Paul v Transport Accident Commission
[2025] VCC 1005
•18 July 2025
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-06807
| KURUVILLA EZHAKUNNEL PAUL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 9-10 July 2025 | |
DATE OF JUDGMENT: | 18 July 2025 | |
CASE MAY BE CITED AS: | Paul v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1005 | |
REASONS FOR JUDGMENT
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Subject:Serious Injury Application
Catchwords: Plaintiff suffering an admittedly serious injury – reported to medical practitioners for the first time over six months after transport accident – causation – plaintiff alleging low back pain masked by painkillers prescribed to relieve neck pain caused by transport accident – no causal link with transport accident – application dismissed
Legislation Cited: Transport Accident Act1986 (Vic);
Cases Cited:Petkovski v Galletti [1994] 1 VR 436;
Judgment: 1. Within 14 days the parties must bring in short minutes to give effect to these reasons.
2.Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Mr A C Dimsey | Fortitude Legal |
| For the Defendant | Ms F A L Ryan SC with Ms M Williams | Transport Accident Commission |
HIS HONOUR:
1Mr Paul was born in India in 1968 and migrated to Australia in 2015. In 2016 he began full-time work at the meatworks in Stawell. He said this was “very physical work”. Years previously, when he lived in India (and presumably was carrying out similarly heavy physical work), he injured his low back, undergoing surgery by way of laminectomy at L4-5. (Plaintiff’s Court Book (“PCB”) 15, paragraphs 3-8; PCB 86)
2In the early hours of 17 March 2022, Mr Paul was driving along Remembrance Drive, Ballarat West, in fine weather, with his car lights operating. A vehicle travelling on the wrong side of the road collided with Mr Paul’s car. He said:
“I was trapped in the car for a while. An ambulance came. I was taken to the Ballarat Base Hospital. My wife came to help me. I had pain all over my body.” (PCB 15-16, paragraphs 9-11)
3He remained strapped in his seat by his seatbelt. (Transcript (“T”) 30, Lines (“L”) 24-27)
4Mr Paul’s native language is Malayalam, a language spoken in Southern India. His English is very limited, and he required an interpreter to assist him in giving his evidence. (T1, L10-15) Mr Paul’s wife is Sophiamma Jacob, who is a registered nurse who qualified in 1998, has practised as a nurse in Australia for 10 years. (T31, L25 – T32, L23) She is a fluent English-speaker who gave her evidence directly without the intervention of an interpreter.
5In 2022 she worked at the Ballarat Base Hospital and was in company with Mr Paul when he was conveyed to that hospital for assessment and treatment following the transport accident on 17 March. She “translated for him when he was telling the doctors about his pain”. (T32, L10 – T33, L6)
6Mr Paul said when he arrived at the hospital he “had pain all over [his] body”. He had scans:
“and was told that I had suffered a sprain to the neck. I was told to take time off work and wear a cervical collar. I attended at Arch Medical Centre, a general practitioners’ clinic in Alfredton, for follow-up care.” (PCB 16, paragraphs 11-12)
7Mr Paul said he took “several months off work” while he recovered, and during this time he was “taking Endone for [his] pain”. He said his main issue was his neck, but that the “had pain in [his] low back as well. It was less severe than the neck pain.” (Ibid, paragraph 13)
8In July 2022 – that is, a little after three months following the accident – he travelled to India “urgently because my sister was very unwell”. He said he stayed in India with his sister “for around three months”, “mainly resting at home during this time”. He said he avoided doing anything physical “because of the pain in my back and my neck”. He said he “continued to take painkillers”. (Ibid, L14-15)
9Mr Paul returned to Australia on 4 October 2022. He said shortly after arriving he “had pain in [his] low back which was radiating down into [his] right leg.” He went to his general practitioner at the Arch Medical Centre and was told “that varicose veins might be causing” the pain.
10By 9 October, Mr Paul said he was “in severe pain and was also suffering weakness and pain” in his right leg. He went to the Emergency Department at Ballarat Base Hospital and had a scan of his low back, which he understood “showed damage to the tissues” in his spine. He was referred back to his general practitioner and given Tramadol for pain.
