Saibura v TAC
[2025] VCC 551
•21 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-04674
| ROSEMARY SAIBURA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2025 | |
DATE OF JUDGMENT: | 21 May 2025 | |
CASE MAY BE CITED AS: | Saibura v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 551 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to lumbar spine – range case – pre-existing back pain
Legislation Cited: Transport Accident Act1986, s93(17)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC with Ms E Anderson | Arnold Thomas & Becker |
| For the Defendant | Mr A Moulds KC with Ms K Manning | Hall & Wilcox |
HER HONOUR:
1Ms Rosemary Saibura is a seventy-three-year-old woman who lives alone. She is in receipt of the Age Pension, having previously received the Disability Support Pension. She has had a variety of physical and mental health issues over the years. This includes back pain for which she has had treatment, including medication, injections and radiological investigation. On 23 April 2018, she was on Melbourne tram route 58 when the tram made a fast turn, causing her to be thrown from her seat and to hit the floor. Her back pain has been worse since this time.
2Ms Saibura made her application pursuant to s93(17) of the Transport Accident Act 1986 (Vic) (“the Act”) for a determination that the pain and suffering consequences from the lumbar spine injury were “at least ‘very considerable’” and “more than ‘significant’ or ‘marked’.”[1] Counsel for Ms Saibura abandoned her application for a determination that she had severe long-term mental or behavioural disorder at the hearing.
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
3Counsel for the Transport Accident Commission (“TAC”) conceded that Ms Saibura had a compensable back injury and that Ms Saibura sustained an aggravation of a pre-existing lumbar spine injury in the transport accident.
4Both counsel for the TAC and counsel for Ms Saibura agreed that the issue to be resolved in this case was whether the pain and suffering consequences of the injury could fairly be described as being “at least very considerable” and “more than ‘significant’ or ‘marked’”. That is, this was a ‘range’ case.
5The legal principles to be applied in this case were not in dispute.
6Ms Saibura gave both affidavit evidence and was cross-examined at the hearing. The parties otherwise tendered various medical reports and other material from their respective Court Books.
7I have considered Ms Saibura’s evidence at the hearing and the evidence tendered by parties. While I do not propose to refer to all the evidence, I shall refer to it to the extent necessary to explain my reasons.
8For the reasons set out below, I find that Ms Saibura is not entitled to leave to proceed with a claim for damages for her pain and suffering arising from the injury to her lumbar spine.
Relevant background matters
9Ms Saibura swore three affidavits in support of her application, on 25 August 2022,[2] 3 July 2023[3] and 3 April 2025.[4]
[2] Amended Plaintiff’s Court Book (“PCB”) 5-12
[3] PCB 18-20
[4] PCB 21-25
10In summary, she said the following in her affidavit sworn on 25 August 2022:
(a) she had suffered from various mental health issues over the years;
(b) she had been diagnosed with diabetes and peripheral neuropathy some years ago, as a result of which she had ongoing pain in her feet and hands;
(c) she had suffered from intermittent back pain over the years, which would come and go. She took a variety of medications for this, including tramadol as required. She also took tramadol for the neuropathy at times;
(d) prior to the accident, she was taking Osteomol, meloxicam, gabapentin and Metformin;
(e) she also suffered from sciatica at the time of her back pain;
(f) she had had two injections for her back pain, one in January 2013 and one in February 2014;
(g) at the time of her transport accident, she had back pain from time to time, which she was able to manage;
(h) following her transport accident, she consulted Dr Sanganakal Reddy and was prescribed meloxicam and tramadol. She was also referred for an x-ray of her lumbar spine, which she had on 24 April 2018, and an MRI scan, which she had on 6 July 2018. Dr Reddy prescribed Targin in addition to her other medication in November 2018. She had a CT scan on 9 August 2019 and a further MRI scan on 21 October 2019;
(i) she had osteopathy and physiotherapy treatment for her injury;
(j) she was referred to Dr Frank Buchanan, specialist anaesthetist, medical acupuncturist and interventional pain management physician, in October 2019. He performed branch blocks and injections on 14 October 2020 and 17 March 2021. The injections helped her back pain for a short period before the pain returned. She underwent radiofrequency neurotomy on 17 June 2022, from which she derived some benefit, although still had referred pain in her left leg and hip;
(k) At the time, she took Osteomol, 600 milligrams (two tablets three times a day); tramadol, 200 milligrams (daily) and gabapentin, 200 milligrams (nightly) for her back pain;
(l) since about the early 2000s, she has been making and selling greeting cards, which she sells at markets, gift shops and pharmacies around Melbourne. She is a registered hobbyist and has declared her income to Centrelink. Since the transport accident, she has found it harder to make and produce cards;
(m) since the transport accident:
(i)she had constant pain and discomfort in her lower back, which radiated near her hips and down her legs, particularly her left leg. The pain on average was about a 7-8/10;
(ii)standing and sitting for long periods increased her lower back pain;
(iii)she had difficulty bending and twisting because of her lower back pain;
(iv)her sleep had been impacted by lower back pain. She struggled to get comfortable and fall asleep at night because of the pain. She used to be a good sleeper;
(v)the cold weather made her lower back pain worse;
(vi)her back pain was worse in the morning. It would take her a while to get moving in the morning as a result;
(vii)her back pain made it hard for her to do her household chores, such as changing the bed linen. Tasks that require pushing and pulling, such as vacuuming, were also difficult because of the back pain. She needed to take breaks when she vacuumed so she could manage her pain;
(viii)she no longer cooked like she used to, as standing in the kitchen for long periods aggravated her back pain. Bending over to wash dishes or lifting and carrying heavier pots and pans also increased her pain, so she preferred not to cook. She mainly relied on pre-made meals;
(ix)she found it difficult to catch public transport. Walking up the steps of trams was hard and her back was unstable when she sat on a tram; and
(x)she continued to do her weekly shopping, but often took an additional tramadol tablet, because lifting bags and baskets and pushing trolleys made her lower back pain worse.
