Yilmaz v TAC

[2020] VCC 1354

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-04617

Ismet Yilmaz	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2020
DATE OF JUDGMENT:	3 September 2020
CASE MAY BE CITED AS:	Yilmaz v TAC
MEDIUM NEUTRAL CITATION:	[2020] VCC 1354

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – compensable injury to lumbar spine with consequential psychological sequelae in 2013 transport accident– injury to lumbar spine with consequential psychological sequelae in 2015 transport accident

Legislation Cited:     Transport Accident Act 1986 (Vic)

Cases Cited:          TAC v Kamel [2011] VSCA 110; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Rowe v TAC [2017] VSCA 377

Judgment:                Leave granted to the plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC Mr R Stanley	Patrick Robinson & Co
For the Defendant	Mr R Middleton QC Ms S Manova	Transport Accident Commission

HER HONOUR:

1 The plaintiff, Mr Yilmaz, seeks leave under s 93(4)(d) of the Transport Accident Act 1986 (Vic) (‘the Act’) to issue proceedings for the recovery of damages for pain and suffering and pecuniary loss as a result of an injury to the lumbar spine and a psychiatric injury caused by a transport accident on 23 November 2013 (‘the 2013 accident’).

The plaintiff

2  The plaintiff is 46 years old. He was born in Turkey, educated there to the equivalent of Year 8, and worked in the family business before marrying and coming to Australia in 1995. He has three children. Until the 2013 accident, he was running his own business sanding and polishing floors and laying timber floors, working full time, about 40 hours per week. He speaks very limited English and does not read English.

3  On 23 November 2013, his car was stationary at an intersection when it was struck from behind and forced into the middle of the road. Other vehicles were also involved. The plaintiff suffered severe lower back pain after the collision,[1] but he was able to drive his car home. The next day he went to the Emergency Department at Sunshine Hospital with ‘worsening back pain and shooting pain’.[2] He had an x-ray and was discharged home with analgesia. He lodged a TAC claim which was accepted. Over the next few months, he took Panamax and Brufen and was referred for physiotherapy. He had some further radiological investigations in December 2013.

[1]Plaintiff’s Court Book (‘PCB’) 2 [9].

[2]PCB, 15.

4  In his affidavits, he says that he struggled throughout 2014 with lower back pain and restrictions. He had difficulty working and his wife had to help him at work so that he could finish his contracted jobs.[3]

[3]PCB, 2 [13].

5  On 11 January 2015, the plaintiff accidentally drove into a tree near his home while trying to avoid a cat that had run onto the road (‘the 2015 accident’). He lodged a TAC claim which was accepted. During 2015, he had further investigations of the lumbar spine, saw a neurosurgeon (Associate Professor Richard Bittar) and a pain specialist (Dr Gavin Weekes), and underwent bilateral L3 to L5 medial branch blocks. He also had injections into the sacroiliac joints in June 2016. He attended a pain management program. His pain continued to worsen and by 2020, he had been diagnosed with an aggravation of lumbar spondylosis and a well-entrenched chronic pain syndrome.

The issues

6 The plaintiff says that he has suffered a serious injury under sub-paragraph (a) of s 93(17) of the Act as a result of the 2013 accident. Prior to the 2013 accident, he had no history of back pain or psychological problems and was able to work full time in his work. As a result of the 2013 accident, he suffered an aggravation of pre-existing asymptomatic degenerative changes in the lumbar spine resulting in significant pain and restrictions, and a permanent impairment of the lumbar spine which led to him ceasing work in 2014. He also suffered some psychological problems as a consequence of his physical injury. Given his age, education, poor English, and history of self-employment in heavy manual work, the consequences of the 2013 accident included a permanent incapacity for any future employment.

7 In the alternative, the plaintiff says that, as at the date of the hearing, the plaintiff has a serious injury under sub-paragraph (a) and/or sub-paragraph (c) of s 93(17) of the Act, which became a serious injury after the 2015 accident, but this serious injury was caused by the 2013 accident.

