Zafar v TAC
[2025] VCC 683
•2 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-04070
| SALMAN ZAFAR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2025 | |
DATE OF JUDGMENT: | 2 June 2025 | |
CASE MAY BE CITED AS: | Zafar v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 683 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – spine injury – aggravation - credit
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Seckold v Transport Accident Commission [2025] VSCA 18; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Taylor v Transport Accident Commission [2022] VSCA 269
Judgment: Leave granted to commence a common law proceeding
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan SC with Mr G Pierorazio | Arnold Thomas and Becker |
| For the Defendant | Mr D Masel SC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1As an unverified fact, there are two types of people in this world; those who regularly attend doctors and those who do not.
2Dr Salman Zafar (“the plaintiff”), falls into the former category.
3As I shall set out, for several years before he was involved in a motor vehicle accident, the plaintiff attended health practitioners with complaints of pain and impairment to various parts of his body, including his neck and lower back.
This proceeding
4This is a “serious injury” application brought by the plaintiff pursuant to s.93 of the Transport Accident Act 1983 (Vic) (“the Act”) in which he claimed to have suffered a serious physical injury to his spine arising out of an accident that occurred on 8 December 2022 (“the accident”).
5In the context of pre-existing symptoms in his neck and back, the plaintiff relied upon an aggravation injury to the spine as the “serious injury”.
6Because of his pre-accident medical history, one of the main issues to resolve is the extent of any ‘aggravation’ injury to the plaintiff’s spine and whether that injury continues to cause impairment consequences that are “serious” in accordance with established legal principles arising from cases such as Petkovski v Galletti (“Petkovski”).[1]
[1] [1994] 1 VR 436
7The case was conducted in ‘the usual way’. The parties tendered medical reports, clinical records and other documents from court books. The plaintiff’s tender included several affidavits affirmed by him, as well as an affidavit from his wife. The plaintiff was required for cross examination and gave oral evidence. I have considered all the tendered evidence, the transcript of the plaintiff’ oral evidence, and the parties’ submissions. I shall refer to that material in these reasons to the extent that it is necessary to explain my decision.
8The oral evidence, tender and parties’ submissions were completed in less than a day, suggesting that this was a straightforward ‘serious injury application’. But, the short hearing masked a complex case. The complexity should be clear by the length of these reasons, which are much longer than I would ordinarily provide in a straightforward serious injury application.
The plaintiff’s contentions
9First, his senior counsel acknowledged that ‘over the years’ before the accident the plaintiff had suffered an arthritic condition and pain because of a degenerative spine condition.
10Second, it was submitted that because of the accident, the plaintiff had suffered an injury by way of aggravation of underlying degenerative change in the cervical and lumbar spine, with radicular pain (“the injury”).
11Third, it was submitted that the consequences of the injury included the need for repeat cervical and lumbar surgery.
12Fourth, it was submitted that post-surgery the plaintiff had been left with accident and injury related impairment consequences, including ongoing radicular pain, interference for day-to-day activity, and a restriction for work that caused a loss of earnings.
13Therefore, overall, the plaintiff submitted that the additional impairment consequences caused by the injury produced sufficient ongoing impairment consequences to meet the well-known “very considerable” test.
The defendant’s contentions
14First, the defendant submitted that any injury from the accident was at best a soft tissue injury to the spine, that was not the cause of any additional or ongoing impairment.
15The defendant submitted that any accident-related injury was short term, had effectively run its course and any ongoing symptoms (including the need for surgery) were explained by reference to the progression of the underlying degenerative conditions affecting the plaintiff’s spine.
16Second, the defendant contended that even if there was an ongoing accident-related aggravation, the plaintiff had failed to prove a “very considerable” consequence from any aggravation injury to his spine.
17In that regard, the defendant contended that the medico-legal opinions relied on by the plaintiff did not assist the case for the plaintiff, because the doctors had been asked and answered questions about “material contribution”, which was the wrong test based on the applicable legal principles, such as set out in Petkovski.
18Third, the defendant raised as an issue the credit or reliability of the plaintiff. It described him as a “sophisticated person, highly educated”,[2] and in that context submitted that he had gone out of his way to downplay his pre-accident symptoms. Therefore, the defendant submitted that the plaintiff’s claim that things had been all good before the accident, and all bad after, should not be accepted.[3] It highlighted deficiencies in the plaintiff’s evidence, including about his pre-accident medical history and his earnings before and after the accident, to bring his credit or reliability into issue.
[2] Transcript (“T”) 85, Line (“L”) 12
[3] T 85
19Overall, the defendant contended that any accident-related injury was a short-term soft tissue injury, was not the reason the plaintiff had surgery, and his unreliability meant that he had failed to sufficiently identify what additional impairment was caused by the accident.
Issues for resolution
20The issues for resolution are complex.
21Based on the evidence and the parties’ contentions, the following issues arise for resolution.
22First, what was the pre-accident condition of the plaintiff’s spine.
23Second, what was the extent of any aggravation injury to the plaintiff’s spine because of the accident.
24Third, does any aggravation injury continue to be productive of impairment consequences and if so, are such impairment consequences “serious” in the sense of producing a “very considerable” impairment consequence.
25Fourth, but relevant to the previous issues, an assessment of the reliability of the evidence from the plaintiff.
The plaintiff’s background
26The plaintiff is a now 48-year-old married man. Born and educated in Pakistan, he obtained qualification in medicine, before he migrated to the United Kingdom, where he completed his medical training and worked as a general practitioner.
27In 2014, the plaintiff migrated to Sydney, Australia, where he continued to work as a general practitioner.
28The plaintiff worked as a general practitioner on a sub-contract arrangement at medical clinics in Sydney, before he moved with his family to live in Melbourne, in approximately May 2022. In Melbourne he resumed similar sub-contract employment as a general practitioner.
29In both Sydney and Melbourne, the plaintiff consulted doctors for several medical conditions including for assessment of pain in his neck and back. Often the plaintiff sought treatment from general practitioners at medical clinics where he worked.
30As this is an aggravation case, it is convenient to commence by looking at the evidence about the plaintiff’s health before the accident.
The plaintiff’s affidavit evidence of pre-existing health issues
31About any pre-accident health issues, including any symptoms in his neck and back, in his first affidavit the plaintiff said:
“In terms of my health prior to the motor vehicle accident, I had in the past been diagnosed as suffering from rheumatoid arthritis. In this regard, I had symptoms of pain in my feet, and sometimes in my hands and shoulders. I also had symptoms in my back brought on, for example, when I was bending. Having said that, however, I did not have any referred symptoms going down either my arms or down my legs. I was treated with an anti-inflammatory, Celebrex, which managed the condition.
I saw a rheumatologist with respect to the rheumatoid arthritis, Dr Gotis-Graham, on 9 December 2016.
I also saw a neurologist, Dr Hassan, with respect to the rheumatoid arthritis on 1 December 2020.
Just before then, I underwent a CT-scan in terms of my brain and cervico-thoracic spine on 29 November 2020. This revealed a C5/6 disc protrusion with right C6 nerve root compromise, however, as I was not suffering from any clinical symptoms in this regard, no treatment was proposed.
In addition, on 20 December 2020 I underwent an MRI of my lumbar spine which revealed a disc protrusion at L3/4 impinging on the right L3 nerve root in addition to a broad-based disc bulge at L4/5 although again due to the fact I was not suffering from any referred pain down my legs, no further treatment was proposed.
In any event, none of the above had any significant impact on either my ability to work or engage in my day to day activities both recreational and domestic.”[4]
[4]Affirmed 15 March 2024, Plaintiff’s Court Book (“PCB”) 9
32Despite swearing three affidavits, that is the extent of any useful affidavit evidence from the plaintiff about his pre-accident health. The thrust of it was that he had in the past suffered symptoms from rheumatoid arthritis and had a CT scan of his cervical spine and an MRI scan of his lumbar spine, but was not significantly impacted by any impairment referrable to the radiology findings.
What is the objective evidence of the plaintiff’s health before the accident
33In the context of the plaintiff’s affidavit evidence and before setting out his oral evidence, it is useful to look at the objective evidence about the plaintiff’s health before the accident.
Treatment in Sydney
34A clinic in Sydney where the plaintiff worked and sought treatment for several health issues is ‘Doctors of Preston’ (“DOP”). The notes of that clinic were tendered.
35Keeping in mind that the plaintiff migrated to Australia sometime in 2014, the first documented attendance at a medical practitioner in Australia is on 22 September 2015 at DOP, when the plaintiff presented with chest palpitations, but where the doctor recorded: “also long standing back pains. fxh of ankylosing spondylosis”.[5] This is the first documented description to a doctor in Australia of any “spine” issue.
[5] Defendant’s Court Book (“DCB”) 88
36Next, the plaintiff consulted at DOP on 12 October 2015,[6] who recorded: “Left shoulder pain for last 3/12, getting worse in last few days no pins or needles, no numbness, R handed hx of C4/5 disc prolapse but this pain is different”.
[6] DCB 87
37The plaintiff re-attended at DOP on 14 December 2015 with what was recorded as tingling and pins and needles in hands “ongoing for last 3-4 years at least”.[7]
[7] DCB 86
38The plaintiff was then referred to a neurologist for specialist medical assessment for possible carpal tunnel.
39On 22 December 2015 the plaintiff attended Dr Bassel Hassan, consultant Neurologist, for symptoms in his upper limbs. Dr Hassan said at that time that the plaintiff had symptoms consistent with bilateral carpal tunnel.[8]
[8] PCB 81
40On 25 November 2016 the plaintiff again consulted a doctor at DOP, who recorded his description of morning stiffness and joint pains in the upper and lower limbs, for which he was referred for assessment.
41Next, on 9 December 2016, the plaintiff attended Dr Ian Gotis-Graham, Rheumatologist and Consultant Physician, for assessment of what was described by Dr Gotis-Graham as inflammatory arthritis, said to predominately involve the left shoulder and hips.[9]
[9] PCB 85-86
42The plaintiff continued to attend at DOP with descriptions of pain or impairment in several parts of his body. The clinic’s notes include records that the plaintiff himself made, for example he created an entry on 27 June 2018[10] and recorded actions relating to L3/L4 and facet joint arthropathy.