11In her affidavit sworn 3 July 2023 she said:
(a) she suffered from lower back pain, extending down her left hip and left leg. The pain was there most of the time. Over the past few weeks it had been bad, particularly during cold weather;
(b) the benefits of the radiofrequency neurotomy of 17 June 2022 wore off by early 2023;
(c) Dr Buchanan had sought approval for a further radiofrequency neurotomy procedure from the TAC; and
(d) the length and quality of her sleep continued to be impacted because she was constantly tossing and turning in bed trying to find a comfortable position.
12In her affidavit sworn 3 April 2025, she said:
(a) in 2023, Dr Buchanan recommended that she be assessed for participation in a pain management program;
(b) in November 2023, she was diagnosed with Bell’s Palsy, from which she made a full recovery;
(c) in February 2024, she was assessed for a multidisciplinary program at the Brunswick Private Hospital. She understood that she was assessed as being unsuitable for that program;
(d) Dr Buchanan sought approval from the TAC for another radiofrequency procedure in September 2024. This was denied in January 2025;
(e) she takes the following medication for her pain:
(i)Norgesic twice a day, although this had reduced from three times a day because the TAC stopped funding the medication;
(ii)tramadol, 200 milligrams each morning and occasionally a second tramadol later in the day when her back pain flares up;
(iii)gabapentin, 200 milligrams at night; and
(iv)magnesium at night to relieve the cramping in her left leg;
(f) the back pain is not constant, but comes on frequently, particularly when she walks, stands, bends, twists, lifts or sits for too long;
(g) she can only do small shops, as she struggles to lift and carry the bags; and
(h) the back pain has never gone back to the level that it was before the transport accident.
13At the hearing, Ms Saibura said:
(a) she had back pain and left-sided sciatic pain in 2012 and 2013. She was treated with epidural injections for this pain.[5] This provided her with relief for many months before the pain returned.[6] She sometimes had pain on the right side as well;[7]
[5]Transcript (“T”) 10, Line (“L”) 22 and T11, L1-5
[6]T11, L6-9
[7] T11, L11
(b) she has peripheral neuropathy in her feet and hands that is aggravated when she walks or stands for long periods. If she does not take her medication it “can be just absolutely hell”.[8] She experiences a sensation in her feet that is much worse than tingling and burning;[9]
[8] T17, L29
[9] T15 ꟷ T18
(c) she took tramadol prior to the transport accident for back pain.[10] She had also been prescribed gabapentin, which she had thought was for her back pain, but later discovered it was for her neuropathy. Dr Reddy (now deceased) had told her to “just take what you want, what you need, as long as you are not in pain”.[11] She was taking a lot of tramadol and was concerned she was becoming addicted to it, so she reduced the dosage. She believes she started taking more tramadol after the accident;[12]
[10] T20, L8
[11] T19, L4-6
[12] T24, L10-17
(d) she had trouble sleeping in 2012 and 2013.[13] She has not often had a good sleeping routine. There was a time that she took Valium to help her sleep.[14] She has experienced cramping on some nights since the accident. She did not have these symptoms prior to the accident;[15]
[13] T21, L11
[14] T23, L9
[15] T59, L26 ꟷ T60, L5
(e) she could shower and dress herself before the accident and still could after the accident. She has difficulty getting in and out of the bathtub (which the shower recess was over) after the accident, which was not a problem before the accident.[16] She has had two baths since the accident;[17]
[16] T59, L3-22
[17] T58, L31 ꟷ T59, L2
(f) before the accident, she could cook breakfast, make a sandwich for lunch and then cook something for dinner most days.[18] She would cook soups from scratch and share them with neighbours.[19] She now cooks noodle cups, packet soups and pre-packed salads for her main meals and mainly toast and coffee for breakfast. She bought appliances to make cooking easier before the accident, such as a pan that was not heavy that she could put into the oven.[20] However, she also said she had gone without an oven for a couple of years before the accident because she had switched off her oven due to a gas leak.[21] She had not used her new oven.[22] She does not worry about food anymore, as it does not matter to her.[23] She does less cooking now because she does not want to use the new oven. She uses the kettle, the toaster and an electric frying pan;[24]
[18] T29, L9-15
[19] T29, L19-22
[20] T32, L13-14
[21] T27, L10-14
[22] T28, L20-21
[23] T30, L14-15
[24] T58, L21-26
(g) she said she did not have a washing machine before the accident, although when she did have one previously, it was a second-hand one that would break down, leading her to go and buy a new one.[25] She got a top-loader washing machine after the accident.[26] She can wash a load of clothes. She tries to do a little bit at a time so that it is not too difficult for her. She carries the wet clothes over her arm to the clothes horse. She dries her clothes indoors;[27]
[25] T30, L25-30
[26] T30, L25 ꟷ T31, L6
[27] T31, L10-21
(h) she does not do any ironing, although she has an iron. She was always too busy to do the ironing and has not found she has needed to use the iron since the accident;[28]
[28] T32, L2-8