11He also saw Ms Naomi Crawley, the physiotherapist who had treated him immediately after the transport accident. He said she told him that she could not help, and he “should seek advice from a specialist surgeon”. The severe low back pain, with pain and weakness in his right leg, continued. He said he had “an issue” with his right foot, “in that it became difficult to lift it off the ground properly” when he was walking, so therefore he was limping. (PCB 17, paragraphs 18-22)
12His general practitioner, Dr Choyi, referred him to neurosurgeon Mr Girish Nair, who ordered a further scan of Mr Paul’s back and told him that he needed surgery. For financial reasons, he was unable to have that surgery immediately. In the meantime, he said, he remained “unable to do any kind of work”. He could not stand or walk for long. He struggled to sit in one position for extended periods, and was woken in the night by pain. He was very limited in what he could do around the house “because of pain and stiffness” in his low back, and pain and weakness in his right leg. He could no longer play cricket as he had previously done, and he struggled with driving “for anything other than short distances”. He continued having regular reviews with his general practitioner at Arch Medical Centre. (PCB 18, paragraphs 23-25)
13He eventually had the back surgery on 25 March 2024. He said that the surgeon told him “that because it took so long for the operation to happen” he might not regain the same level of function that he had before. He continues to suffer significant low back pain, and pain and weakness in his right leg, and weakness in his right foot. He still suffers some neck pain, but “the low back pain” is his main concern. He requires pain-relief medication for his back and neck pain. (Ibid, paragraphs 26-28)
14In an affidavit made last month, Mr Paul said that he still had “significant ongoing problems with back pain”, continuing to take Lyrica, “which helps ease the pain”. His right leg problems, featuring what he described as a “needle” kind of pain, continued, and had “not really improved post-surgery”. Therefore, he cannot “stand comfortably now for any length of time”, and “can only walk for about 15-30 minutes before my back pain increases”. He said he suffers from “right foot drop”, which affects his gait, and he has to use “an arthrosis [sic, scil orthosis] in my right shoe to help with the right foot drop”. (PCB 21, paragraphs 10-17)
15He complains that he has difficulty with stairs and uneven ground, and broken sleep interrupted by back pain. He says he is unable to drive for longer than 10-15 minutes “without an increase in back pain”. He can bend, “but only fairly stiffly and with difficulty”, and cannot squat comfortably. His lifting capacity is “about 4-5 kilograms only”. He is, unsurprisingly, unfit to return to his work as a labourer, mostly packing lamb carcasses, which requires him regularly to lift 20-kilogram boxes of packed lamb “throughout a 10-hour shift”. His ability to return to work is restricted, given his limited physical capacity and lack of English-language skills. His activities of daily living are restricted. He is able to dress, put on his shoes and socks, but requires to take particular care in that respect. He can do work around the house, including cooking and limited cleaning. He cannot undertake the gardening, which was a hobby of his before the accident. Instead of tending a thriving vegetable garden, he said he is now “limited to basically watering plants”. He is unable to play social games of cricket, which were his principal recreation in the past. (PCB 22, paragraphs 18-29)
16He complains that his “lack of sleep often makes [him] fatigued, and this does not help with [his] general state of mind since the accident”. (PCB 23, paragraph 33)
17By originating motion, Mr Paul sought leave:
“to commence common law proceedings pursuant to section 93(4)(d) of the Transport Accident Act 1986 (Vic) to recover damages for injuries suffered in [the] transport accident on 17 March 2022.”
18The particulars of injury which were filed by his solicitors and dated 7 March 2025 sought findings of serious injury by way of “a serious long-term impairment or loss of body function being the function of the spine, including but not limited to the cervical spine and lumbar spine” which was elaborated by reference to strains, prolapses and so forth at multiple levels; he relied also upon a “serious long-term impairment or loss of body function being the function of the cervical spine”; and “the lumbar spine”; and finally on the basis of “a severe long-term mental or severe long-term behavioural disturbance or disorder” pursuant to s93(17)(c) of the Transport Accident Act. (PCB 12-13)
19When the matter came on before me for hearing, Mr Harrison KC and Mr Dimsey relied solely upon Mr Paul’s low back injury as the basis upon which he should be given leave to bring a damages claim. Ms Ryan SC and Ms Williams, who appeared for the defendant Transport Accident Commission (“TAC”), stated:
“that if your Honour was satisfied that the plaintiff’s lumbar spine condition is referable to the subject accident, then there will be no argument that he doesn’t meet the statutory test for serious injury. The issue is one of causation.” (T4, L6-10)
Legal considerations
20Section 93 of the Transport Accident Act 1986 precludes a plaintiff from bringing a claim for damages in negligence arising out of a transport accident as defined in the statute unless the Transport Accident Commission has determined the putative plaintiff’s degree of impairment as provided for in s46A, 47(7) or 47(7A) and the injury is a “serious injury”. Due to the Commission’s concession that the low back injury meets the criterion of seriousness for the purposes of s93 it is unnecessary to go to the statutory provisions and case law on that subject.