[10] DCB 75
43The plaintiff continued to consult Dr Gotis-Graham through until August 2018, until there was a hiatus in consultations until he saw the plaintiff again on 25 September 2020.[11]
[11] PCB 91
44In a comprehensive report to the plaintiff’s solicitors dated 14 January 2025[12] Dr Gotis-Graham said the plaintiff returned on 25 September 2020, with worsening pain involving the left buttock region and the need for a walking stick. He said the plaintiff had severe left plantar fasciitis and left lateral hip pain which would wake him at night and that he had been using Prednisolone 10md/daily since early 2020.[13]
[12] PCB 89
[13] PCB 92
45Following the assessment in September 2020, Dr Gotis-Graham opined that the plaintiff had psoriatic arthritis and low back pain due to an exacerbation of lumbar spine degenerative disease.[14]
[14] PCB 92
46Shortly after returning to see Dr Gotis-Graham, on 20 September 2020 the plaintiff had unrelated surgical procedures performed by Dr Govind Krishna, General and Upper GI Surgeon. According to the operation report,[15] those procedures included a laparoscopic cholecystectomy (removal of the gall bladder).
[15] PCB 166
47Dr Gotis-Graham re-assessed the plaintiff on 22 October 2022 and recorded that low back pain was a major problem. He said he could not attribute the plaintiff’s unusual symptoms of tremors in his hands, and urinary and faecal incontinence, to the inflammatory arthritis and referred the plaintiff back to Dr Hassan.[16]
[16] PCB 92
48The plaintiff re-attended Dr Hassan on 5 November 2020, who wrote back to Dr Gotis-Graham and said that the plaintiff had presented with “multiple neurological symptoms”[17] that he described as “quite unusual”.
[17] PCB 82
49Dr Hassan next reported to Dr Gotis-Graham by letter dated 1 December 2020 and said that an MRI scan had revealed “canal stenosis at C4/5 but no compressive myelopathy” and that the plaintiff was “keen to have lumbosacral spine MRI for persistent lower back pain” which Dr Hassan said he was not against although he said the plaintiff “does not have any radicular type symptoms”.[18]
[18] PCB 84
50Dr Md Masum Alam was one of the doctors at DOP, who treated the plaintiff for back pain. In a report dated 21 February 2025[19] Dr Alam said he treated the plaintiff between May 2021 and May 2022 but only saw the plaintiff for back pain on one occasion on 23 July 2021, described as “some back pain” that the plaintiff “was managing well with the use of Meloxicam (Mobic) 15 mg and physiotherapy as needed”.
[19] PCB 117
51In fact, Dr Alam’s clinical note of 23 July 2021 recorded: ”back and cervical issues – managing with Mobic and physio”.[20]
[20] DCB 52
52Dr Gotis-Graham reported back to a Dr Md Eftekharuddin at DOP on 21 July 2021[21] saying that over the previous four months the plaintiff: “has had constant pain in the neck and low back as well as many joints”.[22] Dr Gotis-Graham set out a treatment plan, including for a right C6 perineural steroid injection and steroid injections into the L4-5 and L5-S1 facet joints bilaterally.
[21] DCB 109
[22] PCB 87
53The last attendance on Dr Gotis-Graham was on 21 July 2021.[23] The treatment and diagnosis to then was summed up by Dr Gotis-Graham in his report to the plaintiff’s solicitors, dated 14 January 2025.[24] He said at the last assessment the plaintiff had significant low back pain, due to degenerative disc disease involving the L3-4 and L4-5 discs as well as the L4-5 and L5-S1 facet joints, for which he had arranged steroid injections, but he felt the right L3 nerve root compression was not symptomatic. Regarding symptoms in the neck, he said the plaintiff had symptoms of right C6 nerve root compression, for which he had organised a steroid injection, but he also felt that the C5-6 compression was not symptomatic.[25]
[23] PCB 89
[24] PCB 89
[25] PCB 93
54The plaintiff proceeded to have a CT guided lumbar nerve root injection on 21 July 2021[26] and a CT guided cervical nerve root injection on 30 July 2021.[27] The reports of those procedures[28] recorded under the heading of ‘clinical notes’ “Bilateral L3 radiculopathy”. It is unclear if those reports refer to an actual finding of radiculopathy or an unconfirmed diagnosis as behind the need for the injections. Overall, it appears to be the latter.
[26] PCB 253
[27] PCB 254
[28] PCB 118-119
55Shortly after having the CT guided injections, the plaintiff apparently underwent a gastric sleeve surgery that was performed by Dr Krishna. There is no report of that surgery and no evidence about it from Dr Krishna. The link between that surgery and any symptoms in the plaintiff’s spine, or any effect on such symptoms, is unclear. That procedure was not referred to in the plaintiff’s affidavits.
56As I shall get to, in his oral evidence the plaintiff said that the main thing that made a difference to his pain during 2021-2022 was losing 35 kilos because he had the gastric sleeve and that made his “pain a lot better”.[29] That is uncorroborated evidence. The plaintiff’s wife also said nothing about the gastric sleeve procedure in her affidavit.
[29] T 61, L 26-31
57Regardless, in the approximately seven years before moving to Melbourne, the plaintiff had attended general practitioners and specialists for a variety of physical symptoms or conditions, including symptoms of neck and back pain. By July 2021 he was sufficiently symptomatic such that he had undergone CT guided injections in both the lumbar and cervical spine. Objectively there were some complaints of referred symptoms into the upper and lower limbs, but no confirmed diagnosis of radiculopathy.
Treatment in Melbourne before the accident
58After moving to Melbourne in May 2022 the plaintiff soon sought treatment for ongoing back pain, so perhaps the gastric sleeve procedure did not make the back pain a lot better?
59On 5 July 2022 the plaintiff attended as a patient with Dr Ashish Mathur at a clinic where he worked called MedicFirst Saltwater Coast. In the notes of that consultation Dr Ashish Mathur recorded a history including of rheumatoid arthritis.[30]
[30] DCB 90
60Then at a consultation with Dr Mathur on 5 October 2022 the notes included a history of a cervical disc prolapse.[31]
[31] DCB 91
61Next, the plaintiff had a telehealth consultation with Dr Mathur on 7 December 2022, where the notes recorded “chronic low back pain”.[32]
[32] DCB 92
62As an overview of the treatment and diagnosis, in a report to the plaintiff’s solicitors dated 7 February 2025, Dr Mathur said that the plaintiff had commenced attending the Medic First Saltwater Coast Clinic from 22 July 2022. Dr Mathur described a reported pre-existing history of rheumatoid arthritis associated chronic neck and back pain, which he understood to be well controlled with Celebrex and Prednisolone as advised by the plaintiff’s rheumatologist.
63But, Dr Mathur also said in his report that there were no symptoms of radicular pain prior to the accident.[33] I take that to be a reference to radicular pain from the lumbar spine. His opinion about that is like Dr Gotis-Graham’s.
[33]PCB 111
Pre-accident radiology
64Before the accident, radiological investigations had been arranged, which reported changes in both the plaintiff’s cervical and lumbar spine. But the clinical significance of those changes was uncertain for an explanation of any referred or radicular type symptoms in the upper or lower limbs.
65For example, an MRI of the plaintiff’s lumbar spine was performed on 14 June 2018 and said to demonstrate findings of “disc desiccation with disc bulges at L3/4 and L4/. There is a right para and extraforaminal right L3/4 annulus tear and disc protrusion with minimal contact to the right L3 nerve root”.[34]
[34] PCB 238
66A subsequent MRI of the lumbar spine was performed on 20 December 2020 and concluded that there was a “L3-4 right para and extra foraminal annulus tear and focal disc protrusion impinging on the right L3 nerve root” and a “Minimal L-4 disc bulge without neural impingement”.[35]
[35] PCB 248
67Then on 19 July 2021 a report of an MRI of the lumbar spine[36] concluded that the L3-4 findings were “stable”, that there was slight progression of the left L3-4 findings but “no nerve root impingement”, “a stable low-grade left para foraminal L4-5 disc bulge without neural impingement” and facet joint arthropathy “particularly at L4-5”.
[36] PCB 249
68Next, for example, an MRI scan of the plaintiff’s cervical spine was performed on 1 October 2014 and reported a finding that there was “disc herniation at C5/C6, with associated right foraminal narrowing and potential impingement on the C6 nerve root”.[37]
[37] PCB 232-233
69Then on 29 November 2020[38] a report of an MRI of the cervical spine concluded that there was “C5-6 paracentral and paraforaminal disc protrusion on the right side with hemicord compression and right C6 root compression” and “T7-8 annulus tear and disc protrusion with mild cord compression”.
[38] PCB 246
70Next, on 19 July 2021 a report of an MRI of the cervical spine described the previously reported radiological change at C5-6 but that there had been “some reduction in the degree of cord compression when compared to the previous study”.[39]
[39] PCB 249
71In short, the plaintiff by 19 July 2021 had radiologically demonstrated changes at L3-4, L4/5 and C5/6, with some radiologically demonstrated evidence of ongoing C6 nerve root impingement, but at that time no reported impingement of the lumbar nerve roots, despite an earlier report of such findings.
X-ray reported 7 December 2022
72The report of the x-ray of 7 December 2022 described multi-level low-grade disc degeneration, severe facet joint arthrosis at L4/5 and subtle grade 1 degenerative spondylolisthesis. The radiologist suggested CT correlation, particularly if there was lower limb symptoms or radiculopathy.[40]
[40] PCB 255
73The report of the 7 December 2022 effectively confirmed the pre-existing changes in the lumbar spine.
74There is an obvious limitation in drawing conclusions from the report of an x-ray, for a consideration of earlier reported CT and MRI findings.
Conclusions from the objective evidence before the accident
75Based on the objective evidence from DOP, Dr Hassan, Dr Gotis-Graham, Dr Mathur and the reports of radiological examinations, the plaintiff’s own affidavit evidence was incomplete and unreliable.
76The plaintiff’s affidavit evidence cannot be considered in isolation, and I must consider the whole of the evidence. Nevertheless, for an application brought by originating motion, his affidavit evidence is essentially his evidence in chief. Notable is that the second and third affidavits affirmed by him did nothing to rectify the deficiencies in his first affidavit.
77The defendant is correct to describe the plaintiff as a sophisticated witness. This is not a situation of the unsophisticated witness where deficiencies in the affidavits can be explained away by a lack of education, or the drafting skills of lawyers, or some innocent misunderstanding.
78For an assessment of the seriousness of an injury the reliability of the plaintiff is often crucial to the result. In my view, that is especially so where the Court is asked to compare a situation before and after an accident for a claim based on an aggravation injury.
79Because the plaintiff’s affidavit evidence is unreliable, the objective evidence is important. Based on that evidence as set out, the plaintiff had long-standing back and neck pain, for which he had undergone radiological and specialist assessment, leading up to the attendance on Dr Mathur on 7 December 2022, for “chronic low back pain”.
80In addition, the plaintiff had at times described symptoms in both the upper and lower limbs. He had CT guided nerve injections in July 2021 and at least the cervical injections appear to have been aimed at relieving referred pain from C6.
81But consistent with the opinions from Dr Gotis-Graham and Dr Mathur, there is no objective evidence of any true radicular symptoms (sciatica) in the lower limbs from the pre-existing lumbar degeneration.