8 The defendant says that the plaintiff’s affidavits do not assist in separating the consequences of the 2013 and 2015 accidents; that it was only with the commencement of this litigation that the plaintiff has come to emphasise the consequences of the 2013 accident; that nearly all of the investigations and medical treatment relating to his lumbar spine occurred after the 2015 accident; that the plaintiff has failed to demonstrate any loss of earning capacity referable only to the 2013 accident; and that there is expert opinion (from Mr John O’Brien, orthopaedic surgeon and Dr Anthony Menz, orthopaedic surgeon), upon which the defendant relies, to the effect that his current presentation is that of a chronic pain syndrome without an organic basis. Finally, the defendant says that even if the plaintiff currently suffers from a mild chronic post-traumatic stress disorder, the plaintiff has failed to satisfy the narrative test for serious injury under sub-paragraph (c) of s 93(17) of the Act in relation to the 2013 accident.

The hearing

9  The plaintiff gave evidence and was cross-examined. No other witnesses were called to give evidence. Each of the parties tendered a court book. Further written submissions and materials were filed after the conclusion of the hearing. I have considered all of the evidence and the submissions made by counsel.

10  The plaintiff’s evidence, which includes his affidavit sworn 3 July 2020,[4] his statement made 24 August 2019,[5] and his oral evidence before me, was to the following effect.

[4]PCB, 13-18.

[5]PCB, 23-27.

11  Prior to the 2013 accident, he was a strong, happy, social, positive person and a hardworking man who worked full time in his own business as a floor sander. His wife stayed at home and never helped him with his work.

12  Immediately after the 2013 accident, he suffered severe lower back pain. He went to hospital on 24 November 2013 with worsening lower back pain and shooting pain. He had an x-ray and was discharged with analgesia. He saw his general practitioner, Dr Mohammad Rahman, a few days later and again in early December. He was prescribed Panamax and Brufen and referred for physiotherapy and a CT scan.

13  At paragraph 13 of his affidavit, he stated:

I continued to struggle with lower backpain and restriction throughout 2014. I had difficulty working, and required the assistance of my wife. Things were looking pretty bleak as far as my lower back was concerned by reason of the 2013 transport accident, and I verily believe that this incident ended my ability to work.[6] 

[6]PCB, 15.

14  He was the kind of person who avoided seeing doctors. Although he was in pain constantly, he tried to keep going in the hope that his back pain would resolve, but it never did. He did the jobs that needed to be done, but what normally would take him three days now took a week. His wife also helped him on some of the jobs.[7] He was anxious when driving.

[7]PCB, 25 [21].

15  At the hearing, the plaintiff said that in 2014, he only finished off the jobs he had left, and did not take on new work. His wife went to work with him and did the heavy lifting, including operating the sanding machine. They did the polishing together. They worked together, up to two to three days per week, but often left work after two to three hours because of his pain. He stopped work in 2014 and did not work at all in 2015.

16  After the 2015 accident, he suffered a ‘setback’.[8] His back pain worsened,[9] but then settled back to the level it was prior to the 2015 accident. He was seen by a neurosurgeon and a pain specialist and had bilateral L3 to L5 medial branch blocks. He had physiotherapy and psychological treatment.

[8]PCB, 15 [14].

[9]PCB, 106.

17  Currently, he is taking Baclofen, Endep, Lexapro, Lyrica, Norspan patches and Panadeine Forte. He sees a psychologist who has recommended psychiatric treatment, which he plans to undertake. Since the 2013 accident, he has continued to suffer severe lower back pain, which is constant, ranging from a dull ache to flare ups of sharp pain.[10] His pain is present when he walks, sits, bends, stands, and twists. He has pain when driving. He has trouble putting on his shoes or cutting his toenails. He feels stiff and sore. His sleep is disturbed by pain. The medication he takes only gives him short-term relief from pain for a few hours or less.

[10]PCB, 16 [23].

18  Prior to the 2013 accident, he enjoyed fishing, playing social soccer, attending Turkish community events, and socialising with friends. All of these activities have ended since the 2013 accident, although he still occasionally goes out for coffee with friends.

