Transport Accident Commission of Victoria v Kelyana

DETERMINATION OF REVIEW PANEL
CITATION:	Transport Accident Commission of Victoria v Kelyana [2024] NSWPICMP 148
CLAIMANT:	John Kelyana
INSURER:	Transport Accident Commission of Victoria
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:	12 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Herald dated 11 June 2021; claimant injured in a minor rear end collision between a bus being driven by him and the insured car; review application by insurer; impact recorded on CCTV within the bus and indicating very little movement or reaction of the claimant at the point and time of impact; claimant made immediate complaints of injury upon returning to bus depot and diagnosed as having a cervical spine C3/C4 disc prolapse and left C4 nerve impingement, left and right shoulders impingement; Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd principle; aggravation of underlying disc prolapse of lumbar spine; claimant relied on one accident/ergonomic report and insurer had two such reports; claimant’s expert could not definitively say that the claimant was injured as a result of this collision and said that he was probably an outlier who was remarkably susceptible to an injury of this nature; both experts for the insurer said that causation for the injury based on the CCTV and mathematical analysis, could not be established; one expert confirmed that there were 83 other incidents during the course of the bus trip which were of a more serious bump or sudden stop compared to the one attributed by the claimant as causing his injury; Panel not satisfied that the injury claimed by the claimant could be limited to any injury occurring immediately at the time of the rear end collision; principles of causation discussed; Held – certificate of MA Herald revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Herald dated 11 June 2021. 2. The Panel finds that the accident on 10 January 2017 did not cause injury to the claimant’s; (a) cervical spine C3/C4 disc prolapse and Left C4 nerve impingement; (b) right shoulder impingement (Nguyen principle); (c) left shoulder impingement (Nguyen principle), and (d) lumbar spine- aggravation of underlying disc prolapse.

STATEMENT OF REASONS

The review

This is a review requested by the insurer of the certificate of Medical Assessor Herald (the Medical Assessor) dated 11 June 2021.
The Medical Assessor assessed the claimant as having a 13% whole person impairment (WPI).
The Medical Assessor found the following injuries caused by the motor accident gave rise to a permanent impairment which is greater than 10%;
(a)     cervical spine C3/C4 disc prolapse and Left C4 nerve impingement;
(b)     right shoulder impingement (Nguyen principle), and
(c)     left shoulder impingement (Nguyen principle).
The following injuries were found by the Medical Assessor to have been caused by the motor accident but to have resolved and to give rise to no assessable permanent impairment:
(a) lumbar spine – aggravation of underlying disc prolapse.
The insurer has sought a review of the certificate and reasons on the following bases;
(a) The Medical Assessor did not have regard to:
(i)the insurer’s lengthy submissions;
(ii)all of the material provided with the insurer’s Reply, but in particular:
(aa)report of Dr Short, biomechanical engineer, dated 7 September 2020;
(bb)report of William Keramidas dated 18 August 2020, and
(ccc)CCTV footage of the incident.
(b) That the Medical Assessor did not comply with the Motor Accident Guidelines (the Guidelines) as to causation.
(c) Nor did the Medical Assessor address the claimant’s post-accident history and his alleged incapacity including the fact that the claimant:
(i)was able to drive the bus from the scene of the accident back to the depot, and
(ii)he was involved in a subsequent motor vehicle accident on 28 March 2017, which would have involved much more force on the claimant’s body than the subject incident.
The insurer says that there has been a clear and material failure on the part of the Medical Assessor and his decision should be reviewed by a panel of appropriate experts.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

Insurer’s submissions

The insurer has relied on an accident reconstruction report of Mr Keramidas dated
18 August 2020 and a biomechanical report of Dr Short dated 10 September 2020. The insurer submits that the Medical Assessor has not referred to either of these reports in his certificate.
The insurer submits that what is captured on the CCTV footage is not referred to, let alone addressed, by the Medical Assessor and it seems unlikely that he viewed it.
It is the insurer’s submission that there is no causal connection between the incident and any of his alleged injuries.
The insurer says that to decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following;
(a) the alleged factor would have caused or contributed to worsening of the impairment, which is a medical determination, and
(b) the alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
The insurer says that the relevant common law principles may be stated simply; the claimant bears the onus of establishing, on the balance of probabilities, that a particular injury was caused by the accident. The decision maker must give reasons setting out the actual path of reasoning by which he or she arrived at the assessment. A beneficial construction does not permit reasons to be inferred which are not stated if they are not necessarily implied by what is expressed.
The accident occurred at the intersection of West Street and Pacific Highway at North Sydney on 10 January 2017. The insurer says that the insured driver was on West Street waiting to turn, in a small Golf hatchback, into the Pacific Highway. The bus was to her left. In the process of turning, the insured driver inadvertently sideswiped the right rear corner of the bus.
There is CCTV surveillance of the incident from within the bus. The insurer submits that the collision was hardly registered by the driver or the approximately 50 passengers on the bus. The insurer says that footage after the impact shows the claimant to get out of his seat, disembark the bus, which the insurer speculates was for the purpose of speaking to the insured driver, and then arranged for passengers to disembark. The drivers exchanged detail and the claimant drove the bus back to the depot at Seven Hills, a distance over 33km and taking approximately 30 minutes.
The insurer says that it is not the duty of an assessor to determine what may have caused an injury but merely if the circumstances of an accident presented to them caused the injuries.

Prior accident 18 June 2016

The claimant says this earlier accident was a minor accident. However, the insurer disputes this. This accident involved the claimant approaching a roundabout when his brakes failed, and he collided with the rear of another vehicle. He was diagnosed with low back injury, right knee injury, anxiety and post-traumatic stress disorder. He was certified off work for one month. He came under the care of Dr Bazina. She said his pain was related to aggravation of foraminal stenosis. She recommended steroid injections and discussed the possibility of surgery if symptoms did not resolve in 12 months. He had a lumbar spine injection on
31 August 2016. He then remained off work until 20 December 2016, three weeks before the accident.
The insurer relies on CCTV footage on the day of the accident which it says shows the claimant to be moving around uncomfortably in his seat in the period prior to the impact. The insurer says that this suggests that the claimant remained symptomatic at that time. The insurer says that a period of three weeks between the time the claimant returned to work after the first accident and the time of the accident the subject of this determination, is a very short time to test the claimant’s capacity to work.

Third accident on 28 March 2017

The claimant was involved in a third accident on 28 March 2017, 10 weeks after the subject accident. The insurer says that this shows the claimant could drive at that time. This was a rear end collision. NRMA denied liability.
The insurer says that it is ridiculous to assert that that minor jostling, even if it occurred in the subject accident, would have triggered off events leading to the claimant’s neck surgery, rather than what must have been a more significant event which occurred on 28 March 2017.
The claimant had an MRI scan of the cervical spine on 25 January 2017. This revealed mild bulges of the discs at C3/4 and C5/6, maximal at C3/4. The insurer says these were pre-existing and that the exit foramen was already compromised due to a pre-existing uncovertebral osteophyte at that level on that side. There was no acute disc injury. The insurer says that this is demonstrating symptoms degenerating with age.
The insurer says that despite what the claimant says, it is evident that most of the treatment he has received has been after the third accident on 20 March 2017.
The insurer refers to the claimant relying on a report dated 29 January 2020 of
Dr Mastroianni. He attributed 5% WPI to the cervical spine, 4% WPI to the right arm and 6% WPI to the left arm. He said on page 5 of his report that the shoulder tendonitis was not caused by the accident but was caused by work activities whilst on selected duties. The insurer says that the claimant did not actually suffer shoulder problems as a result of the subject accident.
The insurer says that having regard to the CCTV footage, there is simply no way that either shoulder could have been injured given that the seatbelt did not even lock.
The insurer says that in any event the only injury could have been to the left shoulder.
The insurer says that Dr Mastroianni has erred in assessing WPI in that he should have taken the right uninjured arm as a baseline which had a 4% WPI and so that percentage should have been deducted from the findings in relation to the right shoulder.
The insurer says that neither shoulder was injured. The insurer submitted that findings of restriction reflected degenerative change which was pre-existing and probably related to years strain as a bus driver. The insurer says that strain would also be relevant in terms of neck and back problems.
The insurer notes that Dr Mastroianni recorded that there was no contemporaneous complaint of lumbar spine injury. The insurer says that the claimant had significant pre-existing issues in relation to this and had only just returned to work. The insurer says that the claimant’s doctor does not support lumbar spine injury or aggravation of any such injury in the accident.

