Mitsakis v Transport Accident Commission
[2025] VCC 542
•7 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-05676
| FAYE MITSAKIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 26 March 2025 | |
DATE OF JUDGMENT: | 7 May 2025 | |
CASE MAY BE CITED AS: | Mitsakis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 542 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Abbas v Transport Accident Commission [2015] VSCA 217; State of Victoria v Glover [1998] VSCA 93; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr C S O’Sullivan | Ryan Legal |
| For the Defendant | Mr P B Jens KC with Ms C L Alden | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injury suffered by the plaintiff in a transport accident which occurred on 16 July 2018 (“the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides that a court must not give leave under s93(4)(d), unless it is satisfied that the injury is a “serious injury”.
3The definition of “serious injury” as set out in s93(17) of the Act is, relevantly to this application:
“serious injury means—
(a) serious long-term impairment or loss of a body function … .”
4The plaintiff claims that by reason of the transport accident, she suffered injury to the function of her spine.
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 or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries and Anor v Poljak (ibid) at 140; see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]; Abbas v Transport Accident Commission [2015] VSCA 217 at paragraphs [36]-[39]; State of Victoria v Glover [1998] VSCA 93 at paragraph [30]
6In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of “serious injury”, as set out in s93(17), the relevant injury must also be long term.
7The plaintiff bears the burden of proof on the application. The standard of proof is the balance of probabilities.
8The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider, when viewed objectively, what consequences to this plaintiff have arisen from the transport accident.[4] It has been held that the task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgement.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a “serious injury” for the purposes of the Act.
[4]Petkovski v Galletti [1994] 1 VR 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
9In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See, generally, Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
10It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7] To undertake this task, the plaintiff must establish what injury was caused by the transport accident. The Court must then determine the consequences of that injury to the plaintiff by comparing the plaintiff’s condition before and after that injury.[8] If the Court is satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[9]
[7]Petkovski v Galletti (supra)
[8]ibid at 444
[9]supra
11The plaintiff relied upon five affidavits, gave viva voce evidence and was cross-examined. She also relied upon affidavits from her co-workers, Ms Sarah Brennan and Ms Sharon Pedder, her son, Mr Brayden Hocking, and her friend, Ms Lisa Buckley. None of the lay witnesses were required to attend for cross-examination.
12Both parties relied upon medical reports and other materials which were contained within Court Books filed before the hearing.[10] The parties also jointly agreed the content of a chronology of the “back related” medical treatment received by the plaintiff, both prior to and following the transport accident. This document was tendered by the plaintiff.[11] Lastly, the defendant relied upon a five-hour portion of surveillance footage, taken on 24 and 25 November 2023.[12]
[10]Specified pages of the Plaintiff’s Court Book were together marked as exhibit (“Ex”) P1. The plaintiff also relied upon a Supplementary Court Book dated 25 March 2025, which was marked as Ex P2. Specified pages of the Defendant’s Court Book were together marked as Ex D1.
[11] Ex P3
[12] Ex D2
13I have considered all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
Background
14The plaintiff is presently aged fifty-three, having been born in December 1971.[13] She completed school to Year 8 level when she was about fifteen years of age. She is dyslexic and lacks any reliable computer skills.[14]
[13]Ex P1, p 17
[14]Ex P1, p 17
15After leaving school, she was employed in a wide variety of jobs over the years. She worked at a hardware shop in Springvale for about twelve months, and as an assistant in a café in Mentone for a similar period. She worked for Tasman Meats for roughly three years, first in Greensborough and subsequently in Heidelberg, as a cashier and assistant. She then worked for Greenwoods Pet Warehouse in Coburg for six years. She worked at another pet shop at Northland Shopping Centre for a period of twelve months. She was employed as a shop assistant at Heathcote Fruit and Vegetables for about five or six years. In more recent years, she has been employed with Coles Supermarkets, initially in Kilmore and more recently in Wallan, working in the delicatessen for fifteen to twenty hours per week.[15]
[15]Ex P1, pp17-18
Previous injuries
16In about 2016, she recalls straining her back when lifting chicken crates when she “turned to the wrong way” and was referred by her treating practitioner for a CT scan of her lumbar spine.[16] She understands this CT scan demonstrated a broad-based disc bulge at L4-5, without neural impingement.[17]
[16] Ex P2, p1
[17]Ex P1, p18
17To the best of her recollection, she did not take any time off work following this incident, nor did she file any compensation claim. She recalls that the symptoms which she experienced after the incident gradually settled in the months thereafter and she was able to continue with her usual fifteen to twenty hours of work per week in the delicatessen section of Coles Supermarket.[18] She was able to undertake that employment without restriction, prior to the transport accident.[19]
[18]Ex P1, p18
[19]Ex P1, p18; see also Ex P2, pp3 and 25 (Statement Sharon Pedder signed 13 August 2020)
18The pain she experienced at this time was “intermittent” and “not as bad as the pain that … [she] suffered after the transport accident”.[20] From time to time she attended her general practitioner in relation to back pain. She had physiotherapy in 2016 and 2017. To the best of her recollection, she did not have physiotherapy treatment between February 2017 and the date of the transport accident.[21]
[20] Ex P2, p1
[21] Ex P2, p2
19The medical records demonstrate that prior to the transport accident, the plaintiff suffered from intermittent anxiety and other psychological symptoms, which were managed through psychological assessment and psychotherapy undertaken at her general practice.[22] While these psychological symptoms were a feature of the plaintiff’s pre-transport accident presentation, they did not interfere substantially with her capacity for work or her activities of daily living.
[22]Ex D1, pp36-37
The transport accident
20The plaintiff described the transport accident in the following terms:
“The … transport accident occurred on 16 July 2018. I had parked on the side of the road in Main Street, Romsey in order to make a telephone call. I remained seat belted in my car whilst making this phone call, as I did so, another vehicle … drifted off the road and slammed into my own vehicle shunting my car many metres forward along the edge of the road. The force of the collision was sufficient to break the rear differential on my vehicle. The driver’s door was jammed shut and had to be forced open. … .
Immediately after the incident I was aware of spinal pain and was taken by ambulance to the Northern Hospital for assessment in the Emergency Department. The ambulance officers fitted a rigid cervical collar. At the hospital, I was complaining of pain in my neck radiating to my shoulders and of lower back pain in particular. … I was released later that night and went home in a neck brace.
After my discharge from hospital, I continued to suffer persisting neck, [and] more particularly lower back pain. I have been attending practitioners at Mediq Clinic in Wallan in particular Dr Almarashi and Dr Matin in relation to those persisting problems. The treatment provided by those practitioners has been conservative in nature.”[23]
[23]Ex P1, pp18-19
Treatment following the transport accident
21Following the transport accident, the plaintiff underwent a CT scan of her head, facial bones, cervical spine, chest, abdomen and pelvis at the Northern Hospital. No particular abnormality of these areas was detected by that investigation. The plaintiff was discharged home from hospital in a neck brace.[24] She began attending Complete Care Physiotherapy in Wallan on 15 August 2018.[25]
[24]Ex P1, pp18-19
[25]Ex P1, p19
22On 12 August 2018, the plaintiff underwent an x-ray of her cervical and thoracic spine, which showed facet joint arthropathy, most severe at the C6-7 and C7-T1 levels.[26]
[26]Ex P2, p16
23On 21 February 2019, the plaintiff underwent a CT scan of her lumbosacral spine.[27]
[27]Ex P2, p17
24On 27 February 2019, the plaintiff underwent an MRI scan of her cervical spine and lumbar spine. That investigation demonstrated, in relation to the cervical spine:
“Mild multilevel chronic degenerative disc disease. Mild disc bulge[s] are seen at all levels from C3/4 to C6/7 inclusive producing minimal indentation of the theca without evidence of cord impingement … .”[28]
[28]Ex P2, p18
25In relation to the lumbar spine, the following matters were noted:
“Chronic disc bulge at L4/5, producing mild indentation of the theca. The bulge contacts the traversing L5 nerve root in the right lateral recess without evidence of significant posterior displacement of the nerve root.”[29]
[29]Ex P2, p19
26On 6 May 2019, the plaintiff underwent a nuclear bone scan, which showed no evidence of fractures or active degenerative disease affecting the spine.[30]
[30]Ex P2, p20
27In 2019 through to 2020, the plaintiff underwent a pain management program at Advance Healthcare.[31]
[31]Ex P1, p20
28In March 2020, the plaintiff commenced treatment with Mr Peter Redding, psychologist.[32]
[32]Ex P1, p109
29On 23 November 2020, the plaintiff underwent a further MRI scan of her lumbar spine which demonstrated the following:
“Acute on chronic degenerative end plate changes [at] L4/5. Broadbased disc bulge with mild to moderate bilateral foraminal narrowing. The disc lies adjacent to the L5 nerve roots in the lateral recesses but no high grade or focal compression is evident. The other levels are within normal limits.”[33]
[33]Ex P2, p21
30On 22 March 2021, the plaintiff commenced seeing pain specialist physician and anaesthetist, Dr Stiofan O Conghaile, on referral from Mr Yagnesh Vellore, consultant neurosurgeon.[34]
[34]Ex P1, p66
31On 21 May 2021, the plaintiff underwent an epidural injection at the L4-5 level of her spine. This procedure was performed by Dr O Conghaile.[35]
[35]Ex P1, p48
32On 19 November 2021, the plaintiff underwent medial branch blocks and bilateral sacroiliac joint injections. This procedure was performed by Mr O Conghaile.[36]
[36]Ex P1, p61
33On 28 February 2022, the plaintiff underwent bilateral lumbar medial branch blocks. This procedure was performed by Mr O Conghaile.[37]
[37]Ex P1, p66
34On 27 October 2022, the plaintiff underwent a nuclear medicine bone study. A report of this investigation stated:
“The bone scan study shows increased tracer activity, likely degenerative in nature in L4-5 disc region, left side of L4-L5 and L5-S1, both sacroiliac joints and in the symphysis pubis region. There is no definite evidence for fracture noted.”[38]
[38]Ex P2, p22
35On 13 February 2023, the plaintiff underwent bilateral sacroiliac joint blocks. This procedure was performed by Dr O Conghaile.[39]
[39]Ex P1, p74
36On 24 April 2023, the plaintiff underwent a bilateral sacroiliac joint radiofrequency denervation procedure. This procedure was performed by Dr O Conghaile.[40]
[40]Ex P1, p77
37On 28 June 2023, Dr O Conghaile applied to the Transport Accident Commission (“TAC”) for funding for a trial of a spinal cord stimulator for the plaintiff. This funding was not approved.[41]
[41] Ex P1, pp78-80
38On 17 June 2024, the plaintiff underwent a further sacroiliac joint radiofrequency denervation procedure. This procedure was performed by Dr O Conghaile.[42]
[42]Ex P1, p86
39On 13 December 2024, Dr O Conghaile continued to recommend that funding be approved for a trial of a spinal cord stimulator for the plaintiff. This funding was not approved. [43]
[43] Ex P1, p90
40On 3 February 2025, the plaintiff underwent a left cluneal nerve block procedure. This procedure was performed by Dr O Conghaile.[44]
[44]Ex P1, p94
41On 13 February 2025, Dr O Conghaile continued to recommend that funding be approved for a trial of a spinal cord stimulator for the plaintiff. This funding was not approved.[45]
[45] Ex P1, p95
