Sidhu v Transport Accident Commission
[2025] VCC 699
•6 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04505
| SURINDERPAL SIDHU | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2025 | |
DATE OF JUDGMENT: | 6 June 2025 | |
CASE MAY BE CITED AS: | Sidhu v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 699 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury ꟷ subsequent incident or injury at work ꟷ causation ꟷ credit and reliability
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2001) 1 VR 79; Transport Accident Commission v Zepic [2013] VSCA 232; Rowe v Transport Accident Commission [2017] VSCA 377; Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Ms N Hanna | Maurice Blackburn Lawyers |
| For the Defendant | Mr D Oldfield with Ms I Murphy | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1The Plaintiff, Mr Surinderpal Sidhu, seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring common law proceedings to recover damages in respect of an injury to his spine sustained in a transport accident on 19 November 2015. The injury was said to be an aggravation of pre-existing asymptomatic spondylolisthesis.[1]
[1]Transcript (“T”) 149
2The case was opened on the basis that there would be multiple injuries including to the cervical spine and separately, the lumbar spine (aggravation of congenital spondylolisthesis).
3Ultimately however, Mr Sidhu pursued only the lumbar spine aggravation. The parties agreed there was only one issue to be resolved by the Court: whether the transport accident aggravated the pre-existing lumbar spine condition and whether that aggravation was responsible for the current state of Mr Sidhu’s lumbar spine.
4The application was complicated on account of an event at Mr Sidhu’s workplace which occurred approximately two years after the transport accident. Following that event, Mr Sidhu underwent surgery on his lumbar spine which has not been successful.
5Counsel for the defendant indicated that, if the Court was to find that the transport accident was a significant cause of the “operated spine”, the defendant would concede that the current state of the spine meets the definition of “serious injury”.[2] However, the defendant submitted that Mr Sidhu had failed to discharge his onus of identifying an injury caused by the transport accident which meets the narrative test of being “‘at least very considerable’ and certainly more than ‘significant or ‘marked’”.[3]
[2]T200
[3]Humphries and Anor v Poljak [1992] 2 VR 129 (“Poljak”) at 130
6The hearing proceeded in the usual way. Mr Sidhu was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from their respective court books.
The relevant legal principles
7The legal principles are well known and not in dispute. They have been reproduced below in summary form.
8The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[4]
[4] Pursuant to s93(6) of the Act
9Mr Sidhu relies on subparagraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which provides:
“serious injury means––
(a) serious long-term permanent impairment or loss of a body function;
10The part of the body said to be impaired for the purposes of paragraph (a) is the lumbar spine. Mr Sidhu has various other symptoms in his neck, right elbow and forearm which were originally part of his claim and addressed in his affidavit, but were abandoned during the hearing.
11In order to succeed Mr Sidhu must prove, on the balance of probabilities, that the “injury” suffered by him was:
(a) a result of the transport accident and
(b) “a serious long-term impairment” of his lumbar spine
12It is not permissible to aggregate the consequences of any injury to the lumbar spine which occurred in a separate subsequent incident.[5]
[5]Transport Accident Commission v Zepic [2013] VSCA 232 (“Zepic”) at paragraph [4(c)]
13It is insufficient to demonstrate that the transport accident was “a cause” of the current impairment consequences, or that “but for” the transport accident Mr Sidhu would not be suffering from his current consequences. Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.[6]
[6]Rowe v Transport Accident Commission [2017] VSCA 377
Summary of findings
14I find the transport accident played no role, or only a minor role, in the development of Mr Sidhu’s lumbar spine problem which led to surgery. The workplace incident was responsible for the consequences of which he now complains.
15His application is dismissed.
Background
16Mr Sidhu was born in India in March 1980. He is currently forty-five years of age.
17In India, Mr Sidhu worked on his family’s farm and undertook training as a diesel mechanic.
18In 2008, Mr Sidhu migrated to Australia with his wife. He has two sons, one born in 2008 and the other in 2016.
19He has worked in various jobs, including as a mechanic for a taxi depot, and as an Uber driver. At the time of the accident, he had been employed as a full-time mechanic with Ozway Trans Pty Ltd (“Ozway”), a transport company.
20On 19 November 2015, Mr Sidhu was travelling on the Metropolitan Ring Road when a vehicle from behind rear-ended his vehicle.
21Mr Sidhu was driven home by a friend who collected him from the scene of the accident.
22On 23 November 2015,[7] he attended his doctor complaining of pain in the right flank and tingling in his right middle finger.
[7]The affidavit suggests the visit was the day after the accident, however the doctor’s progress notes show it was four days later ( Plaintiff’s Court Book (“PCB”) 11 and Amended Defendant’s Court Book (“DCB”) 265).
23Following the transport accident, Mr Sidhu had some time off work. When he resumed work, he performed modified duties, initially on reduced hours.[8]
[8]Affidavit of Manvinder Verma at PCB 38 and 41. Mr Verma described “Yes Car Care” as Mr Sidhu’s own business, however Mr Sidhu said in evidence it was his wife’s business.
24On 3 January 2017, Mr Sidhu was at work at Ozway when he experienced what he described in his affidavit as an “exacerbation of [his] back pain extending into the left leg, after bending over at work”.[9] He was taken by ambulance to the Emergency Department at the Austin Hospital, where he was admitted for one week for investigation and treatment.
[9]PCB 12
25Following the January 2017 incident at work, Mr Sidhu worked part time as a floor manager at a panel-beating business owned by his wife, “Yes Car Care”. This work was brought to an end due to a business dispute.
26On 18 August 2021, Mr Sidhu underwent surgery to his spine, which he funded privately using his own health insurance. Although initially he felt resolution of his pain, following post-surgery physiotherapy treatment his symptoms returned “with even greater severity”.[10]
[10]PCB 13
Affidavits
Mr Sidhu’s evidence
27Mr Sidhu swore two affidavits, the first on 4 July 2022 and the second on 12 September 2024. In summary, he deposed as follows:
(a) on 15 November 2015, the vehicle he was driving was rear-ended by another vehicle on the Western Ring Road. The collision was at such speed it broke his seat, such that he was lying down. He felt further impacts after the first. Police and ambulance were called by another driver, but he did not feel immediate pain and was driven home by a workmate;
(b) the following day, he attended Dr Rajvir Kaur who arranged for x-rays and investigations;
(c) he was treated with physiotherapy for elbow and forearm symptoms. He was also referred to Precision Spinal for his “back and neck symptoms”;[11]
(d) on 3 January 2017, he experienced:
“… a sudden, severe exacerbation of [his] back pain extending into the left leg, after bending over at work. The pain was the same in quality as [he] experienced after the accident and severe enough that [he] attended the emergency department at the Austin Hospital”[12]
where he remained for one week;
(e) after this incident, he ceased working for Ozway. He completed a WorkCover form due to “a misunderstanding at the hospital about how [he] hurt [his] back”. He does not recall providing the form to his employer and does not have a WorkCover claim. He said:
“… Prior to the exacerbation at work [he] had been having pain in [his] lower back since the accident occurred, and had reported it to [his] doctors, however [his] neck and arm had been the focus of [his] treatment.”;[13]
[11]PCB 11
[12]PCB 12
[13] PCB 18
(f) some months after being discharged from the hospital, he was referred to neurosurgeon and spinal surgeon Dr Michael Wong. Later, he was referred to neurosurgeon Dr Jeremy Russell. Both surgeons recommended surgery. The defendant refused to fund the surgery;
(g) after the surgery he initially felt well, but within a few months, his symptoms returned;
(h) some months after the surgery, he returned to work on light duties supervising staff at his wife’s panel-beating business, “Yes Car Care”, however he ceased this work in 2022, as his wife had a dispute with her business partner;
(i) he was prescribed OxyNorm, Targin, Palexia and Panadol and he suffers from pain and restriction due to the “spine”;
(j) his neck pain and lower back pain have worsened and were (as at 12 September 2024) present all the time;
(k) as at 12 September 2024, his sleep, ability to help around the house, ability to perform gardening, ability to play cricket, attend the football and play with his children have all been affected and restricted;
28In summary, in his oral evidence, Mr Sidhu said:
(a) he did not accept that following the accident, he was prevented from returning to work only because of elbow pain. He said “I had back problem too”;[14]
(b) his pain never stopped, for the last ten years it has been increasing;[15]
(c) he did not accept that his back pain “was much better”, as noted by Dr Kaur in December 2015, or “had resolved” as noted by neurologist Dr SweeTan in September 2016;
(d) Dr Kaur is Punjabi and she speaks his language, but she was born here, so she is not a native speaker, so he spoke to her in a mix of English and Punjabi and “she doesn’t know all the words”;[16]
(e) from the time of the transport accident to the present day, he has never had full relief from back pain, only when he lies down and takes pain medication;[17]
(f) his current pains were right arm and elbow, and lower back on the left.[18]
[14] T53, L23
[15] T54, L3-5
[16] T84 ꟷ T85
[17] T92, L2-3
[18] T94
Manjit Kaur
29Mrs Kaur is the wife of the Mr Sidhu. She affirmed an affidavit on 8 November 2024.[19] She was not called for cross-examination. In her affidavit, Mrs Kaur deposed as follows:
(a) on the day after the accident, her husband went to the general practitioner (“GP’);
(b) prior to the accident he would help with house work, cleaning and cooking. He also worked two jobs at one time. He was a full-time mechanic and a part-time Uber driver (usually on Thursday or Friday nights and weekends). He also helped the neighbour with mowing the lawns;
(c) since the accident, her husband is in lots of pain all the time. The pain and frustration is getting worse and worse as time goes by;
(d) her husband is no longer able to do activities like gardening, playing cricket and attending the football. He struggles to bend and touch his feet. He cannot go anywhere with the children, such as school functions, as he cannot sit or stand for long periods of time.
[19]PCB 22-25
Manvinder Varma
30Mr Varma is the former employer of Mr Sidhu at Ozway. His affidavit, affirmed 17 February 2025,[20] refers to Mr Sidhu as having been an excellent worker prior to the accident. After the accident, Mr Sidhu took time off to go overseas to treat his back and afterwards he returned working irregular hours. He left to start up his own business, “Yes Car Care”.
[20]PCB 38-137
Treating medical practitioners
31The submissions of the parties focused on lower back and buttock or leg complaints in respect of two periods of time:
(a) On behalf of Mr Sidhu, it was asserted that the evidence allowed a finding of continuous lower back and/or referred leg pain from the time of the accident to the present day.
(b) On behalf of the defendant, it was asserted that the continuity of complaints did not in fact commence until after the workplace incident in January 2017.
32For ease of understanding the submissions and my findings, my outline of the expert evidence commences with attendances closest in time to and following the transport accident.
Croydon Medical Centre
33The Croydon Medical centre contains the first contemporaneous record of attendance after the transport accident.
34Mr Sidhu was seen by a range of doctors at this clinic, including Dr Kaur, Dr Andres Cortes and Dr A. Karem Dabash. From time to time, these doctors referred him for specialist treatment, provided him with Certificates of Capacity and wrote medical reports regarding his transport accident-related injuries.
