Roumbos v TAC

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-00576

ANGELA ROUMBOS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2024
DATE OF JUDGMENT:	29 April 2024
CASE MAY BE CITED AS:	Roumbos v TAC
MEDIUM NEUTRAL CITATION:	[2024] VCC 517

REASONS FOR JUDGMENT
---

Subject:TRANSPORT ACCIDENT
Catchwords:              Serious Injury Application – motor vehicle accident – cervical spine – pain and suffering – range
Legislation Cited:      Transport Accident Act 1986
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 21 VR 1; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment:                  Application granted

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC Ms S. Bailey	Ellis Palmos & Co
For the Defendant	Mr D. McWilliams Mr B. Thompson	HWL Ebsworth

HIS HONOUR:

Introduction
1The plaintiff seeks leave to commence proceedings at common law to recover damages for injuries she suffered on 21 April 2013 in a transport accident, when aged 12, and a front seat passenger in a car driven by her father, it was struck in the side by another car. The plaintiff is now 22 years of age.
2The plaintiff makes her application pursuant to the provisions of the Transport Accident Act 1986 (“the Act”) relying on paragraph (a) of the definition of “serious injury” contained in section 93(17) of the Act. Mr Tobin of Senior Counsel, together with Ms Bailey of junior counsel, appeared for the plaintiff. The particulars of injury relied on is injury to the spine.[1]
[1]Particulars of Injury filed 17 May 2021.
3The defendant was represented by Mr McWilliams of leading counsel, together with Mr Thompson of counsel.
4The defendant did not contest the fact of the transport accident or that its occurrence was capable of causing injury and as Mr McWilliams acknowledged in the course of his final address, “it was a collision at between 60 - 70 kilometres. She suffered an orthopaedic injury.”[2] Despite some medical debate about the aetiology of a syrinx that was observed on subsequent imaging,[3] the defendant argued that it was neither here nor there, because irrespective of its cause of onset, the principal submission was that the consequences identified by the plaintiff do not satisfy the test for seriousness.
[2] Transcript (“T”) 25, Line (“L”) 1-2.
[3]A syrinx is a fluid-filled cavity that develops in the spinal cord (called syringomyelia), Syrinxes may be present at birth or develop later because of an injury.

Relevant Legal Principles – Serious Injury
5The meaning of “serious” expressed in s 97(17) of the Act was addressed in the following way in Humphries & Anor v Poljak:[4]
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[5]
[4] [1992] 2 VR 129 (“Humphries”).
[5] Ibid 140.
6As explained in the extract from Humphries,[6] a determination of the seriousness of any pecuniary disadvantage the plaintiff has suffered as a result of a transport accident is to be assessed in combination with, and not separately from, any pain and suffering consequences. No submissions were directed to the plaintiff suffering pecuniary disadvantage. The plaintiff was a schoolgirl when injured and she has proved very commendably, to be adept and determined in progressing her career.
[6] Ibid.

The Documentary Evidence
7The plaintiff relied on the following evidence:
(a)   Three affidavits of the plaintiff dated 4 March 2020,[7] 19 May 2021,[8] and 20 December 2023;[9]
[7]Exhibit P1, Plaintiff Court Book (“PCB”) 10-16.
[8]Exhibit P1, PCB 17-19.
[9]Exhibit P1, PCB 20-23.
(b)   Affidavit of Anastasia Kikianis dated 21 September 2021;[10]
[10]Exhibit P2, PCB 24-26.
(c)   Affidavit of Joshua Ammoun dated 21 February 2024;[11]
[11]Exhibit P3, PCB 27-29.
(d)   Affidavit of Carolyn Paterson dated 21 February 2024;[12]
[12]Exhibit P4, PCB 30-31.
(e)   Ambulance Report dated 21 April 2013;[13]
[13]Exhibit P5, PCB 32-37.
(f)    Royal Children's Hospital Discharge Summary dated 22 April 2013;[14]
[14]Exhibit P6, PCB 41-45.
(g)   Letter from Dr Jim Kyriacopoulos to Ms Tracey Morris dated 9 September 2014;[15]
[15]Exhibit P7, PCB 50.
(h)   Letter from Ms Tracey Morris to the TAC dated 26 November 2014;[16]
[16]Exhibit P8, PCB 57.
(i)    Report of Mr Yagnesh Vellore dated 28 June 2022;[17]
(j)    Report of Dr Stiofan O’Conghaile dated 22 August 2022;[18]
(k)   Report of Mr Sharon Christian dated 17 November 2023;[19]
(l)    Two reports of Mr Patrick Chan dated 17 December 2023,[20] and
3 May 2023;[21]
(m)     Radiology including:
(i)CT scan of the thoracic spine without contrast dated 22 April 2013;[22]
(ii)MRI report of the thoracic and lumbar spine dated 14 October 2021;[23] and
(iii)MRI report of the thoracic spine dated 18 May 2023;[24]
[17]Exhibit P9, PCB 64.
[18]Exhibit P10, PCB 65-66.
[19]Exhibit P11, PCB 67-72.
[20]Exhibit P12, PCB 73-76.
[21]Exhibit P12, Defendant Court Book (“DCB”) 68-69.
[22]Exhibit P13, PCB 77.
[23]Exhibit P13, PCB 84.
[24]Exhibit P13, PCB 85.

(n)   Medicolegal report of Dr David Kennedy dated 1 October 2019;[25]
(o)   Medicolegal report of Dr Brendan Hayman dated 25 November 2019;[26]
(p) Two medicolegal reports of Dr Bruce Love dated 6 July 2021,[27] and 19 October 2021;[28]
(q)   Medicolegal report of Dr Louise Seward dated 3 August 2021;[29]
(r)   Medicolegal report of Dr Arshad Barmare dated 4 January 2021;[30] and
(s)   Medicolegal report of Professor Peter Teddy dated 16 June 2023.[31]
[25]Exhibit P14, PCB 86-91.
[26]Exhibit P15, PCB 92-100.
[27]Exhibit P16, PCB 104-105.
[28]Exhibit P16, DCB 4-5.
[29]Exhibit P17, PCB 109-122.
[30]Exhibit P18, PCB 129-140.
[31]Exhibit P19, PCB 141-149.
8The defendant relied on the following evidence:
(a)   Medicolegal report of Mr Vasudeva Pai (orthopaedic Surgeon) dated 28 September 2021;[32]
(b)   Medicolegal report of Mr Anthony Kam (radiologist) dated 4 January 2024;[33] and
(c)   Extracts of clinical records of:[34]
(i)Watervale Medical Centre;
(ii)Taylors Hill Medical Clinic;
(iii)Dr Iphigenia Chronas;
(iv)Mernda GP Clinic; and
(v)Lakes Boulevard Medical.
[32]Exhibit D1, DCB 6-14.
[33]Exhibit D2, DCB 15-18.
[34]Exhibit D3, DCB 19-68.

9I have read and had regard to the lay and medical evidence relied on by the parties, as well as the affidavit evidence and the cross-examination and re-examination of the plaintiff, and the final addresses of counsel.
10The hearing proceeded in the usual way with the plaintiff adopting her affidavits, and the same stood as her evidence in chief. The lay affidavits on which the plaintiff relied were received without objection and the deponents were not required for cross-examination.

The Plaintiff’s Affidavit Evidence
11The following narrative is derived from the plaintiff’s three affidavits and it principally focusses on the physical injury that is the subject of this application.[35]
[35]Exhibit P1, PCB 10-23.
The Plaintiff’s Pre-Accident Health
12Prior to the accident, the plaintiff said that she had suffered from mild asthma and other common ailments whilst growing up. However, she had not experienced or suffered from spinal injuries or complaints of that nature prior to the accident. At the time of the transport accident the plaintiff was a full-time student and in good health.
Consequences
The First Affidavit
13In her first affidavit dated 4 March 2020, at paragraph 14, the plaintiff deposed to suffering ongoing daily back pain just below her shoulder blades. She said that the pain is aggravated by activity and radiates into her lower back, particularly when she is sitting or standing. She said that the pain can also radiate into her left shoulder with certain activities.
14The plaintiff thought her back pain had worsened with time. She said that she was experiencing muscle spasms that were dependent on the activity that she was performing. She gave an example of lifting her doona off her bed as a trigger. The plaintiff said that when she experienced a spasm, she suffered pain in her back that extended into her chest and the pain could take up to ten minutes to subside. She lies down when she suffers a spasm, although lying down can “hurt a lot” and she explained that “it is like my back locks up.”[36]
[36]        Exhibit P1, PCB 15, paragraph 14.
15The plaintiff said that her ongoing pain gets her down. She said she can walk for about 30 minutes before her back pain is aggravated and although she could run if she had to, she avoids it because of its significantly aggravating effect on pain. She said that she “cannot sit or stand for too long” before her back pain is aggravated.[37] She has to move and change position if she sits or stands for too long.
[37]        Ibid.
16The plaintiff said that she takes pain killers every day and could take anywhere from one to three tablets of Nurofen or Panadol daily. These only dull the pain and she also uses Deep Heat or Voltaren and has massages. The plaintiff said she made an appointment to see a chiropractor but they did not bulk bill and she did not attend.
The Second Affidavit
17In her second affidavit dated 17 May 2021, the plaintiff adopted the consequences detailed in her first affidavit as continuing to prevail. She said she was still dieting in an effort to lose weight gained because of reduced activity.
18The plaintiff deposed that she was continuing to experience difficulty sleeping. She said that she was regularly waking up during the night due to pain and stiffness in her back. She said she cracks her back during the night, although some nights can be better than others. She said that her low back hurts when she lies down and she needs to wait for it to ease before getting comfortable.
19The plaintiff deposed that her social life remained restricted due to her injury. She gave as an example, having attended a club with her cousin. She needed to wear flat shoes and had to sit down to be able to manage but still suffered a flare up of pain for a few days afterwards.
20The plaintiff said she had obtained part-time work at a take away shop working about 14 to 15 hours a week which she struggled with and regularly required taking seated breaks. She addressed her study. She said she had failed two units of her course that she attributed to the extensive reading they required and her inability to remain in a fixed position for the length of time the reading required.
21The plaintiff said she was now usually taking Panadol Osteo in lieu of Panadol.
The Third Affidavit
22In her third affidavit, the plaintiff deposed that in addition to the aggravating factors described in her first affidavit, the following movements/activities aggravate her back pain:
(a)   bending or leaning over;
(b)   driving for extended periods;
(c)   getting in and out of her car; and
(d)   intimacy with her partner.[38]
[38] Exhibit P1, PCB 21 [5].
23The plaintiff deposed that the stiffness she used to experience after lying in bed was “a little better since she recently purchased a new mattress.”[39]
[39]Exhibit P1, PCB 21 [6].
24The plaintiff said that she is more cautious about her movements and activities since being told she has a syrinx. She said that she had been told by her treating practitioners that if the syrinx gets worse, it could result in graver consequences in terms of her pain and functioning, therefore, she has become even more avoidant of physical activity.
25The plaintiff takes Nurofen or Panadol Osteo on a regular basis for the pain in her back. She also takes Voltaren tablets when pain worsens.
26The plaintiff is employed as a full-time trainee Court Registrar at the Heidelberg Magistrates’ Court. She commenced in the role in around November 2022.
27The plaintiff deposed that if not for the accommodations made by her employer, Court Services Victoria (“CSV”), she did not think that she would have been able to continue in her position. She said that even with her special chair, her sit/stand desk with which she has been provided, and the freedom to do stretching and exercises as necessary, she still finds her back pain is painful after a day at work.
28As a result of her full-time job with CSV, the plaintiff has need to change universities and she has transferred from Victoria University to Deakin University, where she is continuing her degree in Criminology. As of 20 December 2023, the plaintiff has “completed 55% of her course.”[40]
[40]Exhibit P1, PCB 22 [18].

