and occasionally decreased spinal movement, over almost five years until the accident, which was very significant in and of itself.[94]
[94]T101
345Overall, Dr Alivizatos’ opinion carried little weight. However, the notes themselves indicate there was more than maintenance, with the attendance for acute extreme neck pain a week before the accident.[95] The 6 August 2020 note was particularly relevant, despite what the plaintiff said.[96]
[95]T119
[96]T117
346Accordingly, the defendant was critical of the plaintiff’s histories to Doctors Chin, Awad, Horsley and Yong, and also Professor D’Urso. To say there was just maintenance pre accident is completely contradicted by Dr Alivizatos’ notes, and there is no basis whatsoever for the Court to accept that evidence.[97]
[97]T103
347The plaintiff is attempting to convince the Court he had completely recovered, when the notes were to the contrary, and, if there was the recovery the plaintiff claimed, Dr Alivizatos would be expected to record it on 6 August 2020. The Court ought prefer the contemporaneous medical records to the plaintiff’s evidence.[98]
[98]T103
348The plaintiff’s evidence that his right arm symptoms had resolved in 2016 was also unreliable given his complaints to his osteopath of radicular right arm pain on both 3 and 6 August 2020.[99]
[99]T101
349The plaintiff’s evidence as to impairment consequences should also be viewed with some degree of caution. It was a low-speed accident, he was wearing a seatbelt, and there was minimal damage to the car.[100]
[100] T111
Plaintiff
350The plaintiff gave forthright answers without prevarication, sometimes contrary to his own interests. He was a cooperative witness. There was no surveillance film undermining his evidence, nor any suggestion of functional input, save for and except Dr Slesenger.[101]
[101]T136
351The plaintiff was a man who, for a number of years, had a very solid work history, with intermittent pain and osteopathic visits, continuing working without interruption. That is unchallenged.[102]
[102] T135
352“The biggest thing in the case is that we have a man in one path of life before this accident, and a totally different path of life after it, and that is the key to the case.”[103]
[103]T158
353Even with the two August 2020 osteopathy attendances, there is no basis on which the Court could find, given the plaintiff’s prior work history and limited treatment, that he would not have continued work for years into the future had the accident not occurred.[104]
[104] T135
354Pre accident, there was intermittent treatment, and Dr Alivizatos himself noted the plaintiff reported an improvement after the early August 2020 visits and did not require a follow-up until 13 August 2020 - after the accident.
355The difference between the plaintiff’s spinal condition pre and post accident is “quite palpable”, and relevant to the plaintiff’s credit, and entirely consistent with his evidence.[105]
Findings
[105]T146
Credit
356Having considered all the evidence, I do not consider any spinal issues the plaintiff had pre accident were particularly significant and, on that basis, I do not accept that his evidence in this regard was unreliable or understated the true position. Therefore, the defendant’s attack on his credit largely fails.
357On the same basis, the evidence of the plaintiff’s wife cannot be criticised. She did not understate any pre accident spinal issues the plaintiff may have experienced. Otherwise, her affidavit corroborated the plaintiff’s account of his post accident spinal pain and restrictions.
Aggravation
358While the plaintiff’s evidence of an improvement after treatment on 3 August and the 6 August 2020 visit simply being a follow-up appointment lacked credibility, Dr Alivizatos’ report confirmed this was the situation.[106]
[106]T116
359As Dr Alivizatos reported:
“… On the 3rd of August and the 6th of August, 2020, the … [plaintiff] complained of a headache and a severe acute pain respectively. After treatment, the … [plaintiff] reported an improvement in symptoms and did not require a follow up until the 13th of August, 2020, where in (sic) the … [plaintiff] reported of a motor vehicle accident in which he was rear ended. … .”
360There was not the frequency of osteopathic visits pre accident that the defendant suggested. Treatment was infrequent and was predominantly for the lower back.