Dr Rajvir Kaur, general practitioner
35On 17 December 2015, Dr Kaur referred Mr Sidhu to James Macfarlane at the Macfarlane Clinic for physiotherapy:
“… residual pain in R arm which I believe may be from holding the steering wheel during the crash. Xray normal. He is also having tingling in R arm C7/8 dermatome distribution and L5 nerve irritation on CT lumbar spine”.[21]
[21]DCB 127
James Macfarlane, physiotherapist
36Mr Macfarlane provided an undated report to Mr Sidhu’s solicitors. That report recorded a history that, on 29 December 2015, Mr Sidhu first attended for treatment on referral from Dr Kaur.
37On that day, the report suggests Mr Sidhu complained of pain from the neck down along the right arm to the middle fingers. The pain was sharp and very much localised to the forearm.[22]
[22]PCB 155
38Clinical examination was restricted to the neck, arms and right elbow.[23]
[23]Ibid
39James Macfarlane confirmed his view that the majority of the pain was originating from the elbow. Mr Sidhu had attended twelve physiotherapy sessions with little improvement.
40On 24 December 2015, Dr Kaur reported to the defendant that it was five weeks following the transport accident and Mr Sidhu was “still suffering significant pain in the R arm” and it would be another six to eight weeks before he could resume full duties.[24]
[24]PCB 142
41On 14 January 2016, James Macfarlane reported to Dr Kaur that, on review of the imaging, there was nothing to explain the arm pain or the elbow pain. Mr Sidhu is reported as saying he was keen to work, and would do so if his elbow pain resolved.[25]
[25]DCB 8
42On 24 February 2017, Mr Sidhu was still greatly troubled by forearm pain from the elbow, to the middle finger, to the lateral surface. He reported having had an injection in the elbow which relieved the pain for four days. Therapy to the neck had not persisted.[26]
[26]PCB 156
43Mr Macfarlane diagnosed whiplash, soft-tissue injury to the right elbow and possible referral of pain from the cervical spine to the right forearm. He considered these injuries were consistent with the transport accident. He suggested Mr Sidhu obtain an opinion regarding the elbow from a hand/arm specialist.[27]
[27]PCB 156-157
Mr Myron Rogers, neurosurgeon
44On 12 April 2016, Mr Rogers reported to Dr Dabash at Croydon Medical Centre that Mr Sidhu developed neck, right arm and left elbow pain about forty-eight hours after the transport accident; however no imaging was available at the time of the consultation.[28]
[28]PCB 143
45In a subsequent report written on the same day, Mr Rogers confirmed he now had the opportunity to review scans and aside from “mild degenerative change there [was] no evidence of spinal cord or nerve root compression”, therefore there was no role for surgical intervention and management was to be entirely conservative.[29]
[29]PCB 144
Professor Richard Bittar, neurosurgeon and spinal surgeon
46On 17 August 2016, Professor Bittar reported to Dr Cortes following referral for a neurosurgical opinion. On that day, Mr Sidhu was assessed in person and complained of the following symptoms:
(a) neck pain,
(b) right arm pain radiating predominantly in the C7 distribution; and
(c) bilateral hand numbness.[30]
[30]DCB 9
47The history recorded was that the onset of symptoms occurred following a transport accident on 19 November 2015, when the vehicle Mr Sidhu was driving was struck from behind at high speed by another vehicle travelling on the motorway, and the impact was such that his seat broke. He had experienced those symptoms ever since. Professor Bittar reported that further investigation was warranted, as was a review by Dr Tan.[31]
[31]DCB 9-10
48On 25 July 2022, Professor Bittar again reported to Mr Sidhu’s solicitor. He had assessed Mr Sidhu once on 17 August 2016 on referral from Dr Cortes. The referral sought assessment of Mr Sidhu’s neck pain and numbness in his left upper arm and left elbow.
49At the time of review in July 2022, Mr Sidhu complained of neck pain, right arm pain radiating predominantly in the C7 nerve root distribution and bilateral hand numbness.[32]
[32]PCB 223
50Professor Bittar referred to an MRI scan of the cervical spine dated 17 January 2016, which suggested foraminal narrowing of the right C7. In his opinion, Mr Sidhu sustained a cervical spine injury in the transport accident, most likely aggravation of cervical spondylosis. He noted the cervical spine medial branch blocks performed by Dr Gavin Weekes on 2 November 2016 were negative.[33]
[33]PCB 224
Dr Swee Tan, neurologist
51On 17 August 2016, Dr Tan reported to Professor Bittar. The report includes the following history of complaints and symptoms following the transport accident:
“Afterwards, he complained of abdominal pain and swelling on the right side of his neck and across the abdomen. There was also pain in the back and in the left lower limb. The pain got worse after two days, and he developed a sharp pain from the lower back going into the left lower limb down the posterior thigh into the calf and the whole foot. This was associated with the entire left lower limb going numb. He continues to have the left lower limb pain, but it’s bearable and not always severe.
[Mr Sidhu] is more concerned with his right upper limb pain … that goes from the upper arm down the elbow, then to forearm and into his middle and ring fingers. … .”[34]
(Emphasis added.)
[34]PCB 145
52Dr Tan reviewed an MRI scan of the cervical spine from 7 January, which showed moderate disc degenerative changes at C4-C5, with mild posterior disc bulges at C4-5, C5-6, C7-T1 and T1-T2. Nerve conduction studies of the upper limbs revealed what Dr Tan described as mild incidental findings, not entirely consistent with the description of symptoms. A trial of Endep medication, 10 milligrams at night would help Mr Sidhu’s chronic pain, in the aftermath of the transport accident.[35]
[35]PCB 146
53On 28 September 2016, Dr Tan reported to Dr Cortes. At the time of writing, Mr Sidhu had increased his Endep dose to 40 milligrams daily, but was continuing to complain of numbness in both hands affecting the middle ring and little fingers, worse on the left. He also had neck pain. The back pain had now resolved. Dr Tan requested a CT/SPECT bone scan of the cervical spine and an MRI scan of the right elbow.[36]
[36]PCB 150
Dr Gavin Weekes, pain specialist
54On 12 October 2016, Dr Weekes reported to Dr Cortes. He conducted an in-person assessment. Mr Sidhu was said to have reported current issues of neck pain with radiation into the right arm, psychological symptoms and impaired functioning, including inability to lift books, newspapers or mobile phones. The arm pain was worse than the neck pain. Medial branch blocks were recommended.[37]
[37]DCB 11-12
55On 2 November 2016, Dr Weekes performed right C3-5 medial branch blocks on Mr Sidhu. The pre-operative diagnosis in the Operation Record suggests the reason for the procedure was “cervicogenic pain”.[38]
[38]PCB 151
56On 24 July 2022, Dr Weekes reported to Mr Sidhu’s solicitor. On initial review on 12 October 2016, Mr Sidhu described a high-impact transport accident, following which he experienced some “truncal pain” which settled down. He also had symptomatology of arm pain and neck pain with a pain score of 8/10. An MRI scan of the cervical spine showed evidence of degenerative disc disease, with no evidence of foraminal or nerve root compression.[39]
[39]PCB 177
57Nerve conduction studies of the upper limbs show very mild bilateral median nerve neuropathy at the wrist and mild left-sided ulnar nerve neuropathy at the elbow. A CT/SPECT bone scan of the upper limbs and neck showed no increased tracer uptake. There was no focal neurological deficit in the upper limbs and the C3-5 medial branch blocks performed on 2 November 2016 were subsequently reported as having been ineffective in reducing pain.
58Dr Weekes provided a working diagnosis of cervical spondylosis, with an unclear diagnosis for the upper limb pain. These injuries were consistent with the stated cause.[40]
[40]PCB 177-178
Austin Health Acute Services
59On 10 March 2017, a report on Austin Hospital letterhead was written to Mr Sidhu’s solicitors. That report confirmed he had been seen at the Emergency Department on 3 January 2017, with back pain which had been described as “sudden onset … in the lower back radiating to the left leg when bending over at work”. On examination, Mr Sidhu had lower back spasm with no spinal tenderness and without abnormal lower limb neurology.[41]
[41]PCB 158
60Mr Sidhu had been admitted between 3-10 January 2017 for investigation under rheumatologists. During the admission, an x-ray showed evidence of bilateral pars interarticularis defects at L5-S1, with minor anterolisthesis of L5 on S1. There were no fractures. He was discharged home with a physiotherapy and hydrotherapy plan.[42]
[42]PCB 158-159
Dr Ali Li Yeo, registrar, Rheumatology Clinic Austin Health
61On 15 March 2017, Dr Yeo reported to Dr Cortes. He had reviewed Mr Sidhu since his discharge from hospital in January 2017. The impression of doctors at the Rheumatology Clinic was that Mr Sidhu had ongoing neuropathic pain. Dr Yeo reported his concern that Mr Sidhu was taking a significant amount of opioid medications (Targin, 20 milligrams bd and Olmesartan/amlodipine, 40 milligrams and 5 milligrams respectively). He recommended Mr Sidhu restart his Lyrica medication and continue decreasing the Targin down to 10 milligrams bd. Dr Yeo reported Mr Sidhu had returned to work, which was reassuring, and a referral had been made for hydrotherapy and an MRI scan of the lumbar spine.[43]
[43]PCB 160
Dr Andres Cortes, general practitioner, Croydon Medical Centre
62On 7 May 2017, Dr Cortes referred Mr Sidhu to Dr Michael Wong for assessment management and advice. The referral includes a history of a:
“… MVA in Nov 2015 With trauma on neck and subsequent pain radiated to R arm.
Since then even multiple investigations and MRI no clear abnormality was found, however pain has never stopped and despite multiple treatments he has not improved and feels more frustrated.”[44]
(sic)
[44]DCB 170
63On 15 June 2017, Dr Cortes reported “to whom it may concern”. The report includes a current diagnosis of neck pain radiating into the right arm (myofascial central sensitisation) with a note that, prior to the injury, Mr Sidhu had never complained of such symptoms. The main issue was finding a specific cause of the pain, because multiple examinations and investigations had been done without a conclusive reason. Mr Sidhu was in constant pain and painkillers were only partially controlling the pain in the arm and neck. Dr Cortes also reported that he was awaiting a report from a spinal surgeon, Dr Michael Wong, and at the time of writing the report the prognosis was uncertain.[45]
[45]PCB 190-191
64A report dated 20 March 2019 was also prepared in largely the same terms as the June 2017 report.[46] Dr Cortes attributed the neck and arm pain to the transport accident, as Mr Sidhu had previously been asymptomatic.[47]
[46]PCB 195
[47]PCB 195-196
65On 26 August 2018, Dr Cortes reported to the defendant that Mr Sidhu required evaluation for:
“… control of symptoms related in his neck and arm…. with depressed mood and anxiety.”[48]
[48]PCB 193
66On 23 May 2022, Dr Cortes reported to Mr Sidhu’s solicitors. The current diagnosis was:
(a) neck pain radiating into right arm (myofascial central sensitisation);
(b) chronic lower back pain, L5 radiculopathy.