The Lay Affidavits in Support
29The plaintiff relied on three affidavits by Ms Anastasia Kikianis dated 21 September 2021,[41] Mr Joshua Ammoun dated 21 February 2024,[42] and Ms Carolyn Paterson dated 21 February 2024.[43]
[41]        Exhibit P2, PCB 24-26.
[42]        Exhibit P3, PCB 27-29.
[43]        Exhibit P4, PCB 30-31.
Affidavit of Anastasia Kikianis
30Ms Kikianis is the owner of the Greek Grill in Epping where the plaintiff commenced work in customer service around late January or early February 2021.
31The plaintiff worked 15 hours per week doing three to four hour shifts at a time. Ms Kikianis deposed that the plaintiff told her that she could not work additional hours “because of her back issues”.[44]
[44] Exhibit P2, PCB 25 [4].
32The plaintiff’s duties included “taking phone orders, packing and handing off orders, working the cash register and some light cooking on the grill.”[45] Ms Kikianis said that the plaintiff did not undertake any heavy lifting because of her back.
[45] Ibid.
33Ms Kikianis said that she only saw the plaintiff 50% of the time she was working per week. However, she had observed the plaintiff “struggling at work because of her back.”[46] She said that she had seen the plaintiff “hold or grab at her lower back” and it seemed apparent that the plaintiff was in pain.[47]
[46] Exhibit P2, PCB 25 [5].
[47] Ibid.
34Ms Kikianis characterised the plaintiff as a “strong personality” and not prone to complain, but she would ask to take a break if needed because her back was hurting and would rest in an area out the back of the shop.
35Ms Kikianis deposed that it was not unusual to observe the plaintiff taking pain killers.
36Ms Kikianis deposed that there were times when the plaintiff was not able to attend work because of her back and she thought this last occurred in around late 2019.
Affidavit of Joshua Ammoun
37Mr Ammoun is the plaintiff’s partner. They have been together as a couple since July 2021 and live in Wollert.
38Mr Ammoun said he had observed the plaintiff suffering from “ongoing back pain that causes her significant restrictions and limitations in her daily life.”[48] He gave examples of observing the plaintiff “struggling” with back pain in the morning, and that her sleep is “often disrupted throughout the night” because she can’t get into a comfortable position.[49]
[48] Exhibit P3, PCB 27 [5].
[49] Exhibit P3, PCB 27 [6].
39Mr Ammoun said when the plaintiff’s pain is particularly bad of a morning, he assists her put on her shoes and socks. He has seen the plaintiff fatigued and in pain on returning home from work in the evenings.
40Mr Ammoun said that that the plaintiff struggles with general household tasks that involve bending or lifting. He regularly helps with the cooking, washing and cleaning, and when they moved house he did the heavy lifting.
41Mr Ammoun deposed that plans to go to the footy or to the movies “might have to change at the last minute” if the plaintiff’s back pain makes the activity untenable.[50] He said that they would like to “do more” in their spare time, but the plaintiff’s back injury limits what they can do.
[50] Exhibit P3, PCB 28 [9].
42Mr Ammoun said that when travelling, he normally drives longer distances because of the plaintiff’s back pain.
43He said that he “regularly” helps the plaintiff relieve her back pain by giving her massages and applying Deep Heat.
44Mr Ammoun said that the plaintiff’s back pain adversely impacts their intimate life.
45Mr Ammoun commented that the plaintiff does her best to soldier on and manage her condition and often she is “frustrated, fatigued and uncomfortable.”[51]
[51] Exhibit P3, PCB 28-29 [13].
Affidavit of Carolyn Paterson
46Ms Paterson is a Senior Registrar at the Heidelberg Magistrates’ Court and the plaintiff’s Manager. She has known the plaintiff since she commenced at the Court in November 2022.
47Ms Patterson deposed that the Magistrates’ Court has done its best to accommodate the plaintiff’s back injury. This has included occupational support and the provision of an ergonomic chair and a sit/stand desk. Ms Paterson said that these were provided to the plaintiff shortly after she commenced on advice from the OH&S team, who had provided the plaintiff with a workplace occupational assessment.
48Ms Paterson has “frequently observed” the plaintiff taking medication throughout the day.[52]
[52] Exhibit P4, PCB 31 [6].
49Ms Paterson offered her opinion that the plaintiff has a “strong work ethic” and is a stoic, with a “high level of integrity.”[53]
[53] Exhibit P4, PCB 31 [7].

Plaintiff’s Medical Reporting
50Although the plaintiff tendered an Ambulance Report dated 21 April 2013; a Royal Children's Hospital Discharge Summary dated 22 April 2013; correspondence between Dr Kyriacopoulos and Ms Morris dated 9 September 2014 and a letter from Ms Morris to the TAC dated 26 November 2014, no reference was made to their relevance otherwise than chronologically, and their contents were uncontroversial. Beyond noting them, I need not address them.
Report of Mr Yagnesh Vellore report dated 28 June 2022[54]
[54] Exhibit P9, PCB 64.
51Mr Vellore is a neuro and spinal surgeon. On examining the plaintiff, he could not elicit any focal neurological deficit in her upper or lower limbs.[55] There was he said, normal tone, power, reflexes and sensation bilaterally in both her upper and lower limbs.
[55]A focal neurologic deficit is a problem with nerve, spinal cord, or brain function. It affects a specific location, such as the left side of the face, right arm, or even a small area such as the tongue. Speech, vision, and hearing problems are also considered focal neurological deficits.
52He said that a review of the plaintiff’s MRI scan, which had been performed at the Austin Hospital, demonstrated central syrinx cervical spine extending 3.7 cm craniocaudally from the level of C5-C6 to C7-T1, measuring 4.5 x 3.5 transverse and by AP dimension. No abnormal contrast enhancement or evidence of spinal AVM[56] or AVF[57] was seen. No significant central canal or neural foraminal stenosis was seen. He added that the radiologist had interpreted a finding of a traumatic syrinx.