19  He was stressed and anxious when driving after the 2013 accident but did not seek treatment because he hoped his feelings would pass. He suffers from depression and anxiety ‘by reason of the 2013 transport accident’,[11] as well as panic attacks. He has lost interest in life. His relationship with his wife has suffered as a result. He now spends most of his time at home watching television. He misses working and the sense of purpose it gave him. He doubts that he could perform any work reliably due to his injuries and symptoms.

[11]PCB, 17 [28].

20  He denied exaggerating his pain.

21  The plaintiff’s wife swore an affidavit which confirmed the matters deposed to by the plaintiff concerning the impact of the 2013 accident to the effect that, by the time of the 2015 accident, he was already significantly disabled, and unable to work, and that the 2015 accident was a ‘setback’.[12]

[12]PCB, 20 [10].

22  Sevinc Aslanoglu, a family friend of the plaintiff and his wife since 2005, affirmed an affidavit on 13 August 2020[13] in which he stated that prior to the 2013 transport accident, the plaintiff was very hardworking and very social, and that the two families frequently went on fishing and camping trips together. After the 2013 transport accident, the plaintiff ceased going on those trips, became socially withdrawn and was only able to complete his outstanding work contracts with the help of his wife.

[13]PCB, 117-118.

Radiology

23  An x-ray of the lumbar spine performed on 24 November 2013 was reported as showing the presence of ‘normal lumbar lordosis’ and ‘mild degenerative changes of the lower lumbar spine’. [14]

[14]PCB, 141.

24  A CT scan of the lumbar spine was performed on 10 December 2013.[15] It revealed ‘symmetrical disc bulging…at L3/4, L4/5 and L5/S1 and a mild broad-based central disc protrusion is present at L5/S1 with mild compression of the anterior theca’, but elsewhere there was no major central canal or foraminal stenosis. Mild facet joint osteoarthritis was detected at L5/S1.

[15]PCB, 103.

25  An x-ray of the lumbar spine performed on 13 January 2015 was reported as showing ‘slight disc space narrowing at L4/5 level’ and a possible ‘underlying disc prolapse’, but otherwise there were no recent bony abnormalities detected.[16]

[16]PCB, 101.

26  An MRI of the lumbar spine performed on 24 February 2015 revealed ‘early desiccation of the L4-5 and L5-S1 discs’, but ‘no significant disc bulges or spinal canal stenosis’ or ‘nerve root impingement’. [17]

[17]PCB, 99.

Expert evidence

27  On 24 April 2015, the plaintiff’s general practitioner Dr Rahman reported to the plaintiff’s solicitors that the 2013 accident caused a back injury which was aggravated by the 2015 accident.[18] The MRI scan showed early desiccation of the L4-5 and L5-S1 discs. He was having severe pain and was off work. He had been referred to physiotherapy and later to pain management. He was unfit for work.

[18]PCB, 33.

28  On 17 July 2015, Mr John Cunningham, orthopaedic surgeon, reported to Dr Rahman that the MRI scan did not reveal any compressive lesion that could be the source of the plaintiff’s right leg numbness but that he felt it appropriate to order a SPECT CT scan as part of further investigation.[19]

[19]Defendant’s Court Book (‘DCB’), 112.

29  On 25 August 2015, Dr Weekes noted the plaintiff’s complaint of lower back pain radiating to both legs, and the history from the plaintiff was that he had not worked since December 2014.[20]

[20]PCB, 51-53.

30  The plaintiff’s treating physiotherapist, Ms Duyen Kim Diep, noted on 17 June 2015 that the plaintiff reported experiencing back pain since the 2013 accident, at a level of between five to 10 out of 10, and found there was limitation in the range of movement of the lumbar spine.[21]

[21]PCB, 137.