361As Dr Alivizatos reported:
“The … [plaintiff] initially complained of lower back stiffness, which we successfully treated with soft tissue and joint mobilisation. On subsequent visits, the … [plaintiff] presented with recurring back stiffness, which we managed through similar treatment plans and exercises. Despite these symptoms, the … [plaintiff] remained proactive in managing … [his] condition and maintained good spinal function, allowing … [him] to continue working effectively.”
362Further, Dr Alivizatos provided a detailed and credible explanation why he disagreed with Dr Slesenger’s view that the plaintiff’s spinal condition has returned to its pre accident state.[107]
[107] Paragraph 140 of this judgment
363The plaintiff had deposed to flareups and some visits closer together, not just maintenance.
364Despite the “can’t work” reference in the osteopath’s notes on 3 and 6 August 2020, there was no evidence that the plaintiff had missed any work due to spinal issues or for treatment, visiting his osteopath on RDOs or after work. It was accepted that the wage records did not show the plaintiff having any time off work.[108]
[108]T121
365In any event, the “can’t work” note, did not mean the plaintiff was never going to work again – unlike the situation since the accident.[109]
[109]T122
366The defendant conceded that it could probably be accepted that the plaintiff has had some flare-ups or worsening of pre-existing spinal symptoms after the accident, but such are really consistent with the pattern he has had over time and was likely due to some soft tissue issue that was transient.[110]
[110]T111
367I am satisfied that the increase in treatment post accident is attributable to the accident and not a continuation of what was going on in the week or two before. What has happened since the accident – more significant treatment and an inability to work – is not consistent at all with the plaintiff’s pre-accident situation.
368Pre-accident, I accept the plaintiff was fit and healthy, albeit having some osteopathic treatment. He was working in a heavy job as a steel fixer and earning good money. He did not have a “significant axial impairment” predating the accident as Dr Slesenger described. Even Mr Siu described the plaintiff’s pre-accident condition as mild symptomatic cervical and lumbar spondylosis, a view shared by Dr Mitaal.
369Post accident, there was an increase in the severity and persistence of the plaintiff’s spinal symptoms, particularly cervical, and a significant ramp up in treatment from infrequent osteopathy before to specialist referral, a pain management program, a range of invasive procedures and the ongoing prescription of substantial painkilling medication following the accident.[111]
[111]T111
370The osteopath first mentioned GP involvement and stronger pain medication after the accident at the attendance on 13 August 2020.
371Post accident, the plaintiff has been unable to return to his heavy manual duties because of his spinal condition.
372Given my views as to the plaintiff’s pre-accident situation, the defendant’s attack on the plaintiff’s medico-legal opinion for lack of a proper history, largely falls away.
373In any event, examiners such as Dr Mittal and Dr Khan, who had the full history of osteopathic treatment, gave it little weight.
374Having noted the August 2020 visits, Dr Mittal stated the frequency of treatment following the accident dramatically increased. It was obvious from the documentation the plaintiff was struggling to manage his neck and lower back pain and there was a significant aggravation of his pre-existing intermittent lower back pain. As a result of the accident, the plaintiff suffered an exacerbation of pre-existing mildly symptomatic cervical and lumbar spondylosis, markedly changing its course.
375As Dr Khan reported, having seen the osteopath’s notes, it emerged that the accident caused a significant aggravation of pre-existing neck and lower back pain – a significant increase in the severity and persistence of the plaintiff’s neck and low back pain after the accident; there was prominent mention of muscle tightness and reduction in cervical and lumbar spine range of motion following the accident; the plaintiff was referred for advanced imaging following the accident including MRI and CT scans whereas prior to the accident, he had a lumbar x-ray in 2015; he was unable to return to work following the accident whereas previously, his work duties were not interrupted by his pre-existing neck and low back pain.
376Considering all the evidence, in my view, the plaintiff did not have significant spinal problems before the accident. This situation changed significantly after the accident.
The impairment
377I am satisfied the spinal impairment as at date of hearing has a physical basis.
378All medical examiners agree the plaintiff suffered a soft tissue injury to his cervical and lumbar spine in the accident.