Claimant’s submissions

The claimant submits that his claim arises from injuries sustained by him in a motor vehicle accident, which occurred on 10 January 2017.
The claimant says that on that date at approximately 8:40am, he was at work driving a bus and was stationary on Pacific Highway off West Street in North Sydney, when a vehicle turning left out from West Street attempted to overtake his bus, and subsequently struck the rear of the bus.
The collision was captured on CCTV footage. There are photographs also depicting the damage to each respective vehicle. The claimant submits that the Medical Assessor will note, from the footage, that although there was not much movement from the claimant's perspective as the vehicles collided, the claimant moved sharply in response to the collision to see what had occurred.
As a result of the accident, the claimant says that he sustained the following injuries:
(a)      cervical spine;
(b)      left shoulder;
(c)       right shoulder;
(d)      aggravation to lumbar spine, and
(e)      psychological.
The claimant says that the insurer had accepted primary liability, but denied liability for the claimant's injuries, alleging that the collision could not have caused the injuries which he has sustained.
It is submitted by the claimant that all of the abovementioned injuries were sustained directly as a result of the motor vehicle accident which occurred on 10 January 2017.
Following the accident, the claimant received the treatment funded by the workers compensation insurer of the claimant’s employer, as follows:
(a)   several cortisone injections to left shoulder;
(b)   diagnostic blocks of the left cervical medial branches;
(c)   ongoing medication such as Panadeine Forte, Voltaran (with limited benefit) and Temazepam to treat psychological symptoms;
(d)   physiotherapy, and
(e)   surgery to cervical spine and post-operative physiotherapy.
The claimant says that prior to the accident, his cervical spine was asymptomatic as he made no complaints of any pain to the cervical spine.
The claimant submits that the full extent of his injuries was realised when the claimant returned to the depot. It was there that he complained of his injuries and arrangements were made by the claimant’s employer for him to see Dr Foong. Subsequently, Dr Foong assessed the claimant and provided a certificate restricting the claimant's capacity for work.
The claimant submits that he made contemporaneous neck and back complaints within hours of the accident.
The claimant submits that in the days that followed, Dr Foong referred the claimant to have MRI scans conducted, and on 25 January 2017, 15 days following the collision, an MRI scan was performed and revealed a serious injury to the cervical spine as follows:
"Shallow 2mm left C3/4 posterolateral disc protrusion with uncinate spurring extending into the left foramen resulting in moderate foraminal stenosis and potential impingement of the left C4 nerve."
The claimant says that it was only following the accident, that Mr Kelyana began to experience severe neck pain and stiffness with pain radiating to his left shoulder.
The claimant says that he came under the care of neurosurgeon, Dr Renata Bazina, and had two cervical medial branch blocks performed.
The claimant continued to seek treatment from Dr Bazina for his cervical spine. He continued to rely on pain killer medication and also had ongoing physiotherapy with no improvement.
On 5 March 2019, the claimant had surgery in the form of a left C4 nerve decompression via foraminotomy performed by Dr Bazina. He subsequently required physiotherapy and was prescribed Paracetamol, Neurofen and Endone as required.
On 21 May 2020, the claimant returned to see Dr Bazina. He continued to complain of neck pain. The claimant submits that Dr Bazina observed that he had not made a good recovery from his surgery.
The claimant has also had a further two cortisone injections to the left shoulder in June and July 2020, under the care of specialist Dr Dave. The claimant says that he has felt little improvement and he will continue with physiotherapy and with his specialist consultations.
The claimant says that he has also been undergoing a pain management programme online with Liverpool Hospital, which had been delayed due to the pandemic.
The claimant submits that he made immediate complaints of back pain to Dr Foong on the day of the subject accident, following his consultation with the claimant. The claimant says that Dr Foong noted that the back pain had settled three months prior to the subject accident, and the subject accident had aggravated the lower back injury.
The claimant says that he consulted Dr Bazina in relation to his lumbar spine injury, prior to the subject accident. When he consulted her following the subject accident, she noted that the accident had aggravated the lower back pain.
The claimant submits that he continues to experience pain as a result of his lower back injury, for which he received treatment in the form of physiotherapy, and for which he relies heavily on pain killer medication.
In the claimant’s submissions, he notes that on 18 June 2016, prior to the subject accident, he was involved in a motor vehicle accident where he sustained an injury to his lower back.
On 20 March 2017, following the subject accident, and while on his way home from physiotherapy, the claimant says that he was involved in a minor collision, where a driver hit the rear of his vehicle while both vehicles were in motion. The claimant says that his car was not stationary when the collision occurred. The claimant submits that he did not experience any difference in pain, but he sought his doctor's advice just to rule out any aggravation to his injuries. He says that he was prompted to lodge a claim with the compulsory third party (CTP) insurer. The claimant says that upon investigating his injuries, the CTP insurer, being NRMA, denied liability and closed the file on the basis that there was no aggravation or injury caused by the accident on 20 March 2017.
It is submitted that the accident on 18 June 2016 caused a minor injury to the lumbar spine, which was aggravated by the subject accident occurring on 10 January 2020. It is further submitted that the subject accident caused an injury to the cervical spine and left shoulder, and that no injury, or aggravation of injury, was sustained in the subsequent minor collision occurring on 20 March 2017.
The claimant says that based on the CCTV footage, particularly at part 56:10, the CTP insurer being the Transport Accident Commission (TAC), has denied liability for the claimant's injuries, alleging that the collision could not have caused the injuries which the claimant has sustained.
The claimant submits, that based on the history of no previous injury, no previous complaints, symptoms or treatment, that the injuries sustained and the claimant's current condition, particularly in relation to the cervical spine and left shoulder, are all consistent with the subject accident.
The claimant relies on and refers to a report of Grant Johnston 8 May 2020 where he says;
"8.1 I therefore conclude that although I would concede that the severity of this impact was below the threshold at which a normal healthy adult would expect to sustain any degree of long tern injury if the other factors surrounding the injury are accepted then the plaintiff may simply be an outlier from the normal data set and/or the presence of the pre-existing degenerative changes in the lumbar spine and possibly the cervical spine may have been sufficient that they went from being asymptomatic to symptomatic following this incident."
The claimant submits that Dr Mastroianni in his report dated 29 January 2020 is also supportive of the causal nexus between the claimant's injuries and the subject accident, as he states the following:
"I reviewed the CCTV footage and after closely studying the frame at the time of the accident it is my opinion that the accident has caused the disc lesion." (page 5)
"At the time of impact, the bus was stationary. He was resting his right elbow on the steering wheel, had his right hand under his chin and the neck was slightly flexed and rotated to the right. Although the impact appears to be minor on CCTV, I am of the opinion that the slight jerking of the neck in that position caused the disc lesion." (page 5)
"The history supports the above as he had neck pain within an hour and the neck pain subsequently got worse and he developed referred symptoms. He still has hypersensitivity in he C5-6 dermatome in the left shoulder." (page 5)
"There is evidence of underlying degenerative disease in the cervical spine which was asymptomatic and aggravated in the subject accident" (page 5)

The claimant submits that the balance of the evidence persuasively establishes that this motor vehicle accident caused injury to the claimant's neck, his left shoulder and his lumbar spine. The claimant says that these body parts were asymptomatic prior to the accident. The claimant says that he was able to work, as a bus driver, on a full-time basis, without complaint or restriction prior to this accident. Since this accident, the claimant submits that he has had neck, left shoulder and back pain. He has been unfit for work. The claimant has required surgery, which has been unsuccessful.
The claimant says that the balance of the expert evidence supports this nexus, namely the opinion from Dr Mastroianni and the informed opinion by Mr Johnson, biomechanical engineer. It is on this basis that the claimant submits that this compels a finding that the injuries to his neck, his left shoulder and his lower back are causally related to the accident.
The claimant has directed the Panel to cls 1.5 - 1.7 of the Guidelines, and more particularly the relevant considerations when determining causation, namely whether the condition was caused by or contributed to by the occurrence of the accident. The claimant says that the following questions arise:
(a) whether the alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination, and
(b) whether the alleged factor did cause or contribute to a worsening of the impairment, which is a non-medical determination.
The claimant also submits that there is no simple common test of causation that are applicable to all cases, but the acceptable approach involves determining whether the injury was caused or materially contributed to by the accident. The claimant says that the motor accident does not have to be a sole cause, but may be a contributing cause, which is more than negligible.

