Mallios v TAC

[2024] VCC 1445

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-00478

SOTIRIOS MALLIOS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2024
DATE OF JUDGMENT:	18 September 2024
CASE MAY BE CITED AS:	Mallios v TAC
MEDIUM NEUTRAL CITATION:	[2024] VCC 1445

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMEPNSATION

Catchwords:              Serious injury – sub-paragraph (a) of the definition of “serious injury” – injury to the whole spine – pain and suffering only

Legislation Cited:      Transport Accident Act 1986

Cases Cited:Transport Accident Commission v Katanas [2017] HCA 32; Richards v Wylie [2000] VSCA 50

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Burt	TLM Law
For the Defendant	Mr M Clarke Ms K Manning	Hall & Wilcox

HER HONOUR:

1Mr Mallios applies under section 93(4)(d) of the Transport Accident Act 1986 for leave to commence common law proceedings for pain and suffering damages in respect of  an injury to the spine sustained in a transport accident on 23 May 2019, when his car was struck by another vehicle that did not stop. After the transport accident, Mr Mallios went home, and subsequently visited his GP, Dr Ng. He underwent scans on his back. He was referred to specialists but has not had surgery.

2The injury relied upon is an aggravation of a pre-existing degenerative spinal condition. Mr Mallios, who is 53 years old, says that he had suffered from knee, back and ankle pain for many years prior to the transport accident, and took  medication (including Tramadol and anti-inflammatories) for his pain. He had suffered a left ankle and right knee injury in November 2009 but was still able to work in the family property maintenance business. He decided to take up lighter employment in traffic management and was able to cope with the standing involved by taking breaks. He enjoyed that work. He was able to be active with his three young children who were born in 2004, 2009 and 2013.  He did not work in 2018 because of his mother’s illness and he spent some time with his children. He does not recall taking any painkillers in the months prior to the transport accident.  

3Since the transport accident, Mr Mallios says that he has been unable to return to the traffic management job. He has constant pain in in his lumbar spine. He has difficulty walking and standing for long periods of time, bending and lifting items. His injury affects his sleep and prevents him from doing home maintenance, riding his bike, jogging and playing with his two younger children (aged 15 and 11 years).  He takes Panadeine Forte (once per day) and Tramadol (1-3 tablets per day) to manage the pain and attends hydrotherapy once to twice per week. Mr Mallios says the pain and suffering consequences of the transport-accident related permanent impairment of his spine meet the narrative test for serious injury.

4The defendant says that in the transport accident, Mr Mallios suffered only temporary exacerbation of pre-existing symptoms in the lumbar spine by way of soft tissue injuries to the neck and back, which resolved within months, and that his ongoing symptoms relate to underlying degenerative changes along with his obesity. Alternatively, the defendant says that the extent of the aggravation of his pre-existing degenerative lumbar and cervical spine does not meet the narrative test for serious injury.

The plaintiff

5Mr Mallios is 53 years old. He completed high school and commenced a TAFE course in computer programming, but he did not finish it. He then commenced an Architectural Drafting Diploma but left the course at the end of the first year in order to work in the family’s fish and chip shop. He worked there for about eight years and also worked occasionally in a nursing home also owned by his family. He then operated his own carpet cleaning business but it was not successful. He then worked as a contractor with labour hire companies.

6He suffered an injury to his left ankle and right knee in November 2009 while working as a labourer.[1] He was treated conservatively but his left ankle remained too painful for him to return to labouring work.  He went back to the family business doing lighter work around the nursing home. As at 2014,[2] he suffered constant left ankle pain, which restricted him standing for long periods, keeping up with his children, walking on uneven ground and up steps, riding a bike, playing soccer, football or tennis or jogging around the park. He was taking up to four Panadol tablets per day, sometimes interchanging with Nurofen, and was wearing an ankle brace. His left ankle pain disturbed his sleep. His right knee pain was only intermittent. He had put on weight and was swimming for exercise.

[1] Plaintiff Court Book (“PCB”) 9, affidavit sworn 2 December 2014.

[2] Ibid.

7He decided to do less physical work and trained to work in traffic management. He underwent a medical examination prior to securing casual work in traffic management for two companies. He had no difficulties doing the traffic management work.[3]

[3] Defendant Court Book (“DCB”) 162. Note that there was disagreement between the parties about whether he worked regular shifts between 7 am and 2 pm, three days per week, at Altus Traffic or whether his shifts varied and he sometimes worked seven days straight.

