Pepprell v Transport Accident Commission
[2025] VCC 1149
•15 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-07261
| MEGAN PEPPRELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 July 2025 | |
DATE OF JUDGMENT: | 15 August 2025 | |
CASE MAY BE CITED AS: | Pepprell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1149 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to lumbar spine – two transport accidents - causation – aggravation of pre-existing degenerative changes to the spine - reliability of plaintiff’s evidence – pain and suffering
Legislation Cited: Transport Accident Act 1986
Cases Cited:Findlay v Transport Accident Commission [2025] VSCA 126
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Mr C Sidebottom | Zaparas Lawyers |
| For the Defendant | Mr A Moulds with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1Ms Pepprell is a thirty-four year old primary school teacher who injured her back in a transport accident on 12 November 2010 (“the 2010 transport accident”). She was twenty years old at the time of the accident.
2The accident involved a multicar nose-to-tail collision.[1] The car she was driving was struck from behind by another vehicle. As a result of the impact, her car was pushed into the back of the vehicle in front of her.
[1]Exhibit P1, Plaintiff’s Amended Court Book (“PCB”) 18 at paragraph [10]
3Ms Pepprell made a claim for compensation pursuant to the Transport Accident Act 1986 (“the Act”), which was accepted.
4She has a long history of serious and significant medical treatment since the 2010 transport accident, including a microdiscectomy, an implantation of a spinal cord stimulator and multiple transforaminal injections.
5Parties agreed that the evidence established that Ms Pepprell sustained an aggravation or exacerbation of her pre-existing degenerative changes to her lumbar spine in the 2010 transport accident.
6However, the issue of causation was in dispute. Specifically, whether the aggravation of her pre-existing degenerative changes was temporary or long-term, and therefore whether her current consequences are attributable to the 2010 transport accident or not.
7It transpired that Ms Pepprell was also involved in an transport accident on 27 November 2008, when she was on Phillip Island during ‘schoolies’ week and swerved to miss a kangaroo on a dirt road (“the 2008 transport accident”). Between the 2008 and 2010 transport accidents, she attended a chiropractor, Dr Michael Abels, on three occasions, who made reference to Ms Pepprell having lower back pain and occasional right hip pain in his clinical notes of these attendances. Counsel for the Transport Accident Commission (“TAC”) relied on these attendances in support of their submission that the aggravation of Ms Pepprell’s pre-existing degenerative changes was temporary.
8Ms Pepprell’s credibility was not in issue in this case. However, her reliability was, insofar as she had very little independent recollection of her symptoms[2] and what she had told her various treating practitioners over the years.
[2]Transcript (“T”) 138, Lines (“L”) 6-7
9Thus, the issues to be resolved in this case are:
(a) Was the evidence of Ms Pepprell reliable?
(b) Was the aggravation of Ms Pepprell’s pre-existing degenerative lumbar spine changes, sustained in the 2010 transport accident, long-term?
10Counsel for the TAC conceded that the consequences Ms Pepprell presented with at the date of hearing would satisfy the definition of “serious injury” pursuant to s93(17) of the Act.[3] Thus, if I were to conclude that the aggravation was long-term, and therefore the consequences experienced by Ms Pepprell are attributable to that aggravation, I understood the position of the TAC to be that the issue of whether Ms Pepprell met the test for “serious injury” would not be in dispute.
[3]T3, L7-10
11While I was taken to a number of authorities on causation in serious injury proceedings, the legal principles to be applied in this case were not in dispute.
12Ms Pepprell gave affidavit and oral evidence. An affidavit of her mother, sworn on 2 July 2025 was tendered in this case. The parties otherwise tendered various medical reports and other material from their respective court books.
13I have considered the evidence and submissions relied on at the hearing. While I do not propose to refer to all of the evidence, I shall refer to it to the extent necessary to explain my reasons.
14For the reasons set out below, I find Ms Pepprell is entitled to leave to proceed with a claim for damages arising from the injury to her lumbar spine from the transport accident of 12 November 2010.
Ms Pepprell’s evidence
15Ms Pepprell swore two affidavits in support of her application, the first sworn on 7 June 2024 and the second sworn on 2 April 2025.
Ms Pepprell’s first affidavit
Relevant background
16Ms Pepprell lived at home with her mother, Melinda, and her de facto partner, Chris, at the time of making her first affidavit.
17She attended secondary school at Avila College in Mount Waverley, completing Year 12 in 2008. She then enrolled in a nursing and midwifery degree at Deakin University, however she dropped out of this course after approximately six months as she did not enjoy it.[4]
[4]Exhibit P1, PCB 17 at paragraph [4]
18After leaving university, she undertook volunteer work assisting with dog therapy. Soon after, she obtained casual work as a kindergarten educator. She was employed by the Responsible Pet Education Program, which was run by the Victorian government, and involved her teaching dog safety and awareness to preschool children.[5] Although her hours varied, she deposed to typically working between five and ten hours most weeks.[6] She was working in this position at the time of the 2010 transport accident, and was involved in the program for a few years following the accident.
[5]Exhibit P1, PCB 17 at paragraph [5]
[6]Ibid
19She deposed to suffering from fluctuating levels of anxiety and depression for several years, and having medical treatment by way of consultations and medication. Apart from her mental health issues, she said she was otherwise a reasonably fit and healthy young woman prior to her accident. She had seen a chiropractor on a couple of occasions in or about 2008 after a brief episode of back discomfort, but believed she had made a full recovery from that.[7] She enjoyed trailbike riding, wakeboarding and horse riding prior to the 2010 transport accident.
[7]Exhibit P1, PCB 18 at paragraph [9]
20After the 2010 transport accident, she deposed to being dazed and shaken.[8] She initially felt pain in her chest, neck and back, but did not believe she needed medical treatment, and drove herself home.[9]
[8]Exhibit P1, PCB 19 at paragraph [11]
[9]Ibid
Medical treatment following the 2010 transport accident
21In the days following the accident, she developed increasing pain across her chest from where her seatbelt had been.[10] She felt as though she had suffered a whiplash injury, and had pain in her neck and lower back. She attended a local chiropractor on a couple of occasions, but this did not help her very much.[11]
[10]Exhibit P1, PCB 19 at paragraph [12]
[11]Ibid
22As her symptoms did not resolve, she attended her local general practitioner at Parkridge Medical Clinic. She deposed that at that stage, she was experiencing persisting back and neck pain, and muscle spasms.[12] She was referred for x-rays of her neck and back, and it was recommended she commence physiotherapy treatment.
[12]Exhibit P1, PCB 19 at paragraph [13]
23On 21 December 2010, she has a CT scan of her lower back, which she understood was reported to show disc bulges at L4/L5 and L5/S1.[13]
[13]Exhibit P1, PCB 19-20 at paragraph [14]
24On 27 January 2011, she lodged a TAC claim which was accepted.[14]
[14]Exhibit P1, PCB 20 at paragraph [15]
25She began to develop symptoms of radiating pain into her right leg and foot. She also had difficulty sleeping and was struggling increasingly at work, as she found prolonged sitting and walking uncomfortable. She deposed that her back was impacting on her life more and more. In May 2011, she was referred to the Metropolitan Spinal Clinic.[15]
[15]Exhibit P1, PCB 20 at paragraph [16]
26On 29 August 2011, she consulted Dr Julian Freitag, an orthopaedic surgeon, who referred her for an MRI scan. On 26 September 2011, she returned to see him and he explained that the MRI had revealed a broad posterior L4/L5 disc bulge, which displaced the right and left L5 nerve roots.[16] He subsequently prescribed PredMix, and suggested that she undertake physiotherapy and core-strengthening exercises.
[16]Exhibit P1, PCB 20 at paragraph [17]
27Ms Pepprell deposed that over the next few months, her back and leg pain seemed to settle down. She continued to experience nagging pain, but she learnt to better manage her symptoms. In 2012, she obtained an office administration role at Dandenong High School and returned to full-time employment.[17]
[17]Exhibit P1, PCB 20 at paragraph [18]
28However, she continued to suffer regular flare-ups of more severe pain. In late 2012, her back and leg pain began to deteriorate once more, as she developed increasing pins and needles in her right foot and struggled to sit for long periods at work.[18] In November 2012, she returned to see her general practitioner and was prescribed anti-inflammatories. She was also referred back to the Metropolitan Spinal Clinic.[19]
[18]Exhibit P1, PCB 21 at paragraph [19]
[19]Ibid
29Dr Brian Lovell, a pain medicine physician at the Metropolitan Spinal Clinic, prescribed Norspan patches to assist with her pain and recommended that she undergo an epidural injection.[20] On 27 February 2013, Associate Professor Bruce Mitchell, a sports and exercise medicine physician at the Metropolitan Spinal Clinic, performed a bilateral transforaminal L5 nerve root injection under sedation. Ms Pepprell deposed to this injection providing modest improvement in her pain. She subsequently returned to her general practitioner and her dose of Norspan was increased. This was beneficial and helped to “take the edge off the severity of [her] pain.”[21]
[20]Exhibit P1, PCB 21 at paragraph [20]
[21]Exhibit P1, PCB 21 at paragraph [22]
30Ms Pepprell deposed that over the next couple of years, she was largely able to manage her back pain through chiropractic treatment, self-managed exercises and analgesics.[22] She learnt how to regulate her level of activity and became more adept at recognising triggers that would aggravate her back.