[56]        An AVM is an Arteriovenous Malformation: a fistula in the brain.
[57]        An AVF is an Arteriovenous Fistula: an abnormal connection between an artery and a vein.
53Mr Vellore recommended that the plaintiff follow up with Mr Chan (under whose care the plaintiff had come with regard to the syrinx) and/or the Austin Hospital where he understood the plaintiff was scheduled for a further appointment.
54As to the plaintiff’s low back pain, Mr Vellore said that he had referred the plaintiff to Dr O'Conghaile for a pain management program.
Report of Dr O'Conghaile dated 22 August 2022[58]
[58]        Exhibit P10, PCB 65-66.
55Dr O’Conghaile is a pain specialist and anaesthetist who saw the plaintiff via a telehealth conference. He said that he had reviewed the plaintiff’s imaging that included the MRI from Capital Radiology that identified a syrinx of the lower cervical cord over a distance of 36 mm, with the syrinx measuring 4 x 6 mm in axial dimensions. Dr O’Conghaile said he also reviewed the lumbar imaging and there were no major abnormalities. There were no disc protrusions or obvious degenerative disc disease. There was potentially mild facet joint arthropathy at L4-L5 and L5-S1.
56Dr O’Conghaile said the plaintiff’s back pain may represent facet joint pain syndrome,[59] which in his opinion, is often seen after a high-speed motor vehicle accident. On the other hand, he speculated that the plaintiff’s pain may be related to the syrinx.
[59]Facet joint syndrome is an arthritis-like condition of the spine that can be a significant source of back and neck pain. It is caused by degenerative changes to the joints between the spine bones. The cartilage inside the facet joint can break down and become inflamed, triggering pain signals in nearby nerve endings.
57Dr O’Conghaile said he discussed with the plaintiff the possibility of administering lumbar medial branch blocks to target the lowermost facets at L4-L5 and L5-S1, such that if delivered a positive diagnostic response, then radiofrequency denervation of the facet joints could also be considered.
58To date, the plaintiff has not pursued the treatment canvassed with her by Dr O’Conghaile.
Report of Mr Sharon Christian dated 17 November 2023[60]
[60]        Exhibit P11, PCB 67-72.
59Mr Christian is a physiotherapist in Mill Park who commenced treating the plaintiff in September 2023 for chronic low back and neck pain. The plaintiff reported to Mr Christian that she did not pursue any regular treatment following the accident due to a lack of support. She said that her pain increased when she commenced a desk job at the Magistrates’ Court and so her general practitioner (“GP”) had referred her for physiotherapy.
60The plaintiff reported to Mr Christian that she had experienced lower back pain for nearly 11 years that has been aggravated with time. She reported severe pain upon waking in the morning, and that her sitting ability at work was affected prior to being provided with a sit-stand desk and an ergonomic chair that had helped her mange her pain.
61Mr Christian noted that the plaintiff uses Panadol and Nurofen as her “major pain relieving medications” along with heat packs and topical ointments.[61]
[61]        Exhibit P11, PCB 69.
62The plaintiff’s treatment from Mr Christian involved a range of manual physiotherapy techniques including therapeutic deep tissue massage, joint mobilizations and strengthening exercises. He wrote:
Over the past few weeks of treatment, Angela has reported significant relief from lower back pain and neck pain. Her back pain has been worse in the last few years, and she has notably improved in the reduction of pain. She reports no pain on waking up in the morning, with improved sitting tolerance. The score on the VAS scale is currently sitting at 3-4/10 when severe, which has reduced since the start of treatment.[62]
[62]        Exhibit P11, PCB 71, under “treatment and prognosis”.
63Mr Christian considered that the plaintiff would benefit from a robust personal training program to assist with strengthening her spinal and musculoskeletal structures and also by clinical Pilates. He recommended that she continue with physiotherapy and gym based treatment, as it showed promise in managing her pain. He noted that “with her current situation, she reports less pain, improved range of motion of the back, marked reduction of pain when waking up, and improved sitting tolerance at work.”[63]
[63]Exhibit P11, PCB 71, under “current condition and rehabilitation program”.
Two Reports of Mr Patrick Chan dated 3 May 2023 and 17 December 2023
64Mr Chan is a neuro and spinal surgeon to whom the plaintiff was referred by Mr Vellore. He examined the plaintiff on 3 May 2023.[64] It is more than sufficient to refer to Mr Chan’s second report and it is the more comprehensive of the two.[65]
[64]        Exhibit P12, PCB 68-69.
[65]        Exhibit P12, PCB 73-76.
65In his second report, Mr Chan related the plaintiff’s account of the transport accident. She was aged 11 and had been a passenger in a car driven by her father when it was side struck by another car. She was taken to the Royal Children's Hospital and had a CT scan. She was told that she had a T1 compression fracture. The plaintiff told Mr Chan that since then she had suffered from intermittent back pain between her shoulder blades and also in her lower back.
66On examination, Mr Chan found no paraesthesia,[66] brachialgia,[67] weakness or clumsiness in the plaintiff’s hands, and there was no radiculopathy, or claudication[68] in her legs. She had no difficulty walking.
[66]Paresthesia is an abnormal sensation of the skin (tingling, prickling, chilling, burning, numbness) with no apparent cause.
[67]Brachialgia is a technical term for arm pain. It is used when the pain is thought to be due to a problem with the nerves, most frequently a compressed or pinched nerve in the neck.
[68]Claudication refers to muscle pain due to lack of oxygen that's triggered by activity and relieved by rest.
67Mr Chan noted that the plaintiff had scans taken at Olympic Park in 2021. She was evaluated by Mr Vellore with a repeat scan at the Austin Hospital in 2022 and subsequent review by Dr O'Conghaile for pain management, which consisted of one consultation in which a mild lumbar facet arthropathy was discussed, but that there had been no follow up with Dr O'Conghaile.
68The plaintiff told Mr Chan of pain that is mainly worse in the morning and also with prolonged sitting.
69Mr Chan reported that the MRI scan of the spine (13 October 2021, Capital Radiology) was comparable to the MRI scan (28 February 2022, Austin Hospital) and showed the stable C6-C7 syrinx. It was small. The T1 compression fracture was not obvious on the scan. There was no evidence of hydrocephalus nor Chiari malformation. There was no other lesion. There was no tethered cord. He noted that a later MRI of the plaintiff’s cervicothoracic spine (taken 18 May 2023, at Olympic Park) showed a small reduction in the size of the cervical syrinx.
70Mr Chan wrote that the plaintiff suffered from mechanical interscapular back pain and lower back pain. There was also a stable cervical thoracic syrinx which was non-neuro compressive. He said that there was no earlier scan in order to comfortably say how long the syrinx had been present.
71Mr Chan reported that the plaintiff’s injuries relevant to the transport accident of 21 April 2013 were mechanical axial pain between the shoulder blades and lower back without radiculopathy or other neurological features. He noted that the plaintiff had reported a T1 compression fracture back in 2013, but he said these were not clearly shown on scans in 2021, 2022 and 2023.
72In relation to the plaintiff’s lower back injury and her cervicothoracic syrinx, Mr Chan reported that her future treatment should be ongoing pain management with Dr O’Conghaile, and as well an annual MRI to monitor the cervicothoracic syrinx. He did not believe that at this stage the plaintiff required surgery in relation to her lower back injury or her cervicothoracic syrinx.
73Mr Chan offered a generally guarded prognosis for the plaintiff’s condition given her ongoing pain for many years. He thought that the plaintiff “is likely to experience ongoing symptoms which will interfere her social, domestic and recreational pursuits”.[69]
[69]        Exhibit P12, PCB 75.
Medicolegal Report of Dr David Kennedy dated 1 October 2019
74Dr Kennedy is a sports and industrial physician who examined the plaintiff and obtained a history of the accident, her symptomology and treatment.
75At the date of Dr Kennedy’s report, he noted that since 2013, the plaintiff had only had two sessions of physiotherapy to her back and left shoulder. She had seen several psychologists for PTSD and other reasons.
76The plaintiff complained to Dr Kennedy of upper and mid back pain and of low back pain when sitting or standing for too long. She said that she was always “cracking” her back.
77On examination, Dr Kennedy reported “tightness and tenderness over the erector spinae and paravertebral” muscles, that was worse on the left side.[70] He diagnosed an injury to thoracic spine (non-specified) resulting in asymmetric loss of active range of movement, with a compression fracture of vertebral body of T1 of less than 25%.
[70]        Exhibit P14, PCB 80, under “clinical assessment”.
78Dr Kennedy reported on the diagnostic studies he had to hand. These were:
Chest, cervical and thoracic spine x-ray: 24 April 2013

Conclusion: No abnormalities were detected in the chest x-ray. The C1 to T1 vertebral bodies are imaged on lateral projection. There was loss of normal cervical lordosis likely to be related to the presence of a cervical collar. There is normal alignment and no fractures identified. No prevertebral soft tissue swelling is noted. A single lateral projection of the thoracic spine demonstrates normal mild thoracic kyphosis. No fractures identified.
CT scan of cervical and thoracic spine: 24 July 2013