8As at the date of the transport accident, Mr Mallios stated[4] that despite issues he experienced with his back, right knee and left ankle, prior to the transport accident he was capable of performing his duties in traffic management and he also enjoyed the work. He was not taking pain killing medication. His left ankle pain had resolved to some extent. He said he would also work at the family owned nursing home if required, and would spend time doing activities with his children on the weekends. He was unable to run, but could bend and lift without difficulty. Since the transport accident, he has suffered back pain, which was worse than his neck pain, and he also had ongoing right knee pain. He was no longer able to stand all day and load and unload signs and stopped traffic management work due to his painful neck and back. He considered his back pain was the worst of his pain, but while the intensity of his back pain varied, it was always present. The neck and back pain had impacted his sleep as he found it difficult to get comfortable in bed. He was unable to stand for long periods of time or bend and lift without pain. He was no longer able to manage mowing and had hired someone to do this for him.

[4] PCB 4, affidavit sworn 4 August 2022.

9As at 23 May 2024,[5] Mr Mallios stated he had recently lost around 20 kilograms and continued with exercises, physiotherapy and hydrotherapy, but still had constant back pain and neck pain which affected his sleep. His right knee pain had returned to its pre-transport accident level and was manageable and his ankle issue had been alleviated by his weight loss. He had not returned to traffic management work or to doing any maintenance work in the nursing homes. He was able to drive, shop and see his friends.

[5] Ibid 15, affidavit sworn 23 May 2024.

10In his oral evidence, he stated that he has good days where the pain is bearable, but he still has difficulties doing things for long periods of time.[6]

[6] Transcript of proceedings (“T”) 41 L1-11.

11Mr Mallios was cross-examined in some detail about the histories given by him to various treating doctors and medico-legal specialists and about the impact of his pre-existing back, knee and ankle problems on his enjoyment of life and capacity to undertake his traffic management duties prior to the transport accident. He agreed that he had a sore back and ankle at times and took medication, including Tramadol and anti-inflammatories, for those problems, but insisted that these issues did not prevent him from performing his work duties or restrict him at home doing every day activities. He said that some doctors did not specifically ask questions about these matters and that he just answered the questions asked of him. He did not recall ever denying prior back, knee or ankle pain when asked directly about these matters by doctors. He said that his weight loss helped his knee and ankle problems but not his back problem, which worsened after the transport accident and has not resolved. He insisted that his current limp was due to his back problem and not his right knee problem and denied trying to assist his case by putting all the emphasis on his sore back. He insisted that he was able to work in traffic management prior to the transport accident in spite of his ankle, knee and back problems but that his main problem is now his back pain which affects his sleep, his daily activities, his work capacity and his enjoyment of life.

Radiology

12X-ray of the cervical and lumbar spine on 23 January 2012 taken after a transport accident[7] revealed no compression fracture in the cervical spine, and the disc spaces appeared to be intact. Prominent osteophytes were encroaching on bilateral C3/4 and C4/5 neural exit foramina as well as right C5/6 neural exit foramina and there was possible irritation of the exiting C4, C5 bilaterally and right C6 nerve roots. There was no cervical ribs or prevertebral soft tissue swelling.

[7] PCB 30.

13The lumbar spine x-ray showed normal alignment and no significant compression fractures. There was a mild degree of anterior osteophytic lipping involving L3 and L4 endplates. The L4/5 and L5/S1 disc spaces appeared to be mildly narrowed which could be associated with degenerative disc disease or herniation. There was evidence of mild osteoarthrosis in the sacroiliac joints.

14On 24 May 2019, an x-ray of the cervical and thoracic spine revealed right concave thoracic scoliosis and minimal exaggeration of the thoracic kyphosis.[8] The alignment of the cervical spine was normal, with no signs of fractures, but there were degenerative changes throughout the cervical spine with evidence of multilevel high-grade bony foraminal stenosis.

[8] Ibid 39.

15A CT scan of the cervical and lumbar spine conducted on 31 May 2019[9] was reported as showing multilevel degenerative changes with multilevel nerve root impingement of the exiting left L5 nerve root, but no fractures.  

[9] Ibid 40-41.

16An MRI on the lumbar spine performed on 7 August 2019[10] was reported as showing moderate to severe left L5/S1 foraminal stenosis with contact of the exiting left L5 nerve root. There was mild L5/S1 facet degeneration and the sacroiliac joints were normal.

[10] Ibid 42.

