Tardio v Transport Accident Commission

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-02052

GABRIEL MICHAEL TARDIO	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 April 2021
DATE OF JUDGMENT:	25 May 2021
CASE MAY BE CITED AS:	Tardio v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 649

REASONS FOR JUDGMENT
---

Subject:TRANSPORT ACCIDENT
Catchwords:              Serious injury – impairment to the spine
Legislation Cited:      Transport Accident Act 1986, s93
Cases Cited:              Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Transport Accident Commission & O’Dea v Dennis [1988] 1 VR 702; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Parrish v Specialized Australia Pty Ltd (Rulings) [2020] VSC 15; Dasreef v Hawchar (2011) 243 CLR 588
Judgment:                  Application dismissed.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Fitzpatrick with Mr M A Belmar	Slater and Gordon
For the Defendant	Mr W R Middleton QC with Mr S Pinkstone	Solicitor to the Transport Accident Commission

HER HONOUR:

1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 6 December 2012 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to sub-paragraph (a) is the spine.
4The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]        See Richards & Anor v Wylie (2000) 1 VR 79
6In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than ‘significant’ or ‘marked’”.[2]
[2]        See Humphries & Anor v Poljak [1992] 2 VR 129 at 140-141
7In issue in this case was range and also the contribution of the accident to any current spinal problems.
8Counsel for the plaintiff submitted one of the key consequences the plaintiff relied on was his inability to continue in his pre injury work as a forklift driver.[3]
[3]        Transcript (“T”) 1
9Counsel for the defendant submitted this case demonstrably falls short of consequences that are even substantial or purported to be.[4]
[4]        T81, T96. See Callaway J in Transport Accident Commission & O’Dea v Dennis (1998) VR 702 at 703
10The plaintiff swore four affidavits and was cross-examined. He also relied on affidavits of lay witnesses: his partner, Gail Poysner, and his former co-worker, Ravie Sharma, both sworn 21 January 2021. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s evidence
11The plaintiff’s first affidavit sworn in October 2019 sets out most of the relevant details of his background and his pre-accident health.
12The plaintiff is presently aged sixty-four, having been born in November 1956. Having completed Year 12, his working life was largely spent in the security and logistics industries.
13In about 1985, he had a transport accident when his car was struck in the rear. He suffered a neck injury and subsequently required surgery. He recovered well from that procedure and to the best of his knowledge, did not have any significant ongoing or persisting neck problems as at the said date.
14The plaintiff agreed that between the 1985 accident and his neck surgery, he was getting quite severe symptoms. He could not recall the surgery was thirteen years after the 1985 accident. He could not say if he was consistently suffering neck symptoms leading up to that surgery because he was working as “per normal” on normal duties. He had the surgery because he thought it was wearing him down, and it was suggested to him that “it would be corrected, even hopefully, … it would improve”. Following that surgery, he went back to light duties for a matter of weeks, then normal duties.[5]
[5]T12
15When the plaintiff recently saw Mr Siu, neurosurgeon, he wanted to point out to him that the neck surgery had occurred many years ago and that in the interim, he had been able to hold down, for extended periods of time, regular employment, which was not the case after his 2012 accident injuries.[6]
[6]        Affidavit sworn 21 January 2021
16Between the 1985 accident and the 1998 surgery, the plaintiff was just trying to work his way through it and hopefully not go down the path of surgery.[7] He thought it could have been months prior to this surgery that he first went to a specialist. The pain had been going on and off, and it just got to a point where he and his wife hoped to see if there was something that could be done.[8]
[7]T63
[8]T64
17The results of the 1998 surgery were “pretty good actually”, because after that he continued normal warehouse duties which were “pretty kind of heavy-duty”.[9]
[9]T77
18The plaintiff was prescribed Panadeine Forte and Voltaren for right shoulder pain in May 2010. He could remember having a couple of shoulder injections over a period of time. He agreed, as set out in the Laurimar Medical Centre at Doreen (“Laurimar”) Complete Record, he was taking Voltaren, Panadeine Forte, and natural remedies before the said date.[10]
[10]T22
19The plaintiff strained his right shoulder lifting objects at work at BlueScope in April 2011 and was referred for a shoulder ultrasound and a neck x-ray. He could not remember why he then had this x‑ray. He did not hurt his neck at the same time. He could not remember if he was then getting referred pain from his neck. He could not remember in the months before the said date getting neck symptoms. He then said he did not have symptoms at that time.[11]
[11]T14
20Before the said date, he had not had headaches or sleep disturbance “more than normal”, requiring attention from a doctor. He had had Panadeine Forte on occasion for “a bit of muscular pain, a bit of backache or something”.[12]
[12]T17
The accident
21On the said date, the plaintiff was travelling through an intersection when another vehicle drove through a stop sign into the path of his vehicle, as a result of which they had a T-bone collision (“the accident”). The plaintiff’s car was seriously damaged and written off.
22The plaintiff saw the other car out of the corner of his eye and he “could kind of judge that she ain’t gonna brake, and all [he] did was brace”. It was a “pretty good guess” that the other driver was doing 80 kilometres an hour at the time of the collision.”[13]
[13]T16
23The plaintiff was aware from the time of the accident he had suffered a jolting injury to his spine. He declined an ambulance at the scene, but when he got home, he realised he needed to go to hospital and he was taken to the Northern Hospital by his partner and admitted overnight. There, he underwent various investigations and was fitted with a collar.
24The plaintiff could not remember telling Mr O’Brien when examined in July 2013 that he did not feel injured after the accident.[14] He could not recall telling him he was then seeing his local doctor every two weeks.[15] He disagreed with Mr O’Brien’s view that there was then not really a physical problem with his neck.[16]
[14]T51
[15]T52
[16]T53
25Following discharge from hospital, the plaintiff continued to be troubled by variable levels of spinal pain.[17] Soon after the accident, he also had psychiatric symptoms, including flashbacks, and was referred to psychologist, Kate McLennan, and also trialled for a brief time on Lexapro. In the longer term, these symptoms had settled down and it was the physical symptoms which had persisted.
[17]        Affidavit sworn 31 October 2019
26When it was suggested that the early post-accident attendances with his general practitioner related to a mental health plan, the plaintiff said he was struggling with the pain and just trying to get on top of the situation he was in.[18]
[18]        T18
27He explained the February 2013 clinical note that he was feeling 95 per cent – “I think at that time I was just more worried about losing my job than anything”. He was then not seeing Dr Poon about his neck at all.[19]
[19]        T49-50
28When the plaintiff was seeing Ms McLennan in February 2013, an accident in which his close friend died kept “replaying” in his head. That would have been a major player in his stress at that time, and there were issues with his ex and his son “going through stuff”. It was just a combination of a whole lot of things.[20]
[20]T68
29He agreed he was then seeing Dr Poon about his anxiety. He did not want to go down “the path of the medication”, and he wanted to try alternatives and change jobs. He had taken it upon himself about changing himself.[21]
[21]        T47
30Dr Poon may have asked him in 2018 how he was travelling with his neck and so forth and he might have said “Yeah, going okay,” because he did just did not want to “go down the medication part of it”.[22]
[22]T49
31He had not been referred to any surgeon, physiotherapist or chiropractor. He did not want a referral to a surgeon because he did not want to “open that door to going down to having another operation”.[23]
[23]T50
32His former general practitioner, Dr Gescheit, told him after the 1998 neck surgery, that if you start having spine operations you could end up with a chance of being a quadriplegic, and he “did not want to go down that kind of path”.[24]
[24]T66
Medication
33At that the end of 2019,[25] if suffering acute pain, the plaintiff used Panadeine Forte, generally up to four tablets a day, but had taken up to eight a day for particularly severe pain. He did not like taking that medication as it made him feel nauseous, but he needed it to try and help to break through the pain. More regularly, he was using anti-inflammatory medication and over-the-counter pain-relief medication, which his body seemed to tolerate somewhat better.
[25]        First affidavit
34He ultimately agreed that he was prescribed Panadeine Forte for gout, having initially denied that was the case.[26] He continued to take it for gout from time to time.[27] Sometimes it worked for the gout, which was extremely painful.[28]
[26]T21
[27]T30
[28]        T69
35In 2013 and 2014, while he had gout, the plaintiff was looking for work or working. He could not recall a specific prescription of Panadeine Forte for his neck or back.[29]
[29]T69
36When it was suggested to him he was complaining of gout, not spinal pain during his 2018 visits to the doctor, the plaintiff explained it was because:
“The reason I was taken to different jobs to try and lighten the load on myself because I didn’t want to go down the course of getting on medication to take of my pain. I was trying to take care of it by - yeah - change in jobs, change in lifestyles.”[30]
(sic)
[30]T32

