King v TAC [2026] VCC 220

1. As explained by the footnotes, the application was refined and pursued pursuant to paragraph (a) as a claim for an impairment by way of aggravation of previous lower back injury at L5/S1 and secondary gastrointestinal issues.

1. The meaning of 'serious' expressed in section 93(17) of the Act has been interpreted as follows by the Court of Appeal in Humphries & Anor v Poljak ("Humphries"):[6]

To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'.[7]

1. The plaintiff relied on a substantial body of evidence:

(a) Pharmaceutical records of Direct Chemist Outlet ranging from 18 June 2015 to 21 May 2019;[8]

(b) Report of Mr John Aloysius Henderson dated 6 June 2007;[9]

(c) Affidavits of Kyran King dated 7 February 2022, 20 May 2025;[10]

(d) Affidavit of Rebecca Byron dated 14 July 2025;[11]

(e) Affidavit of Nathan Packwood dated 1 Augst 2025;[12]

(f) Affidavit of Glen Burke dated 4 August 2025;[13]

(g) Radiology including:[14]

• CT Brain, Spine, Chest, Abdo, Pelvis dated 24 April 2018;
• MRI Lumbar Spine dated 17 May 2018 and 20 February 2019;
• CT Lumbar Spine dated 1 July 2024.

(h) Reports and letters of Dr Claire Finnigan dated 14 August 2021, 15 September 2022, 11 July 2023;[15]

(i) Reports, letters, operation records and discharge summaries of Dr Diarmuid McCoy dated 29 June 2018 (x2), 24 October 2018 (x2), 8 February 2019 (x3), 8 October 2019, 1 November 2019 (x2), 15 November 2019, 12 February 2020 (x2), 14 February 2020, 21 January 2022, 18 April 2022, 20 January 2023, 29 March 2023, 29 May 2023, 30 May 2024, 8 July 2024, 4 October 2024 (x2), 16 July 2025;[16]

(j) Report of Ambulance Victoria Patient Care dated 24 April 2018;[17]

(k) Warrnambool Base Hospital Discharge Summary dated 24 April 2018;[18]

(l) Alfred Hospital Discharge Summary dated 28 April 2018;[19]

(m) Reports and letters of Dr Michael Quinn dated 7 June 2018, 6 September 2019, 6 April 2021;[20]

(n) Conciliation Outcome Certificate dated 19 September 2019;[21]

(o) Epworth Nursing Discharge Summary dated 18 April 2022, 29 May 2023, 4 October 2024;[22]

(p) Clinical Notes of South West Healthcare, Warrnambool dated 1 July 2024;[23]

(q) Discharge Summary of South West Healthcare, Warrnambool dated 1 July 2024;[24]

(r) Reports of Dr Michael Epstein dated 13 August 2024, 6 June 2025;[25]

(s) Report of Associate Professor John King dated 17 March 2025;[26]

(t) Report of Mr Russell Miller dated 16 April 2025;[27]

(u) Report of Professor Richard Bittar dated 31 May 2025;[28]

(v) Report of Dr Catherine Bones dated 26 September 2018;[29]

(w) Reports of Mr Clayton Thomas dated 25 April 2019, 16 August 2019;[30]

(x) Report of Dr John Colman dated 17 May 2022;[31]

(y) Report of Associate Professor Richard Williams dated 13 September 2023.[32]

1. The defendant also relied on substantial evidence comprising:

(a) Report of Mr Tiew Han dated 9 December 2013;[33]

(b) Report of Dr Tim Fitzpatrick dated 19 April 2017;[34]

(c) Report of Dr Diarmuid McCoy dated 23 June 2017;[35]

(d) Radiology including:[36]

• X-ray Lumbar Spine dated 12 August 2002;
• CT Scan Lumbar Spine dated 28 August 2002, 3 July 2006 and 7 February 2012;
• MRI Lumbar Spine dated 10 July 2006.

(e) Reports of Associate Professor John Laidlaw dated 24 May 2025, 4 July 2025;[37]

(f) Clinical Records including:[38]

• Extracts from Alfred Health;
• Barwon Health;
• Extracts from Cambourne Clinic;
• Terang Medical Clinic;
• Murray Grave.

1. I have read and had regard to the affidavit evidence, cross-examination and re-examination of the plaintiff as well as to medical and other evidence tendered by the parties along with several lay affidavits relied on by the plaintiff. In the reasons that follow, I have referred to such of the evidence that the parties addressed and that has proved necessary in order to explain the decision I have reached.

1. A principal controversy associated with the plaintiff's serious injury application and the basis for much of the defendant's opposition to the grant of relief, is that prior to the 2018 transport accident he had suffered a considerable spine injury from a number of football playing incidents and as well the defendant challenged the plaintiff's candour in disclosing the seriousness of his condition before the 2018 accident.

1. The plaintiff relied on his two affidavits and an affidavit made by his partner and affidavits from two long standing friends. His partner and friends deposed to observations about the plaintiff before the transport accident and since and that the plaintiff says is supportive of the seriousness of the consequences of his injury. Although the defendant anticipated a requirement for their attendance for the purposes of cross-examination, this was not pursued by Mr Stanley. It will be necessary to address the competing submissions made by the parties about the probative worth and use I can make of their unchallenged affidavit evidence.

1. The plaintiff was involved in a car accident that he described in these terms:

"On the 24th April 2018 at approximately 10:50 am, I was traveling alone east on the Princess Highway between Staffords Road and Allansford-Wangoom Road making my way out of Warrnambool heading towards Terang. I was driving behind two trucks and a Ute. While driving along a dual carriageway, another car drifted into my lane, colliding with my car and causing it to spin off the road and roll up to five times down an incline into a paddock. > > When the car stopped, I was suspended upside down and still strapped into the seatbelt. A truck driver stopped to render assistance. He helped me out of the car and called the paramedics".[39]

2. The plaintiff deposed that as a result of the 2018 transport accident he found a role in IT Support with a business called 'Our Property' in September 2021 and he was able to discharge this employment wholly from home and was not required to travel as had been the case in his previous employment.
3. Addressing his past and non-compensable health, the plaintiff deposed that he underwent a laminectomy about 16 years ago at L5-S1 as a result of a football injury. He said he recovered well from the surgery. In fact he said that he had been able to get back to recreational pursuits, including playing football.
4. Despite the plaintiff's evidence of his recovery, by the time of the 2018 motor vehicle accident, he was continuing to undergo annual check-ups with a pain specialist Dr Diarmuid McCoy.
5. The plaintiff had been prescribed Methadone well before the 2018 accident. The true extent of the amounts of that strong drug that the plaintiff was taking before the accident was a continuing controversy throughout the hearing. In his first affidavit the plaintiff deposed that he was taking 10mg of Methadone daily for pain management of the residual and continuing effects of his prior back insults.
6. The plaintiff deposed that since the 2018 accident, and for 'most of the time', he experiences pain in his back and legs. He deposed that he experiences occasional tingling and numbness in the toes on both sides. His back feels as if it could collapse at any time. He feels a random electric shock type pain that runs from his back to his lower legs and which is very painful. He has some good days and some bad days, but pain is always present. Pain is at its worst when aggravated by his need to either sit or stand for longer than 15 minutes. He said he can only drive for up to one hour at a time without experiencing pain and that this limits the jobs that he had been able to apply for and meant that he needed to work from home. He deposed that he struggled to pick up his young son without suffering pain. Simple activities such as going to the park with his son and playing hide and seek around the house prove difficult.
7. The plaintiff deposed how Australian Rules football has been a significant part of his life since the age of five years old. He said he doubted he would play football again or engage in the physical activities he once did, and it 'shatters' him to contemplate that he will be unable to play kick to kick with his son when he is older.[40]
8. The plaintiff said he has always been a fit and active person. Before the 2018 accident he regularly went on long runs, played football, and surfed as well as skateboarding with his friends.
9. The plaintiff deposed to having engaged in an active intimate life before the 2018 accident but this has reduced significantly because of pain with resulting discordance in his relationship with his partner.
10. The plaintiff deposed that his ability to undertake chores around the house such as mopping, sweeping, and vacuuming has been adversely impacted. He said he is able generally to work in 10 minutes bursts, although even this effort occasions increased pain to his back, whereas before the 2018 accident, he encountered no such issue. He is now dependent on his partner to complete most of the household demands including sweeping, cleaning and looking after their son and he feels guilty because of his lack of contribution.
11. The plaintiff deposed that prior to the 2018 accident he enjoyed preparing healthy and nutritious meals for his family. He said cooking was a passion but one he no longer can pursue without it being accompanied by increasing pain. He described that simple activities such as cutting bread or chopping vegetables aggravates his pain.
12. The plaintiff deposed to a long standing interest in cars. He described how before the 2018 accident he spent hours in his garage but now pays a mechanic. His cars require specialist servicing in Melbourne which necessitates him transporting them from his home in Warrnambool at considerable expense.
13. The plaintiff said that he and his partner had planned to purchase a caravan and travel around Australia with their young son but as he can no longer sit for lengthy periods of time, this has been ruled out as impractical.
14. The plaintiff said that since the 2018 accident he has gained up to 30kgs.[41]
15. The plaintiff said he used to run up to 6 km every day. Running was a part of his typical routine but he is now restricted to walking at a slow to moderate pace, and only up to about 15 minutes, before he has a need to sit and rest.
16. The plaintiff said that since the 2018 accident his daytime energy levels are low. His mood is extremely variable, and he is easily irritated. He becomes 'grumpy' at his partner for no apparent reason, whereas before the accident he was calm and easy-going.
17. He sleeps poorly and wakes frequently during the night. It is very hard to get settled. He tosses and turns of a night. He will sleep for two to three hours at a time whereas before the accident he had no issues sleeping and had not suffered from insomnia.
18. He is constantly worried about his future prospects and those of his family and the capacity to provide for them. He said his work prospects are limited due to his injures.
19. The plaintiff said that he has needed to increase his consumption of Methadone in order to manage his worsening pain since the 2018 accident and this has been accompanied by the onset of extreme constipation.