(i) she does not mop, preferring to use antibacterial wipes to give her an opportunity to do bending exercises. She crouches down to do this;[29]
[29] T33, L18-27
(j) she sweeps;[30]
[30] T33, L28
(k) she does not vacuum often, as her vacuum cleaner heats up after a short period of using it.[31] She has purchased a robot vacuum cleaner, but has not used it, as she does not know how to set it up;
[31] T33, L28-30
(l) she tends to her pot plants;[32]
[32] T34, L16-17
(m) she continues to shop for herself. She chooses to shop in Moonee Ponds, as her local shopping centre is not clean.[33] She catches public transport to and from the shops.[34] It is more difficult for her to do her grocery shopping than it was prior to her accident. She has almost the same pain when she does a short trip over to the next suburb as when she has been on her feet all day, and feels like she is crippled;[35]
[33] T37, L2-3
[34] T37, L12-13
[35] T57, L4-7
(n) she changes the sheets when she needs to. Recently, it took her over an hour to make the bed.[36] She finds it is uncomfortable to make the bed because of her back pain. Before the accident she was able to make the bed quite easily;[37]
[36] T33, L11-18
[37] T56, L13-20
(o) she could sit for longer periods before her accident than she is able to since her accident.[38] If she is sitting, the pain will gradually “just happen”;[39]
(p) she can walk for more than an hour, although sometimes with great difficulty because of her feet and back.[40] If she has been out selling cards and has been on her feet all day, by the time she gets home she is “crippled”.[41] She said that, if she is in pain, she just keeps going. If she is in too much pain, she will stop. The pain could be a 7-8/10. Prior to the transport accident, she did not experience that level of pain while selling cards to people, and would not be in that much pain that she would have to stop and go home;[42]
(q) she feels like she is missing out because of her pain. Things had been starting to pick up a bit and look a bit brighter in her life prior to the accident;[43]
(r) prior to the accident, she always pushed herself. She always had pain in her feet. Just before the accident happened she did not have any serious back problems;[44]
(s) in the two years or so before the accident, she would get a sore back after being on her feet all day delivering cards;[45]
(t) when asked about her standing tolerance, she described having to wait for two hours at a bus stop recently before getting on the bus. She then took the bus to the DFO at Essendon, caught the bus back to the last stop of the Melbourne tram route 58 in Pascoe Vale South, and then caught the tram home;[46]
(u) she walks up hill sometimes. It is difficult. She starts puffing and has to stop and have a break;[47]
(v) she tries to make as many cards as she can. She makes about the same amount as before the accident.[48] She travels by tram and bus to and from Airport West to pick up bigger envelopes and cards.[49] She travels to Sandringham, Blackrock, Fairfield, Middle Brighton, Brunswick West, Moonee Ponds and Essendon on public transport to deliver the cards.[50] She delivers cards once a week, and sometimes twice a week.[51] It used to be twice a week, but now it is more likely to be once a week because it takes her longer to get going in the mornings after she takes Norgesic, tramadol and medication for other conditions;[52]
(w) when asked what level of pain she was experiencing after having sat in the witness box for nearly two hours, she said the pain would gradually happen after she started to walk.[53] She then stood up and said that she had done that because it was uncomfortable, saying she had pain around the hip at that moment, at the top of the leg, and needed to stretch;[54] and
(x) her life was livelier prior to the accident. The pain is much worse now than since the accident.[55]
[38] T38, L20-21
[39] T58, 28-30
[40] T39, L25-26
[41] T39, L27-30
[42] T53, L30 ꟷ T54, L18
[43] T55, L14-20
[44] T40, L4-9
[45] T40, L30-31
[46] T42, L7-28
[47] T42, L30-31
[48] T49, L30 ꟷ T50, L7
[49] T47, L4-28
[50] T50, L11-14 and T51, L20-22
[51] T52, L1-2
[52] T52, L2-3 and T53, L6-8
[53] T54, L28-30
[54] T55, L4-8
[55] T60, L26-27
Reports of treating doctors
Dr Sanganakal Reddy and the Coburg Family Medicine Centre
14As referred to above, Ms Saibura’s evidence was that Dr Reddy, her treating doctor, passed away prior to the hearing. Thus, the relevant extracts of the clinical records from his time at the Coburg Family Medicine Centre were tendered at the hearing.
15Ms Saibura told the Court she had been treated by Dr Reddy for approximately twenty years. The records that were provided to the Court documented her attendances with him from 14 September 2016, when she saw him at the Coburg Family Medicine Centre. Prior that, she had seen him at another clinic in Ross Street, Coburg.[56]
[56] T22, L5-6
16Those records reveal attendances for neuropathic pain and prescriptions being issued for 300 milligrams of tramadol per day, that being 200 milligrams in the day and 100 milligrams at night, from 14 September 2016 onwards.[57]
[57] Amended Defendant’s Court Book (“DCB”) 50
17On 1 October 2016, she attended in connection with diabetes. There is a reference to pain in her legs in the entry for that date.[58]
[58] DCB 50
18On 3 April 2018, she attended the clinic and saw Dr Alfy Habib. He did not make any record about the reason for the attendance, other than to note it was a “Surgery Consultation”.[59] He added Osteomol 665 to her prescriptions to be taken twice daily.