Medical evidence

The insurer has provided no medical evidence in support of its submissions.
The claimant has provided a number of medical reports including;
(a)   report of Dr Mastroianni dated 29 January 2020;
(b)   report of Dr Dave to Dr Arslan dated 21 June 2019;
(c)   report of Dr Bazina dated 22 May 2020, and
(d)   report of Dr Dave dated 18 June 2020.
Dr Dave recommended a cortisone injection to the left shoulder but did not recommend any surgery.
The claimant was referred to see Dr Bazina. She performed facet blocks and a peri neural infiltration. Dr Bazina recommended surgery and the claimant had a foraminotomy in
March 2019.
Dr Mastroianni reported that he reviewed the CCTV footage. He said that after closely studying the footage at the time of the accident, it was his opinion that the accident has caused the disc lesion.
Dr Mastroianni said that at the time of impact, the bus was stationary. The claimant was resting his right elbow on the steering wheel, had his right hand under his chin and his neck was slightly flexed and rotated to the right. Dr Mastroianni said that although the impact appeared to be minor on CCTV, he was of the opinion that the slight jerking of the neck in that position caused the disc lesion.
Dr Mastroianni said that the history supported the above as the claimant had neck pain within an hour and the neck pain subsequently got worse and he developed referred symptoms.
Dr Mastroianni said that the claimant still had hypersensitivity in the C5-6 dermatome in the left shoulder.
Dr Mastroianni reported that the claimant stated the neck pain was severe pre-surgery and he became more aware of shoulder pain after the surgery as neck pain post-surgery was minor in comparison to what it was pre-surgery.
Dr Mastroianni said that the claimant had bilateral shoulder tendonitis but in his opinion, this was not caused by the accident but it was a consequential injury caused by work activities whilst on selected duties such as lifting and using a guillotine as well as exercises with a personal trainer which was making his shoulder pain worse.
Dr Mastroianni assessed WPI at 15% as follows;

Body Part or System	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table number in AMA 5 Guides	% WPI	WPI deduction pursuant to S323	Sub-total % WPI (after any deductions)
Cervical Spine	10/1/17	Chapter 4 Page 26- 33	Chapter 15 Table 15.5	5%	Nil	5%
Right upper extremity	10/1/17	Chapter 2 Pages 13- 15	Page 476 - 479, figure 16.40 to 16.46	4%	Nil	4%
Left upper extremity	10/1/17	Chapter 2 Pages 13- 15	Page 476 - 479, figure 16.40 to 16.46	6%	Nil	6%
Total % WPI (the Combined table values of all sub-totals)						15%

The Panel notes that the assessment of Dr Mastroianni appears to have been based on the incorrect Guidelines.
Scans have been reported as follows;
(a)   25 January 2017 MRI cervical spine, Dr Law. Left C3-4 posterolateral disc protrusion with uncinate spurring extending into the left foramen resulting in moderate foraminal stenosis and potential impingement of the left C4 nerve. C5-6 left posterolateral disc protrusion without foraminal stenosis but obvious C6 neural impingement;
(b)   24 April 2018, Dr Ganeshan. Mild cervical spondylotic changes without cause for left radiculopathy ascertained. C3-4 lower grade disc bulge. C4-5 anterior and posterior disc osteophyte complex without neural impingement. C5-6 similar changes without cause for radiculopathy and no significant cord compression;
(c)   6 June 2019 and 19 November 2019 MRI right and left shoulders reveal partial tear of the supraspinatus, mild subacromial bursitis, and
(d)   3 July 2018 Bone scan, Dr Brittain. Mildly increased uptake left facet joints at C4-5.
The Panel also has before it a copy of the certificate of Medical Assessor Herald dated
11 June 2021. Neither party attached this certificate to their respective bundles of documents.
The Medical Assessor did not refer to the CCTV from the bus.
On examination of the cervical spine the claimant had tenderness over his cervical spine. There was a well healed surgical scar on the back of his cervical spine. However, the Medical Assessor said that the claimant described that as feeling awkward or like his muscles had been pulled apart in that area. He had tenderness over the cervical spine and paravertebral muscle spasm. He had restricted range with lateral flexion to only about a quarter of normal range and minimal if any extension. Forward flexion was possible to around 50%. He had a positive Spurling's test to both upper limbs radiating all the way down to his fingers but predominantly focused on his shoulders. His neurological examination to his upper limbs, however, were intact to tone, power and reflexes.
Lumbar spine examination revealed some bony tenderness in his lumbar spine. He did though have no evidence of dysmetria and there was no muscle guarding. He had a negative straight leg raise and neurological examination to his lower limbs was intact to tone, power and reflexes. He had a slow shuffle but a normal gait without a limp.
Examination of both shoulders revealed a restricted range. He had tenderness over the greater tuberosity and positive impingement signs bilaterally. The claimant had grade 5 power in all rotator cuff muscles however, end range was limited predominantly by pain rather than any true stiffness. He had tenderness over his biceps tendon bilaterally and positive signs of biceps tendonitis which were mild but in addition to impingement symptoms.
The Medical Assessor did not consider causation. He concluded though, without explanation, that the following injuries were caused by the motor accident:
(a)   cervical spine - disc protrusion with impingement of nerve root;
(b)   both shoulders - Nguyen principle and tear, and
(c)   lumbar spine - aggravation of underlying disc protrusion.
The Medical Assessor provided the following diagnoses;
(a)   cervical spine C3/4 disc prolapse and left C4 nerve impingement;
(b)   bilateral non-verifiable radicular complaints to both upper limbs;
(c)   right shoulder impingement syndrome (Nguyen principle), and
(d)   left shoulder impingement syndrome (Nguyen principle).
The WPI of 13% was assessed as follows;

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	*%WPI from pre- existing OR subsequent causes**	*%WPI due to motor accident**
1	Left Shoulder	AMA 4 Page 43-45	Yes	4%	-	4%
2	Right Shoulder	AMA 4 Page 43-45	Yes	4%	-	4%
3	Cervical Spine	AMA 4 Page 110	Yes	DRE II 5%	DRE I 0%	5%