1. In his second affidavit, the plaintiff deposed to having undergone further treatment. In 2022, he had two Ketamine infusions, around 6 months apart, that he described as extremely uncomfortable procedures. The first of them provided pain relief of about 3-4 weeks with the second affording him about 1-2 weeks relief from pain. But he said they were accompanied by terrible side effects and he felt as though he was "out of [his] skin", and he was "suicidal", so he ruled out further injections.
2. He deposed that in mid-2024, he had a further MRI of his lower back.
3. He said that at the end of 2024, he had a radiofrequency denervation procedure performed by Dr McCoy but that it "didn't really help at all".
4. He described having tried several different medications injury including Panadol, Oxycodone, Lyrica, Celecoxib, Naproxen, Tapentadol, Amitriptyline and Steroids.
5. He continues to see his GP,[42] as well as Dr McCoy, although he has not seen Dr McCoy for more than a year.
6. The plaintiff deposed that he had a spinal cord stimulator inserted in his back. It was turned off several years ago but he has scars and a lump from its implantation. He said the residual scarring is tender if knocked. He applies a cream on the scars regularly.
7. He deposed that he swims at a pool about 3 times a week and does some gentle laps to help loosen his back. He has attended clinical Pilates in an effort to stretch and strengthen his back. He said he sees his GP once a month, usually to obtain Methadone for back pain. He deposed that as a result of the transport accident that he is taking 80mg of Methadone each day, and which is a much greater amount than he needed to consume beforehand. He said he attends Seaview Health Medical Clinic for his general health needs.
8. At the time of swearing his second affidavit, the plaintiff was working full time for Barwon Health as an IT Customer Support Officer. He is required to drive around and between Barwon Health sites. He works light duties, which precludes lifting over 10kg and no twisting. He said he is unable to perform some parts of the job such as assisting in lifting heavy IT equipment. He can cope 'OK' with his work if he alters his posture frequently, but if he spends a long time seated in a chair working on a computer, or driving he becomes "quite uncomfortable".
9. The plaintiff deposed that he continues to be beset with constant aching lower back pain that extends into both legs and to his toes. He still can experience an electric shock type sensation in his left leg and calf. His pain is worse in the winter and on cold mornings when he feels very stiff. The range of motion of his back is restricted by pain.
10. He said he can sit for around 30 minutes before beginning to feel uncomfortable. He is able to stand in the one spot for approximately 20 minutes before beginning to feel uncomfortable and being compelled to move around.
11. He has trouble with long periods of driving and has to take regular breaks such as when driving to Melbourne.
12. He does what he can at home to assist his partner but has to avoid anything that involves bending or lifting.
13. He deposed that he is sleeping on the floor because he finds it more comfortable and as a result intimacy with his partner has been further disrupted.
14. He is careful when playing with and picking up his children because of the state of his back. He feels older than his years.
15. He said his weight is now around 20-25kgs greater than at the time of the 2018 accident and this has also affected his self-esteem.

1. In his second affidavit, the plaintiff corrected a matter deposed to in his first affidavit concerning his earlier football injury and his subsequent medication.
2. At paragraph 9 of his first affidavit, the plaintiff deposed that he was taking 10mg of Methadone daily. In his second affidavit, he said this was not correct. He said that prior to early mid-2017 (which would be about a year before the transport accident) he was taking 10mg of Methadone per day, (1x 10mg tablet). He said that after deposing to that, he was informed that medical records identify the Methadone prescription was for 30mg (3x 10mg tablets mane). Despite this prescribed amount, the plaintiff said he believed he only was taking 10mg of Methadone per day (1 tablet). However, he also deposed that in around April 2017, he experienced a flare-up of back pain and he attended his GP and requested that his prescribed dose be increased to address it and any further flare ups as and when they occurred. He said he believed that the increase was only temporary and he was required to attend 'Pain Matrix' for a further review of his longer-term medication needs. He deposed that his Methadone was temporarily increased to 40mg (4x 10mg tablets per day) to be taken as needed to manage acute pain. Despite this increase, the plaintiff deposed that most days he did not take a full dose of 40mg and he estimated that he was taking around 2 or 3 tablets (20 to 30mg) per day during this time as opposed to the 10mg to which he had deposed. He said that over time this left him with a surplus of several packets of tablets.
3. The plaintiff deposed that following the flare up of pain he experienced in April 2017, and in around June 2017, he saw Dr McCoy at 'Pain Matrix'. By then his back pain had returned to a 'baseline' level that existed before the flare-up. He deposed that he believed Dr McCoy recommended decreasing his Methadone dosage to 2 x10mg tablets (20mg per day), but also added another sustained release opioid to his regimen. He also thought that Dr McCoy referred him for an MRI scan possibly at the St John of God Hospital in Warrnambool.
4. The plaintiff said that he subsequently returned to see his GP, who was at that time Dr Fitzpatrick, and who may also have increased his Methadone dosage to cover any further potential flare ups of pain. Again, the plaintiff deposed that he would not have taken all of the tablets prescribed at that time, however, he continued to build up a surplus.
5. The plaintiff deposed that prior to the 2018 accident, he never consumed more than 4x 10mg tablets per day (40mg) of Methadone.
6. The plaintiff said that around the time he underwent a further MRI scan (which appears to have been in December 2017), he returned for a review with Dr McCoy who told him that there was no need for surgery, because his spine was essentially stable, and he recommended that the plaintiff continue to manage his symptoms conservatively.
7. The plaintiff said that in December 2017 he attended Terang Medical Clinic for a regular 3-monthly review. He believed that Dr Fitzpatrick was on holiday and so he saw another doctor. He said he was aware that the doctor's clinical note recorded that he was "Seeing pain management team at Epworth. Organised another MRI to see the progress as the symptoms got worse. He is taking 60mg of methadone at this stage, current permit is valid for only up to 100mg - will ask Tim to apply for it".
8. The plaintiff disputed the accuracy of the clinical note as it related to his Methadone use. He thought the doctor may have misunderstood the reason for his attendance and his approval permit. He denied ever having been provided a permit that allowed him to take up to 100mg of Methadone. He believed the permit,[43] that had been issued permitted him to take up to 60mg of Methadone, with up to 100mg total for "Morphine Equivalent Dose".
9. In any event, the plaintiff said he did not believe changes were ever made to his Methadone permit, because he did not require it, and he was successfully managing his symptoms with no more than 40mg but that this altered significantly in the wake of the 2018 transport accident.

1. In his second affidavit the plaintiff updated the effects he suffers and that he attributes to the 2018 transport accident. He deposed that he is now taking a minimum of 80mg of Methadone each day for pain. He said he has been told that he is in receipt of the maximum permissible dosage, however, on days when his pain is particularly bad, he will take a couple of extra tablets in the morning or evening from the surplus he accumulated from previous permit approvals. Consequently he can take up to 100mg per day or more when his pain is particularly bad.[44]
2. The plaintiff said that before the transport accident his pain extended into his left leg but that it now extends to both.
3. The plaintiff assessed his pain in the year before the 2018 transport accident on average as 3/10, and that it predominantly consisted of a mild niggling pain. There were occasional flare-ups which would elevate the pain to about 5/6 out of 10 but he said this was a rare occurrence. By comparison, his current pain in the order of 6.5 to 7/10 on average, and with very regular flare ups elevating it to a 9 or 10/10.
4. The plaintiff said that on about 27 June 2024 he suffered a flare-up of back pain while lifting some boxes at work. He remained in severe pain for several days, despite taking Endep which his GP prescribed. On 1 July 2024 he attended the Warrnambool Hospital. A CT scan did not identify any traumatic injury. He was given some temporary pain relief. A steroid injection was suggested if his symptoms did not return to what the plaintiff has described as his baseline.
5. At the end of 2024, the plaintiff had a radiofrequency denervation procedure performed by Dr McCoy but it provided no benefit.
6. On 19 October 2024, the plaintiff attended at the Warrnambool Base Hospital with pain in his right calf that came on after he assisted in pushing a trailer about a week earlier. He characterised the pain as very different from the regular experience of pain shooting down both his legs that followed the car accident. He understood a scan revealed a partial tear in his right calf. He was given a CAM boot, crutches and told to rest. He said he quickly recovered from this injury.
7. The plaintiff also referred to paragraph 26 of his first affidavit to clarify that although he suffered from intermittent difficulties with his bowels before the 2018 accident, since then it has become much worse. He is now constantly constipated which he attributes to his high dose of Methadone. He needs to take Laxettes, Coloxil, Lactulose and Senna to help his bowel movements and which he takes every day. His condition causes discomfort and embarrassment.
8. He can no longer drive comfortably to Melbourne as he regularly did before the 2018 accident.
9. The plaintiff said he could lift heavy weights before the 2018 accident despite his pre-existing back condition and would do so carefully but now he experiences pain even if adopting proper manual handling techniques.
10. The plaintiff further addressed his participation in football. He deposed that he was required to stop playing football after his first back injury. He said that he eventually got back to the point that he contemplated playing again, and that he "had a go a few times non-competitively", but he was unable to obtain player's insurance to compete. Instead, he took up coaching around two years before the 2018 accident. He said he could participate in drills as a coach but did not think he could do so nowadays due to back pain.
11. The plaintiff deposed that he ran regularly before the 2018 accident, including of a nighttime with his dog, and that he traversed substantial distances but no longer could do so. He said that his loss of physicality has contributed to weight gain.
12. The plaintiff deposed that he surfed regularly before the 2018 accident but that he could not now do so. He believed he last surfed a few weeks before the 2018 accident.
13. He said he used to snowboard in winter but has not done so since the 2018 accident because of back pain.
14. He used to skateboard weekly with his mates before the 2018 transport accident but could no longer do so due to the extent of his back pain.
15. He deposed that his sleep remains poor and that he continues to sleep on the floor. He manages only a few hours of decent sleep at a time, with the result that he feels tired during the day and adversely affects his mood.