Treating practitioner reports

Mr. Chris Xenos (neurosurgeon)

17Mr Mallios was referred to Mr Xenos for an opinion in relation to his complaints of chronic pain. Mr Xenos noted on 16 December 2020[11] that his major complaint was of pain and burning in the right great toe. The second problem was lower back pain, with bilateral thigh pain. The third was intrascapular pain. Mr Xenos noted that he was morbidly obese.

[11] Ibid 58.

18Mr Xenos reviewed Mr Mallios’ MRI scan of the lumbar spine from August 2019. He noted that the degenerate discs at L4/5 and L5/S1 “look very chronic, with bony spur formation and minor disc bulging”.[12] He considered that the degree of stenosis and nerve compromise was mild.

[12] Ibid 59.

19Mr Xenos also reviewed the MRI of the cervical and thoracic spine which “showed degenerative changes, once again in keeping with pre-existing wear and tear”.[13] Mr Xenos again felt that surgery was not advisable, given the chronicity of his pain, his obesity, and the fact that sciatica was only a minor complaint.

[13] Ibid.

20Mr Xenos concluded that Mr Mallios was suffering from a chronic pain syndrome and should be referred for a pain management rehabilitation program. He felt that unless Mr Mallios lost a lot of weight and strengthened his spine, his chronic back pain would be permanent.

Other orthopaedic assessments

21Mr Mallios was referred by Dr Tong to three orthopaedic specialists in 2022 for his right knee and left ankle.[14]  

[14] Dr Love and Mr Hartnett recommended conservative treatment including physiotherapy and weight loss:       See PCB 114 and PCB 117. Mr Goldbloom recommended conservative treatment of the left foot and ankle: See PCB 116.

Medico-legal reports

Dr Shaw Ping Tong (General Practitioner)

22Dr Tong reported to the plaintiff’s solicitors on 26 April 2024[15] that Mr Mallios was still suffering back pain, right knee and ankle pain requiring analgesia and physiotherapy. Dr Tong noted that he was functioning well in his daily life and did not have significant psychological problems. He considered that Mr Mallios permanently had very little work capacity.

Dr Albert Kaplan (Psychiatrist)

[15] PCB 145.

23Dr Kaplan assessed Mr Mallios on 9 March 2021, and provided a report dated 11 March 2021[16] to Mr Mallios’ solicitors in which he noted taking a history that, prior to the transport accident,  he was a cheerful, even-tempered and confident person who was independent and self-reliant. However, since the accident he said he often felt upset and depressed because he was unable to work and provide for his family, and he felt bad that his partner had to work extra shifts to help support him. He said that he had no social life as he is only able to go out for short periods due to the pain he experienced. He had no interest in socialising because he cannot engage in normal activities. Dr Kaplan diagnosed Mr Mallios with an adjustment disorder with mixed anxiety and depressed mood with traumatisation features consequential upon his chronic back and leg pain and restrictions.  

[16] Ibid 72.

24Dr Kaplan re-examined Mr Mallios and provided a supplementary report dated 14 November 2023[17] in which he noted that Mr Mallios stated his back pain was ongoing and had not improved. Mr Mallios reported continuing symptoms of depression and anxiety. Dr Kaplan confirmed his prior diagnosis of adjustment disorder consequent upon physical pain and restrictions. He considered that Mr Mallios’ psychiatric condition has had a major impact on his daily life and leisure activities.

Dr Diane Neill (Psychiatrist) 

[17] Ibid 134.

25In her report dated 9 July 2024 to the defendant’s solicitors,[18] Dr Diane Neill noted that Mr Mallios told her that he had chronic pain in the left ankle until 2013 due to a soft tissue injury. At the time of the transport accident, he was in a new relationship, working as a traffic controller, and suffering chronic pain for which he was taking Tramadol, although he could not say how frequently. He told her he was still capable of doing 12 hour shifts.

[18] DCB 66.

26At the time of her assessment, Mr Mallios told her he was independent with all his domestic work, regularly sees his parents and his friends, goes out daily, watches television, and uses Facebook. His family and social relationships were described as good. He had back pain and to a lesser extent neck pain. He said his mood could be good, but depended on his pain. He had trouble getting comfortable to sleep and would always rise early. Dr Neill opined that Mr Mallios is not suffering from any psychiatric illness or psychological condition. She stated that there was insufficient evidence to provide a diagnosis encompassing chronic pain and/or narcotic analgesia dependence (from misuse of Tramadol).

