Lanza v Transport Accident Commission
[2025] VCC 1334
•17 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-05339
| NANCY MARY LANZA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2025 | |
DATE OF JUDGMENT: | 17 September 2025 | |
CASE MAY BE CITED AS: | Lanza v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1334 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the cervical spine – pre-existing condition – aggravation of cervical spondylosis – comorbidities
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Johns v Oaktech Pty Ltd [2020] VSCA 10; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave granted to commence common law proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Ms P Toniolos | Arnold Thomas & Becker |
| For the Defendant | Mr S A Smith KC with Ms A Capasso | Russell Kennedy |
HIS HONOUR:
1On 10 March 2019, Nancy Lanza was driving along Sydney Road, Campbellfield, when a white Ford Falcon collided with the rear of her vehicle, and another vehicle.[1] The force of the collision caused Ms Lanza’s head to move in a left and forward type whipping motion. She felt immediate pain in her neck.
[1] Incident report, Defendant’s Further Amended Court Book (“DCB”) 74
2By originating motion filed 13 September 2024, Ms Lanza seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“Act”) to commence proceedings for damages in respect of injuries to her cervical spine sustained in the transport accident,[2] in particular aggravation of cervical spondylosis.
[2]A claim in relation to a permanent severe mental disturbance or disorder was abandoned at trial
3In order to be granted leave, Ms Lanza must establish the consequences of an injury sustained in the transport accident are “serious” within the meaning of s93(17) of the Act.
4At the time of the transport accident, Ms Lanza was employed on a full-time basis as a gaming and bar attendant at the Meadow Inn Hotel in Campbellfield. Whilst she had a pre-existing history of neck and low back pain, the pre-existing spondylosis in her cervical spine had not required her take any time off work. After the transport accident, Ms Lanza was off work for two to three months before attempting light duties, unsuccessfully,[3] until she ceased work at the Meadow Inn Hotel in around mid-December 2019.
[3]Plaintiff’s first affidavit sworn 19 December 2023, at paragraph [21]
5Despite attempting a number of other roles, she ceased work in August 2022 and has not worked since. She loved her work, and says she would, but for her neck injury, still be working.[4]
[4]Plaintiff’s first affidavit sworn 19 December 2023, at paragraph [25], and second affidavit sworn 20 March 2025, at paragraph [5]
6The issues in the case are:
(a) firstly, whether the evidence establishes Ms Lanza aggravated underlying spondylosis in the cervical spine and, if so, whether those consequences satisfy the statutory test; and
(b) further, whether Ms Lanza has established impairment consequences attributable to her neck injury, as opposed to those attributable to her comorbid conditions of the left shoulder, left knee and low back.[5]
[5]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
7Although her credit was significantly challenged, I generally accept Ms Lanza’s evidence. Whilst her evidence in part was not without its difficulties, ultimately I accept Ms Lanza did her best to give a straightforward account of her history and current circumstances.
Background
8Ms Lanza was born in 1956 and raised in country Victoria. She is currently sixty-eight years old, with three adult children from a previous marriage.
9Completing high school in 1974, Ms Lanza obtained administrative qualifications and a Certificate III in Child Support.
10Her varied work history includes:
(a) working on the farm where she and her ex-husband lived;
(b) retail cashier for various businesses in the late 1980s;
(c) retail roles in the 1990s;
(d) child education support roles until around 2015;
(e) a full-time gaming and bar attendant for ALH Group.
11She commenced employment at the Meadow Inn Hotel in 2015.
Pre-existing medical conditions
12Prior to the transport accident, Ms Lanza had a history of symptoms in her cervical spine.
13In 2004, she had a significant episode of neck pain and received physiotherapy treatment.