1. Ms Byron made an affidavit in support of the plaintiff dated 14 July 2025.[45]
2. Ms Byron has been the plaintiff's partner since 2012. They have two children together.
3. Ms Byron said that she was aware that the plaintiff had suffered a back injury from playing football and that he was taking pain medication for this including Methadone/Physeptone which she believed was generally around 10-15mg. She said she would occasionally fill the prescription.
4. She said she did not recall the plaintiff taking 120mg of methadone daily before the accident. She said she understood that he is taking 80mg a day. She said the plaintiff more regularly mentions being in pain than he did before the 2018 accident and will often lie on the couch or on the ground due to pain.
5. Ms Byron said that the plaintiff used to regularly drive to Melbourne and Geelong without requiring a break but since the accident and when undertaking such a drive he finds it necessary to stop 3-4 times. He now undertakes that trip very infrequently.
6. Ms Byron said that prior to the accident they had a 50/50 split of the household chores but since the accident this has changed and she undertakes a majority of the household chores. She said that the plaintiff cannot cook, bath the children or mow the lawns and can only hang out lighter loads of washing because of the condition of his back.
7. Ms Byron deposed that the plaintiff sleeps on the floor 95% of the time which has affected their intimacy. She said that prior to the 2018 accident the plaintiff would perhaps need to sleep on the floor once a year.
8. Ms Byron said that she was aware that prior to the 2018 accident the plaintiff had issues with constipation but only sporadically, and perhaps once every few months, but it is now occurring every few weeks and for which he requires medication.
9. She is aware that since the 2018 accident the plaintiff has been unable to run as he previously did and that he struggles to take the dog for a walk.

1. The plaintiff also relied on an affidavit dated 1 August 2025 from his friend Nathan Packwood.
2. Mr Packwood deposed to having been a friend of the plaintiff for approximately 33 years.
3. Mr Packwood deposed that prior to the accident he knew the plaintiff as an active hobbyist, participating in activities including surfing, skateboarding, working on cars, attending live bands and social events as well as participating in sports including bike riding and playing AFL. He said the plaintiff was a good surfer and bodyboarder. They would often meet up, find the best surf break and spend hours in the water. He said that the plaintiff was a good skater.
4. Mr Packwood deposed that he and the plaintiff frequently participated in the same interests up until the 2018 car accident.
5. Mr Packwood deposed that prior to the accident he and the plaintiff would attend the pub and have a few drinks and watch a band and which the plaintiff no longer does with him and he has become more reclusive and less outgoing social.
6. Mr Packwood said the plaintiff ceased participating in sports and hobbies after the accident.
7. Mr Packwood said that the plaintiff appears to always be in pain or discomfort.
8. Mr Packwood said he had not previously noticed the plaintiff presenting with physical difficulties undertaking any activities and he had been a fit and active person.

1. The plaintiff relied on an affidavit of Glen Burke dated 1 August 2025.
2. Mr Burke said he has known the plaintiff for approximately 30 years.
3. Mr Burke deposed that growing up he and the plaintiff loved surfing and would go out as often as possible throughout the year. They would surf before, during and after school and continued to do in adult life where they would be out in the water 2-3 hours at a time.
4. Mr Burke deposed that the plaintiff also enjoyed skateboarding and playing AFL and that the continued playing until not long before the accident and but not since then.
5. Mr Burke said the plaintiff had been a sociable fellow and enjoyed going out to the pub for a few drinks and to see bands. He was unaware of observing the plaintiff with restrictions when they participated in the activities including surfing, skating and football.

1. Mr Henderson is an Orthopaedic and General Surgeon. He provided a report dated 6 June 2007 addressing the plaintiff's back injuries sustained while playing football. He reported that the plaintiff had been involved in an incident in 2003/2004, when he was "backing into a pack and was kneed in his back whereupon the pack collapsed on his back. When he went to stand he experienced pain in his lower back and left leg". Mr Henderson said a bulging disc was identified. The plaintiff had five caudal injections.
2. Mr Henderson recorded that on 1 July 2006 the plaintiff again injured his back in the first quarter of a football game. The following day he attended hospital due to referred pain in his left leg and toes as well and pain in his lower back.
3. Mr Henderson noted that the plaintiff had a laminectomy performed by Mr Kierce on 11 July 2006 and was off work for 10 weeks.
4. Mr Henderson said the plaintiff said that had been unable to return to normal work duties and had required assistance to lift computers and other items.
5. Mr Henderson said the plaintiff told him that he was pretty much normal after the last caudal injection, and although he still had some back pain, his leg pain had resolved.
6. Mr Henderson reported that the plaintiff experienced leg pain approximately once a month following the 2006 football incident and had also had reasonably regular back pain during this period of time. He had trouble driving for extended periods of time without the need for a break because of back pain, but that following the laminectomy his radiculopathy and symptomology within the L5/S1 region resolved.
7. On examination Mr Henderson found the plaintiff to have a fairly good range of movement in his thoracolumbar spine with the exception of restricted extension.
8. Mr Henderson's prognosis included the possibility that the L5/S1 intervertebral disc derangement injury the plaintiff had suffered could progress or reoccur and once again become troublesome.

1. Dr Finnigan was the plaintiff's General Practitioner following the retirement of his previous GP Dr Quinn. Dr Finnigan prepared a medical report dated 14 August 2021, as well as two letters of referral to Dr McCoy, dated 15 September 2022 and 11 July 2023.
2. Dr Finnigan recorded a history of lumbar back pain and a lumbar laminectomy at L5/S1 and of the plaintiff having been under the care of GP's Dr McCoy and Dr Fitzpatrick. She described a significant aggravation to his back injury from the transport accident and had since had a Spinal Cord stimulation implant trial and was prescribed 80mg of Methadone to manage his pain.
3. Dr Finnigan diagnosed an exacerbation of lumbar back injury as result of the 2018 accident, with lower limb radiation.
4. Dr Finnigan considered that the plaintiff's injuries were chronic and permanent in nature. She addressed the plaintiff's capacity for everyday tasks and said these were able to be performed by him so long as safe moving/lifting practices were adopted and that he avoided repetitive tasks.
5. Dr Finnigan thought that the plaintiff would benefit from hydrotherapy and Clinical Pilates in conjunction with his medication and other treatments.

1. The plaintiff tendered a suite of reports, letters, operation records and discharge summaries from Dr McCoy. In a report dated 16 July 2025,[46] Dr McCoy said that the plaintiff presented with ongoing troublesome back pain which interfered with his quality of life.
2. Dr McCoy said that the back pain was a combination of the most recent and significant motor vehicle accident in early 2018 from which the plaintiff had suffered a collapsed lung (fractured ribs and widespread musculoskeletal pain) but that occurred on a background of prior back pain, which was treated with sustained-release opioids, namely Methadone. Dr McCoy said that Methadone was being used specifically and primarily for the management of the plaintiff's pain and not as an opioid substitution.
3. Dr McCoy said that following the 2018 transport accident and later that year he saw the plaintiff after he experienced a significant flare-up of pain.
4. Dr McCoy said the plaintiff had been taking "some medication for back pain as a result of football injuries", however, he was working and functioning reasonably well. Dr McCoy said that after the 2018 accident the plaintiff was also functioning and was able to return to work but that his pain was significantly greater.
5. Dr McCoy said that the plaintiff had suffered musculoskeletal pain as a result of his football career but with his pain exacerbated by the 2018 accident.
6. Dr McCoy said the plaintiff described the pain that followed the 2018 motor vehicle accident as causing "some interference in his quality of life".[47]
7. Dr McCoy said it appeared that the 2018 accident had resulted in an exacerbating effect on the plaintiff's baseline pain.
8. Dr McCoy noted that the plaintiff's neurosurgeon had documented that the 2018 accident had aggravated the plaintiff's chronic back pain, but only to a minor extent. Dr McCoy said from his perspective, it is an impossible exercise to quantify in percentage terms or by a score what constitutes 'a minor extent'.
9. Dr McCoy said that in 2019 the plaintiff's opioid requirements increased.

1. Dr Quinn was the plaintiff's treating GP at the Cambourne Clinic from May 2018 until his retirement. Three reports as well as correspondence from him were tendered.
2. In a letter to Dr McCoy dated 7 June 2018, Dr Quinn wrote that the plaintiff was experiencing episodic pain radiating to both lower limbs and to his feet. He said that the plaintiff's recent MRI revealed "a degree of disc prolapse with impingement to the nerves bilaterally".[48]
3. In a report dated 6 September 2019, Dr Quinn referred to the plaintiff's history of lumbar back pain and of a lumbar laminectomy and that his injury had been "significantly aggravated as a consequence of the transport accident". He said that the aggravation had led to an increase in Methadone from 60mg to 80mg a day.
4. In a letter dated 6 April 2021, Dr Quinn said that the plaintiff was still in pain despite the insertion of a stimulator and of suffering constipation.