31  On 21 July 2015, Professor Kenneth Myers, vascular surgeon, reported receiving a history of the two transport accidents.[22] He considered that the radiological investigations revealed multilevel degenerative intervertebral disease, particularly at L4/5 and L5/S1. He concluded that as a result of the 2013 accident, the plaintiff had suffered an aggravation of pre-existing but asymptomatic degenerative intervertebral disc disease, and that the consequences of this injury included impairment of his everyday activities and a complete incapacity for work. Professor Myers noted that the plaintiff attempted to return to work after the 2013 accident but could not work beyond January 2015. He found the injury to be genuine. He concluded that the plaintiff would be permanently incapacitated for all employment and that his persistent disability resulted equally from each of the 2013 and 2015 accidents. 

[22]PCB, 65-70.

32  On 6 October 2015, Dr Graeme Doig, orthopaedic surgeon, reported taking a history from the plaintiff, that his lower back pain never settled after the 2013 accident, and noted that the plaintiff had not returned to work since the 2015 accident.[23] He found no psychosocial issues affecting the plaintiff’s presentation. He noted that the radiology revealed degenerative changes at L4/5 and L5/S1. He considered that the plaintiff’s lower back pain following the 2013 accident was aggravated by the 2015 accident, and that the plaintiff would be permanently incapable of doing his pre-injury work and may need to retrain into sedentary work.

[23]DCB, 4-9.

33  Another treating physiotherapist, Ms Rosemary Le, noted on 10 March 2017 that the plaintiff reported severe lower back pain since the 2013 accident, with a current pain level of nine out of 10.[24]

[24]PCB, 55.

34  On 26 December 2017, Dr Rahman updated his earlier report by noting that the plaintiff was taking multiple medications to control his pain.[25] He had developed anxiety and depression due to his pain and was taking anti-depressant medication and seeing a psychologist. He was unable to do much at home and had given up his recreational activities. He remained unable to work.

[25]PCB, 31.

35  On 26 June 2018, Dr Craig Mills, orthopaedic surgeon, reported receiving a history from the plaintiff that, after the 2013 accident, he had constant back pain and had been unable to keep working.[26] The plaintiff told him that the 2015 accident just made it worse. At the time of examination, the plaintiff described poor sleep, right leg numbness, the need for assistance at times with dressing, and an inability to do domestic chores or home maintenance. On examination, Dr Mills noted there was significant restriction of movement of the lumbar spine. He concluded that the plaintiff was permanently incapacitated for any employment, having regard to his chronic pain, use of narcotic medication, poor English, work history and depression. He considered that half of this permanent incapacity was attributable to each of the 2013 and 2015 accidents.

[26]DCB, 10-19.

36  On 11 December 2018, Mr O’Brien reported that the plaintiff suffered lower back pain and right leg pain after the 2013 accident which was so bad that he had trouble continuing with his work.[27] The plaintiff suffered a significant aggravation of his back and right leg pain after the 2015 accident and was treated with physiotherapy and medication. Mr O’Brien considered that the plaintiff’s physical symptoms correlated with the mild degenerative disc changes shown on the MRI scan, but found no signs of nerve root compromise. He concluded that the clinical evidence suggested that the plaintiff had developed a chronic pain syndrome.

[27]PCB, 119-124.

37  On 7 April 2020, Ms Hatice Kurtoglu, psychologist, reported that she had been seeing the plaintiff since October 2015 on referral from Dr Rahman.[28] The plaintiff told her he had been suffering from depression since the 2013 accident, when he became unable to perform the work he enjoyed greatly and which he gave up completely after the 2015 accident. He suffered depression as well as panic attacks and claustrophobia. She diagnosed ‘extremely severe major depressive disorder and generalised anxiety disorder, including panic attacks and claustrophobia’,[29] as well as pain management issues. He was poorly motivated, distressed at being unable to manage his pain and normalise his life, and at being unable to work due to his pain.

[28]PCB, 35-40.

[29]PCB, 37.

38  On 10 April 2020, Dr Rahman reported that the plaintiff continued to suffer chronic severe back and neck pain secondary to the 2013 accident, which was aggravated by the 2015 accident.[30] His condition had been poorly controlled despite medication, physiotherapy and psychotherapy. He continued to see a psychologist, but no further tests or specialist medical referral was envisaged.