14In 2009, she had a slip and fall while working in a café and suffered back, left elbow and some neck pain. Although she took time off work, she was able to return to her pre-injury duties without any significant issue.[6]
[6]Plaintiff’s first affidavit, at paragraph [12]
15In early 2017, she experienced neck pain, spasm and fatigue in the neck muscles, and numbness in her left hand. She attended her general practitioner, Dr Suzanne Schemali, and Northern Hospital, and was referred for osteopathic treatment. Investigation of her condition at the time included:
(a) an x-ray on 2 March 2017, which showed mild loss of cervical lordosis, age-appropriate degenerative changes in the mid and lower cervical spine region, and some multilevel facet joint disease with no bony foraminal narrowing or surrounding soft tissue abnormality;[7] and
(b) an MRI scan of her cervical spine on 7 March 2017 which showed cervical spondylosis with loss of disc hydration and “[f]acet joint hypertrophy predominantly in the upper cervical region from C2-C3 down to C4-C5 bilaterally, with mild bony foraminal narrowing along with mild uncovertebral joint hypertrophy”. There was “no evidence of any significant extension of disc into any of the neural exit foramen” and no nerve root impingement demonstrated.[8]
[7] PCB 73
[8] PCB 74
16Nonetheless, Ms Lanza’s symptoms settled, and by 22 March 2017, she was reporting to her doctor she had, “good function able to do lots of activities at home and function”.[9] This is consistent with Ms Lanza’s evidence she “was able to continue working in (her) usual role without much difficulty shortly after that time”.[10]
[9] DCB 100
[10] Plaintiff’s first affidavit, at paragraph [13]
17Available records show:
(a) a record of further neck symptoms in July 2017;
(b) a reference to “chronic cervicothoracic mechanical dysfunction” in the records of the Hume Osteopathic Clinic in September 2017,[11] but by February 2018, Ms Lanza “was managing her neck pain well”;[12]
(c) a referral for five sessions of osteopathic treatment for cervicogenic and tension headaches in March 2018, aggravated by stress and increased hours at work;[13] and
(d) a record of Ms Lanza requesting a prescription for Mobic in May 2018,[14] which possibly related to her neck, but Dr Schemali’s note does not state the reason for the prescription;
(e) reduced neck range of motion in July 2018.
[11] DCB 132
[12] DCB 133
[13] DCB 134; 153
[14] DCB 153
18There is no further record of symptoms in Ms Lanza’s neck until the transport accident in March 2019.
19Ms Lanza was cross-examined about a self-imposed lifting limit of 5 kilograms when at work which predated the transport accident, noted by certain medico-legal examiners.[15] This restriction had not been recommended by any doctor. In practice, Ms Lanza stated she tried to avoid lifting heavy milk cartons, but had to do it anyway if another staff member was not available.[16]
[15] PCB 146 and 158; DCB 6 and 23
[16] Transcript (“T”) 55-56
20Ms Lanza also has a history of anxiety and depression related to the breakdown of her marriage in around 2005 and 2006, and more recently in relation to difficulties with one of her sons.
The transport accident; treatment of injuries
21On 10 March 2019, Ms Lanza was on her way to dinner after work, driving along Sydney Road in Campbellfield, when another vehicle collided with her vehicle.
22According to Ms Lanza, the collision was forceful and caused her head to move in a left and forward type whipping motion, and she felt immediate pain in her neck.
23An ambulance was called to the scene of the transport accident, a neck brace fitted, and Ms Lanza transferred to the Royal Melbourne Hospital.[17] She was admitted for the night and underwent scans in the context of “pain in the cervical region”.
[17] Ambulance Victoria extract dated 10 March 2019, DCB 159
24On 11 March 2019, Ms Lanza underwent a CT scan of her cervical, thoracic and lumbar spine which showed no fracture.[18] The hospital notes record the presence of chronic disc degeneration at C5-6 and C6-7 levels, and a diagnosis of “soft tissue injury”.[19]
[18] The Royal Melbourne Hospital Discharge Summary dated 11 March 2019, DCB 141
[19] DCB 141; 159
25The following day, Ms Lanza lodged a claim with the Transport Accident Commission (“TAC”) for compensation for her transport accident-related injuries.