[59] DCB 62
19On 23 April 2018, she attended for a repeat prescription. Dr Reddy recorded that:
“… she felt (sic) down from the tram, the tram was fast which he was driving through a curve, she hit her back, elbow, legs
she has back, leg and elbow pain”[60]
[60] DCB 63
20This is the first entry to specifically refer to back pain.
21He arranged for an x-ray to be undertaken of the lumbosacral spine. He provided her with repeat prescriptions for tramadol and meloxicam.
22The entries after this time record the further investigations he arranged and the specialists he referred her to. The last entry in connection with the back pain was on 13 May 2021, and the last entry of the tendered clinical records was on 21 June 2021.
Moonee Ponds Super Clinic
23Ms Saibura’s evidence was that she changed clinics when she was told she could not attend the Coburg Family Medicine Centre after someone had brought COVID into the clinic.[61]
[61] T22, L12-20
24I have reviewed these records. The first entry recorded on 2 September 2021 is as follows:
“She has been on Tramadol for few years due to back pain (after accident). She could not attend her regular GP today a s the clinic was closed ( In Bell street Corner of Sydney Rd.). She had nerve blocks befire with no effect”[62]
(sic)
[62] DCB 101
25Dr Farid Yazdan provided her with a prescription for tramadol, 200 milligrams.
26The subsequent records detail the further investigations and treatment provided by Dr Yazdan and his colleagues, as well as their treatment of her heart condition, her diabetes and other health ailments.
27Dr Yazdan noted she had been taking 300 milligrams of tramadol a day previously, which had been reduced to 200 milligrams at the consultation of 16 November 2021.
28The last entry from the tendered records is on 16 May 2023.
Moonee Ponds Medical & Dental Centre
29The first attendance from the clinical records tendered from this clinic is from 27 December 2012. There is then a gap from that time until 28 March 2024. There is a note that Ms Saibura had been rejected by the Moonee Ponds Super Clinic.
30The practitioners at this clinic continued to treat her for chronic back pain and provided her with prescriptions for tramadol, 200 milligrams,[63] and Norgesic.[64]
[63] For example, see DCB 126
[64] For example, see DCB 123
31The last attendance from the tendered records of this clinic is on 20 August 2024.
Dr Frank Buchanan, specialist anaesthetist, medical acupuncturist and interventional pain physician
32There were three reports dated 30 September 2020, 30 August 2023 and 4 April 2025, and two letters dated 16 April 2021 and 4 May 2022 tendered from Dr Buchanan.
33He advised that Ms Saibura was referred to him by Dr Reddy for assessment and management of her chronic back pain. She told him she had a history of chronic back pain for several years and that the fall arising from the transport accident aggravated her chronic back pain.[65] He noted that scans were ordered, but they did not reveal any new underlying injury.
[65] PCB 36-37
34He said she had signs and symptoms suggestive of radicular back pain secondary to left lumbar facet joint and sacroiliac joint pain. Although she had prior issues, he believed that her back had worsened and there was now a neuropathic element to her pain which would respond better to further interventional treatment.[66]
[66] PCB 39
35In his reports of 30 August 2023 and 4 April 2025, he said he could only confirm what had been said to him by Ms Saibura, being that her back pain was worsened by the incident on the tram.[67] Based on that, he said the nature of her injury “may” support her claim that her current pain is due to the nature of the injury she sustained on the tram.[68] He said that, prior to the accident, she only suffered from a persistent back ache, but was now experiencing radicular pain consistent with sacroiliac joint and lower lumbar facet joint pain. This pain may have occurred secondary to the nature of the injury Ms Saibura described experiencing at the time, that being a rotationary lunge movement, based on the clinical signs on examination at the first consultation the success of the diagnostic blocks suggesting that was the case.[69]
[67] PCB 53
[68] PCB 46
[69] Ibid
36In his report of 4 April 2025, he went on to say this pain was distinct from mechanical lower back pain, which was pre-existing prior to the accident and is common in the wider community. Ms Saibura had mechanical back pain with no real new degenerative changes detected on the scans. He noted that scans have a poor correlation with a patient’s functional level of pain disability, and that pain physicians only utilise scans to exclude significant pathology which may require surgical remedy.[70]
[70] PCB 54
37He thought the best pain progress would be achieved from her participation in a pain program so she could develop better coping skills to manage her pain and improve her functional outcomes.[71] He thought she might need further radiofrequency neurotomies to her lumbar facet joints and sacroiliac joints in the future.[72]
[71] Ibid
[72] PCB 55
Ms Saibura’s medico-legal reports
Associate Professor Bruce Love, consultant orthopaedic surgeon
38Associate Professor Love was jointly commissioned by the TAC and Ms Saibura’s solicitors and provided a report dated 4 February 2022. He was also engaged to provide a medico-legal opinion by Ms Saibura’s solicitors and provided that in a further report dated 24 April 2023.