37While he did not want to go down the medication path, he agreed during 2018 he was taking Panadeine Forte, Prednisolone and Allopurinol.[31]
[31]        T27
38Panadeine Forte does not agree with him, and he only takes it on a “need to” basis if he is having a bad day, but he just tries to look after himself.[32] Its side effects included mood swings, and it makes him feel nauseous.[33]
[32]T32
[33]T70
39The plaintiff did not mention spinal pain when he saw Dr Poon during 2019 because he changed jobs, got lighter duties, and tried to look after himself, because if he went down the medication path it just did not agree with him, so he had been trying the path of natural remedies, herbal medication, “that sort of stuff”. He has not had conventional treatment.[34]
[34]T34
40The plaintiff finally mentioned his neck to Dr Poon on 23 January 2020, because    “maybe I just got to my wits end with pain”. It was brought up in discussion in the general consultation about how he was travelling, and it was not really a good day. Investigations were subsequently arranged.[35]
[35]T34
41It was incorrect that he started complaining to Dr Poon about neck pain in 2020 when these proceedings were issued.[36] He repeated he had not seen a doctor because he was trying to manage it by himself to the best of his ability but he was not successful.[37]
[36]T60
[37]T61
42The plaintiff could not recall Dr Nagah telling him to do anything in particular after he had the MRI scan in 2020.[38]
[38]T67
43The plaintiff had not had physiotherapy because he was trying to find an alternative way of doing things, whether it be acupuncture or muscle manipulation, to get on top of his problems.[39] He has never been keen on a chiropractor. He disagreed that he had not gone to a doctor because he did not have pain.[40]
[39]T64
[40]T65
Current situation
44As at 22 January 2021,[41] his pain levels continued to be elevated by activities or physical strain. When the pain levels are elevated, he tends to suffer headaches and finds the best way to deal with them is to rest in a darkened room until the pain subsides.
[41]        Third affidavit
45He also continues to suffer from pins and needles extending from his neck into his hands, particularly the right. The best way to avoid these symptoms is to avoid engaging in manual activity.
46He continues to experience shooting pain into the back of his legs, the level thereof corresponding directly to his level of activity. He is also restricted in lower spinal movements, such as lifting, twisting and turning, and has limited sitting and standing tolerances.
47He continues to try to avoid medications as much as he can and only uses it as a last resort. He now takes Voltaren 25, Panadeine Forte and natural herbs on a need to basis, as it just does not agree with him. He has changed his lifestyle to suit. He could go for weeks without the “heavy-duty stuff”. He prefers to conservatively manage his pain levels by limiting physical activities.[42]
[42]        T51
48He also continues to suffer significant problems sleeping, with regular disruption to his sleeping patterns, often leaving him feeling tired and lethargic. He wakes in pain every night and is forced to get up and move around because of the pain.
49He has found that the persistent nature of his pain over such a long period has gradually worn him down and produced symptoms of depression, with lowered mood, frustration and irritability. These symptoms are in addition to the consequences of the trauma of the accident, where his vehicle was heavily struck by a vehicle driven by a drunk woman.
50He understands he thought he has been sensitised to the development of Post-Traumatic Stress Disorder (“PTSD”), having previously been involved in an accident where his best friend was killed just prior to his nineteenth birthday. While very early on, he was prescribed antidepressant medication, he suffered side effects, and had not used it subsequently, or had any other ongoing psychological treatment.
51The plaintiff agreed his tolerances were as Mr Aliashkevich described.[43] He was awfully uncomfortable in the witness box. Having walked 20 minutes, as shown in the surveillance film, he “would feel it” by the end of the day. He would go home and rest up, and get on his massage chair. He disagreed that he was not suffering any neck pain or low back pain of any significance given the lack of treatment. He disagreed he was exaggerating his symptoms.[44]
[43]        See paragraph 178 of this Judgment
[44]T60
Work
52As at the said date, the plaintiff was working in logistics for BlueScope Lysaght, undertaking forklift and warehouse duties. He thought he only had a short time off work after the accident.[45]
[45]T40
53He did not take the available BlueScope job in Geelong after that job finished in 2014 because by then, “it was getting on top of [him], and [he] didn’t want to go all the way down to Geelong and it wasn’t getting any easier. …”. He was physically and mentally spent, so he thought the opportunity was right not to go down there anyway. The travel to Geelong was part of it as well.[46]
[46]T42
54He thought he did Uber driving for a while after leaving BlueScope.[47] The good thing about that job was that he could work his own hours; he could go on and off when he wanted to.[48]
[47]        T40
[48]        T75
55Working at SNP, where he worked after BlueScope, he had to sit and monitor security screens. He had difficulty with extended periods of sitting, and frequently was up and about flexing his spine and trying to relieve the pain. He bought an ergonomic chair to help him at work. Although he could get up and have a bit of a stretch and have a walk around, it just wore him down after a period of time. He thought the chair was going to be the ”magic key”, and he also tried a stretch ball at work, so he just plugged away for a couple of years – “In the end I just waved the white flag and just the physicality of the pain was wearing me down”.[49] There was zero tolerance for taking medication while at work with SNP.[50]
[49]        T72
[50]T73
56The pain was then from the back of his neck, shooting down to his back, down to his legs, through to his arms and fingers, and he would struggle. By the end of the 12-hour shift, he would get in the car, and just driving home was excruciating.[51]
[51]T72
57The 12-hour shifts were for three days, three nights, consecutively, and then days off. In the beginning he was okay, and then he struggled from there. He worked on this basis for two or more years. He agreed that shift work affected his sleep.[52] Work in the control room was his last role at SNP.[53] It sounded about right that he worked there right through until September 2018 as his wage records indicated, working 40 hours a week or more.[54]
[52]T36
[53]T42
[54]        T40
58The plaintiff confirmed that he had a history of steady, stable employment. He did not go back to a warehousing type job because it had become physically demanding, and that was why he took the security control room route. He was just changing how to look after himself.[55]

[55]        T75
59He is not in paid employment today because he honestly thought he could not put in an 8 or 12‑hour day, because no employer was going to put him on: “I’m just where I’m at.” He is limited because he cannot do anything that is repetitive, even like washing his car. When he forces himself to do something like that, he starts getting shooting pains down his back, arms and legs.[56]
[56]T76
Activities
60The plaintiff deposed to significant restrictions on his lifestyle and activities as a result of his accident injury.
61Pre accident, he used to engage in competitive drag racing at places such as Calder and Winton but was no longer able to pursue that activity and had sold his drag racer. He used to enjoy attending meets as an observer, but rarely did so then because of the increasing pain caused by extended periods of standing.[57]
[57]        First affidavit
62In his second affidavit sworn 5 July 2020, the plaintiff confirmed he was no longer able to pursue competitive drag racing and his drag racer had been sold. Even attending meets as an observer was a source of pain because of long periods of standing.
63However, in cross-examination, the plaintiff explained that he would have last participated in drag racing in the early 2000s. He did go as a spectator after the accident. Before then, he had previously attended quite a few times a year, as he used to be an avid spectator. His doctor left it up to him whether or not he attended after the accident.[58]
[58]T28
64The plaintiff deposed that he used to enjoy bushwalking, but no longer engaged in that activity because of his reduced physical tolerances. He had not been able to return to bushwalking and his lack of exercise generally had meant his weight had increased.
65However, the plaintiff last went bushwalking many years ago, “probably 2010 maybe”.[59]
[59]T30
66The need for a right shoulder injection following the “sport” he was playing noted by Dr Poon on 7 February 2015, might have been something like backyard cricket. He had not been doing sport for decades;[60] for twenty years if not longer.[61] Similarly, he did not know what Dr Poon’s note of “swimming” on 4 March 2015 referred to.[62]
[60]T26
[61]T30
[62]        T31
67He also deposed that he also used to be heavily involved in the Northcote Football Club, having played many years ago. He was no longer comfortable sitting or standing for extended periods of time watching the football.
68However, he last went to Northcote to watch a football match in probably 2011.[63]
[63]T30
69As at the said date, the plaintiff was heavily involved in constructing their house in Doreen. As a result of his injuries, he had to limit that involvement and relied more heavily on paid tradesmen to do the tasks.
70Other social activities, such as going to the movies or a restaurant with Gail, were restricted by pain. She assisted him around the house, and family and friends assisted in maintaining the garden.[64]
[64]        First Affidavit
71Socially, he and Gail did not go out to the movies or eat out as often as previously because of his reduced sitting tolerances and the pain he suffered as a result.[65] They continue, even coming out of COVID, to avoid going out to movies or restaurants.
[65]        Second affidavit
72The plaintiff continues to be dependent on Gail for the maintenance of their household activities and domestic lifestyle.[66]
[66]        Third affidavit
73While his pain had not stopped him travelling, the plaintiff was not going “flat stick” when he did travel – “You travel at your own pace.”[67] He went overseas for four to five weeks to Europe in 2019.[68] Dr Poon’s note that the plaintiff was going abroad for two weeks in September 2014 could have been a trip to Bali or Thailand.[69]
[67]T28
[68]T24
[69]T46
74The plaintiff could not say where the beach was in the 2017 post on Gail’s Facebook page. The photograph of he and Gail with elephants in the background could be in Asia somewhere.[70]
[70]T45
The protea farm
75The plaintiff helped out at Gail’s property two or three days a week, but his physical activities were quite restricted and most of the work was done by her and Justin.[71]
[71]        Second affidavit
76The distribution he received from Gail’s trust through its trustee, Kinglake Proteas Pty Ltd, was purely for taxation purposes and did not represent a salary or the like with respect to any contribution which he makes to the business which is operated by Gail and Justin. The business is conducted on a leased 98-acre property at Kinglake and worked on by Gail, Justin and two other female employees.[72]
[72]        Third affidavit
77The plaintiff’s attendances at the farm are at his own discretion and do not involve any form of regular employment. He usually goes there every second day on average, and usually for a couple of hours, but on occasions he attends more frequently and for longer. He provides very limited assistance to the workers on the farm. He might assist “the girls” in splitting the protea stems to remove those which are not up to grade, or in filling the water buckets on a wheeled trolley, which he used to preserve the stems when picked. He does not do any digging, planting, pruning or heavy lifting, or manual work as such. His attendances at the farm are more in the nature of giving him an activity out of the house.
78On one occasion, the plaintiff was observing Justin using petrol to ignite a fire to clear the property when Justin dropped the petrol can, which splashed onto him, causing burns which required overnight hospitalisation and some months to recover. The plaintiff then was, as usual, merely observing others undertake farm work. He was sitting on a little RV “observing” Justin when he suffered burns.[73]
[73]T63
79The principal reason the plaintiff does not participate further in farm activities is his persistent level of neck pain, extending into his middle back. The more active he is, the more pain he is in.
80He does not work at the farm. He goes there maybe once a week or two days a week. It was up to him and he could visit up to five days. He has not been there five days a week. The farm is 30 minutes, about 35 kilometres, from where he lives. In recent times, the most he had attended the farm was a few days in a week, two or three days.[74]
[74]T35
81Dr Poon’s note – “ set up on farm” and “hard work” – meant that the plaintiff and Gail had put all their money into it.[75] The light physical work described by Professor Bittar could be anything, like setting up trolleys. It was a family run business, and there were just little things to be done. He could grab some buckets for “the girls.” There are not demands on him, “cracking the whip” because they know of his situation. It is more him trying to be interactive. The “light physical” work would be on a “need to” basis.[76]
[75]T36
[76]T37
82The trust distribution is for taxation purposes and does not reflect any manual contribution by him to Gail’s business. The money goes into a joint account when there is a dividend.[77]
[77]T38
83The plaintiff goes into the little office at the farm and does research about the plants or equipment that they might need. He does a fair bit of research for the farm.[78]
[78]T73
The surveillance film
84In his fourth affidavit, the plaintiff addressed the video surveillance material. In his view, it was consistent with his level of activity, as disclosed in his earlier affidavits.
85One portion of the film showed him shopping at Greensborough shopping centre, taking in some dry cleaning and attending a Rivers store, among other locations.
86Another portion of the film showed he and Gail purchasing foodstuffs. These shopping trips are a common part and parcel of their life and he continues to undertake a variety of activities even though he is in pain.
87Another part of his film showed him shopping with Gail, who passed numerous bags of foodstuff to him. At one point, he leant into the trolley to collect a box of UHT milk, which he believed was not a full container, thus weighing approximately 8 to 10 kilograms. That was, as far as he could observe, the most physical task in the entire film.
88The boxes that he was shown lifting in the video were not that big. He did not think the box was full.[79] He agreed that was an average sort of day shown on the film.[80] He also agreed he could not be seen in pain on the film. He then asked – “How are you supposed to exhibit pain?”[81]
[79]T55
[80]T57
[81]        T58
89He tried different positions, moving around in the witness box, because if he stayed constantly in the same position for too long, “it just started to shoot up”.[82]
[82]T73