Associate Professor Bruce Love (Orthopaedic Surgeon)

27Associate Professor Love assessed Mr Mallios twice and provided three reports to Mr Mallios’ solicitors.  In his first report dated 16 March 2021,[19] Associate Professor Love noted that on examination he found tenderness in the mid-thoracic and lower lumbar spine, and a restricted range of movement in terms of flexion.

[19] PCB 86

28His review of the radiology concluded that the degenerative changes of the lower discs of the lumbar spine, as well as multi-level degenerative changes of the cervical spine and multi-level costovertebral, costotransverse and facet degenerative changes in the thoracic spine were age-related degenerative changes that had been aggravated by the transport accident.  

29In a supplementary report dated 14 December 2021,[20] he stated that Mr Mallios’ prognosis was poor, as he had had little improvement in the two and a half years since the accident. He did not think surgical treatment of the spine would be beneficial. He again considered that Mr Mallios was incapacitated for employment, and that his ability to perform domestic duties was significantly restricted.

[20] Ibid 108.

30In a further supplementary report dated 25 August 2023,[21] he noted that he had not received any up to date radiological reports. He repeated his conclusion that Mr Mallios had suffered an aggravation of degenerative changes in the cervical, thoracic and lumbar spine which are attributable to the transport accident. He considered the restrictions on Mr Mallios’ daily life and work capacity are permanent and there was no prospect of improvement. In this regard, he disagreed with the opinions of Associate Professor Richard Williams and Dr Slesenger (which are referred to below) that any effects of the transport accident had ceased and that Mr Mallios is capable of returning to employment.[22]

[21] Ibid 120.

[22] Ibid 129.

31In his final report dated 20 May 2024,[23] Mr Love diagnosed soft tissue injuries resulting in ongoing pain in the spine, neck, right knee, right ankle and foot. Mr Mallios told him he was limping due to right ankle and right foot pain. Mr Mallios appeared depressed. He was having hydrotherapy and using analgesics. Mr Love suggested one avenue of therapy would be to engage in a very active rehabilitation program. Apart from this, he felt that his prognosis was poor. He repeated his opinion that Mr Mallios’ symptoms “have only arisen since the transport accident…and can now be considered to be entirely related to the transport accident under consideration”.[24]

Associate Professor Richard Williams (Orthopaedic Surgeon)

[23] Ibid 150.

[24] Ibid 154.

32Associate Professor Richard Willliams reported on 17 May 2023[25] to the defendant’s solicitors that Mr Mallios complained of daily central lower back pain as well as thoracic pain and neck pain. He diagnosed Mr Mallios as having a “musculoskeletal strain of the cervical spine causing exacerbation of pre-existent cervical spondylosis, musculoligamentous strain of the thoracic spine causing exacerbation of pre-existent mid thoracic spondylosis and musculoskeletal strain of the lumbar spine causing exacerbation of pre-existent and possibly symptomatic lumbar spondylosis”.[26]

[25] DCB 11.

[26] Ibid 15.

33He opined that the effect of the injuries sustained from the transport accident had ceased and any symptoms persisting likely relate to Mr Mallios’ underlying degenerative processes, increased body mass index, and a lack of cardiovascular conditioning, as opposed to the transport accident. He concluded that any incapacity to return to work, social and domestic activities and daily living is unrelated to injuries sustained during the transport incident.

Mr Gary Speck (Orthopaedic Surgeon)

34Mr Gary Speck reported to the defendant’s solicitors on 29 July 2024[27] that Mr Mallios’ presented “with no evidence of radiculopathy, a full range of movement of his right knee….intermittent mid back muscular symptoms and low back pain predominantly over the sacrum without evidence on imaging of any spinal discoligamentous or vertebral structural injury arising from the subject transport accident”.[28]  Mr Speck noted that Mr Mallios had used narcotic analgesics and Tramadol for his back pain prior to the transport accident and had modified his work duties due to prior knee and ankle problems which had been compounded by his obesity and cirrhosis, diabetes and hypertension.

[27] Ibid 78.

[28] Ibid 105.

35Mr Speck considered that his current presentation was one of long-standing chronic pain syndrome and constitutional medical problems. Mr Speck concluded that Mr Mallios may have sustained soft tissue injuries with bruising to his trunk and neck at the time of the transport accident but this would have resolved within 6 to 12 weeks, allowing him to resume his pre-injury traffic management duties and hours. He considered that the physical findings and imaging were consistent with a conclusion that ongoing symptoms are consistent with constitutional degenerative change and were unrelated to the transport accident.