26On 14 March 2019, Ms Lanza first consulted with her general practitioner, Dr Suzanne Schemali.[20] She described neck pain, worse on the left side, with pain radiating down the left arm. Dr Schemali advised her that she had sustained a whiplash type injury in the transport accident, referred her for further treatment by an osteopath and prescribed Mobic. At this stage, Dr Schemali certified Ms Lanza unfit for work until 31 July 2019.
[20] T6
27When she consulted her physiotherapist, Oscar Baring, on 15 April 2019, Ms Lanza was feeling better, “80-90% improved”, with almost full range of motion; but three days later, on 18 April 2019, her neck was “slightly aggravated compared to earlier in the week, feels more stiff.”[21]
[21] DCB 100
28This progress is reflected in the clinical notes of Dr Schemali through late April and May 2019, which record settling restrictions in range of motion and pain, and by 9 May 2019, Ms Lanza was “back at work, neck is ok”.[22]
[22] DCB 101
29Although on modified duties and only working two days per week,[23] the clinical notes record an increase in symptoms in July 2019, with neck spasms and tension,[24] and Ms Lanza again ceased work due to her neck pain. She was referred for an MRI scan of her cervical spine, which showed:
“Mild-to-moderate canal narrowing In C4/5 level. No high-grade foraminal stenosis. A degree of impingement of left C3 and left C8 due to uncovertebral and facet degeneration. No high-grade stenosis.”[25]
[23] Report of Dr Suzanne Schemali dated 15 January 2025, PCB 36
[24] DCB 103
[25] PCB 76-77
30On 13 September 2019, Ms Lanza consulted neurosurgeon, Dr Tanya Yuen. Dr Yuen did not consider surgery was warranted, and instead advised the plaintiff to continue with remedial therapies and treatment from a pain specialist.
31Although she later attempted a return to work a second time, with the same restrictions,[26] Ms Lanza ultimately ceased working for AHL Group in December 2019. In early January 2020, Dr Schemali confirmed Ms Lanza’s neck pain, stiffness and referred pain going down her left arm was severe enough to prevent her from working.[27]
[26] Plaintiff’s first affidavit, at paragraph [21]
[27] PCB 36
32On 15 April 2020, Ms Lanza first saw pain physician, Dr Clayton Thomas. In addition to referring Ms Lanza to Dorset Rehabilitation Centre for a pain management assessment, Dr Thomas prescribed nortriptyline, 20 milligrams, for her headaches.
3326 June 2020 to 28 August 2020, Ms Lanza attended a pain management program with Dorset Rehabilitation
34Upon his review on 9 October 2020, Dr Thomas commenced Ms Lanza on antidepressant medication, Sertraline. She continued under Dr Thomas’ care until May 2021.
35On 18 January 2022, Ms Lanza returned to employment as a gaming attendant on a casual basis with First + Last, working up to 10 hours per week, with an occasional increase in hours depending on the employer’s requirements.[28] Although told she would be given light duties, Ms Lanza was required to perform duties that exceed her restrictions, and ceased this work on 24 June 2022.
[28] Plaintiff’s first affidavit, at paragraph [22]
36Ms Lanza then commenced work with Highlands Hotel on a casual part-time basis, again working around six to ten hours per week. Despite informing her employer of the transport accident and her limited work capacity, Ms Lanza was required to undertake physical manual handling duties which exceed her restrictions, and resigned in August 2022.
37I accept Ms Lanza’s evidence she loves working and is motivated to return to work if she could. Since ceasing her employment with Highlands Hotel, she has applied for two jobs, one at IGA Supermarket and another in a gaming attendant role at Casa D’Abruzzo Club. Upon disclosing the transport accident-related restrictions, she was apparently deemed unsuitable for both roles.