Impression: Subtle focal depression of the superior end plate of T1 vertebral body in mid-part anteriorly, presumably the known fracture. No other significant osseous or disc pathology is evident.[71]
[71]Exhibit P14, PCB 89, under “diagnostic studies”.
79Dr Kennedy offered the following opinion:
Ms Roumbos’ injuries have substantially stabilised and ongoing treatment should involve the intermittent use of oral analgesic and anti-inflammatory medication as required, as well as core stretching and strengthening exercises coordinated by a physiotherapist.
Ms Roumbos has developed post-traumatic stress disorder and she currently is having psychological counselling but she states that this also relates to other psychological problems not in relation to the Transport Accident.
Ms Roumbos has restrictions with repetitive bending, twisting and turning of her thoracic spine under load or stress and this may interfere or affect which future work capacities and capabilities on the open labour market, as well as some domestic, social and recreational activities that involve load or stress on the thoracic spine and the left parascapular region. These restrictions may continue for the foreseeable future.[72]
[72]Exhibit P14, PCB 90, under “opinion”.
Medicolegal Report of Dr Brendan Hayman dated 25 November 2019
80Dr Hayman is a psychiatrist who examined the plaintiff on 25 November 2019. He reported that the plaintiff presented as a very robust and resilient young woman who had endured much in her life to date. Both of her parents had been heroin addicts and she was estranged from her mother from a very young age. She had left home and was living with a godparent in Mernda.
81Dr Hayman did not consider that the plaintiff required antidepressant medication.
82Dr Hayman summarised the plaintiff’s medical state since the accident that included having been diagnosed with a compression fracture of T1. The plaintiff told Dr Hayman that she had been unable to perform sport for a year given the compression fracture of T1. She continued to have back pain particularly with sitting.
83After she completed grade 6, she went on to attend Taylors Lakes Secondary School. At a follow-up review one year after the accident, she was advised by a physiotherapist not to do any further sport for another year. She told Dr Hayman this had been a significant loss for her, as she had been a very keen soccer player. She had played both with her school and in a local league. She had never got back into sport given the ongoing lower back pain. She had tried soccer the previous year but found it too difficult.
84When the plaintiff saw Dr Hayman, she had just completed her VCE and was hoping to attend university and study criminology.
85The plaintiff told Dr Hayman that she had put on a significant amount of weight following the accident because of her inability to participate in sport.
Two Medicolegal Reports of Dr Bruce Love
The First Report dated 6 July 2021
86Dr Love recounted that the plaintiff said that during her school years while she was successful in her exams, sports such as soccer and gymnastics were attempted, but she was unable to enjoy them due to spinal pain.
87The plaintiff described pain on the right side of the thoracic spine in the thoracolumbar region, that was particularly troublesome upon awakening each morning.
88In addition, she experienced some pain in the lower back. She said she was using Nurofen regularly, around every second day. He noted that the plaintiff’s regular medical advice comes from her GP and she had not seen any specialists for several years. She had physiotherapy in the past, but not recently, and she was not engaging in an exercise program. Dr Love said that he had no recent radiology.
89On examination, Dr Love identified tenderness on the right side of the thoracic spine at the lower costal margin. He found the lumbar spine and thoracic spine was mobile, but with some discomfort at the limits of extension. He noted that lateral flexion to the right side was also uncomfortable.
90Dr Love observed that a CT scan of the thoracic spine dated 22 April 2013, concluded that there was a minimal wedge compression of the T1 vertebral body in keeping with a Grade 1 compression fracture, representing a stable injury. Plain x-rays of the same region had not reported demonstrating a similar injury.
91Dr Love said it appeared that the plaintiff’s principal injury was a soft tissue injury of a chronic type, but in the absence of contemporary radiology, he could not determine whether there was an ongoing skeletal contribution to her symptoms.
92Dr Love noted that the plaintiff said that her social life had been compromised and if there is a requirement to stand for long periods of time, she becomes extremely uncomfortable.
The Second Report dated 19 October 2021
93Dr Love’s second report was written on the papers, after having been provided with the MRI imaging of the plaintiff’s spine that had revealed the syrinx. Dr Love said that if he had been aware of the same when he examined the plaintiff, he would have referred her to a neurosurgeon.
94Dr Love recorded that his knowledge of the clinical features of a syrinx was limited to the literature. He wrote:
…My understanding of the literature is that the condition is most commonly a congenital lesion which is associated with changes in teenage years.
It is also reported that the condition can occur as a consequence of spinal trauma. One further cause is an unrecognised spinal cord tumour.[73]
[73]Exhibit P16, DCB 4.

95Dr Love said that “it cannot be assumed that this abnormality can be related to the road traffic accident and I have been unable to find any evidence that the condition may have been recognised either in the immediate post injury period or subsequently.”[74]
[74]Exhibit P16, DCB 5.
96Dr Love also noted that when he examined the plaintiff in July 2021 “there were no symptoms of a neurological nature, nor were there any neurological findings on examination.”[75] Dr Love recommended that the plaintiff be reviewed by a neurosurgeon who was experienced in dealing with the plaintiff’s age group.
[75]Ibid.
Medicolegal Report of Dr Arshad Barmare dated 4 January 2021
97Dr Barmare is a consultant orthopaedic surgeon. In a report dated 4 January 2021, he obtained a history that is largely consistent with other recorded histories.[76]
[76]Exhibit P18, PCB 129-140.
98Dr Barmare diagnosed bilateral trapezius fasciitis resulting from T1 compression fracture and low back pain. Aetiology was not addressed. He recommended core strengthening exercises and myotherapy.
Medicolegal Report of Professor Peter Teddy dated 16 June 2023
99Neurosurgeon Professor Teddy recounted that the plaintiff’s days are fully occupied with being busy at work and “at the weekend she simply stays at home as they are saving to buy a house.”[77] The plaintiff reported that she no longer plays sports, but watches soccer on the television. She was able to do housework, although dishwashing hurts. She avoids lifting heavy baskets of shopping, or of clothes.
[77]Exhibit P19, PCB 144, under “current status”.
100The plaintiff was occasionally taking Panadol and Panadol Osteo, or Nurofen. She applies Deep Heat cream or Voltaren cream to her back, either in the mid scapular area, or lumbar region, depending on which area was hurting the greater.
101She rated her mid back pain at around 5/10 on a 0 to 10 scale of severity, but when the pain was bad (such as doing the dishes) she said it may reach 9/10. Her lower back pain was worse, but she said that she had bought a new mattress and this had improved her low back pain to an average of around 3/10.
102Professor Teddy was impressed by the plaintiff and said that she presented as a very pleasant and straightforward witness, who did not appear to embellish her history.
103Professor Teddy reported that the plaintiff’s gait was normal and she had a full range of pain free neck movements and a non-tender spine. She could “bend to touch her ankles while tilt rotation and extension of the lumbar spine appeared relatively full. She had no muscle wasting. Tone and power were normal in all four limbs. Straight leg raising was 90 degrees bilaterally.”[78]
[78]        Exhibit P19, PCB 144.
104On examination, there were no abnormalities of sensation in any of the plaintiff’s limbs or around her trunk. Professor Teddy wrote “both abdominal reflexes were absent. There was probably some reduction of the left triceps jerk and both triceps jerks were somewhat reduced compared with other reflexes, which were symmetric and quiet. Both plantar responses were down going.”[79]
[79]        Ibid.
105Professor Teddy summarised a number of reports that he had been provided:[80]
[80]        Exhibit P19, PCB 145.
(a)   Royal Children’s Hospital Record 22 April 2013: An 11 year old girl brought in by ambulance following 60 to 70 km/h MVA. Car T boned and then hit tree Front seat restrained passenger. Secondary and tertiary surveys revealed tender to thoracic spine but no other injury CT of thoracic spine, showed compression fracture at T1 Deemed stable.
(b)   Review by Dr Aaron Buckland (orthopaedic registrar) 20 April 2013: Seen in fracture clinic nine days post motor vehicle accident. Reporting upper thoracic pain. Noted comment in report of minimal compression wedge fracture of T1 vertebral body (but Professor Teddy was unable to see it on imaging). Pain more around the T4 region where there is no pathology on CT probable right transverse process fracture of T1. No structurally significant fractures. She let things settle over the next month.

(c) Physiotherapy appointments dated 17 June 2013 and 26 July 2013 for ongoing back pain and muscle stiffness:
(i)By 2 August 2013: said to have improved significantly.
(ii)Review x-ray thoracic spine dated 22 January 2014: T1 vertebra not visualised.
(iii)X-ray thoracic spine for persistent pain dated 24 November 2015: No fracture identified at T1 as seen in previous CT. However, noted that previous x rays had not identified CT reported fracture.

(d) GP Records:
(i)May 2013: Review for more pain in back especially upper area with spread to right scapula and shoulder
(ii)July 2016: Back not improving. Seeing physio twice per week Psychologist refusing to see patient again. Back at school. Now sore back and occasional right leg pain. No abnormal neurology.
(iii)October 2013: Back pain improved significantly Need to assess regarding return to sports and activities.
(iv)January 2014: Back pain quiet for a few weeks now.

(e) GP Records of 2019 (Dr Chronas):
(i)8 May 2017: GP note, Panic attack Stress at home possible assault No recent psychological follow up No attendances with GP for her back pain until review in 2019 (see below).
(ii)18 September 2020: Still getting pain in the same area of the spine of T1 wedge fracture Requested CT cervical and thoracic spine.

106Professor Teddy reported that the plaintiff presented with mechanical (musculoskeletal) upper/mid thoracic back pain and low back pain, but other than a slightly reduced left triceps reflex, she had no abnormal neurology. She had been variously diagnosed as suffering no injury related back pain trapezius fasciitis, and aggravation of cervical and lumbar spondylosis with central sensitisation. He noted that she was also felt to have possible facet arthropathy at L4/L5 and L5/S1.
107Professor Teddy thought that given the plaintiff’s young age and the relative absence of spondylotic pathology noted on her various scans, that an “aggravation of spondylosis seems unlikely,” whilst he thought that “central sensitisation is an attractive hypothesis that remains unproven in humans.”[81]
[81]        Exhibit P19, PCB 147.
108Professor Teddy said that the plaintiff had been noted to have on “CT scan a minor compressive fracture at the T1 vertebral level that appears on more recent imaging to have healed and is not readily demonstrable.”[82]
[82]        Ibid.
109Professor Teddy said that the plaintiff had evidence of a cervicothoracic syrinx cavity within the cord (C6 to T1) as documented in her radiological reports. He said that there was no evidence of tumour Chiari malformation or other aetiological factors for the formation of syrinx cavities, and it could not be said with certainty how long this syrinx cavity has been present. However, in the absence of any other such precipitating factor, the position of the syrinx would suggest that it was of post traumatic origin. He wrote that such syrinx cavities are brought about either as a consequence of liquefaction of central hematomyelia,[83] or by local disturbances of CSF[84] flow in the subarachnoid space surrounding the spinal cord at that level.
[83]Haematomyelia refers to the presence of intramedullary haemorrhage or haematoma within the spinal cord. This is distinct from extramedullary haemorrhage such as that seen in epidural haematoma.
[84]        Cerebral Spinal Fluid.
110Professor Teddy went on to report that the absence of a neurological abnormality at any time would not be in favour of central hematomyelia. He said that any apparent scarring or adhesions around the T1 level were not evident on scanning and there was reasonable evidence that the syrinx cavity had diminished slightly in size since it was first identified in 2021.
111Professor Teddy thought that the diagnosis of the plaintiff’s current condition was therefore that of “stable, healed minor compression fracture of T1, with residual thoracic back pain, coupled with the presence of (probable) post-traumatic syringomyelia.”[85] He said that the plaintiff also has mechanical low back pain (musculoskeletal) without neurological sequelae.
[85]        Exhibit P19, PCB 147.
112Professor Teddy said he could not say whether the plaintiff’s current pain relates in any way to the syrinx cavity. He said “the cord is not expanded, the dura is not stretched, and she has no radiation of pain around her trunk. There is no suspended associated sensory impairment and no lower limb abnormal neurology compatible with a syrinx at that level.”[86]
[86]        Exhibit P19, PCB 148.
113Professor Teddy wrote that the plaintiff had records of some psychological issues some of which related to her injury/accident in 2013, and some that did not.
114In Professor Teddy’s opinion, on the balance of probabilities, the plaintiff would continue to suffer pain of varying degrees of severity and frequency in both the thoracic and lumbar spine for the foreseeable future. The low back pain may well relate to facet arthropathy, possibly in relation to the “hunched attitude she adopted within her seatbelt restraint at the time of the impact of the motor vehicle accident in 2013.”[87]
[87]        Ibid.