1. The plaintiff tendered two reports from Dr Epstein, Psychiatrist. In his first report dated 13 August 2024, Dr Epstein wrote that since the 2018 accident the plaintiff has experienced an exacerbation of pre-existing lumbar back pain with right-sided sciatica and had developed left-sided sciatica. His pain has become constant whereas prior to the accident his pain was intermittent with flareups.
2. Dr Epstein said that the plaintiff had not received any psychiatric or psychological treatment or counselling.
3. In his second report dated 6 June 2025, Dr Epstein said the plaintiff told him that in the main he had been sleeping on the floor in either the lounge room or bedroom as he finds the mattress too soft. He tries to sleep from about 10:00pm but has difficulty doing so because of pain and it may take him upwards of two hours or more to get to sleep and he always feels exhausted. He is a light sleeper and wakes frequently during the night due to pain.
4. Dr Epstein said that the plaintiff had recently been waking feeling panicky from occasional nightmares about the accident.
5. Dr Epstein related that the plaintiff's routine is to rise at about 5:00am when his younger son wakes. He showers. He shaves every three days. He adopts daily oral care. His partner helps him put on fresh underwear every day as well as assisting with him putting on his pants and socks as he is very stiff in the morning.
6. His partner looks after the children but he might make toast for them but can do little else.
7. He is driven to work by his partner between Mondays and Thursdays with the commute taking only about five minutes. She then drops off the children at daycare and kindergarten and goes to work herself. She has Friday off work and the children do not attend daycare and kindergarten of a Friday so the plaintiff drives himself to and from work.
8. The plaintiff reported that he continues to perform very little housework. He said his partner has to do the lawn and garden maintenance, food preparation, cooking and shopping.
9. The plaintiff told Dr Epstein that his young sons have grown heavier and due to more recent back pain he is unable to do much with them and is frustrated by his inability to physically interact with them.
10. He needs to alter his position every 10 minutes or so at home. He uses heat beads constantly at work and at home and that seems to be effective in relieving some of the pain.
11. Dr Epstein said the plaintiff identified constant low back pain in the midline extending down the back of both legs to his toes with pins and needles and numbness in his feet. The pain continued to radiate down the front of both legs. He also at times suffered severe abdominal pain from constipation.
12. The plaintiff told Dr Epstein that the pain he suffered before the 2018 accident was situated in the same location in his back and right leg but not in his left leg and he was often free of pain but with flareups every six months or so. He was able to undertake a full range of activities before the 2018 accident.
13. The plaintiff said his pain is worse with bending, lifting, twisting, sitting more than 30 minutes and walking more than 15 minutes. He has not been able to resume any of his former recreational activities including running, surfing, skateboarding and coaching because of pain. He still has occasional episodes of vertigo lasting for an hour or so every two months.
14. He experiences flashbacks of the accident every two weeks. He has recurrent intrusive thoughts about the accident when in a car and has avoided returning to the accident scene. He is more anxious as a driver and prefers being a passenger but is still anxious even when his partner is driving. He also worries more about her safety when she is driving. He is upset seeing or hearing about accidents.
15. Whenever he has needed to travel to Geelong he has had to stop at least twice on the way because of back pain and sometimes has felt the need to lie down on the grass verge.
16. He said he worries whether he will be able to keep working in light of increasing pain. He said that he has been taking about three days a month off work because of his back pain and has tried working from home. He is very concerned about his future both with regard to his employment and taking care of his family.
17. He said he still feels flat about 90% of the time. His self-esteem and self-confidence remain low and he often feels bored, restless and frustrated. He feels lonely and isolated. He is often irritable and always feels exhausted because of lack of sleep and is less motivated. He is more easily agitated and remains unsociable. He has no problems with memory but has difficulty with concentration because of fatigue. He said he is still interested in his appearance. His libido remains low and when he does have sexual activity he has to be very careful with his position because of back pain. He is not as affectionate with his partner as he used to be and although she remains very supportive he feels he is a burden both to her and to his children.
18. He attends Dr Daffy at the Seaview Clinic monthly. He sees his GP for renewal of prescriptions. He has had no contact with Dr McCoy since October 2024 and has no other healthcare providers.
19. He said he takes 50mg of Methadone twice a day (i.e. 100mg) and has Movicol sachets and a syrup for his constipation but does not take any other medication.
20. He does not use illicit drugs.
21. Dr Epstein thought that the plaintiff would still benefit from involvement in a multidisciplinary pain management program including a psychologist to help him develop more effective techniques to manage his chronic pain. In the absence of the same, Dr Epstein then suggested that he would benefit from involvement with psychological counselling, initially weekly for a month, and then every two weeks for three months, and then monthly for a further six months to help him develop strategies for managing chronic pain and his associated depression.
22. Dr Epstein said that the only treatment that seems to help the plaintiff's back is the use of heat beads. The 100mg of Methadone he was taking of a day, was a practice that Dr Epstein thought was probably leading to an opiate dependence as well as to severe constipation.
23. Dr Epstein believed that the plaintiff's quality of life remained diminished and was affecting his relationships and his recreational capacity. He was continuing to work full-time. His mental state was not interfering with his work capacity although his chronic fatigue arising from sleep disturbance due to pain interfered with his work.
24. Dr Epstein considered that the plaintiff's prognosis with his chronic pain was poor because he had a long history of low back pain with the 2018 accident appearing to have been associated with an exacerbation of that state of affairs and that had remained constant over the last seven years.
25. Dr Epstein diagnosed the plaintiff with PTSD, chronic adjustment disorder with mixed anxiety and depressed mood.

1. Associate Professor King is a neurosurgeon who furnished a medico legal report to the plaintiff's solicitors dated 17 March 2015.
2. Associate Professor King recorded that in 2002 when playing football the plaintiff injured his back and that a subsequent CT scan disclosed a disc prolapse. Professor King said this settled with a caudal injection. In 2004, the plaintiff suffered another football injury to his back and a third injury occurred in 2006. The latter incident was treated by another caudal injection which provided relief for 6 months and then a L5/S1 laminectomy was performed by Mr Paul Kierce. The plaintiff was able to return to work in 10 weeks. He gave up football in favour of coaching.
3. Associate Professor King recorded that in 2012, the plaintiff developed left leg pain. He had a CT scan followed by an injection under Mr Tiew Han, neurosurgeon with initially good results. Later, however, his pain returned and he commenced on Targin and OxyContin but which made him drowsy. By 2014 he was troubled by back pain and left leg pain. He reduced his weight from 120kg to 95kg and took up hydrotherapy.
4. Associate Professor King recited that the plaintiff's further history included in 2017 attending Dr McCoy when his left leg pain was not responding to OxyContin, and he was prescribed Physeptone and Methadone.
5. Associate Professor King recorded that about two weeks after the 2018 transport accident the plaintiff experienced low back pain radiating down both legs.
6. The plaintiff's GP referred him to Dr McCoy once more and he had a caudal injection and later a lumbar epidural but without much benefit. A trial of a spinal stimulator (neuromodulation) followed which proved very helpful and he was able to come off Methadone and reduce Physeptone. Three months later he had a stimulator implanted at Epworth but had a poor response despite repeated re-programming. He said a 7 day trial of ketamine infusion in 2023 made him feel as if he was going to die.
7. Associate Professor King reported that the plaintiff's major complaint was of a constant dull pain in both legs which he described as 9/10 but reduces to 3/10 when he takes his medication. The pain radiates from his lower back through the buttocks down the back of both legs into the soles of feet and toes. The pain is aggravated by lifting, bending, and hot weather and eased by medication and hydrotherapy 3 times a week. There was no numbness or tingling in the legs. Walking downstairs results in an electric shock like pain in the left calf.
8. Associate Professor King noted that the plaintiff was unable to undertake his past personal and recreation activities due to chronic pain. These included swimming, surfing, beachcombing and snowboarding. He was no longer able to run or walk the dog, or play as regularly with his small children as he would wish to, and his social life had become very restricted. He recorded that although the plaintiff could do the dishes and cooking and help with the shopping he did not mow the lawn or attend to gardening.
9. Associate Professor King related that the plaintiff's past history included 3 lower back injuries from playing football from 2002 to 2006 that had culminated in a lumbar laminectomy at L5/S1 for a left side disc prolapse.
10. Associate Professor King reported that the plaintiff had been on a Methadone program of 120mg daily before the 2018 accident.
11. Associate Professor King said that the plaintiff's prognosis "for recovery must be poor given the lack of improvement over the last 7 years". He said that the plaintiff's ongoing need for opiates is a matter of concern.
12. The plaintiff told Associate Professor King that although he was working full time with Barwon Health in IT he required more sick leave due to back and leg pain than had been the case in his previous employment.
13. The plaintiff reported a major problem associated with his analgesic intake is that he had only opened his bowels every 4 days with taking multiple laxatives but on one occasion went 3 weeks without relief.
14. The plaintiff reported feeling depressed and angry. He claimed to only sleep 2 hours each night.
15. Associate Professor King said that in his opinion the plaintiff suffered an aggravation of lumbar spondylosis as a direct result of the 24 April 2018 accident.

1. Mr Russell Miller, Orthopaedic Surgeon provided a report to the plaintiff's solicitors dated 16 April 2025. Mr Miller reported that the plaintiff complained of severe low back pain and discomfort radiating in both legs, predominantly the left foot and the presence of numbness and tingling. He experienced sleep disturbance and difficulty with activities of daily living. He reported a marked deterioration in his pre-existing low back symptoms.
2. Mr Miller understood that there were pre-existing mental health issues the plaintiff suffered and these included anxiety and depression and that he had been on a Methadone program. He reported a deterioration in his mental health since the 2018 accident. Mr Miller said the development of a chronic pain syndrome required assessment by a psychiatrist. Mr Miller said the plaintiff remained on a Methadone program but with an increased dosage.
3. Mr Miller said the plaintiff's treatment regime consisted of a range of medications including Physeptone. The plaintiff told Mr Miller that he had "tried a number of medications in the past but has found them largely ineffective".[49] He said he was having ongoing hydrotherapy approximately three days per week and uses an aid to assist him with dressing. He had undertaken "extensive pain management including two ketamine infusions, an insertion of a spinal cord stimulator, and a number of epidural injections following the accident".[50]
4. On physical examination, Mr Miller reported as follows:[51]

Cervical Spine: Examination of the cervical spine was unremarkable. > > Lumbar Spine: Examination of the lumbar spine revealed a long left sided vertical scar and a further lateral scar (in relation to spinal cord stimulator). The range of motion was: > > > > Flexion 40°
> > >
> > > Extension 10°
> > >
> > > Rotation L 20°
> > >
> > > Rotation R 25°
> > >
> > > Lateral Flexion L 20°
> > >
> > > Lateral Flexion R 25°
> > >
> > > Straight leg raising caused low back discomfort on the right side at 40°. > > Chest: Examination of the chest revealed a lateral scar (site of intercostal catheter insertion). > > Functional Test: The client walked with a marked limp on the left leg. He could not kneel, squat, or hop on the left leg. > > Neurological Examination: Neurological examination revealed a slightly diminished sensation on the lateral border of the left foot. There is also a diminished left ankle jerk. The neurological examination was otherwise unremarkable.