Medical examination

The claimant was examined by Medical Assessor Couch. His report follows:
“Mr Kelyana attended the PIC rooms on 16 March 2023 accompanied by his wife. Full COVID-19 precautions were observed. Physical examination (excluded subsequent writing of the report) took 90 minutes. Mr Kelyana spoke good although accented English and there was no difficulty with communication.
History
The Assessor commenced by going through the history detailed by Assessor Herald in his certificate dated 11 June 2021 and expanding or correcting this as appropriate.
Pre-Accident Medical History and Relevant Personal Details
Mr Kelyana said that he came from the minority Assyrian community in Iraq and came to Australia in 1999. Of life in Australia, he commented ‘here is paradise’. He has three daughters from his current marriage to Estralita, who comes from the Philippines, aged 20, 18 and 13 years and all live at home. The eldest is working at a bank. He confirmed that in Australia he had worked with a bus driver with Hills Bus since 2001.
Dr Herald had referred to pain in the right shoulder, with an X-ray performed in 2014. Mr Kelyana stated that this was ‘just like a muscle – I had an X-ray, I used cream for two days and I was fine’. He also confirmed an episode of low back pain in late 2014. He said this was of spontaneous onset without a specific incident or injury, and he did not have a compensation claim for this.
He also mentioned a previous motor vehicle accident in June 2016. He was driving a new Nissan Outlander hybrid vehicle when the brakes apparently failed as he was approaching a roundabout. He hit the rear of another vehicle and the front bumper and lights were damaged. His vehicle was repairable. He recalled having further low back pain and having struck his legs.
As noted by Assessor Herald, he was off work for about a month. However it is the understanding of the Panel that the claimant was initially certified off work for one month but thereafter did not return to work until some time midway in December 2016 In that time he consulted Dr Bazina, neurosurgeon, who arranged a corticosteroid injection to the lumbar spine. Mr Kelyana claimed to have recovered completely from this episode.
History of the Subject Motor Accident
Mr Kelyana confirmed the history detailed on Page 3 of Assessor Herald’s certificate. His said that his bus was stationary at a red traffic light and he had his right foot on the brake pedal, waiting for the lights to change. He added that he was ‘relaxing at the traffic lights’ and had one elbow resting on the steering wheel with his chin resting on his hand. He was looking straight ahead. It is the understanding of the Panel, and as evidenced by photographs of the accident site in the various expert reports, that the intersection is not traffic light controlled. A Volkswagen car struck the right rear corner of his bus. He recalled ‘it was like a little electric shock in my back when it hit’. He confirmed that he got out of the bus to look at the damage. He took some photographs with his phone and exchanged details with the car driver.
He called his depot and recalled saying that there was something wrong with him and that he could not continue the journey (I note that Dr Herald said that he returned to the depot and wanted to go home but his employer arranged for him to see a doctor they had arranged). I asked him about his attendance with the ‘company doctor’, Dr Fong. He said that he told his employer that he preferred to attend the next day and wanted to go home and relax, but was told to attend that day, which did. He said that Dr Foong told him that he needed imaging and that he was put on light duties, for follow up with the doctor. When I asked him about his initial symptoms, he said that he ‘started to feel something in my neck and left shoulder’.
The next day he felt more tired and attended the depot. He was given some strong analgesic (Tramadol) which did not help. At some stage he changed to attending his family GP, Dr Arslen. Dr Arslen in turn referred Mr Kelyana to Dr Bazina, Neurosurgeon (whom he had seen previously for his back). He apparently failed to improve with cervical spine injections and physiotherapy and Dr Bazina proceeded to surgery in March 2019 (Mr Kelyana demonstrated how he had been holding his neck in an unusual position, flexed forward and leaning to the left, prior to surgery).
When asked about the results of this surgery, he said that this definitely helped his neck and he was able to resume a normal head and neck posture. Mr Kelyana also confirmed that he had attended Dr Jay Dave, Orthopaedic Surgeon, about his left shoulder pain. He recalled having an injection to the left shoulder at a radiology practice – he said that this was very painful but it did give some benefit. He also later had an injection to the right shoulder. I understood that he had attended Dr Bazina again and had been referred for pain management but this did not occur because of the COVID-19 pandemic. He also recalled that he had undergone nerve conduction studies on his upper limbs. Mr Kelyana said that he now wanted to attend Dr Bazina again.
Details of any Relevant Injuries or Conditions Sustained Since the Motor Accident
As recorded by Assessor Herald, Mr Kelyana described a second accident in March 2017. He was driving home from physiotherapy when his car was struck on the rear bumper by another vehicle. He described damage to the rear bumper only. He said that he had slight pain following this and reported it to his GP.
Current Symptoms
Mr Kelyana described his current symptoms in some detail as follows – his neck is the most troublesome area now:
1.   Neck
Mr Kelyana described his neck as stiff and painful, with difficulty in particular rotating to the left. He described pain in the back of the neck, more on the left side. Pain is constant but worse with using his left upper limb. He also described some intermittent pain in the left wrist and intermittent pins and needles in the left middle, ring and little fingers. He also described similar symptoms in the right upper limb, but milder than the left.
2.   Shoulders
Mr Kelyana described pain in both shoulders on lifting his arms – while doing this he demonstrated forward flexion to 90 degrees bilaterally. On the right he put his left hand over the right trapezius and the shoulder cowl in general. On the left he described pain, pointing to the lateral side of the neck and trapezius muscles, and over the shoulder cowl, point of the shoulder and left deltoid muscle. He is unable to sleep on his left side because of shoulder pain. He finds it most comfortable to sleep on two large pillows and cannot sleep flat. He can lie on his right side for a short while.
3.   Low back pain
He described his low back as ‘alright’. He thought some low back pain might be because he now has to turn his whole trunk to look round, rather than moving his head and neck.
Current activities
Mr Kelyana said that he never returned to bus driving duties. He said that he was on suitable duties intermittently. When asked about these, he said ‘I just sat at the depot or lay down in my car.’ He said that he wanted to keep his job and this situation continued for several years, but employment was eventually terminated. He had not received any workers' compensation payments since 2022.
I asked him more about the family situation and income – he said that his wife had been a registered nurse in the Philippines. She now works in a nursing home as a nursing assistant with a Certificate IV – apparently she is allowed to do extra duties such as administering medication. As noted above, he lives with his wife and three daughters in their own home – he said that they had a relatively small mortgage.
In May 2021, Assessor Herald stated that Mr Kelyana was about to commence a pain management program. Apparently this did not occur because of the COVID-19 pandemic. He described his current medication regime as follows:
·   Aropax (SSRI antidepressant) 20 mg daily;
·   Mobic (NSAID) 50 mg daily;
·   Norflex (muscle relaxant) 100 mg twice daily;
·   Panadeine Forte – one or two tablets, two to three times per day;
·   Temazepam (mild hypnotic) 10 mg at night; and
·   Tramadol (strong analgesic) 50 mg twice a day – he takes this intermittently.
Findings on clinical examination
Mr Kelyana presented as a pleasant, cooperative, middle-aged man who spoke good although accented English. He appeared to be of average intelligence and gave a clear history without obvious exaggeration or dramatization. Affect appeared to be generally within normal limits and he smiled quite a lot, but he choked up and became tearful at one stage when I asked him if he had liked his job as a bus driver. He commented that the accident and being unable to work had ‘wrecked my life.’ He made a good effort, with no obvious abnormal pain behaviours, self-limitation or inconsistency during examination. He was moderately obese at height 174 cm and weight 115 kg – on questioning he said that he had not put on weight since the accident.
Cervical Spine
There was slight forward protrusion of the head and neck (“poke neck”). There was a 40 mm long, faint, pale narrow midline surgical scar over the posterior back of the neck. There was no tenderness reported to palpation over the posterior cervical spine. The left trapezius muscle was slightly tense to palpation compared with the right, but neither were tender (when I repeated palpation of these muscles later in the examination with Mr Kelyana standing, they were both unremarkable, but cervical rotation remained more restricted to the left.)
Active range of movement (AROM) of the cervical spine was observed with repetition. Forward flexion was about two-thirds of normal, whereas extension was one-third of normal and appeared to be quite stiff. Lateral flexion was symmetrically restricted to about two-thirds of normal range. Rotation was restricted to two-thirds of normal to the right and half of normal to the left.
Thus the significant finding in the cervical spine was dysmetria. There was no muscle guarding or spasm. He was not describing non-verifiable radicular complaints in the upper limbs and as can be seen below under ‘Upper Extremities’, there were no signs of cervical radiculopathy.
Lumbar Spine
Posture of the lumbar spine with Mr Kelyana standing was normal. With him lying prone, there was no tenderness reported to palpation over the lumbosacral spine. AROM of the lumbar spine was measured with Mr Kelyana standing with knees straight and was full and symmetrical in all planes. There was no lumbar paraspinal muscle guarding or spasm. Thus there were no significant abnormal signs in relation to the lumbosacral spine. He was not describing non-verifiable radicular complaints in the lower limbs and as can be seen below under “Lower Extremities”, there was no evidence of lumbosacral radiculopathy.
Upper Extremities
Hands were very clean and soft without callouses, consistent with his reported limited recent physical activity. The right (dominant side) upper arm measured 39.5 cm in circumference, the left 38.5, the right forearm 32.5 and the left 31. Biceps, triceps and brachioradialis reflexes were normal and symmetrical. Power of all muscle groups was normal and symmetrical and light touch was preserved bilaterally.
The shoulders were normal to inspection. He did not report any tenderness to palpation over either glenohumeral joint. There was moderate consistent restriction of AROM in both shoulders, slightly worse on the left. Movements were measured with several repetitions with a goniometer, as tabulated.

Right Left

Flexion 140° 120°

Extension 40° 30°

Abduction 120° 100°

Adduction 30° 20°

External Rotation 90° 60°

Internal Rotation 70° 70°
I encouraged Mr Kelyana strongly to achieve the maximum possible range of motion, demonstrating these movements to him myself. Also when he lay prone on the examination couch for examination of the lumbar spine, I noted that he abducted the right shoulder to 120 degrees and the left to 110 degrees (i.e. similar to the recordings during formal examination). Power of all resisted shoulder movements was within normal limits bilaterally and was symmetrical. During testing he complained of some pain in the neck but none in either shoulder joint. Impingement signs were negative bilaterally.
Lower Extremities
Lower limbs were normal to examination. Ten centimetres proximal to the patella, the right thigh measured 54 cm in circumference, the left 52, the right calf measured 43 cm, the left 41.5cm (this degree of asymmetry is consistent with right side dominance). Straight-leg-raising was 60 degrees bilaterally with some tightness in the hamstrings only.
Knee jerks and ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal and symmetrical. Light touch sensation was preserved in both feet.
Functionally, he was able to walk across the carpeted floor in my office normally in bare feet. He was able to take a few steps on tiptoes and on his heels without apparent difficulty. He could perform an almost full squat to the floor and recover without using hand support.
Whole person impairment
For the reasons articulated below, the Panel does not attribute these injuries to the accident the subject of this claim. The Panel does not assess any WPI.
Further Discussion of Possible Injuries with Mr Kelyana
At the end of the examination, I discussed with Mr Kelyana the fact that the three panel noted the extent of the claimed injuries, considering the relatively minor impact on his bus described and actually seen on the CCTV footage. He said that he was also surprised, stating ‘the passengers were OK – maybe they could move and I could not.’ He again stated quite convincingly that he missed his job as a bus driver. He could not offer any further explanation for his persistent symptoms.
Conclusions Following Examination
Mr Kelyana presented in a straightforward and cooperative way. He seemed to agree that it was surprising that he would have sustained significant injuries in the crash but continued to attribute his symptoms to the accident.
Examination of the cervical spine showed dysmetria.
He had moderate restriction of AROM in both shoulders which was consistent throughout my examination. Clinically restriction was not coming from the shoulder joints or related structures and if anything, was related to his neck condition.
The lumbar spine was normal.
It appears most likely that Mr Kelyana has cervical spine symptoms related to degenerative change with associated stiffness in the shoulders.”

The Panel adopts the findings of Medical Assessor Couch.

