Trimble v Transport Accident Commission

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-02411

DANIELLE TRIMBLE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 November 2023
DATE OF JUDGMENT:	27 November 2023
CASE MAY BE CITED AS:	Trimble v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2023] VCC 2136

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT – LIMITATION OF ACTIONS
Catchwords: Serious injury application – injury to the spine – causation – application to bring claim for common law damages out of time

Legislation Cited: Transport Accident Act 1986; Limitation of Actions Act 1958 (Vic)

Cases Cited: Popal v Transport Accident Commission [2023] VSCA 222

Judgment: Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V A Morfuni KC with Ms A C Ryan	Maurice Blackburn Lawyers
For the Defendant	Mr J Ruskin KC with Ms A L Wood	Solicitor to the Transport Accident Commission

HIS HONOUR:

Prelude
1Assessing an accident from more than twenty-two years ago and making reliable conclusions about its contribution to an injury is a formidable challenge.

Introduction
2The plaintiff, Danielle Trimble, was involved in a transport accident on 26 February 2000. At the time, she was seventeen years of age and a learner driver under instruction from her mother, when another car attempted to overtake her car as she was turning right, causing a collision between the two cars (“the accident”).
3It is accepted that the accident occurred and that the other driver was at fault.
4It is also accepted that the accident caused the plaintiff to suffer a fractured right clavicle, a concussion injury, and a soft-tissue injury to the neck.
5In that context, this is, firstly, a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The plaintiff claimed that, because of the accident, she suffered a “serious” physical injury to the spine – specifically the neck – said to produce a “very considerable” consequence (“the serious injury application”).
6The defendant denied that the plaintiff had suffered a serious injury, not because she did not have a “very considerable” consequence, but, rather, because of an issue to do with medical causation and whether the symptoms that the plaintiff now suffers are due to a compensable injury from the accident or are due to an unrelated degenerative neck condition (“the causation issue”).
7Secondly, if the Court concluded that the plaintiff had suffered a “serious injury” in the accident, there remained a related issue. The serious injury proceeding was commenced by originating motion dated 22 June 2022, well after the expiry of the relevant period of limitation. Subsequently, the plaintiff, by summons dated 12 August 2022, made an application for an extension of the relevant period of limitation so that she may bring a common law proceeding (“the limitation application”).
8Broadly, the relevant legal principles, both in respect to the serious injury application and the limitation application, are not in dispute. The parties tendered a Joint Court Book, which contained affidavits, medical reports and other documents relied on. The Joint Court Book also contained the parties’ written submissions in respect to the limitation application, but, for completeness, those submissions were taken as separate exhibits. The plaintiff gave oral evidence.
9I have considered all of the tendered evidence, together with the transcript of the plaintiff’s oral evidence and the parties’ submissions. I shall refer to the evidence, the transcript, and the submissions, to the extent necessary in these reasons.
10Finally, by way of preliminary matters, I consider that the plaintiff was a credible, likeable, and impressive witness. This is not a proceeding in which the plaintiff’s credit is in dispute.

A timeline of relevant dates and events
11The following dates and events are not in dispute.
12The plaintiff was born in 1982 and is currently forty-one years of age.
13The plaintiff completed Year 12 in 1999 and then commenced, but did not complete, an Advanced Diploma of Business/Legal Practice.[1]
[1]Transcript (“T”) 19, Lines (“L”) 27-28 (15 November 2023).
14The accident occurred on 26 February 2000, when the plaintiff was seventeen years of age.
15Following the accident, the plaintiff was taken to The Royal Melbourne Hospital and underwent radiology of her spine.[2] A fracture of the right clavicle and a soft-tissue injury of the neck was diagnosed.
[2]Joint Court Book (“JCB”) 160.
16A claim for compensation under the Act was completed on behalf of the plaintiff on 10 March 2000.[3] That claim was accepted, and the plaintiff received payments under the Act for medical expenses.
[3]JCB 144.
17The plaintiff reached eighteen years of age on 2 April 2000 and the six-year limitation period commenced.
18On 6 August 2001, Slater and Gordon Lawyers (“Slater and Gordon”) wrote to the defendant in this proceeding, the Transport Accident Commission (“TAC”) and advised that they acted on behalf of the plaintiff.
19By letter dated 12 November 2002, the TAC advised Slater and Gordon that it was not satisfied that the plaintiff had suffered a serious injury pursuant to s93 of the Act.[4]
[4]JCB 84.
20By letter dated 12 November 2002, the TAC wrote to the plaintiff and advised her that it had concluded that her injury does not fall within the required definition of “serious injury” and that it was unable to provide a serious injury certificate.[5]
[5]JCB 85.
21By letter dated 14 December 2006, Slater and Gordon wrote to the TAC and advised that they no longer acted on behalf of the plaintiff.[6]
[6]JCB 86.
22By letter dated 23 June 2022, Maurice Blackburn Lawyers wrote to the TAC and advised that they acted on behalf of the plaintiff and had been instructed to investigate her entitlements to bring a claim for damages.[7]
[7]JCB 87.
23On 22 June 2022, an originating motion was issued on behalf of the plaintiff, seeking leave of the Court to commence a common law proceeding and seeking an extension of time, pursuant to s23A of the Limitation of Actions Act 1958 (“LAA”).
24On 12 August 2022, the plaintiff issued the summons seeking an order to extend the period of limitation.