The Plaintiff’s taxable earnings

Financial year

Gross income

2007

$43,810

2008

$37,397

2009

$43,840

2010

$43,963

2011

$63,595

2012

$61,198

2013

$47,441 plus TAC benefits of $4,031, making a total of
$51,472

2014

$59,131

2015

$37,107

2016

$65,255

2017

$58,332

2018

$53,232

2019

$13,045

2020

Trust distribution:
$40,722

Financial year	Gross income
2007	$43,810
2008	$37,397
2009	$43,840
2010	$43,963
2011	$63,595
2012	$61,198
2013	$47,441 plus TAC benefits of $4,031, making a total of $51,472
2014	$59,131
2015	$37,107
2016	$65,255
2017	$58,332
2018	$53,232
2019	$13,045
2020	Trust distribution: $40,722

Lay evidence
90Gail Poysner swore an affidavit on 21 January 2021. She and the plaintiff have known each other since 1990, when they worked together and the plaintiff was her boss.[83] They developed a relationship subsequently in 2006 and have remained together since.
[83]T62; prior to the plaintiff working at BlueScope
91She was aware the plaintiff had been involved in a much earlier transport accident and had neck surgery, but this happened before she met him. From her recollection, he did not appear to be inhibited or restricted in his work or day-to-day activities as a result of any injury in that earlier accident.
92From the time of the 2012 accident, the plaintiff suffered variable but persisting levels of pain throughout his spine, and from what she has seen, his neck appears to have been injured, with symptoms extending down through his arms down through his hands, particularly on the right, where he has pins and needles. He also complains of pain extending into his head, and headaches from his accident injury. The pain extends down into the middle of his back, and he also suffers from lower back pain extending through his leg, particularly the left.
93She has observed he is in pain and restricted in his movements. His sleep is disturbed nightly and he is up and down at least once a night because he cannot get comfortable. She has observed he has difficulty remaining in a standing or seated position for extended periods, and his driving is limited.
94He has had to give up recreational activities which he enjoyed, most particularly competitive drag racing, and subsequently sold his drag racer. Around the house, she has to undertake most of the maintenance tasks and cleaning. If he does too much around the house, she has seen he pays for it with increased pain. Their social activities are restricted because he does not enjoy being out and suffering pain. Jobs at home she cannot do herself have to be undertaken by family and friends.
95She runs the farm through a trust of which the trustee is Kinglake Proteas Pty Ltd. The plaintiff regularly visits the farm, but does not do any designated duties, nor is he employed to work at the farm. He received a distribution from the trust, but that, on accounting advice, is an effective way for her to split the farm income. The work on the farm is undertaken by her, Justin and two female farm employees.
96She has also observed the plaintiff’s physical limitations leave him moody, irritable and frustrated. He now tends to have a very short fuse, whereas before these injuries he was of very mild temperament.
97From her observations, the chronic nature of his pain has gradually worn him down over the years and he suffers from depressed mood. Some years ago, he was prescribed antidepressants, but they did not agree with him, so he has battled on regardless over the years. From what she has seen, his injuries have very significantly reduced his capacity to undertake gainful employment to a point where she doubts he would hold down a job. Also, his domestic, social and recreational activities have been very significantly compromised.
98Saurav Sharma, formally the security supervisor with SNP, swore an affidavit on 21 January 2021.
99Mr Sharma commenced employment with SNP in 2015 and was promoted to security supervisor the following year. He supervised the plaintiff and believed he worked with him for two or three years in total.
100He described the plaintiff as a very reliable and enthusiastic member of the team. He was one of the best staff members and always completed his allocated tasks diligently and expeditiously.
101He could recall, when the plaintiff was employed at SNP, he had difficulties with his back. Because of the poor seating with which they were provided and awkward postures to view security screens, the plaintiff bought his own special chair to try and alleviate some of his back pain.
102He could recall the plaintiff complaining to him of pain when sitting for extended periods monitoring the screens. Throughout his dealings with the plaintiff, he found him to be an entirely honest and trustworthy person.

The Plaintiff’s treaters
103The plaintiff attended Northern Hospital Emergency Department at 5.00am on 7 December 2012. He then reported lower back pain, chest pain and headache following a transport accident that evening. He was travelling about 60 kilometres per hour when a car did not stop at traffic lights and hit his car at about 70 kilometres per hour.
104The hospital doctor felt the injuries were non-specific and were probably musculoskeletal in nature, with delayed onset of neck pain and bilateral paraesthesia of the hands. The plaintiff was seen by a registrar, who felt they were probably radiculopathic symptoms. The plaintiff said he had had the problem in his hands before. He was discharged home and told to return if any new symptoms developed. There was no record of any subsequent attendance.
105In his report of 23 October 2014, Dr Poon from Laurimar, advised he had not seen the plaintiff since 29 June 2013, with the plaintiff having last seen a psychologist in February 2014.
106At that last contact, Dr Poon advised that the plaintiff was still experiencing PTSD symptoms, anxiety and depression. They had improved since the accident; however, they were still affecting his mental state. It was recommended he seek help from Post Trauma Victoria; however, Dr Poon was unsure if contact was made. He suggested further psychological sessions and psychiatric assessment. He thought that the plaintiff’s injuries/diagnoses were consistent with the accident circumstances.
107Dr Poon provided a further short report in July 2018. He noted the plaintiff’s initial consultation was on 10 December 2012 and there were subsequent attendances in 2013, two in January, two in February, one in March, May and June, and a further attendance on 16 January 2018.
108Dr Poon noted the plaintiff suffered from anxiety – based on history and symptoms – and was seen by a psychologist who confirmed. Dr Poon also noted “muscular neck injury – based on history”. Medication was Diclofenac and Valium. No tests were performed. Medication for anxiety included Valium, Escitalopram and Fluoxetine.
109The prognosis was that anxiety was stable and well managed on medication and the plaintiff may be on that for years. Neck pain, “now fully resolved”, currently able to work in suitable employment, will be able to work in the future in suitable employment.
110Dr Poon recently reported on 30 December 2020 at the request of the plaintiff’s solicitors, detailing attendances from 10 December 2012 to 29 June 2013.
111Dr Poon noted the plaintiff still suffers from neck pain following the accident, which he states is 7.5 out of 10 in severity (compared to 10 out of 10 at the time of the accident). The anxiety is still ongoing, it is less than previously, he has learned to live with it. He only drove out of necessity now, whereas he previously used to be a car enthusiast.
112Dr Poon thought that the plaintiff did not have the capacity to work in his previous role. He could potentially work in the future, however, that would be dependent on a number of factors, such as work flexibility, hours, ability to work from home, et cetera.
113The plaintiff saw psychologist, Kate McLennan, on referral from Dr Poon in early 2013 to address his high levels of anxiety and distress specifically linked to the accident.
114In her March 2013 report, she explained her treatment for PTSD was trauma focused CBT. She thought the plaintiff had been significantly affected by the accident, specifically impacting on his sense of safety, his ability to drive and sleep and his interactions with family members due to his change in mood. He also experienced significant depressed mood, including suicidal ideation at times, and was then continuing to experience flashbacks and other intrusive thoughts and experiences.
Investigations[84]
[84] First tests since 2012
115MRI scans of the plaintiff’s cervical, sacral and thoracic spine were carried out at the request of Dr Nagah from Laurimar in March 2020.
116It was reported there was disc and degenerative disease in the cervical spine, with mild narrowing of the spinal canal at C4-5 and C5-6. The posterior disc contacted the spinal cord without any cord oedema. There was also severe narrowing of the exit foramina bilaterally at C3-4, C4-5, C5-6 and C6-7, and on the left at C7‑T1. In the thoracic spine, there was mild scoliosis with mild disc and degenerative disease in the upper and lower thoracic spines, where there was mild exit foramina stenosis.
117In the lumbar spine, there was Grade 1 anterolisthesis at L4 on L5 related to severe bilateral facet joint hypertrophy. There was disc and degenerative disease most marked at L5-S1, where there was moderate narrowing of the left exit foramen and flattening of the exiting left L5 nerve root.