[22]Exhibit P1, PCB 21 at paragraph [23]
31In 2013, she commenced a Bachelor of Early Childhood Education at Holmesglen TAFE, which she completed over the next four years.[23] During her studies, her back pain fluctuated. There were times when her back was “pretty good”, but it would sometimes flare up unpredictably.[24] Similarly, her mental health also fluctuated during this time. She did manage to travel overseas on a couple of occasions during this period, but found that her back pain flared up after long-haul flights, and that she had to be mindful of her level of activity during her holidays.[25]
[23]Exhibit P1, PCB 22 at paragraph [24]
[24]Exhibit P1, PCB 22 at paragraph [25]
[25]Ibid
32In October 2014, following a deterioration of her mental health, she commenced attending Dr Ida Kaplan, a psychologist, who prescribed her diazepam. She also recommenced using Norspan patches around this time. In early 2015, she commenced remedial massage and osteopathic treatment, but did not feel that either of these assisted.[26]
[26]Exhibit P1, PCB 23 at paragraph [28]
33On 11 May 2016, she attended Dr Stephen McKernan, a general practitioner at the Metropolitan Spinal Clinic, who recommended that she undergo a further injection into her back. On 11 July 2016, she underwent a further transforaminal epidural injection, which provided some improvement in the level and intensity of her back and leg pain.[27]
[27]Exhibit P1, PCB 23 at paragraph [30]
34In January 2017, Ms Pepprell was involved in a further transport accident, where she developed some whiplash-type pain in her neck for a couple of weeks, which settled down and improved over time. She did not believe that this transport accident had any material impact on her back, and her back problems continued to remain at much the same level as they had been since the 2010 transport accident.[28]
[28]Exhibit P1, PCB 23-24 at paragraphs [31]-[32]
35On 25 January 2017, she returned to see Associate Professor Mitchell and he recommended a further L5 transforaminal epidural injection under sedation, which was completed on 15 March 2017.[29]
[29]Exhibit P1, PCB 24 at paragraph [33]
36In 2017, she commenced full-time employment as a primary school teacher with the Department of Education. She continued to work full-time as a teacher over the next six years, except in 2021 when she dropped down to four days a week to cope with her injuries and to have more time to access treatment.[30] During this time, she also picked up some work from her partner’s business.
[30]Exhibit P1, PCB 24 at paragraph [34]
37During her return to full-time employment, she felt that she had to be quite careful with how she managed her back pain, as prolonged periods of sitting and standing aggravated her back pain.[31] Her back pain would also flare up when she did yard duty or activities that involved bending, lifting or prolonged walking. Despite this, she enjoyed teaching and persevered with her work despite her back pain.[32]
[31]Exhibit P1, PCB 24 at paragraph [35]
[32]Exhibit P1, PCB 24 at paragraph [35]
38By the end of 2017, she felt that her back pain and referred leg pain was getting “increasingly troublesome again.”[33] On 5 January 2018, she attended Associate Professor Mitchell again and she underwent a bilateral L5 transforaminal nerve root injection on 24 January 2018 by Dr Dan Bates, sports and exercise physician at the Metropolitan Spinal Clinic.[34] She deposed to not obtaining much benefit from this procedure, and she continued to experience persistent back pain that radiated into her buttock and down her right leg.[35]
[33]Exhibit P1, PCB 24 at paragraph [36]
[34]Exhibit P1, PCB 24-25 at paragraph [36]
[35]Exhibit P1, PCB 25 at paragraph [37]
39On 17 April 2018, she returned to Dr Bates for review, who advised that she was most likely suffering from a disc problem and referred her for an MRI. On 19 April 2018, she had an MRI of her lumbar spine, and on 4 May 2018 returned to see Dr Bates for the results. He advised that the scan demonstrated disc protrusions at L5/S1 and S1/S2 that were compressing nearby nerve roots. On 17 May 2018, following a recommendation by Dr Bates, she underwent a right-sided S2 transforaminal nerve root injection, which only provided a modest improvement.[36]
[36]Exhibit P1, PCB 25 at paragraph [38]
40In September 2018, she suffered a further flare-up of back pain, and she was subsequently prescribed Norspan patches, Lyrica and tramadol to help with her pain. On 26 September 2018, she was referred for an x-ray of her back, which she understood to show disc space narrowing at L5/S1.[37]
[37]Exhibit P1 PCB 25 at paragraph [40]
41Around this time, Associate Professor Mitchell recommended she undergo another injection into her spine and a nucleoplasty procedure in an attempt to shrink the disc bulge that was pressing on her nerve root.[38]
[38]Exhibit P1, PCB 26 at paragraph [41]
42In mid-October 2018, her back and leg pain become so severe that she had to be hospitalised over a weekend. Following her discharge, she attended Associate Professor Mitchell and he arranged for her to have epidural injections into her back at L5/S1 on 17 October 2018.[39]
[39]Exhibit P1, PCB 26 at paragraph [42]
43On 21 November 2019, Associate Professor Mitchell performed a percutaneous plasma discectomy at L5/S1 and an L5 transforaminal epidural injection.[40] Ms Pepprell suffered some complications after that operation, and underwent a further MRI scan on 22 November 2018, which showed an ongoing L5/S1 disc protrusion.[41]
[40]Exhibit P1, PCB 26 at paragraph [43]
[41]Exhibit P1, PCB 26 at paragraph [44]
44She also developed severe headaches, and Associate Professor Mitchell recommended she undergo an urgent epidural blood-patch procedure, which was done on 28 November 2018. Following that, she had improvements in her headaches and back pain, but was frustrated by the gradual return of her symptoms to their previous levels.[42]
[42]Exhibit P1, PCB 26 at paragraph [45]
45Associate Professor Mitchell discussed the possibility of Ms Pepprell having a spinal cord stimulator inserted and referred her to Associate Professor Tony Goldschlager, a neurosurgeon, for his opinion. On 11 December 2018, she attended Associate Professor Goldschlager, who recommended she undergo spinal surgery to repair her damaged L5/S1 disc.[43] On 16 January 2019, she underwent a right L5 and S1 transforaminal nerve root injection and pulsed radiofrequency procedure, which was repeated in February 2019.[44]
[43]Exhibit P1, PCB 26-27 at paragraph [46]
[44]Exhibit P1, PCB 27 at paragraph [48]
46On 18 February 2019, she underwent a L5/S1 microdiscectomy, but developed severe pain over her right leg and foot a couple of days later. Associate Professor Goldschlager recommended she participate in an inpatient pain rehabilitation program at the North Eastern Rehabilitation Centre.[45] Her participation in this program allowed her to gradually increase her level of function.[46]
[45]Exhibit P1, PCB 27 at paragraph [49]
[46]Exhibit P1, PCB 27 at paragraph [50]
47Following surgery, she was able to wean off a lot of her medication, although she still required Targin to “help take the edge off” her pain.[47]
[47]Exhibit P1, PCB 27-28 at paragraph [51]
48On 27 August 2019, she underwent a further right L5/S1 transforaminal nerve root injection and pulsed radiofrequency neurotomy. Two similar procedures were performed on 5 December 2019 and 30 January 2020.[48]
[48]Exhibit P1, PCB 28 at paragraph [52]
49On 11 March 2020, she underwent an operation to insert a trial spinal cord stimulation device.[49] On 25 March 2020, she had a further operation to remove the trial device, and Associate Professor Mitchell recommended she have a permanent implant given the positive results of the trial.[50]
[49]Exhibit P1, PCB 28 at paragraph [53]
[50]Ibid
50On 19 August 2020, the permanent spinal cord stimulation device was inserted. She deposed that after this procedure, she had some modest improvement in her pain levels, but not as much benefit as she had hoped.[51]
[51]Exhibit P1, PCB 28 at paragraph [55]
51On 22 March 2021, she underwent a caudal epidural steroid injection into her back. On 12 May 2021, she underwent a further transforaminal injection and pulsed radiofrequency procedure. Initially, she had a positive response to these procedures, but the effect of these injections gradually wore off over time.[52]
[52]Exhibit P1, PCB 29 at paragraph [57]
52On 25 August 2021, she sought a second opinion from another pain specialist, Dr Symon McCallum, at Precision. He referred her for a CT scan of her back, which was performed on 3 September 2021, and showed a large L5/S1 disc extrusion.[53]
[53]Exhibit P1, PCB 29 at paragraph [58]
53On 10 September 2021, she underwent a further pulse radiofrequency and epidural procedure. However, her pain continued to deteriorate to concerning levels soon after, which led her to being hospitalised in early 2022 for just under six weeks to try to control her pain.[54]
[54]Exhibit P1, PCB 29 at paragraph [59]
54Following her release from hospital, she returned to work. She also returned to see Associate Professor Mitchell, who arranged for her to have a repeat S1 transforaminal and pulsed radiofrequency procedure under sedation in May 2022. He also recommended she undergo a plasma disc decompression.[55]
[55]Exhibit P1, PCB 29 at paragraph [60]
55On 12 October 2022, she underwent the plasma disc compression procedure, which led to a mild change in her low back pain. However, it did not make much different to her sciatica and referred symptoms into her leg.[56]
[56]Exhibit P1, PCB 30 at paragraph [61]
56On 8 December 2022, she underwent a further CT scan of her lumbar spine, which she understood to show a persistent right paracentral focal disc protrusion at L5/S1, which was compressing the right S1 nerve root, and some canal stenosis at L4/L5.[57]
[57]Exhibit P1, PCB 30 at paragraph [62]
57Following the scan, she returned to Dr Bates who informed her that she was likely suffering discogenic pain and instability around her sacroiliac joint, so he recommended sacroiliac joint injections.[58]
[58]Exhibit P1, PCB 30 at paragraph [63]
58She decided to return to Dr McCallum to assist in the management of her pain, as she did not have much of a rapport with Dr Bates following Associate Professor Mitchell’s retirement. On 21 September 2023, Dr McCallum recommended she consult an orthopaedic surgeon.