42As at the date of this hearing, the plaintiff continued to consult with Dr O Conghaile in respect of the management of her pain.[46]
[46]Ex P1, p95
Evidence concerning the consequences of the injuries suffered in the transport accident
The Plaintiff’s affidavits
43The plaintiff relied on five affidavits. The first was unsworn and said to be dated 5 May 2020, the second was sworn on 11 October 2023, the third was sworn on 8 November 2024, the fourth was sworn on 3 March 2025 and the fifth was sworn on 24 March 2025. The evidence which the plaintiff gave as to the consequences of the injuries she suffered in the transport accident in those documents, is as follows:
Experience of pain
(a) she is troubled by constant variable levels of pain, particularly in her lower back and also in her neck. On a scale out of ten, the pain frequently is at a level of 7-8. This is a concern to her, because the pain is ongoing;[47]
[47]Ex P1, p20
(b) her lower back pain extends into her buttocks, particularly on the left side. She also has pain in the left hip;[48]
[48]Ex P1, p20
(c) her neck pain on a scale of ten is generally at a lower level than her lumbar spinal pain, but she does suffer from severe exacerbations of that pain on a scale of up to 9-10/10. When her neck pain is particularly bad, she notices that she suffers from headaches;[49]
[49]Ex P1, pp20-21
(d) despite the various medication that she takes, she finds the pain she suffers is constant and ongoing;[50]
[50]Ex P1, p21
(e) when her back pain increases, she struggles to concentrate and makes mistakes. She especially found this was a problem when she was working;[51]
[51]Ex P1, p27
(f) prior to the transport accident, she did suffer from some lower back pain, which commenced shortly after she started work at Coles in the delicatessen. This was in about 2013;[52]
[52]Ex P2, p1
(g) from that time in 2013, she suffered from lower back pain from time to time. At times the pain radiated into her buttocks; however, the pain was intermittent and not as bad as the pain she suffered after the transport accident;[53]
[53]Ex P2, p1
Medication and treatment
(h) in addition to the various treatments which have been referred to above, she has been prescribed a variety of medications from time to time, including Panadol Osteo (usually two tablets taken three times daily), Nurofen (twice daily, but limited because of stomach pains); Norflex (once daily) and Pariet (taken for relief of reflux and stomach pain) and Palexia (for pain relief);[54]
[54] Ex P1, pp29 and 32
(i) additionally, she has pursued a variety of other remedies for pain relief, including the use of heat packs and hydrotherapy. She also regularly rubs a combination of Deep Heat, Rapid Gel and Nurofen Gel into her lower back;[55]
[55]Ex P1, p25
Sleep
(j) she suffers from broken sleep patterns due to her neck and back pain and tends to have difficulty getting to sleep. She also tends to be “up and down” during the night. Her chronically-disturbed sleep patterns leave her feeling tired and lethargic. In the morning, she often wakes feeling stiff and sore.[56] Due to her poor sleep patterns, her sleep is broken every night. She tosses and turns in bed and struggles to get comfortable enough to sleep. She feels tired and vague and has difficulties concentrating during the day, due to this lack of sleep;[57]
[56]Ex P1, p21
[57]Ex P1, p27
(k) as a result of her interrupted sleep, she is tired, frustrated and very worried about the future;[58]
[58]Ex P1, p28
Activities of daily living
(l) she has had a passion for horses since she was a young girl. She grew up in Bundoora and a local lady allowed her to ride her horses. Later, her father started buying horses. She has been passionate about horses since then;[59]
[59]Ex P1, p27
(m) her involvement with horses and ponies has continued since the transport accident, despite her injuries. Her involvement in this activity is now very different to what it was before the transport accident.[60] Her passion was to show horses. She used to regularly participate in this activity. She used to maintain her two ponies without assistance. Now, she relies upon assistance from other people to maintain them. If she overexerts herself with the ponies, for example by brushing them, then she experiences an increase in her spinal symptoms;[61]
[60]Ex P1, p27
[61]Ex P1, p21
(n) showing her ponies is the one hobby in her life that gives her real pleasure. She refuses to give it up even if it causes her more pain. Both her physiotherapist and Dr O Conghaile have told her she should try to ride horses and maintain her involvement with her horses if she feels up to it. However, the jolting and vibration from riding a horse causes her increased back pain, and she pays for it afterwards with heightened levels of pain. She no longer rides in the vigorous way she did before the transport accident;[62]
[62]Ex P1, p27
(o) she continues to show her ponies. The preparation for a show requires a lot of physical work and she needs help with that, whereas before the transport accident, she could do it all herself. These days she usually needs help with washing, brushing and “feathering”. She hates the fact that she now needs help with her ponies;[63]
[63]Ex P1, pp27-28
(p) she shows her pony approximately five or six times per year. Most of the shows involve her driving about an hour each way. The actual showing of the pony goes for about seven minutes;[64]
[64]Ex P1, p30
(q) in general terms, she has lost confidence because she is fearful of suffering further injury when engaging in these activities. She used to jog a couple of times a week but no longer engages in that activity. She is also restricted in her ability to ride a bicycle;[65]
[65]Ex P1, p21
(r) she struggles with domestic chores such as washing the dishes, washing her dogs or washing the clothes. Standing and leaning forwarded causes problems for her. She needs assistance with heavier cooking tasks, such as cooking a roast in the oven. She also struggles with outdoor maintenance tasks, for example attending to the garden or cutting lawns;[66]
[66]Ex P1, p21
(s) she finds that her walking, sitting and standing tolerances are restricted, as are her ability to bend and twist. She struggles with bending or lifting tasks;[67]
[67]Ex P1, p21
(t) driving a car for any extended period of time leads to an increase in the level of her symptoms;[68]
[68]Ex P1, p21
(u) her intimate relations with her partner were very significantly adversely affected by reason of the pain that she suffers since the transport accident.[69] She is currently single. The relationship she had been in when the transport accident occurred, came to an end in 2024. One of the reasons it ended was because of her reluctance to be intimate because of the increase in pain it caused her. Her partner became frustrated with that and it led to many arguments;[70]
Ability to work
(v) prior to the transport accident, she was able to perform her regular duties as an assistant in the deli section of Coles in Wallan. She worked fifteen to twenty hours per week in this role, without significant problems;[71]
(w) following the transport accident, she needed to be placed on light duties. She remained employed by Coles, but they were unable to provide her with the light duties she required. She ultimately ceased work with Coles in February 2019;[72]
(x) she has tried to work in a number of jobs since that time. She has been under a lot of financial strain and has needed to try and get some income. In late 2021, she obtained a job at Oliver’s Real Food Stall in Wallan. It was a part-time job and she was employed to do a range of activities, including making sandwiches, serving customers and washing dishes. Once she started the job, she told the employer about her back injury. The job caused an increase in her lower back pain, particularly when she needed to lift heavy produce and to bend down to access things. Also, long periods standing at the sink washing dishes, caused her increased pain. She was moving around fairly slowly to perform her work and her co-workers became frustrated with her. She made mistakes because she had trouble concentrating due to her pain. She was “let go” from that job in early February 2022;[73]
(y) after Oliver’s, she worked at another café in Wallan for a short period doing similar duties, usually for three-hour shifts. After about six months in that job, she then obtained a job at Pet Barn. She thought she would enjoy this job, given her passion for animals, particularly horses; however, she struggled with the work at Pet Barn. The job involved her using computers and a register that she found complicated. She is not very good with technology. One day while working at Pet Barn, she had an episode of very bad back pain. She told the employer about the transport accident and her back and neck injuries. Soon after that, she was told she was not going to get anymore shifts;[74]
(z) she then tried to work at McDonalds, firstly at Wallan and then at Whittlesea. She needed time off when she was having the procedures that were performed by Dr O Conghaile. McDonalds made it clear that taking time off work was an annoyance for them. There were aspects of her work at McDonalds that increased her back pain, including lifting buckets of water and cleaning the frappé machine. At the Whittlesea McDonalds, she did the deliveries, which she found increased her back pain, because of the driving involved;[75]
(aa) after this, she worked at Whittlesea Bakehouse doing customer service and making coffees. She last worked there in about September 2023. Whittlesea was about a twenty-five-minute drive each way from her home. The cost of petrol and the increased back pain she experienced when she drove for a long period such as this, meant that the job was not worthwhile;[76]
(bb) in approximately November 2023, she obtained a casual job as a sales assistant at the Strand Bags store in Plenty Valley. She struggled with this job because of her back pain. She regularly had to handle deliveries of products, including suitcases, and she needed to go up and down ladders to access shelves, all of which caused her increased pain. The employer knew about her back and neck problems and she believes it led to her getting less and shorter shifts at work. It took her about an hour to drive to work and an hour to drive home again afterwards. She stopped working there in May 2024. She has not worked since that time;[77]
(cc) she presently receives a disability support pension from Centrelink.[78] The unsuccessful attempts to work have caused her to feel anxious and depressed. She is very worried about her financial situation and her future;[79]
[69]Ex P1, p2
[70]Ex P1, p30
[71] Ex P1, p18; Ex P2, p25
[72]Ex P1, p22
[73]Ex P1, p26
[74]Ex P1, p26
[75]Ex P1, p26
[76]Ex P1, pp26-27
[77]Ex P1, p30
[78]Ex P1, p30
[79]Ex P1, p27
Psychological effects of the transport accident
(dd) she is a much more hesitant and vigilant driver nowadays. Her youngest son started driving a few years ago and she holds concerns for his safety on the road. She suffers flashbacks about the transport accident. She has symptoms of anxiety and depression, and takes a herbal treatment called Seremind for the purposes of relaxation.[80]
[80]Ex P1, p22
The Plaintiff’s viva voce evidence
44Under cross-examination, the plaintiff gave the following relevant evidence:
(a) she has been involved in showing Gypsy Cob ponies for only a few years;[81]
[81]Transcript (“T”) 20, Line/s (“L”) 21-25
(b) prior to showing Gypsy Cob ponies, she had a different breed. She used to do “Adult Riders” and occasional showing of these horses;[82]
[82]T21, L21-23
(c) she has had more success with the Gypsy Cobs than she ever had with the other types of horses;[83]
[83]T21, L26-27
(d) she agreed that when the first affidavit was prepared in 2020, she considered it to be true and correct and had also given that evidence in court today;[84]
[84]T25, L22-24
(e) when pressed on how this affidavit which contained inaccurate material came into being, she replied, among other things, “I do have trouble understanding sometimes”. She had previously given evidence that she suffers from dyslexia. It was also evident at times during her evidence that the plaintiff did not understand the questions that were being asked of her;[85]
[85]TT24-27
(f) she agreed she had shown a horse in the later part of 2018. She qualified this answer by saying, “Yes. Not on my own, though.”[86]
[86]TT27-28
(g) she agreed that she had shown her ponies on a number of occasions in 2019 and 2020 and going forward from there;[87]
[87]T32, L2-8
(h) on its own, standing does cause her problems, if she does it for too long a period.[88] The length of time for which she can stand, depends on her pain level at the time;[89]
[88]TT32-33
[89]T33, L4-7