39In his report of 4 February 2022, he:
(a) listed the documents he had been provided with, which included pre- and post-accident radiology and pre-accident treater reports and records;[73]
(b) said that Ms Saibura had ongoing back pain which she believed was significantly worse than the pain that was present prior to the transport accident. He noted that her history of back pain dated back to at least 2003 and that she had had numerous x-rays in the period prior to the accident of 23 April 2018;[74]
(c) considered Ms Saibura had chronic back pain relating to the degenerative changes described in the “numerous” radiology reports;[75]
(d) accepted Ms Saibura had a significant aggravation of her spinal condition as a result of the accident on 23 April 2018;[76] and
(e) did not consider the aggravation of 2018 to have resolved, because there was a persistent set of symptoms which were greater in magnitude than they would have been had the event not occurred.[77]
[73] PCB 58-59
[74] PCB 60
[75] PCB 61
[76] Ibid
[77] PCB 64
40In his report of 24 April 2023, he said that:
(a) he diagnosed Ms Saibura as having severe multilevel degenerative disease of the lumbar spine;[78]
(b) formed the opinion that the accident of 23 April 2018 aggravated the longstanding degenerative condition to a significant degree;[79] and
(c) based on the history given to him by way of worsening of symptoms, he considered the aggravation to be significant and ongoing.[80]
[78] PCB 73
[79] Ibid
[80] PCB 74
Dr Noam Winter, specialist pain medicine physician and anaesthetist
41Dr Winter provided one report, dated 20 March 2025.
42He noted that Ms Saibura’s medical history was significant and relevant for pre-existing back pain which dated to at least 2003. He referred to the findings of the imaging she had undertaken between 2003 to 2012, the osteopathic treatment she had between August 2011 and June 2012 and the epidural injection she had in January 2013. Following this, he said it appeared her back pain was relatively well-controlled up until the time of the transport accident. He stated there was no further imaging, interventions or notes to indicate increased healthcare utilisation.[81]
[81] PCB 80
43He diagnosed her with an exacerbation of her pre-existing lumbar facetogenic pain and sacroiliac joint pain.[82]
[82] PCB 81
44He said that, from the notes presented and her own recollection, she described very little pain between 2013 and 2018 (prior to the accident). Based on her description, he said her back pain worsened after the accident and did not improve until she received the radiofrequency neurotomy in 2022. He also noted that Ms Saibura did not present as the most credible historian.[83]
[83] PCB 82
Defendant’s medico-legal reports
Professor Gavin Davis, neurosurgeon
45Professor Davis provided two reports dated 12 May 2023 and 24 March 2025.
46In his report of 12 May 2023, he:
(a) listed the documents he had been provided with, which included pre- and post-accident radiology and pre-accident treater correspondence and records;[84]
(b) noted he confirmed the contents of the material regarding the previous back injury with Ms Saibura. He noted Ms Saibura required analgesia for lower back pain in early 2018, preceding the date of injury, with medications including Osteomol, meloxicam and tramadol;[85]
(c) diagnosed Ms Saibura as having nonspecific lower back pain on a background of constitutional lumbar spondylosis, without radiculopathy;[86] and
(d) considered there was no evidence to suggest any significant change in the symptomatology, analgesic requirements or imaging findings subsequent to the date of the accident. He accepted the transport accident caused a temporary exacerbation of Ms Saibura’s lower back pain due to constitutional lumbar spondylosis, but considered that the temporary exacerbation would be expected to have resolved over a period of weeks to months, and that Ms Saibura’s current presentation was unrelated to the accident, but rather due to the constitutional lumbar spondylosis.[87]
[84] DCB 5-6
[85] DCB 9
[86] DCB 12
[87] DCB 13
47In his report of 24 March 2025, he confirmed he remained of the view that Ms Saibura had nonspecific lower back pain on a background of constitutional lumbar spondylosis, without radiculopathy. He recommended she be treated by a mental health specialist and at a time deemed appropriate by that specialist, be re-referred for consideration for a multidisciplinary rehabilitation and pain management program.[88]
[88] DCB 20
Credit and reliability
48I had the opportunity to observe Ms Saibura in the witness box. I found her to be an honest and reliable witness, who did her best to answer the questions she was asked. Although she took issue with the relevance of the questions from time to time, once an explanation was provided about why the question was relevant to the issues in dispute in this case, she went on to answer them as best as she was able to. While at times her answers strayed from the question she was asked, I formed the view that this was her general communication style, rather than an attempt to evade or avoid answering the question. Some of her treating practitioners referred to this style in the clinical records, further confirming for me that this was Ms Saibura’s natural communication style, rather than evidencing any intent to mislead or deceive the Court. I also formed the view that, on the issues that were relevant to these proceedings, her evidence was consistent with the contemporaneous clinical records and the recitation of her history noted by the medico-legal experts.
49I also noted that the answers she provided in her oral evidence were often against her own interest.
50There were some inconsistencies between her affidavit evidence and her oral evidence, such as her evidence about the changes she has made to cooking for herself since the transport accident. Where such an inconsistency occurred, I have preferred her oral evidence to her affidavit evidence.
51I therefore found Ms Saibura to be a credible and reliable witness and I accept her evidence, with the qualification that, where there was an inconsistency between the affidavit and oral evidence, I have preferred her oral evidence.
Submissions of the parties
52As outlined above, the question to be decided in this case is whether the impairment consequences are long-term and can be fairly described as being “at least ‘very considerable’” and “more than ‘significant’ or ‘marked’”.