Defendant’s Medical Reporting
Medicolegal Report of Mr Vasudeva Pai (Orthopaedic Surgeon)
115Mr Pai examined the plaintiff on 28 September 2021 at the request of the defendant’s solicitor.[88]
[88]        Exhibit D1, DCB 6-14.
116The plaintiff reported experiencing pain in the “lower thoracic and upper lumbar region” which Mr Pai considered to be from T8 to L4.[89] The plaintiff described her pain as being “usually dull and aching but with some activities like bending it can become sharp. She states that bending down to put on her trousers can increase her pain and after doing that she has to take 10 minutes off.”[90]
[89]        Exhibit D1, DCB 8.
[90]        Ibid.
117The plaintiff reported that her sitting tolerance was “okay”, and that she could sit for two hours and participate in her criminology course. Mr Pai wrote that the plaintiff had “not tried doing normal walks and cannot tell me how far she can walk but states that she has started working 15 hours in a kebab shop as a cashier and she is on her feet most of the time and able to manage that.”[91] The plaintiff reported that she was “generally able to sleep well, and her sleep is not disturbed.”[92]
[91]        Ibid.
[92]        Ibid.
118Regarding present treatment, Mr Pai wrote that the plaintiff had a GP at Taylors Hill Village, but did not have regular appointments. She reported taking Panadol osteo for pain relief occasionally, and regularly taking around two tablets of Nurofen a day. The plaintiff was not having physiotherapy at the time.
119On examination of the neck, Mr Pai found “there was satisfactory range of movement for age without any paraspinal spasm that was bilateral and symmetrical with no radiculopathy. Spurling’s test was negative. Tinel's sign at the supraclavicular fossa was negative.”[93] On examination of the spine, he found that there was no “no paraspinal spasm on standing single leg”, nor could he localise any tenderness on palpitation. As well, “sacroiliac joint stress test was negative. Valleix points were negative” and the plaintiff had a flexible spine.[94]
[93]        Exhibit D1, DCB 10.
[94]        Ibid.
120Mr Pai considered that the plaintiff was neurologically intact, with no nerve root irritation or deficit and no paraspinal spasm. He said the plaintiff had good range of movement of her back.
121Addressing the question of diagnosis, Mr Pai recorded:
My diagnosis is non-specific pain in the thoracolumbar region with no radiculopathy and no paraspinal spasm with good range of movement in the thoracolumbar spine.
Clinically it appears she has non-specific pain although she has not had any imaging since the X-rays of her thoracic spine on 29 November 2015, which showed essentially normal findings and did not identify any fractures.
Ms Roumbos says she cannot remember when her low back pain started, and she thinks that it was probably four years ago and pain in the thoracolumbar region appears to be her main ongoing symptom. I cannot relate this to her motor vehicle accident of 21/4/2013. She denies any issues around her T1 fracture or any neck related symptoms.[95]
[95]        Exhibit D1, DCB 12.
122Mr Pai said that based on the clinical notes he had been provided with and the history reported by the plaintiff, he could not relate the plaintiff’s ongoing complaint of back pain to the accident. He said the radiology from 2015 showed that her T1 fracture had healed well. Noting the plaintiff’s age group, he suggested that other causes for her pain should be looked at, such as osteochondrosis like Scheuermann’s[96] (a developmental condition), because he considered this was more in keeping with her pain site.
[96]        A condition that results in increased rounding of the spine.
123Mr Pai suspected that there were psychological issues impacting the plaintiff’s presentation.
124As to future treatment, Mr Pai noted that the plaintiff was currently self-managing her pain, and he considered that she only required postural modifications as required.
Medicolegal Report of Mr Anthony Kam (Radiologist)
125Mr Kam was provided with ten of the plaintiff’s radiological scans from 22 April 2013 to 13 October 2021, and asked to comment on the same which he did in his report dated 4 January 2024.[97]
[97]        Exhibit D2, DCB 15-18.
126Mr Kam said that there was no information to indicate that the plaintiff had a pre-existing symptomatic spinal condition prior to the transport accident. He noted that it was unknown if the plaintiff had the syrinx prior to the accident, and that it may have been clinically asymptomatic until adulthood. He further wrote that:
In general, cord syrinx can be congenital/developmental in etiology but may also develop following trauma to the spinal cord. In view of the available details regarding the subject accident on 21 April 2013, the documented symptoms and signs of the claimant immediately following the accident, the lack of signs or symptoms of a spinal cord injury following the accident, the CT scan appearance from 22 April 2022 of a mild compression fracture at T1 without spinal canal disruption, I believe it is more likely than not that the claimant’s spinal cord syrinx is pre-existing in the lead-up to the subject accident.[98]
[98]Exhibit D2, DCB 16.
127Mr Kam thought that as a result of the accident the plaintiff likely suffered a “fracture of the T1 vertebral body with minimal vertebral height loss”.[99] He also thought that the fracture had completely healed.
[99]        Ibid.
128Regarding the syrinx, Mr Kam considered that irrespective of the accident, the plaintiff would likely still be suffering from the same syrinx and her lower back pain.