Accident expert reports
Report of Mr Grant Johnston

The claimant relies on a report of Mr Grant Johnston dated 8 May 2020.
Mr Johnston said;
“although I would concede that the severity of this impact was below the threshold at which a normal healthy adult would expect to sustain any degree of long-term injury if the other factors surrounding injury are accepted, and the plaintiff may simply be an outlier for more dataset and/or the presence of the pre-existing the generative changes in both the lumbar spine and possibly the cervical spine may have been sufficient such that they went from being asymptomatic to symptomatic following this accident.”
Mr Johnston noted that the left side front of the insured Volkswagen sedan has collided with the rear right corner of the Scania bus. The bus was stationary in the left lane of the Pacific Highway at that time.
Mr Johnston had viewed the CCTV footage from the bus.
Mr Johnston noted that the insured car was not available for examination. He relied on photographs showing the vehicles in their alignment at the time of the collision, as did all experts.
Mr Johnson confirmed that no on sight inspection took place as the issues in contention are primarily of a biomechanical nature.
Mr Johnston noted his instructions from his instructing solicitors which referred to the insured driver striking the rear right side of the bus forcefully. The claimant’s solicitors said that as a result of this the claimant sustained significant injuries.
Mr Johnston referred to figure 5.7 of his report which was a photograph showing the alignment of the Volkswagen car and the Scania bus. A copy of this photograph follows.
[IMAGE UNABLE TO RENDER]

Figure 6.3 was a photograph of the damaged right rear and side of the bus indicating damaged fibreglass sheeting.
[IMAGE UNABLE TO RENDER]
Figure 6.5 is a photograph of the insured car showing dented body panels, scratches and/or scuff marks extending from the left end of the front bumper across the left quarter panel up to about the leading edge of the left front passenger door.
[IMAGE UNABLE TO RENDER]
Mr Johnston said that the impact between the vehicles could be classified as a sideswipe type impact that appears to have stopped approximately halfway through the potential overlap.
Mr Johnston analysed the CCTV video footage, noting that the collision occurred at approximately 8.34.13 on the video clock. His observations were that the bus stopped and started several times in the vicinity of the approximate point of impact. It stopped on the final occasion approximately two seconds before the collision and was stationary at the time of the collision.
Mr Johnston said that he did not have sufficient vision in the video footage to estimate the speed of the insured car but said that from the damage, he assumed a left turning movement and from what he could see, the speed was undoubtedly not high.
Mr Johnston observed the bus appeared to be” jarred” by the impact but it did not noticeably move forward which to him suggested no noticeable post impact velocity gain on the part of the bus other than possibly rocking on suspension with perhaps no more than a 1 to 3 kmph momentary velocity gain substantially all of which was accommodated by rocking forwards within the suspension system of the bus. He said that the occupants of the bus would have experienced a short duration jarring type force as opposed to any significant gain in velocity or a sustained duration force as a result of impact.
Mr Johnston said that the driver, on impact, responded by rapidly sitting upright and turning his head to look in the mirror towards the impact location.
He said that the driver therefore had somewhat of what might be described as a “startled” response to sensing the impact.
Mr Johnston said that on his observations, from the video footage, during and immediately following the impact phase, there were no obvious signs of pain or discomfort immediately following his response to this incident or during his exit from his seat or the bus.
Mr Johnston referred to an earlier rear end collision on 18 July 2016 involving the claimant and following which the claimant experienced lower back pain arising from that incident. However, Mr Johnston said that the claimant had fully recovered at the time of this accident. He referred to a CT scan of the lumbar spine performed following the 2016 accident which showed no disc bulges at the T12/L1, L1/2, L2/3 and L3/4 levels. There was however a broad based disc bulge at the L4/5 level but this was said not to cause significant narrowing of the spinal canal.
Mr Johnston said that the claimant had seemingly fully recovered from the 2016 collision and the degenerative changes had seemingly again been asymptomatic.
Mr Johnston referred to a report of the Dr Mastroianni which said that the claimant did not feel any immediate post-incident symptoms but shortly after the incident he began to feel tired. It was noted that the claimant returned to the bus depot although it was not clear to
Mr Johnston if he was transported or drove. He said that the claimant felt tired and wanted to go home but the company had arranged for him to see their doctor which he did.
Mr Johnston said that by the time the claimant saw the company doctor, he was experiencing pain in his neck and left shoulder. The next day, pain intensified but the company doctor was unavailable to be seen again until two days after the accident. Physiotherapy was reported to provide no relief. The claimant was referred to Dr McMaster who gave him a neck injection. This only provided mild temporary relief.
Thereafter, the claimant sought treatment from his regular GP.
The claimant was referred to a neurosurgeon who performed facet blocks and. Neural infiltration.
Mr Johnston referred to the threshold of harmlessness and provided several reference points. He said that it was probably reasonable to assume that the severity of this incident was below the statistical threshold for all of the “low speed” type research and that this was more of a jarring type incident in what was a somewhat compromised posture of the neck supported by the arm and the elbow leaning on the steering wheel. He said that the injury may have been exacerbated by the plaintiff’s sudden response feeling impact whereby he has suddenly sat up and looked towards his mirror following impact.
Mr Johnston said that the research also shows that there are some outliers with very low thresholds such that if other factors are accepted then they may simply be the outlier from the normal data set where they have sustained a more serious than expected injury based on a much lower than usual threshold.
Mr Johnston said that in this instance, the evidence suggested that the claimant was asymptomatic prior to the incident and experienced the onset of pain reasonably quickly following the incident. He said that investigations seemingly revealed both lumbar and cervical pathology which was seemingly triggered by the accident.
Mr Johnston concluded that although he would concede that the severity of the impact was below the threshold at which a normal healthy adult would expect to sustain any degree of long-term injury, if the other factors surrounding the injury are accepted then the claimant could simply be an outlier from normal data set and/or the presence of the pre-existing degenerative changes in both the lumbar spine and possibly the cervical spine may have been sufficient such that they went from being asymptomatic to symptomatic following this accident.

Report of Mr William Keramidas

The insurer relies on a report of Mr William Keramidas dated 18 August 2020.
Mr Keramidas discussed that the bus involved in the incident was a 2009 Scania 50 seat bus registered number M09 – 817, driven by the claimant. The insured car was a 2015 Volkswagen Golf sedan with Victorian registration number 1FC – 7PX.
The bus was only partially into the lane to the Pacific Highway when traffic congestion caused it to stop. The insured driver failed to see the bus stop and collided with the right rear side of the bus to front nearside of her vehicle.
Mr Keramidas had seen the report of Mr Johnston. He said that much of the analysis to be undertaken by him was covered in the Johnston report. He determined that the most efficient and effective way to deal with the technical issues as part of the analysis of the accident circumstances was to use the Johnston report as the foundation on which he could simultaneously assess the accident circumstances, as well as providing a review of the Johnston report.
Mr Keramidas noted the medical certificate attached to the accident notification form completed by Dr Tang dated 20 January 2017. The listed injuries included;
(a)   left wrist;
(b)   elbow and shoulder soft tissue injury;
(c)   whiplash associated disorder, and
(d)   mechanical low back pain.
It was noted that the claimant also recorded the following in his claim form;
(a) he was wearing his seatbelt at the time of collision, and
(b) prior to the collision he had suffered “light back pain due to working”.
Mr Keramidas referred to a statement provided by the insured driver. He quoted her as saying;
“I had anticipated the bus would keep moving forwards enough for me to pass it on its drivers rear side but as I was inching forward, looking to my right, I felt the crunch of the impact. At that point I turned from my right back to my left I saw the bus had stopped unexpectedly. The front passenger side of my Golf, namely the panel just in front of the passenger door, collided with the rear driver side of the bus and the impact wedged my car against it.
The impact was only slight because of my low-speed, which I estimate was no more than a slow walking speed. The impact made a crunching noise and I sat there for a short time in a bit of shock. The bus remained stationary and I did not attempt to reverse my vehicle away from the bus. I put my hazard lights on and then got out to approach the bus driver.
… He placed my license on the ground and then bent down to take the photo”
Mr Keramidas referred to medical records of Dr Foong. The claimant was reported as having had an accident and was hit in the back, feeling heavy in the chest. There was reference to the insured driver “trying to manoeuvre in between traffic and striking the bus at 20 to 30 km/h. Past injuries were said to be a lower back problem six months earlier – involved in an accident, pain free for injury – no pain for three months, injected in right side, different spot left lower back, never before in this spot, saw chest where seatbelt was worn”.
Mr Keramidas referred to Dr Foong making an entry that the claimant’s left arm was on the steering wheel when the collision occurred.
Mr Keramidas referred to a report of Dr Rowe when he examined the claimant on
21 June 2017. There were some details relating to the first accident on 18 June 2016. The claimant remained off work for six months returning on 20 December 2016, three weeks before the accident. There was a third accident on 28 March 2017 when the claimant was the driver of a car and the driver side rear section struck by another vehicle.
Mr Keramidas referred to a report of Dr Mastroianni who noted all three accidents. He concluded after reviewing the bus video footage that this impact caused the claimant’s disc lesion. The doctor was of the opinion that the slight jerking of the claimant’s neck with his right elbow on the steering wheel and his right hand under his chin which was slightly fixed and rotated to the right, caused the disc lesion.
Mr Keramidas referred to figures 6.2 and 6.3 in Mr Johnston’s report and said that it was apparent that the damage to the bus was on the extreme right side corner, evidenced by apparent abrasive contact to the fibreglass. He said that overall, the damage was extremely light and agreed with Mr Johnston said that it could be described as “superficial”.
Mr Keramidas said that it was apparent from the video footage that the driver’s seat was independently suspended, not rigidly fixed to the bus floor, and appeared most probably to have been fitted with gas struts providing a shock absorbing aid for the driver.
Mr Keramidas referred to the insured car as having a tare mass of 1,324kg. Mr Johnson referred to this weight as being 1,500kg. Mr Johnston calculated the bus as having a tare weight of 15,000kg but did not take into account an approximate weight of passengers.
Mr Keramidas calculated that from the time of impact to the time stopping, the insured car travelled 95cm.
Mr Keramidas relied on figures 5.7 and 5.8 in Mr Johnston’s report showing the insured car at relative angle to the bus which he said appeared to be greater than the approximate 10° depicted by Mr Johnston in his figure 1.1. Mr Keramidas said that this relative angle has some effect on the transmission of the vehicle’s momentum. However, he said that in the context of the incident circumstances, the angle was only very minor.
Viewing the video footage, Mr Keramidas said that the impact location indicated that the insured car moved forward about 6.5m, viewing the video footage, prior to coming into contact with the rear of side corner of the bus and had attained a 30° angle relative to be alignment of the bus at the point of impact. He said that given that the total distance travelled by the Golf was about 6.5m and the total time in motion was about 3.66 seconds, from viewing the video footage, the average velocity of the insured car would have been about 1.78m per second or 6.4kmph.
Mr Keramidas discussed the severity of impact. He said that there is a general caution which should be used when applying the conservation of momentum to mass ratio of 1:10 or greater due to the sensitivity of the speed of the lighter vehicle. Mr Johnston calculated a ratio of 1:10 on the basis of a bus weight of 15,000kg and a tare weight of 1,500kg. As noted, no weight of occupiers was considered. Mr Keramidas did not comment on this but had this been done in the ratio would have been considerably in excess of 1:10. Mr Keramidas said that the primary reason for the cautionary advice using the principle of conservation of momentum relates to the potential for a larger vehicle’s combined mass and speed essentially overwhelming any momentum which a lighter vehicle has and would therefore contribute to the momentum balance.
Mr Keramidas said that while he agreed with much of the discussion and conclusions reached of Mr Johnston, in his opinion there are elements of the principle of conservation of movement which can be applied in the circumstances of this accident due to the particularity of the circumstances, most prominently being that the heavier bus was stationary at the time of impact and therefore any forces implied would only have been generated by the lighter vehicle.
Mr Keramidas said that he identified through the video footage that essentially there was a 1.1 second period when the Golf moved forward about 2.3m from when it was first detected to the point of impact. This translated to a speed of about 7.5 kmph.
Mr Keramidas said that the Golf had an angle of about 30° relative to the orientation of the bus. He said that this meant that not all of the momentum of the Golf was directed toward the bus. The turning motion of the Golf complicated matters as even during the impact phase, the Golf’s angle was changing. At best, Mr Keramidas said that one can be clear that the effective impact speed of the Golf ranged between 7.5 and 10kmph.
Mr Keramidas said that this was consistent with the apparent speed of the car when viewed on the video. Mr Keramidas said that this was also consistent with Mr Johnston’s observation that it was “undoubtedly not high”.
Mr Keramidas discussed the observed occupant response to impact. This means he looked at the reactions of the passengers and claimant. Mr Keramidas referred to the observation of Mr Johnston that the claimant appeared “startled” on sensing the impact. Mr Keramidas noted that Mr Johnston observed that there were no obvious signs of pain or discomfort immediately following the claimant’s response to the impact during his exit from his seat and the bus.
Mr Keramidas said that on examination of the internal camera footage, it was apparent that the impact created a rocking motion on the bus which was evident to both the passengers in the rear half of the bus, as well as affecting the claimant. Mr Keramidas agreed with
Mr Johnston that there were no obvious signs of discomfort immediately following the accident by the claimant nor as the claimant asked his passengers to disembark following the collision. Mr Keramidas noted that subsequent to alighting from bus, the claimant in the process of exchanging details with the insured driver, apparently placed her driver’s license on the ground to take a photograph of it, and then presumably retrieved it from the ground to give it back to her. Mr Keramidas said that this action did not appear consistent with someone who was feeling the after effects of a “jarring” impact.