53Counsel for Ms Saibura submitted that:
(a) Ms Saibura had changed from a person who had no significant back pain, at least in the two years prior to the accident, to someone who had constant, often severe and crippling back pain;[89]
(b) her ability to do the following activities was disturbed because of the impairment:
(i)sleep;
(ii)sit;
(iii)housework, such as making the bed;
(iv)cook;
(v)grocery shopping;
(vi)getting in and out of the bath; and
(vii)going out for long periods; [90]
[89] T78, L5-9
[90] T78, L19-21 and T83, L7-11
(c) the tramadol she was prescribed prior to the accident was for her neuropathic pain, not her back pain;[91] and
(d) her evidence that she pushes through with travelling to sell her cards, despite sometimes having to turn around due to severe pain, characterises her as a “stoic”.[92]
[91] T78, L23-26
[92] T83, L7-14
54Counsel for the TAC submitted that:
(a) prior to the transport accident:
(i)Ms Saibura led a reasonably-restricted life due in part to her back pain;
(ii)was a hobbyist (with respect to making and selling cards);
(iii)had a labile emotional state; and
(iv)she was prescribed and was taking opioid medication, including tramadol, for her back pain. She was also prescribed Osteomol three weeks prior to the transport accident;
(b) after the transport accident:
(i)Ms Saibura had an initial increase in back pain;
(ii)Norgesic was added to her medication;[93]
(iii)her tramadol dosage remained the same: that is, 300 milligrams;[94]
(iv)if there had been an increase in the pain and suffering consequences of the back injury for Ms Saibura, it was not all that much. The best evidence for Ms Saibura was that she finds it harder to get up in the morning than it was before the accident, which restricts her ability to deliver cards. While that is a matter of some importance, the question is whether it is serious in the spectrum of things for a person in her situation;[95]
(v)there was not much difference to her house duties, grocery shopping, sitting tolerances or cooking;[96]
(vi)there was no evidence of an inability or genuine difficulty to vacuum;[97]
(vii)her mobility by public transport was essentially unchanged;[98] and
(viii)the fact she has back pain if she has been on her feet all day delivering cards would be an uncontroversial statement for many people of her age.[99]
[93] T72, L1-3
[94] T65 ꟷ T66
[95] T72, L26 ꟷ T73, L5
[96] T73, L18-21
[97] T76, L15-20
[98] T73, L26-27
[99] T73, L26-31
Findings and reasons
55Ms Saibura’s affidavit evidence regarding her back pain prior to the transport accident was that it was intermittent. She said that, at the time of the transport accident, she was experiencing back pain from time to time, but she was managing.
56Ms Saibura said the following about her pain after the transport accident:
(a) she had constant pain radiating near her hips and down her legs, particularly the left leg (in her first affidavit);
(b) that the pain was there most of the time, and it extended down her left hip and left leg (in her second affidavit); and
(c) that her back pain was not constant, but came on frequently with activity. The pain still extended into her hip, and occasionally down the length of her left leg into her foot (in her third affidavit).
57I understood from her evidence that she attributed the pain she had in her hip and down her left leg to the transport accident.
58At the hearing, Ms Saibura agreed she had been prescribed Osteomol for back pain three weeks prior to the transport accident[100] and that she stopped taking Osteomol when Dr Buchanan prescribed Norgesic, as she could not take the two together.[101]
[100] T25, L19
[101] T25, L24
59She also agreed that she was taking tramadol prior to her transport accident and that this relieved her back pain.
60It appears Dr Reddy was prescribing Ms Saibura 300 milligrams of tramadol per day, that being 200 milligrams in the day and 100 milligrams at night. That dosage remained the same after Ms Saibura’s transport accident.
61At the hearing, she also said that these days (that is, as at the time of the hearing) the pain could be a 7-8/10, and that she would stop if the pain became too much. She did not used to get pain like this when she was selling cards to people before the transport accident.[102]
[102] T54, L1-8
62Counsel for Ms Saibura submitted that she had been left with constant back pain, and that this differed from her pre-accident back pain. However, while she deposed to having constant back pain in her first affidavit, in her second and third affidavits, she said she had frequent, but not constant, back pain.
63Given that this was her most recent evidence, I accept that she has frequent, but not constant, back pain.
64I also accept her evidence that she has experienced left hip and occasional left leg pain since the transport accident, and that this was not present prior to the transport accident.
65I have formed this view based both on her evidence and the evidence of Dr Buchanan.
66With respect to the diagnosis of the injury, there was agreement between the medical experts that the imaging revealed Ms Saibura had degenerative changes in her lumbar spine prior to the transport accident. Associate Professor Love appears to have placed weight on Ms Saibura’s history of worsened pain since the transport accident in concluding that she suffered a permanent aggravation of her pre-existing degenerative changes, whereas Professor Davis thought it was more likely that the effects of any aggravation were temporary, rather than permanent.
67On the other hand, Dr Buchanan did not think the findings on the radiological material were clinically significant in understanding Ms Saibura’s pain, noting she had mechanical back pain with no new degenerative changes on the scans. He said that pain physicians tended to refer to them to exclude significant pathology which may require a surgical remedy.[103]
[103] PCB 54
68Dr Buchanan believed she had signs and symptoms suggestive of radicular back pain secondary to left lumbar facet joint and sacroiliac joint pain. Although she had prior issues, he believed her back had worsened following the transport accident and there was now a neuropathic element to her pain.[104] His diagnosis was confirmed through his clinical examination and the relief of her pain through the diagnostic blocks, rather than reliance on the radiological material. Given his expertise as a pain physician, I have placed weight on his opinion.