21Over 30 years ago, Brooking J, as he then was, as Presiding Judge in the Full Court of the Supreme Court in Petkovski v Galletti [1994] 1 VR 436, 437, remarked:
“A lamentable situation has been reached with these applications under s93 of the Transport Accident Act1986, where the applicant tries to satisfy the court that a serious injury has been sustained. They are taking up to five days to hear and sometimes a good deal of oral evidence is given. On appeals to this court some appeal books are as bulky as those which come at the end of a trial, at all events one limited to the assessment of damages. When, after a hearing lasting several days, the judge comes to decide whether to give leave under the section, he may well be in a position or virtually in a position where he could if required assess damages for the injury. If he gives leave, the whole process must then be gone through again at trial, with or without a jury. If there is no oral evidence on the hearing of the application and there are conflicts of expert opinion or other conflicts of fact, the judge hearing the application is left to resolve them on the affidavits as best he can.”
22His Honour said he doubted whether Parliament:
“had the present foolish, wasteful and inconvenient system in mind when it enacted s93.”
23Southwell and Teague JJ, reflected his Honour’s criticism ([1994] 1 VR 436, 445). Following these strictures and many others over the years from the Court of Appeal, which has taken over the appellate function of the former Full Court, the point has now been reached where, in accordance with Practice Directions, the only oral evidence heard is cross-examination of the applicant or putative plaintiff himself or herself, and possibly of deponents whose affidavits have been filed in support. These proceedings therefore are far from the “mini trials” which their Honours decried. It remains the case, however, that now, as in 1993 (whatever may have occurred in the interim), the medical experts – treating or medico-legal – are generally not cross-examined upon their reports. In a proceeding such as this, which turns crucially on a determination of causation, this is less than ideal.
Expert opinions
24Dr Swathi Choyi, general practitioner of Arch Medical Centre, provided a report on the treatment which he had given Mr Paul in the period 29 March 2022 to the date of the report, 18 July 2023. She said that Mr Paul:
“sustained a C4/5 posterior interspinous ligamentous strain and was in a cervical spine collar for 6 weeks”. (PCB 50)
25She said he:
“also had non significant back and generalised body pain, however since the neck pain took more concern, he did not bring the rest to attention.” (PCB 50)
26She referred to problems which Mr Paul suffered with his dental caps, “finding it hard to access treatment here [in Australia]”. She said that this was the purpose of his trip to India. (Ibid) She said that following his return from India he “developed significant back and right leg pain with significant motor weakness on the right leg”, and had an urgent CT scan of the lumbar spine on 9 October 2022:
“which showed degenerative disc changes at L5-S1 with bilateral severe foraminal stenosis causing bilateral L5 nerve root compression. Additionally, there was nerve root contact within the lateral recesses of the spinal canal. Mild spinal canal stenosis at L4-5 with mild L4 nerve root attenuation only.” (PCB 50)
27She said that this was confirmed by an MRI and that these conditions were “on the background of having had a L4-L5 laminectomy”. She noted that this laminectomy history had not been disclosed to the Transport Accident Commission or the Emergency Department at the Ballarat Base Hospital or to her initially. She said she urgently referred Mr Paul to neurosurgeon Mr Girish Nair “who confirmed the findings and recommended surgery”. She said she hoped that Mr Paul would “be supported by TAC for the surgery”. (PCB 50-51) In fact it seems the TAC denied liability for that surgery.