82For about 18 months before the accident, there is no objective evidence showing that the plaintiff made complaints of what could be described as ongoing neurological symptoms in the upper or lower limbs.
83The plaintiff had ongoing pain in his neck and low back as of 7 December 2022. The evidence supports a conclusion that the plaintiff remained symptomatic from degenerative disease affecting his spine. Indeed, this is consistent with the way his case was presented as an aggravation case.
84I accept the opinions from Dr Gotis-Graham. With the advantage of treating the plaintiff for about five years, he said that before the accident the plaintiff was symptomatic in the neck, including from right C6 nerve compression, for which he had been recommended to have a nerve root injection. Dr Gotis-Graham also said the plaintiff was symptomatic in his lumbar spine from degenerative disease but was not symptomatic because of any reported radiological changes involving the lumbar nerve roots.
85Regardless of the cause, the plaintiff had reported chronic pain in his neck and back, with descriptions of referred pain. At times he presented as significantly impaired, for example reference is made to him requiring a walking stick.[41] Even if the walking stick was needed for conditions affecting his hip or feet, the fact remains that he was then impaired.
[41] PCB 92; 106; 110
86The pithy description by the plaintiff in his affidavits about his pre-accident health is unsatisfactory. I accept the defendant’s submission that the plaintiff’s credit or reliability is a relevant consideration to the result in this proceeding.
87Even if the plaintiff’s credit has been impugned, I must still consider the whole of the evidence. But because of the deficiencies in his affidavit evidence, I consider that I should be slow to accept the unverified evidence from the plaintiff.
Spine surgery
88Slightly out of order, but in keeping with what was revealed in the pre-accident evidence, before December 2022 there had never been a suggestion of the need for surgery to either the cervical or lumbar spine.
89On 9 August 2023 the plaintiff underwent surgery by way of a bilateral L4-5 foraminotomy and decompression of bilateral L5 nerve roots.
90Then on 5 December 2023 the plaintiff underwent further surgery by way of L3-L4 artificial disc replacement and anterior lumbar interbody fusion of L4-L5.
91On 9 January 2024 the plaintiff underwent surgery by way of C5-C6 artificial disc replacement.
92Pausing, for this proceeding the defendant submitted that the need for surgery was because of the underlying and unrelated degenerative change to the spine.
93Pausing again, even if the surgery was needed for any aggravation injury, the defendant further contended that the plaintiff had a good result from surgery and his impairment consequences post-surgery were less than the objective impairment consequences before the accident.
The accident
94This brings me to the point in the narrative to return to the events of 8 December 2022 and the accident.
95As luck would have it, the accident occurred as the plaintiff was driving home from the x-ray of his lumbar spine that had been arranged by Dr Mathur on 7 December 2022. That fact alone highlights the issue of the identification of the relevant injury and impairment consequences caused by the accident.
96The accident was a rear end collision in which the plaintiff’s Audi Q7 was hit from behind by a Nissan Pulsar. The amount of force involved in the accident, and whether such force could produce a lasting injury to the spine, is one of the subplots in this proceeding.
97In his first affidavit sworn 15 March 2024[42], the plaintiff gave a brief description of how the accident happened. He said he was in his Audi Q7 wagon, stationary at a set of traffic lights, when he was then hit from behind by a Nissan Pulsar sedan. He described the immediate onset of pain in both his back and neck, and the development of pain that radiated down both legs.
[42] PCB 8
98The plaintiff swore a second affidavit on 12 March 2025[43] which said nothing more about the accident. Then in a third affidavit also sworn 12 March 2025[44] the plaintiff said that the accident occurred when he was driving his wife and son home having done some shopping but that “in addition to this trip I had also undergone an x-ray to my lumbo-sacral spine as referred by my general practitioner Dr Mathur”.[45]
[43] PCB 29
[44] PCB 36
[45] PCB 37
99The plaintiff was coy in his affidavits when describing the circumstances of the accident. He needed three bites of the ‘affidavit apple’ to acknowledge that he was driving home from a scan of his low back when the accident occurred.
100In support of the contention that the accident involved significant force, the plaintiff tendered a bundle of photos depicting the damage caused to the rear of his Audi Q7. The photos show damage to the left rear of the vehicle, including the rear bumper and side panel to the rear wheel arch.[46] In what is very much a lay assessment, the rear of the plaintiff’s car was obviously damaged, but it was not badly damaged.
[46] PCB 299
101The plaintiff gave oral evidence about the accident. He was cross examined on the tendered photographs. He agreed that the airbags in his vehicle did not deploy, he was able to get out of his car, exchange details with the other driver, and drive his car after the accident.[47]
[47] T 40, L 24-31
102Amongst the evidence is a statement from the driver of the Nissan Pulsar that hit the plaintiff’s car, Wei Heng Kao (“Kao”) given on 30 April 2024.[48] Kao described how he had been affected by sun glare, saw the plaintiff’s vehicle at the last minute and hit it from behind. Kao described the impact as “minor” and estimated his speed at approximately 30 kilometres per hour at the time of impact.
[48] PCB 322
103I am not sure what Kao meant by minor. Again, as a lay assessment, hitting a vehicle from behind without any braking, or minimal braking, at a speed of about 30 kilometres per hour, is not what I consider to be minor. This was no ‘love tap’.
What is the contemporaneous evidence of symptoms after the accident?
104The first documented attendance for treatment after the accident is an attendance on Dr Mathur on 12 December 2022. In the note of that attendance, Dr Mathur recorded –
“MVA-8.12.2022
was driving car wearing seat belts-wife in back seat,son in front seat
car was stationary at traffic light-rear ended by another car at 6o km/hr
whiplash mechanism of injury
no impact to head/sternum
damage to car-boot ,bumper damaged
other car probable write off
now c/o neck pain with radulupoathy
worsening back pain-h/o spondylolisthesis.
refer imaging
may make TAC claimDiagnosis:
MVAReason for visit:
MVAActions:
Imaging request printed to I-MED: MRI Ls spine and cervical spine. (back pain post MVA neck pain with radiculopathy)
Letter printed.
Letter written re. Attendance Certificate Electronic.E-mail sent to [EMAIL ADDRESS], Subject - BPS Letter - Dr Salman Zafar.”[49][49] DCB 92-93
105As recorded, Dr Mathur arranged an MRI of the plaintiff’s spine.
106The plaintiff returned to the clinic on 6 January 2023, where he saw Dr Rakesh Bhaskar. The note of that attendance reveals that he and Dr Bhaskar did not hit it off, and is set out as follows:
“Patient has come with requests which he is trying to impose. Being a doctor he is requesting referral which I dont know why it is for. He is a GP and he is trying to direct me what to do. Then patient requested if it was better for him to another doctor and left the room.”[50]
[50] DCB 93
107Therefore, the same day the plaintiff went back to the clinic and saw Dr Firas Alhamdani, who referred him to a neurosurgeon, Mr Yagnesh Vellore, and to a chiropractor, Mikael Lindstedt.[51]
[51] DCB 94
108Dr Alhamadani’s referral letter to Mr Vellore was mostly a reproduction of his clinical note, but it did add by way of history “worsening back pain-h/o spondylolisthesis”.[52]
[52] DCB 162
109There is no report from the chiropractor. Instead, the plaintiff tendered the note of attendance with Mr Lindstedt of 6 January 2023.[53] The note of attendance recorded a description of being hit at 60 kmph in the accident, the immediate onset of neck pain and increasing low back pain after 6 hours.
[53] PCB 351
110There is no evidence of the plaintiff attending any doctor or health practitioner until he re-attended Dr Mathur on 9 June 2023, who recorded back pain with left sciatica and referred the plaintiff to a neurosurgeon. For some unexplained reason, at that stage the plaintiff had not proceeded with the referral to Mr Vellore.
111Next, the plaintiff consulted Mr Tiew Han, neurosurgeon, by telehealth on 24 July 2023. Exactly how that consultation came about is unclear as highlighted by the fact that Mr Han wrote directly back to the plaintiff as follows:
“Dear Salman
RE: Dr Salman Zafar [DOB] [ADDRESS] [MOBILE NUMBER]
Just a note about our consultation carried out via Tele health COVID19 on 24 July 2023. You mentioned your pain has deteriorated with severe left sided radiculopathy with shooting pain that keeps you awake at night. You have to use a walking stick from time to time. The pain radiates from your back down the left leg and the entire foot can become numb. Additionally you have numbness in both your hands at night. Lying flat in bed on your back can bring on pain in your neck but no radiculopathy in your arm. You do have ongoing lower back pain and pain going down the left leg at night. Your back pain is quite severe on top of the radiculopathy which is also severe. The pins and needles in the hands occur mainly at night and during the day it is not too bad. You already had a number of steroid injections performed on your lower back and the last one being 2 weeks ago. Your back pain settled for 5 hours but the radiculopathy did not.
The whole body bone scan has shown up take in the L4/5 facet joints consistent with facet arthropathy. You have a Grade 1 spondylolisthesis on plain X-rays both inflexion and extension views. There is no appreciable radiological change on functional views with regards to the spondylolisthesis at L4/5.
The MRI scan of the brain did not show any convincing demyelination and the MRI scan of the cervical spine has revealed a prolapsed disc at CS/6 with compression on to the C6 nerve root. This could explain your ongoing neck pain.
The lumbar spine has revealed L4/5 canal stenosis and bilateral lateral recess stenosis with contact and compression on to the LS nerve roots bilaterally. Obviously the left side is severe enough to cause radiculopathy.
We discussed about ongoing management options. Given that you have exhausted the conservative options surgical intervention would be necessary. We first discussed about decompression alone at L4/5 on the left side but this would normally relieve the leg pain but not necessarily the back pain. To relieve the back pain you may have to consider a lumbar fusion and especially taking into account the presence of spondylolisthesis.
Additionally you want to consider a bilateral carpal tunnel release and we decided to perform a right sided decompression first.
You also wanted to have carpal tunnel release and lumbar spine surgery performed under the same anaesthetic but technically I think it is better to have them done separately.
I propose surgery to the right carpal tunnel first followed by lumbar surgery a day or two later.
You were initially happy to go ahead with decompression alone but having spoken to you further you have decided to consider an L4/5 lumbar fusion. I think in the presence of significant facet arthropathy and bilateral foraminal narrowing it is probably better to consider a fusion at this level.
We could consider decompressing the left carpal tunnel at a later time.
As far as work is concerned you will probably need 2 to 3 weeks away from work and possibly more if you have ongoing back pain related to the surgery which will normally settle with the passage of time.
It will take 6 to 12 months for the bone to fuse and during that time you should avoid heavy repetitive bending and twisting to the lower back. You have decided on having surgery in early August and you are planning to take some time off from work following the surgery to recover.