Dr Patrick Lo (Neurosurgeon)

36Dr Patrick Lo reported to the plaintiff’s solicitors on 6 October 2021[29] that Mr Mallios complained of pain in his upper and lower back, buttock pain, pain while walking and difficulty sitting for long periods. He also reported difficulty sleeping and pain in his back and legs whilst active.

[29] PCB 97

37Dr Lo concluded Mr Mallios injured his back in the motor vehicle accident which has resulted in axial backpain and an exacerbation and aggravation of an underlying degenerative spinal disorder. He considered the prognosis to be poor due to the lack of improvement in Mr Mallios’ symptoms. Dr Lo concluded Mr Mallios did not have current or future capacity to return to his pre-injury work due to his age, education and experience. He also considered it likely that the stated injuries would have a significant impact on Mr Mallios’ daily living and leisure activities.

Dr Eman Awad (Occupational Physician)

38Dr Awad reported to the plaintiff’s solicitors on 25 July 2024[30] that Mr Mallios complained of constant and severe pain in his thoracic and lower back. Dr Awad concluded that the transport accident caused an aggravation of Mr Mallios’ condition and that he was permanently partially incapacitated and could not return to his pre-injury duties and had theoretical capacity for part-time sedentary work only.

Dr Joseph Slesenger (Occupational Physician)

[30] Ibid 158.

39Dr Joseph Slesenger provided two reports to the defendant’s solicitors. In his first report dated 24 May 2023,[31] Dr Slesenger noted a past history of lower back pain pre-dating the transport accident which resulted in referrals to neurosurgeons, as well as an inconsistent history of compliance with treatment and apparent past misuse of tramadol. He also noted a history of obesity. On examination, he found an “improved range of cervical and lumbar spinal movements upon distraction”.[32]   Dr Slesenger considered that the lower back pain was not caused by the transport accident. Dr Slesenger concluded that as a result of the transport accident Mr Mallios likely suffered injury to the thoracic and cervical spine, and aggravation of a pre-existing lumbar spine impairment, all of which had resolved. Dr Slesenger considered that the lower back pain, which was not transport accident related was likely to continue indefinitely. He recommended restrictions on pushing, pulling, carrying or lifting over 5kg; sustained forward reaching; over shoulder reaching; repetitive bending or twisting; prolonged static postures; and exposure to whole body vibration. He concluded that any persisting impairments or impact on his daily living activities and work capacity were unrelated to the transport accident.

[31] DCB 26.

[32] Ibid 38.

40In his second report dated 8 May 2024,[33] Dr Slesenger reached similar conclusions. He considered that the lumbar spinal impairment pre-dated the transport accident and that any aggravation caused by the transport accident had resolved. He did not consider that the cervical impairment was related to the transport accident. Dr Slesenger considered that if he followed the restrictions recommended, Mr Mallios could work part-time for a few months before resuming pre-injury hours.

[33] Ibid 43.

Legal Principles

41It is necessary to compare the condition of an applicant before and after a transport accident. Where the subject transport accident is alleged to have aggravated organic injuries sustained in a prior accident, it will be necessary for the applicant to establish that the aggravation meets the applicable narrative test for serious injury. This entails assessment of whether the consequences of the injury are, subjectively, for the applicant, “serious”, and, if so, the injury is objectively “serious” when compared with other cases in the range of comparable cases.[34]

[34] Transport Accident Commission v Katanas [2017] HCA 32 [6] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

42Where an application is considered under sub-para (a) of the definition of serious injury, the Court is required to assess the physical consequences of any physical impairment as well as any mental or behavioural disturbances flowing from the physical injury.[35]

[35]Richards v Wylie [2000] VSCA 50 [24] (Buchanan JA), [28] (Chernov JA).

Findings and Reasons

43I found Mr Mallios to be a somewhat unreliable witness. I note that there was fairly minimal evidence from him concerning the extent of any neck pain and the limitations caused by it. There was no mention in his affidavits of any psychological sequelae of the injury to the lumbar spine sustained in the transport accident. On the evidence before me, he took medication including Tramadol for back pain prior to the transport accident. He was limited in his daily activities and work capacity by his left ankle, left foot and right knee injuries prior to the transport accident. He had given up mowing the lawn, was limited in playing with his children, had sleep interrupted by pain in his knee and ankle prior to the transport accident.