28Mr Nair, following the referral of Mr Paul to him for assessment, responded to Dr Choyi in a report by way of letter dated 25 November 2022. Mr Nair rehearsed the history of the transport accident, stating that upon arrival at Ballarat Base Hospital “the main diagnosis was one of cervical strain and hence he was put on a call for about eight weeks”. The report is said to have been dictated but not signed by Mr Nair, and presumably not reviewed by him. I assume what he intended to say was not that Mr Paul was put “on a call for about eight weeks”, but rather that he was put “in a collar for about eight weeks”. Referring to Mr Paul’s trip to India, Mr Nair continued:
“Soon after his return he had significant back and right leg symptoms, which reached a point where one night he was unable to move his right foot. He called his wife who is a nurse at the Ballarat Base Hospital and was transferred to the emergency department there and had an in hospital stay during which time he had a CT scan. He was commenced on medication including tramadol, and discharged home.” (PCB 57)
29Mr Nair reported persistent pain symptoms and the prescription of Lyrica, “which has given him some symptomatic improvement”. Mr Nair reported “weakness in his right foot since the time of the flare up in the first week of October”. He said that Mr Paul then walked:
“with an antalgic gait with reduced weightbearing on the right leg. He has got in L5 distribution on raising his leg and his power in the right foot is only about a grade 3. He also has altered sensations.” (PCB 52)
30Mr Nair referred to comorbidities including “diabetes, hypertension and hypercholesterolaemia”. Mr Nair said he told Mr Paul that it was:
“quite likely that he might need a surgical intervention and we will be able to decide on the right surgery after his MRI. In the interim, I have advised him to increase the dose of his Lyrica and he can take 75 mg in the morning and also escalate the night dose to 150 to keep symptoms under control.” (PCB 53)
31Mr Nair wrote a letter to Dr Choyi dated 27 April 2023 following a review appointment with Mr Paul at which he discussed the findings on the MRI scan which he had ordered. According to Mr Nair, Mr Paul’s MRI scan showed:
“a disc bulge at L4-5 causing significant L5 nerve root impingement and also some narrowing on to his S1 nerve root. This was on the background of having had a L4-5 laminectomy.” (PCB 54)
32Mr Nair continued:
“considering the foot has been weak for more than four to five months, I am unsure as to the extent of recovery he might get from proceeding with the surgical option but that certainly could potentially improve with the pain.” (PCB 54)
33He suggested getting “an urgent referral through to a public hospital”. (PCB 54)
34Dr Choyi, the treating general practitioner, provided a further medical report, it would seem to Mr Paul’s solicitors, dated 22 January 2025. She reported on Mr Paul’s symptoms and prescribed extensive limitations upon his work capacity and ability to carry out activities of daily living. She said that Mr Paul’s “prognosis” was “difficult to ascertain at [that] stage”. She said she could not comment on the “likelihood and nature of the long term deterioration or arthritis of the condition” or the likelihood or nature of future surgery. (PCB 55-56)
35Mr Nair furnished a medical report to Mr Paul’s solicitors by way of letter dated 3 December 2023. He rehearsed the history and diagnoses which have already been recorded, and concluded:
“As per Mr Kuruvilla’s account, the extent of the accident was quite significant. He narrates having been in pain all over, but the worst pain was in his neck. In addition, he had other injuries to his face all of which took most of the focus. He however did have ongoing back pain, which gradually got worse and evolved into a radiculopathy and subsequently the foot weakness. I hence think the severe motor vehicle accident that he had could certainly have contributed to him becoming symptomatic again although in the setting of previous lumbar laminectomy. I hence believe that the accident could have contributed in him becoming symptomatic although I am unable to quantify as to what extent it might have contributed. I am unable to comment on the reasonability of TAC’s decision making.” (PCB 62)
36When the surgery suggested by Mr Nair was carried out at the Royal Melbourne Hospital on 25 March 2024 with Mr Nair operating, assisted by resident Dr Georgia Dawson, the discharge summary reported:
“Findings: • Right L4/L5 microdiscectomy complete
•Right L5 + S1 nerve root decompression complete
Procedure:• Patient sedated, intubated and manoeuvred into prone position
•Time out complete
•Level checked pre-incision, level correct (Mobile X-Ray)
•Midline incision made
•Significant landmarks identified
•Level check complete (Mobile X-Ray)
•Right L4/L5 microdiscectomy complete
•Right L5 + S1 nerve root decompression complete
•Final X-Ray check complete (Mobile X-Ray)
•Closure- skin tstaple s” (PCB 63)
37Mr Nair provided a further report dated 1 April 2025 addressed to the plaintiff’s solicitors, recording that Mr Paul:
“had a motor vehicle accident and initially his symptoms were predominantly of neck pain and he also had maxillofacial injuries other than suffering from significant pain in his back.” (PCB 64)
38According to Mr Nair:
“Based on the history and my examination, it is my impression that he potentially had degeneration prior to the accident, however, he became symptomatic of back pain and developed leg symptoms only after the accident and then led on to him even having signs of neurological deficit. Looking at the course of how his symptoms evolved, I am inclined to believe that his injuries of which he became symptomatic are related to the motor vehicle accident.” (PCB 65)
39Physiotherapist Ms Naomi Crawley furnished a report on her treatment of Mr Paul dated 19 January 2024, addressed “To Whom It May Concern”, but provided, it would seem, at the request of Mr Paul’s solicitors. She reported on an initial consultation with Mr Paul on 12 May 2022, remarking:
“At the time of this consultation [Mr Paul] was reportedly taking Endone and a muscle relaxant, which neither [he] nor Sophia [viz his wife] were able to provide further detail of, as needed.” (PCB 68)
40She said there were further consultations with her on 20 May 2022, 31 May 2022, and 14 June 2022. She remarked on a “gap” in treatment and Mr Paul’s international travel, stating that he “represented” [sic, scil re-presented] to her on 20 October 2022, and “via Sophia” [viz with Mr Paul’s wife as interpreter]:
“that upon return to Australia from his international trip he was experiencing significant right lower limb pain which seemed to travel up his leg and into his back”. (PCB 68)
41She said he attended the Ballarat Base Hospital:
“to be assessed for DVT [viz deep vein thrombosis]. Ultrasound investigation confirmed no DVT. CT lumbar spine was completed and [Mr Paul] was discharged with a prescription for Tremadol however this did not seem to have any significant effect on his pain.” (PCB 68)
42She said her initial diagnosis (in May) was whiplash. As to the lumbar spine, she said:
“Based upon subjective and objective information gathered I diagnosed [Mr Paul] with lumbar disc bulge with nerve root compression and right lower limb radiculopathy.” (PCB 69)
43Ms Crawley thought TAC’s refusal to fund lumbar surgery for Mr Paul was reasonable because:
“There was no report of lower back pain at the time of my initial appointment with [Mr Paul] on 12th May, 2022. Additionally, there was no report of any symptoms which may be considered relevant to lumbar spine pathology including lower limb radiculopathy. These symptoms were first reported to myself on 20th October, 2022 following a gap in treatment secondary to [Mr Paul] travelling internationally for family matters. This was approximately 6 months post the MVA for which this claim is relevant.” (PCB 72)
44Dr Denise Van Vugt, a “medico-legal officer” for Melbourne Health, provided a report to Mr Paul’s solicitors by letter dated 15 April 2025 as regards the lumbar surgery conducted by Mr Nair at Royal Melbourne Hospital in March 2024, where he underwent an “L4/5 microdiscectomy and decompression ... without complication.” She said:
“The aim of the surgery was to prevent worsening of the radicular pain and weakness, any decrease in back pain or return of foot strength was to be considered unlikely and a bonus should this occur.” (PCB 74)
45She said following a review appointment on 6 May 2024, Mr Paul’s:
“right foot was still weak and he was advised to seek ongoing physical therapy / strengthening, as well as a foot-drop splint, in the community through his general practitioner.” (PCB 74)
46Mr Paul underwent a CT scan of his lumbar spine on 9 October 2022, the result being reported upon by radiologist Wim Greeff. The scan was said to have been carried out relative to “sciatica post long haul flight. Possible L5-S1 nerve pain.” At L4/5 it was found:
“There is a broad-based posterior disc bulge which in addition to ligamentum flavum thickening causes canal stenosis to a diameter of 7 x 9 mm. There is resultant bilateral mild to moderate foraminal stenosis with resultant bilateral mild L4 nerve root attenuation.” (PCB 78)
47At L5/S1 it was found:
“Marked degenerative disc change is seen with near complete height loss, vacuum phenomenon, sub endplate sclerosis and a broad-based posterior bulge. No significant canal stenosis is seen though. The combination of posterolateral disc osteophyte complexes in addition to the degenerative facet joint arthropathy causes bilateral moderate to severe foraminal stenosis and resultant bilateral L5 nerve root compression. Additionally there is contact of the S1 nerve roots to the disc osteophyte complexes within the lateral recess of the spinal canal at this height.” (PCB 78)
48The radiologist said that the scan confirmed:
“degenerative disc change at L5-S1 with bilateral severe foraminal stenosis causing bilateral L5 nerve root compression. Additionally there is S1 nerve root contact within the lateral recesses of the spinal canal.” (PCB 78)
49On 8 December 2022, Dr Manish Mittal reported to Mr Nair upon an MRI scan of Mr Paul’s lumbar spine. The findings were:
“Acceptable lordosis of the lumbar spine. No vertebral collapse or marrow infiltration is seen. Disc desiccation at L4-5 and L5-S1 level.
Evidence of prior laminectomy at L4 and L5 level. Acceptable canal. A recurrent or residual medium sized posterocentral and right posterior paracentral disc extrusion is noted at L4-5 level producing direct compression over the right L5 nerve root as it emerge from the thecal sac. Moderate grade bilateral L4 foraminal narrowing is apparent.