59On 25 October 2023 and 23 February 2024, she consulted Mr Philip Sheard, an orthopaedic surgeon. He recommended she undergo lumbar spine fusion surgery.[59]
[59]Exhibit P1, PCB 30 at paragraph [63]
Consequences of the 2010 transport accident
60At the time of the affidavit, Ms Pepprell was employed as a primary school teacher on a full-time basis. She had taken long service leave so as to focus on her medical treatment and getting better.[60]
[60]Exhibit P1, PCB 31 at paragraph [66]
61Despite all of the procedures she had undergone, she continued to experience constant pain and discomfort in her lower back. The intensity of her pain varied day-to-day, but she was rarely pain free. She deposed that her pain ranged from a deep, dull ache to an intense, sharp stabbing and pinching-type pain.[61]
[61]Exhibit P1, PCB 31 at paragraph [67]
62She had restricted movement in her lower back and her ability to bend and twist was diminished. She had frequent episodes of sciatica and referred symptoms into her right leg. She often developed pain through her right buttock and hamstring down into her right foot. She also suffered from regular episodes of pins and needles, numbness and altered sensation in her right leg and foot.[62]
[62]Exhibit P1, PCB 31 at paragraph [68]
63She deposed to the pain in her back and right leg interfering with her sleep most nights, as she struggled to find a comfortable position. When she did manage to fall asleep, she was often woken up by the pain multiple times in the night. This caused her to feel tired and fatigued during the day.[63]
[63]Exhibit P1, PCB 32 at paragraph [70]
64Her mood and mental health was considerably impacted by her pain levels.[64] Her anxiety increased. Although she had an anxious disposition and suffered from mental health issues prior to the injury, the back injury had increased those burdens.[65] She acquired an assistance dog, who became a companion to try and distract her from her pain.[66]
[64]Exhibit P1, PCB 32 at paragraph [71]
[65]Exhibit P1, PCB 32 at paragraph [72]
[66]Exhibit P1, PCB 32-33 at paragraph [72]
65At the time of her affidavit, she was using Norspan patches weekly, Temgesic regularly and Endone a couple of times most weeks to assist when she had severe flare-ups of pain. She also took Nurofen and Panadol on an as-needed basis, and from time to time, she would take an anti-inflammatory like Mobic.[67]
[67]Exhibit P1, PCB 33 at paragraph [73]
66She attended her treating general practitioner, Dr Isaac Baker, once a month. She also attended her pain specialist, Dr McCallum approximately once every three months. She had funded counselling sessions with Dr Kaplan. She was under the care of Mr Sheard, who at the time of the affidavit had recommended she undergo a spinal fusion on her back as a last resort.[68]
[68]Exhibit P1, PCB 33 at paragraph [74]
67She deposed that her back injury had a major impact on her level of activity and quality of life. Following periods of prolonged sitting, standing or walking, her back pain was aggravated, and she became stiff and sore if she remained static for too long. This was especially challenging when doing activities like driving, watching movies, or teaching a class.[69]
[69]Exhibit P1, PCB 33 at paragraph [75]
68Her back pain also limited her ability to twist, bend, push, pull or lift any moderately-heavy items. She struggled with navigating uneven ground, steps, stairs and inclines. Her personal grooming was impacted as she struggled with bending to wash, dry and tend to her lower legs and feet.[70]
[70]Exhibit P1, PCB 33-34 at paragraph [76]
69Her capacity undertake housework and cooking was heavily impacted.[71] She found that she had to seek assistance with heavier or awkward tasks, such as making beds, vacuuming and hanging out the washing.
[71]Exhibit P1, PCB 34 at paragraph [77]
70When she had a bad flare-up of sciatica and pain, she sometimes had to use a walking frame to assist with her mobility. However, she found this embarrassing and tried to only use it sparingly as it impacted her self-esteem. She also regularly used a bed stick to help her in and out of bed, which was also upsetting.[72]
[72]Exhibit P1, PCB 34 at paragraph [78]
71As a result of her back pain, she became less sociable, as attending functions and parties was uncomfortable as sitting and standing aggravated her pain. When she did go out on rare occasions, she did not want to stay for long.
72Her pain also affected her intimacy with her partner, and she worried about how she would have a baby or raise a family due to her back pain.[73] She was also concerned about the impact of her injury on her work and career as a teacher.[74] She was worried that she may have to cease working as a teacher and look for part-time or easier work in the future.[75]
[73]Exhibit P1, PCB 34 at paragraph [79]
[74]Exhibit P1, PCB 35 at paragraph [82]
[75]Exhibit P1, PCB 35 at paragraph [83]
73Prior to the accident, she used to be active and enjoyed horse riding, wakeboarding and trailbike riding. However, she since ceased these activities due to her back pain.[76] She was still able to go scuba diving at the time of swearing her first affidavit, which was her main social outlet. She used modified equipment so that less strain was placed on her back. Due to the weightlessness in the water, the scuba gear did not place too much strain on her back and she found that scuba diving was good for her mental health.[77]
[76]Exhibit P1, PCB 34-35 at paragraph [80]
[77]Exhibit P1, PCB 35 at paragraph [81]
Ms Pepprell’s second affidavit
74Ms Pepprell swore a further affidavit on 7 April 2025.
75She stated that since swearing her previous affidavit, there had been very little change in her condition, as she continued to be troubled by significant pain and restriction in her lower back most days. She also continued to experience fluctuating sciatica and referred pain down her right leg. Due to her persisting symptoms, her mental health has also continued to fluctuate.[78]
[78]Exhibit P1, PCB 90 at paragraph [3]
76Since her previous affidavit, she and her partner moved to a new home in Healesville. She consequently changed schools, and started teaching full-time at Badger Creek Primary School in 2025. However, she did not find this primary school to be suitable for her, and accepted a full-time position at Chirnside Park Primary School, was due to commence in Term Two.[79]
[79]Exhibit P1, PCB 90 at paragraph [4]
77She also provides private out-of-school tutoring to individual school students one to three times per week. She commenced this work as she thought she could fall back on it if she has a child or if her injuries prevent her from working in the classroom long term.[80]
[80]Exhibit P1, PCB 90-91 at paragraph [6]
78In the classroom, she continues to face challenges with her tolerances due to her back pain. For example, writing reports, or using the whiteboard or computer for long periods of time aggravates her back pain.[81]
[81]Exhibit P1, PCB 91 at paragraph [7]
79She continues to struggle with her ongoing pain and her mental health. She is assisted by her assistance dog, Alfred, who distracts her from her pain and anxiety.[82] Her pain levels fluctuate on a daily basis, and she has good and bad days. However, her bad days outnumber her good days, and she is rarely pain-free.[83] Her mental health is also affected by her back injury, as well her relationship with her partner, which has been strained for the past 12 months.[84] She remains anxious and concerned about the future, as she is struggling more and more at work due to her back and leg pain.[85]
[82]Exhibit P1, PCB 91 at paragraph [8]
[83]Exhibit P1, PCB 91-92 at paragraph [9]
[84]Exhibit P1, PCB 92-93 at paragraphs [12]-[13]
[85]Exhibit P1, PCB 95 at paragraph [20]
80Her range of movement and flexibility remains restricted.[86] She continues to experience regular episodes of muscle spasms in her lower back,[87] and suffers from radiating pain into her right leg from time to time.[88]
[86]Exhibit P1, PCB 92 at paragraph [10]
[87]Ibid
[88]Exhibit P1, PCB 92 at paragraph [11]
81She also continues to use Norspan patches on a regular basis, but has ceased taking Temgesic. She uses Endone to help manage more significant flare-ups of pain. For less intense flare-ups she uses a combination of Nurofen or Panadol, which she takes on average every second day.[89]
[89]Exhibit P1, PCB 93 at paragraph [14]
82She remains under the care of Dr Baker, although sees him less often since moving to Healesville as the drive to his clinic is uncomfortable due to her back pain. She seems him approximately once every few months. She continues to see Dr Kaplan once every two weeks. She has not been back to see her pain specialist as further treatment has been put on hold pending the outcome of the request for approval of her lumbar fusion surgery.[90]
[90]Exhibit P1, PCB 93 at paragraph [15]
83To date, the TAC has declined to accept her request for surgery, and she has contemplated applying for that surgery through the public system. However, she remains worried about the impact a fusion might have on her future ability to have children.[91]
[91]Exhibit P1, PCB 93-94 at paragraph [16]
84Her social, recreational and domestic activities remain heavily restricted as outlined in her earlier affidavit. Her ability to perform domestic chores remains limited.[92] Since her earlier affidavit, she has not been able to return to scuba diving due to her back injury, and she subsequently lives a much more sedate and inactive lifestyle.[93]
[92]Exhibit P1, PCB 94 at paragraphs [17]-[19]
[93]Exhibit P1, PCB 94 at paragraph [18]
85She noted that her solicitors had obtained the clinical notes from Dr Abels, who she saw on a couple of occasions during 2008. She recalled that the accident referred to in those notes occurred while she was on holidays during “schoolies” at Phillip Island. The accident occurred when she was driving her car on a dirt road and swerved to miss a kangaroo. Her car ended up coming to rest among a series of shrubs beside the road. She said it was a relatively-minor incident and neither the police nor ambulance attended afterwards. She did not require any immediate medical attention afterwards and was able to drive the car back to where she was staying and enjoy the rest of her holiday.[94]
[94]Exhibit P1, PCB 95 at paragraphs [21]-[22]
86She recalled developing “some grumbling back pain” in the weeks following the 2008 transport accident, and her mother encouraged her to attend Dr Abels. Before she saw him, he referred her for an x-ray of her spine. She understood that the clinical records showed this occurred on 6 December 2008 and was reported to show some minor scoliosis and degenerative change in her lower back. She then attended Dr Abels on 9 and 16 December 2008. After that time, she believed that her back pain settled down and improved. She did not require any further ongoing treatment for that incident and thought she made a full recovery. She did not believe she lodged a TAC claim after that accident.[95]
[95]Exhibit P1, PCB 95-96 at paragraph [23]
87She understood that the records of Dr Abels showed that she had re-attended his clinic approximately two years later on 28 October 2010. She understood that those records disclosed she complained of lower back pain and right hip pain. She did not have a clear recollection of that attendance or of making those complaints at that time. However, she did not doubt the accuracy of Dr Abel’s clinical notes and accepted that they accurately recorded the complaints that she must have made at that time.[96]
[96]Exhibit P1, PCB 96 at paragraph [24]
88She said that whatever issues she experienced at that time must have been relatively minor as she did not recall any persisting problems. She understood that her general practitioner’s clinical notes disclosed she attended 12 days later on 9 November 2010. On that day, the notes recorded she complained of various ailments, including a rash on her hands, some left wrist pain and some chest pain, but no reference to any lingering back problems recorded by her general practitioner. That accorded with her recollection that immediately before the 2010 transport accident, she was not suffering from any significant issues with her back.[97]
[97]Exhibit P1, PCB 96 at paragraph [25]
Ms Pepprell’s oral evidence
89Ms Pepprell gave oral evidence at the hearing of this matter.