67The injuries were consistent with the initial accident as prior to it, Mr Sidhu never complained of neck or lower back pain. Mr Sidhu underwent an L5-S1 PLIF intervention on 18 August 2021 performed by Dr Russell. Since the surgery, there had been some degree of improvement with the pain being less severe and the neuropathic symptoms slowly improving. It was still difficult to predict whether the chronic pain would ever be totally controlled.[49]
[49]PCB 199
68Reports in similar terms were provided by Dr Cortes on 30 January 2023 and on an unspecified date.[50]
[50]PCB 211-217
Dr Jeremy Russell, neurosurgeon
69On 13 July 2021, Dr Russell reported to Dr Cortes. Mr Sidhu had attended the consultation with his wife, who had intermittently helped with translation. A history of the transport accident was recorded as follows:
“… On 19 November 2015 … he was rear-ended by another vehicle at a substantial speed, to the point where he said his seat was broken. ... He was able to self-extricate and did not require immediate medical attention. The following day, however, he re-experienced the onset of lower back pain and left leg pain. This has been intermittent throughout the years now and he has sought multiple physiotherapy, pain physicians etc … .”[51]
[51]PCB 236
70An MRI scan of the lumbar spine performed on 7 July 2021 showed significant darkening of the disc at L5-S1, with loss of height and a Grade 1 anterolisthesis at L5 and S1. Severe left foraminal stenosis was impinging on the exiting L5 nerve, though the right side was capacious. Other changes and darkening of the disc were also observed at L3-4 and L4-5. Surgery seemed likely.[52]
[52]PCB 209-210
71On 4 August 2021, Dr Russell reported to Dr Cortes. Mr Sidhu reported that, since the previous assessment on 13 July, he had increasing and intensifying back and leg pain, to the point where he was struggling to cope on a day-to-day basis, had not been able to sleep and struggled to even get out of the chair. He had not been able to perform any work, his pain was as high as 8/10 and the leg pain was constant, at 5-6/10, with no relief. It radiated in the L5 distribution on the left side only. There was no right-sided leg pain. Imaging showed anterolisthesis on L5-S1 with flexion at 12 millimetres and extension at 15 millimetres, indicating, a 3-millimetre dynamic change.[53]
[53]PCB 207
72Dr Russell recommended an L5-S1 posterior lumbar interbody fusion as there was no other way to decompress the exiting L5 nerve.[54]
[54]PCB 208
73On 18 August 2021, Dr Russell performed an L5-S1 posterior lumbar interbody fusion. The operative preamble to the Operation Record refers to a history of “six years of left L5 radicular pain and lower back pain following a transport accident”.[55]
[55]PCB 205
74On 8 December 2021, Dr Russell reported to Dr Cortes. After the surgery, Mr Sidhu was presenting with lower back and left L5 pain. There had been significant improvement with swimming, however the CT SPECT of the lumbar spine taken post-surgery showed very mild uptake around the right L5 screw and ongoing left L5 compression within the foramen.[56]
[56]PCB 201
75Dr Russell reported that he thought there was a degree of compression at L5. If conservative treatment and medication did not resolve the symptoms, or if they worsened another surgery may be necessary.[57]
[57]PCB 201-202
76In November 2021,[58] Dr Russell reported that Mr Sidhu was complaining of increased pain now in the L4 and possibly the S1 dermatomes, but the CT scan provided no clear aetiology for the symptoms. Further imaging was required.[59]
[58]Between November 2021 and April 2024, a number of reports were issued by Dr Russell regarding Mr Sidhu’s progress following the surgery, which are of marginal relevance to the Court’s task and have not been discussed in this judgment.
[59]PCB 204
77On 29 August 2022, Dr Russell reported his opinion on causation to Mr Sidhu’s lawyers:
“It is impossible for me to clearly state the relationship between [Mr Sidhu’s] lower back pathology and its relationship to the motor vehicle accident on 19 November 2015. Having said that, a trauma to this degree could well have aggravated his lower back condition, causing presentation of symptoms which he described above. It is certainly plausible that the two are directly related.”[60]
[60]PCB 237
78Dr Russell’s reference to a trauma of this degree likely refers to the history recorded at the beginning of the report that the transport accident was “at a substantial speed, to the point where he said his seat was broken”.[61]
[61]PCB 236
79On 21 November 2024, Dr Russell recommended revision surgery.[62]
[62]PCB 221-222
80On 5 February 2025, Dr Russell provided the following opinion to Mr Sidhu’s lawyers:
“[Mr Sidhu] did not complain of either neck or arm pain until my consultation on 18 October 2022. This developed over the prior few months, without being an issue beforehand. Thus I think it highly unlikely this had anything to do with the motor vehicle accident in 2015.
…
Given the chronic L5 pars defects seen on the CT, the car accident was unlikely the cause of this, as they are typically due to long term degenerative wear and tear, and been present for some time prior to the accident.
It is very likely however, that the accident disrupted the ligamentous structures stabilising this L5/S1 level and subsequently caused his lower back and left leg pain. I have seen this many times where an injury or accident suddenly flares up and destabilises a chronic isthmic spondylolisthesis, precipitating new lower back and leg pain.”[63]
[63]PCB 250-251
81Dr Russell confirmed that the surgery performed on 18 August 2021 has been complicated by non-fusion and loosening of the left L5 screw, with subsequent further bony growth into the left L5-S1 foramen causing further complications of the left L5 nerve. This was the likely cause of Mr Sidhu’s ongoing symptoms. Funding for revision surgery had been refused by the defendant.[64]
[64]PCB 252
Dr Michael Wong, neurosurgeon and spinal surgeon
82On 10 May and 15 June 2017, Dr Michael Wong provided reports to Dr Cortes.
83The first report recorded a history of a transport accident in November 2015, following which Mr Sidhu had been complaining of chronic neck, lower back and left leg pain. There were no left arm or right leg symptoms. An MRI scan of the cervical and lumbar spine were ordered to further investigate the condition.[65]
[65]PCB 179
84The second report confirmed that on review, the MRI scan of the cervical spine demonstrated minor cervical spondylosis without significant neural compression. The MRI scan of the lumbar spine demonstrated Grade 1 L5-S1 spondylolisthesis with bilateral foraminal stenosis, worse on the left. This explained Mr Sidhu’s lower back and left leg pain. An L5-S1 decompression and lumbar interbody fusion was recommended. A request to the defendant was made for funding.[66]
[66]PCB 181
Dr Andrew Muir, consultant in pain management
85On 8 December 2017, Dr Muir reported that he assessed Mr Sidhu in early December 2017[67] and recorded a history of pain following the transport accident which increased overnight and had continued. The major source of pain was the right elbow but he also had pain in the lower back, left leg and the neck. There was left leg pain on standing. Pain management was recommended.[68]
[67]The report to Mr Sidhu’s solicitors dated 11 January 2023 confirms that this was the only attendance by Mr Sidhu.
[68]PCB 186
Dr Ivan Wong, pain specialist
86On 28 October 2024, Dr Ivan Wong reported to Dr Cortes that Mr Sidhu was suffering from:
“… persistent spinal pain syndrome and persistent pain in the right side of the neck, shoulder and arm. This was triggered by a motor vehicle accident and this is perpetuated by not having a multidisciplinary strategy in managing his pain condition. He is suffering from the side effects of long-term opioid therapy. He is physically deconditioned, overweight and had developed complications including diabetes and hypertension. He would benefit from multidisciplinary treatment of his chronic pain condition … .”[69]
[69]PCB 219
87The basis of the opinion appears to be a history that:
“That night following the accident, he has noticed worsening of the right shoulder, right arm and abdominal pain from the tension of the seatbelt. His back pain was also progressively getting worse.”[70]
[70]PCB 218-220
Mr Sidhu’s medico-legal reports
Mr Rodney Simm, orthopaedic surgeon
88On 18 May 2017, Mr Simm provided a joint medical examination and impairment assessment report to Mr Sidhu’s solicitors and to the defendant.
89The assessment was carried out with the assistance of Mr Sidhu’s wife, whose English was better than her husband’s.
90Mr Simm noted he had been provided with very limited file material and, together with the language barrier, there may be inaccuracies in the medical history recorded as:
“[Mr Sidhu has] persistent neck, right elbow and back pain, which he attributes to a transport accident.
The transport accident occurred on 19 November 2015. On that day … his car was hit from behind by another vehicle. He was pushed into other vehicles … .
On the night of the accident he noted increasing pain in the left side of the neck, the right elbow, the lower abdominal region and the left lumbar region and buttock. He attended his General Practitioner … He was investigated with x-rays of the cervical spine and right elbow on 3 November 2015 … He was then investigated with a CT of the lumbar spine on 2 December 2015. … .
…
On 3 January 2017 he was doing some sweeping at work and as he bent over to pick up a piece of wood, he developed acute and severe pain in the lower back with some radiation to the left buttock and down the left leg to the foot. … He attended the Emergency Department of Austin health … He was found to have lower back spasm with no abnormal lower limb neurology … .”[71]
And:
“There was an exacerbation of back and left leg symptoms as a result of a minor incident at work on 3 January 2017. I questioned him about this and it seems the symptoms were identical to those he had had following the transport accident. This incident at work seems to have caused an exacerbation of the transport accident injury, rather than caused a new or additional injury.”[72]
[71]PCB 255-256
[72]PCB 259-260
91And further, that Mr Sidhu:
“… experiences pain in the left lumbar region each day. The pain is usually quite severe in the morning. The pain is relieved to some extent by taking the Targin. His back pain is aggravated by prolonged sitting. He has to sit leaning to the right, taking weight through the right buttock. He usually lies down to watch television. He is able to walk slowly for a reasonable distance, providing he has taken his Targin. Pain radiates down the left leg to involve the entire left foot, with some localised pain around the left heel. He has no numbness in the foot. The leg pain is not present each day.[73]
[73]PCB 257
92Mr Simm commented on the CT scan from December 2015. It revealed longstanding pars interarticularis defects, with a Grade 1 anterolisthesis of L5 on S1. There were some associated disc bulges and flattening of the left L5 nerve root, but no bony injury.[74]
[74]PCB 255-256
93On examination, Mr Simm found some clinical features of an amplified pain and injury response. In particular, Mr Simm considered that the pathology evident in the lumbar spine was not necessarily responsible for symptoms, which meant there was the potential for recovery. He commented that unfortunately patients who demonstrate an amplified pain and illness response frequently ran a most protracted clinical course, with disappointing levels of recovery.[75]
[75]PCB 260
94On 18 October 2017, Mr Simm provided a supplementary report to both parties addressing the issue whether the transport accident caused the condition of his lumbar spine or contributed to the need for neurosurgery.
95Mr Simm considered a report from Austin Health regarding the admission in January 2017, a report of Dr Michael Wong dated June 2017; and an MRI scan of the lumbar spine.