(i) she agreed that if she had to bend forward to brush one of her ponies, that was something she would have great difficulty with. It was suggested to her that she would therefore avoid doing this activity. In response she replied, “Kind of have to, especially with hairy feathers”. This was reference to the fact that her ponies have long hair on their shins, which needs to be attended to prior to being shown;[90]
[90]T33, L16-24
(j) it was put to her that her ability to bend is restricted. In response to this, she replied “With pain”. I took this to mean that she could do this activity but experienced pain when she did so.[91] She agreed that the same was true with her ability to twist and turn, and also with bending and lifting;[92]
[91]T33, L30-31
[92]T34, L1-5
(k) driving a car for an extended period of time leads to an increase in the level of her symptoms;[93]
[93]T34, L6-7
(l) she was asked about the pain she experiences if she tries to engage in intimate relations. She said that she experiences “constant pain, different levels”;[94]
[94]T34, L8-12
(m) the plaintiff was shown some surveillance footage from 24 and 25 November 2023. In respect of the footage for 24 November 2023, which commenced at about 11.00am, the plaintiff agreed that this was taken at Kilmore Racing Club. She said she was with her Gypsy Cob pony and she was in the process of preparing that animal for a show;[95]
[95]TT37-38
(n) one of the activities she undertook on that day, was to wash the pony, as there are hotwash facilities at the racing club.[96] Her partner was also depicted in the surveillance footage.[97] She said that both she and her partner washed the pony on that day;[98]
[96]TT39-40
[97]T40, L13-24
[98]T41, L1-9
(o) she agreed that she both loaded and unloaded the materials for washing the pony, by herself;[99]
[99]T41, L10-17
(p) it was suggested to her that her partner was not very helpful in relation to this activity. She replied “He wasn’t very helpful that day. We were fighting [in] the morning”;[100]
[100]T41, L18-20
(q) it was suggested to her that one of the activities she undertook was to “muck out” the horse float with a shovel and a rake and also to stoop down and go under a bar that had been put across the float after the pony was loaded. She agreed she can bend, and added, “I can bend. It still has pain … But I can bend”;[101]
[101]T42, L9-19
(r) it was suggested to her that the mucking out of the horse float involved her bending and twisting, as she collected the debris in the bottom of the horse float and threw it out with her shovel or rake. In response to this she replied, “Still caused pain, but you’ve got to do it”;[102]
[102]T42, L20-26
(s) she was asked whether, after this activity, she “paid for it” the next day. She said that she did. She was asked for how long the pain would be significantly increased after such activity. In response to this she replied, “It goes on for a few days”. It was put to her that this takes her a bit of time to get over. In response to this she replied “Yes”. It was suggested to her that most people would “sort of lie low, as it were, take it pretty easy for a few days to overcome it?” In response to this she replied “Yes”. It was suggested to her that doing this type of activity would give her such pain that it would have the consequence of her having to take it easy for a few days. In response to this she replied “Yes”. She qualified this answer by saying “Like, I can still do things, but I just - yeah, I just take - like, take it easier, a bit slower”;[103]
[103]TT43-44
(t) she was asked whether, having seen the film of her activities on 24 November 2023, she could recall how she was after that activity. Initially she replied “Yes, sore” and then she enquired “As in after the day event?” It was explained to her that the question was in relation to her activities on 24 November. To this she replied, “Oh, the washing? Not that sore … I was sore, but not extremely sore. I did take my pain meds as well and also my … physio cream”;[104]
[104]TT45-46
(u) she agreed that the next day, which was show day, she was “very active”;[105]
[105]T46, L2-8
(v) she agreed that on the following day, preparing her pony for the show involved numerous tasks, for example brushing the pony and shining its coat. It was suggested to her that while her partner was there he was doing nothing. She agreed with this proposition. She then qualified her answer by saying the following: “Nearly every show that I’ve gone to I have a helper. That particular show I didn’t have a helper … So I was unfortunate to have to … have him. And I had one of my friends from the show, Alex, he said to me, ‘Why did he even come?’ And I said to him … ‘I don't know’. And he said, ‘He should have just stayed at home. He’s done nothing …’ But we were fighting in the morning, arguing”;[106]
[106]TT46-47
(w) she agreed that during a show, she has to do things like lead the pony and then jog it. This happens on a number of occasions during the day. She agreed that for most of the day she is either attending to the pony in a physical way, or standing around holding the lead of the pony;[107]
[107]T48, L5-14
(x) she agreed that on 25 November 2023, which was the day of the show, from about 8.20am onwards, there was “extensive bending”, “twisting from time to time”, “brushing the horse and other sorts of things”. She agreed that when she was bending over, the bending was “far more than 90 degrees”. She qualified these answers by saying “Yes. I’m still in pain. But, as I said, I’ve taken my pain meds … And my anti-inflammatory cream”;[108]
[108]TT 53-54
(y) she agreed that when she was standing in the main arena to show her pony, that involved her standing there “for hours” and from time to time having to lead the pony around and jog with it;[109]
[109]T55, L10-18
(z) she qualified her earlier answer by saying that she did bring a chair to sit down in;[110]
[110]T55-56
(aa) she agreed that she had sat down into the chair and gotten herself up out of it without any apparent difficulty;[111]
[111]T56, L12-14
(bb) it was suggested to her that there is no evidence on the film of any discomfort suffered on her part. In response to this she replied, “Yes, I was … I could feel the discomfort”;[112]
[112]T56, L19-27
(cc) it was suggested to her that there would be overt signs of pain, if she had really been in pain on the day. In response to this she replied, “Yeah … I’m just pushing myself through the pain to get my pony into the ring … I had no choice. I had to push through the pain … I can’t give up or else I might as well just put the horse back in the float and leave”;[113]
[113]T57, L1-28
(dd) she was pressed on the fact she had been bending very low down in circumstances where she had previously given evidence, that simply standing and leaning forward can cause her problems. In response to this she replied, “Yes, it can”. It was put to her for a second time that on the film she is “standing, twisting, bending, leaning forward, and not just leaning, bending right forward and continuing to work”. In response to this she replied, “Yep, and then I suffer the next day”;[114]
[114]T58, L1-11
(ee) it was suggested to her that if she had been in pain, she would have gone to the doctor to complain about the pain and seek some assistance. In response to this, she replied:
“… all I do … after a show, I do rest. I don’t even take the things out of my car straightaway. I’ve still got stuff in my car from some other shows … So, if I wasn’t in pain, I clean my car right out. But I leave it in there because it’s convenient and it’s there, and if I need it I just grab it from the car. Am I making sense?”[115]
[115]TT58-59
(ff) she was pressed again about the activities she undertook in preparation for showing her pony. In particular, it was put to her that the activity was “pretty vigorous activity in terms of bending, twisting, et cetera”. She agreed with this proposition. It was put to her that the activities she undertook were not just “for five minutes … you keep going for another six hours with it”. She agreed with this, but then clarified that she had not been cleaning and preparing for the six hours. It was put to her that she was engaged in activities of showing the pony, such as standing and talking with other people and moving the pony around when required. She agreed with this proposition;[116]
[116]T62, L1-15
(gg) it was suggested to her that she would go to up to ten shows per year. She thought it was more likely to be six to eight shows;[117]
[117]T62, L16-24
(hh)it was suggested to her that every time she shows a pony, she has been responsible for the way in which that pony is presented. In response to this she replied, “Yes, but I have many hands help me. I was very unfortunate at this show I had to have … [my partner]. I can name all the people that have helped me actually get in there, get wet and clean my ponies every time”. It was suggested to her that far from needing assistance, she was able to just get on and do the preparation that was needed to successfully show her pony. To this she replied, “Easier to have helpers”;[118]
[118]T63, L20-30
(ii)it was suggested to her she barely mentioned the fact that she used to love riding in her affidavits. To this she replied, “Yes, I used to ride Gidget. I bought her as a baby … And she was broken to saddle … I don’t ride as often because I always worried that I was going to strain my back even more”;[119]
[119]T66, L18-30
(jj) she still does ride, but she is not cantering around or trail riding. She said that she did go on one trail ride, but was very nervous. That was a long time ago. She said, “I’m not the little yahoo that I used to be … I used to venture everywhere with my horses … I had friends’ horses that I could ride”;[120]
[120]TT67-68
(kk) she said that she keeps showing her ponies and also riding horses to the best of her ability, “for my mental health”. She can only ride for about half-an-hour;[121]
[121]T68, L20-30
(ll) she has not ridden a horse for a few months. She said that she rides her friends’ horses and only engages in “quiet riding”. She explained that this means she rides when she is “at home. I’m not going anywhere … I don’t need the saddle. I’m only walking”;[122]
[122]TT69-70
(mm)it was suggested to her that two weeks prior to the transport accident, she had attended at her general practitioner in a distressed state with lower back pain. In response to this she replied, “Yes. Obviously niggling pains and also my period … makes my … back sore as well”. It was suggested to her that this had nothing to do with her presentation. It was put to her that she was referred by her general practitioner for a repeat CT scan at that time and a certificate to be off work. She said that it was hard to remember so many years back;[123]
[123]T71, L5-25
(nn) it was put to her that in those circumstances, the level of pain that she was complaining of to her general practitioner was enough for him to refer her for a CT scan of her lower back. She was reminded that this was prior to the transport accident. In response to this she replied, “Yes, and I … do suffer pain at work”. She was pressed on this point, and agreed that the back pain at that time was “work related”;[124]
[124]T72, L9-23
(oo) she said that the back pain she was experiencing at that time is “a different pain to what I suffer now”. She explained that the back pain from which she was suffering prior to the transport accident “did settle. That pain did settle”;[125]
[125]TT73-74
(pp) it was suggested to her that in the twelve months leading up to the transport accident, she had had a lot of time off work. In response to this she replied, “Yes, because we were going through family violence”;[126]
[126]T74, L10-15
(qq) she was again referred to the fact that in 2018, in early July, her pain was so bad the general practitioner was thinking it was appropriate to refer her for a further CT scan. In response to this she replied:
“But it’s a completely different pain ... the pain I have here is ongoing. It’s here 24/7. It varies day to day. The pain that I get, there’s some mornings where I can’t straighten my back. Even my son says ‘Mum what’s wrong with you? Why are you walking funny?’ There’s times where I haven’t even been able to feed my ponies ...”;[127]
[127]T75, L18-28
(rr) it was suggested to her that from time to time over the years prior to the transport accident, she had gone to the general practitioner in relation to back pain. She agreed with this proposition but replied, “Yes, but this is different … it’s not the same”;[128]
[128]T76, L10-15
(ss)it was again suggested to her that within a couple of years prior to the transport accident, she was seeing her general practitioner with difficulties in her back that were work related. In response to this she replied, “Yes. But … my back did get better. I had better days. I had a lot more pain-free days. But this pain here I have every day”;[129]
[129]T77, L2-8