44While I accept that some of the clinical notes he was taken to in cross-examination may not fully have captured the various exchanges he had with treating and examining doctors, I consider that in his evidence, whether consciously or unconsciously, he sought to downplay the extent of his pre-existing pain (in his lumbar spine, left ankle and foot and right knee) and the restrictions they caused him, and insisted that his current primary problem and restrictions relate to his back pain.

45For example, he recently told Associate Professor Love that he limps due to pain in his right ankle and right foot.[36]  At the hearing, he insisted that his limp is due to his back pain.[37] Another example concerns the cause of his inability to mow the lawn and maintain his garden. In his 2014 affidavit,[38] he attributed this inability to his right knee and left ankle injuries. However, in his affidavit sworn 4 August 2022, he stated that prior to the transport accident he was always capable of doing garden maintenance but that due to his back pain after the transport accident he has had to engage contractors to do this for him.[39] A final example concerns the source of his problems with sleep. In his 2014 affidavit, he stated that his sleep was disrupted by throbbing pain in his left ankle as well as right knee pain.[40] In his affidavit sworn 4 August 2022,[41] he stated that the left ankle no longer disturbed his sleep but that he struggles to get comfortable due to neck and back pain.[42]

[36] See PCB 152.

[37] See T66 L26-28 and T70-71.

[38] See PCB 12 [19].

[39] Ibid 6.

[40] Ibid 12 [22].

[41] Ibid 6 [14].

[42] Ibid.

46There is consensus among the orthopaedic and neurosurgical experts that, at the time of the transport accident, Mr Mallios was suffering from an underlying degenerative disorder of the lumbar and cervical spine, and that the lumbar spine degeneration had previously been symptomatic and required medication in the form of Tramadol and anti-inflammatories. He also suffered chronic right knee, right ankle and right foot problems prior to the transport accident.

47The weight of medical and surgical opinion is to the effect, and I therefore find, that as a result of the transport accident, Mr Mallios suffered an aggravation of a pre-existing and symptomatic lumbar spine disorder and an aggravation of the underlying degenerative changes in the cervical spine. There was general consensus that the aggravation was in the nature of a soft tissue or strain injury (as per Associate Professor Love, Associate Professor Williams, Mr Speck, Dr Awad, Dr Slesenger). The weight of the expert evidence (from Dr Slesenger, Mr Speck, Associate Professor Williams) was to the effect that the aggravation of the underlying degenerative condition of the lumbar spine, and its sequelae in terms of pain and suffering, would have been temporary and resolved within months..

48Only Associate Professor Love, in his third report, reached a different conclusion. I consider that his opinion is of limited assistance as it treated the ongoing symptoms in the spine, neck, right knee, right ankle and foot as all having arisen since the transport accident,[43] which is clearly not the case on the evidence before me. 

[43] Ibid 153-154.

49On the other hand, Associate Professor Love and the other experts who treated and/or assessed Mr Mallios since 2020 (Mr Xenos, Associate Professor Williams, and Mr Speck), each noted that Mr Mallios complained of ongoing pain in the right knee, right ankle, right foot along with his neck and back pain. Mr Xenos and Mr Speck considered that Mr Mallios suffers from a chronic pain syndrome relating to his foot, left ankle, right knee and back pain. I accept that evidence and acknowledge that it renders more difficult an assessment as to the impact of the transport accident on the spine.

50As to the alleged psychological sequelae of Mr Mallios’ lumbar spine injury, I prefer the opinion of Dr Neill, that Mr Mallios does not have any diagnosable psychiatric disorder, to that of Dr Kaplan. Dr Neill’s conclusion accords with the treating general practitioner’s opinion. Dr Lo noted that Mr Mallios was functioning well in his daily life and did not have significant psychological issues. Mr Mallios’ affidavits do not refer to any psychological sequelae of the transport accident-related injury to the spine.

51I accept that Mr Mallios suffers from back pain and neck pain, and that these conditions impact on his daily activities and enjoyment of life to some extent. However, I consider that the transport-accident related impact on his spine was relatively short-lived, and that his ongoing symptoms in the spine are caused by the pre-existing degenerative (and, in the case of the lumbar spine, symptomatic) changes to the lumbar and cervical spine, and that he suffers from a chronic pain syndrome in relation to his spine, left ankle, and right foot.  

52Even if I am wrong about this, and the transport accident is a cause of the permanent impairment of the function of the spine, I am not satisfied on the evidence before me, for the reasons outline above, that the pain and suffering consequences of the this impairment are more than considerable when compared with other cases in the range of impairments of a body function.

Conclusion

53The plaintiff’s application is dismissed. I reserve the question of costs.