[104] PCB 39
69Dr Buchanan’s opinion regarding the diagnosis of the injury was supported by Dr Winter’s opinion, being that the source of her pain was an exacerbation of pre-existing lumbar facetogenic pain and sacroiliac joint pain.[105]
[105] PCB 81
70I have preferred the opinions of Associate Professor Love, Dr Buchanan and Dr Winter to that of Professor Davis, as they have explained the change in Ms Saibura’s pain after the transport accident.[106] I have also accepted each of their opinions within their various areas of expertise.
[106] Ibid
71I therefore find Ms Saibura sustained an aggravation of her degenerative disease of the lumbar spine and back pain secondary to left lumbar facet joint and sacroiliac joint pain in the transport accident. I find this caused an impairment to her lumbar spine.
72The next question is whether the consequences of the aggravation can fairly be described as being “at least very considerable” or “more than ‘significant’ or ‘marked’”.
73There is no doubt there have been significant consequences to Ms Saibura arising from the transport accident. These are:
(a) she now experiences frequent pain. The pain is present in her hip and can go down her left leg;
(b) she takes longer to get up and get going in the morning. Prior to the accident, she would get up and going at about 9.00am, whereas these days it might be around 1.00pm;
(c) she struggles to get into the shower, as she has to get her legs over the edge of the bath;
(d) she takes longer to make the bed, it now taking her about an hour to do so;
(e) if she is in too much pain when delivering her cards, she will turn around and go home;
(f) her ability to sit and stand for long periods has reduced; and
(g) there has been some impact on her ability to sleep. She finds it difficult to get comfortable and this impacts the quality and length of her sleep. She experiences cramping on some nights since the transport accident.
74However, I formed the view that many of the activities she was able to do and enjoy prior to her transport accident were either not impacted, or not significantly impacted, by the consequences of her impairment.
Shopping
75In her affidavit of 25 August 2022, she referred to having to do small shops since her transport accident. In her oral evidence, she said she went to a supermarket in the next suburb on public transport, rather than going to a supermarket closer to her, because the one that was close to her was dirty.[107] She described how she often bought more than she intended.[108] I understood from her oral evidence that she usually ends up with about two grocery bags[109] and prefers to manage the weight of this rather than buying less and making more trips, as she does not have the time for that. There was no evidence about whether this was less or the same amount as prior to her injury.
[107]T37, L2-25
[108] T35, L18-31
[109] T57, L10-13
76She also said the pain she experiences after grocery shopping is almost the same as the pain she feels after she has been on her feet all day.[110] In her affidavit sworn 25 August 2022, she said that she “often” took another tramadol tablet, because lifting bags and baskets and pushing trolleys made her back pain worse.[111] In her affidavit sworn 3 April 2025, she also said she “occasionally” took a second tramadol if her back pain flared up.[112]
[110] T57, L8-10
[111]PCB 11
[112] PCB 23
77She further said she was able to walk long distances to go shopping prior to the transport accident.[113]
[113] T36, L3-11
78I concluded that that while there had been some changes to the way she shopped and the pain she experienced after shopping, these changes were not more than significant or marked.
Cooking
79I formed the view that her ability to cook has not been significantly impacted by the consequences of her impairment. While in her affidavits she said that she had had difficulty cooking and carrying pots and pans after the transport accident, I formed the impression from her oral evidence that the way she cooked for herself had not really changed from prior to her transport accident. She told the Court she had bought kitchen appliances to make her life easier in the kitchen before the transport accident (although she had not used them), and did much less cooking now than prior to the transport accident because she did not want to use her new oven.[114] She also said she had gone without an oven for a couple of years before the accident, because she had switched off her oven due to a gas leak.[115] She also said she did not really care about food much anymore. I concluded from her evidence that, while there may have been some change to the way she cooked for herself since the transport accident, this was not a significant change.
[114] T57, L24
[115] T27, L10-14
Public transport
80I formed the view that her ability to use public transport has not been significantly impacted by the consequences of her impairment. While she said that if she was in severe pain, which I understood to be a 7-8/10, she would turn around and go home if she was already out on public transport, her oral evidence left me with the impression that she used public transport frequently. For example, she chose to travel further to do her grocery shopping than was required because she thought the closer shopping centre was dirty, she travelled via bus and tram to get to the Spotlight store near the DFO in Essendon to buy materials to make her cards, she travelled to Airport West by public transport to buy envelopes for her cards and she travelled by public transport to suburbs a reasonable distance away from her to sell her cards.
81In her affidavit sworn 25 August 2022, Ms Saibura said she had trouble getting on and off public transport because of the steps and that her back was unstable when seated on a tram. While I accept this evidence, my impression from her oral evidence was that this did not interfere with her ability to use public transport in any substantial way, as compared with prior to her transport accident. Thus, I was left with the impression that, while her back and leg pain had some impact on her ability to use public transport, it was not “more than ‘significant’ or ‘marked’”.
Housework
82I formed the view that her ability to undertake her housework has not been significantly impacted by the consequences of her impairment. At the hearing, she said that she did not vacuum due to issues with her vacuum cleaner overheating. It was not clear from her oral or affidavit evidence whether this was the case prior to her transport accident or not. She also said at the hearing that she did not mop, as she preferred to use disinfectant wipes to clean the floor. She would crouch down, rather than bend down, to do so. She did not describe any changes with respect to sweeping. She tends to her pot plants now as she did prior to the transport accident.