Yours sincerely
DICTATED BUT NOT SIGHTED
Tiew F Han
Neurosurgeon”.[54]
[54] DCB 111-112
112On 27 July 2023 Mr Han wrote to a neurologist about tests for carpal tunnel. He wrote:
“Dear Zelko
RE: Dr Salman Zafar [DOB] [ADDRESS] [MOBILE NUMBER]
This GP who works in Point Cook has bilateral hand numbness especially at night. The little finger is probably more numb than the thumb and he claims to have weakness in the first dorsal interosseous. Initially I thought he had bilateral carpal tunnel syndrome but now he feels that he has ulnar neuropathy as well.
Two years ago he had a nerve conduction study performed in Sydney which apparently showed normal conduction. Additionally he has a CS/6 disc protrusion on the right side that could be irritating C6 nerve root.
I suspect his problem could be peripheral nerve entrapment. Could your secretary contact him directly to arrange an appointment please be made as soon as possible.
Yours sincerely
DICTATED BUT NOT SIGHTED
Tiew F HanNeurosurgeon”.[55][55] DCB 113
113Interestingly, Mr Han was concerned about ongoing carpal tunnel, but there is no mention of that anywhere else.
114The plaintiff then had the first lumbar surgical procedure with Mr Han on 7 August 2023.
115Next, the plaintiff obtained a further neurosurgeon’s opinion when he attended Mr Girish Nair on 7 September 2023.
116To the extent that an attendance with Mr Nair on 7 September 2023 can be said to be a contemporaneous description of symptoms immediately or soon after the accident, Mr Nair recorded a history that the plaintiff had suffered a whiplash type movement in his neck and jarred his back in the accident.[56]
[56]PCB 163
117That is the extent of any objective evidence from health practitioners that could be described as a contemporaneous description of symptoms after the accident.
Post accident radiology
118As mentioned, after the attendance with Dr Mathur on 12 December 2022, an MRI scan of the plaintiff’s cervical and lumbar spine was arranged. The report of the MRI is dated 22 December 2022 and was said to be indicated because of “motor vehicle collision”.[57] Unhelpfully for a resolution of the issues in this case, the radiologist noted that no previous scans were available for comparison.
[57] PCB 256
119The report of the 22 December 2022 MRI described the findings as –
“Findings:
Cervical:
The craniocervical junction appears normal. There is no evidence of myelopathy in the spinal cord down to T2.
Normal bone marrow signal within the vertebral bodies. Canal is normal in width. There is some loss of hydration involving all cervical discs. Alignment is normal. No paraspinal abnormality is seen.
Substantial right pre- and intraforaminal disc osteophytic protrusion noted at C5/C6 causing subforaminal narrowing and compressing the dural sac including C6 root exit zone. Disc margins elsewhere are congruent with adjacent endplates and remaining foramina are sufficiently patented. Partially visualised brachial plexus satisfactory in appearances with no root avulsion.
Lumbar:
There is normal disc height and hydration T11-L3 and disc margins are congruent with adjacent endplates.
L3/L4: Minimal loss of hydration associated with bilateral disc bulge and hypertrophic facet joint OA. There is bilateral sub foraminal narrowing with normal-appearing exit roots.
L4/L5: Broad-based circumferential bulge and loss of hydration associated with uncovering of posterior disc from hypertrophic facet joint OA. There is severe narrowing to each subarticular recess, able to restrict transiting L5 roots, however with no foraminal involvement.
L5/S1: Minimal circumferential bulge, otherwise normal.
SI joints: Unremarkable.
Impression:
Disc osteophytic protrusion C5/6 indenting anterior CSF, causing substantial right subforaminal narrowing and compressing C6 root exit zone.
Circumferential protrusions and loss of hydration L3 and distal associated with hypertrophic facet joint OA, in particular L4/L5. Findings able to explain bilateral L5 restriction.
No evidence of myelopathy at any level. Overall, no definite trauma sequelae.”[58]
[58] PCB 256
120Next, on 25 June 2023[59] the plaintiff had a further MRI of his lumbar spine. The clinical indication for that MRI was said to be “severe sciatica”. The report described degenerative changes most severe at L4/5, but also impingement of the transiting L5 nerve roots particularly on the right side, disc bulging at the L3/4 levels, with definite impingement of the right L3 nerve root.[60]
[59] PCB 258
[60] PCB 259
121A whole-body scan with SPEC/CT lumbar spine region was performed on 7 July 2023. It concluded that “intense spondylosis at the L4/5 facet joints bilaterally as a likely cause of backache and sciatica”.[61]
[61] PCB 262
122The plaintiff next had an MRI of his brain and whole body. The report of that MRI dated 22 July 2023 recorded a history of numbness in both legs and left arm. It compared the MRI report of 25 June 2023 and concluded about the lumbar spine that there was multi-level degenerative disc disease, most severe at L4/5 with bilateral impingement of the L5 nerve roots, contact with L3 nerve roots and extraforaminal nerve roots on the left at L4 and L5.[62]
[62] PCB 265
123The plaintiff has had more scans of his spine since the MRI of 22 July 2023. Some of the conclusions in those scans are not much help for a consideration of the injury because they refer to the changes from the first lumbar surgery. But on 14 November 2023 an MRI report described moderate to severe right C5/6 neural exit foraminal stenosis.[63]
[63] PCB 271
124There is no evidence from a specialist radiologist as to the significance of what was seen on the scans before and after the accident.
125I shall have more to say about the radiology in the context of the relevant medical evidence. But broadly, that evidence supports the conclusion that sciatica became a significant feature of the plaintiff’s presentation when undergoing scans within a few weeks of the accident.
The evidence from Mr Kevin Siu (consultant neurosurgeon)
126Returning to the issue of injury caused by the accident, that arises not only because of the evidence of pre-accident treatment and radiology, but also because of medico-legal opinions obtained by the defendant from Mr Kevin Siu, consultant neurosurgeon.
127As a broad summary, Mr Siu opined that the accident could not have caused any significant or ongoing injury to the plaintiff’s spine. Again, as a summary, Mr Siu’s opinion was formed in part because of his understanding of the mechanics or forces involved in the accident.
128Mr Siu examined the plaintiff at the request of the defendant and provided a report dated 2 December 2024. As he noted, for that consultation he was provided with nearly 300 pages of material,[64] which included the reports of radiology before and after the accident, and most (if not all) of the objective evidence I have set out so far.
[64] I share his pain of having to make sense of that material
129Mr Siu commented on the pre-accident radiology and evidence from Dr Hassan and Dr Gotis-Graham. He described his conclusions from the MRI scans in 2014, 2018, 2020 and 2021 and said that demonstrated evidence of age-related degenerative changes and that there had been some progression of the disc protrusion on the right.
130Mr Siu then set out the evidence in the post-accident radiology. He said in the report that “You will notice that I dwell extensively on the imaging reports because I have difficulties identifying the documentation of neurological findings, apart from the letter of the neurologist in 2022”.[65]
[65] DCB 18
131Pausing yet again, the reference to the neurologist can only be to Dr Hassan, who treated the plaintiff well before the accident. In his report, Mr Siu described in detail a letter from Dr Hassan to Dr Gotis-Graham dated 5 November 2022. He said that letter “was important in that it is the only letter with documentation of neurological finding” and “Thus we have good documentation by a consultant neurologist of abnormal neurological findings”.[66]
[66] DCB 16
132There is no letter from Dr Hassan dated 5 November 2022 and so Dr Siu’s reference to that is incorrect. On this point, neither party addressed the Court. It may be that this is an example of a simple typographical error, and that Mr Siu intended to refer to Dr Hassan’s letter of 5 November 2020.[67] That would be consistent with Mr Siu’s comments later in the report where he said that Dr Hassan documented neurological findings “two years prior to the motor vehicle accident”.[68] But obviously if Mr Siu had proceeded on an assumption of neurological signs being present on 5 November 2022, only a month before the accident, that would be a significant error, as there is no such evidence.
[67] PCB 82
[68] DCB 18
133Mr Siu proceeded to discuss some of the post-accident radiology, but did not specifically discuss how it compared to the pre-accident radiology. The only inference from his opinions is he did not think it supported any permanent injury from the accident, but by the same token, he did not expressly say that.
134But I am concerned whether Mr Siu’s opinions about the radiology may have been influenced by the erroneous attribution of 5 November 2022 to the letter of Dr Hassan.
135In any event, Mr Siu said the plaintiff complained of back pain and neck pain after the accident, with back pain more prominent. He said we were seeing the ongoing manifestation of progressive age-related degenerative condition of the lumbar and cervical spine.[69]
[69] DCB 21
136Mr Siu then said that “one may argue that there was some aggravation of a pre-existing condition as far as the neck is concerned” but “he was driving a very big SUV (Audi Q7). The injury, if any would be trivial”. I believe most of his clinical features are from degenerative change”.[70]
[70] DCB 22
137About the lumbar spine, Mr Siu said “a rear end collision is extremely unlikely to aggravate pre-existing spondylosis. When seated in a bucket type seat secured by a seatbelt there is no axial loading and there would be minimal, if any, stress on the lumbar spine following a rear end collision. Again we are seeing the manifestations of age related degenerative conditions”.[71]
[71] DCB 23
138Pausing, whether Mr Siu has sufficient expertise to opine that because a person is in a big SUV only a trivial neck injury could result is unclear. It seems likely to me that the size of a vehicle is only one of the factors relevant to whether injury can be caused by an accident. Other factors including the health of the person involved or even the force involved, would also seem to be relevant.
139Mr Siu then described his understanding of the plaintiff’s symptoms post-surgery. He opined that the plaintiff had relief from symptoms from the surgery. He said there were no restrictions for daily activity and no interference for work, although he noted the plaintiff was then working “28 hours per week”.[72]
[72] DCB 24
140Next, in a second report dated 17 December 2024,[73] Mr Siu was asked to consider some further reports for his comment. Having done so, he said he did not consider it necessary to change his opinion. He repeated that: “I believe that a patient sitting in a big car, well protected by a bucket seat and secured in a lap/sash seat belt there would be very little axial load”.[74]
[73] DCB 10
[74] DCB 11
141Then in a third report dated 7 January 2025, Mr Siu was provided with the reports from Mr Aliashkevich and Mr Vellore for comment. He provided a precis of their evidence and repeated his own opinion that the plaintiff was in a big car and the impact was not significant.[75]
[75] DCB 5
142Mr Siu then said that “Absent the motor vehicle accident, it is highly likely as there were progressive age-related degenerative changes, he would require surgical intervention because of nerve root compression”.[76]
[76] DCB 5
143In case there was any doubt about his opinion, Mr Siu, his third report, asked that he be allowed to repeat himself and said: “I firmly believe that a driver or passenger secured by a lap/sash seatbelt, as far as the lumbar spine is concerned, is quite well protected. There is no axial load”.