379The consensus of medical opinion is that the accident-related aggravation continues. The plaintiff continues to be limited by persistent neck pain with resultant impairment of function.
380Dr Slesenger, while accepting an ongoing cervical problem, thought this relates to his pre-accident condition, although does not provide any path of reasoning when and why any accident contribution ceased.
381Mr Siu thought the accident soft tissue injury should have subsided after a transient exacerbation. He is the only examiner who could not identify an organic basis for the plaintiff’s present condition.
382Although she found some fear avoidance on examination in 2022, Dr Mittal diagnosed and treated an organic injury, with two of the cervical diagnostic tests being positive. In her view, neck pain secondary to whiplash injury was essentially a combination of myofascial spasm and facet joint pain.
383In 2023, Dr Horsley diagnosed a Chronic Pain Syndrome but did not explain whether it had an organic or psychiatric basis.
384In addition to soft tissue injury, Dr Khan, who examined the plaintiff three times, thought there was a degree of central sensitisation with somatic and neuropathic pain features.
385Dr Yong diagnosed cervical spine soft tissue with persisting cervical spine dysfunction and radicular features.
386Professor D’Urso was the only examiner who thought the whiplash injury was likely to have caused the C6-7 prolapse.
387Dr Mehr reported that the needle electro myograph demonstrated evidence of mild C7 nerve root irritation.
388Dr Slesenger is the only examiner who thought there were functional features in the plaintiff’s presentation. No abnormal illness behaviour or inconsistencies or exaggeration was noted by other examiners. The plaintiff co-operated on spinal examinations, at times at times his spinal movements being restricted and at other times, normal.
Consequences
Pain
389In Haden Engineering[112] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).
[112] Supra at paragraph [11]
390The plaintiff has consistently described aching and throbbing in his neck, regular flareups, pain radiating down his arms, particularly right. His lower back symptoms are now intermittent.
391He also has frequent occipital headaches and a feeling of fogginess due to his medication.
392There was no significant challenge to the plaintiff’s evidence about the nature and extent of his spinal pain or headaches.
393Complaint of constant neck pain played a major part in the plaintiff’s presentation to his treating psychiatrist and medico-legal examiners for his sub-paragraph (c) application.
394The plaintiff is a relatively young man, now aged only thirty-eight. I accept that as his spinal pain has continued for over five years, despite treatment, his spinal impairment is long term.
395In Stijepic v One Force Group Aust Pty Ltd,[113] Ashley JA and Beach AJA held when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
[113] [2009] VSCA 181 at paragraph [43]
Restrictions
396As a result of his spinal pain, at times spinal movement is restricted. The plaintiff has difficulty with heavy lifting, reaching and twisting and prolonged static postures as examiners, including Dr Slesenger, have reported.
Treatment
397What the plaintiff does about the pain such as medication, rest and seeking medical treatment are also relevant pain and suffering considerations.
398Since the accident, the plaintiff has undergone treatment for an organic spinal injury.
399The plaintiff had regular osteopathic treatment funded by the TAC until late 2024. He now pays for visits once a month.
400Post accident, he first underwent a pain management program with Precision Ascend. He then came under the care of Dr Mittal in December 2020. She performed a series of invasive treatments. These included bilateral C2-3, C3-4 and C4-5 medial branch blocks in December 2021 which were positive, right C7 nerve root injection in May 2022 and bilateral C2-3, C3-4 and C4-5 medial branch blocks in July 2022 that were positive diagnostically.
401Dr Mittal also recommended radiofrequency neurotomy but funding for this procedure was denied by the TAC.
402The plaintiff has been prescribed significant painkilling medication on an ongoing basis since the accident. High dosages are being prescribed with the synthetic opioid, Palexia, 100 milligrams, twice daily, with top ups for regular flareups, and Gabapentin in respect of sympathetic pain at 1800 milligrams a day.[114]
[114]T141
403As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[115]
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[115](2007) 17 VR 592 at paragraph [199]
404The cumulative effect of the plaintiff’s medication is drowsiness and fatigue which would affect his reliability for employment as confirmed by various medical examiners.[116]
[116]T142
Work
405What the evidence shows about the disabling effect of the pain is also a relevant pain and suffering consideration.