5. Addressing the plaintiff's capacity for work as affected by the condition of the lumbar spine, Mr Miller thought he will encounter difficulty with work involving repetitive bending, lifting, lifting of weights of more than 5kg and will have a requirement to shift his posture on a regular basis.
6. Mr Miller suggested that the plaintiff's "mental health and the development of chronic pain symptoms further impact his work capacity and pose a barrier to his return to work pathway".[52] He reported that he was working in a modified manner and that his restrictions will likely be permanent and are accident related.
7. Mr Miller thought that the plaintiff will require ongoing conservative treatment including additional rehabilitation measures such as physiotherapy, hydrotherapy and ongoing attendance at a multidisciplinary pain management program.
8. Mr Miller conducted a lifestyle evaluation. He reported that the plaintiff is able to drive a motor car but has difficulty driving long distances. He has difficulty walking long distances. Prior to the accident, he was able to do most domestic and gardening activities by himself. He now has difficulty with these activities and they are largely undertaken by his partner. He reported being previously a fit and outdoors activities person and enjoyed running, playing competitive football, surfing and skateboarding and working on his car, but has not been able to resume them.

1. Professor Bittar, Consultant Neurosurgeon, provided a report to the plaintiff's solicitors dated 31 May 2025.
2. Professor Bittar reported that the plaintiff complained of constant lower back pain radiating down both of his legs and extending across the mid and lower lumbar region and radiating through his buttocks into his hamstring, calves and feet. The plaintiff described the pain as sharp, dull, gnawing and aching with an average severity of 8/10 and a maximum severity of 10/10. The plaintiff said the pain is exacerbated when bending, twisting, lifting, pushing, pulling, coughing, sneezing, and straining.
3. Professor Bittar said the plaintiff's treatment included Physeptone 80mg daily, review by a pain specialist every six months and previously having undergone radiofrequency ablation of a nerve from which he did not experience any benefit.
4. Professor Bittar diagnosed the plaintiff with a sustained aggravation of lumbar spondylosis secondary to motor vehicle accident on 24 April 2018. He thought that the plaintiff's chronic lumbar spondylosis and status post L5-S1 laminectomy pre-dated the motor vehicle accident, however, he believed that the aggravation of the lumbar spondylosis is directly related to the 2018 transport accident.
5. Professor Bittar addressed the plaintiff's previous history of football injuries and said that:[53]

"Mr King has a history of lower back pain following a football injury nearly 25 years ago, in 2002, when he was backing into a pack and was hit from behind. He was taken to hospital, prescribed Panadeine Forte, and discharged. The next day, he was unable to get out of bed and an ambulance was called. After scans were performed, he was flown to Geelong where he underwent an L5/S1 laminectomy in 2004, approximately two years after the football injury. He experienced chronic pain following the surgery. Caudal epidurals did not provide relief. He was on methadone for chronic pain management. Despite the chronic pain, he returned to football for two to three years before transitioning to coaching. While coaching, he continued running and participating in some drills during training. Around 2010, he was managing his pain with Targin, taking one to two tablets every two to three days. He experienced head sweats as a side effect of the Targin and requested an alternative medication. He was then transitioned to methadone due to these side effects, rather than poor pain control. He was on the methadone programme for his prior back problems at the time of the motor vehicle accident. He had a left L5-S1 decompression in 2004 as a result of a football injury. He recovered well from the surgery and was able to return to vocational pursuits, including playing football. However, at the time of the motor vehicle accident, he was still having annual check-ups with pain specialist Dr Diarmuid McCoy and taking 10mg of methadone daily. Despite this, he had good days where he experienced minimal pain and was able to play sports and maintain a full range of motion".

1. Dr Bones is a consultant occupational physician. Dr Bones provided a report dated 26 September 2018 following on an examination of the plaintiff.
2. Dr Bones obtained a history from the plaintiff including the accident circumstances and that the injuries that had been identified at the Warrnambool Base Hospital were pneumothorax, lung contusion, multiple rib fractures and a fractured lumbar vertebrae, being the L1 vertebrae and were consistent with a significant compression-type injury to the lumbar spine.

1. Dr Clayton Thomas is a Consultant in Rehabilitation and Pain Medicine. He provided a report dated 25 April 2019 following an examination of the plaintiff.
2. Dr Thomas reported the plaintiff's symptoms as pain in his back and down both legs, the left side being more painful and occasional tingling and numbness in the toes on both sides. The plaintiff described his back as feeling like it is jelly and as if it will collapse on him.
3. MRI imaging demonstrated degenerative changes in the lower two levels including a right far lateral disc prolapse on the L4-L5.
4. Dr Thomas commented on the plaintiff's mental risk factors. He said there was certainly no evidence of substance abuse. He noted that a neuromodulation trial was unlikely to solve the issues of his pain syndrome but that the plaintiff was committed to trying the therapy.
5. Dr Thomas provided a supplementary report dated 16 August 2019. In it, he provided his opinion regarding a trial of neuromodulation and that it would need to be under careful monitoring to ensure it was positive. He commented that the primary problem was the plaintiff's dependence on opioids and consequently interventional type treatments such as neuromodulation were unlikely to be helpful.

1. Dr Colman is a gastroenterologist who provided a report dated 17 May 2022 following a telehealth IME assessment.
2. Dr Colman noted the plaintiff's history of constipation while he was in hospital following the accident and of ongoing digestive problems since. The plaintiff described an inability to pass a normal bowel motion, sometimes for up to five days. He described episodes every two months of severe abdominal pain, sweating and of needing to spend six hours on the toilet straining to have a bowel movement. He can pass blood and experience waves of pain that settles after diarrhoea.
3. Dr Colman noted that the plaintiff's medication to assist with his constipation included Actilax, Movicol, Metamucil and Coloxyl. Dr Colman described the development of constipation to be associated with the use of large quantities of painkiller medication taken by the plaintiff and that was required as a result of the injuries he suffered in the 2018 accident.

1. Associate Professor Richard Williams provided the TAC with an IME report dated 13 September 2023 following his examination of the plaintiff conducted on 5 September 2023.
2. Associate Professor Williams diagnosed the plaintiff as presenting with aggravation of pre-existent lumbar spondylosis maximal at L5/S1 level.
3. Associate Professor Williams said that the plaintiff's pre-existing degenerative condition had been operated on in the distant past and that his current condition represented a traumatic aggravation of the pre-existing process.
4. He considered that the plaintiff's prognosis would be of a persistence of current symptoms over an indefinite time period.
5. Associate Professor Williams commented that the level of pain which the plaintiff experiences appeared somewhat inconsistent with the radiological findings and he made note of the intercurrent psychosocial influences of long term Methadone usage.
6. Associate Professor Williams commented on the plaintiff's reported incapacity in activities of daily living and in leisure activity and said that they may be somewhat overstated.

1. Mr Tiew Han is a Consultant Neurosurgeon who reviewed the plaintiff upon referral from Dr Du Toit. Mr Han reported back to Dr Du Toit on 9 December 2013.
2. Mr Han said he obtained a history that the plaintiff had injured his back 5 years earlier playing football and had 5 caudal injections and a laminectomy performed by Mr Kierce.
3. Mr Han noted that "he made a slow but steady recovery and he was good for 2 years. Following that, he developed stiffness in his back and recurrent left sided sciatica".[54] The plaintiff reported the pain to be bothersome at times and he has had numbness down the lateral aspect of the foot.
4. Mr Han said that the plaintiff had trialled Lyrica and was on OxyContin 10mgs twice a day.
5. Mr Han agreed with Dr Du Toit's opinion that the plaintiff should undergo a trial of caudal or transforaminal injection to see if it assists with pain and told the plaintiff to organise the same through Mr Du Toit.
6. Mr Han prescribed the plaintiff Targin 10mgs twice a day as he had been complaining about constipation. Mr Han noted that if the trial injection did not bring the pain under control then plaintiff may require further surgery either in the form of a microdiscectomy or a lumbar fusion at L5/S1 level.

1. It was Dr Tim Fitzpatrick, General Practitioner, who made a referral of the plaintiff to Dr McCoy dated 19 April 2017 for opinion and management. Dr Fitzpatrick recorded that the plaintiff wanted to increase his opioid dose of Methadone to 40mg daily. He reported that the plaintiff was working full time and had not experienced any aberrant behaviour and was very 'contentious' with his medication. He said that the plaintiff had completed a urine drug screen that Dr Fitzpatrick expected would be fine.
2. Dr Fitzpatrick noted the plaintiff's past history of depression, back pain and laminectomy and that his current medication was Methadone hydrochloride 10mg tablet.