At L5-S1 level, a broad posterocentral right posterior paracentral disc herniation is observed producing mild compression over right S1 nerve root as it emerge from the thecal sac. Mild abutment of the left S1 nerve root. Moderate to severe grade right L5 foraminal narrowing. Thickening of the proximal S1 nerve roots bilaterally suggest nerve oedema. No convincing features for arachnoiditis.” (PCB 80)
50An MRI of the lumbar spine was reported on by Dr Richard Ussher, performed 17 March 2024, reporting:
“L4/5: Posterior disc bulge, moderate canal stenosis aggravated by bilateral facet arthropathy, there is mild bilateral foraminal stenosis, there is bilateral lateral recess stenosis with likely impingement on the descending L5 nerve roots
L5/S1: Posterior disc bulge, mild canal stenosis, and disc material contacts both descending S1 nerve roots, bilateral foraminal stenosis” (PCB 83)
51Mr Paul’s solicitors requested Professor Richard Bittar to conduct a review of Mr Paul for medico-legal purposes by letter dated 1 November 2023. The professor responded in a letter dated 12 December 2023 addressed both to the Transport Accident Commission and the solicitors. According to the professor, Mr Paul reported:
“that initially neck pain was his main problem, and he was taking significant amounts of analgesic medications to manage this. He had a degree of lower back pain and right leg pain but these were initially fairly mild and well controlled due to his medications. The focus of medical attention for the first few months after the accident was on his neck.” (PCB 87)
52The professor rehearsed the history of Mr Paul’s deterioration in October of 2022, the investigations carried out in late 2022, and their findings. He said:
“In my opinion, the transport accident of March 17, 2022 is the cause of his cervical and lumbar spine conditions.” (PCB 87)
53The professor carried out a further review of Mr Paul at the request of his solicitors on 20 May this year, and reported in a letter of the same date. He took the same history of complaints relative to neck and back pain as recorded in his previous report. According to the professor:
“On re-examination today, [Mr Paul] was pleasant and cooperative. He walked with a non-antalgic gait and wore an ankle orthosis on the right side. He had moderate restriction of lumbar spine flexion and moderate restriction of lumbar spine extension. There was reduced sensation in the right L5 dermatome.
He had wasting of tibialis anterior on the right-hand side with significant weakness of the right ankle (strength 3/5). There was more significant weakness of extensor hallucis longus on the right (strength 1/5).” (PCB 112)
54He referred to moderate restriction of the cervical spine, with extension more painful than flexion. He said “There was no abnormal illness behaviour”, and his findings were “consistent with right L5 radiculopathy and associated foot drop”. He diagnosed, inter alia, lumbar intervertebral disc prolapse and right L5 radiculopathy with right sciatica, concluding:
“In my opinion, the transport accident of 17/03/2022 is the cause of his cervical and lumbar spine conditions.” (PCB 112)
55A Victoria Police running-sheet, prepared presumably by one of the officers who attended the collision in the early hours of 17 March 2022, referred to an:
“Apparent head on collision, the victim was driving West bound on Remembrance Dr and the offending vehicle travelling East bound, appears to have veered on the wrong side of the road and collided with the victims front drivers side causing severe damage to both vehicles. The victim was mechanically trapped inside his veh, not able to open the drivers door. The victim had pain to his back and neck ...” (PCB 182)
56Mr Paul was also assessed for medico-legal purposes by Dr Simone Scovell, a consultant occupational physician. Dr Scovell took a history of events as follows:
“He underwent a trauma series of investigations including but not limited to a CT brain and cervical spine, looking for fractures, dislocations or intracranial injuries, none of which were demonstrated. Neck pain was his main problem with a degree of lower back pain and right leg pain. However, because of the significant amounts of analgesia medications utilised to treat the neck condition, the lower back and right leg conditions, which were evident from the get-go, were fairly mild in their symptomatology in the early days, with the symptoms being controlled due to the medications being consumed for the neck. The neck condition was certainly the focus of all medical attention for the first few months after the accident.