38Ms Lanza was in receipt of weekly payments for her loss of earnings for approximately three years, and the TAC continues to pay her medical and like expenses related to the transport accident.[29]
[29] Plaintiff’s first affidavit, at paragraph at paragraph [18]
Medical evidence – treating doctors
39Dr Schemali diagnosed a whiplash injury and subsequent chronic neck pain, depression and anxiety as a result of the transport accident.[30] In her most recent report,[31] Dr Schemali opined:
“Due to the nature of her physical symptoms and impact on her psychological health as well as the effect of other stressors (eg. financial, personal) her future employment prospects unfortunately remain poor. …”
[30] PCB 34
[31] Report of Dr Suzanne Schemali dated 15 January 2025, PCB 36; 39
40Osteopath, Dr Daniela Aloe, diagnosed chronic lower cervical degenerative disc disease with local muscle guarding and associated cervicogenic tension headaches, with a guarded prognosis due to the chronic nature of Ms Lanza’s condition. In her opinion, Ms Lanza’s symptoms, pain levels and movement restrictions prevent her from engaging in her pre-injury employment.[32]
[32] Reports of Dr Daniela Aloe dated 9 June 2020 and 25 February 2025, PCB 42 and 69
41Dr Thomas diagnosed a whiplash associated disorder, with cervicogenic headaches and migraines.[33] Dr Thomas formed the view that Ms Lanza did not have any work capacity despite being motivated to return to some form of work.[34]
[33] Report of Dr Clayton Thomas dated 9 August 2021, PCB 64-65
[34] PCB 50
42In his report dated 9 August 2021, Dr Thomas stated Ms Lanza has long-term vocational limitations due to her injury, and that an attempt to return to work, which included duties of lifting coins and opening machines, aggravated her condition. Further, in his opinion, her injuries have significantly impacted her ability to function socially, recreationally and domestically.[35]
[35] PCB 66
Medico-legal evidence
43Following his examination of Ms Lanza in April 2025, orthopaedic surgeon, Mr Ash Moaveni, diagnosed an aggravation of pre-existing cervical spondylosis without radiculopathy, causally related to the transport accident. In his opinion, the mechanism of injury, involving a rear-end collision where Ms Lanza was thrown forward despite wearing a seatbelt, is consistent with an aggravation of pre-existing cervical spondylosis.[36]
[36] Report of Mr Ash Moaveni dated 3 April 2025, PCB 150; report dated 2 June 2025, Exhibit H
44In terms of work capacity, considering the injury to the cervical spine in isolation, Mr Moaveni’s opinion is that Ms Lanza does not have any capacity to return to full-time pre-injury work. Further, Ms Lanza does not have any realistic capacity for any form of suitable employment on a consistent, reliable and permanent basis without risk of further aggravation to her condition. In his opinion, her neck condition is the primary factor that limits her work capacity.
45Mr Moaveni considered surveillance footage of Ms Lanza was consistent with Ms Lanza’s reported functional limitations.[37]
[37] Report of Mr Ash Moaveni dated 2 June 2025, Exhibit H
46Dr Eman Awad, occupational health specialist, examined Ms Lanza on 27 February 2025. Dr Awad diagnosed aggravation of cervical spondylosis and chronic pain, caused by the transport accident.[38]
[38] PCB 144
47In Dr Awad’s view, Ms Lanza has no capacity for her pre-injury work and there are no workplace adjustments that could be made to assist in a return to work. Further:
“When taking into consideration her age, the nature of her injuries, her level of education, her level of qualifications, her occupational history from which she is now being medically restricted and the length of time out of employment which is a negative prognostic factor for a return to work, in my opinion she has no capacity for any other work. The best predictor of future sickness absence is the past pattern of absences and she has demonstrated with her attempts at a return to work, that she is unable to undertake employment in a reliable and consistent manner.”[39]
[39] Report of Dr Eman Awad dated 27 February 2025, PCB 144, 148
48In a later report, Dr Awad also stated surveillance footage reviewed by him did not alter his opinions.[40]
[40] Report of Dr Eman Awad dated 2 June 2025, Exhibit G
49No surveillance footage was shown to Ms Lanza during her cross-examination, and I infer it did not depict Ms Lanza engaging in any activity inconsistent with her evidence in this application.