1. Associate Professor John Laidlaw, Neurosurgeon, provided the TAC with two IME reports dated 24 May 2025 and 4 July 2025.
2. In his first report, Associate Professor Laidlaw recorded that the plaintiff experienced fairly constant pain in the bilateral mid lumbar going to the hamstrings, both calves and into the soles and the toes. He also experienced sudden pulses of very severe pain four to five times per week in the same area. The plaintiff reported suffering from extreme constipation with severe abdominal cramps and even requiring disimpaction. The plaintiff was unable to drive in the wake of the accident and "every time he would think about trying to drive he would feel paranoid and sweaty".[55] The plaintiff reported that the ketamine use had caused him serious psychological issues but there had been no recurrence of them after ceasing ketamine. There was reported episodes of vertigo and vomiting, the first of these occurring in 2024 and that he had suffered three to five further episodes since.
3. Associate Professor Laidlaw recorded the plaintiff's past medical history of two football injuries to his back. The first of these occurred in his early 20's and he had suffered severe left sided sciatica with pain radiating down the left lower limb into the foot. That episode was treated with a caudal epidural and he returned to playing football. The second episode was treated with a lumbar laminectomy performed by Dr Kiers and the plaintiff reported after his surgery he was "100% with no pain, required no analgesia, and was able to go back to playing football".[56] The plaintiff then reported that about three years after the surgery, he started having a bit of back and left leg pain requiring specialist pain management with Dr McCoy. He reported experiencing back pain 18 months before the accident which was well managed with OxyContin 10mg twice a day and he said that the pain condition he had before the 2018 accident was very different to what he has experienced since then and his analgesic requirements have also dramatically increased.
4. Associate Professor Laidlaw recorded the plaintiff's current medication to include Methadone Hydrochloride 10mg. The plaintiff reported being on many tablets for constipation every day and a review of an IME gastroenterology report appeared to identify them to have included Actilax, Movicol, Metamucil and Coloxyl.
5. Associate Professor Laidlaw described the prognosis for the 2018 accident related injuries, taken in isolation as excellent, as they had resolved and were not expected to cause further problems. He said that the prognosis of his pre-existing pain condition and his degenerative spondylosis is poor and would be expected to progress with age, however, he did not think that the 2018 accident would influence the progression or sequalae of that condition.
6. Associate Professor Laidlaw reported that the plaintiff had sustained acute injuries including right pneumothorax, fractured rib; right ribs 1,3 and 4, left rib; rib 1 and small lung contusions in the 2018 accident.
7. Associate Professor Laidlaw reported that there was an incorrect diagnosis of a L1 fracture documented in Dr Catherine Bones and Dr Thomas' IME reports, noting that the lack of clinical or radiological evidence to suggest or support that diagnosis, or evidence of any other spinal fractures. He noted that the plaintiff reported that all of the chest/rib problems completely resolved after intercostal catheter and conservative management in 2018 and have not caused him further symptoms since then. He said that there is no evidence of any new spinal column or neurological injury following the 2018 accident. The plaintiff did report that his chronic back and lower limb pains which were present before the accident worsened following the accident.
8. Associate Professor Laidlaw reported the plaintiff as presenting with an extensive spinal history preceding his 2018 accident including chronic back and lower limb pain.
9. Associate Professor Laidlaw did not consider any need existed for operative or interventional treatment for the 2018 accident related injuries.
10. Associate Professor Laidlaw reported that the plaintiff genuinely believes that all of his current problems are largely attributed to the 2018 accident. He said, however, that having reviewed the lengthy material provided there were attendances before the 2018 accident for similar conditions to his current problems including back and lower limb pain/symptoms, constipation, and vestibular neuronitis/dizziness/ear problems. Methadone usage was similar to before the accident and there was some note of psychiatric issues before and after accident, although he acknowledged that the relationship between that and the accident was beyond his expertise.
11. Associate Professor Laidlaw said that in his opinion the 2018 accident aggravated the plaintiff's chronic back pain condition, but only to a minor extent.
12. Associate Professor Laidlaw said he did not believe any accident related injuries impacted on the plaintiff's ability to engage in work and he did not believe the 2018 accident injuries interfered with the plaintiff's domestic and leisure activities.
13. On assessing the plaintiff's activities of daily living, Associate Professor Laidlaw reported that self-care and personal hygiene are difficult because of his back and lower limb pains. He manages his own bathing, grooming, dressing eating and elimination most of the time. He said his partner sometimes needs to help if he having problems wiping himself because of his pain. He has trouble picking things up off the floor. He spends a lot of time lying on the hard floor and even sleeping on the floor and says it is the most comfortable position for him most of the time. He can only lift or carry very light objects and his driving is restricted. His social activities are restricted.
14. On physical examination, Associate Professor Laidlaw reported that the plaintiff exhibited mild to moderate restriction of lumbar movements, mildly reduced lumbar lordosis, no formal signs of radiculopathy, no motor loss, reflexes normal, no myelopathy, no evidence of cranial or cervical problems, well health spinal stimulator scar, lumbar laminectomy scar and cosmetically marginal appendicectomy scar.
15. Associate Professor Laidlaw said that the aggravation injury had resolved to the pre-2018 accident state and that it was no longer a contributor to the plaintiff's spinal condition.
16. In his second report, Associate Professor Laidlaw commented on a number of other reports.
17. Addressing Mr Henderson's opinion, Associate Professor Laidlaw commented that he had identified only mild restriction of lumbar movement and no neurological deficit and no impairment assessment methodology was specified.
18. As to Dr McCallum's report dated 2 December 2024, Associate Professor Laidlaw commented that Dr McCallum had noted the plaintiff's back and bilateral lower limb pains, chronic constipation and of a resolution of the chest and rib problems.
19. Associate Professor Laidlaw suggested that Dr McCallum had not been informed that before the 2018 accident the plaintiff's chronic back and lower limb pain had required Methadone for a number of years, with deterioration of pain in the back and lower limbs in 2017 requiring specialist pain management assessment, consideration of neuromodulation, and increasing doses of Methadone and other narcotics. He further commented on the diagnosis of a fractured L1 vertebral body, noted in other reports, but of it being an incorrect diagnosis.
20. On reviewing Associate Professor King's report, notably that the spinal cord stimulator surgery left a 16 cm prominent scar on the back, Associate Professor Laidlaw commented that that documentation is not accurate, with the large vertical paramedian/midline scar being caused by the plaintiff's pre-accident lumbar laminectomy performed in 2006. He further commented that Associate Professor King's opinion that the spinal cord stimulator was implanted as a consequence of the 2018 accident, suggested that he was not aware that the spinal cord stimulation way discussed and considered to be a reasonable option in 2017 but had not been performed because the plaintiff did not have private health insurance.
21. Associate Professor Laidlaw commented on Mr Miller's report dated 16 April 2025. He suggested that Mr Miller had not been made aware of the full extent of the plaintiff's chronic back and lower limb pain and chronic narcotic use before the 2018 accident. His examination reported walking with a limp, some restriction of lumbar movement, scars and slightly diminished sensation on the lateral border of the left foot, diminished left ankle jerk but otherwise unremarkable neurological examination. He further commented that the superimposed injury is not specifically diagnosed and no evidence is provided or any traumatic lumbar pathology arising out of the accident. There was also mention of a subsequent development of a chronic pain syndrome which he said suggested Mr Miller thought had arisen after the 2018 accident due to him not having been aware of the full extent of the plaintiff's pre-accident chronic pain problems.
22. Associate Professor Laidlaw commented on Professor Bittar's expressed disagreement with his opinion. He said that his examination findings were very similar to his own, not finding any objective deficit other than restriction of back movements, stiffness in back, reduced lumbar lordosis and scarring. Whilst agreeing that the plaintiff currently has a significant disability caused by his chronic pain condition, he cannot find evidence that's the plaintiff chronic back and lower limb pains deteriorated significantly at the time or soon after the accident and the objection assessment of his analgesic use suggests that he has only recently 6 years after the accident returned to his pre accident requirements. He commented that Professor Bittar, whilst disagreeing with his opinion that the 2018 accident is no longer a significant contributor to the plaintiff's spinal condition, provided no reasons to the contrary other than by restating his position.
23. Based on his review of the documentation of the plaintiff's analgesia use, Associate Professor Laidlaw concluded that his opioid requirements are now very similar to those in the weeks/months before the 2018 accident.
24. With respect to weight gain, Associate Professor Laidlaw referred to 'very exaggerated' information provided to Professor Bittar and Dr McCallum about a weight gain of up to 30kg and 18kg. He suggested that the plaintiff's weight gain increased significantly in the decade before the 2018 accident, but since then has only slowly increased by up to 9kg. Dr Thomas had recorded 103kg on 25 April 2019, Professor Williams recorded 107kg on 13 September 2023, and Mr King recorded 112kg on 10 June 2025.
25. With regard to constipation, Associate Professor Laidlaw referred to the report from Dr Coleman that the plaintiff had developed constipation for the first time whilst in Alfred Hospital in the wake of the 2018 accident but this he suggested contradicted the records that indicate significant opiate-associated constipation before and after the 2018 accident.

1. The defendant relied on a report written by Dr McCoy to Dr Tim Fitzpatrick dated 23 June 2017 following Dr McCouy's consultation with the plaintiff.
2. Dr McCoy told Dr Fitzpatrick that he recalled the plaintiff from a number of years ago when he reported "some increasing pain but at that sarge it was at least somewhat responsive to the methadone". The plaintiff had told Dr McCoy that he was getting increasing pain and radiation to his lower limbs. The plaintiff's main concern was much more troublesome pain thought that in his back, legs and the associated constipation resulting from the pain medication.
3. Dr McCoy thought that another MRI scan to see if surgical intervention would be of any benefit. He said he also gave the plaintiff a sustained release Hydromorphone (4mg) that would be equivalent to 20mg of Morphine or the equivalent does dose of Methadone and would allow him to decrease the Methadone to 20 mg either as a single or divided doses per day.
4. Dr McCoy reported that depending on MRI results the plaintiff should see a neurosurgeon if surgery was contemplated but that consideration could be given to neuromodulation which would be a more reasonable option "however without private health insurance will have to do to the public system and there would be some restrictions on this. We probably could do some sort of a workaround".