In the second half of 2022, however, the leg pain became very problematic, particularly in October of 2022 when he presented to the Emergency Department of Ballarat Base Hospital with lower back pain radiating into the right leg that was fairly extraordinary in nature. He ultimately underwent a CT lumbar spine on 9 October 2022 and this did demonstrate disc bulging at L4/5 with canal stenosis and some associated ligamentum flavum thickening. He was recognised as having disc-osteophyte complex at L5/S1 and some facet joint arthropathy at that level.” (PCB 144)
57The doctor concluded:
“The transport accident of 17 March 2022 caused the cervical and lumbar spine injuries and ongoing conditions.” (PCB 146)
58Mr Armin Drnda, neurosurgeon, assessed Mr Paul for medico-legal purposes at the request of the Transport Accident Commission, responding to the Commission by letter dated 30 July 2024. The doctor recorded the familiar history given to a number of other examiners, and made similar findings on examination. He remarked:
“Waddell’s signs were positive. On axial loading on his head, he reported pain in his right foot. On axial loading over his shoulders, he reported pain in both shoulders. On pseudorotation, he reported some low back pain. On tapping, he reported increased pain in his lower back area. Pinching did not produce a change in symptoms. So, overall, four out of five Waddell’s signs were positive.” (Defendant’s Court Book (“DCB”) 27)
59Mr Drnda said he employed “online access to Ballarat Health Services and Lake Imaging” to review the scans and investigations carried out in March 2022 – that is, immediately after the transport accident – observing:
“The trauma scan performed on 17 March 2022 included also the lumbar spine, which could be magnified and assessed. It revealed normal alignment of the spine, with significant degenerative changes in disc L4/5 and particularly L5/S1, which was almost completely collapsed with a degree of foraminal stenosis bilaterally. At L4-5 there was evidence of a chronic old broad-based protrusion with central calcification/ossification in connection with an osteophyte going on to the posterior margin of the upper endplate of L5 and to the right. There were large anterior osteophytes at L3/4 and L5/S1. Axial views were not contrasted well so I could not assess the extent of the broad-based protrusion. Certainly, nothing appeared to be acute at that time.” (DCB 28)
60The doctor compared these findings with those made on the CT scan of 9 October 2022 and the MRI scan of the lumbar spine conducted on 7 December 2022. (DCB 28) This led the doctor to conclude:
“In my opinion, this acute on chronic disc prolapse at L4/5 is unrelated to the transport accident because it had developed almost seven months after the accident. Mr ... Paul’s first complaint of leg pain was on 7 October 2022, and these symptoms were not present before. Low back pain was never recorded, although Mr ... Paul and his wife claim that he had it, and it appears to be part of the generalised body ache caused by the accident, which eventually settled.” (DCB 29)
Conclusions
61Alone amongst the medico-legal examiners, Mr Drnda said that he made a comparison between the radiology from October and December 2022 and the studies done in March immediately after the transport accident. This comparison gives us the proverbial “before and after”. It is highly probative as to causation. What it seems to show is that there was no relevant low back injury sustained in the transport accident. Rather, this low back injury occurred in some circumstances, whether due to the stresses of a lengthy two-sector flight back from India or as a result of some other incident, and not also a result of the transport accident.
62Mr Paul’s history of heavy labouring work and prior history of low back surgery indicates that his low back was particularly vulnerable. The flare-up in his low back that became evident in October of 2022 would not have required any dramatic trauma to cause its occurrence. The lapse of time between the transport accident and the acute incident in October of 2022 was so great as to contraindicate a connection between the two.
63The evidence given by Mr Paul and his wife was generally to the effect that the painkillers taken for his admitted neck injury masked the existence of the low back injury. His principal affidavit, referring to the prescription of Endone to relieve his neck pain and the statement that he continued to be on painkillers after his return from India, could leave the impression that he was receiving Endone throughout the period late March 2022 to late October. This is incorrect. His discharge summary for his time in the Ballarat Base Hospital, 17-18 March 2022, shows that he was supplied on discharge with 20 “Docusate sodium/senna 50mg/8mg tablet” and 20 “Oxycodone 5mg capsule”. Ms Ryan said, without contradiction, that the discharge summary refers to the oxycodone as “bd”, meaning twice a day. That is, the 20 tablets would be used in 10 days. (T20, L1-12) It would seem that this would have taken Mr Paul to his first consultation with Dr Choyi on 29 March.
64According to Dr Choyi’s records, the presenting problem for Mr Paul was injury in a car crash in which he “Sustained a cervical strain”. She noted that he was “Discharged home on Endone and Ibuprofen”. She recorded “Takes Endone or Ibuprofen as needed”. She added a further prescription of Endone and the muscle relaxant Norflex. (DCB 42) The Endone consisted of 10 tablets with no repeats, and the Norflex consisted of 100 tablets with no repeats, with a direction to take “three times a day as directed”. (DCB 36) The result therefore was that those tablets would be used up by early May. (T20, L28-30) By that time Mr Paul was, until October, using over-the-counter painkillers in the form of paracetamol. (T21, L5-7)
65Treating neurosurgeon Mr Nair’s attribution of the low back pain to the transport accident in March 2022 was, at best, “hedged around” with provisos.
66Ms Crawley, who treated Mr Paul before his October flare-up and after the transport accident and assessed him (concluding that physiotherapy would not be an appropriate modality) after the October flare-up was, as previously noted, downright in concluding there was no link between the low back pain and the transport accident.