(tt) it was suggested to her that she was distressed when she went to see the general practitioner, just prior to the transport accident. She agreed that she was in a situation where she was doing heavy work and suffering from pain in her back because of it and that when she saw her doctor, she was very upset. She described what she was feeling as “Frustration”. She qualified this answer by saying, “But it never stopped me from doing the stuff that I had to do”;[130]
[130]T77, L9-28
(uu) she agreed that prior to the transport accident, she had pain running down her legs;[131]
[131]T78, L28-29
(vv)she qualified this answer by saying “Yep. I know I used to get pain in my buttocks that goes down … into my legs when - with my period”;[132]
[132]TT78-79
(ww)it was then put to her that she had suffered from lower back problems that had occurred for years prior to the transport accident and they were sufficiently severe that she had to seek medical assistance. She replied, “Yes, but it’s not the same pain”;[133]
[133]T79, L23-25
(xx)she was working twelve to fourteen hours per week at Coles at the time of the transport accident;[134]
[134]T85, L16-21
(yy)she agreed that in the financial year immediately before the transport accident, she earned the sum of $17,850 from Coles or approximately $350 per week, gross. She agreed that in the year prior to that, she had earned an income of about $23,000 from Coles and also had Centrelink payments of $8,258. She said she was entitled to unemployment benefits at that time, due to low income. She agreed that in the financial year ending June 2024, she received about $31,000, including $24,600 in government allowances;[135]
[135]TT85-88
(zz)the last paid job that she had was with Strand Bags;[136]
[136]TT88-89
(aaa)she moved into a new share house just after Christmas last year. She presently lives with two people who she does not know very well;[137]
[137]T89, L15-20
(bbb)she agreed that the house she is now living in can be described as “very substantial”, and is on some acreage where she can also store her ponies;[138]
[138]TT89-90
(ccc)she agreed that there were times over the years leading up to the transport accident in July 2018 that she was attending her general practitioner for lower back pain and also neck pain;[139]
[139]T98, L7-14
(ddd)it was suggested to her that these problems started at work with her lifting heavy weights and twisting. The plaintiff said that she had been lifting chicken crates. She agreed she had experienced some pain, but qualified this answer by saying “But it wasn’t ongoing”;[140]
[140]T98, L15-24
(eee)she agreed that it was after this incident with the chicken crates that her back pain started to “come and go”.[141] She agreed that following that incident, she was referred for a CT scan which took place in August 2016;[142]
[141]T98, L27-28
[142]TT99-100
(fff)it was put to her that just prior to the transport accident, she had been having some time off work, both in relation to emotional issues arising from her domestic situation and also in relation to her back pain. She agreed with both of these propositions;[143]
[143]TT100-101
(ggg)the trip to Bendigo on the Saturday of the pony show which was depicted in the surveillance video, involved a drive of about one-and-half hours. She agreed that when she arrived at the show, she was able to go “straight into action”. She qualified this answer by saying “Yes. But also I would have taken all my meds in the morning … my Panadol, my Nurofen. So my anti-inflammatory, Panadol and … my Nurofen [G]el”;[144]
[144]TT102-103
(hhh)she said that horses are her “go-to place when I’m down and out … because it was for my mental health”;[145]
[145]T105, L17-25
(iii)she agreed that if she had told a doctor that following the transport accident, she no longer showed her ponies, that was incorrect;[146]
[146]T107, L9-31
(jjj)she has never been a particularly social person. She has a small group of friends. She agreed that that was the case before the transport accident and is still the case now;[147]
[147]T108, L1-4
(kkk)she was shown various extracts of the surveillance film taken of her on 25 November 2023 at the show in Bendigo. She was asked what preparation is needed for a pony show. She said that there is not much work involved, just a day or two before the show, you get the ponies out of the paddock and “spruce them up”.[148] She agreed that the preparation she undertook for this particular show in Bendigo was “pretty standard” for her showing activities;[149]
[148]TT114-115
[149]T115, L17-18
(lll)the pony show involved a lot of standing around. She was questioned once again about whether or not she had needed a chair to sit down in. She explained that her partner had a chair, but that he did not bring it over to her. She agreed that she could have asked him to go and get it for her when he brought her lunch. In response to this she replied, “Yeah. Yeah. It just didn’t happen”. When asked why that did not happen she said “I don’t recall. I can’t remember … I don’t recall asking him for the chair”. She qualified this answer by pointing out that she had in fact borrowed a chair from one of her friends at some stage during the day;[150]
[150]TT117-118
(mmm)it was suggested to her that when she jogged with the pony to get the pony into a trot she appeared to be unrestricted in that activity. In response to this she replied, “Yes. You still have pain but … you push yourself through it … you still have pain, but you know you’ve still got to walk out and trot across because you’ve got to do what the judge asks you to do”;[151]
[151]T119, L2-15
(nnn)she agreed that participating in shows was a voluntary activity on her part;[152]
[152]T119, L16-18
(ooo)while at the pony show, she had not taken any more medication during the course of the day;[153]
[153]T119, L21-24
(ppp)it was suggested to her that on her way home from the pony show, it was clear from the surveillance footage, that she had changed clothes. It was suggested to her that this must have happened while she was in a moving car. In response to this she replied:
“I’ll be honest, I can’t remember that little bit … could I have got dressed on the other side of the vehicle where the camera man is … because I don’t know how I would have got the dress undone, because it comes undone from the front, and then take it off and then try and get the dress off and get dressed in the car … I can’t remember … it’s highly unlikely, but there’s a possibility that [I] could have...”[154]
[154]TT122-123
(qqq)it was suggested to her that at no stage in the surveillance film during the long car trip home, did she demonstrate obvious discomfort, such as stretching when she got out of the vehicle for a rest. In response to this she replied, “There would’ve been … Yes, there would’ve been discomfort. I’ve lived with it for all this time now”;[155]
[155]T124, L2-25
(rrr)she was pressed about the issue of whether or not she was demonstrating any discomfort at all on the surveillance film. In response to this she replied, “I’m sure I would’ve been in discomfort … I’m in discomfort now … But it doesn’t mean I’ve got to walk around with my hands on my back all day every day. I feel the pain”;[156]
[156]TT124-125
(sss)she was pressed further about this point, and replied that she had done a lot of sitting and a lot of standing while at court and that she was feeling “sorer today”;[157]
(ttt)it was suggested to the plaintiff that it is not a challenge for her to put on her socks. In response she replied “It depends on the pain level, but yes. Not always … it depends what pain level I’ve got that day”;[158]
(uuu)she was asked whether or not she was wearing slip-on shoes in the surveillance film. She agreed that this was true. She was questioned about why she cannot always wear slip-ons if she has a problem putting her shoes on. In response she replied, “Well, when you’re working around horses you shouldn’t wear slip-on shoes”;[159]
(vvv)it was suggested to the plaintiff that in the surveillance film, on at least one occasion she was bending over continually for something in the order of half-an-hour. In response to this she replied, “Yes, but you’re still suffering pain but you still know you’ve got to do it and … I still do it because it’s rewarding for me … I do it still having pain”. It was suggested to her that even though she did that activity, she still enjoyed the day. In response she replied, “Yes, it was a rewarding day … It’s the only little bit of outlet that I get”;[160]
(www)it was suggested to her that despite the activity she had engaged in to prepare the pony for the show on the Friday, she bounced straight into activities on the Saturday morning. She pointed out that she had had her partner helping her to wash the pony on the Friday;[161]
(xxx)it was suggested to the plaintiff that she enjoyed jogging the pony around the arena during the show. In response she replied, “Yes, but you have to … play the role”. It was suggested to her that she was not playing any role but, in fact, she was involved in the show and enjoying it. In response she replied, “And I know that it’s going to be shortly ended and then I’ll suffer the consequences afterwards”;[162]
(yyy)it was put to the plaintiff that given the activities that were observed on the surveillance film, she would be able to work behind a counter in a shop part time. In response to this she replied:
“No way. I’ve tried. I’ve tried at McDonald’s. As soon as they found out, I got cut down to one shift a week. Then Petbarn … I lost my job a couple of weeks before Christmas, and that’s … when I went to work for McDonald’s … I remember getting in the car … and I was in tears because I was in so much pain. There were many times I come home, I sit in the car because I’m still sore, then I get out of the car …”[163]
(sic)
[157]T125, L14-19
[158]T126, L23-27
[159]TT126-127
[160]TT127-128
[161]T128, L22-26
[162]T128, L8-21
[163]TT134-135
(zzz)she was asked whether or not she was in tears after the pony show that was depicted on the surveillance film. In response she replied “No, but I definitely would have felt it the next day, during the night, I would have felt it”. It was put to her that, in any event, she had persisted with showing her ponies. In response she replied, “It’s the only outlet I have … I didn’t buy [the horses] to be garden ornaments … it’s my only happy place”;[164] and
(aaaa)it was suggested to the plaintiff that she has continued to receive awards for her showing of ponies. In response she replied, “Yes, and I feel proud for it”. It was suggested to her that she now receives many more awards than she had received before the transport accident. In response she replied, “That makes me even more prouder”.[165]
[164]TT134-135
[165]T135, L21-29
45During re-examination, the plaintiff gave the following relevant evidence:
(a) she started showing horses when she was around thirteen or fourteen years of age;[166]
[166]T136, L18-20
(b) she was asked what she meant by saying that showing horses is her only outlet. In response to this she replied, “Well, no one comes to visit me. I don’t often go out … Occasional family function, occasional lunch with a friend, but it’s so rare. I feel alone all the time”;[167]
[167]T136, L21-25
(c) prior to beginning to show Gypsy Cob ponies, she used to go to agricultural shows with her Arab horses. She would ride those horses in those shows.[168] If she was to ride a horse now, it would be likely to make her a bit sore. She said that all she would do now is a “walk-trot class”. Prior to the transport accident, she used to do “Everything” on her Arab horse. She said that she would “Walk, trot, canter, jumping”. She was asked how she would go now with cantering and jumping. She said that she would not be able to do that now;[169]
[168]TT136-137
[169]T137, L12-21
(d) she clarified that the reason she would not able to canter, jump or gallop is that she feels she has been deskilled, because she has been unable to undertake this type of task for so long. She also said that because she has never done this activity with her current pony, they have not “worked together”. She agreed that it would take some effort on her part to get those skills back up again;[170]
[170]T138, L11-24
(e) she was asked about how she felt from a physical point of view after the pony show that was shown on the surveillance video. In particular, she was asked whether or not she would have suffered for a few days afterwards. In response to this she replied, “A thousand per cent, yes”;[171]
[171]T139, L9-11
(f) she was asked how she would “suffer” after showing her pony. In response she replied:
“My back, it feels that … it goes like in a spasm and I can’t straighten it, to the point … I don’t know if it was that show, but one of the shows I rang … [my neighbour] across the road and I was in tears … and I said, ‘I can’t feed the ponies’. She came over and … she ended up helping me feed the ponies because I was in that much pain.”