The serious injury application
25It is both convenient and necessary to first consider whether the plaintiff has established that she has suffered a “serious injury” because of the accident. If she has not, then the parties agree that it is unnecessary to consider the limitation application.[8]
[8]        T2, L6-10 (15 November 2023).
26Specifically, the plaintiff claimed to have suffered a serious long-term impairment or long-term loss of body function within the meaning of s93(4) of the Act, namely, by way of a serious injury to the cervical spine.
27As alluded to in the prelude, the central issue for the purpose of the serious injury application was whether the plaintiff’s current symptoms and impairment consequences are causally related to the accident. At the risk of oversimplification, if the plaintiff’s symptoms are causally related, then the defendant accepted that the Court may conclude that the plaintiff had suffered a “serious injury”.[9]
[9]        T13, L20-27 (16 November 2023).
28On the other hand, if the plaintiff’s symptoms and impairment consequences are not causally related, then the defendant submitted that the serious injury application would fail. In response to that submission, the plaintiff accepted that it would be a much harder case to establish serious injury if the injury was confined to a soft tissue injury to the neck.[10]
[10]        T30, L28-32 (16 November 2023).
The plaintiff’s evidence
29The plaintiff swore an affidavit on 6 October 2022 for the purpose of the serious injury application. In that affidavit, she set out the circumstances of the accident, her early care at The Royal Melbourne Hospital and then at the Gisborne Medical Clinic. She set out how she commenced having physiotherapy at the Sunbury Physiotherapy Clinic, as well as a referral to Mr Craig Mills, an orthopaedic surgeon, and other health practitioners. The affidavit set out various intermittent conservative treatments from about late 2002 or early 2003, before things worsened at the beginning of 2022.
30In the context of the worsening of symptoms in 2022, the plaintiff set out her treatment around that time and how she came to be referred to the neurosurgeon, Dr Ales Aliashkevich. She said:
“On 16 August 2022, I saw Dr Aliashkevich. I had worsening pain in my neck and right arm with numbness. I had developed tingling down the left arm with pins and needles. Dr Aliashkevich recommended neurophysiological testing, and EMG nerve conduction tests given my progressive right C6 radicular symptoms and possible peripheral neuropathy. Dr Aliashkevich referred me to Dr Debo Gorai. We discussed treatment options such as medications, exercises, interventional pain procedures, steroid injections and spinal surgery such as C5/6 disc replacement.”[11]
[11]JCB 10 at paragraph [55].
31The plaintiff then went on to set out the various consequences from the claimed physical injury to her cervical spine.
32The plaintiff swore a second affidavit on 6 October 2022 in support of the limitation application.[12] That affidavit repeated some of the evidence in the other affidavit sworn that day, relevant for the serious injury application. It also went further and provided evidence relevant to the limitation application.
[12]JCB 25.
33The plaintiff then swore what was headed as “Further Affidavit of the Plaintiff” on 30 June 2023.[13] That affidavit set out her continuing treatment and pain and suffering consequences.
[13]JCB 42.
34The plaintiff also relied on an affidavit from her father, Peter Trimble, sworn 23 February 2023.[14] That affidavit was mostly directed towards the limitation application.
[14]JCB 46.
35Next, the plaintiff relied on an affidavit from her husband, Travis Wadden, sworn 14 August 2023.[15] That affidavit set out his observations of the symptoms and impairment consequences that the plaintiff suffers.
[15]JCB 50.
The plaintiff’s oral evidence
36There is no need to say much about the plaintiff’s oral evidence at this stage, as it was mostly directed towards the limitation application. However, broadly, the plaintiff described how she had a neck problem since the accident. She described the circumstances in which she was referred to Dr Aliashkevich. She described how her problem had been ongoing with flare-ups and she had suffered pins and needles for quite some time.[16] She confirmed that she continued to work full time as a legal assistant, was able to drive a car and do some gardening and cooking, as well as shopping, but required assistance from her husband with the heavier housework.[17]
[16]T49, L30-31; T50, L1-5 (15 November 2023).
[17]T50, L11-29 (15 November 2023).
37In re-examination, the plaintiff described how she continued to experience pins and needles. She said, in the last couple of years, they had been consistent, and there every night and throughout the day. She confirmed she was talking about the right arm.[18]
The medical evidence
[18]T54, L3-15 (15 November 2023).
Radiology
38Because of the way in which the parties developed their submissions regarding the causation issue, it is convenient to commence a discussion of the medical evidence with a brief outline of relevant radiology.
39The plaintiff underwent radiology of the cervical spine at The Royal Melbourne Hospital on 26 February 2000. The parties agreed that was probably an x-ray. It is reported as:
“Alignment is normal. No abnormality is seen. No fracture is detected.”[19]
[19]JCB 160.
40Also on 26 February 2000, the plaintiff underwent an x-ray of the right shoulder that described a recent fracture of the right clavicle.[20]
[20]JCB 162.
41On 10 January 2001, Mr Mills, orthopaedic surgeon, arranged for the plaintiff to undergo a CT scan of the cervical spine. It was noted that axial images had been obtained between the base of the skull and C5. The conclusion was “[n]o definitive abnormality detected”.[21]
[21]JCB 164.
42On 12 October 2018, the plaintiff underwent an x-ray of the cervical spine. It was reported that cervical vertebral alignment appeared satisfactory and no fracture or focal bone lesion had been identified.[22]
[22]JCB 166.
43On 26 October 2018, the plaintiff underwent an MRI scan of the cervical spine. The report of that MRI scan set out the radiologist’s findings and then, under “Impression” recorded:
“There is mild cervical spondylosis with disc disease, as described above. No obvious neural impingement is however identified. No cause for left hand pins and needles symptoms identified.”[23]
[23]JCB 170.
44Next, on 11 May 2022, the plaintiff underwent a CT scan of her cervical spine. That was on a history of right-arm radiculopathy. The report of that CT scan provides the radiologist’s conclusion as:
“Cervical spondylosis prominent at C5-6 level. Bilateral severe foraminal narrowing at C5-6 level and impingement of exiting bilateral C6 nerves more so on the right.”[24]
[24]JCB 174.
45Next, on 20 June 2022, Dr Aliashkevich arranged for the plaintiff to undergo an MRI scan of her cervical spine. Again, the radiologist’s report sets out the findings and the radiologist’s conclusions. The conclusion is expressed as:
“Bilateral C5-6 focal disc protrusions with right sided impingement on right C6 nerve root and left sided mild impingement on anterior cord.”[25]
[25]JCB 176.
46Also on 20 June 2022, Dr Aliashkevich arranged for an x-ray of the cervical spine on a clinical indication of right C6 radiculopathy. The radiologist reported:
“…Moderate C5/6 degenerative disc space reduction is present with anterior and some minor posterior osteophyte formation.”[26]
[26]JCB 177.
47That is a summary of the relevant radiology. The defendant relied on it to show that the early radiology was normal or unremarkable. It submitted that the radiology in 2022 that demonstrated a problem at the C6 level did not, in the context of the whole of the medical evidence, support a conclusion that the changes at that level were related to trauma from the accident. On the other hand, the plaintiff submitted that a consideration of the whole of the medical evidence, supported a conclusion that the C6 radiological changes (and the radiculopathy) were related to trauma from the accident.
Medical reports
48Next is a summary of the relevant medical reports. Several of those reports provided an analysis of the radiology, whereas others were more relevant for a consideration of symptoms and consequences after the accident.
Melbourne Health
49In a report dated 29 September 2022,[27] Dr Denise Van Vugt, medico-legal officer at Melbourne Health, set out the plaintiff’s presentation to The Royal Melbourne Hospital on 26 February 2000. It was said that the plaintiff’s injuries at that presentation were limited to a fracture of the right-sided clavicle (collarbone).[28]
[27]JCB 181.
[28]JCB 182.
Gisborne Medical Clinic
50By report dated 6 February 2002, Dr David Conron provided a summary of the plaintiff’s treatment at the Gisborne Medical Clinic after the accident. He noted the plaintiff was first seen on 28 February 2000 with a fractured right clavicle and concussion. He noted that, on 3 March 2000, the plaintiff’s clavicle was painful and her neck was giving her minimal discomfort. Other attendances are noted, including on 12 May 2000, when the plaintiff had neck pain when bending over and a referral to Mr Mills was organised. That was the last attendance at that clinic.[29]
[29]JCB 183.
Mr Craig Mills
51The plaintiff attended Mr Mills on 24 May 2000. He obtained a history of the accident and neck and head pain since, and shoulder pain, which had been proved of late.[30] Mr Mills recommended further investigations and ongoing physiotherapy. He then reviewed the plaintiff on 10 January 2001 and a further appointment was scheduled for 7 February 2001, which she did not attend.[31]
[30]JCB 241.
[31]JCB 242.
52Mr Mills noted that, in January 2001, the plaintiff had been having physiotherapy. He said he felt the plaintiff had sustained a ligamentous injury to the upper cervical spine without evidence of neurological involvement. He diagnosed a fractured clavicle and soft-tissue injuries of the cervical spine.[32]
[32]JCB 243.
Mr Guy Zito
53The plaintiff had treatment with Mr Guy Zito at Carlton Physiotherapy Centre. The evidence from Mr Zito is contained in correspondence dated 12 August, 16 August and 19 October 2000.[33] It was of little assistance other than it sets out his treatment recommendations.
[33]JCB 297-301.
Mr Herbert Trabanino
54The plaintiff also attended for physiotherapy at the Sunbury Physiotherapy Clinic. A letter written on behalf of that clinic by Mr Herbert Trabanino to the TAC dated 15 March 2002 set out treatment from the accident. Mr Trabanino then said that the plaintiff’s whiplash injuries would constitute a more severe and debilitating injury in terms of the long-term function on recovery. He said there was a high probability that the injury sustained may lead to permanent impairment.[34]
[34]JCB 303.
55In a further letter dated 29 November 2002 to the TAC, Mr Trabanino described the plaintiff as continuing to experience intermittent acute flare-ups of bilateral neck and upper thoracic pain with occipital headaches. He made a request for a further 10 physiotherapy treatments.[35]
[35]JCB 304.
Mr Marc Di Paolo
56Mr Marc Di Paolo is a sports physiotherapist at Sunbury Physiotherapy. He provided a report dated 3 August 2022,[36] setting out the plaintiff’s treatment at that clinic and how the plaintiff had been managed by Mr Trabanino until he was discharged on 23 July 2003.[37] Mr Di Paolo then described how the plaintiff returned for a short course of treatment for her neck and headaches on 5 April 2004 until discharge in October 2004. He then set out further attendances in July to August 2005 and again in 2009 and 2010. He described how the plaintiff last presented to the practice on 28 April 2014 for treatment of an episode of acute cervical pain.[38]
[36]JCB 305.
[37]Ibid.
[38]JCB 306.
57Regarding diagnosis, Mr Di Paolo said the plaintiff had suffered a whiplash injury to the cervical spine which had resulted in persistent, long-term, cervical pain and headache.[39]
[39]Ibid.
Dr Bin Fu Zhang
58Dr Bin Fu Zhang is a Chinese medicine practitioner in Sunbury. He provided a report dated 23 January 2023, describing acupuncture treatments provided on 11 occasions between 2 May 2016 and 21 April 2021.[40]
[40]JCB 308-309.
Dr Scott Lowerson
59Dr Scott Lowerson is an osteopath who has treated the plaintiff. He provided a letter dated 25 August 2022 confirming that he had treated the plaintiff for neck and upper thoracic pain. He described cervical spondylosis prominent at C5-6 level and bilateral severe foraminal narrowing at C5-6 level and impingement of exiting bilateral C6 nerves, more so on the right. He said “I think the injuries are directly related to a previous MVA as they are too severe.” He said the prognosis was difficult to estimate and he was waiting for an opinion from Dr Aliashkevich.[41]