67Professor Bittar, in his report opining a connection between the transport accident and the low back pain, said:
“He reports that initially neck pain was his main problem, and he was taking significant amounts of analgesic medications to manage this. He had a degree of lower back pain and right leg pain but these were initially fairly mild and well controlled due to his medications. The focus of medical attention for the first few months after the accident was on his neck.” (PCB 87)
68Dr Scovell took or assumed the correctness of a similar history (PCB 144), which I have quoted above. Given that for weeks after Mr Paul’s prescription medication ran out he was taking no more than over-the-counter painkillers, this interpretation of events is not correct. Had these practitioners been given a more accurate history of Mr Paul’s use of painkillers after the transport accident, they may not have expressed the downright conclusions as to causation which they did.
69Mr Paul has a language barrier. Nevertheless, at all times, according to the evidence, he was accompanied by his wife, who is both a fluent English speaker and a registered nurse. There is every reason why she would have ensured that an accurate account of his pain was given at every turn, and that nothing material was overlooked. She had, after all, the opportunity of interacting with him as part of their life together, and observing him at home. In the Ballarat Base Hospital immediately after the transport accident, according to a physical assessment, an injuries “Trauma Tertiary Survey”, whilst the neck injury was recorded and commented upon, the lumbosacral spine attracted the comment “OK no tenderness”. (DCB 85) At 9.12am on 17 March 2022, “Inpatient Progress Notes” records “Pain in the neck”, but “Nil pain on any parts of body”. (DCB 88)
70Again, had Mr Paul been suffering low back pain in July of 2022, it seems unlikely that he would have undertaken the arduous flight to India, including two flight sectors, one of eight hours and the other of four hours, travelling in economy class. (T13, L3-8) Mr Paul, when cross-examined as to his failure to complain to Ms Crawley, his physiotherapist, about back pain before his travel to India, via the interpreter said “he went to physiotherapist because of neck pain, and he was also complaining of back pain.” There is no reason suggested as to why the physiotherapist would have made no record of that. (T15, L29-31)
71Similarly, there is no reason why these matters would not have been the subject of complaint to Dr Choyi, or, if they were, why she would have made no record of them.
72As to the problems with Mr Paul’s right foot, he agreed that this did not manifest itself until his return from India. (T27, L1-3) He added via the interpreter, “He was not taking care of that one [viz the foot] because of focusing on neck.” (T27, L6-7) Again, whilst having regular consultations with a general practitioner and a physiotherapist, there seems no reason why any problems with his foot would not have been mentioned.
73Mr Paul’s wife gave evidence to similar effect as her husband, namely that the back pain was “masked” during the period before Mr Paul’s travel to India. For all the reasons which have led me to doubt Mr Paul’s evidence to that effect, I likewise doubt his wife’s evidence on this point. In her affidavit in support of Mr Paul’s application, at paragraph 36, she said:
“Since the transport accident, I have observed [Mr Paul] having difficulties stepping with his right foot and walking slowly.”
74If this is to be taken as evidence that Mr Paul exhibited restrictions in his gait referable to his right foot before his trip to India, I do not accept this. As a medical professional herself, she would have been well aware of how serious a sign this was, and indeed as it turned out to be. I cannot accept that she would have ignored it and failed to bring it to the attention of Dr Choyi or Ms Crawley.
75Mr Paul’s stepdaughter, born in 2006, and therefore being “15 going on 16” at the time of the transport accident, also made an affidavit in support of Mr Paul’s application. Under cross-examination, she said that she observed that her stepfather was “dragging his feet”, and “It wasn’t just after he returned from India”. (T52, L4-10) She denied, despite the affidavit’s being made over three years after the event, that her memory could have been faulty on this point. In my view, in light of the other matters which I have summarised, her memory on this point is faulty, and Mr Paul’s foot dragging occurred only after the October 2022 flare-up.
76Standing against all the matters which I have referred to, we have a police running-sheet which, on the day of the accident, refers to Mr Paul’s suffering back pain. On his own account, which I did not understand to be challenged, he suffered pain all over in the immediate aftermath of the accident. He may also have suffered specific back pain at that time. The clinical records and the records of treating practitioners indicate that this pain must have faded away shortly afterwards, if the police officer was accurate in the record which he made.
77In these circumstances, Mr Paul’s application must fail.
Costs
78I have heard no submissions on the question of costs and so I will reserve them.
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Certificate
I certify that these 20 pages are a true copy of the judgment of his Honour Judge Macnamara delivered on 18 July 2025.
Dated: 18 July 2025
Jodie Daniel
Associate to His Honour Judge Macnamara
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