Comerford v TAC [2012] VCC 443

2 He commenced his working life as an apprentice with Birmingham City Council, obtaining advanced trade qualifications as a Master Painter and Decorator. In 1998 he became self-employed with his business entailing not only painting, but also wallpaper hanging, glazing, replacing windows, and some minor woodwork and plaster repairs.

3 His business concentrated on "high end" work, including work on heritage buildings, commercial and domestic work. He says at that time, he was able to engage the services of relatively senior qualified tradesmen. At the peak, his business engaged up to eight subcontractors whose seniority meant they could work without constant supervision. Mr Comerford says that at this time he was fully fit and suffered no physical pain or restrictions.

4 He migrated to Australia in 2003 and commenced work as a self-employed painter and decorator in Melbourne.

5 On 2 December 2005, he was driving his Holden Commodore in Beach Road, Parkdale, on the way home from work. Another vehicle emerged from the left of an intersection without warning. Mr Comerford says he braked and veered right but could not avoid a collision. His car was extensively damaged. The driver of the other vehicle took Mr Comerford to the nearby home of the driver's daughter. A friend collected Mr Comerford there and took him home.

6 He visited his general practitioner, Dr Nicholls, the following day.

7 A week later, he had an X-ray of his lumbar spine showing mild degenerative changes at C5/6/7 and C7/T1 and a slight narrowing of L5/S1.

8 General practitioner, Dr Ferguson, diagnosed soft tissue and muscle inflammation and advised Mr Comerford to take time off work. Meanwhile, he was undergoing physiotherapy twice a week.

9 By February 2006, Mr Comerford was attempting to return to work. He said he was "experiencing low back pain, neck pain and dizziness, and felt unsafe on steps and ladders." He abandoned the attempt to return to work. He was then referred to a Mr Brighton-Knight, an orthopaedic surgeon. A further attempt to return to work on 27 March 2006 was unsuccessful. A further scan and an MRI of his brain were undertaken. A minor disc bulge in the upper thoracic spine was identified.

10 By 18 July 2006, he was referred to a pain specialist, Dr Lim, and was referred to Hopetoun Rehabilitation Hospital where he underwent physiotherapy and hydrotherapy and saw a psychologist on five occasions. He then continued weekly attendances for some months. Dr Lim taught him pressure point massage. Mr Comerford says he continued to be afflicted by pain in the form of low back pain and headaches and he abandoned the pain management course.

11 Neurological tests and scans excluded the possibility of any brain lesion to account for his headaches and unsteadiness. He said that by December 2007, he was still off work and "my major problem continued to be my lower back pain which fluctuated and was sometimes severe, radiating into my right buttock and down my leg. My leg ached and was worse when my low back pain flared up. Intermittently I would take a Digesic, Paracetamol and Sertraline." In February 2008, he commenced chiropractic treatment three times a week.

12 Meanwhile, in the second half of 2007 he retained Dr Michael Best as his treating general practitioner. In a report to Mr Comerford's solicitors of 26 August 2010, Dr Best stated:**

"Mr Comerford first attended me on 9/8/07. He was suffering from Chronic Back Pain, relating to a MCA on 2/12/2005. He had seen a number of doctors, but his back problems have become gradually worse. When I saw him again on a later occasion, it was clear that he was also suffering from depression, and I started him on Zoloft medication."

**13 The change in treatment regime seems to have had a positive effect. Mr Comerford decided to return to work at the beginning of 2008. His return to work occurred in March of that year, working initially for four hours a day, four hours a week.

14 He was fortunate to have a friend in the insurance industry who was willing to refer repair and maintenance work to him. These jobs were, Mr Comerford found, within his physical capacity. He said his continuing pain and restrictions required him to "avoid lifting heavy furniture, plasterboard, ladders and 20 litre cans of paint."

15 By April he was able to cut his chiropractic treatment to once per week. Nevertheless, he said he continued to have difficulty sleeping, stating, "I tend to wake up four or five times at night because of pain." He said his back pain persisted as did neck pain and "my neck pain becomes more significant when my back pain is severe."