96Mr Simm confirmed he found no clinical signs of radiculopathy. He did not advise lumbar fusion surgery because of the absence of such signs. Mr Simm said, essentially Mr Sidhu had axial lumbar back pain and somatic leg pain in the setting of a whiplash syndrome. When clinically examined, there were features of non-organic and/or psychological involvement.[76]
[76]PCB 266-267
97In Mr Simm’s opinion, the pathology of spondylitic spondylolisthesis of L5 on S1 was not caused by the transport accident. These changes might have rendered Mr Sidhu prone to back pain as a result of a soft-tissue injury. The radiological changes visible on the MRI scan occur in about 6 per cent of the asymptomatic population and are therefore not necessarily the cause of Mr Sidhu’s pain. Although the pathology has the potential to involve the L5 nerve root, Mr Sidhu did not describe the typical radicular symptoms of L5 nerve root involvement and had never demonstrated clinical signs of L5 radiculopathy. In such circumstances, the outcome of lumbar spine fusion surgery would be unpredictable. The surgery had the potential to further entrench his chronic pain and make it worse.[77]
[77]PCB 267
98Mr Simm reported that the transport accident had initiated a whiplash syndrome with equally severe cervical and lumbar symptoms. There was no adequate explanation on the basis of the imaging of the cervical spine to explain his chronic pain. It was also doubtful that the spondylolisthesis visible on the imaging was a cause for his lumbar pain.[78]
[78]PCB 267
Mr David Brownbill, consultant neurosurgeon
99On 30 May 2017, Mr Brownbill reported to Mr Sidhu’s solicitors. He recorded a history that Mr Sidhu’s vehicle had been struck from behind by another vehicle and his car seat was broken. Initially, he complained of pain in the right elbow, right forearm and lower back. The pain was to the left, present all the time, and made sitting difficult. He could not put weight on the left leg.[79]
[79]PCB 282
100In Mr Brownbill’s opinion, Mr Sidhu had sustained soft-tissue injuries to the structures about the lumbar spine, with likely aggravation of the pars defects giving rise to pain in the transport accident. This was “consistent with the described rear end collision”. The back pain commenced following the transport accident and later had been exacerbated at work in January 2017.[80]
[80]PCB 285
101On 17 October 2017, noting that Mr Sidhu had described continuous back pain from the time of the transport accident to the time of assessment, Mr Brownbill recommended that the defendant fund the surgery [81]
[81]PCB 290
Professor Peter Teddy, neurosurgeon
102On 22 February 2022, Professor Teddy provided his first report to Mr Sidhu’s solicitors. A number of treating doctor reports and medical records had been provided to him, including the report of the Austin Hospital from the admission in January 2017 following the workplace incident, a report of Professor Bittar and a report of Dr Swee Tan.
103Professor Teddy also took a history from Mr Sidhu.[82] Under the heading “your diagnosis”, Professor Teddy provided the following opinion:
“… Contemporaneous reports such as have been provided, have all failed to demonstrate any form of significant neurological abnormality, either in upper or lower limbs, that could be interpreted as suggestive of radiculopathy. … Mr Sidhu did have radiological evidence of mild cervical spondylosis and more significant lumbar spondylosis / spondylolisthesis that (presumably) was deemed to have become a significant cause of his low back and lower limb symptoms such that an operation was subsequently undertaken by Mr Russell. This seems to reflect opinion that his condition resulted from an exacerbation of mechanical low back pain related to his lumbar spondylosis resulting from the workplace incident in January 2017.
Summarising the evidence available as reported by others, the likely diagnosis is that he suffered (in relation to the 2015 MVA) a soft tissue injury to the cervical spine with no evidence of bony injury or radiculopathy. He may also have suffered exacerbation of lumbar spondylosis, although the findings of Mr Simm would suggest that the symptoms were more in keeping with a soft tissue injury. A more profound exacerbation of pre-existing lumbar spondylosis appears to have occurred as a result of the incident at work in January 2017. Certainly, both neurosurgical and neurological assessment (Professor Bittar and Dr Swee Tan) suggested no evidence of cervical radiculopathy while no particular problems appear to have been reported in relation to back pain at the time of his review in 2016.”[83]
(sic)
(Emphasis added.)
[82]He assessed Mr Sidhu via the Zoom teleconferencing facility
[83]PCB 301
104On 8 November 2022, Professor Teddy provided his second report to Mr Sidhu’s solicitors, without an in person assessment of Mr Sidhu. This report refers to Mr Sidhu’s 2022 affidavit, the report of Dr Swee Tan dated 17 August 2016 and a report of Dr Russell dated 13 July 2021.
105The report characterised the solicitors’ request for comment on the question of causation, in these terms:
“… on the extent to which injury sustained on 3.1.2017 presented as an aggravation of injuries sustained in the transport accident of 19.11.2015, the extent to which injuries sustained on 19.11.2015 and any progression of the incident occurring on 3.1.2017, contributed to or caused the need for surgery and any future surgery that may be required, and as to whether or not, on balance, the transport accident was a cause of the current condition and ongoing associated consequences.”[84]
[84]PCB 303
106The opinion in this report was somewhat changed from the opinion expressed in first report. The change was based on the report of Dr Tan dated 17 August 2016 which referred to:
“pain in the back and left lower limb. This pain becomes worse over the next two days, and he developed a sharp pain in the lower back going into the left lower limb to the posterior thigh and to the calf, and whole foot. This was associated with left lower limb numbness. He continued to have left lower limb pain, although it was bearable and not always severe. … .”[85]
(Emphasis added.)
[85]PCB 304
107Professor Teddy said the following:
“notwithstanding the relative lack of emphasis on back at lower limb pains compared to neck related symptoms in the year following his MVA, the report of Dr Swee Tan quite clearly describes back and leg symptoms despite the overriding concern for investigation of neck related pathology. On this basis, I believe that Mr Sidhu did suffer an aggravation of his lumbar spondylosis as opposed to a simple soft tissue injury or exacerbation of his lumbosacral pathology, as a result of his MVA. He suffered a further aggravation of this condition by virtue of his workplace incident in 2017, and this ultimately led to his surgery in 2021…
…
In this case, Mr Sidhu’s considered requirement for operation was most probably prompted by increased symptomatology following his work-related accident in January 2017. It is questionable as to whether in the absence of such injury he would have proceeded to surgery in any event. As to whether or not his transport accident was a cause of his current condition and presentation and ongoing associated consequences, one would have to opine that the MVA was at least, partly responsible for his current condition and symptomatology although accurate apportionment cannot be made.”[86]
(Emphasis added.)
[86]PCB 305
108On 3 January 2025, Professor Teddy provided a third report. He personally assessed Mr Sidhu with the assistance of an interpreter. He had been provided with a series of Certificates of Capacity issued by Dr Cortes between 23 November 2015 and 18 December 2016. Those documents variously referred to lower back pain. From 3 December 2015 onwards, the documents variously referred to “[right] arm pain under investigation, L5 nerve compression with multi-level disc bulge”.[87]
[87]PCB 306-307
109Professor Teddy recorded a history that in the 2017 incident, Mr Sidhu had been occupied doing mainly cleaning work. He tried to pick up an object from the floor and had instant lower back pain and was unable to stand. He went to hospital and was told he needed an operation, but the WorkSafe process was likely to be prolonged so he was discharged home on strong medications and referred for pain management. His condition continued to worsen following this incident.[88]
[88]PCB 309
110In Professor Teddy’s opinion, although further aggravated by the incident of 2017, contemporaneous medical assessment suggested that the 2015 incident had continued to represent an aggravation of pre-existing lumbar spondylosis to the time of the workplace incident.[89]
[89]PCB 310
Dr Clayton Thomas, pain specialist
111On 21 November 2024, Dr Thomas reported to Mr Sidhu’s solicitors. He noted a history of a significant impact in the transport accident. On 3 January 2017, Mr Sidhu was at work doing some cleaning activities. He was sweeping with a broom and picking up some cardboard when his back became suddenly stuck. He could not move. He lay on the floor for one or two hours. An ambulance was called and he was taken to the Austin Hospital, where he remained for seven days.
112Dr Thomas reviewed a number of images, including the CT scan of the lumbar spine dated 2 December 2015 and various MRI scans of the lumbar spine dated July 2021, August 2021 and December 2021. In his opinion, Mr Sidhu sustained an aggravation at the lumbosacral level and it was probable that he had long-term spondylitic spondylolisthesis at L5-S1. In his opinion:
“Impact was significant. This led to an aggravation at this level and the involvement of left sciatic involving the left L5 nerve root in the exit foramen.
…
…The motor vehicle accident on 19 November 2015 was a significant contributing factor to the impairment of his lower back in particular and to his neck to a lesser extent.
I say this on the basis that his neck complaint was minor compared with his back complaint.”[90]
[90]PCB 315
Certificates of Capacity
113Mr Sidhu tendered consecutive Certificates of Capacity dated between 3 December 2015 and 14 January 2017. These are discussed in detail below.
The Defendant’s medico-legal reports
Mr Gary Speck, orthopaedic surgeon
114On 20 September 2023, Mr Speck reported to the defendant. Mr Speck received numerous documents including compensation claims, treating doctor and therapist reports, ambulance records, radiological reports, clinical records and other medical records relating to Mr Sidhu.[91] In addition to this material, Mr Speck obtained authorisation from Mr Sidhu to view imaging online.[92]
[91]DCB 82-87
[92]DCB 55
115One such investigation was a CT scan of the kidneys performed on 15 October 2010. Mr Speck commented that:
“Although these are not specifically looking at the skeletal system, knowing the finding on the later films one can identify the pars interarticularis defects of the spondylolysis at the L3 and L5 levels which are evident on the latest imaging from 2015 onwards.”[93]
[93]Ibid
116In Mr Speck’s opinion, the workplace incident on 3 January 2017 was an episode of lower back pain in the presence of pre-existing spondylosis at the L3 and L5 levels. This would have been present from childhood or adolescence. It was not caused by the accident. They seem to be already well corticated on imaging, indicating a distant cause.[94]
[94]DCB 75
117Following the workplace incident, Mr Sidhu experienced ongoing pain and surgical treatment of the L5-S1 intervertebral disc level.[95]
[95]DCB 74
118Mr Speck was unable to find any relationship between the transport accident the surgery. The severe back pain requiring hospital admission in January 2017 led to the surgery, because of the ongoing nature of symptoms following that incident. In particular
“Although the vertebral defect of the pars interarticularis would have been present at both the L5 and L3 level prior to the work injury, the onset of persisting low back and left buttock and hamstring symptoms followed the work incident of 3/1/17 and were apparently not troublesome prior. … .”[96]
[96]DCB 78
119On 4 December 2024, Mr Speck provided a supplementary report to the defendant. That report was also prepared with the assistance of numerous enclosures and an in-person assessment of Mr Sidhu with a Punjabi interpreter.
120Mr Speck diagnosed:
“… Soft tissue injury … to the lower back but … without evidence of discoligamentous or vertebral structural injury and no contemporaneous clinical evidence to support ongoing back symptoms from soon after the subject transport accident”.[97]
Mr Speck expected those soft-tissue injuries to have resolved within six to twelve weeks of the subject transport accident.[98]
[97]DCB 115
[98]DCB 73, 116
Professor Tony Goldschlager, neurosurgeon
121On 5 October 2023, Professor Goldschlager reported to the defendant. He received numerous reports, claim forms, clinical records, imaging reports, treating doctor reports, referrals and physiotherapy reports. He assessed Mr Sidhu in person in the company of his wife and a Punjabi interpreter.