Mr Keramidas referred to the claimant providing a history to Dr Foong that his left arm was on the steering wheel when struck, which Mr Keramidas presumed thereby caused injury to the claimant’s left wrist, elbow and shoulder. However, Mr Keramidas said that it is clear from footage that his left hand was resting on his thigh and therefore there was no transmission of force to the left arm. Furthermore, Mr Keramidas noted that the medical records suggested a tender upper left and chest region in the seatbelt area and the assessment regarding chest pain being from direct trauma. Mr Keramidas said that once again, based on the video footage, it did not appear as though the seatbelt had sufficient load applied to it in order to “lock”. Mr Keramidas said that on this basis it was unclear how that injury would have been sustained.
Finally, Mr Keramidas said that while there was an apparent rolling motion generated on the bus by the impact from the Golf, none of the movements or actions of the claimant involved any rapid or startled behaviour.
Mr Keramidas said that the research referred to by both Mr Johnston and himself, is to the effect that where there is a low-speed crash involving a change in velocity below 8 kmph, there is a significantly reduced potential for injury.
Mr Keramidas said that in this particular instance the impact speed would almost certainly have been below 1 kmph and there was virtually no prospect for the rolling motion created on the bus to have generated an injury to any of the occupants including the claimant, had the vantage of being in a sprung seat and restrained by a seat belt.
Mr Keramidas said that ultimately, based on the research presented by Mr Johnston, there was no prospect the subject collision to have generated any lasting injuries, or indeed any injuries at all, to any of the occupants in the bus, much less the claimant. The Panel notes though, that the claimant has consistently complained of injury since a very short time following the accident.
Mr Keramidas referred to the statement of Mr Johnston when he concluded;
“I therefore concluded that although I would concede that the severity of this impact was below the threshold at which a normal healthy adult would expect to sustain any degree of long-term injury if the other factors surrounding the injury are accepted then the plaintiff may simply be an outlier from the normal data set and/or the presence of the pre-existing degenerative changes in both the lumbar spine and possibly the cervical spine may have been sufficient such that they went from being asymptomatic to symptomatic following this incident.”
Mr Keramidas said that he examined the in bus video which comprised 54 minutes of the claimant’s journey from the time he entered the bus to the time of impact. He said that in the video footage he noted that on departure from the parked position of the bus and for the next six minutes of his journey, the claimant experienced significant rocking and jolting in his driver’s seat, where he was unrestrained, and on occasions driving one-handed as he held his coffee cup in his other hand. Mr Keramidas said that there were several occasions where the claimant experienced jolting in his elbow when it was resting on the steering wheel in his right hand was supporting his chin. On those occasions jolting was more severe than at the time of impact.
Mr Keramidas reported that on his observations during the time of the video footage, along the journey there were approximately 83 occasions when the claimant was identified as being jolted and his passengers also to have been at least equal to, if not more severely, than the jolt experienced as a result of the subject collision. He observed that the most relevant jolt experienced and the closest in time was the final stop of the bus about
2 seconds prior to impact where there is clearly a more significant jolt to the claimant and his passengers as a result of braking.
Mr Keramidas said that in general, the impact pulse on the collision appeared to provide less movement to either the claimant or his passengers than at various points along the journey where the bus traversed expansion joints in the roadway, and certainly several times less severe than when the bus traversed a small speed hump at the start of the journey.
Mr Keramidas said that it was clear that on over 80 occasions prior to the subject collision, within the preceding hour of the claimant’s journey, if he was predisposed to be injured from such a light impact then those injuries occurred as a result of his normal driving actions rather than the trivial impact forces caused by the insured car.
Mr Keramidas concluded that it was apparent that the impact configuration between the Golf insured car and the bus involved a very low speed impact between the front near side of the Golf with the rear offside corner of the bus. Transmission of forces between the Golf and the bus are identifiable as involving a change in the velocity of the structure of the bus from 0.75 to 1 kmph with a likely impact speed of the Golf being 7.5 to 10 kmph.
Mr Keramidas said that it was observable in the video footage that the impact caused a “rocking” of the bus with no noticeable jarring of either the claimant or the passengers. He said that the claimant was also aided by means of a suspended seat and was wearing his seatbelt at the time.
Mr Keramidas said that research has identified that impact with speeds below 8 kmph provided a low probability of any permanent injury, with most injuries even at that level resolving in a matter of days or possibly weeks. Mr Keramidas said that researchers in general eliminated from their data sets, impacts involving a Delta-V (change of velocity) of less than 1.5 kmph as they did not provide a sufficient impact pulse to generate injuries.
Mr Keramidas said that in this particular case, the change in velocity experienced by the bus was below even the minimum threshold for research into the injuries. The expert says that passengers in the rear of the bus would have felt a more significant impact.
Mr Keramidas concluded by saying that the final braking action of the bus, when it came to a complete stop approximately 2 seconds before the subject impact, was at least two to three times more severe than the impact force of the Golf.
Mr Keramidas said that having reviewed the report of Mr Johnston, the only point of disagreement was his assertion that the injury could have occurred as a result of the claimant’s startled response or that he was merely a statistical outlier within the research.
Mr Keramidas noted that Mr Johnston did appropriately concede that the dynamic forces operating on the bus, even at the slightly higher levels asserted by Mr Johnston, were well below the injury threshold attributed to “harmless” impacts.