1. The plaintiff accepted that at the time of the 2018 accident he was working full time for Telstra as an IT sales manager and returned to work some number of weeks later. He agreed he subsequently worked for 'Our Property' in 2021 and then moved to his current employer, Barwon Health where he remains in full time employment. He said he works approximately 10 per cent of the time from home with the remainder of his duties requiring him on site and attending to various Barwon Health sites as far away as Portland that takes about one hour to travel.
2. The plaintiff said he recovered well from the 2006 football injury that resulted in a laminectomy at L5/S1. He said he experienced a significant reduction in pain.
3. Mr Stanley challenged the plaintiff concerning the range of activities he said he could perform prior to the 2018 accident in light of the preexisting condition of his back. The plaintiff maintained that he had been able to engage fully and meaningfully in various recreational endeavours and that he had been able to perform domestic chores around the home. He said that there was nothing holding him back prior to the 2018 accident and that he could engage in 95 per cent of his activities but that he now struggles with every day activities and is restricted in his recreational pursuits.
4. The plaintiff agreed that the work he described himself as able to perform on his cars in about 2017 was physically demanding, and of a type that would be expected to place a strain on his back, but he maintained that he was capable of spending upwards of two hours working on them without back pain. He said he could run and play fetch with his dog in the park. He could skateboard with friends without back pain and he did so regularly. He said that he had not encountered problems sleeping before the 2018 accident. As far as surfing is concerned, he thought that he last did so about a week before the accident and he maintained that before the accident he could lift whatever weight he wanted to with care.
5. The plaintiff agreed with Mr Stanley's characterisation of his evidence as having been intended to identify that there was nothing holding him back prior to 2018 and although he was not 100 precent, he was "probably 95 per cent".
6. The plaintiff was asked about the report from Dr Colman whom he saw in May 2022. The history Dr Colman recorded was of the plaintiff having said that he had recovered completely from the football injury and spinal surgery. Mr Stanley suggested that the account the plaintiff gave to Dr Colman was consistent with other reporting he made of his pre accident condition, for example, to a Medical Panel and to Dr Epstein in August 2024, as well as to Professor King who reported that the plaintiff told him that his present state prevented him swimming, surfing and snowboarding, each of which he had been able to enjoy before the accident in 2018.
7. The plaintiff agreed that in 2025 he told Mr Miller that prior to 2018 he had been able to return to competitive football and had experienced only a few functional limitations and had been a fit and active outdoors man.
8. The plaintiff said he ceased playing football in 2007 because he had "moved away" and that he had told Associate Professor Laidlaw that he had commenced football coaching and continued with this until 2016 when he stopped because he moved to Adelaide and not because of the condition of his back.
9. The plaintiff said his pain before the 2018 accident was 'minimal'. When Mr Stanley directed him to a report from Mr Clayton Thomas of April 2019 that he "reported no back pain prior to 24 April 2018", the plaintiff said "yep". However, he also agreed with the report of Dr Epstein that before the 2018 accident he was "often pain free with flare-ups every six months or so".
10. Mr Stanley directed the plaintiff to another account of his pre accident pain reported by Associate Professor Williams in September 2023, of it being in the range of 1 to 2 out of 10 which the plaintiff said, "would have been true".
11. When Mr Stanley suggested to the plaintiff that if had not been in pain there would be no need for pain medication the plaintiff said that even with pain of the order of 1 to 2 out of 10, "you still need some medication". To Mr Stanley's proposition that the use of prescribed pain relief to address flare-ups of pain every six months or so, would not account for taking medication on an ongoing and daily basis, the plaintiff said, "I always have some pain but very minimal". He maintained that before the 2018 accident he suffered from some pain of the order of "1 to 2 out of 10" although he agreed he used Methadone daily.
12. The plaintiff accepted that OxyContin and Methadone are strong opioid based drugs. He denied being previously told that Methadone fell at the extreme end of the spectrum for pain relief but he said he was aware that the drug required government approval to be prescribed. He said he was also aware of Methadone's uses including for drug addicts.
13. The plaintiff said OxyContin had left him in an awful state and his doctor expressed concern about addiction and prescribed Methadone and also in the hope that it would also have a beneficial effect on the constipation he was suffering.
14. The plaintiff explained that he was taking Methadone probably because it is a "a little bit more maybe around the addiction" than for pain. He said that up to the time of the 2018 accident he had been taking Methadone for "moderate pain" and because of what he believed at that time was an addiction.
15. The plaintiff denied that his pre 2018 accident pain had been persistent as opposed to flaring up "every now and then". He said he would take "minimal Methadone and only use extra when needed". He said he was experiencing moderate pain but he also accepted that prior to 2018 he told doctors that he had no pain but what he meant to convey was that he had been experiencing "little to no pain".
16. The plaintiff agreed with Mr Stanley's summary of his evidence that his 'baseline' could be described as consistent pain of the order of 1 to 2 out of 10, with a flare up approximately every six months.
17. The plaintiff denied taking Methadone when he was pain free and prior to the 2018 accident, however, he also said he took Methadone during pain free periods and between flare ups but "Only as required" which he said was when he experienced "a bit of pain down my leg I'll take a couple of tablets".
18. Mr Stanley directed the plaintiff to the CT scan of his spine dated 7 February 2012 that recorded "Flared up again, laminectomy atL5/S1 five years ago, pain radiating to the left lower limb. ? sciatica".
19. The plaintiff said that doctors he had seen included Dr Cameron Fairbrother who also practiced from the Cambourne Clinic. He agreed that he saw Dr Fairbrother regularly. Mr Stanley directed the plaintiff to a clinical note of attendance on 16 May 2013 that included a reference to the plaintiff being in receipt of OxyContin for "chronic pain". The plaintiff said that at that time he would not have characterised his condition as chronic pain. The note also included a query as to the possibility of a fusion in the future although the plaintiff could not remember this having been mentioned to him.
20. On 17 July 2013 a note by Dr Fairbrother recorded the plaintiff presenting with back pain and of his ongoing use of OxyContin and of having undergone 6 caudal injections between 2006 and 2013. Subsequent to the plaintiff's laminectomy, and in the note dated 17 July 2013, it was also recorded that "Worsened approximately one year ago with back pain shooting down left leg". The plaintiff said this was too long ago for him to remember.
21. Despite the prescribing of OxyContin in 2013 the plaintiff denied that pain had interfered with his life.
22. The plaintiff did not recall being told that a CT scan from 2012 revealed a disc prolapse.
23. The plaintiff agreed he was referred to Dr Du Toit in August 2013, whom he saw again in September 2013. MRI revealed a new disc extrusion at L5/S1 level extending towards the left with S1 nerve compression. The plaintiff recalled Dr Du Toit telling him, "its degenerative" and that nerve compression was a likely cause of his left leg symptoms and that Dr Du Toit also thought the opinion of a neurosurgeon was warranted and so referred the plaintiff to Mr Tiew Han.
24. Despite this history of prescribed medication and radiological investigations and referral to a neurosurgeon, the plaintiff denied that this should be interpreted that he was not "good" for the year leading up to attending Dr Du Toit. He said he had leg pain but it was "still manageable though".
25. Mr Stanley referred to the report of Mr Han who agreed with Dr Du Toit that the plaintiff should have a trial caudal or transforaminal injection. The plaintiff said he "didn't have injections". When he was asked if he remembered being told by Mr Han that he was hopeful that "the injection will bring the pain under control, but if he remains in pain, he may require further surgery either a microdiscectomy or a lumbar fusion at L5/S1 level", the plaintiff said he could not.
26. The plaintiff said that when he saw Mr Han in December 2013 his pain was "Baseline minimal". He said he has "a high tolerance to pain".
27. Mr Stanley directed the plaintiff to his attendance on Dr Grave on 1 April 2014. Mr Stanley asked him about a pain assessment chart of that date. There followed an exchange conceding the authorship of the handwriting. The plaintiff did not accept that the VAS scale of pain of "7" expressed in the chart was one he volunteered and he said, "I don't remember signing it".
28. Mr Stanley asked the plaintiff about other documents he had completed and that he suggested contained similarities in handwriting, however, the plaintiff maintained that the writing on the pain assessment chart and form was not his.
29. Mr Stanley took the plaintiff to a further document being a questionnaire that he suggested the plaintiff had completed for the benefit of Mr McCoy at Barwon Clinic dated 12 June 2014. The plaintiff agreed that the writing was his.
30. The Barwon Health questionnaire included a series of ticked boxes intended to correlate to the plaintiff's experience of pain. The plaintiff said that if he was responding to the questionnaire today, then he would tick all of the boxes "and more" as being triggers that worsen his pain, including hot weather, walking and working. The plaintiff said that he became aware of the adverse effect of hot weather approximately six months after the 2018 accident. The plaintiff said he had circled words to describe his pain despite some of them being inapplicable at that time because he believed that he was obliged to circle one word for every category.
31. Dr Grave provided a referral to a Mr Adrian Benson dated 1 April 2014 and who appears to work in allied health and rehabilitation as a physiotherapist. The plaintiff said he had been unaware of the referral. The referral contained a history of the plaintiff's football injury.
32. The plaintiff agreed that prior to the 2018 accident he had been told that his back pain would worsen over a long period of time.
33. Mr Stanley challenged the plaintiff about his disparate evidence of the extent of his use of Methadone and the errors he described in his second affidavit that he made in his first affidavit.
34. Mr Stanley asked the plaintiff why prior to the 2018 accident he was having prescriptions filled regularly for a 40mg daily dose when he had deposed in his first affidavit to only taking 10mg daily.
35. The plaintiff said that despite being prescribed Methadone in sufficient quantities to be able to take three tablets per day, that in about mid 2017, he only recalled taking one 10mg tablet a day.
36. Pharmaceutical dispensary records from Direct Chemist Outlet were produced and the plaintiff was directed to various entries by Mr Stanley. In particular, for May 2017, the plaintiff's prescription was 2 tablets, 10mg each twice a day as directed. The prescription was for 120 tablets. Mr Stanley put to the plaintiff that bearing in mind the Chemist records disclosed that he was having prescriptions for 120 tablets filled each month, he could readily having been taking the prescribed amount quantity of 4 tablets (40mgs) each day over the course of a month, but the plaintiff maintained that at that stage he was only taking 1 tablet per day. The plaintiff said that he was having a prescription filled each month despite not needing to do so. Despite contesting that he was taking 40mg a day in the middle of 2017, when pressed by Mr Stanley, the plaintiff said that "There might have been days I took it but I wasn't taking it every day, correct". The plaintiff said he did not tell Dr Fitzpatrick who at the time was prescribing him Methadone that he was stockpiling the excess. He said that at this time his mind "was just all over the shop".
37. The Chemist records to which the plaintiff was taken reveal that over the course of three years that commence with the prescribing of Methadone and up to the 2018 accident the prescribed dosages steadily increased although the plaintiff maintained that his pain was "just uncomfortable". [57]
38. The plaintiff denied that his current consumption of 80mg of Methadone daily is as readily consistent with a worsening of his pre accident condition as opposed to being due to worsening pain caused by the aggravating effects of the 2018 transport accident.
39. To Mr Stanley's suggestion that the conclusion to be drawn from the plaintiff's Methadone intake over the three years prior to the transport accident is that he was in a significant amount of pain because of his back, the plaintiff said, "I wouldn't say significant pain".[58] The plaintiff added that his back had "plagued" him "a little bit" in the six years before the accident, "but nothing like it plagues me now".[59]
40. The plaintiff was asked about an entry from the hospital discharge summary following the transport accident that included, "Takes 120 milligrams methadone daily". The plaintiff said he could not remember saying such a thing to anyone at the hospital. He was directed to the further entry in the discharge summary that he "has been on escalating doses of Physeptone (methadone), Now occasionally using up to 100 to 120 milligrams daily over the last two months" The plaintiff said he did not recall "telling any doctor anything about my history or anything at the hospital".[60]
41. The plaintiff was asked if he could shed any light on a clinical note by Dr Quinn, dated 2 May 2018 in which under 'Past History' it was recorded, "Chronic pain on Methadone 120mg daily per Tim Fitzpatrick". The plaintiff said he did not think he saw Dr Quinn at that time and was none the wiser why it was recorded.[61]
42. The plaintiff said he believes he is addicted to Methadone and opioid based medications. He said he had not raised the issue of addiction with his treating doctors although he said he had "spoken to Dr McCoy a couple of times about it and he just said yeah, it's addictive". He said he had not raised the matter himself because "it's embarrassing".[62]
43. On the matter of his constipation, although he had suffered from it as a result of the many years of medications he had taken prior to the 2018 accident, he said that since then it had worsened and he has also developed explosive diarrhoea. Mr Stanley suggested to the plaintiff that there is no record of this and the plaintiff said he might have mentioned it to doctors.[63] In any event, and despite the adverse effects of constipation caused by Methadone, the plaintiff persisted in the use of it and by way of an increasing consumption of it before the 2018 accident despite his claim of minimal or baseline pain and being 95% good other than for occasional flareups of pain.
44. Mr Stanley put to the plaintiff that in April 2014 Dr Grave reported that "I had a good talk with him about the chronic pain syndrome and its management. I have indicated to him that ultimately one of the aims would be to reduce his narcotic usage" and to trial other medications so as to modify the plaintiff's pain threshold and sensation The plaintiff said he could not remember being given that advice by Dr Grave.
45. Dr Grave suggested that the plaintiff needed to begin with active exercise as he was not doing sufficient in this regard and that he commence a core stabilisation programme. Dr Grave also commented on the further MRI performed on 27 August 2013 which showed some degenerative disc changes at the L4/5 and L5/S1 region. In the referral Dr Grave queried if further surgery may be required, by way of a microdiscectomy or lumbar fusion at L5/S1.
46. The plaintiff was directed to a clinical note from the Alfred Hospital following the 2018 accident that included: "Explained rationale of opioid dependence and reducing opioid dose as much as possible. Explained that opioids not preferable for treatment of chronic pain".[64]
47. The plaintiff was directed to the report of Mr Thomas dated 25 April 2019 whose opinion of the reasonableness of funding for planned ketamine injections included that "It is very difficult to know how this will play its course ... It is hard to know whether the opiates are now the primary problem". Mr Thomas also said, "My concern from my experience is that if the opiates are the primary problem, no amount of interventional type treatments are likely to be helpful here".
48. The plaintiff in his 18 January 2022 affidavit deposed to having gained up to 30kgs in weight since the 2018 accident. Mr Stanley put to the plaintiff reports prepared at various times that referred to the plaintiff's weight and that did not bear out a weight gain of that order.
49. The plaintiff was asked about his evidence of sleeping on the floor and that nowadays this occurs "most nights".[65] Despite having addressed his sleep in his first affidavit, the plaintiff could not say why he had overlooked mention sleeping on the floor.
50. Dr Epstein's report of August 2024 recounted the plaintiff having said that he slept on the floor "at times". Professor King in March 2025 reported that "Sometimes it was so bad he had to sleep on the floor with his legs up for relief". The plaintiff said he did not think it was "a thing to worry about".[66] The plaintiff said he has mentioned sleeping on the floor to Dr Duffy.
51. The plaintiff agreed with Mr Stanley that he had encountered difficulties with getting comfortable for sleep prior to the 2018 accident.[67]