16 Mr Comerford continued to be dogged by misfortune. In December 2009, he fell off a step-ladder because one of his subcontractors had put a drop sheet "over an area covered in soil and concrete." He said that, had it not been for his back pain, he would likely have checked the positioning of the ladder but avoided doing that because of the pain and restrictions in his low back. He fell through a window, suffering lacerations. He attended the emergency department of the Monash Medical Centre and received extensive stitches to fingers, arm and elbow.

17 The following December, whilst at work on a job at Kew, his ladder slipped on a decking surface and he fell three to four metres. This fall led to very serious injuries. He injured his ankle and his heel and had to undergo quite elaborate surgery involving multiple plates and screws. He had to take an extended period of time off as a result of these injuries. In addition, he suffered a crush fracture at T12, which required him to wear a brace for some months.

18 In this proceeding, Mr Comerford seeks leave under s.93 of the Transport Accident Act 1986 to bring proceedings for damages arising out of his injury in the transport accident which occurred in 2005.

19 Mr Comerford says that, following the 2010 fall, he has now returned to work. His business after that return thrived and, at one point, he was somewhat overwhelmed by the level of business that was coming his way. He does, however, face significant constraints, as he describes his situation. The structure of the building industry in Melbourne, he says, does not allow him to find for any reasonable fee the type of experienced subcontractors upon whom he could rely in his business in England. Those that he employs now are young and inexperienced men who require extensive supervision. He has to rely on men to do all heavy lifting and labouring elements of the work. He can work on steps, as distinct from ladders. He has obtained a relatively expensive set of steps with a hand rail from which he can work comfortably.

20 Mr Comerford says that, in recent months, business has slackened off with the restrictions under which he labours. He says he is more vulnerable to these fluctuations than he would be if he were able-bodied. He says he feels unable to advertise widely and offer himself on the open market because it would be wrong and misleading to quote for jobs which he could not undertake. Employing young men as subcontractors gives flexibility, but particularly when work is uneven, if these men are not employed, they may seek permanent work elsewhere and not be available in the future. The result, he says, is that his business is now far more precarious.

21 Affidavits from family and friends attest to a change in Mr Comerford's personality since the 2005 accident. He is said to be more introverted and morose with less patience than previously. He says he has had to give up entirely previous recreations such as soccer and golf. He complains of continued disruption to his sleep.

22 To complete the picture, I should say something of Mr Comerford's other health issues. He suffers a hiatus hernia, which means he does not tolerate analgesic medication well. Since 2008, because of the problem caused by the hernia and associated oesophagitis, he has sworn off analgesics. During his worst times, he was taking quite powerful analgesics, including OxyContin. He copes with sleep problems by drinking up to six glasses of beer before retiring.

23 He has suffered from kidney stones and continues to suffer from gout. He recently had a melanoma removed from his ear.**

24 Section 93 of the Transport Accident Act 1986 precludes the recovery of common law damages for negligence with respect to injuries sustained in transport accidents unless the injury is a "serious injury" within the meaning of the section. A person who sustains a permanent impairment of thirty per cent or more of the whole person is deemed to have suffered a serious injury (sub-s.3). In this proceeding Mr Comerford relies on the "narrative" test by reference to the definition of serious injury to be found in sub-s.17, which is as follows:

"(17) In this section -

pain and suffering damages means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;

pecuniary loss damages means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;

serious injury means -

(a) serious long-term impairment or loss of a body function; or

(b) permanent serious disfigurement; or

(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or

(d) loss of a foetus."

25 Mr Comerford's case relies solely on the terms of paragraph (a) of the definition. In Transport Accident Commission v Kamel [2011] VSCA 110, Kyrou AJA summarised the principles which attend to making determinations of this type. His Honour's synthesis draws together many, indeed most, of the principles which have been established by appellant judgments in the last two decades and so it is appropriate to quote His Honour's judgment in extenso:

"61 Paragraph (a) of the definition of "serious Injury" focuses on impairment or loss of body function, rather than on the injury resulting from a transport accident. A body function must not be equated with an injury, as the impairment of a person is not the same thing as the impairment of a person's body function. Paragraph (a) of the definition focuses upon impairment or loss of body function and requires that the impairment or loss be both 'serious' and 'long-term'.