144Mr Siu said he had been the head of the neurosurgery department at The Alfred Hospital between 1988 to 2000, where they managed a large number of severely injured patients, a large proportion of which were from motor vehicle accidents, and he could not recall seeing an acute lumbar disc prolapse or acute aggravation.
145He then said if there had been impact to the cervical spine in the accident, he would have expected the plaintiff to seek medical attention. Because he understood the plaintiff did not seek medical attention until seeing a chiropractor some days later, he considered any cervical spine injury was transient and a trivial exacerbation of a pre-existing condition.
146Mr Siu then returned to a brief discussion of the evidence from Dr Hassan, including a letter from Dr Hassan to the treating neurologist dated 1 December 2022, as support for his opinions. But there is no letter from Dr Hassan dated 1 December 2022. The letter from him to Dr Gotis-Graham is dated 1 December 2020,[77] which I have earlier set out. In that letter Dr Hassan said specifically there was canal stenosis at C4/5 but no compressive myelopathy and about the lumbar spine, there were no radicular symptoms and he “would not advocate any invasive therapies to his lumbar spine”.[78]
[77] PCB 84
[78] DCB 84
147Again, the lawyers did not address the Court on the error in Dr Siu’s report about the date of the letter from Dr Hassan. It may be a simple typo – after all in his third report he also erroneously referred to the date of his first report as 2 December 2022. Who knows? But there is a real risk that the mistakes about the dates infected Mr Siu’s opinions.
148In that report, Mr Siu commented on some of the other medical opinions in this case, which I shall get to. He said the opinions in those reports were more based on intuition rather than a consideration of the mechanism of injury.
149Finally, in a fourth report dated 14 February 2025,[79] Mr Siu was asked for a supplementary report, seemingly to comment on the report of Dr Gotis-Graham dated 14 January 2025. Dr Siu commenced the report by stating that “I wish to emphasise that Mr Zafar has pre-existing severe cervical spondylosis with a well documented history and imaging of nerve compression”.[80] He described the report from Dr Gotis-Graham as helpful and went on to say that the accident was incidental, and the causation was pre-existing cervical and lumbar spondylosis.[81]
[79] DCB 7
[80] DCB 7
[81] DCB 9
Summary of Mr Siu’s evidence
150Mr Siu obviously has considerable expertise and provided his opinions in a clear and forcible way.
151But there is confusion in his reports by the erroneous attribution to examination findings and opinions expressed by Dr Hassan as being provided in late 2022, when they were provided in late 2020.
152At the very least, the lack of care in Mr Siu’s reports when recording the evidence from Dr Hassan is a relevant fact for a consideration of the weight to attach to his evidence on such an important issue, namely the existence of neurological symptoms before the accident for a consideration of causation.
153Next, his opinions were clearly based on an assumption that there was little or no force to the plaintiff’s spine seemingly because the plaintiff was in a bucket seat, wearing a seat belt and in a big SUV. Whether that is consistent with the damage to the plaintiff’s car as shown in the photos is debatable.
154Whatever the actual force, Mr Siu opined that it was unlikely to cause aggravation of the lumbar spine and might have caused a temporary flare up in the cervical spine. He said that the progression of the underlying condition was the explanation for the surgical procedures.
155But there is no path of reasoning to explain how the degenerative spine condition progressed to require the first of several surgical procedures within about eight months of the accident. Mr Siu emphasised the findings by Dr Hassan as evidence of neurological signs. But Dr Hassan said specifically about the lumbar spine that there were no referred symptoms. Also, there was no neurosurgical referral or contemplation of surgery before the accident.
156In that regard, it is trite to suggest that Mr Siu’s opinion may be based on intuition rather than evidence.
157The fact that sciatica was not present before the accident but was a feature when the plaintiff attended for the MRI on 22 December 2022, seems to have been dismissed by Mr Siu as evidence of an injury caused by the accident, because of his opinion about the mechanics of the accident and his opinion about neurological signs being present before the accident.
158I cannot glean from Mr Siu’s report a path of reasoning how the relatively contemporaneous reporting of sciatica and the relatively contemporaneous need for repeat spinal surgery cannot relate to the accident.
159The whole of the evidence from Mr Siu leads to a conclusion that he started from a position that the accident could not have caused an aggravation injury and then worked back from there to maintain that position.
160As such, I do not accept his opinions that the accident could not have caused an aggravation injury.
161The rejection of Mr Siu’s opinions about causation is regrettably not the end of the matter. Because some of the plaintiff’s evidence was unreliable, and given the evidence of symptoms before the accident, it is necessary to look at the whole of the evidence to decide the issues for determination.
162Also, just because I do not accept Mr Siu’s opinion about causation, does not mean that I cannot accept his evidence about the current level of impairment consequences.
The balance of the medical evidence
163It is not enough for the plaintiff to establish a serious aggravation injury if the accident only caused some further impairment to his spine.
164As the defendant correctly contended, the aggravation must produce sufficient additional impairment to meet the “serious injury” test. This requires a consideration of all the evidence of impairment before and after the accident.[82]
[82] Petkovski at 140
165Before fully setting out the plaintiff’s affidavit and oral evidence, it is convenient to look at what he told treating and medico-legal doctors as to his situation before and after the accident, for a consideration of whether there was an aggravation injury and whether such an injury contributed to the need for surgery and any ongoing impairment consequences.
Treaters
Mr Tiew Han (consultant neurosurgeon)
166Returning to the evidence from Mr Tiew Han, he performed the first operation to the plaintiff’s lumbar spine in August 2023.
167To the extent that Mr Han obtained a history of the plaintiff’s pre-accident health, in a report dated 4 July 2023 written directly to the plaintiff,[83] Mr Han said the plaintiff had a history of rheumatoid arthritis, essentially managed with anti-inflammatory medications and essentially was well controlled.[84]
[83]PCB 98
[84]PCB 98
168Next, in a letter dated 24 August 2023, Mr Han said the plaintiff had consulted with him on 30 June and 24 July 2023 and presented with a history of lower back pain and bilateral sciatica. Mr Han then said the plaintiff claimed that he was involved in a motor vehicle accident on 8 December 2022 and the pain deteriorated markedly. Mr Han said the plaintiff “believed that the accident had contributed to significant deterioration of his lower back pain”.[85]
[85]PCB 103
169Pausing, this is really the crux of the aggravation issue in this proceeding. Did the accident cause a significant deterioration of lower back or neck pain and the development of referred symptoms into the upper or lower limbs? The plaintiff’s belief is obviously not determinative of that issue.
170Returning to the evidence from Mr Han, in a report to the plaintiff’s solicitors dated 11 December 2024, Mr Han concluded that the accident was a significant contributing factor to the plaintiff's injury. Mr Han said the plaintiff’s “symptoms deteriorated fairly rapidly following the motor vehicle accident to an extent whereby he eventually required surgical treatment”.[86]
[86]PCB 108
171Again, it seems to me that the factual question whether the plaintiff’s symptoms deteriorated rapidly after the accident also goes to the crux of the aggravation issue.
Mr Ales Aliashkevich (neurosurgeon and spine surgeon)
172In October 2023 the plaintiff was referred by Dr Mathur to Dr Ales Aliashkevich, neurosurgeon and spine surgeon.
173In a letter to Dr Mathur dated 30 October 2023,[87] Dr Aliashkevich said the plaintiff “presented with a long history of chronic neck and back problems. He recalls having cervical facet joint injections in 2022. He was involved in a transport accident in December 2022 and complained about chronic left radicular leg pain”.[88]
[87]PCB 120
[88]PCB 120
174Next, in a comprehensive report to the plaintiff’s solicitors dated 11 October 2024, Dr Aliashkevich said the plaintiff provided a long history of complex chronic neck and back problems, as outlined in his affidavit affirmed on 15 March 2024.[89] For the purpose of providing his report, Dr Aliashkevich was provided with a range of medical reports for consideration. He then said the plaintiff suffered “complex chronic multifactorial neck and lower back problems” and that “he had pre-existing cervical and lumbar spondylosis, confirmed on spinal MRI scans in 2020. His situation was complicated by inflammatory arthritis” and “it is very difficult to assess the transport accident in December 2022 and make reliable conclusions about its contribution to your client’s chronic pain”.[90]
[89]PCB 127
[90]PCB 137
175Mr Aliashkevich provided a further detailed report dated 18 February 2025.[91] For the purpose of that report, Mr Aliashkevich was provided with further material and instructions. Having considered that material, he maintained his opinion that assessing the causation of the plaintiff’s complex chronic cervical and lumbar spine problems was challenging.
[91]PCB 139
176Dr Aliashkevich then said “it was also very difficult to assess the transport accident in December 2022 and make reliable conclusions about its contribution to your client’s chronic pain”.
177However, Dr Aliashkevich went on to say “I still believe it would be plausible to assume that on the balance of probability and unless there is evidence to the contrary, the transport accident around 8 December 2022 was a materially contributing factor to the exacerbation of a pre-existing degenerative cervical and lumbar spine condition to a degree greater than minimal”.[92]
[92]PCB 144
Mr Yagnesh Vellore (neurosurgeon and spine surgeon)
178Mr Yagnesh Vellore is a neurosurgeon and spine surgeon who also treated the plaintiff.
179Mr Vellore provided a report to the plaintiff’s solicitors dated 6 March 2024.[93] Mr Vellore recorded that by the time the plaintiff first consulted him, he had already undergone an L4-5 decompression surgery in August 2023 with Mr Han.
[93]PCB 155
180In his report, Mr Vellore set out how in December 2023, he performed an L3-4 artificial disc replacement and L4-5 anterior lumbar interbody fusion.
181Subsequently, in January 2024, Mr Vellore performed a C5-6 artificial disc replacement.
182Regarding the issue of the plaintiff’s pre-accident health, in response to a specific question, Mr Vellore said that:
”On the Balance of Probabilities
Dr. Zafar's transport accident on the 8th of December 2022 was a significant contributing factor to the spinal injury that he has sustained, specifically by way of aggravation. Dr. Zafar's previous history has included review by a neurologist as well as a rheumatologist in 2018 and 2020, at which stage he had mild disc bulge at the L4-5 level without nerve root compression. A letter from Dr. Basil Hassan, neurologist, dated 1st December 2020, clearly indicates normal signal of cervicothoracic cord without any changes at the C5-6 level. Therefore, on the balance of probabilities, Dr. Zafar's accident has caused significant aggravation of cervical spondylosis and lumbar spondylosis.”
183Next, in a comprehensive report to the plaintiff’s solicitors dated 21 February 2025,[94] Mr Vellore acknowledged the plaintiff had a history of back pain and at age 37 had been diagnosed with rheumatoid arthritis.