122A CT scan of the abdomen dated 15 October 2010, conducted as part of a renal investigation, was reported as showing “L5/S1 isthmic spondylolisthesis with a grade 1 slip. In addition there were pars defects at L3, with no spondylolisthesis”.[99]
[99]DCB 22
123Professor Goldschlager’s reported:
“… In my opinion, it is likely that the motor vehicle accident caused a soft tissue injury to his right upper limb, neck, abdomen and back. The relationship between the accident and the isthmic spondylolisthesis is more complicated. Certainly, the pars defects were pre-existing and not caused by the accident. The question is whether this pre-existing isthmic spondylolisthesis was aggravated by the accident. In my opinion, it is more likely than not, that the motor vehicle accident had no material contribution to the aggravation of the isthmic spondylolisthesis. The reasons for this are that there was no significant change in the imaging between 2010 and 2016. There was no mention of L5 radicular symptoms for several months following the accident to several doctors or to the physiotherapist and chiropractor. The low back pain and L5 radicular pain became the predominant problem in 2017.[100]
…
[100]DCB 23-24
The workplace incident caused an acute flare up of low back pain and possibly an aggravation of the pre-existing L5/S1 isthmic spondylolisthesis [which was in existence prior to the accident as is evident on the scan from 2010].” [101]
[101]DCB 23-24
124On 23 December 2024, Professor Goldschlager reported that his opinion regarding the causation of the lumbar spine problem was unchanged.
Issues and submissions
Mr Sidhu’s submissions
125At the commencement of her closing address, Senior Counsel for Mr Sidhu narrowed the issues as follows:
(a) Mr Sidhu relies on aggravation of his spondylolisthesis under sub-paragraph (a) of the definition of serious injury;
(b) Mr Sidhu was affected by an asymptomatic congenital abnormality of the lumbar spine. That abnormality was said to have been aggravated by the transport accident. Therefore, in line with Petkovski v Galletti,[102] the Court must assess whether the aggravation is “serious”;[103]
(c) causation ꟷ if the Court finds Mr Sidhu had ongoing and continuous lower back and radicular symptoms from the time of the accident, then anything that occurred in the workplace incident was also attributable to the transport accident. Therefore (given the defendant’s concession that the current lower back condition is serious) Mr Sidhu ought to succeed in his application;
(d) the defendant gave notice to cross-examine Dr Cortes and Mrs Kaur – Mr Sidhu’s wife. Both attended court, but were not required for cross-examination, therefore their evidence is unchallenged and ought to be accepted. In particular, the Court ought to accept the opinion of Dr Cortes given in August 2021 and November 2024 that “[s]ince the accident in 2014 [Mr Sidhu] has been complaining of the same symptoms”.[104] It was submitted the Court ought to draw an inference that Dr Cortes conducted a clinical examination of Mr Sidhu before providing that opinion, even though reference to such an examination may not be clear from the notes of Dr Cortes.[105] The Certificates of Capacity issued by Dr Cortes should be read together with the reports;[106]
(e) the Certificates of Capacity completed by two other doctors (Dr Kaur and Dr Dabash) allow a finding that each was of the view that Mr Sidhu had an ongoing back condition and radicular symptoms into the leg.[107] Mr Sidhu relies on the Certificates as evidence of the continuity of back symptoms and referred pain into the leg from the time of the accident;[108]
(f) as to credit, it was not unusual for a person to be unable to recall what they said to doctors ten years prior and if Mr Sidhu deposed to having seen doctors identified by name, it should not be held against him that he now cannot remember the names of the doctors. The truth of the matter is, he saw the doctors referred to and he had not lied about seeing doctors that he had not seen;[109]
(g) Mr Sidhu was a witness of truth on critical issues, such as when he first experienced back and leg symptoms together. The other evidence supports his evidence;[110]
(h) the ambulance record from the work incident supports a conclusion that Mr Sidhu had provided a history that he had “chronic back pain since the accident”;[111]
(i) there is no medical support for the defendant’s submission that the workplace incident was of such significance that it is the current cause of Mr Sidhu’s lower back condition;[112]
(j) Professor Teddy changed his initial opinion that the workplace incident offered the more profound exacerbation of the pre-existing lumbar spondylosis, because he accepted that Mr Sidhu had had ongoing symptoms and leg pain from the time of the transport accident;[113]
(k) the opinion of Professor Goldschlager as to causation should be given little weight as it is based on a false history that “[t]here was no mention of L5 radicular symptoms for several months following the accident to several doctors or to the physio and chiro”. Mr Sidhu relies on the CT scan of December 2015, the Certificates of Capacity and the reports of Dr Cortes and Dr Tan, who found “radicular symptoms in the leg in August of 2016”.[114]
[102][1994] 1 VR 436
[103]T164
[104]T158
[105]T160
[106]T163
[107]T53
[108]T154
[109]T168
[110]T173
[111]T181
[112]T183
[113]T189 ꟷ T190
[114]T192 ꟷ T193
The Defendant’s submissions
126Although all issues were initially contested, at the conclusion of the address of Mr Sidhu’s Senior Counsel, Mr Oldfield sensibly conceded that:
(a) there was no evidence of any prior symptoms associated with the lumbar spine;[115] and
(b) Mr Sidhu’s current “operated back” condition is serious and he ought to succeed if the Court finds “the transport accident was a significant cause of his operated spine”.[116]
[115]T201
[116]T200
127The defendant submitted that:
(a) Mr Sidhu was not a credible or reliable witness:
(i)he was evasive, vague and inconsistent, both in his oral evidence and in what he is said to have told doctors about his symptoms and consequences resulting from the transport accident, and the symptoms arising from the incident at work;[117]
(ii)he had deposed to receiving treatment from named doctors and in his oral evidence, he could not remember any names. In cross-examination, he was unable to recall what history he had provided to his GP on the first attendance after the transport accident, and in re-examination his memory became “sharp” and he was able to give a clear account.[118]
(iii)There was marked inconsistency between his affidavit and his oral evidence, the example relied upon was having deposed to complaining of left buttock pain after the accident; in his evidence he was unable to remember if he had left buttock pain. His affidavit contained overstatements or exaggerations designed to create an impression which was not supported by the contemporaneous evidence;[119]
[117]T109
[118]T170
[119]T111 ꟷ T114
(b) In the thirteen months following the transport accident (and prior to the incident at work) the course of treatment received by Mr Sidhu was for an ill-defined condition affecting his left and/or right arm, elbows and hands. The arm injury had dominated Mr Sidhu’s presentation, treatment and incapacity;[120]
(c) any contribution from the workplace incident to his current pain and disability has to be excluded.[121] Counsel relied on Zepic;
(d) the objective contemporaneous evidence supports a finding that Mr Sidhu sustained a soft-tissue injury to his lower back which resolved [prior to the workplace incident];[122]
(e) the objective medical evidence overwhelmingly supports a conclusion that the workplace incident is the cause of Mr Sidhu’s current operated lumbar spine condition;[123]
(f) the histories provided to doctors are not reliable and their opinions therefore are significantly undermined,[124] for example some doctors[125] were not informed about the workplace incident;
(g) the medical evidence does not support a causal link between Mr Sidhu’s current spinal complaints and the transport accident;[126]
(h) the opinion of Mr Speck as to causation is to be preferred, as Mr Speck received a full and complete medical history in the form of radiology, film, clinical files, treater reports and hospital records;[127]
(i) the diagnosis of Professor Goldschlager is the preferable diagnosis.
Analysis
[120]T110
[121]T207
[122]T206 ꟷ T207
[123]Ibid
[124]Zepic at paragraph [92]
[125]Examples given were Dr Michael Wong at DCB 170, Mr Simm at PCB 255, Dr Russell (history provided by Dr Cortes in the referral at PCB 149) and Dr Thomas at PCB 315.
[126]T139
[127] T134
Mr Sidhu as a witness
128Mr Sidhu was a difficult witness. It seemed to me that language and cultural barriers played a significant role in his ability to understand and answer questions. Although assisted by an interpreter, he did not wait for questions to be interpreted to him, before answering. On one occasion, he appeared not to understand the Punjabi word as interpreted for him.[128] Often, he spoke over the top of the interpreter or the cross-examiner, he answered some questions in English, some in Punjabi and some in a mix of the two languages,[129] at times, before the question was even completed.
[128]For example, see T43.
[129]For example, see T76 and T86
129He was non-responsive to many of the questions that were asked.[130] Frequently, I had to ask him to stop, to listen carefully to the question as interpreted.[131] Often, he answered questions in a way that sought to underscore his pain and difficulties, even if the questions were about something else.[132] On one occasion, it was necessary to ask the same question over and over again until he answered it.[133]
[130]For example, see T49 ꟷ T50, T62 and T64 ꟷ T65
[131]For example, see T62 ꟷ T63, T65 and T77
[132]For example, see T53 ꟷ T54 and T70 ꟷ T72
[133]For example see T 84-85
130Overall, I formed the view he was a relatively unsophisticated witness who had a rigid way of looking at events around his life. This might have contributed to his focus on answering questions in a way which underscored his case.
Credit and reliability
131In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
132The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[134]
[134]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 per Brooking JA; and Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
133Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
134I have considered the submissions made by counsel for the defendant. I do not accept that naming doctors in the affidavit and being unable to remember the names in cross-examination affects Mr Sidhu’s credit. I also do not accept that being unable to recall what he told doctors when, is a credit matter. There may be many reasons why a witness might not be able to recall, including one offered by Mr Sidhu himself, that he was taking a lot of medication.
135However, despite these matters, I consider there were aspects of Mr Sidhu’s affidavit and his oral evidence which suggest there were elements of carelessness, inconsistency and exaggeration in his evidence. I provide some examples below.
136In his second affidavit, Mr Sidhu deposed that his lawyers showed him a copy of a WorkCover claim form.
“… I believe I completed this when I was in hospital as there was a misunderstanding at the hospital about how I hurt my back. … .”[135]
[135]PCB 18
137The form was shown to Mr Sidhu in cross-examination. He was asked if that was the form he completed at the hospital and answered “I must have filled it”.[136]
[136]T74
138In re-examination, the claim form was shown to him again and he was asked if any part of the form was completed by him, and he answered “[n]o” and said the handwriting was that of his wife.[137]
[137]T98
139It makes no sense that Mr Sidhu was able to recognise his wife’s handwriting so rapidly in re-examination, but unable to do that when he affirmed his affidavit, and when the document was shown to him in cross-examination.
140In cross-examination, Mr Sidhu was asked about a history recorded by Mr Rogers and whether he had shown the surgeon where his pain was.
141Mr Sidhu said:
“… 99 percent of the doctors do not touch my body.
…
They don’t even touch me, they write down notes and they send me out.
…
… Half the time the doctors don’t check … More than half … Even see my body.”[138]
[138]T57
142I do not accept this evidence. It is not consistent with evidence which shows that doctors and treating and medico-legal surgeons all conducted physical and neurological examinations of Mr Sidhu.[139]
[139]For example, see Mr Rogers at PCB 143, Mr Simm at PCB 258, Mr Brownbill at PCB 290, Professor Teddy at PCB 309, Dr Thomas at PCB 314, the Austin Health report at PCB 158, Dr Weekes at PCB 177 and Dr Muir at PCB 188.
143It is improbable that Mr Sidhu would attend a doctor and make a complaint of bodily pain or injury and the doctor would not physically examine him.
144Mr Sidhu exhibited some photographs of his vegetable garden to his affidavit. He was asked about the photographs and said that his nephews had helped him establish the vegetable garden under his direction.
145In cross-examination, he was asked about what years it was that he had his vegetable garden and he gave his answer partly in English and partly in Punjabi. At the end of the cross-examination, I asked him to clarify his answer, with the assistance of the interpreter.