50Orthopaedic surgeon Mr Peter Wilde examined Ms Lanza on behalf of the VWA in July 2024. Mr Wilde also diagnosed Ms Lanza as suffering from an aggravation of pre-existing spondylosis without radiculopathy as a result of the transport accident.[41] In his most recent report of 9 April 2025, Mr Wilde confirmed his diagnosis of cervical spondylosis without radiculopathy with “a residual small contribution from the motor vehicle accident”. In his opinion, Ms Lanza’s restricted spinal movements and paraspinal spasm are consistent with cervical spondylosis.[42]
[41] DCB 49
[42] DCB 57
51Mr Wilde attributes Ms Lanza’s inability to return to work to a psychological reaction. Although he considered Ms Lanza could return to work in some capacity in an appropriate office setting with a sit-stand desk, Mr Wilde acknowledged she has minimal training or education for this type of work. Further, due to her age, he believes that it is not practical for her to return to gainful employment in the foreseeable future.
52Dr Joseph Slesenger, specialist occupational physician, examined Ms Lanza at the request of the VWA in 2021 and 2025, and prepared two reports. Dr Slesenger diagnosed a soft tissue injury and aggravation of degenerative disease of the cervical spine. In his opinion, however, her transport accident-related injuries have resolved back to their pre-injury level, and Ms Lanza’s impairment is no longer materially contributed to by the injury, but relates to her constitutional degenerative disease of the cervical spine.[43]
[43] Report of Dr Joseph Slesenger dated 5 July 2021, DCB 5
53Save for Dr Joseph Slesenger, all of the medico-legal evidence is to the effect that Ms Lanza suffers from an ongoing condition of work-related aggravation of cervical spondylosis.
54In Mr Slesenger’s opinion, Ms Lanza has capacity for work with restrictions and working pre-injury hours. He recommended a gradual return to work plan commencing with four hour days, three days a week and increasing to pre-injury hours over a period of six to eight weeks. Upon review of the vocational assessment report, he believes that she could perform work with restrictions in the roles of phone operator and cashier.[44]
[44] DCB 16
55In his supplementary report dated 26 March 2025, Dr Slesenger opined that Ms Lanza would have great difficulty returning to her pre-injury work as a hospitality/gaming attendant. Otherwise, she is capable of returning to suitable employment and her pre-injury hours with the following restrictions:
· no push, pull, carry or lift over 10 kilograms on an occasional basis, and 5 kilograms on a repetitive basis;
· avoid sustained forward reaching;
· avoid over shoulder reaching; and
· avoid prolonged static postures.
56Dr Slesenger is the only doctor who believes Ms Lanza can return to any form of employment, and he does not consider her education, training or experience.
57I prefer the overwhelming evidence to the contrary over Dr Slesenger’s opinions.
Credit
58In serious injury applications, the credit of the applicant is of great importance.[45]
[45] Johns v Oaktech Pty Ltd [2020] VSCA 10
59Ms Lanza’s evidence included that although she had received some treatment for neck pain in 2017, prior to the transport accident:
“… The symptoms settled and I was able to continue working my usual employment without much difficulty shortly after that time. By the time of the transport accident collision, I considered my neck to be normal. In particular, I was not suffering from any significant restriction or incapacity associated with the same. In fact, I was working on a full time basis and performing physically arduous[46] work duties in a competent manner.”[47]
[46]The plaintiff’s oral evidence included that by “arduous” she meant “physically demanding”: T13
[47] Plaintiff’s first affidavit, at paragraph [16]
60Mr Smith KC, for the TAC, challenged this evidence, because Ms Lanza had provided a history to various doctors that prior to the transport accident, she had imposed a 5-kilogram lifting limit on herself at work. This restriction was apparently without reference to any particular doctor’s requirements or any injury per se. I do not consider this to be significant.