Medico-legal evidence
118Dr George Wahr, psychiatrist, saw the plaintiff in May 2013.
119The plaintiff’s problems at that time were neck pain going down his arms, anxiety and depression. Neck ache was not as severe as before.
120Dr Wahr diagnosed PTSD.
121On re-examination in July 2014, the plaintiff reported neck pain, not as severe as before, anxiety and depression.
122The plaintiff had returned to work and was then working for Core Gas, where he had been working for two months as a casual, working about thirty-seven hours a week. He advised that he was working as a yardman and that work was going okay and he hoped to become permanent.
123Dr Wahr again diagnosed PTSD.
124The plaintiff saw orthopaedic surgeon, Mr John O’Brien, in July 2013.
125The plaintiff told him that a car suddenly went through a stop sign on his left and struck his car in the left front region. He was able to get out of the car and at the time, indicated he was not really aware of any specific injury. An ambulance officer advised he should see his local doctor. The plaintiff’s car was written off and he was taken home.

126Within hours of the accident, the plaintiff developed increasingly severe pain in his neck, extending to both arms and radiating down his spine to his lower back and into his legs. It was so severe he went to Northern Hospital and after the weekend, consulted his general practitioner, predominantly about severe neck and bilateral arm pain.
127The plaintiff was off work for a couple of months, during which time he continued to experience neck pain and also some intermittent lower back pain.
128Shortly after returning to work, the factory moved and thus the plaintiff resigned. In April 2013, through an agency, he obtained work as a safety officer at Melbourne Airport, which he continued on a full-time basis.
129On examination, the plaintiff was noted to move relatively freely. Neurological examination was normal.
130The plaintiff described neck pain present most of the time, fluctuating between 4 to 8 out of 10 and associated with intermittent pain extending into both arms, generally aggravated by working in physical activity. He also reported prolonged sitting aggravated his neck and arm pain. He described some fluctuating pain localised to the lower lumbar region.
131The plaintiff stated he now had medication, although he could not recall the name of the tablets. He saw his local doctor every two weeks and had been seeing a psychologist.
132The plaintiff stated he was capable of normal activities of daily living. He did not do any domestic tasks, relying on his partner. He indicated he continued to work on a full-time basis, but stated his employment did not involve any heavy physical duties.
133The plaintiff described a frightening accident which he reported precipitated significant very generalised neck and upper limb pain, and also pain extending into his lower limbs. Mr O’Brien thought the plaintiff could have what could be described as mild non-specific cervical pain and there were certainly no physical signs to suggest significant cervical pathology, despite the extent of degenerative change shown on x-rays.
134It appeared the plaintiff had shown some improvement given the now described basically intermittent pain which required only some analgesic medication. He, however, did appear to report significant ongoing psychological symptoms for which he would require ongoing expert treatment.
135From a physical perspective, Mr O’Brien thought the plaintiff was not significantly disabled. He remained quite capable of continuing with his employment, which fortunately did not involve heavy physical duties. From a physical perspective, he certainly could see no reason why the plaintiff should not be able to continue with his normal employment as the overall prognosis would appear in fact to relate to psychological factors.
136Mr Kenneth Myers, vascular surgeon, examined the plaintiff in July 2014.
137The plaintiff told him that in the accident, the other vehicle took the front off his car from the passenger side and the car was a write-off. Having gone home after the accident, he had had excruciating pain and then went to Northern Hospital.
138On examination, the plaintiff described pain in the neck and back and headache “on and off”. He said his main disability is “top of the list is sleep disturbance which is nil and void”.His disability also markedly interfered with his sex life. He advised pains from the neck shoot into the arms and fingers, and it would appear there was no referral of pain into the legs. His general health was satisfactory and there was no relevant past history.
139The plaintiff tried to avoid medications. He had not had any physiotherapy and was not then having any active physical treatment, but had been seeing a psychologist regularly since the accident.
140The plaintiff told Mr Myers that he was into motor sports as a competitor and observer and this was no longer possible. He was very active in drag racing before the accident.
141On examination, there was approximately 25 per cent restriction in range of movement to the neck and low back, with no other abnormality.
142Mr Myers diagnosed aggravation of degenerative intervertebral disc disease and spondylitis in the cervical and lumbar spine. He thought there would be restrictions in social, domestic and recreational activities which will be long term. The plaintiff should be able to cope with his present relatively sedentary work, but would not be able to return to work as a storeman.
143When re-examined in 2016, the plaintiff was working in a gatehouse control room at a quarantine centre. That was partly office work and partly work patrolling by foot and car. Activities involved walking and getting in and out of the vehicle. He was coping, but he told Mr Myers much the same as before in terms of ongoing pain in the neck and low back.
144Apart from massage therapy, as required, and medications, including anti-inflammatories and medications for depression, the plaintiff had had no active intervention or other procedures. Management was through his general practitioner and a naturopath.
145The plaintiff’s condition appeared to be much the same as before. He had pain in the neck and the low back, but once again, said his worst disability was interference with sleep and loss of sexual activity.
146The plaintiff advised he liked his work, but found difficulty because he worked on a 12-hour roster, alternating the day shift from 6.00am to 6.00pm and the night shift from 6.00pm to 6.00am over a month, so that his work was all over the shop.
147On examination, there was at least a 50 per cent restriction in the range of movement of the neck and low back, associated with apparent pain.
148Mr Myers’ views were otherwise similar to the first examination.
149Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in March 2018.
150The plaintiff told him of the accident in which his vehicle was severely damaged and written off.
151At the time of the accident, the plaintiff was working as a storeman and had about two months off, before returning to work. The factory had subsequently changed location and he elected to resign in April 2013, feeling himself unable to continue with that physical work as a storeman. He had since changed jobs and was now working as a security officer in the control room. He reported ongoing problems with neck and back pain.
152The plaintiff described neckache, discomfort and pain. It radiated into the shoulders, spine and further down the arms, with feelings of numbness and tingling in the arms. Neck pain was the dominant feature. There were frequent associated headaches and he also reported sleep disturbance.
153The plaintiff had low backache, discomfort and pain radiating into the buttocks and further down the legs, with feelings of numbness and tingling in the legs, but back pain was the dominant feature. Overall, neck and back pain were approximately equal in their severity. Symptoms fluctuated and there was no pattern towards improvement.
154Mr Miller thought the plaintiff had problems with anxiety, depression, PTSD and probable development of Chronic Pain Syndrome. He noted that the plaintiff continued to use a range of medications, including Panadeine Forte and anti‑inflammatories.
155Mr Miller had a history of neck surgery about thirty years ago, from which the plaintiff fully recovered, and some back symptoms thirty years ago that had settled.
156The plaintiff advised his current job at Melbourne airport did not involve heavy physical work and he coped with it, albeit with ongoing symptoms in his neck and back.
157Mr Miller diagnosed a musculo ligamentous strain to the cervicothoracic spine and aggravation of degenerative disease in the spine. While there was radiation into the upper extremities, there were no neurological abnormalities. The prognosis for the spine was only poor.
158Mr Miller thought the relationship to the accident was complex and multifactorial, noting the plaintiff had previous neck surgery. It was likely the disease had been aggravated by the accident, and further superimposed injury occurred. There was a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease, with radiation into the lower extremities but no other neurological abnormalities. Again, that relationship to the accident was complex and multifactorial. There was no pre-existing disease in the lumbar spine which had been aggravated by the accident and further superimposed injury occurred. The plaintiff had also suffered an adverse mental reaction.
159Because of his spinal injury, Mr Miller thought the plaintiff would have difficulty with work involving repetitive bending, lifting of weights more than 5 kilograms, and would need to shift his posture on a regular basis.
160Mr Miller noted the plaintiff did return to work after a period of time, although he did have significant symptoms at work and was having difficulties with his physical work as a store person. He had now changed to more sedentary work, consistent with his spinal injuries.
161On re-examination in December 2020, the plaintiff complained of neck pain and discomfort radiating to the shoulder, spine and arms, with feelings of numbness and tingling. There were frequent associated headaches and sleep disturbance. He had low back pain and discomfort radiating into the buttocks and legs, again with feelings of numbness and tingling. These symptoms fluctuated and there was a slow pattern towards deterioration. The plaintiff regarded the symptoms as being worse than when last reviewed. Neck and back symptoms were about equal in their severity.
162The plaintiff was having difficulty with sleep and activities of daily living, and he also had problems with anxiety, depression and PTSD. He continued to use a range of medications, including Panadeine Forte, Voltaren Rapid 25 and natural medications for pain. He used a massage chair and did self-exercise programs. He used herbal supplements for depression.
163On examination of the lumbar spine, there was diffuse tenderness and no muscle spasm. There was also diffuse tenderness in the cervical spine.
164Mr Miller noted the plaintiff ceased working in late 2018 due to deteriorating symptoms. There has been no further return to work, noting the plaintiff was sixty-four. He confirmed his earlier opinion as to the plaintiff’s work capacity.
165Again, Mr Miller commented that the relationship of the plaintiff’s symptoms to the accident was complex and multi-factorial. The relevant factors included pre‑existing disc disease, the transport accident and the plaintiff’s significant physical work over a protracted period of time, and subsequent development of a Chronic Pain Syndrome.
166Mr Miller saw the surveillance film and was provided with reports from Mr Siu and Mr Speck, Dr Serry and Professor Bittar.
167Mr Miller found Professor Bittar’s report consistent and compatible with his own report. He did not agree with Mr Siu’s view. He thought the plaintiff had an organic condition in his cervicothoracic and lumbar spine, and that there were ongoing symptoms in relation thereto. He maintained his comments and the view that the plaintiff had not recovered from the accident injury. He did not concur with Mr Speck’s view that it was the mental condition rather than the physical condition causing the plaintiff’s limitations and that the physical injury was not enough for him to change occupation.
168In summary, Mr Miller noted that the plaintiff had some pre-existing problems with neck and back pain but was coping quite well, being able to continue working without significant problem and there was a marked deterioration after the accident. It remained his view that the deterioration related to the physical effects of the accident aggravating the plaintiff’s condition and causing further superimposed injury and the subsequent development of an adverse mental state reaction, which he categorised as a Chronic Pain Syndrome.
169Mr Miller thought the clinical picture was entirely consistent with the described injuries to the spine. He had observed this pattern at The Alfred Hospital, where transport accident and other trauma victims were seen and managed regularly. The additional material did not cause him to alter his findings or conclusions. Furthermore, to state that the musculoskeletal symptoms had resolved or are attributable to mental health issues was to treat this client unfairly. He disagreed with that and contested such a conclusion.
170The plaintiff was examined by neurosurgeon, Mr Aliashkevich, in July 2020.
171He noted that the plaintiff denied any problems with his neck, back or head immediately preceding the accident.
172The plaintiff was off work for about two months post-accident because he had pain in his neck, arms and intermittent low back pain. He returned to full hours and light duties in February 2013, but was made redundant when the factory moved at about Easter 2013. He did not mind, because he found physical work difficult after the accident.
173The plaintiff commenced casual employment as a safety officer with Centre Staff, an agency, and outsourced to Melbourne Airport since around mid-2013. He worked 24 to 32 hours a week. The job was of a light, physical nature with full duties which involved sitting and driving. He ceased work there after a year.
174The plaintiff commenced casual employment as a yardman with Core Gas in about May 2014, where he usually worked 32 hours a week. The job was of a medium physical nature with full duties and involved lifting about 15 kilograms, bending, twisting or sitting. He ceased work there after a few months. It may have been six months till his next job.
175The plaintiff started employment as a gatehouse keeper, controller and operator at a quarantine centre with SNP in about 2015, initially as a casual, usually working about 38 hours a week. The job was light-physical with full duties, and involved sitting and driving. His work involved office work and foot and car patrol. He was able to work the 12-hour shifts, although he found it difficult alternating between days and nights. He ceased working there about one-and-a-half to two years later and has not worked since around 2017[85] because the 12-hour shifts were increasing his pain.
[85] actually ceased September 2018
176The plaintiff helped on his wife’s protea farm, attending about once or twice a week during 2020, performing very light physical jobs. They called him “the ghost” as he did not help much. He was still attending the farm about four hours a week.
177On examination, the plaintiff complained of constant lower back pain up the spine to the neck. There was constant pain in his arms; more in the palms of his hands and fingers, or at least a dull ache or shooting pain; pain in the front, back and side of his legs of a similar severity, and pain in the back of his head down towards his neck. He rated the pain at 5 to 6 out of 10 on a better day and 10 out of 10 on a bad day. Pain was worse with repetitive actions, sitting, standing, bending and lifting.He was taking four to six Panadeine Forte a day, about each third day; Nurofen, four tablets a day about each third day, and Voltaren Rapid about three to four days in a row, then about two days without.
178The plaintiff told Mr Aliashkevich he could walk on a flat surface for up to seven minutes, sit with moving in his chair for up to four minutes, stand for up to three minutes, and drive for about 30 to 40 minutes.
179Before his injury, the plaintiff enjoyed motor sports, drag racing, bushwalking and going to watch football. He had not returned to drag racing or bushwalking. He had returned to watching football in a limited way, about two to three games a season, and left matches early.
180Although he was not a qualified pain specialist, Mr Aliashkevich noted, based on the character of the plaintiff’s symptoms, with widespread pain distribution and presence of muscular trigger points on examination, he had the impression that the injuries had started a cascade of Chronic Pain Syndrome, typical for central sensitisation and likely subsequent evolution of Myofascial Pain Syndrome. He agreed with Mr Miller’s diagnosis. He thought the plaintiff’s prognosis was very guarded.
181Mr Aliashkevich’s opinion and conclusion remained unchanged, having seen reports from Mr Miller, Professor Bittar, Mr Sui and Mr Speck, and also the surveillance film.
182Professor Bittar, consultant neurosurgeon, examined the plaintiff in December 2020.
183The plaintiff then reported constant lower back pain, varying in character between sharp, dull, throbbing, burning, stabbing and ache radiating across both sides of his low back, with an average severity of 7 to 8 out of 10, with a maximum severity of 10. It was exacerbated by a variety of activities. He reported constant bilateral leg pain and constant neck pain which varied in character, radiating into both shoulders as well as the back of the head. Its average severity was 9 out of 10, with a maximum of 10.
184The past medical history was of a good recovery from surgery in February 1998.
185At the time of the accident, the plaintiff was working as a forklift driver and warehouse worker. He had several weeks off before returning to work on light duties. He was eventually able to carry out normal duties, despite ongoing pain. In 2014, he ceased employment there and commenced work as a security officer looking after a control room. This required him to sit for extended periods and he struggled with that work. His pain levels deteriorated and he ceased work in late 2017.
186The plaintiff gave Professor Bittar a similar history as he had deposed to as to the impact of his accident injuries on his recreational and social activities. He told Professor Bittar he was taking Panadeine Forte and non-steroidal anti-inflammatory medication daily, and that in general, he attempted to manage his pain by modifying his physical activities. He continued to assist with the protea farm once or twice a week, however, only undertook light physical work.
187On examination, there was moderate restriction of cervical and lumbar spine flexion with normal extension. Neurological examination was normal.
188Professor Bittar diagnosed aggravation of cervical spondylosis with neck pain, bilateral arm pain and cervicogenic headache, and aggravation of lumbar spondylosis with lower back and bilateral leg pain.
189He considered the accident had been a significant contributing factor, and remained so, to the plaintiff’s ongoing pain, disability and requirement for treatment.
190He suggested a range of further investigations and that the plaintiff should be reviewed by a qualified pain specialist and neurosurgeon after those investigations. He should also be considered for participation in a multi-disciplinary pain management program.
191He thought the prognosis was guarded. The plaintiff had been significantly symptomatic for over eight years and was likely to continue to experience significant pain and disability into the foreseeable future. It was likely that his condition would continue to impact adversely on his domestic, social and leisure activities and that he would require ongoing medical treatment for his accident-related conditions into the foreseeable future.
192Professor Bittar was asked to provide a supplementary report, having viewed the surveillance footage and Mr Aliashkevich and Mr Siu’s reports.