146I asked him, “[d]o you still have a vegetable garden” and Mr Sidhu answered, “[n]o, after 2020 I moved to other house ... there no space and no time even for gardening”.[140]
[140]T87
147In re-examination, he was asked about this answer. Before his Senior Counsel had an opportunity to finish her question, Mr Sidhu said, “I have smaller garden, little bit yes”. He was asked again whether he has a vegetable patch and he said, “[t]here is a patch over there … Coriander and spinach, it grows by itself and my wife takes care of it”.[141]
[141]T90
148I consider this answer was inconsistent with the evidence he had given earlier.
149Overall, the inconsistent answers Mr Sidhu gave in his sworn evidence created an impression that he was either careless about the veracity of his evidence, or he was not telling the truth.
150I am unable to find which of these reflects the actual state of affairs.
151In my opinion, however, it does not matter. Either way, his evidence is unreliable.
152I have taken into account, in his favour, the cultural and language barriers; Mr Sidhu’s use of strong opiate medications and his inability to understand some matters translated to him even in his own language. Even allowing for those matters, I formed an unfavourable impression of Mr Sidhu as a witness for the reasons outlined above.
153Therefore, it is necessary to examine the circumstances of the transport accident and the workplace incident, the contemporaneous records, diagnostic tests, the path of treatment and medical opinions with greater scrutiny. Such objective matters carry significant weight in this case.
Did Mr Sidhu experience ongoing and continuous lower back and radicular symptoms from the time of the transport accident?
154It was common ground between the parties that Mr Sidhu’s pre-existing spondylolisthesis was asymptomatic prior to the accident on 19 November 2015.
155It was also not in dispute that, following the accident, Mr Sidhu self-extricated from the vehicle. In his affidavit he deposed:
“… I did not feel any immediate pain and I called a workmate, who collected me from the scene and took me home.
However, that night and early morning, I developed increasing pain in the left side of my neck and my lower abdomen and later, in my left buttock, the left side of my lower back, my right elbow and lower abdomen.”[142]
[142]PCB 11
156Although Mr Sidhu and his wife both deposed the attendance was on the day following the transport accident, the records show he attended on 23 November 2015, four days after the transport accident.
157Mr Sidhu also deposed that, on the day of his attendance, Dr Kaur ordered investigations of “[his] neck and right elbow and a CT scan of [his] spine”. However, the records show that the CT scan of the spine was ordered on 26 November 2015.
158These matters do not go to credit, but in my view are relevant to the assessment of the immediacy and severity of symptoms arising from the transport accident.
159On 23 November 2015, Mr Sidhu was first seen by Dr Kaur.
160Dr Kaur spoke Punjabi, although Mr Sidhu told the Court that she was not a native speaker, as she was born in Australia. He said he spoke to her in a mixture of English and Punjabi.[143]
[143]T84 ꟷ T85
161Dr Kaur recorded the following history:
“Involved in car accident on Thursday last week
Rear ended by another car on freeway and then car spun
Having pain in R flank and tingling in R middle finger extended up arm
Also some pain in R elbow and lower back
No head injury or LOC
Wearing seatbelt
Exam
Ears TM normal
PEARLA
No midline C-spine pain
No neuro
Normal sensation at site of tingling
Abdo mild discomfort R flank. No peritonitic signs. BS present.
Plan
? Nerve irritation C7 R side
? From neck or elbow
For Xray
Abdo pain ? from seatbelt
For USS
Discussed monitor back pain - likely muscular
Discussed CT would be better than Xray - review in 7 days as if muscular pain will be done.
Come back sooner if any issues”[144]
[144]DCB 265
162The record shows that, at the time of this attendance, Dr Kaur requested an abdominal ultrasound, an x-ray of the cervical spine and right elbow, prescribed Panadeine Forte and issued a “CC Certificate”. That CC Certificate is not in evidence.
163It is clear from the note that Dr Kaur recorded complaints of back pain and neurological-type symptoms affecting Mr Sidhu’s right middle finger.
164Under “[e]xam” Dr Kaur noted “[n]o neuro” which suggests she conducted a neurological examination.
165In all probability, the neurological examination would have focused on the neck as the recorded symptoms relate to the arms. Further, under “[p]lan”, the doctor noted “? nerve irritation C7 R side ? from neck or elbow”. In order to investigate the matters marked with a question mark, the doctor ordered an x-ray of the cervical spine and elbow.
166No neurological symptoms relating to the lower back were recorded by Dr Kaur. No investigations of the lumbar spine were ordered.
167I consider the record demonstrates that, despite Mr Sidhu’s assertion of language difficulties, Dr Kaur was able to understand his complaints of neurological symptoms in the neck, record them, conduct a neurological examination and order tests directed at investigating such symptoms.
168The assertion in Mr Sidhu’s affidavit that he also suffered pain in the “left buttock” is also not supported by this contemporaneous record. In cross-examination, Mr Sidhu was unable to recall if he had pain in his “left bum” after the transport accident.[145]
[145]T42 ꟷ T44
169Mr Sidhu was again seen by Dr Kaur on 26 November 2015. Dr Kaur’s note provides:
“7 days post MVA
Anterior wedging C5 on Xray
Discussed pros and cons of CT scan, esp to thyroid gland
He is still having referred pain down his R arm
For CT scan
Abdo symptoms resolved
Abdo USS report not back yet - tried to call radiology but they are closed
Given form for CT scan - discussed that he can wait for 7 days if he wishes, and if symptoms persist, then to get it done.
He is still having significant pain in lower back since the accident”[146]
[146]DCB 264-265
170Dr Kaur ordered a CT scan of the neck and lumbar spine, prescribed a codeine syrup and issued a “CMC Common Medical Certificate”. That certificate is not in evidence.
171Aside from “significant pain in the lower back”, Dr Kaur’s note makes no mention of left buttock pain, or any symptoms in Mr Sidhu’s legs. Unlike the first note, which clearly refers to a neurological examination having been conducted, no such reference was made in this note relating to the back or lower legs.
172On 2 December 2015, Mr Sidhu underwent a CT scan of his lumbar spine. The report of the scan is in evidence. Under “clinical notes”, the radiologist has recorded the following: “[c]ar accident. Radiating neck pain on left side”.[147]
[147]PCB 328
173On 3 December 2015, Dr Kaur recorded the following complaints or symptoms:
“C7/8 level R sided arm pain
L5 nerve irritation on CT scan
Lengthy chat about options
Trial of lyrica + panadeine
Next week refer for physio
Reason for contact:
Neuropathic pain”[148]
[148]DCB 264
174Dr Kaur prescribed Voltaren, Lyrica, Panadeine Forte tablets and issued a “CMC Vic Workcover and TAC”. That document is in evidence.
175There is no record in this note of any symptomatology which might relate to back pain or neurological-type symptoms coming from the lumbar spine. The note suggests the doctor considered that the CT scan demonstrated L5 nerve irritation.
176On 17 December 2015, Dr Kaur recorded the following:
“Arm pain still present
back much much better
Using Lyrica
Discussed physio review
Under TAC
Letter written
Also under medicare did steroid injections for alopecia”[149]
[149]DCB 263-264
177Dr Kaur recorded that she wrote a referral to James Macfarlane and created a letter to the defendant.[150]
[150]DCB 264
178The referral to James MacFarlane is in evidence. It makes no mention of reported referred pain into the buttock or legs. It provides:
“… residual pain in R arm which I believe may be from holding the steering wheel during the crash. Xray normal. He is also having tingling in R arm C7/8 dermatome distribution, and L 5 nerve irritation on CT lumbar spine.”[151]
(Emphasis added.)
[151]DCB 127
179Consistent with Dr Kaur’s note of 3 December 2015, the referral suggests the alleged opinion regarding nerve irritation derives from the CT scan, rather than reported symptoms.
180Consistent with the note of 17 December 2015, Dr Kaur made no referral for treatment of lumbar pain. The reason for this might be her note that Mr Sidhu had reported “back much much better”.
181In cross-examination, the note was put to Mr Sidhu and he agreed his back pain was much better at this time.[152] However, I place little weight on his evidence for the reasons I have outlined. I prefer the contents of the contemporaneous note which, on this occasion, happens to coincide with Mr Sidhu’s evidence.
[152]T48
182Between 7 January 2016 and 15 April 2016, Mr Sidhu attended the Croydon Medical Centre five times and the only recorded complaints were about arm pain, elbow pain and hand numbness.[153]
[153]DCB 261-263
183On 4 May 2016, Dr Dabash recorded as follows:
“He still has the pain and numbness on his both hand and on his left leg.. no much improvement.
has seen the surgeon .waiiting for the report.”[154]
(sic)
[154]DCB 261
184Between 4 May 2016 and 14 January 2017,[155] Mr Sidhu attended the Croydon Medical Centre eleven times for a variety of issues, including blood pressure and pain and numbness in the arm.[156] There is no record of lower back pain or referred symptoms into the leg on these attendances.
[155]DCB 255-260
[156]Not including the attendances on 4 May 2016 and 14 January 2017.
Certificates of Capacity
185Senior Counsel for Mr Sidhu relied heavily on the Certificates of Capacity as evidence of “L5 nerve compression”,[157] evidence of the continuity of back symptoms and referred pain into the leg from the time of the accident. Senior Counsel also relied on the Certificates as evidence that Dr Kaur and (later Dr Cortes and Dr Dabash) were of the opinion Mr Sidhu has “L5 radicular pain”.[158]
[157]T160
[158]T162
186I reject all of those submissions. I outline my reasons below
187I accept the defendant’s submission that the Certificates are “templates” or pro forma documents. They are clearly marked at the top, to be issued for either “a transport accident or a work-related injury or illness”.
188In this case, a typed “X” appears in the box next to “Transport accident related” on every certificate.
189Every certificate, contains the following typed note under “Capacity Assessment – Physical Function”:
“Seated in seat with arm rests
Can stand or walk for 1hr , followed by break for 5 mins
No repetitive movements of R arm
Lift 5kg”[159]
[159]See, for example, PCB 360
190Every certificate, contains identical markings with a typed “X” indicating the doctor’s assessment of Mr Sidhu’s ability to sit/stand bend/squat et cera, under three separate boxes marked “can”, “with modifications” and “cannot”.
191The Certificates of Capacity all contained the following typed note under “My Clinical Diagnosis/es based on my examination of you and the other available information is”:
“R arm pain under investigation. L5 nerve compression with multi-level disc bulge.”[160]
[160]Ibid
192The Certificate of Capacity dated 3 December 2015 appears to be the first of its kind issued for Mr Sidhu. When read together with the progress note of the same date, it suggests that the “L5 nerve compression” comes, not from any recorded symptom attributable to Mr Sidhu, but from the CT scan.
193Considering the Certificates individually and as a group, it is probable that Dr Kaur typed the first of these into a computer, and thereafter, each certificate was issued in identical terms, save for the following:
(a) the dates, period of incapacity and the name of the issuing doctor;
(b) addition of the words “has been referred to see the surgeon” on every certificate from 17 March 2016 onwards.
194When compared with the contemporaneous notes and reports of Dr Kaur and Dr Cortes, it is clear that neither doctor held the opinion attributed to them by Senior Counsel for Mr Sidhu.
195It is improbable that they held such an opinion and did not refer to it in reports they issued to the defendant; to treating specialists, such as the physiotherapist; to the neurosurgeon, Dr Michael Wong, or the neurosurgeon, Mr Rogers.
196All the referrals written by Dr Kaur prior to the workplace incident in January 2017 were for treatment of pain and symptoms of the neck and right arm.