[94]PCB 157
184Mr Vellore then reviewed the evidence from Dr Hassan and Dr Gotis-Graham, together with relevant clinical records. He said after carefully reading all that material that:
“Lumbar Spine
I have carefully read the enclosed clinical records of Dr. Hassan, Engelburn Medical and Dental Doctors at Preston, Dr. Gotis-Graham, Dr. Mathur and the enclosed diagnostic materials. After carefully reading all of the attached materials, I remain of the opinion expressed in my previous report that as a result of his transport accident on 8 December 2022, Dr. Zafar suffered exacerbation of L3-4 and L4-5 disc disease specifically L3-4 disc bulging moderate to severe facet and ligament hypertrophy with right foraminal narrowing with impingement of right L3 nerve root, as well as L4-L5 disc bulging superimposed anterolisthesis with severe facet and ligament hypertrophy lateral recess stenosis on both sides with transiting L5 impingement, particularly on the left with foraminal narrowing in contact of L4 nerve root and lumbar disc degeneration L4-L5 with nerve root compression and grade 1 spondylolisthesis.
I am of the view that on the balance of probabilities Dr. Zafar's transport accident as described therein represents a mechanism of injury consistent with the causation of the lumbar spine injury diagnosed in question (a).
I am of the view that Dr. Zafar's transport accident on 8th December 2022 was a significant contributing factor to his coming to lumbar spine surgery at my hand on 5th December 2023 in the form of L3-4 artificial disc replacement and L4-5 anterior lumbar interbody fusion.”
And that:
“Cervical Spine
I have carefully read the enclosed clinical records of Dr. Hassan, Engelburn Medical and Dental Doctors at Preston, Dr. Gotis-Graham, Dr. Mathur and the enclosed diagnostic materials. After carefully reading all of the attached materials, I remain of the opinion expressed in my previous report that as a result of his transport accident on 8 December 2022, Dr. Zafar suffered C6 radiculopthy and C5-6 disc prolapse with neuroforaminal stenosis on the right side.
I am of the view that on the balance of probabilities Dr. Zafar's transport accident as described therein represents a mechanism of injury consistent with the causation of the cervical spine injury diagnosed in question (e).
I am of the view that Dr. Zafar's transport accident on 8th December 2022 was a significant contributing factor to his coming to cervical spine surgery at my hand on 9th December 2024 in the form of C5-6 artificial disc replacement.
It is important to note that the surgical opinion of Dr. Ales Aliaskevich on the 30th of October, 2023, also reflected a similar recommendation in the form of C5-6 disc replacement.”
Mr Girish Nair (neurosurgeon and spinal surgeon)
185Next, completing the quadruple of evidence from treating neurosurgeons, is the evidence from Mr Girish Nair.
186Mr Nair did not obtain any history relevant to the plaintiff’s pre-accident health. His evidence does not contain any analysis that assist to understand what, if any, aggravation injury was suffered by the plaintiff because of the accident. Therefore, I do not attach much weight to his evidence.
Dr Ashish Mathur (general practitioner)
187There is not a lot of formal evidence from Dr Mathur. I have already set most of it out. On 12 December 2022 he provided the plaintiff with certification of attending the clinic for neck and back pain post the accident.[95]
[95] PCB 109
188Then on 21 July 2023 he wrote to the defendant and said the plaintiff had the accident and had “worsening pain-b/l sciatica”.[96]
[96] PCB 111
189He then reported to the plaintiff’s solicitors on 7 February 2025 and said there was no radicular pain before the accident, but that the plaintiff complained of neck and back pain after the accident.
190In that report, regarding ongoing consequences, he said that since surgery the plaintiff’s condition had improved. He said the plaintiff could ambulate normally, could only sit or stand normally for 10 minutes at a time, and his capacity for work was between 24-28 hours per week (reduced from 35 hours per week).[97]
[97] PCB 112
The medico-legal evidence
Plaintiff’s medico-legal reports
Dr Hazem Akil (consultant neurosurgeon)
191Dr Hazem Akil is a consultant neurosurgeon who initially provided a joint report and then a subsequent supplementary report to the plaintiff’s solicitors.
192In his first report dated 7 March 2024,[98] Dr Akil obtained a history that because of the accident, the plaintiff “immediately felt neck and back pain but he managed to drive home as he said to me that his house was very close by”.[99]
[98]PCB 167
[99]PCB 167
193In addition, Dr Akil obtained history that:
“He noted that his neck pain and lower back pain that did exist before increased in intensity. However, what he noticed are new symptoms of radiation of the pain towards both legs and radiation of the pain towards the right arm.”[100]
[100]PCB 168
194Dr Akil then obtained a history of the referral to the various neurosurgeons and the surgery.
195Regarding the second lumbar surgery, Dr Akil obtained a history that the plaintiff noted significant improvement in the intensity of his pain after that surgery. Further, regarding the cervical surgery, Dr Akil obtained a history that the plaintiff also felt significant improvement in the intensity of his neck pain, as well as a complete resolution of right arm pain, after that surgery.
196Regarding ongoing symptoms, Dr Akil took a history that:
“Current Symptoms
Dr Zafar continues to have the following symptoms;
1.He continues to have elements of neck pain that comes particularly after sitting or standing longer than five minutes. The pain can be associated with paraesthesia in both legs but it is way better than before surgery. He told me that the intensity of his lower back pain while it is present after prolonged sitting but it is way better than before surgery.
2.He however continues to have some element of neck pain but described as minimal. He reports complete resolution of his right arm pain.”[101]
[101]PCB 168
197Regarding past medical history, Dr Akil said:
“As you have summarised in your letter of instructions and as my review of the notes revealed, he did have symptoms compatible with the carpal tunnel syndrome due to bilateral hand paraesthesia in 2015 and he did have a review by a neurologist in Sydney for generalised neurological symptoms and polyarthritis in November 2020. He had investigations for his neck and his lumbar spine although the entry from his general practitioner clearly indicated that the main symptoms are lower back pain and no radicular extension of the pain towards his legs or any extension of the pain towards his arms.”[102]
[102]PCB 168
198Dr Akil then conducted a physical examination and reviewed the available radiology, including radiology taken after the accident. He set that evidence out as follows:
“Investigations
I have reviewed the following investigations;
A nerve conduction study done prior to the accident in December 2015 concluded as normal.
A bone scan in December 2016 did show active polyneuropathy particularly in the left sacroiliac joint, left AC joint, first MTP joint.
I note that an MRI scan of his lumbar spine in June 2018 prior to the accident indicated the presence of disc degeneration at L3/4 and L4/5 with an L3/4 annular tear and a facet joint arthropathy at L3/4 and L4/5.
Repeat nerve conduction study in November 2020 also concluded a possible right ulnar neuropathy at the elbow. An MRI scan of the brain and the spinal cord in November 2020 did show the presence of a C5/6 paracentral and para-foraminal disc protrusion with a hemicord compression and a C6 root compression.
An MRI scan of his lumbar spine also prior to the accident in December 2020 concluded the presence of an L3/4 degeneration and a minimal L4/5 disc bulge.
An x-ray of his lumbar spine in December 2022 showed severe facet joint arthropathy at the level of L4/5.
An MRI scan of his cervical lumbar spine after the accident on 22 December 2022 revealed the presence of a C5/6 disc protrusion causing an impingement on the right C6 nerve root and in the lumbar spine, there is loss of hydration at the level of L3/4 disc with facet joint osteoarthritis and particularly at L4/5.
An MRI scan of his left hip and lumbar spine in June 2023 confirmed the presence of a CAM deformity and anterolateral labral tear but with regard to the lumbar spine, it does show degenerative changes significant at L4/5 where there is an anterolisthesis and a disc bulge.
MRI scan and x-ray of his lumbosacral spine in July 2023 showed a spondylolisthesis of L4/5 of about 8 mm with mild changes indicating a possible instability.
Whole body bone scan with SPECT views of the lumbar region in July 2023 showed spondylosis at L4/5 facet joint.
MRI scan of his lumbar spine in August 2023 showed right L3/4 foraminal and extraforaminal disc protrusion displacing and irritating the exiting right L3 nerve root.
An MRI scan of the cervical spine in November 2023 as well as the number did conclude the presence of a severe right C5/6 neuroforaminal stenosis due to posterior disc osteophyte complex and a mild C7-T1 foraminal stenosis as well as grade 1 anterolisthesis at L4/5 with advanced bilateral facet joint arthropathy.
CT scan of his lumbar spine in December 2023 showed adequate positioning of the implant.”[103]
[103]PCB 169
199Regarding a diagnosis, Dr Akil said:
“Diagnosis
He has aggravation of cervical spondylosis with right C6 radiculopathy and aggravation of lumbar spondylosis. In my opinion, the accident aggravated the pre-existing spondylosis.
I note from his documents and from what he said to me that although he had neck pain and lower back pain prior to the accident, but there were no clear radicular symptoms which he had clearly after the accident.”[104]
[104]PCB 169
200Dr Akil then set his opinion about work capacity, the impact of the injuries on the plaintiff before answering various questions. He described the accident as a significant contributing factor to his diagnosis of injury and the need for surgery.
201Dr Akil then reported to the plaintiff’s solicitors on 13 March 2025.[105] The supplementary report was prepared after a request that he consider various documents. He then said as follows:
[105]PCB 347
“Please find my answer to your queries:
Lumbar spine
(a) Please carefully read the enclosed clinical records of Dr Hassan, Ingleburn Medical and Dental, Doctors at Preston, Dr Graham, Dr Mathur, and the enclosed diagnostic materials. Do you remain of the opinion expressed in your previous report that as a result of his transport accident on 8 December 2022 our client suffered an aggravation of lumbar spondylosis.
i. Please detail your answer with reference to the abovementioned enclosures were necessary.
I remain of the opinion expressed in my previous report that Dr Salman Zafar had an aggravation of a pre existing lumbar spondylosis. I took into consideration the past medical history and the detailed clinical files as well as the report by Dr Kevin Siu. I am in disagreement with Dr Kevin Siu. The presence of lumbar spondylosis will progress during age but that does not necessarily mean that the symptoms progress. The mechanism of injury is also not, as Dr Kevin Siu described in his report, 'trivial'. In my opinion, the mechanism of injury is significant enough to cause further aggravation of the lumbar spondylosis resulting in back pain requiring intervention.
(b) Please carefully read the ‘Other materials’ enclosed herewith. Are you of the view that, on the balance of probabilities, our client’s transport accident as described therein represents a mechanism of injury consistent with the causation of any lumbar spine injury diagnosed in question
I have indicated in my previous report that the transport accident, as described, represents a significant mechanism of injury that is consistent with an injury to the lumbar spine.