The Plaintiff Cross-Examined
129The plaintiff agreed that the fracture caused by the accident resulted in some problems for some period of months to a couple of years afterwards.
The Clinical Records 2015-2017
130The plaintiff accepted that since injury she has attend on the following GP clinics:
(a)   Watervale Medical Centre;
(b)   Taylors Hill Medical Centre;
(c)   Dr Chronas in private practice;
(d)   Mernda GP clinic; and
(e)   Lakes Boulevard Medical, since mid-2023.
131The plaintiff was directed to clinical notes from Taylors Hill Medical Centre. Mr McWilliams took the plaintiff to an entry dated 9 October 2015, when an x-ray of the plaintiff’s thoracic spine had been requested. Mr McWilliams put to the plaintiff that from then until 18 September 2020, that is, over a period of almost five years, she had seen various GPs but had not made any complaint about her back. The plaintiff said, “don't remember. I think I did, but I'm not sure.”[100]
[100]T 12, L 17-18.
132The clinical notes also revealed that the plaintiff had attended her GP:
(a)   five times in 2015 for various reasons, including a collapsing episode, and an ankle fracture that occurred when she was chasing after a basketball at school;
(b)   eight times in 2016 for ailments such as iron deficiency, stomach issues and flu like symptoms; and
(c)   in 2017 following a panic attack and anxiety, that coincided with what Mr McWilliams characterised as an unfortunate experience and a complaint to police.
133Mr McWilliams questioned the plaintiff about her background. Both of the plaintiff’s parents had dependency issues and she was effectively raised by her grandparents.
134Mr McWilliams directed the plaintiff to a letter of referral from her GP Dr Kyriacopoulos to psychologist, Ms Tracey Morris dated 9 September 2014. The referral read that the plaintiff “not seen her mother for 11 years and finds it stressful the fact her mother wants her back.”[101] The plaintiff acknowledged that her family problems were a source of stress and anxiety at that time, and throughout her teen years at high school. The plaintiff agreed that whilst she was still at school, she learned that her father was still using heroin, and that although he was not verbally abusive or violent towards her, he would sometimes smash things around the house.
[101]      Exhibit P7, PCB 50.
135Mr McWilliams took the plaintiff to psychiatrist Dr Hayman’s report dated 25 November 2019 in which it was recorded about her father that the plaintiff had “described a difficult, emotionally abusive relationship from him but no physical or sexual abuse. Since leaving home 1 ½ weeks ago, he has been sending abusive messages to her. Her grandmother is also now angry with her.”[102]
[102]      Exhibit P15, PCB 95.
136The plaintiff explained that her father had sent her abusive messages, because he did not like her partner at the time. She said she also had a big argument with her grandmother, with whom she was then living. She agreed that these occasions were a source of emotional concern and distress.
137On 7 May 2017, the plaintiff attended her GP. The clinical notes recorded that she had woken up that morning with panic symptoms lasting half an hour. The note also recorded “chest tightness, palpitations. Still feels a heaviness. Gets anxiety symptoms on and off. Going through lots of stress, problems at home.”[103] Mr McWilliams suggested to the plaintiff that she had not told her GP that she was experiencing stress and mental problems because of her back injury and the plaintiff said, “not during that, no.”[104]
[103]      Exhibit D3, DCB 37.
[104]      T 18, L 14.
The Clinical Records 2017-2020
138Mr McWilliams returned to the clinical notes. He suggested to the plaintiff that in 2017 she had attended her GP for various issues including tonsilitis, stomatitis and a leg bruise, however, there was an absence of clinical notes in relation to her back. The plaintiff accepted that if the notes were silent on the point then she probably didn’t mention any problems with her back.
139In 2018, the plaintiff attended her GP at Taylors Hill Medical Centre 10 times for various matters including anaemia, eczema, general cold symptoms and gynaecological issues but they did not record back pain. The plaintiff again accepted that if the notes were silent as to her back then she probably didn’t tell her GP about her back pain.
140In 2019, the plaintiff attended her GP 10 times but without a reference to problems with her back.
141Mr McWilliams suggested to the plaintiff that first reference to the plaintiff having problems with her back was on 18 September 2020, when she attended Dr Chronas. The note on that occasion recorded that the plaintiff had sustained a T1 fracture from a motor vehicle accident in 2013 and was “still getting pain in the same area.”[105]
[105]      Exhibit D3, DCB 51-52.
142Mr McWilliams asked the plaintiff if she agreed that from about 2015 to 2020 the problems with her back were not sufficient for her to see a doctor. The plaintiff said, “no. I accept that I obviously didn't tell the doctor but at the time, thinking back now, it was like it was a normal thing for me so I didn't bring it up.”[106]
[106]T 20, L 21-24.
143The plaintiff added that, “it just never – I don't know I can't speak for myself back then because I was so young, but now looking back it was like a normal thing. So when a new thing came up it was like, oh, that's a problem and that's a problem but the back pain was an issue but it was so ongoing that I just thought - like, no-one else told me otherwise. I just thought it was normal.”[107]
[107]T 20-21, L 26-2.
144Mr McWilliams suggested to the plaintiff that during the period of time her back pain was something that she could cope with. The plaintiff agreed that at some points she could cope with the pain, but at other times she could not. To Mr McWilliams suggestion that she was willing to attend doctors for a variety of ailments, but she had not done so for her back, and that this was because she was coping with her back, the plaintiff said, “not really, no.”[108]
[108]      T 21, L 1-2.
The Plaintiff’s Affidavits and Treatment
145Mr McWilliams next questioned the plaintiff about her descriptions of back pain. He asked the plaintiff about the back spasms that had she deposed to suffering.[109] The plaintiff said that she does not suffer spasms regularly and that she has probably had five of them since the accident with the last of them when she commenced working at the Magistrates’ Court at the end of 2022. The plaintiff described the severity of spasms as “10 out of 10” until it subsides and then reverts to her regular pain of about 4 or 5 out of 10.[110] The plaintiff said that on a regular and consistent basis she assessed her pain as between a 4 and a 6 out of 10.
[109]See exhibit P1, PCB 11 [6] & PCB 15 [14] & PCB 22 [17].
[110]T 22, L 19-23.
146The plaintiff was asked about the physiotherapy treatment she has received from Mr Christian. She explained that she had 5 free sessions with Mr Christian and that she has sought a referral from the TAC for further sessions, but had not heard back from it.
147The plaintiff was directed to Mr Christian’s report dated 17 November 2023, in which he wrote of the plaintiff’s pain that “the score on the VAS scale is currently sitting at 3-4/10 when severe, which has reduced since the start of treatment.”[111] The plaintiff did not think that she had said to that to Mr Christian and it was not an accurate description of her pain.
[111]Exhibit P11, PCB 71.
148Mr McWilliams asked the plaintiff whether she had told Mr Christian that she had obtained “significant relief” from her weeks of treatment.[112] The plaintiff said that she “had some relief” but did not remember describing it as “significant relief”.[113] However, she agreed that significant was an accurate description of the relief she experienced from physiotherapy. She said, “compared to all the pain I'd been going through, it was significant to me, yeah.”[114]
[112]      Ibid.
[113]      T 24, L 10-16.
[114]      T 24, L 18-20.
149The plaintiff agreed that her back pain had become worse in the last few years. When asked if there had been a reduction in her pain post-accident, but which in the last few years had increased, the plaintiff said, “I don't remember if there would have been a dip, like for my younger self, I don't actually remember what pain I had, what I went through, but speaking from the last, say, four to five years, it's been like unbearable pain.”[115]
[115]      T 24-25, L 21-1.
Pain Consequences
150The plaintiff agreed that her treatment with Mr Christian lessened her back pain, but she did not agree that it was to a level of 3-4 out of 10. The plaintiff said that her pain is most intense when she wakes of a morning, such that she is unable to move her back. However, as the day progresses the pain gradually stabilises to about a 4 out of 10.

151To Mr McWilliams repeated suggestion that her pain at its most severe is 3 to 4 out of 10, the plaintiff said, “well, sometimes. It's just - like, generally speaking after I did see him [Mr Christian], I'd say it was a 3/4 normally but it's like a game with my back. Like, I don't know when it's going to be like a 7 out of 10 or a 10 out of 10 or when it's a 3 or 4 out of 10. It's never the same. It always is just chopping and changing.”[116]
[116]      T 26, L 11-17.
152The plaintiff said that her sleep continues sometimes to be affected by her back pain, although she accepted that her sleep is not affected every night and there are sometimes nights where she manages a full night’s sleep. She said that the effect on her sleep depends on what she has experienced at work of a day, or the extent of pain she is in when she heads to bed of a night. She said that she could not experience a week of good sleep.
153Mr McWilliams referred the plaintiff to Mr Pai’s report dated 28 September 2021 in which he recorded that “she states that she is generally able to sleep well, and her sleep is not disturbed.”[117] The plaintiff said “well, when you mean disturbed, I don't - like, I hardly wake up in the middle of the night, it's just the actual going to sleep, getting in bed and then the waking up in the morning.”[118] The plaintiff said that once she gets to sleep, most nights she can manage a full night of sleep. Usually, she retires at 11:30 pm and wakes at 7:30 am.
[117]      Exhibit D1, DCB 8.
[118]      T 27, L 24-28.
154The plaintiff said she worked full-time at the Heidelberg Magistrates’ Court. The plaintiff said that she is halfway through her criminology degree at Deakin University. She said that once her degree is concluded that she would “love to stay in the Court system.”[119] She said that she enjoys her job and it was where she saw her future. She has a sit/stand desk and she can go and stretch on a balcony during the day as needed.
[119]      T 28, L 20.
155Mr McWilliams addressed the plaintiff’s social activities. He referred the plaintiff to her first affidavit in which she deposed:
My social life has been restricted because of my back injury. I avoid going clubbing with my friends as I know I will not be able to dance or stand for too long. The last time I went out with friends was October 2019. We went to a lounge in Toorak. There was not any seating, everyone was standing and dancing. I had to leave early because of my back pain. I regularly knock back invitations to go out with my girlfriend Chrissie because I know my back injury will limit my ability to do much.[120]
[120] Exhibit P1, PCB 14 [11].
156The plaintiff is engaged and lives with her fiancé and they go out for dinner, but not to the cinema because she cannot sit comfortably for long periods of time, but sometimes she can manage at least two hours. She said she will sometimes help her fiancé wash his work car, something he does every week.
157The plaintiff said that she and her fiancé have bought their own home. She agreed with Mr McWilliams that prior to the purchase they were saving their pennies. To Mr McWilliams suggestion that this would have necessarily restricted their social activity, the plaintiff said:
Sometimes, not - I mean, we didn't go out much either way before that or after that anyway, so - - - But certainly another influence or another driver for you not going out is the fact that you wanted to save your pennies to buy a place? ---I mean, we did get take-away a lot so that didn't really stop me…[121]
[121]T 30, L 22-27.
158Mr McWilliams referred the plaintiff to Professor Teddy’s report of June 2023, in which he said:
Current Status

She lives with her partner and his family. He works for a transport company. Her days are fully occupied being busy at work and at the weekend she simply stays at home as they are saving to buy a house…[122]
[122]Exhibit P19, PCB 144.
159The plaintiff agreed that she told Professor Teddy that she was staying home to save money. She agreed that maintaining mortgage repayments, in light of interest rates, concerned her. However, she said, “we also don’t go out because of my back pain.”[123]
[123]T 32, L 9-10.
160Mr McWilliams suggested to the plaintiff that even if she did not suffer from back pain, the fact that she was saving money was a reason for her not to go out and socialise. The plaintiff said, “a little bit. I mean, if I didn't have the back pain, I know I'd want to go out to more places but we don't have to spend money, we can just go for a drive or go to a waterfall and things like that, so…[124]”
[124] T 32, L 18-22.
161Mr McWilliams referred to the future treatment of gym exercises and Pilates Mr Christian recommended. The plaintiff agreed that Mr Christian had given her exercises, but she said that the first she had heard of a recommendation to undertake Pilates was on reading his report, and she said she “wouldn’t even know where” she could do Pilates.[125]
[125]T 33, L 19-20.
162In 2022, the plaintiff went on a holiday to Hamilton Island with her fiancé’s family. She said that the flight there was the first time she had been on a plane and it was very uncomfortable. When she arrived she had to lie in bed and could not participate in jet skiing and jet boating. She said that she was scared of inflicting further damage to her back and she remained anxious of things whizzing around. She said that as a result of the accident she remained a nervous passenger whenever she was in a vehicle, but she was “ok” if her fiancé was driving.
163Mr McWilliams suggested that when the plaintiff arrived in Hamilton Island she lay down because her back was a bit sore, but after that she got up and got involved in the activities that she felt she could undertake physically and emotionally. The plaintiff agreed. She said she was on Hamilton Island for about 5 days to a week.
164The plaintiff agreed that sometimes she will attend the football with her partner, who had purchased her a Carlton membership. She said that she could not stay for a whole game and needs to get up and stand before taking her seat again and that she might have to go through this routine four times during the course of a game not including half time and the quarter time intervals. Nonetheless, despite this, she agreed that she could stay for the majority of a match.