406The consensus of medical opinion is that the plaintiff cannot return to his pre-accident work as a steel fixer or any other heavy manual work because of his spinal condition, albeit Dr Slesenger considered this condition is now not accident related.
407Dr Khan and Dr Yong recently opined that the plaintiff does not have a capacity for suitable employment as a result of his accident-related spinal issues.
408Dr Slesenger and Professor D’Urso thought the plaintiff could, on a graduated basis, return to lighter, more sedentary duties with vocational training.
409Having left school in Year 10, the plaintiff then commenced an apprenticeship as an electrician but found the study aspect challenging. He then worked as a picker and packer, as a concreter and then did further electrical work, not gaining any qualifications. In 2012, he obtained a job in steel fixing – the heavy and lucrative job he was doing ten years later when the accident occurred.
410Loss of ability to do heavy manual work is a serious consequence particularly for a young man with limited education and no qualifications who has done physical work his whole working life.[117]
[117] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
411Further, because of his ongoing spinal pain and restrictions and the need for strong painkilling medication with significant side effects, the plaintiff would not be a reliable and consistent employee in a less physically demanding role.[118]
[118] T150 – Richter v Driscoll & Ors (2016) 51 VR 95
Other consequences
412The plaintiff has ongoing difficulties with sleep because of spinal pain. He is limited in his ability to do household tasks and gardening. He interacts less with his children, in particular, not being able to take them to watch Essendon play – an activity he previously enjoyed but now leaves to other family members with the Club’s permission.
413Taking into account all the evidence, the additional spinal impairment caused by the accident is serious and long term.
414Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the aggravation of his spinal impairment.
415Having granted leave pursuant to sub-paragraph (a), I am not required to determine the application under sub-paragraph (c) as leave is not required and the plaintiff may sue for the totality of injuries sustained in the accident.[119]
[119] Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 at paragraph [21]
Plaintiff’s Earnings
Financial Year Gross Income 2017 – 2018
$133,377
2018 – 2019
$132,280
2019 – 2020
$117,414
2020 – 2021
$126,857
2021 – 2022
$47,680
2022 – 2023
$1,253
2023 – 2024
$95,628
Detailed summary
2017 – 2018
E & S Reinforcement Trust
ABN 36 337 039 836 $26,886
Form 700 Pty Ltd
ABN 31 102 996 707 $123,643
2018 – 2019
Form 700 Pty Ltd
ABN 31 102 996 707 $83,062
The Trustee for Evolve Reinforcement Trust
ABN 69 578 295 579 $52,828
Allowances, earnings, tips,
directors fees, etc $19,815
2019 – 2020
Coinvest Limited
ABN 35 078 004 985 $10,510Raw Recruitment And Services Pty Ltd
ABN 37164312476 $5,693The Trustee For E & S Reinforcement Trust
ABN 36 337 039 836 $5,331The Trustee For Evolve Reinforcement Trust
ABN 69 578 295 579 $96,192Allowances, earnings, tips,
directors fees, etc $21,5152020 – 2021
Coinvest Limited
ABN 35 078 004 985 $17,496The Trustee For Evolve Reinforcement Trust
ABN 69 578 295 579 $30,541Transport Accident Commission
ABN 22 033 947 623 $63,802QBE Insurance (Australia) Limited
ABN 78 003 191 035 $11,557Allowances, earnings, tips,
directors fees, etc $4,9442021 – 2022
Transport Accident Commission
ABN 22 033 947 623 $47,6802022 – 2023
Interest – Westpac Banking Corporation $1,253.65
2023 – 2024
The Trustee For Construction and Building
Unions Superannuation Fund (CBUS)
ABN 75 493 363 262 $93,472
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