62 The test for determining whether an applicant for leave under s 93(4)(d) of the Act has suffered serious long-term impairment or loss of a body function is subjective in the sense that it is the effect on the particular applicant's body function that must be considered. That determination, however, must be objectively made: it is the judge's opinion as to the seriousness of the impairment or loss - not that of the applicant or his or her medical practitioners - that is decisive.

63 In determining whether an applicant has suffered a serious long-term impairment or loss of a body function, it is impermissible to aggregate impairments or losses of different body functions. Each body function must be considered separately and a determination must be made as to whether that function has been impaired or lost and, if so, whether the impairment or loss is serious and long-term. A body function may be impaired or lost by reason of two or more injuries acting together to cause an impairment or loss.

64 The applicant has the burden of proving, on the balance of probabilities, that he or she has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be 'serious', the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both. Moreover, it must be established that the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'.

65 The definition of 'serious injury' in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The inquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.

66 The 'textual distinction' between the physical and mental consequences of an injury that is maintained by the definition of 'serious injury' in s 93(17) of the Act does not preclude a mental or behavioural disturbance or disorder from being taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within paragraph (a) of the definition.

67 A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.

68 The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a 'very considerable' consequence."

**26 The parties were agreed that, for the purposes of applying the definition in paragraph (a), the spine should be regarded as a single unit or one body part. This accords with the approach taken by His Honour Judge O'Neill in O'Connor v Maribyrnong City Council [2011] VCC 1987. Ms Hartley SC, who appeared with Mr D Churilov on behalf of the plaintiff, submitted, and I did not understand Mr Blanden SC and Ms Boyce for the defendant to disagree, that a finding of serious injury may be made despite the existence of some other phenomenon unrelated to the transport accident which itself could be designated a serious injury - Dressing v Porter [2006] VSCA 215.

27 Whilst the plaintiff's return to work is likely to tell against the finding of a serious injury - Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 - a return to work is not conclusively against such a finding, particularly where the return is to alternative duties rather than to the work as performed pre-accident - Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.**

28 The consensus of medical opinion is that Mr Comerford suffered musculoligamentous strains of the neck and low back in the transport accident in December 2005. Again, it seems agreed that, at least in the period until 2008, a chronic pain syndrome played a major role in his response to the injury. In a report to the Transport Accident Commission dated 8 December 2008, orthopaedic surgeon, Mr Michael Dooley, reported on a consultation and assessment that he carried out for the Commission on 16 September 2008 for medico-legal purposes. After noting the soft tissue injury to the neck, he continued:

"In relation to the lumbar spine, I believe that the soft tissue injury involved musculoligamentous damage and some aggravation of pre-existing naturally occurring degenerative disc disease of the lumbar spine. I believe that in time Mr Comerford developed a chronic pain syndrome in which the constancy and intensity of his ongoing pain was out of proportion to the injury sustained and to the degree of underlying degenerative disc disease. He underwent extensive investigation with CT scanning and MRI scanning and then a variety of treatments including inpatient pain management assessment. Various diagnoses including fibromyalgia were suggested. A general practitioner diagnosed significant depression and initiated appropriate treatment in this regard. [This was a reference to Dr Best in the second half of 2007.] A chronic pain syndrome involves psychological and physical interaction and response to injury and/or pain. Fairly quickly it is the psychological reaction that dominates the clinical picture usually. Despondency and depression become major features of the syndrome. It is clear that the appropriate treatment of his depression did help Mr Comerford. Overall, he found that a variety of physical modalities including physiotherapy, trigger point therapy etc did not help him. Ultimately, it is his realisation that the only person that will help him is himself that has improved his situation. Mr Comerford has found that by increasing his general activity and by returning to his work, his pain is improving. Clinically, there is mild restriction of cervical spine motion and a full range of motion of the shoulders. There is moderate restriction of lumbar spine motion. There may be a reduced ankle jerk on the right, secondary to nerve root irritation."

Other examiners and treaters seem broadly to have concurred in this overall description of the course of Mr Comerford's injury.