[41]JCB 310.
Dr Greg Rowles
60Dr Greg Rowles is a general practitioner at the Riddell Country Practice. He provided a report detailing the plaintiff’s treatment at that practice following the accident. He said that when the plaintiff presented to him eight months after the accident, she still had right clavicular pain and some paraesthesia on the right hand side, made worse with lifting or recurrent shoulder use. He said the plaintiff also had episodes of severe neck pain and headache and had seen local physiotherapists. He described presentations at that practice through until 4 December 2003. He then answered questions and said that, based on the clinic’s notes, the plaintiff had “minor head injury, fractured right clavicle and soft tissue injury to the neck and lower back”. He said the prognosis when last seen was unclear.[42]
[42]JCB 186.
Dr Larry McGrath
61Dr Larry McGrath is a general practitioner at the Evans Street Clinic who, along with other doctors at that clinic, has treated the plaintiff. The clinical records from the Evans Street Clinic were tendered. The notes reveal the plaintiff first attended the clinic on 23 March 2002[43] and first mentioned neck pain to a doctor at the clinic on 30 April 2010 when “acute wry neck – old mva” was recorded.[44]
[43]        JCB 235
[44]        JCB 231
62Pausing, I am conscious of the care that should be exercised in the use of medical records as evidence where Dr McGrath was not called to give evidence. But nevertheless, I am also entitled to rely on the evidence in the medical records to make findings both in respect to the reliability of the plaintiff and for necessary factual findings regarding the condition of the plaintiff’s neck after the accident.[45]
[45]        Popal v Transport Accident Commission [2023] VSCA 222 at [87].
63Accordingly, mindful of the limitations of the evidence in the clinical records from the Evans Street Clinic, I have considered the fact that the records reveal that the plaintiff attended the clinic sporadically for her neck, until 2022 when the attendances became more frequent and the C6 radiculopathy became a feature of those attendances.
64Returning specifically to Dr McGrath, he provided a report to the plaintiff’s solicitors dated 23 August 2022. It is a relatively short report and convenient to reproduce it in full as follows:
“Ms Trimble presented with R C6 radiculopathy with pins and needles and numbness down mainly her R arm but occasionally down her L arm.
CT Cx spine was arranged by myself and was performed at Lake Imaging on the 11/5/22.
This showed cervical spondylosis prominent at C5-6 level with bilateral severe foraminal narrowing at C5-6 with impingement of C6 nerve roots R>L.
Ms Trimble on questioning, stated she had been involved in a MCA in 2000 February, in which she sustained a fractured clavicle and spinal whiplash.
It is my belief that these Cx spine changes in someone so young are the direct result of the MCA in February 2000.
I referred her to Dr Ales Aliashkevich, neurosurgeon, who reviewed her on the 6/6/22 and arranged for her to have an MRI on the 20/6/22 – a copy of which I enclose.
He reviewed her on the 16/8/22 and I enclose a copy of his report.
I agree with his findings and suggested procedures in the future which entails nerve conduction studies and most likely a C5-6 replacement or fusion.
I believe unless Danielle has surgery she will continue with her current symptoms.
Her prognosis should be good following surgery but in neck surgery nothing is absolute.
I believe Ms Trimble is receiving appropriate treatment under Dr A Aliashkevich who is one of the best neurosurgeons in Victoria.”[46]
[46]JCB 194.

