Yusuf v TAC

[2025] VCC 1423

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-25-01186

DILER YUSUF	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2025
DATE OF JUDGMENT:	2 October 2025
CASE MAY BE CITED AS:	Yusuf v TAC
MEDIUM NEUTRAL CITATION:	[2025] VCC 1423

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMPENSATION

Catchwords:              Serious injury – sub-paragraph (a) of the definition of “serious injury” – injury to the lumbar spine – pain and suffering

Legislation Cited:      Transport Accident Act 1986

Judgment:                  Application granted under sub-paragraph (a)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Stanley SC G Smith	Margalit Lawyers
For the Defendant	S Pinkstone	Hall & Willcox

HER HONOUR:

1The 61 year-old plaintiff, Diler Yusuf, applies for leave to issue common law proceedings for pain and suffering only in respect of an injury to the lumbar spine suffered in a transport accident on 5 July 2019 when the car in which she was a passenger was struck from behind while stationary at traffic lights. The application is made under sub-paragraph (a) of section 93(17) of the Transport Accident Act 1986.

The issues

2The parties agree that the expert medical consensus is that as a result of this transport accident Ms Yusuf has suffered an aggravation of pre-existing but asymptomatic lumbar spondylosis. The defendant says that the Court should prefer the opinion of Mr Terrance Saxby, orthopaedic surgeon, to the effect that the aggravation caused by the transport accident was of a “small degree”.[1] The defendant relies on the very significant consequences of a previous workplace injury to the shoulders and elbows suffered during the course of employment as a machine operator from 2006 which resulted in a cessation of employment in 2008, a settlement of Workcover proceedings in 2012 and the receipt of a disability support pension in 2018. The defendant says that prior to the transport accident, due to her shoulder and elbow injury, the plaintiff suffered constant neck and shoulder pain, had disturbed sleep, had a reduced grip, needed help with all home duties, could not lift weights or dress herself, could not do dishes or wipe down benches, could not write, and had to limit her gardening. She suffered from anxiety and depression secondary to her pain and physical limitations, which required psychological treatment, and her social life and recreational activities were extremely limited. The defendant says that, against this background, the pain and suffering consequences of the lumbar spine injury do not meet the narrative test for serious injury.

[1] Defendant Court Cook (“DCB”) 13.

The hearing

3At the hearing, the plaintiff adopted her affidavits[2] and was cross-examined. The parties tendered court books and made oral submissions. I have considered all of the evidence as well as the submissions of counsel.

[2] Sworn 3 August 2022 and 3 July 2025.

4The plaintiff was born in Cyprus and educated there to Year 12. She worked as a secretary there before migrating to Australia in 1986 at the age of 22. She is married with two adult sons. She was employed as a machine operator at various places in between 1986 and April 1997. From April 1997 she worked for Autoliv Australia as a machine operator. From 2006 onwards she struggled with a bilateral arm injury affecting her shoulders and arms. She ceased employed in December 2008. She settled a WorkCover claim in respect of this injury in 2012. By 2018, she was in receipt of the Disability Support Pension.

5In cross-examination, the plaintiff conceded that her WorkCover injury caused her persistent pain, and that the referred pain to the neck, arms and hands caused her permanent inability to  work, and extensive limitations on her domestic activities as well as trouble sleeping. However, she insisted that she undertook rehabilitation, learned to perform some domestic and gardening activities with modifications and tools, such as extended handles and implements. She was able to vacuum. She was able to plant flowers in her back garden and had a sense of pride in seeing them grow. She also managed a vegetable patch. She learned to manage her pain by alternating activity with periods of rest. In spite of her pain and the anxiety which made her reluctant to take public transport, she was able to continue some gardening and continued walking an hour per day, which she said assisted her mentally in preventing panic attacks, as well as physically. She did not take any prescription medication for her pain, but used Panadol as needed, along with Voltaren gel and a hot water bottle. She also took Effexor for her anxiety and depression.  She was able to see her friends for coffee or lunch once or twice per month.

Medical evidence

6On the day of the transport accident, she saw her longstanding treating general practitioner, Dr John Hodgson[3] and was referred for physiotherapy.

[3] Reports of Dr John Hodgson dated 17 November 2020, 29 March 2023 and 26 April 2025; Letters of Dr John Hodgson dated 9 December 2021 and 23 May 2023.

7She had CT scan of the lumbar spine on 5 October 2020 and was referred to a neurosurgeon, Mr Hui Lau[4] to whom she complained on 12 November 2020 of pain in the right buttock down through the right leg into the foot, worse when sitting. She was more comfortable standing or walking. An MRI on 24 November 2020 was described by Mr Lau as showing multilevel spondylosis particularly at L3-4, L4-5, L5-S1, with bilateral lateral recess stenosis at L4-5 and a left L5-S1 disc bulge, possibly contacting the L5 and S1 nerve roots.[5]

[4] Plaintiff Court Book (“PCB”) 64.

[5] Ibid 65.

8On review with Mr Lau on 23 December 2020 she walked with a limp, complained of great discomfort, and was unable to put much weight on the left leg. Movement of her left leg provoked the gluteal region pain.[6] Mr Lau recommended a CT guided left S1 nerve root injection, which was performed on 10 March 2021. This appeared to give her some relief but the plaintiff noticed more pain on the right side. She had a CT guided right L5 nerve root injection on 30 April 2021, which, by 12 May 2021, had not provided any relief.[7] She reported that her left sided symptoms were returning.