**29 Mr Brighton-Knight, an orthopaedic surgeon who assessed Mr Comerford on a number of occasions in 2006 with a view to possible treatment, referred to degeneration of disc with "an associated hypersensitivity response" and to mechanical low back pain "associated with degenerative disc disease at L4/5 and L5/S1" and to "sensitisation syndrome". Dr Terence Lim, the pain management specialist who supervised and administered the pain management course of treatment referred to above, diagnosed "hyperirritable muscular trigger points". General practitioner, Dr Ferguson, identified soft tissue and muscle inflammation in the neck and the lower spine. Neurologist, Dr Owen White, referred to disc damage resulting in a chronic pain syndrome. Generally, these injuries have not been thought appropriate for surgical intervention. Mr Brighton-Knight ultimately did not recommend surgery.

30 Last year, orthopaedic surgeon, Mr Peter Turner, writing to treating general practitioner, Dr D Christiansen (of the same clinic at which Dr Best now practises) stated:**

"The recent MRI shows advanced degenerative changes in the L5-S1 disc with a loss of disc height and some mild posterior bulging. This is causing very minor foraminal stenosis affecting the L5 nerve root on both sides. There are also some degenerative changes in the L3-4 and L4-5 discs, although at these levels disc height is well preserved. The associated central bulging is causing no stenosis or no root compression."

The doctor nevertheless advised against surgery, continuing:

"I am not convinced his symptoms are directly related to the disc changes and therefore any thought of spinal fusion would be unlikely to make things any better."

31 Placing more emphasis on the organic phenomena, Associate Professor Brian Chambers, a neurologist, reported to Dr Best on an assessment which he carried out, presumably for treatment purposes, by letter of 17 November 2009. He noted:

"There was mild wasting of the right buttock. There was apparent weakness of hip flexion on the right but this was probably related to pain. Knee and ankle jerks were brisk and symmetrical. Sensory testing revealed subjective numbness affecting the right buttock ... David has evidence of a significant low back injury and although the clinical findings are atypical he is probably suffering from symptoms of nerve root compression."

The professor also observed, however, that the subjective numbness affecting the right buttock and "popliteal fossa and sole of foot and the left lateral thigh and lateral low leg not conforming to any particular dermatomal pattern". At about this time, an epidural injection was administered and provided some temporary relief from the "subjective numbness" and paresthesia in the lower limbs. This response confirmed Dr Best in the opinion that there was a substantial organic basis for the continued pain and restrictions associated with the low back.

32 Despite these sorts of observations from a practitioner consulted for treatment and not for medico-legal purposes, Mr Dooley, assessing for the Commission, said in a report to its solicitors dated 20 June 2011:

"Initially following the accident Mr Comerford had a significant psychological reaction and had significant depression. In time, his condition has improved in this regard. Overall I do not believe that there is any excessive response in this regard."

**33 Based on this finding, Mr Blanden SC and Ms Boyce, on behalf of the defendant, were prepared to concede that Mr Comerford suffered an organic injury to his low back in the transport accident of December 2005, the results of which persist to this day.

34 One should note in the following further opinion, neurosurgeon, Mr Greg Malham, reporting to Mr Best by letter of 31 August following a consultation on that day, presumably with a view to assessing for treatment, noted an MRI of the lumbar spine of 20 July 2009 showing L4/5 and L5/S1 disc desiccation and loss of height with foraminal stenosis at L5/S1 compressing the right L4 nerve root as well as broad-based disc bulge at L4/5 and L5/S1 with no significant canal stenosis.

35 Mr Russell Miller, an orthopaedic surgeon, assessed Mr Comerford for medico-legal purposes at the request of his solicitors, reporting by letter dated 17 December 2007. He found, with respect to the neck, that there had been a musculoligamentous strain but there was "no evidence of nerve root pathology. The prognosis is good." Again, for the lumbar spine, he found a musculoligamentous strain with a poor response to conservative measures. He recommended against surgery and observed, "The long-term prognosis is fair/poor." He said that Mr Comerford was "likely ... asymptomatic before the accident" with his spine having been "rendered symptomatic by the effects of the accident". In a later report dated 6 August 2011, Mr Miller contemplated the possibility that surgery may be needed for the thoracolumbar or lumbosacral spine as a result "predominantly" of the 2005 transport accident. In a supplement to that report dated 5 October 2011, he said:**

"There was quite significant disease of the lower lumbar level and I believe that the prognosis for this is fair/poor and that ongoing symptoms are anticipated. It is my opinion it is unlikely that this man would respond to surgical intervention."