65Dr McGrath then provided a further report to the plaintiff’s solicitors on 15 October 2023. Again, it is a relatively short report and convenient to reproduce it in full as follows:
“I have been asked to write a supplementary report concerning the above named patient. My original report was completed on the 22/8/2022.
History :- Mrs Danielle Trimble was involved in an MCA on the 26/2/2000 sustaining loss of consciousness, concussion, spinal whiplash and a R clavicle fracture.
Diagnose of her condition today is :- R. C6 radiculopathy secondary to C5-C6 bilateral focal disc protrusions. The right moderate sized posterolateral focal disc protrusion extends into the exit foramina causing impingement on the R C6 nerve root The left small posterior paracentral focal disc protrusion indents the anterior cord. These were proven on MRI 20/6/2022. They are not due to degenerative change of a constitutional nature but as a direct result of trauma sustained in the MCA on the 26/2/2000 Over the past 23 years the radiculopathy has become more pronounced and as a result she has developed symptoms of anxiety/depression .I commenced treatment of this condition in late 2022 with Lexapro 20mg mane(an SSRI antidepressant)
Prognosis :-

Her symptoms will gradually deteriorate as degenerative changes (OA) advance. From Dr A Aliashkevich’s report I noted that he referred her to Dr Debo Gorai for neurophysiological testing involving R arm EMG and nerve conduction tests to exclude carpal tunnel syndrome, ulnar nerve neuropathy and check the severity of the right C6 nerve root compression. I have not received a copy of his report ,so I cannot comment on them.
I have read copies of both Mr Aliashkevich and Prof Richard Bittar's reports. They both suggest referral to a pain specialist and an occupational physician re nerve blocks and possible RFA therapy rather than immediately have surgical intervention which I agree with.
I am not sure whether this has occurred as yet, but would recommend referral to first instance. Martyna Berwetz at Pain Specialists Australia , 600 Victoria Parade Richmond in the first instance.
I believe Mrs Trimble has many years of suffering ahead of her regardless of which course of action is taken initially to help alleviate her pain and cervicogeneric headaches
I do believe Mrs Trimble is receiving appropriate treatment as she is under the care of one of the best neurosurgeons in Melbourne. Her ongoing treatment will be quite expensive.
There is no degree of certainty that the outcome of surgery or nerve blocks with Radio Frequency Ablation will be curative but will hopefully help alleviate some of her symptoms.”[47]
[sic]
[47]JCB 207-208.

66For the causation issue, Dr McGrath supported a connection between the accident and the C5-6 disc protrusion (and C6 radiculopathy). The defendant was critical of his opinion as not providing a cogent path of reasoning to link the plaintiff’s current symptoms to the accident other than a broad acceptance that the accident must have been the cause of the current C6 symptoms.
67Dr McGrath had arranged for the plaintiff to be seen by Dr Aliashkevich. In his GP referral dated 17 May 2022, he requested an assessment of the C5-6 foraminal stenosis with nerve root impingement. In the reason for patient referral, he said “thank you for seeing Danielle who has presented with right cervical radiculopathy. MCA 22 years ago”.[48]
[48]JCB 187.
Dr Ales AliashkevichC
68That brings me to the important evidence from Dr Ales Aliashkevich, neurosurgeon and spine surgeon. He first consulted with the plaintiff by teleconference on 5 June 2022.[49] He then arranged further radiology of the plaintiff’s cervical spine and a referral to Dr Debo Gorai, neurologist, for nerve conduction tests and EMG. By then, Dr Aliashkevich had concluded that the plaintiff had progressive right C6 radicular symptoms and possible peripheral neuropathy. He had discussed possible ongoing conservative management options, as well as the possibility of spinal surgery, by way of C5/6 disc replacement.[50]
[49]JCB 245.
[50]JCB 249.
69Dr Aliashkevich’s treatment and opinions were comprehensively set out by him in a report to the plaintiff’s solicitors dated 6 June 2023.[51] He noted the plaintiff was first seen for neurosurgical assessment by teleconference on 6 June 2022 and that she had complained about many years of pins and needles sensation affecting her right ring and little fingers, but that at the beginning of 2022, she experienced frequent episodes of pins and needles and a tingling sensation travelling down her right arm and into her thumb and index fingers.[52] He set out his follow-up attendances with the plaintiff including how on 16 August 2022 she complained about gradual worsening pain in her neck, right arm pain and paraesthesia. He also recorded over the previous weeks that she had noticed tingling down her left arm with pins and needles.[53] He said that, given the plaintiff’s progressive right C6 radicular symptoms and possible peripheral neuropathy, he recommended neuropsychological testing.
[51]JCB 257.
[52]JCB 258.
[53]JCB 259.
70Dr Aliashkevich then answered specific questions. In respect to diagnosis, he said:
“(a) your diagnosis
- Chronic right neck, shoulder and arm pain
- Chronic right dominant arm/hand paraesthesia
- Right C6 radiculopathy on EMG
- No evidence of carpal tunnel syndrome on neurophysiological testing
- C5/6 bilateral foraminal narrowing
- History of a motor vehicle accident in 2000 (whiplash, concussion, right clavicle fracture)”[54]
[54]JCB 262.

71Dr Aliashkevich was then asked perhaps the key causation question in this proceeding, namely, whether the injuries are consistent with the stated cause. He answered that by saying:
“(b) whether the injuries are consistent with the stated cause
Please note that your client suffered complex right neck, shoulder and arm pain. Assessing an accident from more than 22 years ago and making reliable conclusions about its contribution to your client’s chronic pain is a formidable challenge. She didn’t recollect much of the accident but indicated that she was treated at the Royal Melbourne Hospital.
Based on her limited history and clinical presentation, it would be plausible to assume that, on the balance of probability, the transport accident in 2000 could have produced a whiplash-type impact and contributed to the aggravation of your client’s degenerated cervical spine condition to some degree. Reviewing her old hospital notes and GP records would help clarify the causation of her problems.”[55]
[55]Ibid.

72Dr Aliashkevich concluded that report by saying that the progression of the plaintiff’s pain from the accident had been described in the body of his report. He said that, as he consulted her 22 years after the accident, further information will need to be obtained from her GP and treating hospital.
73Pausing, Dr Aliashkevich’s opinion at this stage provided some support that the accident could have produced a whiplash type impact and contributed to the aggravation of the plaintiff’s degenerated cervical spine condition to some degree.
74Next, no doubt because of Dr Aliashkevich’s comments that review of the old hospital notes and GP records would assist to express an opinion on the causation issue, the plaintiff’s solicitors provided all the relevant material to Dr Aliashkevich and asked for a supplementary report. He reviewed that material and provided a supplementary report dated 28 September 2023.[56]
[56]JCB 264.
75It is clear from his supplementary report that Dr Aliashkevich spent some time considering the further medical material that he had been provided. He extracted what he considered relevant and set that material out in chronological order in his report. He then answered further questions asked of him. Relevantly, he answered questions as follows:
“(a) your diagnosis
- Chronic right neck, shoulder and arm pain
- Chronic right dominant arm/hand paraesthesia
- Right C6 radiculopathy on EMG
- No evidence of carpal tunnel syndrome on neurophysiological testing
- C5/6 bilateral foraminal narrowing
- History of a motor vehicle accident on 26/02/2000 (whiplash, concussion, right clavicle fracture)
- Right neck pain episode in 2012.”
(b) whether the injuries are consistent with the stated cause
The provided medical evidence did not provide sufficient support to establish a direct link between the transport accident on 26/02/2000 and right C6 radicular symptoms developed in 2022.
Cervical spine CT on 10/01/2001 didn't report structural abnormality.
Prof Davis reported on 15/03/2001: On examination Danielle looked well. There were no neurological abnormalities. She was a little tender over the bump on the right clavicle. There were no signs to suggest elevated intracranial pressure, myelopathy or radiculopathy.
Marcello Di Paolo recorded on 13/01/2014: H/As have eased off but still very stiff in upper Cx spine L>R. No arm symptoms.
Cervical spine MRI on 26/10/2018 reported: C5/6 level there is a mild diffuse disc bulge which causes mild narrowing of canal and bilateral neural foramina. Neural impingement appears unlikely.”[57]
[57]JCB 286-287.