(g) she was asked how she manages those symptoms after she suffers a flare-up like that. In response she replied, “Painkillers, Deep Heat or Nurofen Gel … Just the Panadol and Nurofen because I’ve had the anxiety of prescription drugs until recently”;[172]
[172]T139, L12-26
(h) she explained that the anxiety she had in relation to prescription drugs had persisted until recently, when she had gained more confidence because she had started taking Palexia;[173]
[173]T139, L27-30
(i) she takes Palexia at night-time. If she needs to take medication because she is suffering from a flare-up, in addition to the medication she tries to stretch, and also uses hot packs and Nurofen Gel;[174]
[174]T140, L1-10
(j) it can take up to two days for her symptoms to settle down after she has undertaken a strenuous activity, like showing her ponies;[175]
[175]T140, L11-13
(k) she was asked what she meant when she said she had been in discomfort in court. In response she replied, “My lower back. Also my neck. My head aches”. She was asked what had caused the pain in her lower back, to which she replied, “Sitting too much”;[176]
[176]T140, L14-19
(l) she agreed she had taken some time off prior to the transport accident in relation to her back problems. Her best estimate about the amount of time that would have been in the twelve months prior to the transport accident was “weeks”;[177]
[177]TT140-141
(m) she was asked to explain how the pain she had while working in the deli was different to the pain she had after the transport accident. In response to this she replied:
“Oh, completely … The pain goes from the centre of my back across into my left hip … even if I was to twitch like that, it grabs in there. So it goes – like, it goes into my buttocks. But it’s like a grabbing pain. And in my lower back … So that is ongoing. So I’ve got that during the night as well … .”[178]
(n) she was asked how frequently, prior to the transport accident, she would experience back pain. In response to this she replied, “Not every day. Not every day”;[179]
(o) she was asked, after the transport accident, how frequently she experiences back pain. In response she replied, “I have it every day”;[180]
(p) she was asked what her level of pain was like in her back prior to the transport accident. In response to this she replied, “Probably a 5, 6”;[181]
(q) she was asked what is the level of pain in her back since the transport accident. In response she replied, “Seven, 8”;[182]
(r) she was asked about her present ability to go on trail rides. She said that she could perhaps ride her horse if it was walking and possibly do a forty-minute trail ride. When asked how that compares with the sort of trail riding she used to do before the transport accident, she replied, “Very different. We could go for hours”.[183]
[178]T141, L14-23
[179]T141, L25-26
[180]T141, L27-28
[181]T141, L29-30
[182]TT141-142
[183]T142, L16-25
The lay witnesses
46The plaintiff relied upon evidence from four lay witnesses. The relevant evidence contained within the affidavits and statements from the lay witnesses is as follows:
Sarah Brennan
(a) she is a store manager working for Oliver’s Real Foods in Wallan. As store manager, she is responsible for many aspects of the business. This includes hiring staff, teaching staff, managing staff performance and releasing staff;[184]
[184]Ex P1, p33
(b) the plaintiff was employed by Oliver’s in late 2021 as a “café all-rounder” at one of the Wallan stores;[185]
[185]Ex P1, p33
(c) prior to the plaintiff starting work at Oliver’s, Ms Brennan did not know she was involved in a transport accident, nor that she had been injured in it. The plaintiff’s ongoing permanent employment was subject to her passing a probationary period of approximately six months. Ms Brennan became aware of the plaintiff’s injuries and told her not to lift the heavier or bulkier items of stock and other items. The plaintiff also needed to have additional breaks at times because of her back pain. She would sit down for a while and then start working again. There were times when Ms Brennan saw the plaintiff looking very uncomfortable and in pain;[186]
[186]Ex P1, p34
(d) she also noticed that the plaintiff’s memory and concentration were poor. The plaintiff often forgot customers’ orders. Customers complained to Ms Brennan that the plaintiff recorded their order wrongly. The plaintiff’s limitations were an inconvenience to the business. Other staff members complained to Ms Brennan that they had to pick up the plaintiff’s “slack”, such as when she had a sore back, could not lift, or messed up orders. It was neither efficient, nor effective to have an employee like the plaintiff, who was supposed to be an “all-rounder” who could not perform many crucial duties of the job reliably or consistently. Although the plaintiff tried her best, unfortunately Oliver’s had to let the plaintiff go in February 2022, before she completed her probationary period.[187]
[187]Ex P1, pp34-35
Brayden Hocking
(a) he is the plaintiff’s youngest son. Until recently he lived with his mother some of the time and other nights spent time at his girlfriend’s house;[188]
[188]Ex P1, p36
(b) before the transport accident, his mother was a happy, energetic person. She was always busy and had a passion for spending time with horses and showing her horses. It formed a huge part of her life;[189]
[189]Ex P1, p37
(c) he remembers his mother enjoying spending time out of the house. She was either with her horses, showing her horses or working;[190]
[190]Ex P1, p37
(d) before the transport accident, they spent a lot of time together and were very close. When he was younger, he would go with his mother and spend time with her as she cared for her horses, and he would also watch her show her horses;[191]
[191]Ex P1, p37
(e) following the transport accident, his mother changed as a person. She now always appears to be in pain. She tells him she is having back pain. He sees her struggle every day. She no longer wants to socialise and leave the house like she used to. She seems to have lost her happy, energetic nature. She is now often stressed and moody;[192]
[192]Ex P1, p37
(f) as a result of the transport accident, the plaintiff is no longer able to maintain and care for her horses on her own like she used to. She needs a lot of help. Because of her injuries and the pain she is in, she cannot perform a lot of the tasks required to upkeep, prepare and show a horse on her own. He knows that horses are his mother’s biggest passion in life. It has been very sad to see her injuries affect her so much;[193]
[193]Ex P1, p37
(g) he often sees his mother grimacing and moving in a slow and awkward manner, particularly when she is doing physical activities like cleaning the house;[194]
[194]Ex P1, p37
(h) based on his conversations with her, he believes his mother has had difficulties maintaining employment following her transport accident and is not currently working. He knows that things are tight for her financially.[195]
[195]Ex P1, p37
Lisa Buckley
(a) she is the president of the Australian Heavy Horse Association and committee member of the All Breeds Show Society;[196]
[196]Ex P1, p39
(b) in addition to her role as president and her position as a committee member, she also has her own horses that she shows. She competes in shows approximately twice per year;[197]
[197]Ex P1, p39
(c) showing horses is a year-round commitment. You must maintain your horses all year round, in order to maintain their condition to show even once per year. It requires an enormous amount of commitment and dedication to show horses;[198]
[198]Ex P1, pp39-40
(d) the process of maintaining show horses involves intense and physical work. The horses must be fed, washed, exercised and trained regularly. Even in the off season, when horses are not shown, they must be regularly cared for to maintain their show condition. The workload and amount of physical work to prepare a horse for show, increases the closer you get to the show;[199]
[199]Ex P1, p40
(e) she has known the plaintiff for approximately ten years. They first met through the All Breeds Show Society and quickly bonded over their shared passion for showing horses;[200]
[200]Ex P1, p40
(f) both she and the plaintiff own a rare breed of horse to Australia, called a Gypsy Cob. They bought their Gypsy Cobs from the UK and Ireland;[201]
[201]Ex P1, p40
(g) prior to the transport accident, the plaintiff was an energetic, excited and happy person. The plaintiff would come to the shows early and help set up the rings and then stay behind at the conclusion of the shows to help pack the ring up. The plaintiff was a very “hands-on” person. Not everyone that shows would help set up and pack up. She was an invaluable member of the show community;[202]
[202]Ex P1, p40
(h) the plaintiff was heavily involved in the show world and would prepare and show her own horses. She would do so without assistance. The plaintiff used to have two Gypsy Cobs, a stallion and a filly. Stallions are notoriously difficult to handle and the plaintiff’s was a particularly difficult stallion. The plaintiff handled him extremely well;[203]
[203]Ex P1, p40
(i) the plaintiff’s horses were always in excellent condition. She would frequently take out the top prize when showing her horses;[204]
[204]Ex P1, p40
(j) she is aware the plaintiff sustained injuries in a transport accident in or about July 2018. The plaintiff has spoken to her a number of times about the pain she suffers since the transport accident;[205]
[205]Ex P1, pp40-41
(k) the plaintiff is no longer the happy person Ms Buckley used to know. She seems to be in pain and depressed now. The plaintiff can no longer show horses on her own. She has lost all her excitement. She is now very slow as a result of her injuries. There is no way she could do what she used to;[206]
[206]Ex P1, p41
(l) since the transport accident, from her observations, the plaintiff’s involvement with showing her horses has drastically altered. Their club is all-inclusive and they did not want the plaintiff to be excluded because of her injuries and limitations. As a committee, they arranged a meeting to discuss how they could still support the plaintiff to show her horses, in keeping within her physical limitations;[207]
[207]Ex P1, p41
(m) she has seen that the plaintiff has not been physically able to undertake all of the tasks involved in preparing/showing her horses on her own, following the transport accident. Without the assistance with heavier tasks which the committee provides, she does not believe the plaintiff would be able to show her horses at all;[208]
[208]Ex P1, p41
(n) following the transport accident, the committee have rallied around the plaintiff to provide her with any and all assistance required to prepare her horses to show. When she has been able, the plaintiff will then walk her horse into the ring to show. On other occasions, when the plaintiff’s pain has been too bad to lead her horse in the show, another member of the community who they had appointed to assist the plaintiff that day, would take over to show the horse;[209]
[209]Ex P1, p41
(o) Ms Buckley has personally assisted the plaintiff to prepare and show her horses on more than one occasion. The plaintiff would watch her show the horse from the sidelines and then have a photograph with the horse afterwards. She has gone out and personally helped the plaintiff wash and upkeep her horses since the transport accident;[210]
(p) Ms Buckley finds it sad to see how much independence the plaintiff has lost since the transport accident. She understands just how much the plaintiff’s horses and her involvement in showing her horses means to her.[211]
Sharon Pedder
(a) she gave a statement to M&A Investigations on 13 August 2020. She has re-read the statement. The contents are true and correct;[212]
(b) she is the officer in charge of Coles at Wallan. The plaintiff commenced employment with Coles on 4 February 2013;[213]
(c) following the transport accident, the plaintiff took various periods of leave from work, both unpaid leave, sick leave and annual leave, up until she finished working for Coles;[214]
(d) at the time of the transport accident, the plaintiff was employed as a deli assistant in a permanent part-time role for thirteen hours per week. Prior to the transport accident, the plaintiff was able to perform all of her duties in full. The plaintiff was fit and healthy at all times preceding the transport accident. Ms Pedder was not aware of any physical injuries that existed before the transport accident;[215]
(e) the plaintiff did have issues with attendance at work and disciplinary issues for not following policies and procedures properly, prior to the transport accident. These were unrelated to anything to do with injuries;[216]
(f) the plaintiff had no previous workplace injury claims;[217]
(g) following the transport accident, the plaintiff had modifications applied to her work capacity which involved limitations on lifting, bending, twisting and being on her feet for no longer than twenty minutes. There were also restrictions on how long the plaintiff could work in any one day and restrictions on the number of days per week she could work. In the end, Coles did not have any duties to cover these restrictions and they were unable to offer her any suitable employment.[218] The plaintiff’s prospects for future employment with Coles are low, given the current restrictions that she faces.[219]
[210]Ex P1, p41
[211]Ex P1, p41
[212] Ex P2, p3
[213]Ex P2, p23
[214]Ex P2, p23-24
[215]Ex P2, pp24-25
[216]Ex P2, pp24-25
[217]Ex P2, p26
[218]Ex P2, p24
[219]Ex P2, p26
The medical evidence
47There were numerous medical reports and other documents in the tendered material, concerning treatment received by the plaintiff, both prior to and following the transport accident. Both sides relied upon reports from medico-legal experts. A précis of the relevant medical materials is set out below.