**36 Mr Kenneth Brearley, consultant orthopaedic surgeon, assessed Mr Comerford twice for medico-legal purposes at the request of his solicitors, the first time in December 2010 and the second time in July 2011. Mr Brearley found reflexes in the legs "relatively weak but equal on both sides. Sensation is normal in all areas. There is no wasting." This finding stands in contrast to the one made by Associate Professor Chambers of a wasting of the right buttock. Mr Brearley saw no likelihood of further improvement. He noted ongoing low back pain as a major symptom and "persistent numbness in the left leg as a result of nerve root irritation as demonstrated on MRI". In his 2011 report dated 8 July 2011, Mr Brearley referred to "mechanical lumbar back pain secondary to intra disc injury of the L4/5 and L5/S1 intervertebral discs. ... He continues to have evidence of nerve root irritation with numbness and tingling over the outer side of the left thigh, but there is no objective evidence of radiculopathy."

37 The most recent medico-legal assessment for the plaintiff was conducted by Dr Robyn Horsley, an occupational health and rehabilitation specialist. She referred to an annular tear evident at L4/5, as disclosed by MRI, observing that this would "remain a pain generator".**

**38 Mr Comerford is of the view that the falls which he suffered in December 2009 and December 2010 are attributable to his injuries in the 2005 transport accident.

39 It will be recalled that he had persistent complaints of dizziness. Ultimately, no neurological cause of this dizziness was found. It is not amongst the matters relied on as constituting "serious injury" or a separate "serious injury" for the purposes of the present proceeding. On the present state of evidence, I do not believe that any causal link between any dizziness which Mr Comerford has suffered and the transport accident has been established.

40 Both Mr Brearley, in one of his reports, and Dr Best in viva voce evidence, essayed the opinion that the falls were related to the 2005 accident. Even with the abolition of the ultimate issue rule by the Evidence Act 2008, opinions such as this from medical practitioners are objectionable and, in my view, inadmissible. These gentlemen are experts in medicine. Opinions as to the falls which took place require a consideration of specialist knowledge in engineering and the law of physics, not any medical issue. They were clearly venturing beyond their expertise in expressing these opinions.

41 In my view, for present purposes, the 2009 fall is simply irrelevant. It is not suggested that it has led to any persisting problems with the putative "serious injury" on which this application is based. The 2010 accident raises very significant issues. First, a consideration of its surgical sequelae reveals it as, on many levels, a far more serious incident than the transport accident in 2005. It will be recalled that Mr Comerford underwent no inpatient medical treatment following the 2005 accident. In contrast, after the 2010 accident, he was conveyed to hospital and underwent most elaborate orthopaedic surgery and was required to wear a back brace. Unsurprisingly, any symptoms in the low back arising out of the 2005 accident would be "stirred up".

42 It is worth considering the nature of the 2010 accident. Mr Comerford was ascending a ladder placed on a deck. The ladder slid along the deck and Mr Comerford fell some four metres. Mr Comerford complained that he had lost his confidence working on ladders. The accident as described, however, seems to have more to do with the laws of physics and friction coefficients than any issue of confidence. Granted that Mr Comerford's low back problems would make his spine stiffer and less mobile, it is not evident how a more mobile spine would, for instance, have allowed him to have escaped from the consequences of the slipping of the ladder.

43 In my view, the sequelae of the 2010 accident resulted from entirely separate and distinct causal factors and are in no way related to the 2005 transport accident.**

**44 The opinions quoted above establish that there is a significant injury to Mr Comerford's low back as a result of the 2005 accident. The various opinions, including in particular Associate Professor Chambers, establish the existence of nerve root compression and stenosis. The fact that, as at present advised, no surgeon thinks that these matters are appropriately dealt with by surgery, does not in itself indicate that these phenomena are, for that reason, not "serious".

45 The evidence as to neurological signs seems to be somewhat inconsistent. I have noted reference to both "weak" reflexes and "brisk" reflexes in the relatively recent past. Associate Professor Chambers seems to be alone in observing wasting of the right buttock.