83While she described doing small loads of clothes washing, I was unable to distil whether this represented a change from prior to the injury or not. She had bought her washing machine after the accident, although seemed to have previously owned washing machines that had broken down prior to the accident. However, there was no evidence about how she undertook her clothes washing prior to the accident, nor reference to changes she had made after the accident, and thus I was unable to conclude there had been a change in the way she undertook her clothes washing.
84Her oral evidence was that she was uncomfortable making the bed now, whereas prior to her transport accident she was able to make it easily. I was not sure whether it took her longer to make the bed now. However, I was left with the impression she was still able to make the bed, despite her discomfort. I accept this is a significant or marked consequence.
85She said in her oral evidence that she has had two baths since the transport accident. There was no evidence about how many baths she used to take prior to the transport accident. She said she could shower and dress herself prior to the transport accident and still can.
Sleep
86While there has been some impact on her ability to sleep, she said she has not often had a good sleeping routine.[116] While I accept that the length and quality of her sleep is impacted by her back pain, and occasional cramping in her leg, I was not clear on the degree of change as compared to prior to her injury.
[116] T21, L11
Medication
87She has continued to be prescribed and take tramadol after her transport accident for her back pain, albeit that she mostly takes 200 milligrams a day now, and occasionally a “second tramadol”[117] when her back pain flares up, whereas prior to her injury she was taking 300 milligrams a day. She also takes Norgesic twice a day for her back pain and gabapentin, 200 milligrams at night. She takes magnesium at night to relieve the cramping in her left leg. The addition of Norgesic and magnesium represents a change from prior to her transport accident, consistent with her evidence that the pain has increased from that time.
[117] PCB 23
Sitting
88Her oral evidence was that she could sit for longer periods before the transport accident than after. She said she would sometimes sit for half a day prior to the transport accident.[118] She said she was uncomfortable after sitting for nearly a couple of hours in the witness box, and that the pain she experienced was not like this before the transport accident. I accept that her sitting tolerance has reduced since prior to the transport accident.
[118] T38, L6-7
Walking
89Ms Saibura said that she can walk for more than an hour, although sometimes with great difficulty because of her feet and back.[119] While she described being able to walk for long periods when she lived in Pascoe Vale, this was at least 11 years ago, well prior to her transport accident.[120] She also said that her ability to walk uphill is impaired, although her evidence about whether this was due to her cardiac condition or her back was vague.[121] Her evidence was also that her ability to walk had been impaired by her peripheral neuropathy.[122] While I accept that Ms Saibura experiences pain when walking, the extent to which her ability to walk has changed and been impaired by the injury arising from the transport accident was unclear.
[119] T39, L25-26
[120] T36, L3-17
[121] T43, L1 - T44, L10
[122] T17, L4-5 and T17, L27-29
Standing
90In her affidavit sworn 25 August 2022, Ms Saibura said that her back pain came on when she stood for too long. I found her evidence about whether this represented a change from prior to the transport accident vague and unclear. She said she did not get pain like she now does after going out selling cards and being on her feet all day. She said that, when she got home now, she feels like she is “crippled”.[123] However, she also said that, in the two years or so before the accident, she would get a sore back after being on her feet all day delivering cards.[124] While I found it hard to reconcile this evidence, I accept and find that the pain Ms Saibura experiences now is greater than that she used to experience when she was on her feet all day and selling cards, and that this is a marked consequence for her.
[123] T57, L4-7
[124] T40, L30-31
Was Ms Saibura “stoic”?
91Counsel for Ms Saibura submitted that I ought to find Ms Saibura to be a “stoic” on the basis that she pushed through with delivering her cards by public transport, despite having to sometimes turn around due to severe pain.
92While I was impressed with Ms Saibura’s dedication and commitment to making and selling her cards, I did not find the evidence warranted a finding that she was “stoic” in the sense contemplated by the legal authorities.[125] It was clear that Ms Saibura derives a great deal of joy from conceiving, making and selling her cards and interacting with the people that she sells her cards to. She also understandably values having some financial independence from the money she makes selling the cards.[126] Her evidence was that she continues to make and produce about the same number of cards as prior to the transport accident, and that she has continued to sell her cards to longstanding customers located in suburbs across Melbourne. This activity is to be commended for the social, mental health and financial benefits it brings to Ms Saibura. However, the fact that she sometimes turns around and goes home because her pain is severe did not lead me to conclude that she was a “stoic”. I did not conclude that she understates or masks her level of pain, or persists with delivering cards despite her pain instead of ceasing altogether. Thus, I did not find her to be a “stoic” in the sense contemplated by the legal authorities.
[125]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3]; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144 at paragraph [69]
[126] T52, L8-14
93I have a great deal of sympathy for Ms Saibura and her application. However, it is her burden to establish that the consequences of the aggravation of her impairment have met the “very considerable” threshold. I must assess whether the consequences of the aggravation are serious, not just whether the final impairment is serious.[127]
[127] Petkovski v Galletti [1994] 1 VR 436
94Having regard to the range of cases, including those that do not come before the Court, and considering the evidence about the injury, pain and impairment Ms Saibura had prior to the transport accident, I was not persuaded that the consequences of the aggravation of the impairment to the lumbar spine could fairly be described as being “at least very considerable” and “more than ‘significant’ or ‘marked’”.
Conclusion
95Considering the above, I have found Ms Saibura has not met the threshold to establish leave to proceed and thus dismiss her application.
96I ask that the parties draft the consequential orders arising from this decision and submit them to my chambers for consideration.
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