76As is obvious, having considered the further material, Dr Aliashkevich shifted away from providing limited support on the causation issue, to express an opinion that the provided medical evidence did not provide sufficient support to establish a direct link between the transport accident and the right C6 radicular symptoms that developed in 2022.
77I shall say a little more about Dr Aliashkevich’s evidence once I have set out the balance of the medical evidence.
78But at this juncture, I note that the defendant placed considerable emphasis on his opinion. It described it as comprehensive and balanced and as setting out a cogent path of reasoning to ultimately support its contention that the right C6 radiculopathy was not causally related to the transport accident.
79On the other hand, the plaintiff was critical of Dr Aliashkevich’s opinion on the issue of causation because he did not adequately address the issue of the cause of the degeneration shown on the radiology and did not adequately address the opinions given to him to consider from Dr Gorai.
80I reject the plaintiff’s criticism of the failure by Dr Aliashkevich to specifically comment on the reports from Dr Gorai. I shall next move to Dr Gorai’s evidence, which is supportive of the plaintiff, but does appear to have been expressed without the full set of relevant medical material that Dr Aliashkevich was provided and asked to comment on. Regardless, Dr Aliashkevich set out the material that he considered relevant to the causation issue. That did not require him to critique every medical opinion provided to him and, indeed, in my opinion he did what an expert is required to do, which is to consider the relevant material and express an opinion. It is not his job to specifically disagree with another doctor’s opinion and to risk becoming an advocate for a party.
81Further, any criticism that Dr Aliashkevich did not directly critique the reports from Dr Gorai is a bit rich where Dr Gorai was never provided with Dr Aliashkevich’s supplementary report and given an opportunity to consider it.
Dr Debo Gorai
82As mentioned, Dr Debo Gorai is a neurologist to whom the plaintiff was referred by Dr Aliashkevich. A consideration of his evidence should been seen in the context of my comments regarding the evidence of Dr Aliashkevich. Dr Gorai wrote back to Dr Aliashkevich by letter dated 15 March 2023 and noted that “Interestingly” the plaintiff had “a history of a motor vehicle accident.”[58] Dr Gorai said:
“So, what we have over here is much more than chronic pain syndrome. There clear clinical localisation to C6 radiculopathy. There are nerve conduction studies which have ruled out focal entrapment neuropathy at the wrist or the elbow. I will be doing her EMG studies to confirm active or chronic denervation changes pertaining to the cervical radiculopathy. Hence we will be obtaining definite clinical evidence for cervical radiculopathy, that is for sure, but as far as the aetiology of this is concerned, I would definitely say that there is degenerative changes, but there is a possibility that the trauma could possibly have caused accelerated degenerative changes in the disc, and I think she should go back to the Royal Melbourne Hospital and from their records bring out the scans, letters and over the last twenty years, whichever Doctor she has visited, and the scans that she has had, you need to go through all of these scans and see what was the status of the disc at the time and the fact that over time there is disc degeneration, it is quite possible that trauma could have caused acceleration of disc degeneration, rather than degeneration being completely constitutional as such. The fact that there was a clavicle fracture the trauma seems to have been fairly significant.”[59]
[58]JCB 289
[59]JCB 290
83Dr Gorai wrote to Aliashkevich again on 23 March 2023 and said that:
“I have carried out the EMG studies today, which reveal that there is electromyographic evidence of active and chronic denervation changes in right cervical C6 myotomal distribution, consistent with chronic-active cervical radiculopathy.”[60]
[60]JCB 291.
84Next, Dr Gorai provided a report to the plaintiff’s solicitors dated 23 June 2023.[61] That report set out the history and examination findings, together with a clinical summary. In response to specific questions, Dr Gorai diagnosed cervical radiculopathy at C6, right side more than left.
[61]JCB 293.
85Dr Gorai was then asked “Whether the injuries are consistent with the stated cause”, which I take to mean a reference to the accident. Dr Gorai said:
“As I had mentioned in my earlier letter to Dr Ales Aliashkevich, the pathophysiology over here most likely is a disc degenerative condition which has been a kind of accelerated disc degeneration. The trauma that she sustained from the whiplash injury from the accident in 2000 is probably the primary source because, quite young at 40, she has developed a C6 radiculopathy from a disc compression and I think this accelerated disc degeneration is resultant of the whiplash injury that she sustained in 2000 from the motor vehicle accident.”[62]
[62]JCB 295.
Professor Richard Bittar
86Professor Richard Bittar is a consultant neurosurgeon who examined the plaintiff at the request of her solicitors and provided three reports.
87Professor Bittar’s first report is dated 23 August 2023.[63] He obtained a history of the plaintiff’s current symptoms, past medical history and current treatment. He then set out the effect of the plaintiff’s symptoms, his examination findings and review of investigations. Having done so, he then provided a diagnosis and said the plaintiff most likely sustained a cervical spine whiplash injury, with trauma to the C5-6 intervertebral disc. In respect to causation, he said:
“In my opinion, her cervical spine condition with ongoing neck pain, headaches and upper limb symptoms is a direct consequence of the transport accident of February 2000.”[64]
[63]JCB 311.
[64]JCB 314.
88Professor Bittar then set out his treatment recommendations before returning to answer specific questions. He repeated his opinion that the plaintiff’s injuries were consistent with the stated cause. He was then asked whether the plaintiff’s injuries were degenerative or likely to become so, and he said:
“Your client's injury has become a degenerative injury in that she almost certainly sustained a significant injury to the C5/6 intervertebral disc at a young age (she was 17 years of age at the time). In my opinion, this has most likely precipitated accelerated degeneration of that disc, consistent with her presenting symptoms. Given that the remainder of her cervical spine does not exhibit any significant degenerative change, it is my opinion that the changes seen at C5/6 represent accelerated degeneration as a result of the initial trauma to her cervical spine. With appropriate treatment, her condition should not further impact on her social, domestic, recreational and working life over and above its current impact.”[65]