61The lack of force in the attack on Ms Lanza’s credit is illustrated by the submission her affidavit material was misleading as to her current treatment. Paragraph 3 of her second affidavit, sworn 20 March 2025, states:
“… I continue to consult with my general practitioner on an occasional basis in respect of my transport accident-related pain and condition. I understand the general practitioner has indicated that I have not had treatment with them since August 2023, although whilst I haven't spoken to the doctor specifically about the transport accident, I have obtained scripts of medication which I use to treat my transport accident condition including Effexor and Mobic which I take as needed.”
62In my view, this evidence is consistent with Ms Lanza’s oral evidence she had not consulted her general practitioner recently about her neck, and is not otherwise misleading.
63Ms Lanza’s oral evidence was unsatisfactory in certain aspects:
(a) while Ms Lanza stated she had not taken Mobic for neck pain prior to the transport accident,[48] clinical notes of her general practitioner record prescription of Mobic in July 2017. Ms Lanza did frankly concede the notes were likely to be correct, despite her not recalling these consultations;
(b) she gave an exaggerated account of her reliance on Panadeine Forte in 2023, which was inconsistent with her clinical records; and
(c) she was also mistaken as to the last time she had neck pain before the transport accident. Ms Lanza stated in cross-examination it was around March 2017, when the notes set out above record symptoms in July 2017, and treatment through 2017 and part of 2018 from an osteopath.
[48] T49
64An adverse finding concerning the plaintiff’s credibility is not, by itself, sufficient to justify the refusal of a serious injury application. The Court must analyse and give appropriate weight to all of the evidence, including objective evidence.[49] I note Ms Lanza was working full time through 2017 and 2018, and that it is not in dispute that Ms Lanza disclosed her previous neck condition to the TAC.
[49] Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraphs [49]-[58]
65Ultimately, I accept Mr Brett’s submission that the pre-existing condition was sufficiently disclosed, notwithstanding her memory was unreliable in some aspects, and being mistaken on occasion as to particular elements of her previous neck condition and medication. I find Ms Lanza did her best to give an accurate account of her pre-existing condition, her injury in 2019 and its consequences. I did not consider any inaccuracy to be deliberate. To the extent of any inconsistency, I have preferred the records of her treating doctors in the clinical notes over Ms Lanza’s memory.
66Ultimately, I have relied on all of the evidence, including the objective evidence of injury and impairment.
Consequences
67In addition to constant pain, with flare ups at least twice per week, Ms Lanza states in her affidavits she suffers from the following consequences of her transport accident-related injury:
· She has difficulties with housework such as washing windows, washing dishes, cooking (inclusive of carrying and lifting pots and pans) and gardening.
· She used to participate in sport and outdoor activities including ten-pin bowling, dancing, walking and bike riding. Her neck injury now restricts her participation in these. In particular, ten-pin bowling and dancing now cause her neck pain to flare up. Her previous partner tried teaching her to swim but that also caused her neck pain. He enjoyed going out motorbike riding and bought her an electric bike which she attempted to use a few times, but this activity flared up her neck pain.
· She used to lead a very social life. She regularly went on hiking day trips with friends and family. She is now prevented from taking these trips because of neck pain associated with carrying food and equipment, and rough terrain. Driving long distances to get to hiking locations also aggravates her pain. She used to enjoy cooking for friends, but her neck injury restricts her from entertaining as it is too difficult for her to cook.
· She is very restricted in her ability to sew. Before her injury, she would sew for hours each week. Sewing involves prolonged static postures which increase her neck pain, and she is no longer able to enjoy this previous pastime.
· She used to play card games on her computer. This also requires prolonged static positions, which now cause her pain.
· Despite taking pain medication, her sleep is broken. She wakes when she moves because of her neck pain. She feels tired, drowsy and irritable during the day as a result. This is a significant consequence.