46 Nevertheless, inconsistent as some of these findings seem to be, they are supportive of the view that there is significant pathology in the low back.

47 Mr Comerford's evidence that his low back was asymptomatic before the 2005 accident was not challenged in cross-examination or contradicted by any other evidence. Hence, I accept it.

48 None of these findings, it seems to me, are significantly at odds with the opinion of the defendant's orthopaedic expert, Mr Dooley. Mr Blanden SC correctly observed in closing submissions that this was a "range" case. The question is whether the evidence establishes that the injuries to the spine constitute a serious injury.**

49 The evidence referred to above establishes that Mr Comerford has been unable to return to the work which he previously did. I accept that in a trade that requires substantial physical exertion and, in the ordinary course of business, an extensive use of ladders, he is very seriously handicapped. The result is that his business, which has since 2008, on his own admission, seen some "prosperous times", remains far more precarious than it would have been had he not sustained the low back injury which he suffered in the transport accident.

50 Mr Comerford's evidence that he has been precluded from continuing with recreations such as golf and soccer stands uncontradicted. His ability to engage in those recreations, however, would have been problematic as a result of the 2010 accident. The evidence also shows an effect on his mood which has made him moodier and less companionable thereby compromising his personal relationships.

51 Again, Mr Comerford's evidence as to his sleep disturbance stands uncontradicted. This is clearly a significant diminution in his enjoyment of life - Haden Engineering v McKinnon [2010] VSCA 69 [45] per Maxwell P. Mr Blanden noted that His Honour did not form part of the majority in Haden's case, but I do not understand the majority to have disagreed with what His Honour said at the quoted paragraph.

52 Mr Comerford has described years of pain, mainly in his low back, following the transport accident. The expert evidence suggests that, at least in the early days, there was a very large functional element entailed in this pain. The assessment of the seriousness of his injury, however, is made, as both parties agree, as at today's date. Again, the evidence now is that his problems are predominantly organic and it is proper to consider, for the purposes of paragraph (a), the emotional sequelae following a predominantly physical injury resulting from a transport accident. So much appears from the lengthy passage quoted from Kyrou AJA in Kamel's case, though the ultimate authority for this view is to be found in the judgment of Chernov JA (as His Excellency then was) in Richards v Wylie (2000) 1 VR 79, 90 [28]. Mr Comerford complains of persisting pain and I accept his evidence in that respect.

53 The 2010 accident, which I have determined is not to be regarded as causally related to the 2005 transport accident, was significant indeed. Elaborate surgery was required. In contrast to the 2005 accident, there were bone fractures in the ankle and heel and in the thoracic spine. Without exploring the matter further, much might be said for the view that one or other or both of these fractures could constitute a "serious injury" within paragraph (a) of the definition (assuming that they had been the result of the transport accident). In the circumstances, it is inappropriate to express any final view on that subject. It is appropriate, however, to note that the co-existence of one or other serious injuries deriving from unrelated circumstances is not in itself a bar to success for the plaintiff in this proceeding - Dressing v Porter [2006] VSCA 215, as noted above.

**54 With some hesitation, I conclude that the evidence establishes the existence of a serious injury to Mr Comerford's spine resulting from the 2005 transport accident. The finding is a marginal one, but ultimately one which I think is relatively clear.

55 For the reasons given above, the predominant cause of the injury, as it now presents itself, is organic. The persistent pain and restrictions in the neck complained of by Mr Comerford are of far less significance than the problems with his low back. Nevertheless, forming part of the same part of the body for analytical purposes, it is appropriate to weigh the neck problems in the balance in favour of the view that a serious injury exists to the spine.

56 Far more important are the problems in the low back. The evidence shows that Mr Comerford has been able to resume work only in a much diminished and far more precarious manner than he would have been able absent the transport accident.

57 His personal relations have been affected. His recreations have been diminished. His sleep remains disturbed on an ongoing basis. The spinal injury, in my view, is more than merely marked but merits the epithet "serious" as it is used in the definition in the statute.

58 This situation has persisted since 2005. There is no medical opinion which would suggest any ground for optimism as to improvement for the low back. The injury therefore merits the description "long-term" to be found in the definition.

59 For these reasons, Mr Comerford's application succeeds.**