[65]JCB 315.
89Professor Bittar was then asked to opine as to the progression of the plaintiff’s injuries from the accident to the present date and said:
“Your client's cervical spine injury has resulted in ongoing symptoms since the date of the transport accident. As outlined in the body of the report, these were fairly manageable until recently, at which time they worsened. This worsening has resulted in an escalation in her treatment requirements, to the point where she may require surgical intervention.”[66]
[66]JCB 316.
90Professor Bittar said that all of the plaintiff’s neck-related impairment was due to the accident with no contribution from any pre-existing, unrelated or subsequent conditions.[67]
[67]Ibid.
91Professor Bittar then re-examined the plaintiff on 25 August 2023 and provided a report of that date to her solicitors.[68] The letter of instruction to Professor Bittar dated 17 August 2023 was also tendered, which demonstrated that he was provided with the relevant radiology, medical reports and clinical records, similar to what had been provided to Dr Aliashkevich. Professor Bittar did not specifically set out that material but confirmed he had reviewed the enclosures.
[68]JCB 317.
92Professor Bittar then set out relevant matters and repeated his diagnosis. In respect to causation, he repeated his opinion that the plaintiff’s “cervical spine condition with ongoing neck pain, headaches and upper limb symptoms is a direct consequence of the transport accident of February 2000”.[69]
[69]JCB 320.
93Professor Bittar again answered specific questions. Relevant to the causation issue, he repeated his earlier opinion as follows:
“Her injuries are not degenerative; however, she most likely sustained an injury of the C5/6 disc and now has degenerative changes at that level. It is unlikely that other levels are affected, however. In my opinion, her C5/6 disc will continue to degenerate with the usual aging process.”[70]
[70]JCB 322.
94Finally, Professor Bittar provided a supplementary report dated 9 November 2023,[71] having been provided with Dr Aliashkevich’s reports of 6 June and 28 September 2023. Professor Bittar said:
“I reviewed the medical reports of Dr Aliashkevich dated June 6, 2023. Dr Aliashkevich's opinions do not cause me to alter the opinions expressed in my previous report.
I reviewed the medical report of Dr McGrath dated October 15, 2023. This report does not cause me to alter the opinions expressed in my previous report.
In summary, review of the above-mentioned materials does not cause me to alter the opinions expressed in my previous reports.”[72]
[71]JCB 323.
[72]Ibid.
95As I shall come to, the plaintiff urged me to accept Professor Bittar’s opinions in preference to Dr Aliashkevich or the other unhelpful opinions for the plaintiff on the causation issue.
Mr Gary Speck
96Mr Gary Speck is a consultant orthopaedic surgeon who examined the plaintiff at the request of the TAC. He provided several reports.
97Mr Speck first examined the plaintiff on 14 December 2022 and provided a report dated 19 December 2022.[73] Mr Speck obtained a history of the accident, injuries and treatment, together with the plaintiff’s current symptoms. He then reviewed relevant medical imaging and extracts from other material provided to him. Then, under a heading of “SYNOPSIS”, Mr Speck said:
“Although her current imaging changes may relate to an unrecognised disc injury it is more likely and probable that they reflect degenerative change of constitutional nature rather than as a result of any trauma.
The source of her neurologic symptoms in the upper extremity are to be determined with nerve conduction studies and there is no indication from the imaging and examination that the limb symptoms of pins and needles relates to injuries arising from the transport accident. If the symptoms were to be arising from compression by structures affecting peripheral nerves these are not part of injury sustained in the transport accident.
The presentation in relation to the neck symptoms which are of axial neck pain are consistent with a chronic pain syndrome of mild degree and constitutional changes affecting the cervical spine potentially producing symptoms which may relate to the intervertebral disc prolapse or other structures.”[74]
[73]JCB 350.
[74]JCB 371.

98Mr Speck was then asked to answer specific questions. He said:
“1. What injuries (if any) were caused by the transport accident? What is your diagnosis of these injuries?
Answer: The presentation in relation to the neck symptoms which are of axial neck pain are consistent with a chronic pain syndrome of mild degree and constitutional changes affecting the cervical spine potentially producing symptoms which may relate to the intervertebral disc prolapse or other structures.
The fracture of the right clavicle has healed with full range of movement of the shoulder and no evidence of residual disability.
2. If you believe Ms Trimble sustained a neck injury in the transport accident, to what extent is any such injury, if at all, contributing to the overall neck condition?
Answer: The presentation in relation to the neck symptoms which are of axial neck pain are consistent with a chronic pain syndrome of mild degree and constitutional changes affecting the cervical spine potentially producing symptoms which may relate to the intervertebral disc prolapse or other structures.
Although her current imaging changes may relate to an unrecognised disc injury it is more likely and probable that they reflect degenerative change of constitutional nature rather than as a result of any trauma.
3. To what extent, if at all, are degenerative or unrelated factors contributing to the overall neck condition?

Answer: Although her current imaging changes may relate to an unrecognised disc injury it is more likely and probable that they reflect degenerative change of constitutional nature rather than as a result of any trauma. Her current presentation is consistent with moderate symptoms of axial neck pain arising from the degenerative changes and musculoligamentous factors.
Please see the full discussion in the ‘Synopsis‘ of the report above as well.”[75]
[75]Ibid.
99Mr Speck was asked to comment on the medico-legal report from Professor Bittar dated 23 August 2022. He said:
“The report of Prof Bittar is noted. He obtained a different description of her pain with it extending into the upper extremity, whereas in the history she gave me it was of neurologic symptoms of pins and needles, not pain in the upper extremity. These were intermittent and had not been present until the last several years rather than being from the time of the transport accident. He noted a modest restriction of movement and minimal tenderness with no muscle spasm. The sensory alteration on the right ulnar border of the hand and loss of biceps reflex I did not identify. Ms. Trimble indicates the neurologic symptoms in the upper extremity fluctuate as the signs may do as well.
I would agree with Professor Bittar’s findings in relation to the degenerative change at C5/6 on the MRI scan and lack of spinal cord injury. He came to a diagnosis of ‘most likely sustained a cervical spine whiplash injury, with trauma to the C5/6 intervertebral disc. Cervicogenic headaches. Right C6 radiculopathy.
I agree she may have sustained a whiplash injury at the time of the transport accident, although the RMH ED notes did not find any neck tenderness. In the context of her fractured right clavicle, I could imagine that assessment of the neck separately would be difficult and would expect soft tissue injury associated with the fracture of the right clavicle. Most likely the soft tissue injury would have resolved in 6 to 12 weeks. In the presence of normal imaging over the time at Royal Melbourne and subsequent investigation with Mr. Mills 12 months later with no identification of vertebral structural injury or discoligamentous injury makes it more probable that the changes at the C5/6 disc are simply those of constitutional effects as would be expected in a significant percentage of population with ageing as indicated in the representative article quoted.
It is possible that there may have been unrecognised damage to the disc but there was no soft tissue swelling noted nor any imaging identification at the time, or soon after.
I did not find evidence of the C6 radiculopathy, and it may be that her physical findings fluctuate but the sensory alteration over the ulnar two digits is not consistent with C6 radiculopathy and quite possibly if present, would indicate an ulnar nerve problem which would be elucidated by the nerve conduction studies. Reflexes can fluctuate depending on circumstances and relaxation of the patient.
The relationship of her headaches to the neck symptoms may reflect the severity of the pain at the time.
Like Professor Bittar I would expect that Ms. Trimble with appropriate multidisciplinary pain management approach and continuing positive attitude, will continue to be able to undertake activities as she currently does into the future.”[76]
[76]JCB 374-375.