The Plaintiff’s medical reports
48The plaintiff relied upon two documents from Dr Selim Shubbar, treating general practitioner, the first being a report dated 4 November 2024 and the second being a letter dated 11 March 2025. In the first report, Dr Shubbar recorded that the plaintiff was seen at the Northern Hospital Emergency Department on 16 July 2018, for injuries sustained in a transport accident. He noted that the plaintiff’s main symptoms at that time were neck pain, left shoulder and mid-back pain. The plaintiff has continued to experience chronic mid-back pain and neck pain since the transport accident, despite the use of pain medication and referrals to pain specialists and neurosurgeons for care. The plaintiff’s main injury/diagnosis is “C5-C6 disc bulge and L4-5 disc bulge with soft tissue injury”. These injuries cause ongoing mid-back and neck pain and an inability to perform her work duties, causing exacerbation of her anxiety and low mood. The injuries sustained by the plaintiff in the transport accident affect her capacity for both full-time and part-time duties. He noted that the plaintiff had tried many times to push herself to undertake work duties like working in a café or in the food industry, such as at McDonalds. He said that unfortunately she had been unable to cope with these duties due to the flare-ups she experiences in her neck and also mainly her mid-back pain. He noted that due to the plaintiff’s level of education and lack of experience, she is unable to undertake administrative or other physical duties. He thought that the plaintiff would likely continue to have chronic lower back pain with episodes of acute exacerbations. He thought that the effect of this would be to cause chronic tiredness, anxiety and also low mood.[220]
[220]Ex P1, pp105-106
49In the letter dated 11 March 2025, Dr Shubbar noted that the plaintiff “still has significant low back pain due to her TAC related injury”. He said that painkillers/Palexia help the plaintiff, but this is not a long-term solution for her pain. He noted that the pain specialist had requested approval from the TAC for a spinal cord stimulator. He supported the plan to undertake that procedure, to assist the plaintiff to resolve her pain and improve the quality of her life.[221]
[221]Ex P1, p107
50The plaintiff relied upon two reports from Mr Yagnesh Vallore, neurosurgeon and spine surgeon, the first dated 26 November 2020 and the second dated 17 March 2021. In the first report, Mr Vallore noted that the plaintiff’s recent MRI scan “shows ongoing issues at L4-L5 [where] there is a disc prolapse and neural impingement with biforaminal stenosis. There are Modic endplate changes. There is loss of disc height.” He said that he had “once again given her the option of an L4-5 decompression and fusion procedure”. He noted that the plaintiff was keen to avoid surgery at that stage and wanted instead to continue with pain management.[222]
[222]Ex P1, p97
51In the report dated 17 March 2021, Mr Vallore noted the plaintiff’s ongoing issues with her back pain, which were related to L4-5. He said that during a Telehealth consultation of the same date, he had given the plaintiff “the option of considering L4-L5 epidural versus disc replacement versus fusion”. He noted that once again she was not keen on the idea of surgery. He noted that she had received approval to have an epidural procedure and he referred her to see Dr Stiofan O Conghaile, pain physician, to perform that procedure.[223]
[223]Ex P1, p98
52The plaintiff relied upon sixteen pieces of correspondence and reports from Dr O Conghaile, pain physician, dated between 4 August 2021 and 13 February 2025. In the first report dated 4 August 2021, Dr O Conghaile noted that the plaintiff’s pain had begun in July 2018 as a result of a transport accident. He said that she reported suffering from “severe low back pain since this injury … Aggravators of her pain include sitting, standing and walking. Lifting, bending and twisting motions also caused her significant pain aggravation.”[224] He noted that the plaintiff had been unable to work since the transport accident. He also noted that prior to suffering the spinal injury the plaintiff had been a keen horse rider, but unfortunately since that time, had not been able to undertake this activity. He said that her pain was:
“… relatively severe with average pain scores of 7/10. There had been a great deal of pain interference in a variety of domains including general activity, mood, walking, sleep and enjoyment of life. She reported that sleep disturbance due to pain was particularly problematic.” [225]
(emphasis added)
[224]Ex P1, p52
[225]Ex P1, p52
53Dr O Conghaile thought it was very difficult to predict the prognosis for the plaintiff’s chronic pain with accuracy. He said that for the majority of patients –
“… it is difficult to completely eliminate pain, although I am hopeful that the severity can be reduced substantially and meaningfully. Whilst I think it is acceptable and reasonable to aim to attenuate such pain with future treatment modalities, on the balance of probabilities, I expect that … [the plaintiff] can expect to have some degree of chronic pain into the foreseeable future.”[226]
[226]Ex P1, p54
54He also noted that the plaintiff’s future work capacity would be linked to her prognosis.[227]
[227]Ex P1, p54
55Dr O Conghaile performed a bilateral lumbar medial branch block and sacroiliac joint injection on 19 November 2021. He said that the plaintiff reported a “strongly positive diagnostic response” to this procedure. He noted her report of “a 70% improvement in her pain that lasted for approximately two weeks”.[228]
[228]Ex P1, p58
56Dr O Conghaile performed a diagnostic lumbar medial branch block once again in March 2022. He noted that this procedure had not made any difference to the plaintiff’s pain. In a letter dated 13 March 2022, he set out his plan to request funding for “bilateral sacroiliac joint blocks as the sacroiliac joints might be the underlying source of pain”.[229]
[229]Ex P1, p63
57In a report dated 31 May 2022, Dr O Conghaile noted that on examination of the plaintiff, “there was tenderness in the paravertebral muscles in the low lumbar region”.[230] He thought that the plaintiff was suffering from “discogenic pain related to L4/5 disc degeneration, following a road traffic accident. There may also be pain arising from the [l]umbar facet joints and the sacroiliac joints.”[231] He thought the plaintiff could expect to have some degree of chronic pain into the foreseeable future. He said that he had reassured the plaintiff that horse riding would not cause any damage to her back, or at least would be very unlikely to do so under normal gentle riding conditions. In those circumstances, he supported her return to horse riding if she found it tolerable from a pain perspective.[232]
[230]Ex P1, p67
[231]Ex P1, p69
[232]Ex P1, pp68-69
58In a letter dated 1 March 2023, Dr O Conghaile noted that the plaintiff was working at present out of financial necessity, but struggling with part-time work and only undertaking it with “a great deal of difficulty”. He set out his opinion that, given her pain levels, her age, education, training and experience, her injuries have substantially reduced her capacity to obtain and maintain employment in today’s job market.[233]
[233]Ex P1, p75
59On 24 April 2023, Dr O Conghaile performed a bilateral sacroiliac joint radiofrequency denervation procedure on the plaintiff.[234]
[234]Ex P1, p77
60On 28 June 2023, Dr O Conghaile wrote a letter to the TAC recommending a trial of a spinal cord stimulator in the plaintiff. He said that the treatment was being requested “with a reasonable expectation that we will see a positive impact in terms of reduced pain interference, reduced reliance on pain medications and improved function”.[235] I note that funding for this procedure was not approved.
[235]Ex P1, pp78-79
61Following the radiofrequency denervation procedure in April 2023, the plaintiff was asked to fill out a form recording her pain scores on a monthly basis. On this form, the plaintiff estimated that she had received a 30 per cent improvement in her pain levels up to six months following the procedure. Nevertheless, she noted in the comments section, that she was still experiencing flare-ups of pain and that the improvement had not lasted as long as she had hoped. She noted that some of the flare-ups were very painful and that her sleep was still very disrupted, which reflects in her diminished energy throughout the day. She noted that she had hoped for a longer-lasting pain relief as she struggles to keep concentrating.[236]
[236]Ex P1, pp82-83
62On 13 May 2024, Dr O Conghaile requested funding for a repeat sacroiliac joint radiofrequency denervation procedure. He made this application on the basis that the previous procedure had had a positive impact on the plaintiff’s pain levels for a number of months.[237]
[237]Ex P1, p84
63On 17 June 2024, Dr O Conghaile performed the repeat sacroiliac joint radiofrequency denervation procedure.[238]
[238]Ex P1, p86
64In a letter dated 25 August 2024 to the plaintiff’s general practitioner, Dr O Conghaile reported that the plaintiff had reported substantial improvement in her pain following the recent procedure and that she was at that time satisfied with the result.[239]
[239]Ex P1, p87
65In a letter dated 13 November 2024, Dr O Conghaile wrote to the TAC requesting assistance for the plaintiff for garden maintenance “as she has limited/reduced capacity for gardening due to her transport accident related back injury”.[240]
[240]Ex P1, p88
66On 13 December 2024, Dr O Conghaile wrote to the TAC requesting approval for a left-sided cluneal nerve block in order to treat the plaintiff’s ongoing pain.[241] On 3 February 2025, that procedure was carried out by Dr O Conghaile.[242] In a letter dated 13 February 2025, Dr O Conghaile wrote to the plaintiff’s general practitioner, reporting that the procedure had been “Unsuccessful”. He noted that at that time, the plaintiff’s diagnosis was “Chronic Neuropathic Back Pain (LEFT side predominantly)”. He said that the plaintiff was struggling to manage her chronic neuropathic back pain. He observed that he had previously suggested a trial of a spinal cord stimulator, which he believed could provide a more durable treatment option for the plaintiff’s condition. He noted that, unfortunately, this recommendation had been rejected by the TAC.[243]
[241]Ex P1, p89
[242]Ex P1, p94
[243]EX P1, p95
67The plaintiff relied upon three reports from Dr Safa Hamza, pain specialist, the first dated 26 June 2019, the second dated 23 January 2023 and the third dated 19 February 2023.