[30]PCB, 29.

39  On 22 April 2020, Mr O’Brien reported that the plaintiff complained of constant midline lower back pain and right buttock pain, at a level of eight out of 10, which was worsened by bending, walking or standing.[31] His sleep was disturbed. He was depressed and seeing a psychologist regularly. He needed assistance dressing. On examination, Mr O’Brien found a limited range of movement in the lumbar spine, with no clinical evidence of radiculopathy. He concluded that the plaintiff was suffering from severe chronic non-specific lower back and right leg pain, and that this pain was influenced by psychosocial factors. He opined, however, that on the history given, the 2013 accident was the precipitating cause of the plaintiff’s chronic back and right leg pain. He felt that the plaintiff was totally and permanently incapacitated and there was no possibility of returning to any form of gainful employment.

[31]PCB, 59-63.

40  On 27 May 2020, Dr Nigel Strauss, psychiatrist, reported receiving a history from the plaintiff that after the 2013 accident he became nervous as a driver, and to a lesser extent as a passenger, and that he began to suffer nightmares.[32] He was fearful at the scene of the accident. These problems continued until the 2015 accident and worsened after it. He had been seeing a psychologist fortnightly since then. The plaintiff said he had lost confidence, was avoiding people and was withdrawn and unhappy. He was nervous at the scene of both accidents, had intrusive memories of, and nightmares about, each accident, and felt his memory and concentration had declined.

[32]PCB, 71-73.

41  Dr Strauss diagnosed a mild chronic post-traumatic stress disorder and mild adjustment disorder with mixed anxiety and depressed mood. He considered that half of the 8% whole person psychiatric impairment resulting from the 2013 transport accident was secondary to the plaintiff’s physical injuries, and that half of the 6% whole person psychiatric impairment resulting from the 2015 transport accident was secondary to the plaintiff’s physical injuries.[33]

[33]PCB, 76.

42  On 23 June 2020, Mr Ash Chehata, orthopaedic surgeon, reported receiving a history from the plaintiff that, after the 2013 accident, he suffered from neck and back pain and had physiotherapy.[34] He had trouble sleeping, and due to his pain was able to return to work to finish off his jobs only with the assistance of his wife. He had worsening anxiety and depression. After the 2015 accident, his pain worsened, he was unable to return to work in his own business or do any other work. He underwent pain management, but this did not help his symptoms. He was taking Endep and Lexapro for his depression, and Norspan patches, Lyrica, Temazepam and Panadeine Forte for his pain. He had severe back pain and was unable to walk 100 metres. On examination, Mr Chehata found no sciatic nerve compression but some neuropathic style symptoms down the right leg into the front of the thigh and lateral thigh and down into the leg, which may be consistent with an L4/5 radiculopathy. He concluded that the plaintiff was suffering from discogenic pain related to the L4/5 and L5/S1 discs, which all began after the 2013 accident, was aggravated by the 2015 accident and has not resolved, but rather has progressed to a chronic pain syndrome. Mr Chehata noted the presence of psychosocial factors. Mr Chehata concluded that it was the 2013 accident which impacted on the plaintiff’s ability to return to any meaningful employment.

[34]PCB, 91-97.

43  On 25 June 2020, Dr Menz reported receiving a history from the plaintiff of lower back pain and right leg pain after the 2013 accident and that he stopped working in 2014.[35] The plaintiff told him he did not benefit from the branch blocks or sacroiliac injections performed in 2016, and Dr Menz considered that this was unsurprising as these procedures were unwarranted. On examination, Dr Menz found a number of non-organic signs including: significant lumbar pain with axial compression; tenderness to very light touch on the spine; and an inconsistency between straight leg raising and the plaintiff’s ability to sit to 90 degrees informally. He felt that the symptoms complained of were not correlated with the examination findings or the radiology. He concluded that the plaintiff suffered soft tissue injuries to his lumbar spine in the 2013 accident; that these injuries ‘have resolved’ and that there were ‘some psychosocial issues associated with his ongoing symptoms’ but that these lay outside his field of expertise.[36] He noted that the plaintiff had not worked since 2014 and would be unlikely to work again.