100Mr Speck then provided a further report dated 10 January 2023,[77] in which he was provided with extracts from the Riddell Country Practice. He said, having considered that material, it did not alter the opinions expressed in his earlier report.[78]
[77]JCB 378.
[78]JCB 383.
101Mr Speck was then asked to provide a further supplementary report. In a report dated 22 September 2023,[79] he was provided with further clinical records and relevant medical reports. He reviewed that material and repeated the opinion that the extra documentation had not changed his opinions as previously expressed.[80]
[79]JCB 385.
[80]JCB 389.
102Finally, Mr Speck produced another supplementary report. In a supplementary report dated 5 November 2023, he was provided with reports from Professor Bittar dated 25 August 2023, the two reports from Dr Aliashkevich of 6 June and 28 September 2023, and the report of Dr Larry McGrath dated 15 October 2023. He was asked to review that material and provide a supplementary report. In the process of doing so, and in the context of Dr Aliashkevich’s most recent report, Mr Speck said:
“Dr Aliashkevich after review of the extra provided material has come to a similar conclusion to my own, I believe, that it is unlikely that Ms Trimble sustained a discoligamentous or vertebral structural injury at the time of the subject transport accident and her current presentation is due to constitutional factors rather than a traumatic event.”[81]
[81]JCB 399.
103In response to a question about whether the updated material altered his opinions as previously expressed, Mr Speck said:
“I do not believe that any of the above extra information provided in your instructing letter of 30/10/23 alters my previously expressed opinion. The discussion in my initial report of 19 December 2022, and with reference especially to the answer to question 9 on page 24 and 25 giving explanation. The further information provided for the preparation of 2 supplementary reports is dealt within those reports and comments are provided above in relation to the individual further items provided with your recent instructing letter.”[82]
[82]JCB 402.
Overview of medical material and the parties’ contentions
104In short, the plaintiff relied upon the opinions of Dr McGrath, Dr Gorai and Professor Bittar to support a causal connection between the plaintiff’s C6 radiculopathy and, on that basis, a conclusion of a “serious injury” because of the accident.
105On the other hand, the defendant emphasised the radiological findings in the context of the opinions from Dr Aliashkevich and Mr Speck, and urged the Court to conclude that the C6 radiculopathy was not causally related to the accident.
106Before moving to consider and resolve the dispute between the parties’ contentions, it is necessary to say a few words about how each party analysed the medical evidence.
107Senior counsel for the defendant emphasised the comprehensive nature of the opinions from Dr Aliashkevich. In the context of the limitation application, but relevant to this point, senior counsel for the defendant said:
“Yes. Your Honour, the only doctor who we would say very fairly turns his mind to the difficulty is Dr Aliashkevich, and it's very interesting to see how he goes about it. Because when I take you to this in a moment, you'll see that in his first report, he uses words like 'it's plausible that it's possible.'
He then does 25 pages of real exegesis of looking through X-rays and how the X-ray was at this point, and so forth. And then he comes to that conclusion.”[83]
[83]T12, L17-25 (16 November 2023).
108Relevant to the serious injury application, and in that context, senior counsel for the defendant said:
“So looking at the serious injury, the way we put it broadly is this: The critical causation issue is whether the C6 degeneration is on the balance of probabilities linked to the accident 22 years earlier. If it is, that is to say if all the C6 problems including the possibility of an operation are so linked the plaintiff will establish that the injury is serious, or likely to establish that.”[84]
[84]T13, L20-27 (16 November 2023).
109Then, turning to Dr McGrath and Dr Gorai, the defendant submitted that their opinions linking the plaintiff’s current symptoms to the car accident had been expressed as an assertion without proof or, as senior counsel expressed it in a more eloquent manner:
“So let's then look at the causation issues and it's probably good to look at it from the point of view of three doctors. If we take Dr McGrath, 194. He says, 'there is some consideration to this issue.' I don't want to downplay Dr McGrath's if he's completely ipse dixit, but there's lots of ipse in it and a bit of dixit.”[85]
[85]T14, L7-12 (16 November 2023).
110Returning again to Dr Aliashkevich, the defendant submitted that he had received all the material, and in a very thorough report had expressed the opinion that the medical evidence did not provide sufficient support to establish a direct link between the accident and the right C6 radicular symptoms and explained why he had expressed that opinion. The defendant submitted that:
“on any view, the report of Aliashkevich is very thorough. It deals with radiology, it deals with history, and it deals with timespan. And it's not replied to by Dr Goray [sic] or Professor Bittar”.[86]
[86]T21, L9-12 (16 November 2023).
111In respect to Professor Bittar, the defendant highlighted how in his final report, and having been given Dr Aliashkevich’s opinions, he simply said it did not cause him to alter his opinions and “Thank you very much”.[87] As senior counsel for the defendant said:
“Well, that's disappointing isn't it, because after all, Dr Aliashkevich looked carefully at the radiology and the history and all of that and Dr Bittar hasn't dealt with that at all. Dr Bittar says, 'Yeah, she would have damaged the disc'. Well, just a minute. The only damage to the disc is first seen 18 years later, but why not give a talk about that? Why not deal with it? Well, he doesn't deal with it at all.”[88]
[87]T19, L27 (16 November 2023).
[88]T19, L28; T20, L4 (16 November 2023).
112For completeness, I note that the defendant relied on Mr Speck’s opinion and highlighted the similarities between his opinion and that of Dr Aliashkevich.
113On the other hand, senior counsel for the plaintiff submitted that the medical reports of Dr McGrath, Dr Gorai and Professor Bittar supported the current condition relating to the C6 disc as caused by the trauma suffered in the accident.[89]
[89]T31, L6-12 (16 November 2023).
114In explaining to the Court why those opinions should be preferred, it was submitted that there was a deficiency in Mr Speck’s opinions because he said that any soft tissue injury suffered in the accident should have resolved within 6-12 weeks. Clearly that had not occurred and therefore his poor explanation about why the plaintiff had persisting symptoms reduced the weight that should be placed on his report.
115Pausing again, on this issue of a possible ongoing soft tissue injury, I accept the submission on behalf of the plaintiff that, in light of the records from the Evans Street Clinic, Dr Speck has not provided a clear explanation of why the soft tissue neck symptoms did not resolve in the period of 6-12 weeks as he expected. But the fact that I do not accept his evidence on this point, does not mean that I am required to reject all of the evidence form him. It does not detract from the overall analysis in his report as to the cause of the C6 radicular symptoms, in a consideration of the other evidence.
116Next, the plaintiff submitted that Dr Aliashkevich does not explain in reality what he actually meant by “direct”, and he did not really discuss the continuing complaints of pain. It was submitted that, really, he had surmised (without explaining how or why) that, because there was no degeneration demonstrated on the radiology prior to 2018, and then there was on radiology thereafter, then is when the degeneration started. It was submitted that he had not adequately addressed that issue by not commenting on the opinion from Dr Gorai. It was submitted that Professor Bittar had more adequately considered the total history than had Dr Aliashkevich.[90] In other words, the plaintiff was critical of the opinion from Dr Aliashkevich because of what she submitted was a failure to properly explain how, in the absence of the accident, the plaintiff had developed the problem at the C6 level.
[90]T35, L22; T36, L1 (16 November 2023).
117Staying with Professor Bittar, the plaintiff submitted that the Court should accept his opinion that what really happened was that there had been trauma to the cervical spine in the accident, that accelerated degenerative change of the discs, as now reflected on the radiology, and that he had expressed that opinion based on all the information provided to him. It was submitted that his opinion was consistent with the evidence of both the plaintiff and some of the other medical evidence, and his opinion ought be accepted in preference to either Mr Speck or Dr Aliashkevich, in combination with the opinion from Dr McGrath and Dr Gorai.
118As it was summed up by the plaintiff’s senior counsel:
“And, in our submission, that opinion is consistent with the evidence of both the plaintiff and the medical evidence in terms of the treatment that she's been receiving. And we would submit that you ought to accept Mr Bittar's opinion in preference to either Mr Speck or Mr Aliashkevich [sic], Your Honour. And if Your Honour does accept those - together with Dr McGrath, if Your Honour accepts those views - and Mr Gorai [sic] - then, clearly, we would submit that the causation question has been resolved in her favour, and she should succeed.”[91]
[91]T38, L7-16 (16 November 2023).