(c) Do you remain of the view that our client’s transport accident on 8 December 2022 was a significant contributing factor* to
i. His coming to lumbar spine surgery on 9 August 2023 at the hand of Mr Han in the form of a L4 / 5 bilateral lumbar laminectomy.
ii. His coming to cervical spine surgery on 5 December 2023 at the hand of Mr. Vellore in the form of an L3-L4 artificial disc replacement and L4-L5 anterior lumbar interbody fusion.
iii. Please detail your answers with reference to the abovementioned enclosures were necessary
I remain of the opinion that the accident on December 8, 2022, was a significant contributing factor, although not the only factor that resulted in the need for two surgeries, with the first one on August 9, 2023, in the form of L4/5 bilateral lumbar laminectomy, and the second one on December 5, 2023, in the form of L3/4 artificial disc placement and L4/5 anterior lumbar interbody fusion.
(d) Noting our client’s current age of 46, life expectancy of 84, prior L4 / L5 bilateral lumbar laminectomy on 9 August 2023, and prior L3 / 4 and artificial disc replacement and L4/ L5 anterior lumbar interbody fusion on 5 December 2023:
i. What is our client’s prognosis as to the likelihood of further surgery at level L3 / 4 and L4 / 5 and / or at spinal levels adjacent to L3 / 4 and L4 / 5.
ii. If our client is likely to come to further surgery at level L3 / 4 and L4 / 5 and / or at spinal levels adjacent to L3 / 4 and L4 / 5:
a. What the time frame is in respect of such further surgery.
b. On the balance of probabilities, is our client’s transport accident on 8 December 2022 likely to be a significant contributing factor* in respect to our client coming to such further surgery (including coming to such surgery earlier than may otherwise have been required but for his transport accident).
c. Please detail your answer with reference to the abovementioned enclosures were necessary.
I am of the opinion that the prognosis of further surgery is guarded. He might require surgical intervention in the long term for the L5/S1 level, given that the L4/5 has been fused. To determine the time frame for that, it may not happen, but there is a possibility that the requirement of further surgery or extension of fusion below the level of L4/5 is required. The further surgery, if needed in the future, is to deal with the consequences of a surgery that is needed to treat symptoms significantly contributed by the motor vehicle accident on December 8, 2022.
(e) Any further comments you wish to make, including with respect to the opinions expressed by Dr. Siu regarding our client’s transport accident and lumbar spine injury in his enclosed reported dated 2 December 2024, 17 December 2024, and 7 January 2025.
I have made my main comments regarding Dr Kevin Siu's report in my answer to question A.
Cervical Spine
(f) Please carefully read the enclosed clinical records of Dr Hassan, Ingleburn Medical and Dental, Doctors at Preston, Dr Graham, Dr Mathur, and the enclosed diagnostic materials. Do you remain of the opinion expressed in your previous report that as a result of his transport accident on 8 December 2022 our client suffered an aggravation of cervical spondylosis with right C6 radiculopathy.
i. Please detail your answer with reference to the abovementioned enclosures were necessary.
I remain of the opinion expressed in my previous medical legal report that the transport accident on December 8, 2022, aggravated a pre-existing condition, further resulting in the need for surgery to improve right C6 radiculopathy.
(g) Please carefully read the ‘Other materials’ enclosed herewith. Are you of the view that, on the balance of probabilities, our client’s transport accident as described therein represents a mechanism of injury consistent with the causation of any cervical spine injury diagnosed in question
A: That's correct.
Q: - - - and you used your hands - - -?---
A: That's correct.
Q: - - - to show down your legs?---
A: Exactly.
Q: Is that right?---
A: That's correct.
Q: Is that your evidence?---
A: That's correct.
Q: That on the night of the accident - - -?---
A: Yes.
Q: - - - the pain turned into a shooting pain down your legs?---
A: Correct.
Q:Left leg, right leg or both?---
A:It was both sides. The left was worse than the right side.
Q:And there's no way that you're confused about that?---
A:No, not confused. It's just that at that time it was coming intermittent, and later I think from January time this became constant.
Q: Right?---
A: Yeah.
Q: Well, as a medical practitioner - - -?---
A: Yep.
Q:- - - you would recognise the significance of a shooting pain down your legs that's new?---
A:Absolutely.
Q: And you say this is new?---
A: This is new, that's correct.
Q:So if you had a shooting pain down your legs on the night of the car accident, you would regard that as a very important matter, haven't you?---
A:That's why I went to see Dr Mathur to get this consult.
Q:And you'd regard it as something very important to tell your doctor, is that right?---
A:Absolutely.
Q:And yet what's the doctor has written is, ‘Now complaining of neck pain with radiculopathy’?---
A:Yep.
Q: ‘Worsening back pain’ - - -?---
A: Yeah.
Q: - - - with a history of spondylolisthesis?---
A: Yep.
Q:All right. There's nothing in the doctor's note about radiculopathy for the low back, is there?---
A:Yeah, I wouldn't know what he's typing, but I can only tell you what I'm telling him, so - - -”[133]
[133]T 43, L 22 ꟷ T 45, L 1
254The plaintiff was then challenged about what information he had included in his TAC claim form, including his reference to having been getting neck and back pain since.[134] He was challenged, because in that document he indicated he had pain going down his buttocks, but not the legs.
[134]T 45, L 18
255It was then put to him that his first complaint of pain going down his legs was related to an attendance on a Dr Bhaskar on 6 January 2023.[135] About that clinical entry he was cross-examined as follows:
[135]T 46, L 30-31
Q: “And I will read – well we'll read together - - -?---
A: Yes.
Q:- - - what Doctor has written because - - -?---
A:I absolutely remember this consult - - -
Q:- - - I want you to explain it to me?---
A:Oh yes I can explain it because I made a complaint against that doctor for being unprofessional conduct.
Q: All right?---
A: Yes.
Q:Well you agree that what the doctor has written is that you've come with a request, and according to the doctor you were trying to impose?---
A:That's – that's not correct, I went there to get a referral to a neurosurgeon, and he said he does not believe in neurosurgeons, and when I said, can I get a referral to a chiropractor, he said I don't believe in chiropractor, so then why I am here, and he said, you can leave, and I just walked out of the room and I saw Dr Firas the same day, because I made a complaint to the practice manager against the doctor.
Q: Doctor's written - - -?---
A: Yeah.
Q:- - - that you were requesting referral but that doctor did not know why?---
A:The doctor unfortunately is around retirement, I don't want to go into the argument regarding that particular consult but that consult he did not understand medical terminology, plain and simple, he did not know what radiculopathy actually was, and hence why I had to see Dr Faris, and he went on medical leave for a – for a few weeks after that.
Q:Well you'd agree then with the last sentence, that it was you that requested – that it was better for you to see another doctor, and you left the room?---
A:No I just left the other – I just left the room, I said look I am here for a referral, if you can't give me a referral then should I see another doctor, he said, yes you should leave, and that – and I left.
HIS HONOUR:
Q:Well that seems to be what the doctor's reported?---
A:Yeah.
MR MASEL:
Q:And what you did was go to and see another doctor at the same clinic?---
A:That's the owner of the - MedicFirst, Dr Firas Alhamdani. I saw him, yes, to make the complaint, yeah.
Q:And I'll spell that for the transcript, A-l-h-a-m-d-a-n-i?---
A:That's correct.
Q:So you saw Dr Alhamdani?---
A:Yep.
Q:And you told Dr Alhamdani about the car crash?---
A:That's correct.
Q:And you told Dr Alhamdani that you were now complaining of neck pain - - -?---
A:Yep.
Q:- - - with radiculopathy, is that right?---
A:Correct.
Q:And worsening back pain with a history of Spondylolisthesis?---
A:Correct.
Q:You didn't say anything about radiculopathy affecting the low back, did you, at that time?---
A:I think I was actually - because we've had that argument, Dr Bhaskar just said radiculopathy, pain shooting down, so I think he was in a bit of a hurry so I'm not sure what he's written down there. But he did give me a referral for both MRIs, for neck and back.
Q:Doctor, you, being a doctor, would be very careful to mention an important symptom, such as referred pain down your legs?---
A:I did. I did tell them.”[136]
[136]T 47, L 1 ꟷ T 48, L 28
256Next, the cross-examination moved on from symptoms before and after the accident, to his claimed impairment consequences from the accident.
257Regarding the plaintiff’s claimed reduction in income as set out in his affidavits, he was taken to that topic as follows:
Q:“If you look with me at your first affidavit, paragraph 32, you wrote, or you deposed, ‘I'm suffering from a significant reduction in my income on a salary of $40,000 per year. I don't receive top-up payments’. You're nodding?---
A: Yes.
Q:By deposing that, what you're saying to the person who reads the affidavit is that as a result of the transport accident your earnings have gone down to $40,000?---
A:Can you put that on the screen for me? I can't see it. Ah, I can't see it on my - just can you put that on?
Q: It's plaintiff's court book p12 paragraph 32?---
A: Thank you.
Q:The significant reduction in your income was because your salary was $40,000, is that right?---
A:That's the salary I was paying from the family trust to myself, correct.
Q:From a family trust. Where does it mention anything about a family trust in paragraph 32?---
A:I think that's in the other affidavit.
Q:Yes. After you made this affidavit, at a later time, the TAC asked you for more details about your income, didn't they?---
A:Right.
Q:And that's the first time we hear anything about a family trust?---
A:I'm not sure about that. but (sic) they can (indistinct) would have been less than that, so.”[137]
[137]T 49, L 8-28
258Further on in cross-examination, the plaintiff described his current payment arrangements as follows:
Q:“You have an – and is that the same type of arrangement as you had in Sydney?---
A:Exactly the same. So basically it is 70 30 split, Your Honour. So between – so whatever we earned from Medicare, so it's 70 per cent plus – so then GST five per cent on top, so we get 65 per cent, 35 per cent we deduct it at the source. They will give the 35 per cent for the sales fee and give the remainder back. And then we have to deduct expenses and everything then pay us the salary whatever's left over.
Q: So?---
A: Yeah.
Q: Unpacking that. Your earning capacity - - -?---
A: Yep.
Q: - - - or your earnings, in fact?---
A: Yep.
Q: Depend on how many patients you see?---
A: Correct.
Q:And most of the patients are bulk billed, are they?---
A:95 per cent, maybe more.
Q: And if it's not a bulk billed patient, the distribution is the same?---
A: Yes, exactly the same still.
Q:All right. So you see the patient, and their Medicare claim is processed by the clinic?---
A:Correct.
Q:And the proceeds of the patients that you see are then transferred at your request to a family trust, is that right?---
A:So basically, they will process the Medicare rebate, the clinic, and then they will deduct their service fee charges from it, and then whatever's left over they will process to the family trust account.