[35]DCB, 29.

[36]DCB, 33.

44  In a supplementary report dated 16 July 2020, Dr Menz indicated that he was aware of the 2015 accident when he saw the plaintiff.[37] He noted the general practitioner’s report to the effect that the day after the 2015 accident, the plaintiff complained of an aggravation of his low back pain and also complained of some right hip pain. On this basis, Dr Menz opined that the aggravation of the lumbar spine and the soft tissue injury to the right hip had also resolved since the 2015 accident. He felt that the restrictions described by the plaintiff were inconsistent with his opinion that ‘the aggravation of his lumbar spondylosis would have settled several years ago’ and with the plaintiff’s non-pathological signs.[38] He acknowledged that the plaintiff ceased work in 2014 and concluded that the plaintiff was unlikely to return to any work duties in the future.

[37]DCB, 38-41.

[38]DCB, 40.

Vocational Assessment

45  On 22 June 2020, Ms Mandy Morgan, a human resources consultant of Flexi Personnel,[39] reported to the plaintiff’s solicitors that, based on the medical opinions, the plaintiff is permanently incapacitated for his pre-injury work, and, according to some experts (Mr O’Brien, Ms Kurtoglu) has no work capacity.[40] Given his physical impairment, psychological issues and medication regime, Ms Morgan considered that he would be unable to attend any employment reliably and that given his limited education, poor English, age, work history and lack of computer skills, he was not a candidate for any sedentary work or retraining.

[39]PCB, 105-114.

[40]PCB, 108.

Legal principles

46 The psychological sequelae of an organic impairment may be taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within sub-paragraph (a) of the definition of serious injury under the Act.[41]

[41]TAC v Kamel [2011] VSCA 110, [65]-[66].

47  In cases involving successive transport accidents which each cause injury to the same bodily function, the consequences of injuries cannot be accumulated to assess whether a particular injury is serious.[42]

[42]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 [31]-[35].

48  Rather, it is necessary to delineate the impairment consequences of each injury and to determine whether those consequences meet the narrative test for serious injury.[43] If the first transport accident is the compensable event, the plaintiff cannot succeed merely by showing that he has suffered a serious injury through the combination of the compensable event and a later event. The compensable event must have caused a serious injury.[44]

[43]Ibid.

[44]Rowe v TAC [2017] VSCA 377 [82]-[86].

Findings and reasons

49  I found the plaintiff to be a very straightforward, genuine witness, and I accept without reservation his account of the absence of a history of back pain or restrictions prior to the 2013 accident, and his account of his injury and restrictions following the 2013 accident and the 2015 accident.

50  Prior to the 2013 accident, he was a fit, hardworking, social, positive man who had not suffered lower back pain. He was able to perform a range of domestic activities and enjoyed a number of recreational activities. He worked full time, alone, in his business as a floor sander.

51  The plaintiff’s evidence concerning the consequences of the 2013 accident is consistent with all of the specialist opinion outlined above (apart from Dr Menz, to whose opinion I return below) to the effect that, in the 2013 accident, he suffered an aggravation of pre-existing but asymptomatic degenerative changes in the lumbar spine, particularly at L4-5 and L5-S1, resulting in persisting low back pain, right leg pain, and decreased range of movement, and a complete inability, on account of his pain and restrictions, to work by late 2014. He also suffered some anxiety.

52  I note that, in 2015, Professor Myers found the plaintiff to be genuine, while Dr Doig found no psychosocial issues affecting his presentation, and Dr Weekes was exploring the possibility that the plaintiff’s back and leg pain were due to myofascial or sensitisation with a possible facet joint component.