193In terms of the video, he noted that the bags the plaintiff was seen to be carrying and lifting did not appear to be heavy, nor did the relatively small boxes of objects he was seen lifting. The plaintiff did undertake some bending and occasional twisting at one stage, reaching down to the ground to pick up an object off the supermarket floor before putting it in his trolley.
194Professor Bittar noted that interpretation of this type of video can be extremely difficult as the type of restrictions that would be expected would vary from day to day and depend on a number of factors, including the individual’s pain levels on those days and his medication intake. Having reviewed the film, there was nothing in the activities that the plaintiff was undertaking that he would consider to be inconsistent with the plaintiff’s clinical presentation and nothing that would cause him to alter his earlier opinion.
195While Professor Bittar reported that he disagreed with Mr Aliashkevich’s opinion, he seems to have in fact been commenting on Mr Speck’s view that the plaintiff suffered a soft tissue injury to his neck which had resolved.
196Professor Bittar disagreed with Mr Siu’s diagnosis of only a soft tissue injury. He thought the plaintiff most likely sustained an aggravation of cervical spondylosis in the accident. However, he may also have sustained a soft tissue injury. Either way, the plaintiff has gone on to develop a significant chronic pain condition which was a direct result of the transport accident injuries and did not cause him to alter his opinion.
197Professor Bittar noted that both Mr Speck and Mr Siu seemed to ignore the possibility of a Chronic Pain Syndrome developing following the spinal injury, which is exactly what Professor Bittar believed had occurred.
198While the plaintiff did have significant psychological issues, Professor Bittar thought that he had also sustained significant spinal injuries in the accident which had resulted in the development of a significant chronic pain condition with associated disability and ongoing treatment requirements.
199Dr Nathan Serry, psychiatrist, examined the plaintiff in December 2020.
200The plaintiff said that while pain in the neck and back had commenced soon after the accident, it had progressively worsened over time.
201The plaintiff told him he was taking Panadeine Forte and Voltaren Rapid and also tended to self-medicate with cannabis. He would have two to three dozen stubbies a week now, considerably more than was the case pre-morbidly. He advised that his social and recreational life had been very much compromised.
202Dr Serry thought the plaintiff presented with chronic PTSD, Chronic Adjustment Disorder with Anxious and Depressed Mood, alcohol abuse and a degree of cannabis abuse. He thought the prognosis was mixed. Ideally, the plaintiff should return to further trauma-based psychological counselling, supportive psychotherapy and appropriate management of his alcohol abuse in particular.

Other documentation
203The police incident report describes moderate damage to the plaintiff’s vehicle, it being towed away from the scene. The plaintiff was noted to be not injured. There was mention of the other driver being alcohol-affected, having failed to stop at a stop sign and causing the collision.
204In response to a subpoena to Gail Poysner’s accountant, Paul Barbara from Willis Partners advised that he had no records of employment for the plaintiff and no records of payments to him from 1 January 2018 to the present. In accordance with the trust deed for Kinglake Proteas Business Trust, distribution for taxation purposes can be made to the spouse of the specified beneficiary of the trust. As the plaintiff is Ms Poysner’s spouse, a specified beneficiary, a tax distribution was recorded in his 2020 income tax return. That distribution was merely for taxation purposes.