90She understandably did not recall a lot of the detail of her historical attendances with practitioners, given that the questions related to her attendances arising from the 2008 transport accident and the 2010 transport accident.
91She nonetheless did her best to answer the questions that she could, deferring to the accuracy of the clinical records where she did not have an independent recollection.
92She recalled she was not experiencing pain at the time of the transport accident in 2010. When asked how she knew that, she said that straight afterwards she felt significantly different and from that moment in her life everything changed.[98]
[98]T24, L26-31
93She said the 2010 transport accident “was the catalyst for what was now a nightmare of [her] life and had left a significant mark on [her] memory.”[99] She knew that prior to leaving work that day she was fine. She could recall what she was wearing, how she felt and remembered that she was okay and then she was not.[100]
[99]T26, L11-13
[100]T26, L11-16
94She did not have any recollection of her back or right leg pain improving over the period from 20 January 2011 to 15 February 2011 (those being the relevant entries she was taken to from Dr Abels’ clinical records).
95She did not recall a pattern of her pain getting better and worse over the period from February 2011 to May 2011. She recalled pain.[101]
[101]T38, L3-14
96She did not recall a very substantial improvement in her back and leg problems from September 2011 when she first saw Dr Freitag through to early 2012.[102]
[102]T44, L22-26
97When asked whether her back and leg problems improved considerably from early 2013 to at least February 2014, she could not say. She remembered pain when running, but other than that relied on the entries in the clinical notes.[103] Later, she clarified that she was not insisting there was no improvement, but saying that she did not remember an improvement.[104]
[103]T50, L30 ꟷ T51, L4
[104]T54, L1-3
98When she thought back on her experience of pain from the injuries sustained in the 2010 transport accident, she could not recall any vast improvements since the time of the accident.[105] Even today, her pain went up and down, she had good and bad days, some days she could function and other days she could not leave the bed or the house.[106]
[105]T60, L7-13
[106]T60, L13-15
99She said she had tried really hard to not let the pain define her life, and had tried to get on with her life. She had not found it easy to seek treatment
forvarious reasons and the pain had made her feel quite disheartened about seeking treatment and the future.[107][107]T60, L9-26
100Many doctors had spoken to her about staying fit and active and doing core strengthening exercises. She had developed a “pretty nasty” eating disorder that encouraged her to go to the gym.[108]
[108]T61, L1-8
Affidavit of Melinda Redfern, mother of Ms Pepprell
101Ms Redfern swore an affidavit on 2 July 2025.
102She did not recall that Ms Pepprell had any significant problems with her back prior to the 2010 transport accident.[109] She recalled suggesting to her daughter that she attend Dr Abels.[110]
[109]Exhibit P1, PCB 99 at paragraph [7]
[110]Exhibit P1, PCB 99 at paragraph [8]
103Her recollection of the 2008 transport accident was that the car was more damaged than its occupants. She did not recall Ms Pepprell having had any injury or any ongoing problems with her back after that accident.[111]
[111]Exhibit P1, PCB 100 at paragraph [9]
104She said it had been very hard to watch her daughter’s life change completely as a result of the 2010 transport accident and observe her in so much pain.[112] She said that the pain appeared to have an impact on all areas of her life, including her temperament, her ability to cope, her relationships and her ability to engage in social activities.[113]
[112]Exhibit P1, PCB 101 at paragraph [15]
[113]Exhibit P1, PCB 101 at paragraph [14]
Medical evidence
105While there were many doctors relied on at this hearing, the closing submissions of Counsel focused on the records and reports of Dr Abels, the records of the “Wellness on Wellington” clinic and the medico-legal opinions of Mr Rogers, Professor Bittar and Mr Nair.
106This is likely because the real issue in dispute was causation, that is, whether Ms Pepprell had a temporary or permanent aggravation of her degenerative spinal injury in the incident of 12 November 2010.
107Thus, while I will provide a brief summary of all material tendered at the hearing, I will provide a more detailed summary of those that were relied on in the submissions of Counsel.
Plaintiff’s treating doctors reports
Dr Michael Abels, chiropractor
Reports
108Dr Abels provided two reports for this matter. His first report noted that Ms Pepprell presented to his clinic on 9 December 2008 following a transport accident, where she experienced almost total right-sided body pain in the days following.[114]
[114]Exhibit P1, PCB 103
109He opined that Ms Pepprell’s lower back injury was initially experienced due to the 2008 transport accident, and that if Ms Pepprell did not seek other treatment between her visits to him on 16 December 2008 and 28 October 2010, that it was lurking in the background, before becoming prominent enough to necessitate a consultation with Dr Abels on 28 October 2010.[115]
[115]Ibid
110Following the 2010 transport accident, he noted that her presentation on 16 November 2010 was “overtly obvious” and the serious nature of the injury was evident to Dr Abel as being worse than the first transport accident.[116] He stated that based on the information he had available, Ms Pepprell’s L4/L5 and L5/S1 discs were clearly damaged, and that there was also disc and facet joint damage to Ms Pepprell’s neck following the two transport accidents.[117]
[116]Ibid
[117]Exhibit P1, PCB 104
111Dr Abels provided a supplementary report dated 25 June 2025, where he provided a translation of his written notes from an attendance by Ms Pepprell on 20 January 2011, following an onset of symptoms arising from a sneeze (“the sneezing episode”):
“On Monday 17th – sneezing with resultant acute low back pain; post sneezing pain down right leg. Approximately 2 days later better, re: movement. Overall approximately 20% improvement.
Treatment given: S1 & S2: Base posterior with left rotation of Sacrum, Left side of table & right side of table (adjustments given) using push technique, incrementally.”[118]
[118]Exhibit P1, PCB 106; Exhibit D1, Defendant’s Amended Court Book (“DCB”) 8
112Dr Abels opined that the sneezing episode was not a new injury, but rather, caused the present disc bulge to push itself toward or into the theca[119] and possibly exit the peripheral nerves, resulting in referred right leg pain.[120] He felt that the symptoms were a continuation of the injuries sustained previously in the 2010 transport accident.
[119]Sheath or covering
[120]Exhibit P1, PCB 106
Clinical Records
113Counsel for the TAC tendered Dr Abels’ clinical records, which included a report of Dr Mark Scott, consultant radiologist, following a referral from Dr Abels made prior to Ms Pepprell’s first attendance. Dr Scott completed a full spine and pelvis examination of Ms Pepprell on 6 December 2008, and noted the following for the lumbo-pelvic spine:
“The lumbosacral angle is very acute. There is moderate posterior wedging of L5 vertebra and slight similar change at L3 and L4. The T12/L1, L2/3 and the lumbosacral disc are a little narrow and these may be degenerating.”[121]
[121]Exhibit D1, DCB 4
114Ms Pepprell was cross-examined on the clinical records of several relevant attendances with Dr Abels.