Q: Yes?---
A:And then we will also paying our expenses and after that whatever's left over, you can pay it to yourself as a salary.
Q: And the family trust, is that a company?---
A: It's a company.
Q:And who are the directors of the company?---
A:I'm the director, sole director of the company. That's correct.
Q:All right. And does the family trust have any other income, apart from the fee – the assignment of the fees for – or the proceeds of the fees that are received by the clinic - - -?---
A:It's just – just medical income. Occasionally I might get a payment from Royal College, ah if I'm conducting an exam. But that's like maybe a few hundred dollars, a thousand dollars once every six months, something like that.”.[138]
[138]T 50, L 22 ꟷ T 51, L 29
259Eventually the plaintiff conceded that whilst his salary may have technically been $40,000 gross per annum, that was a decision made because he was the sole director of the relevant company and did not necessarily reflect the actual earnings that he was able to generate for that company. In short, there was clearly some appropriate tax minimisation and accounting factors at play that arrived at the figure that the plaintiff is currently paid.
260A table was then produced of the plaintiff’s earnings before and after the accident and the plaintiff was taken to that. Eventually it was put to the plaintiff that his earnings had reduced dramatically in the 2021 year. The plaintiff’s response was “I changed jobs there”.[139] The plaintiff explained that as he changed clinics it took a while to build up a patient base, usually six months or so,[140] but he denied that any pre-existing health factors were relevant for a reduction in income before the accident.[141]
[139]T 58, L 19-20
[140]T 59, L 21
[141]T 60 ꟷ T 61
261Eventually the plaintiff accepted that he is now generating sales (earning income) more than he was earning before the car accident.[142]
[142]T 65
262The cross-examiner then returned to the issue of the plaintiff developing shooting pains after the accident. In particular, he was challenged about whether he did have shooting pains down the legs after the accident because there was no mention of that to Dr Mathur on 12 December 2022, and because of the history he gave to Mr Han of the shooting pain coming on in January 2023. He said that on the night of the accident he got the pains, they were shooting down. He said they were “intermittent, coming and going, and in January time it became a lot worse, and I reported that to the chiropractor as well multiple times”.[143]
[143] T 71, L 3-11
263The cross examiner then focused on the result from surgery. By reference to the evidence from Mr Vellore, the plaintiff agreed that he had improved considerably since both surgeries,[144] which I note is consistent with the objective evidence.
[144] T 71, L 24
264The plaintiff also candidly agreed in cross examination that any medication he now takes for pain in his spine, is prescribed because of his underlying rheumatoid arthritis.[145]
[145] T 73, L 8-13
Legal principles about aggravation injury
265The defendant contended that the Court was required first to identify the alleged aggravation injury, identify the impairment consequences from such injury and then assess whether any additional impairment caused by such injury qualifies as a “serious injury”.
266In that context, the defendant criticised the medical opinions relied on by the plaintiff in essence for asking the wrong questions. The defendant said that answering a question about material contribution would lead the Court into error, as was the case in Filipowicz.[146]
[146]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
267In any event, the defendant contended that the Court should reject the accident as having played any part in any ongoing impairment consequences because of the reasons it said that were identified cogently and reasoned by Mr Siu.[147]
[147]T 95
268I consider that the legal principles are not really in dispute. The guiding principles for an aggravation injury remain as set out in Petkvoski,[148] and more recently confirmed in Seckold v Transport Accident Commission (“Seckold”).[149] The dispute in this case is really a factual dispute.
[148][1994] 1 VR 436
[149][2025] VSCA 18
269Seckold is a decision about the analysis of a claimed aggravation injury to the right wrist. About the principles involving the legal test, the court in Seckold said:
“In our view, there is little to distinguish the present case from the decision of the Appeal Division in Petkovski v Galletti. In that case, a submission had been made by the respondent to an application for leave to commence a common law proceeding under s 93(4)(d) of the Act that, in a case involving the existence of a pre-existing degenerative condition in an applicant’s spine, a comparison had to be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment; and, if that additional impairment was not ‘serious’, then leave to commence a common law proceeding must be refused. The Appeal Division held that the primary judge ought not to have rejected the respondent’s submission. As the plurality put it:
‘One should commence with the acknowledgment that it has long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.’
The Act does not affect that long-established principle.
Later, with reference to the underlying facts of Petkovski, the plurality said:
‘The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.’”[150]
(Footnotes omitted.)
[150]Ibid at paragraphs [56]-[57]
Analysis
270First, the plaintiff must establish that the accident was a cause of injury to his spine.[151]
[151] Taylor v Transport Accident Commission [2022] VSCA 269 at [42]
271The evidence discloses that the plaintiff had pre-existing degeneration affecting both the lumbar and cervical spine. That condition was sufficiently symptomatic, such that he required CT-guided injections to both the lumbar and cervical spine in July 2021.
272Further, the plaintiff may also have been symptomatic in the lumbar and cervical spine because of consequences from his underlying arthritic condition.
273By December 2022 the plaintiff was managing his arthritic condition and symptoms in his lumbar and cervical spine by the ongoing use of Celebrex and prednisolone. In that context, he was referred for an x-ray by Dr Mathur on 7 December 2022, as a precursor to that doctor prescribing Celebrex and prednisolone. I accept that the doctor accurately recorded the plaintiff as having chronic lower back pain at that time. The objective evidence is that he also had symptoms in the cervical spine.
274But, on a consideration of the whole of the objective evidence, including the opinions from Dr Gotis-Graham and the available radiology, as at December 2022 the plaintiff did not have any radiculopathy (sciatica) or radicular-type symptoms in either the upper or lower limbs.
275Next, after a consideration of all the evidence, I accept that the force involved in the accident was significant enough to aggravate both the lumbar and cervical spine conditions.
276I acknowledge Mr Siu’s opinion that the accident could not have aggravated the lumbar spine condition could have temporarily aggravated the cervical condition.
277But I prefer the evidence from the other medical practitioners, in particular the opinions from Dr Akil and Mr Vellore, which fit with the objective evidence, namely that within five days of the accident the plaintiff returned to see his general practitioner with an increase in symptoms and then the onset of lower limb radicular symptoms (sciatica), by early January 2023, at the latest.
278In the setting where the plaintiff is an unreliable witness, I am not prepared to accept his evidence of the immediate onset of upper or lower limb symptoms after the accident. But in the setting of an aggravation of his pre-accident degenerative spine changes and no other intervening event, on balance, I accept the evidence that the deterioration of symptoms in January 2023 is “fairly rapidly” from the accident and in those circumstances the radicular symptoms are related to the aggravation injury.
279Therefore, as a starting point, the plaintiff has made out causation. I conclude that the accident was a cause of injury to his lumbar and cervical spine.
280But, for a claim based on an aggravation injury, the fact that the accident was a cause of injury is not enough. The plaintiff must also establish the extent of the accident-related aggravation injury by way of additional impairment consequences to meet the test of “serious injury”.
281About the aggravation injury, I accept the evidence from the treating practitioners, in particular Mr Han and Mr Vellore, that the aggravation injury required the need for repeat lumbar surgery and cervical surgery. As Mr Vellore said, “the accident has caused significant aggravation of cervical and lumbar spondylosis”.[152]
[152] PCB 156
282As mentioned, the need for surgery of itself does not equate to serious, but equally I consider a relevant consequence is the major spinal surgery that the plaintiff has undergone and the potential for more surgery. Mr Vellore described how the plaintiff may require further surgery because of the risk of adjacent segment disease. Mr Akil also set out cogent evidence about the risk of further surgery because of the accident-related surgery.[153] Mr Sheard said the risk of further surgery because of adjacent segment disease was approximately 1-2% in the next ten years.[154]
[153] PCB 349
[154] PCB 224
283Mr Siu also seems concerned about the risk of the failure of the lumbar disc replacement. He said in his first report that the prognosis was fair to good in that the plaintiff has relief of his symptoms. He then placed restrictions on activity that involved repetitive bending and advocated continuing core strengthening such as swimming. He said “I do have some reservations that he had a disc replacement at 3/4 where there is severe facet arthropathy. Further assessment may be necessary”.[155]
[155] DCB 22
284Therefore, leaving to one side Mr Sui’s opinion on causation, the opinions as set out all express reservation about the need for further surgery because of the surgery to the spine that the plaintiff has had.
285The plaintiff has endured pain and suffering consequences associated with the actual surgical procedures and the recovery from them. The possibility of that occurring again is a consequences that cannot be ignored. He is still a relatively young man. The risk of further time off work for repeat major surgery in my opinion is a very considerable consequence, for someone who has already had three spinal surgeries.
286Next, while I have some reservations about the plaintiff’s self-reported current level of symptoms, I accept that he continues to have symptoms because of the injury and the surgery that was required for that accident-related aggravation injury. I accept he will have difficulty with repeated activity that involves bending and will need ongoing core strengthening exercises.
287The plaintiff has only established limited pecuniary loss consequences to this point in time, being time off work because of the accident and the recuperation from surgery. As the defendant established, the plaintiff’s affidavit evidence about pecuniary loss was unreliable. Unrelated health issues have impacted his earnings, as have facts such as relocating to Melbourne. The plaintiff is now working at about the level that he was before the accident.
288It is important to remember that I am determining rights for the purpose for a gateway proceeding. As such, different considerations apply than those in a common law proceeding. The plaintiff clearly had a vulnerable back. His evidence about his earning capacity before and after the accident is unreliable. He potentially still has unrelated health issues, including recent hip and shoulder problems, and ongoing issues with obesity, all of which would likely impact the assessment of damages.
289Mr Vellore noted that the plaintiff’s severe neck and back symptoms were relieved after the surgery that he performed. That is consistent with Dr Mathur’s opinion that his condition improved after the surgery with Mr Vellore. But relief or improvement is not the same as complete resolution.
290But here things become more nuanced because the defendant raised as an issue whether, overall, the plaintiff’s symptoms are now no worse than they were before the accident, when he had chronic back pain.
291In my opinion, the accident-related injury caused the severe sciatica and upper limb symptoms, for which the plaintiff required repeat spinal surgery. Any ongoing consequences are now due to the accident and the surgery and not the pre-existing injury. Therefore, I do not accept the defendant’s argument that the fact the plaintiff’s symptoms may now be like what he had before the accident, means that that he does not have a “serious injury”.
292In my opinion, the surgery the plaintiff has had for the injury, the residual symptoms, the risk of further surgery because of the accident, the limited loss of earnings to date and the potential for further lost earnings or lost earing capacity if he needs more spinal surgery, all amount to a very considerable consequences because of the accident-related aggravation injury to the spine.
Result
293The plaintiff is granted leave to commence a common law proceeding for recovery of damages in respect of injuries sustained in the transport accident on 8 December 2022.
294I shall hear from the parties as to consequential orders.
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