68In the first report, Dr Hamza noted that the plaintiff was suffering from chronic lower back pain, musculoskeletal in nature, with both facetogenic and sacroiliac joint components. He noted that she was at that time anxious about using any medication for pain relief. He noted that the plaintiff described her back pain as “constant aching pain”. He said that the pain increased with prolonged sitting, prolonged standing, bending forward, bending backward, lifting and that it also affects her sleep. He said that the plaintiff described a stiffness in her lower back. He noted that an examination of the plaintiff’s back showed a tenderness over the L4-5 and L5-S1 facet joints bilaterally, right worse than the left, as well as tenderness over the right sacroiliac joint.[244]
[244]EX P1, pp116-117
69In the second report, Dr Hamza noted that the plaintiff had undergone pain management treatment until 2020 and during that time, had engaged in a pain management program which included physiotherapy, cognitive behavioural therapy and medication adjustment. He said that, unfortunately, she had continued to complain of chronic axial neck pain with Whiplash Associated Disorder, right occipital headache – cervicogenic in nature, chronic lower back pain – musculoskeletal in nature with facetogenic component, ongoing physical deconditioning and anxiety and panic attacks. He said that on examination, the plaintiff continued to have musculoskeletal tenderness around her neck, as well as her lower back, with tenderness over the facet joints. He said that the plaintiff was not interested in taking pain medication and would like instead to await the outcome of the physical procedures that were planned by Dr O Conghaile.[245]
[245]Ex P1, p125
70In the final report, Dr Hamza noted that the plaintiff had engaged in a pain management program but, unfortunately, continued to have ongoing periodic flare-ups of her pain and ongoing moderate levels of distress and anxiety. He said that psychologically, she continued to have good days and bad days, which impacted on her physical wellbeing. He noted that at that time, she was being treated with various medications. At the last consultation in 2023, she was using ibuprofen, Gaviscon, Panadol Rapid, Nurofen Gel and vitamins. He said that there was no significant progress or improvement in her physical and mental wellbeing. Given the chronicity of her pain and mood fluctuation, Dr Hamza believed the plaintiff’s condition had plateaued and that she would not be able to have a meaningful job in the foreseeable future.[246]
[246]Ex P1, p126
71The plaintiff relied upon one report from Mr Matthew Richards, physiotherapist, dated 12 March 2020. In that report, Mr Richards noted the history he had been given by the plaintiff, which was that prior to the transport accident, she had been active in walking around her 20-acre property, riding a pushbike and looking after her two horses. He said that she prepares horses for the show season between August and January when she leads the horses in a trot. At that time, the plaintiff told Mr Richards that she did not train her horses. She said that she had recently tried to take a small horse to a horse show with its owner and due to the time spent waiting and standing, she had a flare-up of her lumbar pain for the rest of the day and that night. He said that the plaintiff reported that she tries to remain active but “suffers the consequences”.[247]
[247]Ex P2, p5
72In terms of her back pain, the plaintiff reported to Mr Richards that she suffered from constant diffuse lumbar aching pain rated as 2-8/10. This radiated to the buttocks and left hip as intermittent aching pain rated as 6-7/10 with movement. Walking, sitting, static standing and driving were noted as limited to thirty minutes. She reported being unable to repeatedly bend forward. She was unable to lift more than 2 kilograms, the example given being a small bucket of horse food. She needs to take a break with mopping and vacuuming after each room. She is moderately restricted in social/recreational activities. She reported waking at night, five to six times because of her pain symptoms and restlessness. Her morning pain and stiffness last about twenty minutes. She takes naps during the day for one to two hours.[248]
[248]Ex P2, pp6-7
73The plaintiff relied upon three reports from Professor Richard Bittar, neurosurgeon, the first dated 10 October 2019, which was a joint report provided to both parties, the second dated 10 May 2021 and the third dated 11 October 2024. In the first report, Professor Bittar noted that lower back pain was the plaintiff’s main complaint. He said she experiences constant lower back pain which has an average severity of 7/10, more severe on the left side. She reported that her lower back pain varies in character, and is exacerbated by bending, twisting, lifting more than around 2 kilograms, sitting for more than twenty to thirty minutes and standing for more than fifteen to twenty minutes. Her pain improved with frequent change of posture and recumbency. At that stage, there was no radiation of pain into her legs. Professor Bittar noted that the plaintiff’s past medical history was significant for a several-year history of lower back pain which commenced during the course of her employment, and was intermittent and stable leading up to the transport accident. He noted that she did not require any significant time off work and was able to continue working normal duties as a delicatessen assistant with Coles. She would see her general practitioner occasionally for flare-ups of pain and her pain levels were much less severe than since the transport accident. She would treat her back pain prior to the transport accident with analgesic medications as required and occasional physiotherapy and chiropractic treatment.[249]
[249]Ex P1, pp127-128
74Professor Bittar noted that since the transport accident, the plaintiff’s sleep is severely disrupted and she experiences significant daytime tiredness. She socialises much less than she did previously due to sitting and standing intolerances and limited ability to drive more than around thirty minutes. Her recreational activities are moderately restricted. She previously enjoyed horse riding, bike riding and four-wheel driving and is very limited in her ability to enjoy these recreational activities now. Professor Bittar noted that the plaintiff then took Nurofen, Norflex, Panadol Osteo and anti-inflammatory creams daily, had physiotherapy twice a week and hydrotherapy twice a week. At that time she was undertaking a pain management program at Advance Healthcare in Bundoora.[250]
[250]Ex P1, p129
75Professor Bittar reviewed the plaintiff’s radiology and made the following comments in relation to it:
(a) a CT scan of the lumbar spine performed on 19 August 2016 (prior to the transport accident) demonstrated a broad-based disc bulge at L4-5 without any neural impingement;
(b) an MRI scan of the cervical and lumbar spine was performed on 27 February 2019. The MRI scan of the lumbar spine demonstrated disc bulging at L4-5 contacting the right L5 nerve root in the lateral recess (emphasis added);
(c) a CT scan of the lumbar spine was performed on 21 February 2019. This demonstrated narrowing of the L4-5 disc space with a diffuse disc bulge at that level.[251]
[251]Ex P1, p130
76Professor Bittar noted that on examination, the plaintiff had moderate restriction of her lumbar spine extension and mild restriction of lumbar spine flexion. He said that extension of her lower back was more painful than flexion. He noted that she had bilateral lumbar paravertebral muscle spasm and tenderness over the lumbosacral junction. In Professor Bittar’s opinion, the plaintiff presented with an aggravation of lumbar spondylosis with constant lower back pain. He was of the opinion that the transport accident of 16 July 2018 had been a significant and contributing factor for both her cervical and lumbar spine conditions. He thought she was likely to continue to suffer from significant pain and disability into the foreseeable future.[252]
[252]Ex P1, pp130-131
77In the second report, Professor Bittar noted that the plaintiff’s sleep continues to be severely disrupted and she experiences significant daytime tiredness. He said that her domestic activities, including her ability to undertake shopping, cleaning and gardening, are limited. He noted that there was some restriction on her ability to cook, mainly related to difficulty bending, to use an oven. He said that “Overall, her quality of life is markedly diminished”.[253] Noting that her lumbar back pain was pre-existing, in terms of apportionment, Professor Bittar concluded that the plaintiff’s lumbar spine condition is predominantly related to the transport accident of July 2018. He said, “From the viewpoint of her symptoms, it is my opinion that at least 80-90% of her symptoms at present are related to the transport accident of July 2018 and only 10-20% related to her pre-existing condition”.[254]
[253]Ex P1, p142
[254]Ex P1, p143
78In the third report, Professor Bittar again reviewed the radiology and made the additional observation that on 27 October 2022, a nuclear medicine bone scan had been performed. He said that this demonstrated increased radiotracer uptake in the L4-5 and L5-S1 discs as well as the sacroiliac joints.[255] He stated that his diagnosis in relation to lower back pain was “aggravation of lumbar spondylosis with constant lower back pain”. He continued to be of the view that the transport accident in July 2018 had been a significant contributing factor to both her cervical and lumbar spine conditions. He thought that she was likely to continue to experience significant pain and disability into the foreseeable future.
[255]Ex P1, p150
79The plaintiff relied upon one report from Dr Nathan Serry, consultant psychiatrist, dated 16 February 2021. In that report, Dr Serry noted the content of a detailed report from Dr Middleton, dated 20 January 2020, outlining the plaintiff’s history. This report was originally provided to the plaintiff’s solicitors. He noted Dr Middleton’s opinion that while the plaintiff had a past history of intermittent lower back pain, nevertheless, the transport accident had aggravated the plaintiff’s pre-accident, asymptomatic, age-related degenerative disease of the spine, in particular the cervical and lumbar spines, causing derangement of the C5-6 and L4-5 intravertebral discs. He noted Dr Middleton’s opinion that the plaintiff no longer had a safe or reliable physical capacity to undertake pre-injury duties at the delicatessen department of the supermarket on a full or part-time basis. He also noted that there was no plan to provide the plaintiff with support or vocational re-education and noting her limited scholastic skills, suggested that it would be highly unlikely that retraining in an effective area would be successful.
80Dr Serry had perused the plaintiff’s affidavit material, noting that it was essentially consistent with the information that she provided to him during his assessment. He thought that from a diagnostic viewpoint, the plaintiff would be considered to have developed a moderately-severe chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation. He thought the plaintiff’s prognosis remained mixed. He noted a degree of premorbid vulnerability, which he described as “relatively asymptomatic prior to the subject accident”. He said that since the transport accident, the plaintiff had continued to struggle both physically and psychologically. He said that she experienced quite widespread pain, functional limitations and further still, struggles with significant levels of anxiety, fluctuating low mood and has continued to be traumatised by the accident circumstances.[256]
[256]Ex P1, pp168-169
81The plaintiff relied upon one report from Associate Professor Gus Gonzalvo, neurosurgeon and spinal surgeon, dated 21 July 2022. This report had originally been provided to the defendant in this matter. In that report, Associate Professor Gonzalvo reviewed the radiological scans and noted that since the occurrence of the transport accident, there had been “further collapse of the L4-5 disc especially in the anterior aspect”. He thought that there had been a clear aggravation of her condition since the transport accident and further progression of her symptoms. He noted that a natural history of lower back pain is to have remittances and recurrences but that in this case, the plaintiff’s symptoms have only gotten worse over time. He was asked to consider the likelihood of a positive surgical outcome at the L4-5 level, as had been proposed. He stated, “I would be more optimistic about the surgical outcome if the nuclear medicine bone scan showed increased uptake at the L4-5 disc level”. I note that since Associate Professor Gonzalvo’s report, the plaintiff had a nuclear medicine bone scan which Professor Bittar described as demonstrating “increased radiotracer uptake in the L4-5 and L5-S1 discs as well as the sacroiliac joints”.[257]
[257]Ex P1, pp176 and 150
82The plaintiff relied upon one report from Dr Simon Cohen, consultant pain specialist physician, dated 8 February 2024. This report was originally provided to the defendant in this matter. In that report, Dr Cohen noted that the plaintiff presented five-and-a-half years following a transport accident with persistent pain affecting the left lower back and neck. He said that there was no radicular pain or evidence of radiculopathy at that time. He thought that the likely diagnosis in relation to the lower back was “Lumbar soft tissue injury, exacerbating underlying spondylosis with particular focus on left posterior iliac crest area consistent with cluneal neuralgia”.[258]
[258]Ex P1, p185
83In relation to the request for the spinal cord stimulator, Dr Cohen was of the opinion that the nature of the plaintiff’s condition meant that this intervention was not appropriate. Nevertheless, he was of the view that the plaintiff had “features that are consistent with cluneal nerve syndrome given the location of the pain and tenderness to palpation”. He was of the opinion that it would be worth a trial of a cluneal nerve block. He also thought it would be appropriate to consider anti-neuropathic pain and anti-spasmodic medications; however, he noted the plaintiff’s refusal to take medications due to her anxiety over that issue.[259]
[259]Ex P1, pp187-188
84Lastly, the plaintiff relied upon a jointly agreed document which recorded “back related” medical treatment received by the plaintiff both prior to the transport accident, and since the transport accident. That document recorded eighteen attendances by the plaintiff on her general practitioner for back-related issues in the period between 2015 and the early part of July 2018, prior to the transport accident. It also recorded approximately seventy attendances by the plaintiff on her general practitioner and other allied health professionals in the period between 16 July 2018 and the end of 2020, and more than one hundred and twenty similar attendances from 2021 through to the end of 2024.[260]
[260] Ex P3
The Defendant’s medical reports
85The defendant relied upon one report from Mr Peter Wilde, orthopaedic surgeon, dated 20 November 2024. In that report, Mr Wilde provided his opinion that:
“On a background of a recovered back injury at work in August 2016, … [the plaintiff] was involved in a motor vehicle accident on [16 July 2018] [sustaining] a new injury to her neck and an aggravating injury to her low back. The current diagnoses are aggravation of cervical spondylosis without radiculopathy, and aggravation of lumbar spondylosis without radiculopathy.