The Plaintiff Re-Examined
165The plaintiff said that she had never been rid of her back problem. She did not recall any doctor in 2013 or 2014 telling her to have ongoing treatment. She said that she did not have any understanding of what treatment was available to her at that time of her life. She would attend GP appointments with her grandmother but that her father had no involvement in assisting her to obtain treatment. She said that her grandfather would drive her to physiotherapy appointments, but her grandparents had separated a couple of years after the accident. When he was out of the picture, she said that there was no one to take her to appointments and she was taking the bus to school.
166The plaintiff said that from 2015 to 2020, she continued to suffer pain and was restricted in what she could do because of pain. She said that she was restricted at school, being unable to sit for a long period of time in one position, and she said she would always need to crack her back. She was unable to resume sports.
167The plaintiff accepted her need to be financially sensible, but that there were still restrictions on what she could do because of her back and that was not related to or dependent on observing fiscal rectitude. She said that other than the reference to Pilates, there was no treatment that she was aware any doctor had recommended to her that she had declined.

Defendant Submissions
Diagnoses
168Mr McWilliams identified two available diagnoses as a result of the transport accident with the first being the syrinx, and the second, that of facet joint arthropathy or facet joint pain syndrome. Mr McWilliams submitted that there is insufficient evidence to draw a causal link between the motor vehicle accident and the syrinx. Secondly, if there was a causal link, there is insufficient evidence to establish a causal link between it and a reporting of pain to doctors.
169As far as facet joint arthropathy or facet joint pain syndrome is concerned, Mr McWilliams submitted the radiology suggests that the T1 compression fracture sustained as a result of the accident has resolved.   He submitted that the plaintiff had physiologically made a good recovery and there is no organic basis to explain the ongoing pain that the plaintiff reports she is currently experiencing. As a result, Mr McWilliams argued that the plaintiff’s claim should be dismissed.
Treatment
170Separately, Mr McWilliams submitted that the plaintiff’s consequences fall below the requisite threshold to satisfy the test for seriousness. He described the plaintiff as a young woman who had experienced a rough start to life and suffered an orthopaedic injury from the accident. There was no suggestion that any operative management was required for dealing with it, and within a couple of years of the accident, she had reached a point at which she was able to live with her back problems.
171Mr McWilliams referred to the evidence of the plaintiff’s regular attendances on GPs for a variety of problems, however, clinical notes did not record the reporting of any issue with her back for a period of approximately five years and she accepted in cross-examination that if there was no reference to any back problem in the notes over the years of her attendances on her doctors, then she probably didn’t make complaint about it.
172Mr McWilliams contended that if the plaintiff’s back pain was bad, then it is reasonable to think that she would have made a complaint about it even as a teenager.
173Mr McWilliams submitted that the state of the evidence was uncertain as to the frequency with which the plaintiff needs to consume over-the-counter medication for her back pain. The plaintiff’s evidence was not that she was taking the maximum daily dose of Panadol and Nurofen or Panadol Osteo, and she accepted that physiotherapy treatment from Mr Christian had reduced her pain such that at its severest, it is between a 3 and 4 out of 10. Mr McWilliams argued that it would be difficult to assess such pain as satisfying the test for seriousness.
The Syrinx
174Mr McWilliams returned to the issue of diagnoses. He submitted that all of the doctors agreed that it was unknown how long the syrinx had been present. He referred to Professor Teddy’s reporting in which he identified that the syrinx was located nearby to the plaintiff’s T1 fracture and “in the absence of any other such precipitating factor, the position of the syrinx would suggest that it is of post traumatic origin… there is probable post traumatic syringomyelia…it is uncertain whether her pain relates in any way to the syrinx cavity. The cord is not expanded the dura is not stretched. She has no radiation of pain around her trunk.”[126]
[126]Exhibit P11, PCB 147-148.
175Mr McWilliams noted that there is a tension in the medical evidence whether the syrinx was post traumatic, noting Dr Kam’s view that it was not post traumatic but constitutional. In any event, Mr McWilliams said the Commission’s submission was that the plaintiff’s consequences, no matter the aetiology of the syrinx, do not meet the test at law for the grant of a serious injury certificate.
Consequences
176Mr McWilliams did not seek to impugn the plaintiff’s credit.
177Mr McWilliams pointed out that contrary to the plaintiff’s evidence in re-examination, she had refused treatment recommended by Dr O’Conghaile, by way of radiofrequency denervation and medial branch blocks.
178Mr McWilliams accepted that it was appropriate to take the plaintiff’s youth into account and the possibility that she will have pain and restriction for a long period of time. He acknowledged the indication in the medical evidence that suggests that the plaintiff will have ongoing problems. He referred to the account by Professor Teddy:
Her gait was normal She had a full range of pain free neck movements and a non-tender spine. She could bend to touch her ankles while tilt rotation and extension of the lumbar spine appeared relatively full. She had no muscle wasting. Tone and power were normal in all four limbs. Straight leg raising was 90 degrees bilaterally There were no abnormalities of sensation in any of her limbs or around her trunk. Both abdominal reflexes were absent. There was probably some reduction of the left triceps jerk and both triceps jerks were somewhat reduced compared with other reflexes which were symmetric and quiet. Both plantar responses were down-going.[127]
[127]Exhibit P19, PCB 144.
179Mr McWilliams submitted that I ought take into account the plaintiff’s evidence in cross-examination of the effect of pain on her sleep, which was that once she is asleep she manages a good night’s sleep for 7.5 hours. Mr McWilliams compared this with her affidavit evidence and the affidavit evidence of her partner, who deposed:
She has a lot of difficulty getting a good night’s sleep. Her sleep is often disrupted throughout the night due to back pain and an inability to get into a comfortable position.[128]
[128]      Exhibit P3, PCB 28.
180Mr McWilliams submitted that I ought place little weight on this account of the plaintiff’s sleep, in light of the plaintiff’s own account.
181Mr McWilliams refereed to the opinion by Dr Barmare,[129] that the plaintiff has a good prognosis.
[129]Exhibit P18, PCB 137.
182Accordingly, Mr McWilliams submitted that despite the likelihood of ongoing pain, it is not and nor is it likely to be a case of continuing severe pain.
183Mr McWilliams pointed out that the plaintiff is able to discharge her duties at the Heidelberg Magistrates’ Court and was not impeded in doing so because of her back.
184As to the plaintiff’s social life, Mr McWilliams pointed out that the plaintiff had conceded that she tends not to go out because she is saving. Mr McWilliams also referred to the plaintiff’s evidence about the extent that she involved herself in activities when on holiday in Hamilton Island and her evidence that even if she had not been afflicted by back pain, she would not have participated in certain adventurous activities in any event.
185Mr McWilliams also submitted that little probative weight should be placed on the affidavit of the former employer, Anastasia Kikianis.
186Mr McWilliams submitted that in relation to the plaintiff she has now found herself in a work setting which is very accommodating.
187Mr McWilliams also submitted as far as the interference with activities of daily living is concerned, the plaintiff agreed that she assists her partner in cleaning his work car and said, “’Look, I sometimes do and he cleans it every weekend, and I sometimes go and various other things.”[130]
[130]      T 58, L 29-31, referencing T 30, L 6-9.
188Mr McWilliams submitted that the plaintiff’s evidence reveals a capacity and that she has not been “rendered absolutely incapable of doing something like washing a car. If that's the case, why ought she be rendered incapable of undertaking the mundane activities such as housework or cooking… sure, there's some impediment in her ability to undertake activities of daily living but nothing beyond the realm of certainly many in society.”[131]
[131]      T 59, L 2-12.
189Mr McWilliams contended that the plaintiff manages and lives with her pain. He submitted that even if I accepted the plaintiff’s affidavit evidence about the way in which she is restricted in the activities of daily living for example, that she struggles to assist with housework or to stand at the sink and do the dishes for too long, the accumulation of those factors do not meet the test. Mr McWilliams submitted that any ongoing impediment to the plaintiff’s ability to undertake daily activities was not beyond the realm of what is experienced by many people in society.
190Mr McWilliams submitted that there is a lack of specificity of the extent of the consumption of over the counter pain medications or their frequency.

Plaintiff Submissions
191Mr Tobin submitted that the doctors had a positive impression of the plaintiff. He submitted that the plaintiff was frank in her exchanges with Mr McWilliams. Mr Tobin pointed out that the plaintiff had made concessions and I could comfortably approach her evidence with confidence that there had been no embellishment on her part.
192Mr Tobin observed that despite the plaintiff’s unfortunate background, she was rightly, but quietly, proud of what she has achieved despite the odds and of her very responsible position within the justice system.
193Mr Tobin referred to the evidence that the plaintiff’s employer had taken steps to help her in her workplace. Ms Paterson assessed the plaintiff as a person of some quality.
194Mr Tobin argued that given the position occupied by Ms Paterson, I could be confident that she would not have sworn an affidavit in support of the plaintiff if she was not confident of the plaintiff’s credibility. Ms Paterson’s affidavit of her observations provided some corroboration of the ongoing implications of the plaintiff’s back injury.
Consequences
195Mr Tobin referred to the plaintiff’s youthfulness when the accident occurred. Before it occurred, she had pursued sporting activities and was an actively engaged youngster. Mr Tobin submitted that in the assessment of seriousness, I should take into account the plaintiff’s age and the long-term nature her condition has had on her and will likely have into the future. Mr Tobin contended that because of what has proved to be a chronic back problem, the plaintiff will in all probability, experience a range of additional physical stressors associated with the rearing of children, should she wish to become a mother.
196Addressing the extent of the plaintiff’s treatment, Mr Tobin relied on the medical records that the plaintiff was making complaints of back pain following the accident and was referred for radiology in October 2015. Mr Tobin contended that the fact the plaintiff had not pursued a range of treatments from 2015 until 2020, was understandable in the circumstances she faced. First, she had a back complaint that she was living with for some time, and that the doctors had suggested should resolve with time. Second, the plaintiff has proved to be a person of some resilience and not apt to complain. Third, there was no suggestion of any treatment that the plaintiff should have undertaken at that time that she did not. Furthermore, Mr Tobin contended that in the context, where there was no adult assisting the plaintiff to explore treatment options, the plaintiff continued on in life and at school as best she could, and has since obtained and managed to maintain employment.
197Mr Tobin submitted that the plaintiff’s credibility is of such a calibre that I could accept her account and be satisfied that she is suffering an impairment to the function of her back, and although in Mr Barmare’s opinion, a lot of physiotherapy will improve it, the impaired function suffered for the past decade or more, will follow the plaintiff into her future life.
198The plaintiff’s evidence should be believed that she wakes in the morning with pain, and is also in pain, when she goes to bed at night.