115The first relevant note was following Ms Pepprell’s first attendance, where he recorded that she had a transport accident on 27 November 2008, when she swerved to miss a kangaroo and the passenger side collided with tree.[122] He noted that the next day she complained of right back pain, right clavicle, right arm and right buttock pain.[123]
[122]Exhibit D1, DCB 7; T19, L13-31
[123]Exhibit D1, DCB 7; T20, L15-19
116The second relevant attendance was 28 October 2010, where Dr Abels noted that Ms Pepprell complained of a two-week history of acute back pain with some right lateral hip pain.[124]
[124]Exhibit D1, DCB 8; T122, L28-30
117The next relevant attendance was 16 November 2010, which was a few days after the 2010 transport accident. Dr Abels noted that Ms Pepprell was involved in a transport accident where she was rear-ended and she had right-sided cervical pain, low-back pain and pain to the upper sacroiliac joint.[125]
[125]I note that Dr Abel’s notes were handwritten, however the parties believe that Dr Abels wrote “upper SIJ” in his note for this attendance, which I also accept; T26, L30-31; T27, L1-21; Exhibit D1, DCB 8
118Ms Pepprell was also taken to an attendance on 25 November 2010, where it was noted that Ms Pepprell’s condition was “70 per cent improved” and that there was “residual pain, low-back pain.”[126]
[126]T27, L22-24; Exhibit D1, DCB 8
119There was an attendance on 2 December 2010, where Ms Pepprell was complaining of constant low-back pain since the previous attendance.[127]
[127]T27, L25-26; Exhibit D1, DCB 8
120Dr Abels noted the sneezing episode at her attendance on 20 January 2011.[128]
[128]Exhibit D1, DCB 8
121There was a further attendance on 25 January 2011, where Dr Abels reported that there was a 30 per cent improvement but no referred pain in her right leg.[129] At another attendance on 15 February 2011 Dr Abels noted that she was “overall better”.[130]
[129]T28, L11-12; Exhibit D1, DCB 8
[130]T28, L27-28; Exhibit D1, DCB 9
122The last relevant attendance was on 15 March 2011, where Dr Abels reported that Ms Pepprell complained of “about one and a half weeks, right sacroiliac joint, right buttock, right foot pain” and that the pain was “both sharp and achy”.[131]
[131]T30, L9-12; Exhibit D1, DCB 9
123The last attendance Ms Pepprell was taken to was on 3 May 2011, where Dr Abel noted that Ms Pepprell’s low-back pain was ten out of ten the day before, and at that attendance it was a six out of ten.[132]
[132]T30, L17; Exhibit D1, DCB 9
Wellness on Wellington, general practitioner clinical notes
124The clinical notes of Wellness on Wellington were tendered and Ms Pepprell was taken to several entries during cross-examination.
125Ms Pepprell attended on 9 November 2010, where there was no mention of back pain prior to the 2010 transport accident.
126Ms Pepprell was taken to entries of her attendances for her back pain on 15 December 2010, 21 December 2010, 24 December 2010, 11 January 2011, 3 May 2011, 16 May 2011 and 25 May 2011.
127Relevantly, Ms Pepprell attended on 15 December 2010, where it was noted that she had a transport accident four weeks prior and that her neck pain had slowly resolved but her back pain persisted.[133] It was noted that she attended a chiropractor, who pushed on her left side and caused “agonizing pain.” In a second session, a different part of her spine was pushed and her pain level was back to where it was originally.[134]
[133]Exhibit P1, PCB 337
[134]Ibid
128On 3 May 2011, she attended Dr Harris, who noted that she had ongoing right lumbar back pain and intermittent radiation of pain to her right foot.[135]
[135]Exhibit P1, PCB 334
129On 16 May 2011, Dr Kristina Coniglio noted that Ms Pepprell reported her back as getting worse, and there was right-sided low back pain in the L4/L5 area.[136]
[136]Exhibit P1, PCB 334
Dr Isaac Baker, treating general practitioner
130Dr Baker of Wellness on Wellington provided a report on 27 September 2023 and noted that Ms Pepprell was not in his care at the time of the 2010 transport accident.
131He diagnosed Ms Pepprell as suffering from bilateral sacroiliac pain and bilateral lumbar radiculopathy secondary to L4/L5 and L5/S1 disc prolapse.[137] He noted that her long-term prognosis was unlikely to improve significantly, and would likely continue to be affected by exacerbations of pain in the future.[138]
[137]Exhibit P1, PCB 108
[138]Exhibit P1, PCB 109
Dr Dan Bates, sports and exercise medicine physician
132Dr Bates provided a report to Dr Stephanie Giles, a general practitioner at Wellness on Wellington, on 17 April 2018. He noted that Ms Pepprell had L5 transforaminal epidurals to assist with her L4/L5 disc protrusions, but these failed to make a significant difference.[139] He reported that her pain was located over her L5/S1, sacroiliac joint region and extended across her buttock and posterior right thigh.[140] He noted that her neuropathic symptoms appeared to be in an S1 distribution, and that her discs were likely drivers of her pain.
[139]Exhibit P1, PCB 113
[140]Ibid
133In his report dated 22 May 2022, Dr Bates noted that Ms Pepprell reported her pain as a “deep ache with intermittent sharp pain with associated pain with sneezing, and bending forward.”[141]
[141]Exhibit P1, PCB 117
Dr Julien Freitag, orthopaedic surgeon
134Dr Freitag first saw Ms Pepprell on 29 August 2011 and provided a letter to Dr Harris on the same date, and also wrote a letter for Ms Pepprell to Bounce Physiotherapy on 26 September 2011. In this second letter, he referred Ms Pepprell to the physiotherapist for a core and pelvic strengthening program, as well as clinical pilates.
135In his first letter, he recorded Ms Pepprell’s symptoms following the 2010 transport accident as both upper and lower back pain and stiffness. Whilst the upper back discomfort settled, she continued to suffer from persistent lower back pain.[142]
[142]Exhibit P1, PCB 126
136He stated that over the three months prior to this attendance, she had developed right-sided radicular pain.[143] The lower back pain was right-sided in nature, which extended to the buttock and the posterior thigh, and she experienced occasional sharp radicular pain down to her foot.[144] Ms Pepprell also described numbness and tingling over the plantar aspect of her foot and behind her knee.
[143]Ibid
[144]Ibid
137On examination, there was reduced forward flexion and extension due to right-sided lower back pain, and reduced lateral flexion to the right, with right-sided pain.[145] He found that clinically, her symptoms were indicative of right sided sacroiliac joint aggravation, and that more recently, she had developed clinical S1 nerve root impingement. He recommended she undergo an MRI of her lumbosacral spine.
[145]Ibid
Associate Professor Tony Goldschlager, neurosurgeon
138Ms Pepprell first attended Associate Professor Goldschlager on 11 December 2018 and wrote a letter to Associate Professor Mitchell on 17 December 2018. He noted that her symptoms following the 2010 transport accident were low back pain and right-sided radicular pain, which had progressively worsened since that time.[146] He noted that she felt that the pain had become worse, and he stated that it was in the S1 distribution, radiating down her posterior buttock and posterior thigh to the sole of her foot.[147] He noted that an MRI scan demonstrated a disc prolapse at L5/S1 compressing the right S1 nerve root.
[146]Exhibit P1, PCB 129
[147]Exhibit P1, PCB 129
139In his second letter to Associate Professor Mitchell on 21 January 2019, following a consultation on 16 January 2019, he noted that approval had been obtained from TAC for a right L5/S1 microdiscectomy.[148] The operation was completed on 18 February 2019.
[148]Exhibit P1, PCB 130
140On 21 February 2019, he wrote a letter to Associate Professor Mitchell following a consultation on 18 February 2019. He noted that Ms Pepprell had re-presented at the Emergency Department at Cabrini Hospital, one day after the microdiscectomy, as she developed severe pain with allodynia,[149] although her radicular pain had resolved.[150] He felt that she would benefit from a multi-disciplinary inpatient pain rehabilitation program at the North Eastern Rehabilitation Centre, and referred her to Dr Terrence Lim.
[149]A condition in which pain is caused by a stimulus that does not normally cause pain.
[150]Exhibit P1, PCB 133
141On 11 April 2019, Associate Professor Goldschlager wrote a letter to Dr Baker at Wellness on Wellington following a consultation with Ms Pepprell on 4 April 2019. He noted that Ms Pepprell was slowly improving. Her radicular pain had resolved and she still had some nerve pain, which was slowly improving, and some back pain, which was also improving.[151]
[151]Exhibit P1, PCB 134
142On 29 April 2019, Associate Professor Goldschlager wrote another letter to Dr Baker, noting that Ms Pepprell had returned from a trip where she had been physically active, going sailing and swimming. He encouraged her to commence hydrotherapy and he noted that she was returning to a support role for work, with an aim to increase her shifts as tolerated.[152]
[152]Exhibit P1, PCB 135
143On 3 October 2019, he provided another letter to Dr Baker following a consultation on 2 October 2019. He noted that Ms Pepprell was back at work, but was still experiencing pain in her right leg with allodynia.[153] He noted the importance of excluding the possibility that the pain was due to a recurrent disc prolapse, although he felt this was unlikely as her pain had been consistent since before the operation.
[153]Exhibit P1, PCB 137
144On 25 January 2022, he wrote another letter to Dr Baker, where he noted that Ms Pepprell had been admitted to The Valley Hospital, and a CT scan demonstrated that she had a recurrent disc prolapse.[154]
[154]Exhibit P1, PCB 139
Dr Terrence C. Lim, consultant in rehabilitation and pain medicine
145Dr Lim provided five letters to Associate Professor Goldschlager following the referral to North Eastern Rehabilitation Centre.