The Defendant’s medical evidence
Treaters
205Dr Gescheit treated the plaintiff between May 1986 and February 1989.
206The plaintiff underwent a left side cervical foraminotomy in February 1998 by Mr Michael Murphy.
207The Mill Park Super Clinic “Complete Record” as at 3 October 2014 set out the plaintiff was last prescribed Panadeine Extra on 10 April 2011, Panadeine Forte on 19 May 2010, Tramal capsules on 10 April 2011 and Voltaren EC on 12 April 2011.
208On 19 May 2010, Panadeine Forte and Voltaren were prescribed. It was noted there was right shoulder pain for three weeks which has happened in the past. The plaintiff used to have cortisone injections with a local medical officer. There was a free range of movement in the neck.
209Notes from Laurimar detailed treatment between 31 May 2012 and September 2020.
210On 9 August 2012, the reason for visit was headache, and it was then noted the plaintiff had persistent headache on and off for the last few days – “It happened once a month, normally took OTC analgesia”. Panadeine Forte was prescribed.
211On review on 3 September 2012, there were suspected tension headaches which had since resolved. The plaintiff reported having some issues with sleep, with stress, but thought they were normal for him and took herbal sleep remedies.
212The first post-accident attendance was on 10 December 2012. It was noted the plaintiff was driving down a road and a car pulled out and smashed into the front of his car. He attended Emergency the next day and had an MRI scan of his back and was advised there were no abnormalities. He was taking Nurofen for pain but his neck was still very stiff. He complained of paraesthesia in his arms and he had also been anxious since the accident and he was reluctant to drive and was having flashbacks at night about the accident.
213On examination, there was tenderness around the neck and shoulder muscles and mild paraesthesia in both arms. Diazepam was prescribed and a TAC certificate created.
214It was also noted that the reason for the visit that day was “Mental health care plan” and a letter was written to Ms McLennan.
215On 14 January 2013, the reason for the visit was anxiety, with the plaintiff feeling still quite anxious. Psychology was helping. His sleeping was very poor and flashbacks continued. A TAC certificate was given. There was a trial of Escitalopram and psychology to continue.
216Subsequent attendances in January 2013 were in relation to the mental health care plan.
217On the next attendance on 11 February 2013, the reason for visit was anxiety. In terms of history, it was noted:
“Feeling much better physically – 95% back to normal. Still feeling anxious, but improving – finding sessions with Kate very helpful. Keen to start work again at warehouse next week. Concerned re-son – recently split with wife. Losing weight, very tearful. Works as an electrician – dad worried if not paying full attention at work.”
218On review on 15 February 2013, there was a discussion about starting back at work, and the plaintiff was keen to start on Monday. He was able to drive to work and was happy with short distances.
219On 19 March 2013, the plaintiff attended for a headache. In terms of history, it was noted he was otherwise well in himself. He had been stressed recently, having been made redundant. The warehouse was closing down, and he was advised he could keep his job but needed to go to Geelong. He was looking for new work now.
220On 15 April 2013, the reason for the attendance was right foot pain, and Panadeine Forte and OTC Ibuprofen were prescribed.
221The next attendance was in May 2013. The reason for the visit was anxiety. In terms of history, it was noted the plaintiff was having difficulty finding work; the warehouse had now closed down. He was getting temporary work, but had only worked one week in the last month, and that was adding stress. He had difficulty sleeping at present and asked for sleeping tablets.
222On 14 May 2013, the reason for visit was gout, and Diclofenac was prescribed. On 29 June 2013, the reason for visit was gout and a trial of Colchicine was suggested, and Omeprazole, Colgout and Allopurinol were prescribed.
223Gout was the reason for the visit on 4 October 2013 and further medication was prescribed. It was noted that the plaintiff was travelling to Bali in fourteen days and needed travel vaccines.
224The plaintiff did not complain of back or neck pain in his 2013 or 2014 visits. On 6 September 2014, it was noted under “History” there was a full range of motion or neck and fingers. The reason for that visit was carpal tunnel syndrome.
225On 9 October 2014, it was noted the plaintiff was going on a holiday abroad for two weeks. The hand x-rays organised on the previous visit were discussed.
226There were attendances for shoulder pain in February 2015. On 7 February 2015, it was noted:
“[L]anded on r[igh]t shoulder playing sport then strained it getting back up 6/52 ago. since then it’s become progressively more painful. hard to lift the arm. constant ache. … .”
227Investigations were organised.
228On 17 February 2015, there was ongoing shoulder pain and it was noted the plaintiff was keen for a steroid injection. The right shoulder was examined on 2 March 2015 and it was noted on 4 March that a “second injection of bursa may benefit”. On 27 March 2015, the reason for attendance was gout, and various medications were prescribed.
229There were no visits for any spinal complaints in 2016, 2017, 2018 or 2019.
230On 16 January 2018, the reason for visit was anxiety which, it was noted, was well managed currently. The plaintiff attended for VicRoads forms to be filled.
231There was a recurrence of gout on 30 April 2018 and further prescription. Gout was the subject of attendances on 28 August 2018 and the next attendance on 4 July 2019.
232In July 2019, the plaintiff also attended for left knee pain and it was noted he was working in the garden at the weekend. There was a trial of Naproxen and Tramadol and investigations ordered.
233On 23 January 2020, the reason for visit was repeat prescription back pain:
“Has on going neck pain with radiation to arms intermittently. mid thoracic pain and lower … [lumbar] pain radiating to upper thighs, no … [sciatica] no red flags.
attributes to RTA in 2014. Keen to MRIU entire region … .”
(sic)

234An MRI scan was organised and Panadol Osteo prescribed.
235On 20 March 2020, there was a mental health assessment. It was noted the plaintiff reported low mood now over a year, felt on the verge of tears most days. Sleep disrupted, longstanding from thirty years of shift work, getting worse last year, feeling fatigued and getting an increase in anxiety symptoms. Set up on farm one-and-a-half years ago, hard work, and some financial difficulties, especially with Coronavirus outbreak.
Medico-legal evidence
236Mr David Brownbill, neurosurgeon, examined the plaintiff at the request of his solicitors in February 2017.
237The plaintiff advised of a car accident thirty years earlier, after which he had a full recovery and there had not been any other accident, illness, injury or operation. To specific questioning regarding the presence of a cervical spine x-ray report in April 2011, the plaintiff stated “I don’t remember anything about that” and “I don’t remember any neck pain”.
238On examination, the plaintiff reported intermittent pain in all parts down the back after repetitive activity and pain down both arms to the fingers after repetitive activity. He advised that he was now working full time in a security control room. He had not been able to continue with hiking, extended walking or being able to wash his car.
239In terms of current treatment, the plaintiff was having massage every four to six weeks. He took natural herbs and no prescription medication, apart from some Panadeine Forte a couple of times a week.
240On examination, there was essentially a full range of cervical and thoracolumbar spinal movements and no objective neurological abnormality in upper or lower limbs. Mr Brownbill thought it likely the plaintiff had sustained, initially, some soft tissue damage to structures about the neck and back, giving rise to local pain. He did not consider there was any ongoing physical injury with respect to the accident from a neurosurgical point of view.
241On probability from a neurosurgical point of view, he thought the plaintiff did not have any ongoing organic condition related to the neck or back with respect to the accident. Assessments lay also within the province of an orthopaedic surgeon.
242Mr Brownbill thought there was no impediment to the plaintiff’s future activities from a neurosurgical point of view with respect to the accident. With the demonstrated longstanding cervical spine degenerative changes, it was appropriate for him to avoid heavy lifting or forced spinal mobility.
243Mr Brownbill did not consider there was any restriction in relation to social, domestic and recreational activities from a neurosurgical point of view with respect to the accident. It was prudent for activity restrictions to apply because of demonstrated longstanding degenerative changes.
244Mr Kevin Siu, neurosurgeon, examined the plaintiff at the defendant’s request in December 2020. He was aware of the earlier neck surgery.
245Mr Siu believed the injury sustained in the accident was only a soft tissue injury, with the plaintiff complaining of aching all over subsequently. He considered the neurological examination of the neck and back to be normal.
246He thought the prognosis of the physical injury was poor and that the plaintiff really had not had a serious physical injury; however, he seemed to come across very depressed and a psychiatric assessment was mandatory.
247The physical injury sustained was not enough for the plaintiff to change occupation. He elected to move to a lighter job, such as a security guard. Mr Siu suspected it was the plaintiff’s mental condition, rather than his physical, causing the limitations. He did not think, in a physical sense, there was significant limitation, but the plaintiff’s mental health may be affected significantly.
248Mr Siu provided a supplementary report, having been provided with the reports of Mr Aliashkevich, Dr Serry, Mr Miller, Professor Bittar, Mr Speck, Dr Poon, the Laurimar clinical records and video surveillance of the plaintiff.
249Mr Siu noted Mr O’Brien’s July 2013 assessment of zero per cent in relation to the lumbar spine and cervical spine, and also Mr Brownbill’s view. Further, Mr Speck thought that the plaintiff had a soft tissue injury to the neck, but had mental health issues subsequently, with anxiety and PTSD. He noted that he, himself, had strongly recommended a psychiatric assessment.
250Mr Siu commented that the plaintiff, when filmed, was able to push a trolley and he spent over twenty minutes in a supermarket. He was able to load the trolley with groceries. At one stage, he was bending at the waist to obtain items at waist level. He was observed to unload his shopping from the trolley to the boot of his car. In doing so, he would lift up the groceries, turn and twist and load them into the boot and bend forward without restriction. He was carrying a full bag of groceries in the left hand. He was also shown to get into the front seat of the car and drive the car.
251As he reported, Mr Siu could not identify any physical injuries and the video supported that the plaintiff was able to move quite freely.
252Orthopaedic surgeon, Mr Gary Speck, examined the plaintiff in November 2020. He was aware of the plaintiff’s past history of prolonged neck pain surgically treated and, to a lesser degree, back pain.
253The plaintiff described a central neck pain extending upwards somewhat, but he also had symptoms in the extremities which tended to fluctuate in unison with the neck symptoms which do not necessarily follow. Neck pain was more central and extended into the base of the neck.
254There were symptoms in the legs but not associated with pain. They were “numb” and a nagging sensation. The symptoms in the lower extremity increased with standing and walking and he had a standing or walking tolerance for ten minutes only.
255On examination, there was tenderness of the whole of the spine in the midline from the scalp to the sacrum. Upper extremity strength was normal. Neck movements to the right were performed very slowly and the plaintiff described the restriction due to stiffness. There was some restriction on thoracolumbar movements.
256Mr Speck thought the plaintiff’s current medical condition related to his mental health issues and resolved soft-tissue injuries to the neck from the time of the accident.
257He noted, in terms of history, the plaintiff returned to work after the accident and subsequently had an ongoing mental health plan. He returned to his usual employment and ceased work there when he was retrenched when the business transferred to Geelong. He had subsequently been employed in various roles, including security, and currently undertook home duties for his partner who, with her son, ran a protea farm.
258Mr Speck diagnosed soft tissue injuries in the neck and mental health issues subsequently, with anxiety and PTSD identified by the local doctor. The plaintiff’s current medical conditions related to his mental health issues and resolved soft tissue injuries to the neck from the accident.
259In terms of unrelated injuries, Mr Speck noted there were identified radiological changes of degenerative change in the lumbar and cervical spine, with pre-existing conditions requiring neck surgery in 1998. He thought the relationship of mental health issues to the accident should be sought from an appropriate specialist.
260Mr Speck would have expected the soft tissue injuries to resolve. The plaintiff’s local doctor’s contemporaneous notes indicated this was so in the clinical notes, as well as the report. This would occur within six to twelve months from the accident at most, therefore it did not provide any ongoing incapacity for employment or interference with the plaintiff’s domestic and leisure activities. Any physical restriction of his domestic and leisure activities or work capacity was related to his non-transport medical conditions with degenerative change.
261Mr Speck provided a supplementary report, having been forwarded the reports of Dr Serry, Mr Miller, Mr Siu, Professor Bittar, Dr Poon, clinical records from Laurimar and the surveillance video.
262Mr Speck thought the provided footage showed the plaintiff moving without obvious restriction, although on occasion he was somewhat slow and careful in relation to his lower back. Thoracolumbar flexion and rotation movements were greater than those recorded on examination. Cervical movements were in a similar range in flexion and extension, but done more smoothly and readily than exhibited when requested to undertake rotation movements on examination.
263Mr Speck confirmed he believed the plaintiff had soft tissue injuries to the neck as a result of the accident, but no evidence of injury to the lower back, and that the soft tissue injuries had resolved, with his presentation being not related to any ongoing structural or physical injury arising from the accident. His degenerative lower back condition was neither aggravated by, nor as a result of, the transport accident.