[6] Ibid.

[7] Ibid 66.

9The plaintiff was referred to a pain specialist, Dr Shankar Ramaswamy, whom she saw on 14 December 2021. He reported a transport accident-related  “aggravation of the underlying lumbosacral spondylosis”[8] and noted on review on 15 March 2022 that she was taking Gabapentin 100 mg twice per day. He recommended that she take the medication three times per day.

[8] Ibid 95.

10On 10 February 2022,[9]  Mr Lau diagnosed low back pain and bilateral low limb pain in the form of “left L5/S1 disc herniation with S1 sciatica”[10] caused by the transport accident and recommended bilateral S1 nerve root injections. If the pain and disc herniation persisted, he noted the option of L5/S1 discectomy.

[9] Ibid 64.

[10] Ibid 66.

11On 23 May 2022,[11] Dr Hodgson reported that the plaintiff was struggling with her lumbar pain but was unable to get relief in spite of the treatments she had tried and the specialists she had seen. He considered her to be a stoic person in the face of pain but that her posture and walking were consistent with her “finding all activities of daily living an effort”.[12] He considered that she was socially isolated and that her “enjoyment of life has been very significantly impacted by her back pain that began after the car accident”.[13]

[11] Ibid 79.

[12] Ibid.

[13] Ibid.

12In November 2022, Dr Ramaswamy recommended that the insurer be approached to approve a course of medial branch blocks and radiofrequency treatment.[14]

[14] Ibid 96.

13The plaintiff underwent medial branch blocks and radiofrequency denervation procedures, under sedation, on 4 January 2024, 5 December 2024, and 27 March 2025. She reported some positive impact of these procedures on her leg pain[15] and Dr Ramaswamy noted on 12 May 2025 that these procedures could potentially provide relief for six months to two years.[16]

[15] Ibid 160.

[16] Ibid 122.

Pain and suffering consequences

14The plaintiff’s unchallenged evidence concerning the pain and suffering consequences of the transport accident was to the following effect. Although she had significant limitations flowing from her workplace injury, she was able to modify the way she did things. She was able to grow flowers and vegetables, to socialise with friends on occasions, and to walk an hour per day. Her sleep was interrupted by pain and she had to seek a comfortable position. Since the transport accident, the quality of her life has worsened significantly. She takes Gabapentin daily for her persistent pain which is a stabbing pain going through the buttocks and into the foot, and which is worse than her shoulder and arm pain. She has undergone extensive investigations and treatment by specialists, along with a number of procedures. Her sleep is further disturbed by an additional pain – lumbar pain and sciatica. She now has to sleep on her side with a pillow between her legs to avoid pressure on the spine, and gets woken two to three times per night by her back pain. Her sitting, standing and walking tolerances have been badly affected by her back and leg symptoms. She can no longer sit for coffee with friends. She cannot bend to tend her garden, and has not grown anything this year. She cannot walk more than 15 to 20 minutes at a time and has lost the ability to relieve her stress symptoms by walking an hour per day, which she had been told to do by her psychologist.

15Although she travelled to Cyprus to see her sick mother in 2022 and 2024, she found the travel very difficult due to her back pain, and spent the time in Cyprus caring for her mother.

Findings and reasons

16I found the plaintiff to be an honest, meticulous witness. Her credit was not challenged. She had not suffered any ongoing back pain prior to the transport accident. I note that a number of examining or treating doctors recorded[17] that she presented as a genuine, honest patient, and without any exaggeration or abnormal illness behaviour or non-organic features. I accept her evidence concerning her pre-injury situation in relation to the limitations associated with her workplace injury. I accept without reservation her evidence concerning the impact of the transport accident on her life, which is consistent with her complaints to doctors and their examinations, diagnoses and treatments of her.

[17] Ibid 98, 87, 161, 147.

17The contrast between her situation before and after the transport accident is very significant. As noted above, although she was not working, suffered from anxiety and panic attacks, had a limited social life and restrictions in the use of her arms, suffered pain and interrupted sleep and was limited in the activities she could do around the house, as well as outside it, she was able to modify her activities, use tools to pursue her gardening hobby, maintained social connection through coffee with friends, was able to walk one hour per day (which helped her mental state as well as her physical fitness) and did not require prescription medication for her pain. She did not suffer from any back pain.

18After the transport accident, in which she sustained a permanent aggravation of her pre-existing but asymptomatic multilevel spondylosis, she has required daily strong prescription medication in the form of Gabapentin, physiotherapy, neurosurgical evaluation, treatment by pain management specialists including undergoing a number of CT guided nerve root injections as well as medial branch blocks and radiofrequency denervation. The best that can be expected from her most recent procedure is that the effects may last between six months and two years. Her sciatic pain is a sharp stabbing pain. Her sleep is now further interrupted by a new pain of a different kind, which requires further modification of her posture. Her lumbar symptoms prevent her from doing any gardening, which she loved, and from walking an hour each day, which she enjoyed and relied upon to help manage her anxiety. Her lumbar symptoms have reduced her sitting and standing tolerances to the point where she can no longer socialise with friends over coffee. These losses are more significant to her given the limitations under which she managed to function prior to the transport accident.

19Taken together, I consider that the pain and suffering consequences of the permanent impairment of the lumbar spine, as outlined above, which resulted from the transport accident, are more than considerable when compared with other cases in the range of impairments.

Conclusion

20Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the injury to the lumbar spine suffered as a result of the transport accident on 5 July 2019.

21I reserve the question of costs.