146In his first letter dated 25 March 2019, he noted that Ms Pepprell presented with “back pain due to a combination of post-surgical (nociceptive) and (pre-existing) myopathic pain due to persistent paralumbar muscular irritability” and ”right dorsolateral pain/dysaesthesia and touch allodynia, which was exacerbated following surgery”.[155]
[155]Ibid
147In his fourth letter dated 4 July 2019, he noted that Ms Pepprell reported that every two to three weeks, she suffered a severe attack of pain associated with allodynia, which affected her right buttock and radiated down the lateral side of her thigh.[156]
[156]Exhibit P1, PCB 144
Dr Brian Lovell, pain medicine physician
148Dr Lovell wrote a letter to TAC on 16 April 2023. He first reviewed Ms Pepprell on 29 January 2013, and she described her symptoms as being “relatively well for the rest of 2011 and most of 2012”, but she had experienced central low back pain, which was worse on the right side, with leg pain from time to time.[157]
[157]Exhibit P1, PCB 147
149He noted that in the latter half of 2012, she had significantly worsened and her pain was consistent with radicular pain.[158] He reviewed an MRI scan which showed a disc bulge and desiccation at L4/5, impacting both L5 nerve roots.[159] It was considered that her back pain and consequent leg pain was due to the disc pathology and was secondary to her 2010 transport accident.
[158]Ibid
[159]Exhibit P1, PCB 147
Dr Symon McCallum, pain physician and specialist anaesthetist
150Dr McCallum wrote a report to Dr Baker on 25 August 2021 noting that Ms Pepprell had central lower back pain, but the pain was worse in the right lateral lower back and upper buttock which resulted in leg pain.
151He wrote a second report to Dr Baker on 21 September 2023, where he noted that she felt that her back pain had gotten worse as she was very sore in the lower back. However, he noted that she had no buttock pain and no leg pain at that time. He said that her bone scan showed disc degeneration and right-sided L5/S1 facet joint arthropathy.[160]
[160]Exhibit P1, PCB 153
Dr Stephen McKernan, general practitioner
152Dr McKernan saw Ms Pepprell on 11 May 2016 regarding her low back pain and right lower limb pain. He noted that in the six months since February 2013, when Ms Pepprell had a bilateral L5 transforaminal epidural steroid injection, her pain had gradually increased and she had aching across her lower back.[161] This pain radiated down the right lower limb to her foot, and she reported an occasional “lancinating electric shock type feeling” down her right leg with occasional tinging in the right foot.[162]
[161]Exhibit P1, PCB 160
[162]Ibid
153His impression was that Ms Pepprell suffered a likely recurrence of nerve root irritation due to a further disc bulge, with added problems of lower lumbar facet joint arthropathy, and some centralised pain sensitivity and myofascial pain development in the lumbar area.[163]
[163]Exhibit P1, PCB 161
Associate Professor Bruce Mitchell, sports and exercise medicine physician
154Associate Professor Mitchell reviewed Ms Pepprell on 5 January 2018, where he noted that on 15 March 2017 she had a bilateral L5 transforaminal epidural steroid injection. This provided pain relief for approximately nine months but her pain recurred in November and had become quite severe.[164] He requested approval from TAC for a repeat bilateral L5 transforaminal epidural steroid injection.
[164]Exhibit P1, PCB 162
155This second injection was performed on 24 January 2018.[165]
[165]T14, L23-24
156There was a number of letters authored by Associate Professor Mitchell which were tendered in these proceedings, in which he sought approval for various treatments from the TAC. I have not summarised the totality of the correspondence tendered.
Mr Philip Sheard, orthopaedic and spinal surgeon
157Six letters from Mr Sheard were tendered in this proceeding. His first letter dated 25 October 2023 to Dr Baker noted Ms Pepprell’s 2010 transport accident, and that in 2019 she had an onset of right-sided leg pain.[166] He noted that she had a L5/S1 discectomy in 2019 but had a flare-up of pain afterwards, as well as a spinal stimulator inserted in 2010, which only helped her by ten percent.[167]
[166]Exhibit P1, PCB 191
[167]Ibid
158He noted she described central low back pain present most mornings, and worse when sitting for long periods. Her sleep was affected due to the pain.[168] He also reported that she had pain in the back of her right leg which went down as far as her knee and occasional shooting pain to the sole of her foot.
[168]Ibid
159His letter of 10 January 2024 followed Ms Pepprell undergoing an MRI scan, which demonstrated “L5/S1 disc degeneration, disc space narrowing with Modic type endplate changes.”[169] He noted there was also some wear at L4/5 with an annular tear.
[169]Exhibit P1, PCB 193
Plaintiff’s medicolegal reports
Dr Simone Scovell, consultant occupational physician
160Dr Scovell examined Ms Pepprell on 8 April 2025 and provided her report dated 20 May 2025 to Ms Pepprell’s solicitors.
161Counsel for the TAC noted that Dr Scovell had Dr Abels’ clinical notes but did not reference them in her report.[170] However, she did record that Ms Pepprell had an onset of lower back pain after the 2010 transport accident and her past medical history was non-contributory for previous back injuries, but noted that Ms Pepprell had seen a chiropractor “a couple of times during [her] teenage years.”[171]
[170]T92, L14-16
[171]Exhibit P1, PCB 208
162She also did not have a history of back pain in 28 October 2010. Dr Scovell said that Ms Pepprell reported her attendances at the chiropractor were not in relation to “a substantive lower back scenario or pain” prior to the 2010 transport accident.[172] Dr Scovell opined that she did not believe that Ms Pepprell had a pre-existing condition that was aggravated, rather, that Ms Pepprell suffered a “pure, frank lumbosacral discogenic injury with a proven radiculopathy as a result of the motor vehicle accident.”[173]
[172]Exhibit P1, PCB 213
[173]Exhibit P1, PCB 214
Mr Girish Nair, neurosurgeon and spinal surgeon
163Mr Nair examined Ms Pepprell on 26 May 2025, and provided his report to Ms Pepprell’s solicitors on 30 June 2025.
164Mr Nair recorded that Ms Pepprell did not have a relevant past medical history, except for what she described as “preventative chiropractic treatment”[174] when seeing her chiropractor on occasion prior to the 2010 transport accident.
[174]Exhibit P1, PCB 242
165He noted that her initial MRI in 2011 demonstrated degenerative changes at L4/5 and L5/S1, and subsequent scans in 2018 and 2019 showed progressive deterioration of the disc bulge at the L5/S1 level which led to compression of the S1 nerve root.[175]
[175]Exhibit P1, PCB 244; T74, L24-27
166However, Mr Nair referred to Dr Abels’ clinical records, noting that Ms Pepprell had presented to Dr Abels following a transport accident and had a few treatments but not ongoing follow up. Mr Nair thought this suggested she had a good recovery from her previous symptoms.[176] He also reported that Dr Abels’ notes indicated that Ms Pepprell had presented for treatment of back pain and right leg pain prior to the 2010 transport accident.[177] He opined that Ms Pepprell was symptomatic and presented to the chiropractor for low back pain and right leg pain prior to the 2010 transport accident, and the accident “most likely resulted in further aggravation of her symptoms.”[178]
[176]Exhibit P1, PCB 243
[177]Exhibit P1, PCB 246
[178]Ibid
167Ms Pepprell reported that her symptoms at the time of examination were severe low back pain and pain down her right leg, along with numbness into her right foot.[179] This had persisted since 2022.
[179]Exhibit P1, PCB 244
168Mr Nair diagnosed Ms Pepprell with a L4/5, L5/S1 disc degeneration with right S1 radiculopathy with persistent right S1 radiculopathy.[180]
[180]Ibid
169Mr Nair provided a supplementary report to Ms Pepprell’s solicitors on 11 July 2025. He noted that Ms Pepprell’s symptoms of back and leg pain were present before the 2010 transport accident, and the accident led to aggravation and ongoing symptoms which resulted in further investigations.[181]
[181]Exhibit P1, PCB 255
Defendant’s medicolegal reports
Mr Myron Rogers, neurosurgeon
170Mr Rogers provided five reports in this proceeding at the request of the defendant.
171His first report dated 13 April 2022 noted that Ms Pepprell attended her general practitioner four weeks after the 2010 transport accident, where she complained of neck pain and back pack, and that she had seen a chiropractor whose treatment resulted in an exacerbation of the back pain, but at the time of this attendance her symptoms were gradually settling.[182] I note that this report was written to the defendant to assist in the defendant’s decision about a request for plasma disc decompression of L4/5 disc and subsequent bone scan.
[182]Exhibit D1, DCB 27
172In his third report dated 23 September 2024, he noted that the general practitioner’s notes did not record a history of lower back pain and note consultation for neck pain on 19 March 2008. He said the x-rays ordered by Dr Abels did not provide evidence of a specific abnormality, thus, he felt that there was no history of low back or right leg condition prior to the 2010 transport accident.[183]
[183]Exhibit D1, DCB 36
173He diagnosed Ms Pepprell with lumbar spondylosis at L4/5 and L5/S1, as well as residuum of the right S1 root compression, which had been surgically treated.[184] Mr Rogers opined that Ms Pepprell had suffered a soft tissue injury to the low back as a result of the 2010 transport accident, which was consistent in his view with the history of symptoms in the low back settling when she attended her general practitioner on 15 December 2010.[185] He felt that her current low back condition was a consequence of the “natural progression” of the pre-accident condition. He relied on the radiology between September 2011 and April 2018, which found there had been progression of degenerative changes at both L4/L5 and L5/S1 that he considered to be constitutional.[186]
[184]Ibid
[185]Ibid
[186]Exhibit D1, DCB 36
174Mr Rogers was provided with the treatment notes of Dr Abels and a further request from the defendant for a supplementary report, which he provided on 15 October 2024.