Other documentation
264Wage records provided by Certis Security, where the plaintiff worked as a security agent, set out fortnightly payments for forty hours a week from 20 August 2017, with the plaintiff last having been paid on 16 September 2018.
265Facebook posts on 22 July 2017 on Gail’s Facebook page, showed the plaintiff on a beach. There was also a post of a photograph of the plaintiff and Gail, with some elephants in the background, on 19 November 2017.

Overview
266There is no dispute the plaintiff suffered a spinal injury in the transport accident.
267While he had cervical surgery in 1998, it was not strongly suggested by the defendant that the plaintiff had significant ongoing neck problems as at the accident date, although he had had a cervical x-ray in 2011, seemingly connected to a right shoulder issue.
268However, the nature of any current accident-related spinal condition is in issue, with examiners Mr Siu and Mr Speck [86] of the view the plaintiff’s injury was soft tissue in nature and effectively has resolved. Professor Bittar, Mr Aliashkevich and Mr Miller considered the accident related injuries continue to contribute to the plaintiff’s spinal condition based on an inaccurate history given by the plaintiff and in the absence of contemporaneous medical support for his alleged complaints.
[86]Neck only

Credit
269As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[87]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[87] (2010) 31 VR 1 at paragraph [12]

270Counsel for the defendant submitted the plaintiff was an unreliable witness and a lot of what the plaintiff asked the Court to infer depended on acceptance of his reliability.[88] He gave inconsistent evidence about the prescription of Panadeine Forte, refusing until late in cross-examination to accept it was prescribed for gout, not spinal pain.[89]
[88]        T135
[89]        T134
271While it was not said he was deliberately misleading the Court, the plaintiff’s affidavits were misleading, as in cross-examination, he agreed he had ceased a range of activities he claimed he had to stop because of his accident injuries, sometime beforehand.[90]
[90]        T134
272In response, counsel for the plaintiff submitted credit was not an issue. The plaintiff had a good work record and his failure to seek treatment resulted from his attitude towards medication and treatment.[91]
[91]        T124
273It was submitted the plaintiff was a pretty straightforward individual, albeit there were issues with his affidavits which it was conceded should have been worded differently in terms of his gout issue and medication intake. In totality, it was submitted he gave very genuine and honest evidence.[92]
[92]        T131
274In my view, the plaintiff was not a reliable witness. His three affidavits clearly set out an inability, as a result of his accident injuries, to participate in drag racing, bushwalking and attending the football when these activities had ceased before the accident.   He also refused to acknowledge he was prescribed Panadeine Forte for gout, not spinal pain, until questioned repeatedly in this regard. His explanation for not seeking treatment for his spine was not credible, particularly in circumstances where earlier neck surgery had been so successful, on his own description.
275The surveillance film however did not raise any credit issues, with the plaintiff conceding it showed a normal day for him doing the shopping, with no apparent restriction.
Pain
276The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about his pain (both in court and to doctors).[93]
[93]        Haden Engineering (supra) at paragraph [11]
277In his most recent January 2021 affidavit, the plaintiff described ongoing pain and pins and needles extending from his neck into his hands and shooting pain into the back of his legs which continued to be elevated by activities or physical strain. Spinal movements such as lifting, twisting and turning were restricted and his sitting and standing tolerances were low.
278When he last saw Professor Bittar in March this year, the plaintiff described lower back pain on average 7 out of 10 and neck pain 9 out of 10.
279However, I do not accept the plaintiff suffers this high level of spinal pain as a result of any accident injury. Mostly, his complaints have been of moderate pain, thus not falling into the category of significant continuous pain.[94] In my view, he would have been unable to continue full-time work working 12-hour shifts until late 2018, if he was experiencing a significant level of pain without treatment or heavy medication.
[94]        Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [48]
280Further, these complaints of pain have been to medico-legal examiners – not treaters. There is no evidence of a progression of the plaintiff’s spinal condition in the Laurimar notes – the notes are to the opposite effect.[95] Dr Poon’s recent report noting current neck pain has not been explained.
[95]        T139
281Significantly, Dr Poon recorded in February 2013 that the plaintiff was “back to 95% normal” and keen to get back to work. That practitioner’s July 2018 report set out the plaintiff’s neck pain had fully resolved and focussed on mental health issues. Further, there was no mention of spinal pain in the Laurimar notes until early 2020. The plaintiff has provided no satisfactory explanation for that attendance, having not been seen at Laurimar for spinal issues for seven years.
282The plaintiff has described moderate pain in different areas of the spine to other medico-legal examiners. Much closer to the accident date, in May 2013, he told Dr Wahr of neck pain going down his arms and in July that year, he reported to Mr O’Brien neck pain present most of the time 4 to 8 out of 10 and fluctuating pain in the lower back. Mr Myers, in July 2014 and November 2016, was told of pain in the neck and back “pain and off” with sleep being the plaintiff’s main problem.
283In February 2017, the plaintiff reported to Mr Brownbill intermittent pain in all parts of the back and pain down both arms after repetitive activity. Mr Miller, in March 2018 and December 2020, was told about neck and low backache and discomfort.
284In July 2020, the plaintiff told Mr Aliashkevich of constant pain in the lower back, up to the spine and neck. More recently, in November 2020, he told Mr Speck of central fluctuating neck pain and upper limb and leg symptoms. That month, he told Mr Siu of constant pain.
285Most examiners found little wrong with the plaintiff’s spine on clinical examination. While in 2014, Mr Myers found a 25 per cent restriction of spinal movement and a restriction of 50 per cent in 2016, in 2013, Mr O’Brien found no real restriction of lumbar movement and very limited restriction of cervical movement. He thought current physical signs were minimal.
286On examination by Mr Brownbill in 2017, there was essentially a full range of cervical and thoracolumbar spinal movements and no objective neurological abnormality in the upper and lower limbs.
287Mr Miller diagnosed a musculoligamentous strain and aggravation of degenerative disease at both levels. Other than radiation into the upper extremities, he thought there were no other features to suggest radiculopathy, neurological deficit or structural injuries. Further, he concluded the relationship of the spinal condition to the accident was complex and multifactorial and, in his second report, added significant physical work over protracted periods of time as a contributing factor.[96]
[96]        T91
288Professor Bittar found spinal tenderness without muscle spasm and moderate restriction of lumbar and cervical movement. There was no neurological abnormality. Mr Aliashkevich found widespread pain distribution and had the impression the injuries started a cascade of Chronic Pain Syndrome.
289The plaintiff described mainly cervical pain to Mr Speck with symptoms in the legs not associated with back pain. Mr Speck thought current medical conditions related to mental health issues and resolved soft tissue injuries to the neck as the treating doctors notes confirmed.
290Mr Sui’s neurological examination was normal and he found some limitation of cervical movement. He thought the plaintiff suffered a soft tissue injury only in the accident, complaining of aching all over subsequently.
291Taking into account all the evidence, I accept, as Mr Speck and Mr Siu explained, the plaintiff suffered soft tissue injuries to his spine, mainly in the cervical region, which have largely resolved, as the contemporaneous notes confirm. He does not have an ongoing spinal organic condition which is serious in nature.
Treatment
292The plaintiff has received limited treatment following the accident. As discussed earlier, attendances on his general practitioner post-accident were very limited and focussed on the plaintiff’s mental state. There has been no specialist referral, no physiotherapy or hydrotherapy.[97]
[97]        T85
293The plaintiff’s use of painkilling medication has been limited to the Panadeine Forte which he has been prescribed for many years for gout.
294Counsel for the plaintiff explained the lack of complaint of spinal pain and treatment by the plaintiff’s personality. He described the plaintiff as a man who had a particular way of dealing with things and he carried on as best as he could, particularly after the 1985 injury, not having surgery until 1998. The plaintiff also had concerns about further spinal surgery after a discussion with his earlier general practitioner, Dr Gescheit, about the dangers of multiple spinal surgery and the chance of becoming a quadriplegic.[98]
[98]        T102 – first mentioned in re-examination
295It was submitted if the plaintiff thought his general practitioner could help him with his spinal pain over and above self-management, then the plaintiff would have complained to him about it.[99] The plaintiff does not go to the doctor because he does not see it is worth complaining.[100]
[99]        T105
[100]      T131
296In response, counsel for the defendant submitted the plaintiff clearly did not go to Laurimar for the seven years because he did not need to. There was no spinal pain after February 2013, when he was 95 per cent better. The only complaints the plaintiff made of any pain was to medico-legal assessors.