· She is no longer able to play games, participate in sport, cook or sew with her grandchildren, and this saddens her.
68One of the indicia of “serious injury” is the extent of ongoing treatment received by a plaintiff. I accept Ms Lanza’s evidence that as at the date of the hearing there is no further treatment available from Dr Schemali or an osteopath for her neck condition and, given no surgery is indicated, she is left to self-manage her condition.
69Ms Lanza has a history of severe stomach ulcers, which restricts her use of strong prescription anti-inflammatory medication to control pain. Occasional use of Mobic – which is available to her in relation to her comorbidities – is sufficient to control her episodic flare-ups in neck pain.
Findings
70I find Ms Lanza suffers from an ongoing compensable injury to her cervical spine as a result of the transport accident. The evidence of the medico-legal specialists, and Ms Lanza’s treating doctors, establishes she suffers from an ongoing aggravation to her underlying condition of spondylosis of the cervical spine.
71Dr Schemali supports Ms Lanza’s claim, having issued transport accident certificates of capacity over time, and providing supportive opinions in a number of reports.
72Medico-legal specialists, Mr Moaveni and Dr Awad, and to a lesser extent, Mr Wilde, are also supportive of the application in relation to causation.
73I consider Dr Slesenger’s opinion in relation to causation to be somewhat of an outlier. His first report of July 2021 is based upon the premise that, “records from May 2019 indicate that her neck pain had resolved and she had returned to work”. I find that Ms Lanza’s condition had not resolved by May 2019, and rely upon the opinions of her treating doctors concerning the need for ongoing accident-related and pain management treatment since that time; and Ms Lanza’s evidence of her ongoing pain and restrictions. Mr Slesenger’s most recent report of 26 March 2025, restating his previous opinion that any cervical spinal impairment has resolved, is therefore of little assistance.
74I reject the TAC’s submission that the evidence does not permit of a finding as to Ms Lanza’s neck condition immediately preceding the transport accident.
75While the history is a little unclear, I make the following findings as to Ms Lanza’s circumstances prior to the transport accident:
(a) apart for a period of one month in 2017, she was not taking Mobic for her neck condition. Based on the history provided, Ms Lanza was diagnosed at the Emergency Department of the Northern Hospital with “likely cervical radiculopathy” in July 2017, and referred back to her general practitioner.[50] There is no evidence radiological scans were undertaken at the time. The MRI scan of March 2017 did not report any nerve root impingement;
(b) she was working full time;
(c) she was not compromised in any of her non-work-related activities;
(d) she was not receiving ongoing treatment from an osteopath;
(e) her comorbidities of left shoulder, knee, and low back pain were not preventing her from working; and
(f) Ms Lanza had never had to take time off work for neck pain.[51]
[50] DCB 139
[51] T54
76The key to the application, both in terms of assessing the extent of any aggravation to her underlying condition and the seriousness of the consequences of that aggravation, lies in assessing her work history. None of her neck, low back, left shoulder and left knee conditions prevented her from working full time at the time of the transport accident. This evidence was not challenged.
77The consequences of Ms Lanza’s neck injury referred to in paragraph 67 above were not challenged by the TAC; rather it was submitted that Ms Lanza had failed to establish those consequences were as a result of the transport accident.
78I accept Ms Lanza’s evidence as to the consequences of her injury to the cervical spine, including her treatment as set out above.