197Although Dr Kaur referred to “L5 nerve irritation on CT lumbar spine”, her note of 7 January 2016 demonstrates that the focus was on the neck and arm symptoms. There is no reference to any symptom or concern about lower back pain or L5 nerve irritation.
198The note provides:
“Spoke with James physio at McFarlane clinic
We both agree [Mr Sidhu] would benefit from MRI neck as his arm pain my be radiculopathic and also USS forearm for localised cause
[Mr Sidhu] here today - discussed this with him
Discussed may need MRI of his arm if other Ix non-conclusive - he will take with TAC about this also”[161]
(sic)
[161]DCB 263
199I accept the submission made on behalf of the defendant that the Certificates of Capacity do not contain Dr Kaur’s opinion about the L5 nerve, I find they contain a reference to the CT scan of December 2015.
200I reject the submission that the unchallenged reports of Dr Cortes support Mr Sidhu’s case. No reports of Dr Cortes pre-dating the workplace incident were in evidence. The first report in evidence is dated 15 June 2017 (six months after the workplace incident). It focused on neck pain and right arm pain and indicated “awaiting a report of a spinal surgeon Dr Michael Wong”.[162] It night be recalled that Dr Michael Wong had not assessed Mr Sidhu prior to the workplace incident.
[162]PCB 190
201The Progress Notes show that Dr Cortes first assessed Mr Sidhu on 6 February 2016, almost a year before the workplace incident. That assessment was about the right elbow. Dr Cortes ordered a “US guided R elbow cortisone injection”.[163]
[163]PCB 262
202The next time Dr Cortes assessed Mr Sidhu was on 5 June 2016, again in respect of the right arm. The plan noted by Dr Cortes was “we are planning to contact Mr Rogers’ office to see if any progress in regards of letters” and a TAC certificate was noted as “given” by Dr Cortes.[164]
[164]DCB 260
203On 16 August 2016, Dr Cortes recorded “today BP is much better”.
204On 18 December 2016, Dr Cortes recorded complaints about neck pain and associated anxiety.
205On 18 January 2017, about two weeks after the workplace incident, Mr Sidhu attended Dr Cortes but the record of attendance contains no reference to that incident.[165]
[165] DCB 255
206While the Certificate of Capacity given by Dr Cortes on 5 June 2016 refers to “L5 nerve compression with multi-level disc bulge”, his contemporaneous notes do not record any history of referred pain into the buttock or leg and do not suggest that any examination of the lumbar area was conducted. The only record of back pain is in the context of significant improvement, in August 2016.
207Finally, it is improbable that either doctor considered Mr Sidhu was suffering from ongoing lower back pain and referred symptoms into the leg from a transport accident. Neither of them referred Mr Sidhu for further investigations, (for example an MRI scan), nor referred him for specialist assessment for lumbar pain and/or radiculopathy. Such steps were taken by all these doctors in respect of the cervical spine and arm pain and it would be expected they would do the same if they genuinely believed Mr Sidhu was suffering ongoing symptoms, as he deposed, and as submitted by his Senior Counsel.
208For the above reasons, I find the Certificates of Capacity, the Progress Notes and the reports of Dr Kaur and Dr Cortes do not support a conclusion that Mr Sidhu had continuous lower back pain or continuous referred symptoms into the buttock or leg, from the time of the transport accident to the time of the workplace incident.
209I take into account that a doctor’s progress notes are not a transcript of the consultation with their patient, nor are they maintained for forensic purposes. They are a record made by a doctor for treatment purposes. Usually they are made at or around the time of the attendance, in short form, not including everything said by the doctor or the patient. The notes might refer to the reason for attendance or the complaints, the doctor’s impression and the steps taken. This includes referrals for investigation and for treatment guided by the examination findings.
210Taking these matters into account, I consider the notes of Dr Kaur, when compared to her contemporaneous reports and referrals, demonstrate with some force that she considered the relevant ongoing symptoms from the transport accident to be neck pain and referred symptoms into the arms. Those are the symptoms she investigated and those are the symptoms in respect of which she referred Mr Sidhu for treatment.
211Whatever view Dr Kaur may have formed about the CT scan dated December 2015, she provided no referrals for treatment and no further investigations in respect of the lumbar spine.
212Dr Cortes’ contemporaneous progress notes do not support the contention that Mr Sidhu complained that he was experiencing ongoing lumbar pain or referred pain into the buttock or leg from the time of the transport accident.
213The contemporaneous evidence from the Croydon Medical Centre, taken individually and as a whole, does not support the submissions made by Senior Counsel for Mr Sidhu, but does support the submission made on behalf of the defendant.
Specialist treatment from the time of the transport accident and prior to the workplace injury
214Following the transport accident, Mr Sidhu was treated with physiotherapy by James Macfarlane. The reports suggest Mr Macfarlane has been a physiotherapist since 1964.[166]
[166]PCB 157
215James Macfarlane treated Mr Sidhu over twelve sessions from 29 December 2015. The treatment related to neck pain, arm pain and right elbow pain.
216Despite the reference in the referral letter of “L5 nerve irritation on CT lumbar spine”, no treatment for that area was provided. I consider that an experienced physiotherapist would most likely have read the referral letter, made appropriate enquiries with Mr Sidhu, and provided treatment to those areas affected by pain or symptoms as reported by the patient.
217James Macfarlane’s reports contain no reference to lumbar, buttock or leg pain. The recommendation at the end of the treatment was that specialist opinion regarding the elbow should be obtained from a hand or arm specialist.
218In April 2016, Mr Sidhu attended neurosurgeon, Mr Rogers, on referral from Dr Dabash. Mr Rogers’ report to Dr Dabash refers to neck, arm and elbow pain. Mr Rogers subsequently viewed imaging of the cervical spine. The report makes no reference to lumbar spine pain or referred symptoms into the buttock or leg.
219In October 2016, Dr Weekes reported that he had treated Mr Sidhu for pain in his right arm and neck. Medial Branch Blocks to C3-5 were administered in November for “cervicogenic pain”. The reports make no mention of lumbar or leg symptoms. It is improbable that Mr Sidhu would attend a pain doctor and not mention all of his pains. It is equally improbable that a pain doctor would receive a history of pain and referred symptoms and neither treat it, nor report on it.
220On 17 August 2017, Professor Bittar, an experienced neurosurgeon and spinal surgeon, reported to Dr Cortes regarding his assessment of Mr Sidhu’s neck and right arm symptoms. No history of lumbar, buttock or leg symptoms is recorded in the report. Contrary to Mr Sidhu’s affidavit that he was referred to “Precision Spinal Clinic for [his] back and neck symptoms”.[167] The reports suggest he was only referred and treated for his neck.
[167] PCB 11
221Professor Bittar reported that further investigation was warranted, as was a review by neurologist, Dr Swee Tan.
222I reject Mr Sidhu’s affidavit evidence that he reported the lower back pains to doctors, but the focus of their treatment was his neck and arm pain. It is improbable that he mentioned these symptoms, but the neurosurgeons ignored or missed the alleged history.
223Senior Counsel for Mr Sidhu relied heavily on a history recorded by Dr Swee Tan on 17 August 2016.
224On that day, Dr Tan was reporting to Professor Bittar. He referred to the circumstances of the accident, the pains in the right arm, the neck and abdomen, and to a history which includes reference to sharp pain in the lower back and referred into the left lower leg, causing numbness to the left foot. Mr Sidhu was said to have continued to have this pain, but it had been bearable and not always severe.
225Dr Tan took into account the history provided, reviewed imaging of the cervical spine, conducted nerve conduction studies and diagnosed chronic pain, which he recommended be treated with Endep.
226I do not accept the history recorded by Dr Tan supports a finding that Mr Sidhu had continuous back and lower leg symptoms from the time of the transport accident. My reasons are as follows:
(a) I accept the submissions made on behalf of the defendant that the history cannot be viewed in isolation. When considered together with the totality of the treatment received from a range of specialists, it is doubtful that it was an accurate history;
(b) the history is the only history of this kind, despite contemporaneous attendances on general practitioners, an experienced physiotherapist and two neurosurgeons;
(c) the focus of all treatment following the accident was on the neck and arms. Dr Tan had been asked by Professor Bittar to provide an opinion. Given the contents of Professor Bittar’s report, the focus of the request was likely the neck and arms;
(d) Mr Tan’s report does not refer to any interpreter or other person being present to assist Mr Sidhu. Given the language difficulties which were apparent in court and about which Mr Sidhu gave evidence, it is not possible to rely on this history as being accurate.
What injury did Mr Sidhu suffer to his lumbar spine in the transport accident?
227The circumstances of the transport accident, as described by Mr Sidhu, are that he was rear-ended at high speed, “breaking [his] car seat” and he was “lying down”. That may or may not be a correct description of what occurred. The objective evidence shows he did not experience immediate pain; did not go in an ambulance, despite the fact that one was called and did not go to his doctor for four days after the accident.
228While these matters are not in themselves determinative, they are relevant pieces of evidence in the overall assessment of the injury. The circumstances suggest that whatever injury occurred, it was not apparent to Mr Sidhu for a number of days.
229There are no expert opinions on the extent and degree of lumbar spine injury following the transport accident, as Mr Sidhu was being treated for neck and arm pain.
230The opinion which most accurately adopts Mr Sidhu’s history (of both the accident and the workplace incident) is that of Mr Simm, orthopaedic surgeon.
231Mr Simm provided a joint opinion to Mr Sidhu and the defendant with respect to impairment assessment.
232The opinion was in part based on Mr Simm’s consideration of the CT scan of the lumbar spine taken in December 2015, which formed the basis of the “”diagnosis” in the Certificates of Capacity.
233In part, it was also based on a history provided by Mr Sidhu that he had lumbar pain and leg pain soon after the accident and significantly, a history that the workplace incident was minor and made no substantial change to the type and quality of his pain.
234Mr Simm diagnosed “axial lumbar back pain and somatic leg pain in the setting of somebody with a whiplash syndrome … [with] features of non-organic and/or psychological involvement”.[168] There were no clinical signs of radiculopathy.
[168]PCB 266-267
235Taking into account my findings about the contemporaneous records, I consider that, immediately after the transport accident, Mr Sidhu suffered some back pain which was much better by 17 December 2015, as recorded by Dr Kaur. There is no reliable evidence of any neurological symptoms (as opposed to imaging) associated with that back pain.
236In April and May 2016, Mr Sidhu reported left leg pain to Dr Dabash and Dr Tan. Such pain can only be viewed as transient. This is supported by the note of Dr Cortes in August 2016 that the back pain was much better.
237Although the back pain might have appeared to be associated with radiculopathy, there is no specialist opinion which supports the claim for radiculopathy. As he is an unreliable witness, I consider his evidence of ongoing and continuous pain referred into the leg to be unreliable.
238I do not find there was any impact on Mr Sidhu’s ability to work as a result of lumbar pain or referred symptoms into the leg in the period after the transport accident and prior to the workplace incident.
239The report of James Macfarlane suggests that Mr Sidhu was “keen to work, and would do so if his elbow pain resolved”.[169]
[169]DCB 8
240The evidence before me does not support any submission that Mr Sidhu was in receipt of strong medication on account of his back prior to the workplace incident.