53  I consider on the evidence that, as a result of the 2013 accident, the plaintiff suffered a long-term impairment of a body function, namely an aggravation of pre-existing but asymptomatic degenerative changes in the lumbar spine, particularly at L4-5 and L5-S1. I find on the evidence that he suffered pain and restrictions as a result of that transport accident such that, by late 2014, he was forced to give up his work as a floor sander, which had been his only occupation since arriving in Australia in 1995.[45] He also suffered anxiety as a result of his pain and restrictions. Given his poor English, limited education, work history as a self-employed floor sander, the likelihood that his work capacity was forever extinguished by the injury to the lumbar spine suffered in the 2013 accident, as well as his persisting pain and restrictions, and the fact that he suffered consequential psychological problems in the form of anxiety, I am satisfied that the pain and suffering and economic loss consequences following the 2013 accident, but prior to the 2015 accident, as outlined above, meet the narrative test for serious injury under sub-paragraph (a) of the definition of serious injury.  

[45]T2.9-12.

54 If I am wrong about this, I consider that, read as a whole, the evidence equally permits the grant of leave for a serious injury under sub-paragraph (a) of s 93(17) of the Act on the basis that the plaintiff’s current state was caused by the 2013 accident. This is because I consider on the evidence that the 2013 accident rendered symptomatic the previously benign degenerative changes in the lumbar spine and caused him persisting pain and restriction of movement, which caused him to stop working, and also caused some psychological symptoms. The 2015 accident merely accentuated the vulnerabilities created by the 2013 accident, and cemented the total incapacity for work which had crystallised in late 2014, while his pain and restrictions continued to have an organic basis (discogenic pain from the L4-5 and L5-S1 discs) but had developed into an organically based chronic pain syndrome.

55  Although a number of medico-legal experts found a psychosocial element to the plaintiff’s presentation, Mr Chehata in June 2020, Mr O’Brien in 2018 and 2020, Dr Mills in 2018, as well as Professor Myers and Dr Doig in 2015 all opined that there was a clear organic basis for the plaintiff’s ongoing lumbar spine and leg symptoms. Each of them opined that the plaintiff’s lumbar spine condition had been set off by the 2013 accident and aggravated by the 2015 accident. Dr Mills and Professor Myers opined that each of the transport accidents contributed to half of the plaintiff’s current impairment of the lumbar spine.

56  I put to one side the reports of Dr Menz for a number of reasons. Firstly, his opinion is out of line with that of Mr Chehata who examined the plaintiff a few days earlier, as well as being out of line with the weight of orthopaedic opinion which found a clear organic basis for the plaintiff’s complaints. Secondly, he concluded from the limited non-organic findings made on examination that there is no organic basis to the plaintiff’s complaints without explaining why that is so. This is inconsistent with the other expert opinion which concludes that there is an organically based condition, such as discogenic pain relating to the L4-5 and L5-S1 discs, which was caused by the 2013 accident, aggravated by the 2015 accident, which has developed into a chronic pain syndrome, and which may be influenced by psychosocial factors. Thirdly, he appears to have ignored all the other orthopaedic opinion concerning the basis of the plaintiff’s complaints. Fourthly, he provided no justification for his conclusion that the plaintiff suffered only soft tissue injuries in each of the 2013 and 2015 accidents. No justification was provided for insisting that because soft tissue injuries routinely resolve within months, the plaintiff’s ongoing symptoms could only be explained by psychosocial factors, rather than by the more likely explanation of discogenic pain resulting from an aggravation of degenerative changes in the lumbar spine. Finally, his conclusion that the 2015 accident aggravated the soft tissue injuries suffered in the 2013 accident is inconsistent with his opinion that the soft tissue injuries sustained in the 2013 accident necessarily resolved within a few months. If they did, there was nothing to be aggravated.

Conclusion

57  In the light of the above findings, it is unnecessary for me to consider the application under sub-paragraph (c) of the definition of serious injury.

58  For the reasons outlined above, leave is granted to the plaintiff to bring proceedings for the recovery of damages in respect of the injury to the lumbar spine sustained in the 2013 accident.

59  I reserve the question of costs.