Currently her main complaint is back pain … She’s a poor sleeper as a result of her back and neck complaint.”[261]
[261]Ex D1, p121
86He thought that overall the plaintiff’s prognosis for improvement was “poor”.[262]
[262]Ex D1, p123
87The defendant relied upon one report from Mr Myron Rogers, neurosurgeon, dated 5 February 2025. In that report, Mr Rogers set out his review of the radiology, including his opinion that the radiology of the lumbar spine showed “no neural compromise at any level”. I note that this is contrary to the opinions of numerous other medical experts and the content of the MRI scan of the lumbar spine dated 27 February 2019.On the basis of this incorrect observation, Mr Rogers was of the opinion that the plaintiff suffers from a chronic pain condition which developed following the transport accident. He thought that the chronic pain condition would persist indefinitely. He expressed the view that the radiology of the lumbar spine demonstrated minor degenerative change at L4-5 prior to the transport accident and that the post-accident imaging demonstrated mild progression of degenerative changes at this level, that he considered to be constitutional. He thought it was the chronic pain state that was impeding the plaintiff’s recovery. He thought it was unlikely the plaintiff would return to any form of employment.[263]
[263]Ex D1, pp127-129
88In addition to the two medico-legal reports relied upon, the defendant tendered numerous extracts from the medical records which evidenced the plaintiff’s presentation to medical professionals in relation to her lower back condition and mental health, prior to the transport accident.[264] As referred to above, the parties agreed that the chronology of the attendances by the plaintiff on her treating medical practitioners both prior to the transport accident and following the transport accident, accurately set out and referred to all of these relevant matters.[265] On that basis, I do not propose to reproduce any portion of the medical records which were relied upon by the defendant as part of its tender.
[264]Ex D1, p62-68
[265] Ex P3
Other material relied upon by the Defendant
89In addition to medical reports and extracts from the medical notes, the defendant relied upon a large number of medical certificates and a report from Coles Supermarkets as to the plaintiff’s absenteeism between April 2013 and September 2022.[266]
[266] Ex D1, pp132-145 and 148-153
90Ultimately it was conceded that while a portion of the absenteeism by the plaintiff from work was due to lower back pain,[267] the evidence indicated that much of the plaintiff’s absence from work was due to issues she was having with her domestic life with her partner and the psychological matters that arose from that situation. This was not disputed by the defendant. The evidence also indicated that the plaintiff has now split from her former partner. The plaintiff’s present psychological situation was assessed by Dr Serry and his opinion and diagnosis has been referred to above.
[267]T140, L22-31; T141, L1-9
The issues
The Plaintiff’s credit
91As set out above, the plaintiff was extensively challenged during cross-examination, amongst other things in relation to her ability to participate in showing her ponies, her true pain levels at present, her level of her previous back pain, her prior and current capacity for work and the extent of her loss of enjoyment of by reason of the injuries sustained in the transport accident .
92The cross-examination spanned almost two days of court hearing time, by reason of the fact that a large proportion of the questioning was done by reference to a lengthy portion of surveillance footage, the content of which spanned a period of approximately five hours, taken over two days. Not all of the footage of the second day of surveillance was shown to the plaintiff. What was played was described as being “representative” of the types of activities in which the plaintiff was able to engage on that day.[268]
[268] Ex D2
93The plaintiff willingly answered all questions of her without prevarication, retaining her composure and equilibrium despite the length of the interrogation to which she was subjected. In relation to each of the matters referred to above, I find that she gave cogent, consistent answers to the questions asked, and provided credible explanations for various issues that arose. At times she made concessions about matters which were contrary to her own interests.
94The gist of the plaintiff’s evidence was that she had experienced some intermittent back pain in the twelve months prior to the transport accident, at a level of about five or six out of ten. She had taken time off work by reason of that back pain, possibly up to some “weeks” over that twelve-month period, but the pain had never been “constant”. Her back pain did not significantly stop her from working at that time. Since the transport accident, the back pain from which she suffers is constant, at a level of seven or eight out of ten. It is a different pain to what she suffered beforehand. It interferes with her ability to engage in the pastime she loves, which is showing her ponies. While she still undertakes this activity, she has had to modify the way in which she does it, including by getting assistance. After a horse show, she will often suffer from increased pain for up to two days. She cannot drive long distances. She cannot ride horses in the way that she used to. She has been unable to find a job which she can perform within the limitations she now experiences, because of her back pain. She presently takes pain-relieving medication every day for her back pain, and has recently decided to try prescription medication, Palexia, even though she has historically been anxious about taking strong medication. Her back pain causes interrupted sleep, which causes her daytime tiredness and affects her ability to concentrate during the day.
95Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view, and find, that she was an honest, straightforward and cooperative witness who appeared to be doing her best to give accurate responses to the questions asked of her. I consider that at all times the plaintiff gave her evidence openly and without embellishment. In addition, as referred to above, she made concessions when necessary, many of which were adverse to her own interests.
96Furthermore, I find the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with medico-legal advisers, and provided evidence to this Court.
97After a consideration of all of the evidence, particularly the evidence of the plaintiff, as corroborated by the evidence of the lay witnesses and the content of the medical records, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or exaggerate her symptoms in any way. If anything, it was my conclusion that the plaintiff had a tendency to understate her symptoms from time to time, as evidenced by her son and friends’ assessment of her state of health since the transport accident and her ability to perform many tasks, including preparing her horses for show, by reason of the consequences which her injuries have had for her.
98I accept without hesitation, the plaintiff’s evidence about the consequences she experiences as a result of the injury she suffered to her spine in the transport accident, namely an aggravation of her lumbar spondylosis. Furthermore, I accept the plaintiff’s evidence and find that these consequences represent a very considerable increase in the level and constancy of her pain, the frequency with which she needs to take medication, interruption to her sleep and diminution of her ability to engage in her work and activities of daily living.
Stoic plaintiff
99Having considered all of the relevant evidence, I formed the view, and find, that the plaintiff has been extremely stoic in relation to managing the back injury which she sustained in the transport accident.
100I note that despite suffering from the debilitating effects of this injury for a number of years, the plaintiff has taken numerous steps to continue living her life and to try to keep working, as best she can.
101I find that despite the consequences of the aggravation to her back, which she has suffered daily since the transport accident, she has until recently continued to apply for and try out jobs. She has continued to show her horses, albeit with assistance, as this is her “only outlet”. She takes medication, does stretches and applies anti-inflammatory gels and heat to the painful area of her back, to try to address the pain which she experiences. I accept her evidence, and find, that she is unable to do these tasks as easily as she could prior to the transport accident.
Compensable injury
102The details of the occurrence of the transport accident are not in dispute.
103Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on each side, I am satisfied that as a result of the transport accident, the plaintiff suffered an organic injury to her spine, in the form of aggravation of lumbar spondylosis with constant lower back pain.
Is the compensable injury permanent for the purposes of the Act?
104Having considered the relevant reports including the reports from Dr O Conghaile,[269] Dr Shubbar,[270] Dr Hamza[271] and Professor Bittar,[272] I find that the plaintiff is likely to suffer from the consequences of the injury she sustained to her spine in the transport accident, for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
[269] Ex P1, p54, 69, 75
[270] Ex P1, p106
[271] Ex P1, p126
[272] Ex p1, p131, 143-144 and 151
Are the consequences to the Plaintiff of the transport accident “serious”?
105In Haden Engineering Pty Ltd v McKinnon,[273] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[274] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately the question of whether an injury satisfies the relevant test under the Act, is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[275]
[273](2010) 31 VR 1
[274]ibid at paragraph [9]
[275]ibid at paragraph [12]
106I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in her approach to managing the injury to her spine.
107The fact that the plaintiff has been prepared to try and keep working, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[276]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[276][2008] VSCA 260 at paragraph [3]
108As was observed in Hooley v Transport Accident Commission:[277]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[277][2019] VSCA 263 at paragraph [51]
109In Kelso v Tatiara Meat Co Pty Ltd,[278] the Court observed that:
“… 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.”
[278]Supra at paragraph [199]
110The consequences which the plaintiff’s aggravation of her lumbar spondylosis have had on her day-to-day life, have been referred to in detail above. I have made findings which support the conclusion that increased and constant pain in the plaintiff’s spine as a result of the aggravation of her lumbar spondylosis since the transport accident, is a prominent feature of the plaintiff’s life. While she tries not take too much prescription medication for this condition, the evidence indicates, and I find, that she must frequently take medication, including prescription painkillers. She also engages in other forms of pain relief, including stretching and the application of gels, heat packs and anti-inflammatory preparations. The evidence indicates, and I find, that the plaintiff’s spinal pain since the transport accident is such that she unable to find suitable work, despite having tried to keep working, because she needs the money. The evidence indicates, and I find, that her sleep is frequently interrupted and that she frequently takes prescription medicine to help her get to sleep. The evidence satisfies me, and I find, that the plaintiff’s spinal pain adversely affects nearly every aspect of her day-to-day life. In particular, it interferes to a great extent with her ability to enjoy showing her ponies, in the way that she would like. The evidence satisfies me, and I find, that the plaintiff still participates in this activity, as it is her “only outlet”, but that she suffers from increased pain afterward, which can last for up to two days. She now needs to obtain assistance with showing and looking after her ponies, which she did not need to do prior to the transport accident. By reason of the plaintiff's age, I find that she will continue to suffer from each of the consequences set out above, for a lengthy period of time. This, in turn, means that these consequences are more significant for her than they might be for another, older plaintiff.
111Given this, I am satisfied to the requisite standard that taken together, the consequences from which the plaintiff suffers as a result of the aggravation of her lumbar spondylosis, are “very considerable and certainly more than ‘significant’ or ‘marked’”.
Conclusion
112As set out above, I am satisfied, to the requisite standard, that as a consequence of the transport accident, the plaintiff suffered a “serious injury”, as defined in the Act, in the form of an injury to her spine, namely aggravation of lumbar spondylosis with constant lower back pain. In those circumstances, the application is granted.
113I will hear the parties in relation to the question of costs.
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