241Dr Kaur prescribed Panadeine Forte for a variety of pains, including what turned out to be ongoing pain in the neck/arm/elbow. Lyrica and Voltaren were prescribed when Dr Kaur recorded histories of ongoing right-sided arm pain.
242Dr Dabash did not prescribe any medication, make any referrals, or request any investigations when he noted a history of left leg pain. Dr Tan prescribed Endep for “chronic pain”, which included neck and arm pain and the history of lumbar pain.
243I accept Mr Sidhu cannot now carry out gardening and a range of other activities as a result of the impact of the back surgery.
244His affidavits make no attempt to delineate between the consequences of the transport accident and the consequences of the workplace incident. I am unable to make further findings about the consequences of the transport accident.
245For the reasons stated above, I find Mr Sidhu experienced some back pain symptoms immediately after the accident and transient somatic leg symptoms, neither of which caused any doctor to take steps to have the lumbar spine further investigated (after December 2015) or treated. I find the back pain significantly improved by December 2015, and any symptoms experienced thereafter were transient.
246I note the report of Dr Tan dated 28 September 2016 referring to the back pain as having resolved. This, together with the reminder of the contemporaneous evidence, supports a finding of transience. At best, Mr Sidhu suffered a minor soft-tissue injury to his lumbar spine, from which he recovered fairly soon after the transport accident.
247Mr Sidhu has not discharged his onus of satisfying the Court that the condition of his lumbar spine, after the transport accident and before the workplace incident, was “‘at least very considerable’ and certainly more than ‘significant or ‘marked’”.
The workplace incident on 3 January 2017
248At approximately midday on 3 January 2017, Mr Sidhu was at work. An ambulance was called at approximately 12:21. The “Event Register” record suggests the caller provided the following history:
“Problem: PULLED BACK FROM PUSHING HEAVY ITEM, CANT GET UP”[170]
[170]DCB 143
249The record also provides the following:
“@1245 CALL RE-ETA - PAIN RADIATING TO LEG AND UNABLE TO MOVE HIS HAND”[171]
[171]Ibid
250The description in the ambulance record provides the following:
“(MT) strechered 36yo M pulled back after bending down, sudden onset to lwr back, pain radiating to L) leg, unable to move 10/10 pain on movement. has a past history MVA in 2014 and neck and lwr back pain. Penthrane has given little relief, pain down to 4/10 PT was in the lateral position able to roll him on to his stomach on to the sine spineboard and lift him on to strecher”[172]
(sic)
[172]PCB 152
251Mr Sidhu was taken by ambulance to the Austin Hospital Emergency Department.
252His evidence was that a Worker’s Injury Claim form was competed at the hospital. That form provides the following history:
“Lower body part [was injured], back pain (sharp) going through leg.
…
I was trying to pick up wood pieces, suddenly my left leg stop working. I fell down on the ground”[173]
[173]DCB 6
253In evidence, Mr Sidhu said:
“… that day I’m cleaning and maybe something take on the floor, I think it's cardboard but not exactly sure what I take. … .”[174]
[174] T70
254In contrast to the transport accident, which left no immediate signs of injury and in respect of which Mr Sidhu did not attend a doctor for a number of days, the workplace incident was significant. He was on the floor when the ambulance arrived and was taken on a stretcher to the Emergency Department.
255There, Mr Sidhu was examined and admitted under rheumatologists for seven days. The impression of the rheumatologists was that Mr Sidhu had ongoing neuropathic pain. He was discharged home with physiotherapy and a hydrotherapy plan.
256On 14 January 2017, Dr Cortes noted that Mr Sidhu had been to hospital because of back pain, was now on strong painkillers and was planning to go to India and his “back pain is doing not good”.[175] There is no mention of the workplace incident in the doctor’s note.
[175]DCB 255
257Dr Cortes prescribed (for the first time) Targin and OxyNorm.[176] Four days later, Dr Dabash received a similar history and provided another prescription for Targin and OxyNorm.[177] In April 2017, Palexia was added by Dr Cortes.[178]
[176]DCB 256
[177]DCB 255
[178]DCB 253
258In May and June 2017, Mr Sidhu attended Dr Michael Wong on referral from Dr Cortes. Dr Michael Wong’s report refers to a history of chronic neck and lower back pain and MRI scans of the neck and lumbar spine. Based on the MRI scan which showed a Grade 1 L5 spondylolisthesis, Dr Michael Wong recommended an L5-S1 decompression and lumbar interbody fusion.
259In July 2021, Dr Russell reported to Dr Cortes. He noted a history of lower back pain and left leg pain since the transport accident and intermittently throughout the years. In August 2021, Dr Russell reported that, since July, Mr Sidhu was experiencing:
“increasing and intensifying back and leg pain to the point where he was really struggling to cope on a day-to-day basis, had not been able to sleep and struggle to even get out of the chair. He had not been able to perform any work his pain was as high as 8/10.”
260This report shows the significant impact on Mr Sidhu of the lumbar spine condition. This is in stark contrast to the absence of any complaints of this kind following the transport accident.
261Neither Dr Michael Wong, nor Dr Russell have ever reported receiving a history about the workplace incident, the hospitalisation and the substantial increase in medication, including strong opiates, following the workplace incident.
262On 18 August 2021, Dr Russell performed the L5-S1 posterior lumbar interbody fusion. The operation report refers to “6 years of left L5 radicular pain and LBP following a car accident”.[179]
[179]PCB 226
263Mr Sidhu initially felt relief from his pain and symptoms. However, in a matter of months after the surgery, the pain had returned.
264Dr Russell eventually confirmed that the surgery has been complicated by non-fusion and loosening of the left L5 screw, with subsequent further bony growth into the L5-S1 foramen causing further complications of the left L5 nerve. A revision surgery has been recommended, but not yet undertaken, by Mr Sidhu.
265On 5 February 2025, Dr Russell reported his opinion about whether the transport accident on 19 November 2015 has been a significant contributing factor to the current injury and impairments of Mr Sidhu’s neck and/or back.
266In essence, his opinion was it was very likely that:
“the accident disrupted the ligamentous structures stabilising this L5/S1 level and subsequently caused his lower back and left leg pain. I have seen this many times where injury or accident suddenly flares up and destabilises a chronic isthmic spondylolisthesis, precipitating new lower back and leg pain.”[180]
[180]PCB 251
267Ordinarily, the opinion of a treating surgeon who has seen the internal condition of the lumbar spine for himself, would carry significant weight.
268In the circumstances, however, I reject Dr Russell’s opinion for the following reasons:
(a) the evidence does not support a sudden flare-up or destabilisation of Mr Sidhu’s lumbar spine following the transport accident. On the contrary, it supports a conclusion that no such flare-up occurred until after the workplace incident;
(b) Dr Russell only assessed Mr Sidhu well after the workplace incident. He can give no contemporaneous opinion on the effect of the transport accident;
(c) Dr Russell has provided a number of reports, none of which referred to the workplace incident;
(d) the opinion appears to be based on acceptance of a history of six years of back and leg pain since the accident, which history comes from Mr Sidhu, who is an unreliable witness;
(e) the history of ongoing back pain since the time of the accident is not supported by the contemporaneous evidence;
(f) I consider the workplace incident to be significant. It resulted in an ambulance being called, Mr Sidhu spending a week in hospital, and thereafter his level of function was significantly impaired on account of the lumbar spine, and his medication regime was changed from the occasional Panadeine Forte and/or Lyrica to strong opiate drugs, such as Targin, OxyNorm and Palexia.
269As to causation, I prefer the first opinion of Professor Teddy, in his first report dated 2 February 2022.
270That opinion was based on consideration of the Austin Hospital records relating to the admission in January 2017 following the workplace incident, and a variety of other clinical and medical records relating to Mr Sidhu’s treatment.
271Professor Teddy considered that the contemporaneous reports failed to demonstrate any form of significant neurological abnormality either in the upper or lower limbs, which could be interpreted as suggestive of radiculopathy.
272In relation to the transport accident of 2015, Professor Teddy diagnosed possible exacerbation of lumbar spondylosis, noting that the findings of Mr Simm were more suggestive of the symptoms being in keeping with a soft-tissue injury.
273Significantly, Professor Teddy considered that the more profound exacerbation of the pre-existing lumbar spondylosis occurred as a result of the incident at work in January 2017. That opinion was on the background of the assessments of both Professor Bittar and Dr Tan, and the notation “that no particular problems appear to have been reported in relation to back pain at the time of his review in 2016”.[181]
[181]PCB 301
274On 3 January 2025, Professor Teddy reported that, having viewed the history of lower back and left lower limb pain in the report of Dr Tan, he now considers that:
The symptoms related to his lower back continue despite interim spinal decompression fusion by Mr (sic) Russell. On the balance of probabilities, although further aggravated by the incident of 2017, such evidence as exists in terms of contemporaneous medical assessment suggest that the 2015 incident had continued [to] represent an aggravation of pre-existing lumbar spondylosis to that time.”[182]
(Emphasis added.)
[182]PCB 310
275I reject the changed opinion of Professor Teddy reported on 3 January 2025 for the following reasons:
(a) there is no adequate explanation for the change of opinion. While the report contains specific reference[183] to the report of Dr Tan, citing lower back and leg symptoms, no explanation was provided by Professor Teddy of what these symptoms might have been and how long Professor Teddy considered they had been in existence following the transport accident;
(b) Professor Teddy’s first report refers to reports of Dr Tan and Professor Bittar. The changed opinion does not address whether the report of Dr Tan in Professor Teddy’s first report was the same or different as the report he relied on to change his opinion. Further, it is not clear whether Professor Teddy was ever provided with the report of Dr Tan dated 28 September 2016, which suggests that the back problem had resolved;
(c) I accept the submissions on behalf of the defendant that the reliability of Dr Tan’s recorded history of ongoing lower back and left leg symptoms is questionable.[184]
[183]In Professor Teddy’s report of November 2022.
[184] T134
276I take into account the opinions of Professor Goldschlager and Mr Speck that the transport accident made no material contribution to Mr Sidhu’s current lower back condition.
277I reject the submission made by Senior Counsel for Mr Sidhu that Professor Goldschlager’s opinion is undermined, as it is based on a false history that “[t]here was no mention of L5 radicular symptoms for several months following the accident to several doctors or to the physio and chiro”.[185]
[185]T194
278The history is not false. The first mention of any leg symptoms is found in the report of Dr Tan in April 2016, five months after the transport accident, and I find it is unreliable. Further, any reference to the findings of the CT scan of December 2015 is not equivalent to a recorded history. Mr Simm clearly stated that many individuals can present with radiological results like those of Mr Sidhu and have no symptoms at all.
279Of significance to my assessment is that both Mr Speck and Professor Goldschlager had access to the full medical history, reports and importantly viewed actual imaging. Both give weight to matters I find of significance, which include the contemporaneous record of complaints, investigations and treatment prior to the workplace incident and afterwards.
280I accept the submissions on behalf of the defendant that the weight of the medical evidence as to causation is directed to the workplace incident and not to the transport accident.
281I find that the current condition of Mr Sidhu’s spine is attributable to the workplace incident. Any contribution from the transport accident which may exist is minor, if it exists at all.
Conclusion
282Mr Sidhu has not discharged his onus of establishing that the current serious condition of his lumbar spine was caused by the transport accident.
283His application is dismissed.
284I will hear the parties with respect to costs.
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