175Mr Rogers opined that, based on the treatment notes, there was evidence of a pre-existing symptomatic lumbar spondylosis resulting in low back and right leg pain which was exacerbated by the 2010 transport accident.[187] This settled for approximately two months and then the leg pain was exacerbated following the sneezing episode.
[187]Exhibit D1, DCB 40
176He again opined that her current condition was the progression of constitutional degenerative changes that became symptomatic in 2008.[188] Mr Rogers also stated that Ms Pepprell’s right leg condition was due to the symptomatic disc prolapse at L5/S1 which was also a consequence of the constitutional degenerative changes.[189]
[188]Ibid
[189]Ibid
Professor Richard Bittar, consultant neurosurgeon
177Professor Bittar provided two reports to Ms Pepprell’s solicitors which were tendered by Counsel for the TAC.
178He noted that Ms Pepprell’s medical history was non-contributory for previous back injuries and that she could not recall experiencing any significant back pain prior to the 2010 transport accident, but did recall attending Dr Abels a couple of times during her teenage years.[190]
[190]Exhibit D1, DCB 12
179Professor Bittar diagnosed her with L5/S1 intervertebral disc injury or prolapse, which had been treated surgically with L5/S1 microdiscectomy and spinal cord stimulation, and persistent pain following spinal surgery and right S1 radiculopathy.[191] He opined that the 2010 transport accident was the cause of her lumbar spine condition and that her prognosis was guarded as Ms Pepprell had developed a “significant chronic pain condition.”[192]
[191]Exhibit D1, DCB 15
[192]Ibid
180On 22 May 2025, Professor Bittar provided a further report, where he was provided details about the 2008 transport accident. He noted that Ms Pepprell did not have further consultations with Dr Abels after 16 December 2008 and had no recollection of experiencing ongoing lower back pain and right leg pain, so Professor Bittar considered that she had made a full recovery from this incident.[193] He noted that she next attended Dr Abels on 28 October 2010, complaining of two weeks of back pain, however Ms Pepprell did not have any independent recollection about this.[194]
[193]Exhibit D1, DCB 19
[194]Ibid
181Based on this information, Professor Bittar considered it more likely than not that her lumbar spine condition predated the 2010 transport accident.[195] He opined that the 2010 transport accident likely caused a temporary exacerbation of her back pain, and Dr Abels’ clinical notes indicated she had experienced a recurrence of lower back pain radiating down her right leg on 17 January 2011.[196]
[195]Exhibit D1, DCB 22
[196]Ibid
182Professor Bittar ultimately agreed with Mr Rogers’ diagnosis based on the additional material he was provided with and Ms Pepprell’s lack of independent recollection of her symptoms leading up to the transport accident.[197]
[197]Exhibit D1, DCB 23
Analysis
Was the evidence of Ms Pepprell reliable?
183As outlined above, Ms Pepprell’s credit was not in issue in this case.
184I found Ms Pepprell’s to be an honest and cooperative witness who did her best to give accurate responses to the questions asked of her. She was clear that she did not have an independent recollection of many of her historical attendances with her practitioners.
185Where she could not recall a presentation or her symptoms, she accepted that the clinical records were likely to be accurate and reflect what she had described at the time of her consultations better than her recollection.
186It was also apparent that Ms Pepprell had worked very hard to get on with her life in the face of very considerable pain and symptoms. I was very impressed at the fact she completed a Bachelor of Early Childhood Education and began full-time work as a primary school teacher, taking on additional responsibilities as a tutor between the date of the 2010 transport accident and the date of the hearing. It was also apparent that she had done this in the face of considerable mental health challenges over this period. I was impressed that she had chosen both volunteer and professional positions that involved caring for animals and children. I took these factors into account when forming my view about Ms Pepprell’s reliability.
187For understandable reasons, not the least of which was the effluxion of time, Ms Pepprell could not recall the details of her symptoms and attendances with medical practitioners from many years ago.
188However, Ms Pepprell gave very clear evidence that she recalled that the 2010 transport accident was the catalyst for the symptoms that she now suffers from. While I did not have reason to doubt the honesty or veracity with which she gave that evidence, I found it necessary to refer to the contemporaneous clinical records to properly understand the symptoms she presented with before and after the 2010 transport accident, and the progression of the degenerative change in her spine.
189This is because despite Ms Pepprell’s best efforts, I found that I could not rely on her evidence regarding the issues in dispute given that her recollection of medical attendances was so poor.
190However, having referred to the contemporaneous clinical records, I was satisfied that the 2010 transport accident was the catalyst for the symptoms she now suffers from. I have set out my reasons below.
Did the aggravation of the pre-existing degenerative changes in Ms Pepprell’s lumbar spine sustained in the transport accident of 12 November 2010 cause a long-term impairment?
191There was no dispute that Ms Pepprell sustained an aggravation or exacerbation of her pre-existing degenerative changes in the 2010 transport accident.
192The issue to be determined was whether that aggravation or exacerbation was temporary or long term.
193The only treating practitioner who was aware of the 2008 transport accident and the two week episode of back pain prior to 28 October 2020 was Dr Abels, Ms Pepprell’s chiropractor.
194Mr Rogers, Professor Bittar and Mr Nair, the three medicolegal experts relied on in this case, were provided with Dr Abels’ clinical records. They took the history contained in those records into account before providing their ultimate opinions.
195Before considering their opinions, I have reviewed the contemporaneous entries in the clinical records and correspondence regarding Ms Pepprell’s history of progression of her pain and symptoms. I have also considered Ms Pepprell’s evidence where appropriate.
196Having done so, the relevant records and correspondence reveal that:
(a) Ms Pepprell sought chiropractic treatment from Dr Abels on two occasions following the 2008 transport accident, those occasions being 9 December 2008 and 16 December 2008.
(b) Ms Pepprell had no further treatment for lumbar back or right hip symptoms until 28 October 2010 when she again attended Dr Abels with a two week history of acute lower back pain and some right lateral hip pain.
(c) Ms Pepprell attended Dr Harris on 9 November 2010 to discuss four health issues, none of which related to back pain, right hip pain or right leg pain.
(d) Ms Pepprell did not attend a general practitioner with symptoms of lower back pain or right leg pain prior to the 2010 transport accident, nor did she take any medication for any lower back pain or right leg pain prior to the 2010 transport accident.
(e) She attended Dr Abels on 16 November 2010, four days after the 2010 transport accident, with a history of right lower back pain and upper sacroiliac joint involvement.
(f) She continued to attend Dr Abels for treatment on a regular basis until approximately 11 August 2011.
(g) She saw Dr Vern-Li Tan on 15 December 2010, this being her first attendance with a general practitioner for her back pain. She reported that she had a transport accident four weeks ago, sustaining a whiplash injury. With respect to her back pain, she said that she had agonising pain after she saw the chiropractor for the first time, but then had a second session where the chiropractor pushed on a different part of her spine, and her pain level returned back to where it was originally. Dr Tan recorded that there was no radicular pain, numbness or tingling, and that Ms Pepprell declined analgesia.
(h) She continued to attend Dr Tan who arranged for an x-ray and a CT scan of her spine.
(i) On 24 December 2010, Ms Pepprell described her pain levels to Dr Tan as four out of ten and tolerable, but reported she could not take tablets. Dr Tan recommended liquid Nurofen and Panadol and to try rapidly dissolving Panadeine Forte.
(j) She attended Dr Harris on 11 January 2011, who recorded that she did not have radicular pain, numbness or tingling, and that her pain was at a four out of ten level most of the time, but sometimes as high as eight out of ten. Dr Harris provided her with a TAC certificate giving her a month off work. She also recommended physiotherapy.
(k) As of 11 January 2011, Ms Pepprell had intermittent right sided sciatic pain with occasional pain radiating down to her right foot, as recorded by Dr Harris in her referral letter for Bounce Physiotherapy.
(l) Ms Pepprell attended Dr Abels on 20 January 2011 following the sneezing episode on 17 January 2011. He recorded that:
(i)this caused acute lower back pain and pain down the right leg;
(ii)she was better two days later with respect to her movement; and
(iii)she had improved approximately 20 per cent overall.
(m) Ms Pepprell attended Dr Abels with a history of no referred pain in her right leg on 25 January 2011 and 3 February 2011, and reporting improvement.
(n) She attended Dr Abels again on 15 March 2011 with a history of pain from her right sacroiliac joint, into her right buttock and down to her right foot over the past week and a half, and on 3 May 2011 with right leg pain all the way to the Achilles.
(o) Ms Pepprell lodged her TAC claim form on 27 January 2011, noting her prior attendances with Dr Abels for lower back pain in 2008.
(p) Ms Pepprell attended Dr Harris on 3 May 2011. She recorded that Ms Pepprell was seeing her chiropractor but obtaining little relief, and that the chiropractic treatment helped a little but the symptoms were short lived. She noted that Ms Pepprell had intermittent radiation of pain to her right foot. She also noted that she had no radicular pain or numbness or tingling. She referred Ms Pepprell to a physiotherapist.
(q) Ms Pepprell saw Dr Freitag of the Metropolitan Spinal Clinic on 29 August 2011. He recorded Ms Pepprell had a history of lower back pain, and more recently right sided radicular pain, since the 2010 transport accident. He noted she had described persistent lower back pain since the accident and that more recently she had developed right-sided radicular pain. He arranged for her to undergo an MRI.
(r) On 26 September 2011, Ms Pepprell saw Dr Freitag again and she reported that her pain had substantially improved, although she still reported several episodes of radicular pain down her right leg during the day. He noted the results of the recent MRI, that I understand was performed on 6 September 2011. He recommended that Ms Pepprell undergo a core and pelvic strengthening program.