79Those consequences may be distinguished from the continuing consequences of Ms Lanza’s:
(a) left shoulder – some pain and reduced range of motion as a result of degenerative changes.[52] Ms Lanza had consulted her general practitioner concerning pain and swelling in her sternoclavicular joint in August 2016, and perhaps on other occasions, but not since an operation,[53] and it is no longer a problem;[54]
(b) left knee – although there is no evidence of osteoarthritis, an x-ray in March 2024 showed chondrocalcinosis of the medial and lateral menisci. Ms Lanza reports recent issues with left knee pain – such as experienced during recent dance classes for which she had treatment at an osteopath in April 2024 and Mobic prescribed by her general practitioner – and conceded, “if it came that I was working and I had problems with my knee, I would have just taken a week or two off and gone back to work later.”[55] Since the transport accident, when she has had an issue with her knee, “I’m okay after a day or two or, you know, … - I still do what I’ve got to do”.[56] She has not had any issues with her knee “for several months now”;[57]
(c) low back – despite there being no medical evidence of any specific condition in relation to episodic pain in Ms Lanza’s low back, she describes her current condition as, “I get sciatic pain, apparently it’s the lower back, the fourth and fifth vertebra or something” that “comes and goes”.[58]
[52] PCB 78, ultrasound of the left shoulder dated 21 June 2022
[53] T47
[54] T54
[55] T49
[56] T54
[57] T47
[58] T46, 48
80I do not accept the submission that Ms Lanza’s participation in dance instruction classes in early 2024 is inconsistent with her having suffered a serious injury. There is no requirement in the narrative test for Ms Lanza to lead a miserable life at home. I accept her evidence that the dancing involved only very basic movements; and she ceased the classes, in part, as a result of an increase in her neck injury symptoms.[59]
[59] T7, 45
81Having found Ms Lanza to be a witness doing her best to give a reliable account of her circumstances over time, I accept her evidence that she was forced to cease work because of neck pain in 2022. Moreover, I consider her work history since the transport accident indicates a person doing their best to get on with their life and overcome any restrictions her cervical spine and comorbidities place on her employment capacity. That should not be held against her.
82Ms Lanza’s counsel accepted the history recorded in the clinical notes of the general practitioner is somewhat equivocal, and that there is limited objective evidence of mechanical disc injury, but submitted the application should nevertheless be granted on the basis of an injury which has resulted in cessation of employment.
83Although, there is much force in that submission, this is not a straightforward application.
84Ms Lanza conceded during cross-examination current difficulties with her low back, left shoulder and left knee cause her very significant restrictions as at the date of the hearing. She also agreed with the proposition that:
Q:“… you wouldn’t be able to work as a gaming attendant with the left sciatica and the left knee pain and the left shoulder pain, would you?---
A: Right now I couldn’t. Not anymore.”[60]
[60] T48
85This evidence is problematic for Ms Lanza’s application, because on one view it supports a finding that she has not established her loss of employment capacity is an ongoing consequence of her neck injury.
86I have reflected on the weight to give this evidence, but ultimately do not consider it fatal to the application. This is because it was adduced in cross-examination in answer to a rolled-up question considering the three medical conditions, and sits uncomfortably with her other answers in cross-examination about the extent of ongoing left shoulder symptoms following surgery. It is also inconsistent with evidence adduced in re-examination clarifying the nature of her other comorbid conditions.
87I have set out my findings as to the extent of her co-morbidities at paragraph 79 above. I accept her evidence that none of these conditions prevented her from working full time before the transport accident. In the end, based on these findings and on Dr Awad and Mr Moaveni’s opinions – which take into account the progress notes and other records of her pre-existing conditions – I find it is the ongoing aggravation of her pre-existing neck condition which is the primary factor that limits her work capacity.
88Further, based on Mr Moaveni’s opinion, the knee and left shoulder are supervening conditions, which would fall for consideration at any later damages trial, but not in this application.[61]
[61] Acir v Frosster Pty Ltd [2009] VSC 454, at paragraph [175]
Conclusion
89I grant Ms Lanza leave to commence a proceeding for damages for injuries suffered as a result of the transport accident on 10 March 2019. The ongoing consequences attributable to the injury to Ms Lanza’s neck satisfy the statutory test. When taken in isolation, her pain and incapacity for employment as a result of her neck injury is “at least very considerable”; and in combination with the other consequences of her impairment, I find Ms Lanza suffered a “serious injury” in the transport accident.
90I will hear the parties as to the form of final orders, and as to costs.
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