199Mr Tobin referred to the report by Mr Christian that the plaintiff’s pain was on the VAS scale “8/10 when severe, 5/10 most of the time.”[132] Mr Tobin submitted that even if the plaintiff’s pain was at a level of 3/10 most of the time, on a long term and consistent basis, I could be satisfied that this meets the test for seriousness under section 93 of the Act.
[132] Exhibit P11, PCB 71.

Analysis and Findings
200I find that on the balance of probabilities the transport accident resulted in an injury to the function of the plaintiff’s spine, by way of a back injury by way a T1 compression fracture and resulting facet joint arthropathy and or facet joint pain syndrome with the aetiology of the injuries more persuasively transport accident related than would be, for example, pre-existing degeneration given the plaintiff’s age and pre injury health. Although as the parties put it, the presence of the syrinx and its cause would neither add nor detract from the application, if it had been necessary, on balance, I would not have been satisfied that the transport accident caused it. It is the former injuries, and not the syrinx, that is chronologically better associated with accounts of back pain from the area of the shoulder blades to the lower back.
201I am satisfied that the plaintiff was a witness of credit and that she gave an honest account of her circumstances since the transport accident approximately 11 years ago.
202I have remained conscious that in Haden Engineering Pty Ltd v McKinnon,[133] Maxwell P set out various principles to which recourse may be had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances and these may include:
·        disturbed or interrupted sleep;
·        mobility;
·        cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·        capacity for self-care and self-management;
·        performance of household and family duties;
·        recreational activities;
·        social activities;
·        sexual life; and
·        enjoyment of life.[134]
[133](2010) 21 VR 1 (“Haden”).
[134]Ibid [16].
203Under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost… may be informed, to an extent, by what is retained.’[135]
[135]Ibid (citations omitted).
204The observations expressed in Haden are not prescriptive or exhaustive indicia, but are helpful in concentrating attention on the particular consequences suffered by an applicant.
205I am satisfied that there are many aspects of the plaintiff’s daily life that are impacted in some manner and form for the worse since the transport accident and because of it, and the changes wrought by it, extend from the necessary but relatively mundane activities of daily life, such as keeping a house clean, through to the more personal, and involving particular care required when dressing. I regard these as significant.
206The plaintiff’s evidence, for example, included at paragraph 10 of her affidavit, that “I try to assist with the housework, but I do struggle. For example, I struggle with the bed linen… I try and help with the dishes, but cannot stand at the sink for too long before I need to rest or sit down. We have an upright washing machine so I am able to cope with my washing; however, I use a clothes hoist in my room for drying my washing. … Every night I have to crack my back. In the mornings when I wake up, my back is always stiff and sore. When I brush my teeth I cannot lean over the sink, so I have to stand upright and I only lean over at the very end to spit. I never take a long shower because standing for too long hurts my back. I always sit to dress myself and find putting on shoes, socks and cutting toenails [is] difficult.”[136]
[136]      Exhibit P1, PCB 13.
207I accept the plaintiff’s pain is as she described it in answer to Mr McWilliams and related at paragraph 145 of these reasons.
208I have also taken into account and accept the plaintiff’s description of her social life generally. In her first affidavit she deposed that:
My social life has been restricted because of my back injury. I avoid going clubbing with my friends as I know I will not be able to dance or stand for too long. The last time I went out with friends was October 2019. We went to a lounge in Toorak. There was not any seating, everyone was standing and dancing. I had to leave early because of my back pain. I regularly knock back invitations to go out with my girlfriend Chrissie because I know my back injury will limit my ability to do much.[137]
[137] Exhibit P1, PCB 14 [11].
209The plaintiff’s evidence in cross-examination was that she and her fiancé go out for dinner and planned trips to the movies can be upended because she cannot sit comfortably for long periods of time, although sometimes she can manage at least two hours. There is sufficient reason to be satisfied that these types of limitations will accompany the plaintiff throughout her life. I do not regard the plaintiff’s evidence of the provision by her of some assistance to her partner on some occasions, when he is cleaning his car, as a cogent basis to conclude that her stated limitations and accompanying pain when performing various domestic tasks and attending to her personal needs, should be judged with scepticism.
210I am not willing to treat the plaintiff’s eschewing of social activities as due to the burden of house repayments. Although the plaintiff accepted that she and her fiancé needed to be penny wise, the effects of the plaintiff’s ongoing injury to her recreational and social activities was pithily expressed when in answer to Mr McWilliams, she said “a little bit. I mean, if I didn't have the back pain, I know I'd want to go out to more places but we don't have to spend money, we can just go for a drive or go to a waterfall and things like that, so…”[138]
[138]      T 32, L 18-22.
211The plaintiff deposed that her intimate life with her partner has been adversely affected because of her back. I have taken that consequence into consideration and it is significant.
212As to the plaintiff’s sleep, she fairly explained that the position now is that once asleep, she will be undisturbed, but nonetheless, the pain in her back delays her ability to fall asleep and when she does wake her pain is present.
213In her first two affidavits, the plaintiff described in some detail the effects from the transport accident by way of the loss of her ability to play soccer which she had pursued at school and that she said she loved, and but for her pain, she had hoped to continue, as well as weight gain due to her functional inhibitions and capacity to exercise.
214The plaintiff’s evidence on the consequences to her everyday life was not the subject of any real challenge. As far as the defendant’s answer to the plaintiff’s application is concerned, I understand its overarching submission is that even if each of these consequential effects are due to the transport accident, nonetheless, they should not be assessed as meeting the minimum standard sufficient for the plaintiff to have discharged her burden of proof.
215I recognise that there is an undoubted difficulty presented in the undertaking of the exercise required by the Court and that is in making a measurable, that is to say, an appreciable understanding of the comparison between what the plaintiff was like before the transport and what she is like afterwards, given over a decade has passed from the accident.
216Although the plaintiff is not prescribed medications, she needs daily pain killers and I am satisfied that regular ingestion of the same will continue. They are required to assist the plaintiff through her working day. The need for over the counter pain relief is corroborated by the affidavit evidence of the plaintiff’s Manager, Carolyn Paterson, who deposed that she has “frequently observed” the plaintiff “taking medication throughout the day.”[139] The need for long term use of paracetamol or ibuprofen for a young person is not a minor consideration.
[139] Exhibit P4, PCB 31 [6].
217The plaintiff accepted the lack of attendances complaining of her back condition in the clinical records to which she was taken, but her explanation for the same rings true in light of her youthfulness in the years that followed the transport accident and when some allowance is made for the discordant and peripatetic family life she was navigating. Asked why, if her pain was bad she would attend a doctor for lesser reasons but not refer to her back, the plaintiff’s response that she was unaware of treatment modalities being proposed for her, and that her level of pain was a fact of life since the transport accident, struck me as genuine.
218That the plaintiff has applied herself and displayed a fortitude in advancing and bettering herself is credit worthy. Although she works, she continues to labour from the ongoing effects from her transport injury and she has been fortunate to be accommodated in going about her work by ergonomic assistance but this may not always prove true. The plaintiff goes to work in pain and returns home in pain. That is a significant consideration.
219At the time of the hearing of this application, the many significant consequences I have mentioned have been endured by the plaintiff for more than a decade, and I am satisfied this will continue for the many decades remaining in her life. That is a view held by Professor Teddy and, it is one that I accept. I am satisfied that the length of time from which the plaintiff might suffer from pain and need to navigate the particular consequences of her injury is a relevant consideration in determining whether, on the whole of the evidence, those consequences could collectively be described as very considerable.
220While it is important to analyse ‘what remains’ so far as the plaintiff’s incapacity is concerned, that analysis must be seen in the context of what has been, and will be, lost. Synthesising all of these matters, I am persuaded that the plaintiff’s back injury meets the very considerable test.
221Put shortly, in the circumstances of this application, the various consequences I have found that are suffered by plaintiff are, of themselves, enough to mandate a conclusion that she has suffered a serious injury. Even if each consequence when looked at individually may only fairly be described as ‘significant’, when considered collectively, and bearing in mind both the length of time that the plaintiff will suffer from her injury and the importance to the plaintiff of each of the losses identified, I am satisfied the plaintiff has discharged her burden and that her injury is a long term serious impairment to her spine and that the injury is very considerable.
222I will grant the application and hear the parties on the question of costs.

[2024] VCC 517

29 April 2024