Report of Dr Short dated 10 September 2020

The insurer relies on a report of Dr Andrew Short dated 10 September 2020. Dr Short was retained to provide a report about whether the dynamic forces of the incident could have been of sufficient severity for the claimant to have sustained any injuries.
Amongst reports available to him, Dr Short had a copy of the report of Mr Johnston but not a copy of a report of Mr Keramidas
Dr Short said that the issue to be addressed is the severity of the impact including the speed of the insured car and whether any injury could have been sustained. The claimant alleged the insured was travelling at 20 to 30kmph. The insured says she was merely edging forward taking her foot off the brake, not accelerating and was not going more than walking pace perhaps 2kmph.
There is a photograph on page 10 of the damaged insured car. This is attached;
[IMAGE UNABLE TO RENDER]
The expert estimates the length of the scrape is 0.7m as it is approximately the diameter of the tyre. This would appear to be incorrect as the scrape extends considerably to the bumper bar on the left and the front passenger door. The distance on the observation of the Panel is about double the size of the diameter of the tyre.
A photograph of the rear of the bus at page 46 of the report shows considerable exterior damage to that part of the bus which impacted with the car. This is attached.
[IMAGE UNABLE TO RENDER]
Dr Short estimates the speed of impact from the CCTV at 8.6 kmph. Dr Short says the bus was stopped at the time of impact and the brakes were on.
Dr Short says that a 1.399 metric tonne car directly impacting a 14.5 tonne stationary bus +19 passengers and one driver – 75kg by 21,500kg – at a speed of 8.6kmph would result at the absolute most in the change in velocity of the bus of 0.6 kmph during the impact and this change of speed is not sufficient on its own to pose a significant risk of injury to any party on the bus.
Dr Short says that it is more likely that the claimant sustained his lower back and neck injuries from the bus braking, the bus driving over rough patches on the road or as a result of driving buses long term. The Panel comments that this appears speculative and not an expert opinion.
Dr Short says that in his opinion some portion of the blame should be attributed to the claimant’s previous or other accidents as but for the damage caused by previous collisions, his spine would not have been in such a state. The Panel comments that it is difficult to understand how he was qualified to make this statement which is a medical rather than a biomechanical opinion.

Causation

The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides).
The approach in cl 6.6 of the Guidelines requires a medical and a non-medical assessment. Concerning that issue, the Panel must determine causation by the application of legal notion of causation.
The non-medical approach requires an approach in accordance with Varga v Galea [2011] NSWCA 76 at (9) that the accident was a necessary condition of the harm - see also Warth v Lafsky [2014] NSWCA 94.

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a Review Panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
The Guidelines in cls 6.6 and 6.7 are an incomplete statement of some of the legal principles needing to be applied in respect of causation. The legal principles in respect of causation must be applied, including section 5D of the Civil Liability Act 2002 (CLA). This requires a detailed analysis of the dynamics of the accident in light of CCTV evidence and opinions of three experts having considerable experience in the dynamics of an accident and its cause in relation to injuries suffered by the claimant during the course of a bus trip which was interrupted by a rear end collision with a car.
At common law, causation is a question of fact, to be approached in a common sense manner, in which the "but for" test plays an important role: March v E & HM Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (at 5l5 - 546) per Mason CJ (Toohey and Gaudron JJ agreeing).
Section 5E of the CLA provides that in determining liability for negligence, the defendant always bears the onus of proving, on the balance of probabilities, any fact relevant to causation.
Campbell J in Owen v Motor Accidents Authority (NSW),[4] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the CLA."[5]
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
The two-step process in section 5D of the CLA takes into account the previous position at common law. In Wallace v Kam [2013] HCA 19 it was held that a determination about causation involves two questions. The first question is a question of historical fact as to how a particular harm occurred and the second question is a normative question about whether legal responsibility for that particular harm occurring in that way should be to be attributed to a particular person. The Court held that the determination under section5D(1)(a) involved nothing more or less than the application of a “but for” test. The Court noted at (16);
“that is to say, a determination in accordance with section 5D(1)(a) that negligence was a necessary condition of the occurrence of the harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absence the negligence”.
Following Justice Campbell and his comments in Owen, s 5D of the CLA must be considered when assessing causation.
Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[6] and
"scope of liability".[7]
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Making these assessments of "factual causation" and "scope of liability" involves making value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”^{^[8]}
In Briggs v IAG Limited t/as NRMA Insurance[9] Harrison AsJ considered an application for judicial review of medical certificate issued by a Review Panel involving the application of section 1.6 of the Act. Section 1.6 of the Act refers to the definition of causation in the Glossary at page 314 of the AMA4 Guides. This is in relation to the assessment of permanent impairment as in the same terms as cl 6.6 and 6.7.
[9] [2020] NSWSC 1318.
The Review Panel in Briggs was constituted by three Medical Assessors before the changes brought in by the Personal Injury Commission Act 2020 where a legal Member now constitutes one of the Panel.
Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error: see Wingfoot Australia Partners Pty Ltd v Kocak” [2013] HCA 43.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues to be determined involved applying the definition of “minor injury” (now referred to as threshold injury”) and involved a question of causation in respect of an amputated toe. As in Briggs, it was found the Review Panel had denied the plaintiff procedural fairness relying on articles not provided to the parties to enable them to make submissions in relation to the same. That issue is not on the point here, however. Kinchela has other significance.
The discussion in Kinchela concerning the correct principles to apply relating to causation are instructive and are set out below:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (“Bugat”); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (“McGiffen”). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”

In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) “[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period”, and Mr Briggs only had post-accident MRI results;
(2) “a delamination may not fall within the definition of a tear”; and
(3) “the defect may not be the source of his pain and disability”.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
“138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’”
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
“the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.”
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgment” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Personal Injury Commission, and whether it arises because of contribution by the accident. Following on from this, the Panel must decide whether the accident materially contributed to those injuries.
The next question is whether legal responsibility for that particular harm occurring in that way should be attributed to the insured driver. There was no issue about the liability of the insured driver causing the accident but whether the injury suffered by the claimant following a small impact at the rear of the bus is arguable.
The Panel must consider whether on the balance of probabilities the accident caused the injury to the claimant’s cervical spine and shoulders. To do this, consideration must be given to cls 6.6 and 6.7 of the AMA4 Guides.
Regarding cl 6.6, it could be argued that the physical impact of the accident contributed to the occurrence of the claimant’s medical condition of cervical spine disc prolapse and shoulder impingement. The Panel must take into account though, that this was a minor impact. The precise point of the impact is shown on CCTV. The claimant submits that this alleged factor could have caused or contributed to worsening of the impairment. However, whether the factor of the accident did cause or contribute to worsening impairment is a non-medical determination because of the difficulty in determining whether a relatively low speed impact could have been the cause of the claimant’s disabilities at that moment in time when arguably, there were many other instances in the trip that day, that could have had the same outcome. There is no consistent statement about this and the evidence submitted by the claimant is inconsistent.
The Panel must also consider would this injury have occurred if not for the accident? The answer is, unhelpfully, possibly, and possibly not.
Both Mr Keramidas and Mr Johnson agree that the damage to the bus was superficial. The claimant’s seat was independently suspended and not rigidly fixed to the floor. Mr Keramidas observed from the CCTV that the impact was sufficiently minor so as to not lock the claimant’s seatbelt on impact.
Mr Keramidas agreed with Mr Johnston that there were no obvious signs of discomfort by the claimant immediately following the accident nor as the claimant asked his passengers to disembark following the collision. Mr Keramidas noted that subsequent to alighting from bus, the claimant, in the process of exchanging details with the insured driver, apparently placed her driver license on the ground to take a photograph of it, and then presumably retrieved it from the ground to give it back to her. Mr Keramidas said that this action did not appear consistent with someone who was feeling the after effects of a “jarring” impact.
The claimant did however, once he drove the bus back to the depot and completed its journey, make an immediate complaint of injuries suffered by him in the accident.
Critically, what the Panel must consider is what actually was the injury to the claimant and when did it occur?
In this regard, the Panel refers to the observations of Mr Keramidas who examined the in bus video comprising 54 minutes of the claimant’s journey from the time he entered the bus to the time of impact. As previously noted within these reasons, Mr Keramidas observed that from departure from the parked position of the bus and for the first six minutes of his journey, the claimant experienced significant rocking and jolting in his seat, where he was restrained, and on occasions driving one-handed as he held his coffee cup in his other hand.
Mr Keramidas said that there were several occasions where the claimant was seen to experience jolting in his elbow which was resting on the steering wheel in his right hand was supporting his chin. On those occasions jolting was more severe than at the time of impact.
Thereafter, Mr Keramidas also reported that on his observations during the time of the video footage, along the journey there were approximately 83 occasions when the claimant was identified as being jolted, and his passengers also, to an extent of at least equal to, if not more severely, than the jolt experienced as a result of the subject collision.
Mr Keramidas observed that the most relevant jolt experienced and the closest in time was the final stop of the bus about two seconds prior to impact where, on his observation, there was clearly a more significant jolt to the claimant and his passengers as a result of braking. This was entirely independent of the subject collision at the rear of the bus.
Mr Keramidas said that in general, the impact pulse on the collision appeared to provide less movement to either the claimant or his passengers than at various other points along the journey where the bus traversed expansion joints in the roadway, and certainly several times less severe than when the bus traversed a small speed hump at the start of the journey.
All of these observations concur with the general observations of the Panel about the CCTV footage.
Mr Keramidas said that it was clear that on over 80 occasions prior to the subject collision, within the preceding hour of the claimant’s journey, if the claimant was predisposed to injury from such a light impact then those injuries occurred as a result of his normal driving actions rather than the trivial impact forces caused by the insured car.
Applying the test of whether on the balance of probabilities the collision the subject of this claim caused the claimants injuries, the Panel cannot be satisfied that this is correct, with any certainty.
Mr Keramidas concluded that it was apparent that the impact configuration between the Golf insured car and the bus involved a very low speed impact between the front near side of the Golf with the rear offside corner of the bus. Transmission of forces between the Golf and the bus are identifiable as involving a change in the velocity of the structure of the bus from 0.75 to 1 kmph with a likely impact speed of the Golf being 7.5 to 10 kmph.
Mr Keramidas said that it was observable in the video footage that the impact caused a “rocking” of the bus with no noticeable jarring of either the claimant or the passengers. He said that the claimant was also aided by means of a suspended seat and was wearing his seatbelt at the time.
The conclusions of both Mr Keramidas and Mr Johnston are similar. Mr Johnston however, whilst providing a report for the claimant, conceded that the severity of this impact was significantly below the threshold of harmlessness at which a normal healthy adult would expect to sustain any degree of long-term injury without other mitigating circumstances such as a predisposition due to degenerative changes or other significant postural issues. There is no evidence before the Panel of any other mitigating circumstances.
Mr Johnston did not consider, as did Mr Keramidas, that despite the impact being below the threshold of harmlessness, the claimant might have suffered his injuries at other points during the duration of the journey.
At its highest, Mr Johnston concluded that although he would concede that the severity of the impact was below the threshold at which a normal healthy adult would expect to sustain any degree of long-term injury, if the other factors surrounding the injury are accepted then the plaintiff may simply be an outlier from normal data set and/or the presence of the pre-existing degenerative changes in both the lumbar spine and possibly the cervical spine may have been sufficient such that they went from being asymptomatic to symptomatic following this accident. This conclusion still leaves open the proposition that any injury the claimant may have suffered could have occurred on a vast number of other occasions, in excess of 80 events, during the course of the claimant’s trip, before impact occurred on the day of the accident with the claimant’s car.
In a bus trip commencing at approximately 7.40am to the time of collision at approximately 8.34am, Mr Keramidas has noted 83 other “bump incidents” in addition to the subject collision. The claimant showed no adverse signs immediately after the collision and upon alighting the bus.
The claimant then returned to the depot. There he made a complaint of physical disability and attributed it to the accident.
In a journey where 80 plus other bump incidents were observed, the claimant says the subject collision caused his disabilities. However, both Mr Johnston and Mr Keramidas agree that the collision is unlikely to have caused injuries to the claimant. Mr Johnston though, without any supporting technical or medical evidence, can only say that at best, the claimant must have been an outlier, and therefore peculiarly susceptible to an injury of this nature. The Panel cannot accept this conclusion on the balance of probabilities.