Consideration
119As should be obvious from the prelude to these reasons, I consider that Dr Aliashkevich hit the nail on the head for the causation issue when he said in his first report that assessing an accident from more than 22 years ago, and making reliable conclusions about its contribution to the plaintiff’s chronic pain, was a formidable challenge. Nevertheless, that is what I am required to do in this proceeding.
120Both sides were critical of the medical opinions that did not support their submissions regarding causation as in some way lacking or failing to provide a thorough or proper path of reasoning. A few things can be said about that.

121First, this is a gateway proceeding which was conducted in the “usual manner”, which meant that the doctors were not required to provide oral evidence in addition to their reports. It may be that criticisms or issues arising from the reports that attracted the eye of senior counsel were not a focus of the doctors when expressing medical opinions. In that sense, unlike the doctors, the Court has the benefit of all the relevant evidence, including the oral evidence of the plaintiff and the submissions of the parties which, of course, frame the issues for resolution.
122In that sense, it is easy when sitting in the bleachers to be critical of the doctors’ written opinions. At times, there can be valid criticism about the lack of a path of reasoning in medical reports, but broadly I do not consider this to be such a proceeding. Really the criticism in this proceeding was that the doctor had expressed an opinion contrary to the finding that a party urged on the Court.
123Second, the medical opinions, to some extent, are shaped by the questions asked of them, and questions not asked should also be considered. For example, senior counsel for the plaintiff was critical of Dr Aliashkevich’s use of the phrase “direct link” between the medical evidence and the accident. If there was thought to be some confusion in the language used by Dr Aliashkevich, bearing in mind that he was providing reports at the request of the solicitors for the plaintiff, then he could have been asked to clarify what he meant. Regardless, I consider it a curious criticism in circumstances where Professor Bittar used similar language to describe “a direct consequence of the transport accident”.
124Third, I consider that I should be slow to be critical of the medical practitioners for the way in which they have written reports in the context of the information provided to them, the questions asked of them, and the fact that in an adversarial setting but confined to a gateway provision, they have not had the opportunity of expanding upon their opinions in the context of the issues as framed before the Court.
125Having said that, in the context of what I consider to be a thorough, well-structured and comprehensive supplementary report from Dr Aliashkevich, it is unhelpful that Professor Bittar thought it sufficient to respond by simply saying it did not alter his earlier opinions, particularly as he had the same material as Dr Aliashkevich, but did not attempt anywhere near the same process in his reports of setting out what he considered the relevant material and analysing it.
Consideration and resolution of the causation issue
126A starting point in a resolution of this application is the evidence of the plaintiff. I repeat my previously expressed view of her as a credible and reliable witness.
127It is relevant that the accident was of sufficient force to cause a fracture of the right clavicle, a concussion injury, and some form of soft tissue/whiplash injury to the cervical spine, consistent with the early radiology and the CT scan reported on 10 January 2001. None of that is in dispute.
128Next, the objective evidence in the clinical records discloses symptoms in the neck after the accident and a need for conservative treatment, with a tapering of conservative treatment following the accident. The clinical records reveal occasional attendances over the years for symptoms in the neck. The plaintiff’s explanation for that limited treatment was two-fold. First, there was a financial impediment to more regular treatment. Second, the plaintiff said that she had attempted to “get on with life”. I accept that evidence.
129However, the objective medical evidence does demonstrate a significant worsening of neck symptoms and the development of the radicular arm pain during 2022.
130Without the worsening of symptoms, I consider that the plaintiff had some low-level grumbling neck pain which required occasional physiotherapy or similar conservative treatment with little or minimal interference in her ability to participate in day-to-day activity and work. She had gone to marry, establish a home, raise two children, and hold down a full-time job in the medical law department at Maurice Blackburn.
131Without the worsening of symptoms in 2022, even if I reject the opinion from Mr Speck and accept there was an ongoing soft tissue injury to the neck, I do not consider that such injury was productive of a “serious injury”.
132The key issue in this proceeding is then whether the worsening of symptoms and the radiologically demonstrated problem at C6, with a right C6 radiculopathy, as demonstrated on CT and MRI scanning in May and June 2022 is causally related to the accident.
133This is a difficult issue to resolve where there is a body of conflicting medical opinion on that issue and some limitations with all the medical opinions on this point.
134But, after a consideration of the whole of the medical evidence, I conclude that Dr Aliashkevich has provided the most comprehensive and thorough analysis of the relevant objective evidence in arriving at an opinion on causation. In the context of the similar opinion from Mr Speck regarding the C6 level, I consider his opinion to be preferable to those proffered on behalf of the plaintiff.
135Accordingly, because of the medical evidence that I accept for the causation issue, I conclude that the plaintiff has failed to establish a causal link between the accident and the symptoms that developed in her neck and right arm approximately 22 years later in 2022 (the C6 injury and radiculopathy).
136Therefore, the plaintiff has failed to establish a “serious injury” because she has failed to satisfy me that the C6 radicular symptoms are causally related to the accident. The ongoing soft tissue injury to the cervical spine from the accident does not of itself produce a “very considerable” consequence, either from pain and suffering or when combined with any pecuniary disadvantage.
137Therefore, for the reasons given, the serious injury application is dismissed. There is then no need to consider the limitation application.
138I shall hear from the parties as to the appropriate form of orders, including orders for costs.

[2023] VCC 2136

27 November 2023