297Significantly, in his 2018 report, Dr Poon focused more on the anxiety symptoms related to the accident than any physical complaint, noting that the pain had resolved. Dr Poon’s later change of view was unexplained.[101]
[101]      T88
298While further investigations were carried out after the early 2020 attendance at Laurimar, there is no mention in that clinic’s notes of any deterioration in the plaintiff’s condition requiring those investigations to be undertaken.
299I do not accept the plaintiff’s explanation for not seeking further treatment for his spinal condition after the accident, having had such a successful outcome from the 1998 surgery.[102] I do not accept that after that earlier surgical outcome, he did not seek any referral because he was scared of the risk of paraplegia – an explanation he only gave in re-examination.
[102]      T87
300Further, I do not accept that the plaintiff had not sought treatment from his general practitioner for so many years because he self-managed his condition, adjusting his lifestyle.[103]
[103]      T115
301The plaintiff is a man who is not shy of attending a doctor. If he had the level of spinal pain he describes since the accident, he would have reported it to his doctor and received the necessary treatment or specialist referral.[104]
[104]      T89
Medication
302While the plaintiff deposed he required painkilling medication such as Panadeine Forte for his spinal pain but was reluctant to take it because of its side effects, he has consistently been prescribed medication for gout only, both before the accident and on a continuing basis thereafter.[105]
[105]      Laurimar records
303Further, prior to the accident, the plaintiff suffered from headaches and was prescribed Panadeine Forte for that condition. In addition to pre-accident headaches, he also complained of sleeping problems due to anxiety.[106]
[106]      T87
Work
304Counsel for the plaintiff relied principally on pecuniary disadvantage and economic loss/employment consequences in terms of seriousness.[107] It was submitted that the plaintiff made a number of job changes, ultimately leaving the workforce because he could not cope with the physical nature of the various jobs as a result of his accident injuries. He moved into easier work and eventually, in 2018, he could not continue.[108]
[107]      T136
[108]      T100
305It was submitted, despite all its complexities, the case could be seen fairly simply by the employment rubric. The plaintiff had had an accident. It was conceded he did not leave BlueScope because of his injuries. That employer relocated, that did not suit the plaintiff and although he did give some evidence he was mentally and physically a bit spent, what his evidence really pointed to is that he had just tried to manage this himself and that was an opportunity for him to look for different work.[109]
[109]      T99
306The plaintiff then did some driving and later went into security work at Tullamarine which did not last for too long and his main job was then at SNP. He “eventually waved the white flag” after working fairly long 12-hour shifts looking at screens in that job. His accident injuries were the reason why he left SNP. This was a major consequence.[110]
[110]      T100
307It was also suggested the plaintiff did not take medication while working at SNP as that employer had a zero tolerance of medication being taken at work.[111]
[111]      T107
308Further, the plaintiff was never challenged on his reasons for stopping work or having to change jobs. In those circumstances, it was proper to accept his evidence and look at the objective picture of his issues at work, corroborated by Mr Sharma.[112]
[112]      T125
309It was however conceded the plaintiff was capable of light physical work on the farm on a very limited basis.[113] The discretionary trust payment is an accepted method of income splitting and did not suggest any physical contribution by the plaintiff to the farm’s operation.[114]
[113]      T137
[114]      T37-38
310Counsel for the defendant was critical of what he described as a shift in emphasis towards an employment focus about which there was only an oblique reference in the plaintiff’s third affidavit.[115]
[115]      T131
311The plaintiff did not actually depose he ceased work at BlueScope or any other job subsequently specifically as a result of spinal pain. A fair reading of his affidavits was largely about Panadeine Forte drag racing, medication and bushwalking, and “that fell apart” in cross-examination.[116]
[116]      T132
312There were six years of full-time employment following the accident. The plaintiff had also been driving taxis and he worked 12-hour shifts at SNP until September 2018. There was no evidence from any doctor that the plaintiff was fit or was not fit for his pre-injury work at that time. There was nothing to demonstrate in the six years that he could not do his work, save for a comment in his affidavit he could not sit and other times the pain increased with activity.[117]
[117]      T87
313Further, at one point post-accident the plaintiff was earning more money than he ever earned pre accident, and it could not be said realistically he suffered pecuniary loss, even where about $40,000 is derived by trust income.[118]
[118]      T81
314Counsel for the defendant was critical of Dr Poon’s changed view in his most recent report and his lack of explanation why he now thinks the plaintiff cannot work because of his accident neck injury.[119]
[119]      T88
315The plaintiff conceded he was made redundant, so he can hardly say he was unfit for the work at BlueScope or otherwise for heavy work. There is no contemporaneous evidence at all on this point, just the comments made by Professor Bittar and Mr Aliashkevich. The plaintiff even told Mr Myers that he left BlueScope because the job was no longer available.[120]
[120]      T133
316It was submitted Mr Sharma did not assist the plaintiff’s case as he deposed to the plaintiff being very reliable and one of his best staff.[121]
[121]      T133
317I do not consider there are significant employment consequences resulting from the plaintiff’s accident injuries.
318There was no complaint recorded by Dr Poon of any ongoing spinal problems in any of the plaintiff’s post-accident work roles. While Mr Sharma reported the plaintiff having difficulty being seated while working in the security role, he confirmed that the plaintiff was a conscientious reliable employee. Further, there is no evidence that the plaintiff missed time from that job or that he left any job because of spinal problems. There is therefore no evidence to be challenged in this regard.
319The plaintiff only had a short time off work as a forklift driver after the accident and ceased that role because he was made redundant. He was not prepared to go to that employer’s facility in Geelong and did not follow up the job offer made by his employer.
320In any event, the plaintiff then had further work as an Uber driver, then at Melbourne Airport, before obtaining security work, which he undertook until September 2018.
321In the absence of medical attendances, increased medication or complaints of difficulties at work to his employer or doctors, I do not accept, as the medico legal examiners relied on by the plaintiff did, that the plaintiff’s spinal pain was gradually worsening to the point where he could not work beyond September 2018.[122] That factual assumption was completely at odds with the 95 per cent improvement and no spinal complaints thereafter for the next seven years.[123]
[122]      T114
[123]T138. See the ruling of Dixon J in Parrish v Specialized Australia Pty Ltd (Rulings) [2020] VSC 15 at paragraphs [23]-[26]; [30]-[36] and [42], where his Honour followed the approach in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
322On the available evidence, I do not accept the plaintiff left the workforce because of any spinal condition given his lack of complaint of any difficulty at work and the absence of treatment. I do not accept there was any deterioration in his spinal condition in late 2018 that was responsible for him ceasing work at the age of sixty-two.
323However, I accept the plaintiff does very little on the farm – light physical work as he described to Professor Bittar. Heavier manual work is done by his partner, her son and the two employees. The farm provides an outside activity for the plaintiff. He does a small amount of physical work and research on the internet as to business matters. The trust payment to him is a legitimate income splitting arrangement, not payment for physical work.
Activities
324Counsel for the plaintiff emphasised the work consequences and did not rely on the effect of the plaintiff’s injuries on his sporting activities, which were “probably fairly sloppily articulated in the affidavit,” agreeing those activities were more historical.[124]

[124] T99
325While the plaintiff’s affidavits gave the impression that he was quite active before the accident, in particular engaging in competitive drag racing, home renovation, bushwalking and attending the Northcote Football Club, it became apparent that his involvement in these activities had ceased some time before the accident. He last engaged in competitive drag racing in the early 2000s and has attended meets as an observer after the accident. He last went to the Northcote Football Club in 2010-2011 and ceased bushwalking at around that time.
326Clearly, the plaintiff also gave a number of examiners the wrong history about his level of involvement in these hobbies before the accident.[125]
[125] T95
327Although there was reliance on Gail’s affidavit, she too gave the incorrect impression the plaintiff ceased a range of sporting activities because of his accident injuries when this clearly was not the case. Despite her evidence of the plaintiff’s restrictions socially, they are still however able to travel overseas together.
328Taking into account all the evidence, I am not satisfied that the consequences of any spinal impairment claimed by the plaintiff are “serious”.
329Accordingly, the application is dismissed.

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[2021] VCC 649

25 May 2021