(s) Ms Pepprell attended Dr Chan on 19 November 2012 and reported having a two-year history of back pain since the transport accident with shooting pain down the right leg to the knee and occasional pins and needles to the right foot. She said that her pain went away for two months after seeing Dr Freitag and she did not go back to him. She said that the pain had been the worst in the last three months and one week after horse riding. She said she had constant pain if sitting for too long. She had been in severe pain for one week and she took Nurofen occasionally.
(t) She was reviewed by Dr Lovell on 29 January 2013 where she described having been relatively well for the rest of 2011 (following seeing Dr Freitag) and most of 2012, but that she had central low back pain, worse on the right side with leg pain from time to time. She had become significantly and consistently worse over the six months prior to presenting to Dr Lovell. Because of this, she was making a delayed application for her injury to be covered under TAC (which I understood to mean the treatment that was then likely to be required).
(u) She began using Norspan patches on 1 February 2013 and found these beneficial.
(v) At around this time, she developed an eating disorder as evident from the clinical records. She was exercising regularly.
(w) On 9 April 2013, she attended Dr Tham in order to clarify the list of appointments she had attended relating to her back, to provide to the TAC.
197Considering the above records, I accept and find that:
(a) Ms Pepprell had an episode of back pain in 2008 and saw Dr Abels on two occasions for this.
(b) She had a further episode of back pain with right hip pain in October 2010 for which she saw Dr Abels on 28 October 2010. At that time, the back pain had been present for two weeks.
(c) The fact that she did not raise back pain, right hip or right leg pain with Dr Harris on 9 November 2010 led me to conclude that she did not have symptoms in her back, right hip or right leg at that time.
(d) Ms Pepprell had constant and fluctuating low back symptoms from the time of the 2010 transport accident, and right leg symptoms from 11 January 2011. She had not previously experienced right leg symptoms.
(e) The sneezing episode of 17 January 2011 resulted in an increase in those symptoms, following which she experienced improvement as outlined in Dr Abels’ clinical record of 20 January 2011.
(f) The sneezing episode was not the genesis of her right leg pain.
(g) She had ongoing treatment for her back injury and right leg symptoms from Dr Abels following the 2010 transport accident.
(h) Her symptoms reduced after she saw Dr Freitag in 2011, leading her to describe that she had been relatively well, and remained that way for most of 2012, but became significantly and consistently worse over 2013.
(i) Ms Pepprell became increasingly physically active in 2012 and 2013, exercising six days per week. This was in part fuelled by a mental health condition that led to an eating disorder. She was following the reasonable advice of her practitioners to focus on being fit and active, and particularly to undertake core strengthening work to improve her back pain, when engaging in these activities.
198Turning to the opinions of the medicolegal neurosurgeons, I have preferred the opinion of Mr Nair to that of Mr Rogers and Professor Bittar. This is because the history and assumptions Mr Nair has relied on are consistent with my findings of fact.
199Mr Rogers’ opinion was based on Ms Pepprell’s lumbar spondylosis being symptomatic at the time of the 2010 transport accident, her back and right leg pain having settled for two months after the 2010 transport accident and Ms Pepprell’s right leg pain being aggravated by the sneezing episode. Mr Rogers formed his opinion by reference to the clinical records of Dr Abels, without all the records of the Wellness on Wellington clinic that I was able to review in arriving at my decision. Having had that benefit, I formed the view that these assumptions were not supported by the contemporaneous records on which I based my findings of fact.
200Professor Bittar also based his opinion on review of Dr Abels clinical records without recourse to the full records of the Wellness on Wellington clinic. He too proceeded on the basis that Ms Pepprell’s condition was present prior to the 2010 transport accident, without knowing that Ms Pepprell had presented without back, right hip or right leg symptoms to Dr Harriss on 9 November 2010. He also understood that she had experienced a recurrence of lower back pain radiating down her right leg on 17 January 2011, that being the date of the sneezing episode, rather than appreciating that the right leg symptoms were present from 11 January 2011.
201While Mr Nair had a copy of the Wellness on Wellington records, it is not clear whether he was cognisant of the absence of reference to back, right hip and right leg symptoms in the entry of 9 November 2010. In any event, he formed the view that Ms Pepprell recovered from her symptoms in 2008 based on the clinical records of Dr Abels. While he noted that her symptoms of back and leg pain were present before the 2010 transport accident, he accepted that they were aggravated by that accident and that this led to the need for further investigations. I inferred from his answer that he was referring to the interventions he was asked about by Ms Pepprell’s solicitors, those being the epidurals, nerve root injections, radiofrequency treatment and microdiscectomy.[198]
[198] Exhibit P1, PCB 255
202I also found his pathway of reasoning clearer than that of either Mr Rogers or Professor Bittar, as they did not adequately explain why they thought the effects of the aggravation arising from the 2010 transport accident were likely to have ceased. This did not accord with the contemporaneous records and correspondence, either from the dates proximate to the transport accident or the attendances with Dr Frietag, Dr Chan, Dr Lovell or Dr Tham between 2011 and 2013.
203Considering the history revealed by the contemporaneous medical evidence and my findings of fact, in particular that Ms Pepprell’s pre-existing condition was not symptomatic at the time of the 2010 transport accident, I have preferred the opinion of Mr Nair to the opinions of Mr Rogers and Professor Bittar. However, even if Ms Pepprell were symptomatic at the time of the accident, Mr Nair, Mr Rogers and Professor Bittar agreed that the she sustained an aggravation of her degenerative lumbar condition in the 2010 transport accident. Mr Rogers and Professor Bittar did not adequately explain how they concluded that the effects of that accepted aggravation had ceased. Further, I found that conclusion to be inconsistent with the subsequent histories obtained by Dr Frietag, Dr Chan, Dr Lovell or Dr Tham.
204In arriving at my decision, I have been mindful of the comments of the Court of Appeal in the decision of Findlay v Transport Accident Commission [2025] VSCA 126, and in particular, that serious injury proceedings are gateway proceedings, that Ms Pepprell was the only witness to provide oral evidence and the limited scope of evidence adduced on the question of causation compared to that which might be adduced in a full trial.[199]
[199] Findlay v Transport Accident Commission [2025] VSCA 126 at paragraph [61]
205I therefore find that on balance, given the expert opinion of Mr Nair, together with my other findings relating to the contemporaneous clinical records and the evidence of Ms Redfern, that the aggravation of the pre-existing degenerative changes to Ms Pepprell’s lumbar spine sustained in the 2010 transport accident caused a long-term impairment of her lumbar spine and right leg.
Are the consequences of the aggravation, and that aggravation alone, very considerable or more than significant or marked?
206As the parties agreed that the consequences that Ms Pepprell presented with as at the date of the hearing would meet the test for serious injury, and in light of my finding above, it is not necessary for me to decide this question.
207Nonetheless, I will advise that I was satisfied that the consequences of the aggravation of Ms Pepprell’s lumbar spine injury were very considerable for the following reasons:
(a) She has constant pain in her back and right leg which varies in severity. This has had an impact on her mental health. She is assisted by an assistance dog who distracts her from her pain.
(b) She has had significant medical treatment in the form of multiple epidurals, nerve root injections, radiofrequency treatment, a spinal cord stimulator and microdiscectomy.
(c) The prospect that she may come to further spinal surgery in the form of a fusion.
(d) She uses Norspan patches on a regular basis. She uses Endone to manage more significant flare-ups of pain. She uses Nurofen or Panadol every second day on average for less intense flare-ups of pain.
(e) She has regular muscle spasms. She has challenges with her work due to her back pain.
(f) Her social, recreational and domestic activities have been affected. She is unable to go horse riding, wakeboarding, scuba diving or trailbike riding because of her injury.
(g) Her relationship with her partner has been affected.
(h) Her ability to perform domestic chores has been affected.
(i) She has become less sociable as sitting and standing aggravate her pain.
(j) Her pain is aggravated by prolonged sitting, standing or walking, and she becomes stiff and sore if she reams static for too long. This makes activities like driving, watching movies and teaching challenging.
(k) Her sleep is impacted. She often wakes up multiple times in the night due to pain. This causes her to feel tired and fatigued during the day.
(l) Her back pain has limited her ability to twist, bend, push, pull or lift moderately heavy items. She struggles with navigating uneven ground, steps, stairs and inclines. Her personal grooming is impacted as she struggles with bending to wash, dry and tend to her lower legs and feet.
(m) She is young and will have to live with the consequences of this impairment for the rest of her life.
(n) I formed the view that she was a stoic, having worked hard to study, obtain further qualifications and maintain full-time employment in the face of pain. She has also undertaken work as a tutor in case she is unable to continue with her full-time employment and needs to pivot to something she can manage with less hours and at her own pace.
208In addition to considering what she has lost, I am required to consider what she has retained. Ms Pepprell has retained the ability to work, drive, sit, stand, twist, bend, push, pull and lift, albeit with the restrictions outlined above.
209When judged in comparison to the other cases of injuries and impairments, I find that the impairment consequences of Ms Pepprell’s lower back injury are fairly described as being at least very considerable and more than significant or marked.
Conclusion
210I therefore find that Ms Pepprell is entitled to leave to proceed with a claim for damages because of the aggravation of the pre-existing degenerative changes to her lumbar spine sustained in the 2010 transport accident. I will hear from the parties on the question of costs.
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