Conclusion on causation

On the evidence of all three biomechanical experts, the insured car at the time of the accident was not travelling at a speed of between 20-30kmph. Rather, that speed was much less than 10kmph and the change in velocity of the stationary bus was 0.6kmph at the time of impact.
Both Mr Johnston and Mr Keramidas agree that the dynamic forces operating on the bus, even at the slightly higher levels calculated by Mr Johnston, were well below the injury threshold tutored to “harmless” impacts.
Mr Johnston conceded that the severity of the impact was below the threshold at which a normal healthy adult would expect to sustain any degree of long-term injury if the other factors surrounding the injury were accepted. Mr Johnston can only conclude that the claimant may simply be an outlier from the normal dataset. He did raise the question of whether the presence of pre-existing degenerative changes in both the lumbar spine and possibly the cervical spine may be sufficient that they went from being asymptomatic to symptomatic following the incident. However, the claimant showed no acute signs of injury immediately after the accident in the CCTV evidence, but he did make a complaint of injury once he returned to the bus depot.
Mr Johnston said that he would therefore see that the severity of this impact was significantly below the threshold of harmlessness at which a normal healthy adult would expect to sustain any degree of long-term injury without other mitigating circumstances such as a predisposition due to degenerative changes other significant postural issues. Mr Johnston did not mention the possibility of any of the other 80 plus incidents causing injury during the particular bus trip.
The claimant had been off work for six months to a time three weeks before the accident due to a pre-existing disability. The Panel concludes though that the nature of the impact the subject of this claim was so small that it would not have aggravated or made worse this pre-existing condition that created a new condition.
Mr Keramidas said that the impact pulse of the collision provided less movement to either the claimant or his passengers than at various other points along the journey, as observed in the CCTV footage. Reiterating this point, the bus was observed to travel over expansion joints in the roadway and speed humps. Mr Keramidas commented on 80 observable occasions prior to the collision, from the video footage, where he said that if the claimant was predisposed to be injured at all, then injuries could have occurred as a result of his normal driving actions rather than the trivial impact forces caused by the insured car.
The Panel accepts the opinion of Mr Keramidas. The Panel agrees that there is little difference of opinion between Mr Johnston and Mr Keramidas, as well as Dr Short. All
Mr Johnston can suggest by way of differentiation, is that the claimant must be an outlier, acknowledging that normally, injury would not usually arise from such a “harmless” impact.
Dr Mastroianni said that the collision caused a slight jerking of the claimant’s neck and that this caused a disc lesion. The Panel does not accept this. If the claimant suffered a disc lesion then pain would have been noticeable immediately and most likely making it difficult for the claimant to stand up and exit the bus and to later take a photograph of the insured driver’s licence, placed on the ground, and to then pick this up.
The claimant reported to Dr Foong that his left arm was on the steering wheel when the collision occurred however video footage shows that his left arm was resting on his thigh. His right elbow was resting on the steering wheel and his right hand was under his chin. There would have been no transmission of force to the left arm. In this regard, Mr Keramidas commented that the collision was of such a low impact that it did not appear as though the seatbelt had sufficient load applied to it in order to “lock”.
The Panel does not find that the low impact was such that it caused more than negligible impact on the claimant’s cervical and lumbar spine. The Panel finds that the impact was minimal and could not have transferred sufficient momentum to have caused injury to the claimant.
Considering the question of historical fact as to how the particular harm occurred, the claimant submits that the occurrence was the subject accident on 10 January 2017 when the insured car impacted at low speed with the rear of the stationary bus being driven by the claimant and containing a load of passengers.

The next question is whether legal responsibility for that particular harm occurring in that way should be attributed to the insured driver. There was no issue about the liability of the insured driver causing the accident but whether the injury suffered by the claimant and harm include a disc lesion of the cervical spine and impingement to both shoulders is arguable.
The Panel must consider whether on the balance of probabilities the accident in 2017 caused immediate harm to the claimant. To do this, consideration must be given to cls 6.6 and 6.7 of the AMA4 Guides.
Regarding cl 6.6, it could be argued that the physical impact of the accident contributed to the occurrence of the claimant’s medical condition. However, whether the factor of the accident did cause or contribute to the impairment is a non-medical determination because of the difficulty in determining when the disability first developed. There is no consistent statement about this on the expert evidence submitted by the parties and such evidence is inconsistent.
Concerning cl 6.7, the Panel must consider whether, but for the accident, the injury would have occurred. Relying on the expert opinion of Mr Keramidas, during the course of the bus trip until the time of the accident, a period of approximately 54 minutes, there could have been over 80 other occasions when the injury could have occurred.
The question of whether harm or injury would have occurred but for the accident cannot be definitively answered because of so many other incidents which could have precipitated injury. That being the case, the Panel cannot conclude on the balance of probabilities that the impact at the rear of the bus with the insured car caused the claimant’s injuries.
The Panel cannot attribute any injury to the claimant arising out of the impact of the bus with the insured car at that moment in time. The impact was slight and the nature of the claimant’s complaints out of proportion to this.

Conclusion

The Panel concludes that, on the balance of probabilities, the minor accident on
10 January 2017 did not cause significant new injury to the claimant or materially exacerbate his pre-existing conditions to the extent claimed. This conclusion is drawn from a holistic assessment of the medical evidence, expert biomechanical analyses, and the legal framework guiding causation in such cases.

Determination

The Panel revokes the certificate of Medical Assessor Herald dated 11 June 2021.
The Panel finds that the accident on 10 January 2017 did not cause injury to the claimant’s;
(a)     cervical spine C3/C4 disc prolapse and Left C4 nerve impingement;
(b)     right Shoulder impingement (Nguyen principle);
(c)     left shoulder impingement (Nguyen principle), and
(d)     lumbar spine- aggravation of underlying disc prolapse.

Clause 6.6 provides:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

Right	Left
Flexion	140°	120°
Extension	40°	30°
Abduction	120°	100°
Adduction	30°	20°
External Rotation	90°	60°
Internal Rotation	70°	70°

[2024] NSWPICMP 148

12 March 2024