1. The plaintiff said that the characterisation of his pain that he adopted as being 'minimal' before the 2018 accident was intended to reflect how little medication he needed on a given day to manage his pain and so go about his life.
2. The plaintiff said he continued to have prescriptions for Methadone filled out of concern that if he did not, then he would need to 'jump' through all of the regulatory hoops to obtain a further approval.[68]

1. Mr Stanley submitted that I should be satisfied that in the six years preceding the motor vehicle accident of April 2018, that the plaintiff suffered persistent and significant back pain and that he experienced such a degree of interference with his functionality that it required persistent and wide ranging treatment from general practitioners, pain specialists, physicians and orthopaedic surgeons.
2. Mr Stanley relied on the pain assessment dated 1 April 2014 that was completed when the plaintiff saw Dr Grave. Mr Stanley submitted that I should be satisfied that the document was prepared under the plaintiff's own hand or at least in response to questions asked of him by Dr Grave.
3. Mr Stanley submitted that the clinical records of the Cambourne Clinic identified that OxyContin was prescribed from 2013. On 16 May 2013 the question of a possible lumbar fusion being performed on the plaintiff sometime in the future was identified.[69]
4. Mr Stanley referred to the report of Dr Du Toit dated 23 August 2013, who identified the plaintiff with a recurrence of severe left leg symptoms and of suffering daily pain requiring OxyContin. Dr Du Toit referred to the possibility of the plaintiff requiring spinal cord and root ganglion stimulation.
5. Mr Stanley referred to the report of Dr Han dated 9 December 2013 and the plaintiff's medication having been altered from Lyrica to OxyContin and of Dr Han agreeing that the plaintiff needed a trial for caudal or transforaminal injection but that he was to continue in pain, he might require further surgery either by way of microdiscectomy or lumbar fusion. Mr Stanley also referred to Dr Graves whose pain assessment and report referred to pain radiating down the plaintiff's left leg that if not brought under control would require further surgery.[70]
6. Mr Stanley submitted that despite the fact of the plaintiff not having come to surgery prior to the 2018 accident, his history speaks of someone who was in considerable pain and required significant treatment years prior to the 2018 transport accident.
7. Mr Stanley also relied on the second questionnaire from Barwon Health dated 12 June 2014 that referred to the plaintiff presenting with worsening pain, along with the referral to Dr McCoy.
8. Mr Stanley submitted that in 2017, the plaintiff sought an increase in the prescription for opioid medication from his GP. Mr Stanley referred to references of increasing pain one year before 2018 accident with pain radiating to the plaintiff's lower limbs, and a proposal for neuromodulation. Mr Stanley observed that over the course of the year prior to the accident, the plaintiff's prescribed recommended dose of Methadone increased from 4 to 6 tablets a day and that the day before the accident the plaintiff had been prescribed 60mgs per day.
9. Mr Stanley submitted that the plaintiff's credit had been significantly impugned. He argued that the plaintiff agreed that he had been well aware of the importance in of his application giving a before and after picture. Mr Stanley submitted that in light of the plaintiff's extensive prior health history, his first affidavit was woefully deficient in identifying important health related matters that existed before the 2018 accident, including an absence to treatment the plaintiff was undergoing, or of his annual reviews by Dr McCoy. Mr Stanley argued that although the plaintiff revisited the matter in his second affidavit, his explanation for the omissions in his first affidavit was unsatisfactory but that nonetheless, the second affidavit divulged a significant medical history, particularly his use of Methadone before the 2018 accident occurred.
10. Mr Stanley referred to the Ifka v Shahin Enterprises Pty Ltd ("Ifka"),[71] in which the Court of Appeal said that candour in a subsequent affidavit does not deprive the credit that can be impugned from the first affidavit.
11. Mr Stanley submitted that the plaintiff's credit was further impugned when he testified to having been "95 per cent" prior to the accident. Mr Stanley submitted that the plaintiff's reporting to doctors of no pain, and of pain being minimal, or references to a baseline pain should not be accepted as an honest account in light of pre accident history.
12. Mr Stanley emphasised the reporting of Dr Thomas, Dr Colman, Associate Professor Laidlaw and Associate Professor Williams.
13. Mr Stanley submitted that a further fact relevant to the plaintiff's overall credit, is his claimed weight gain. Mr Stanley referred to Mr Henderson's report that in 2008 the plaintiff's weight was 105kg. A clinical note from Terang Medical Clinic in June 2014, recorded it as 108kg, Dr Bin Shi in 2015 recorded it as 104kg, Dr Thomas recorded it as 103kg in 2019, and in 2023 Associate Professor Williams recorded it as 107kg.
14. Mr Stanley submitted that the plaintiff's attempts to correct his first affidavit in which he deposed to taking 10mgs of Methadone daily before the 2018 accident despite being prescribed much more but that he did not take but instead stockpiled should be rejected. Mr Stanley noted that a prescription was filled at the pharmacy almost precisely each 30 days from which I could infer that this was because he was exhausting a prescription each month.
15. Mr Stanley submitted that there is an absence of a medical basis to find that there was some alteration to the plaintiff's treatment regime brought about by an aggravation of which the 2018 accident was a cause.
16. Mr Stanley separately submitted that the increase in Methadone use was either attributable to a progression of pain which was already present and predated the 2018 accident or is the result of the plaintiff's addiction but that neither explanation is as a result of or consequence from the 2018 accident.
17. Mr Stanley further submitted that if Methadone is excluded as a consequence, then the Court has to take away the resulting constipation as a consequence which removes a significant symptomatology that is impacting the plaintiff's life. Mr Stanley submitted that considering the three year prior history of increasing dosage from 25mg to 40mg to 60mg, to now contend that it is the increase to 80mg which has caused the constipation is unsustainable.
18. In terms of the plaintiff's post-accident procedures that included a nerve stimulator and the two Ketamine infusions, Mr Stanley submitted that the plaintiff had not established that they were referable to the aggravation alone of the 2018 accident. Mr Stanley relied on Dr McCoy, who one year prior to the 2018 accident was advancing that very same treatment as appropriate with the only consideration holding the plaintiff back consisting of its funding.
19. Mr Stanley submitted that the plaintiff's evidence that he attended on Dr Duffy and engaged in discussions with him concerning an addiction, and of Dr Duffy requiring the plaintiff to personally attend for his prescriptions, is an indication of the concern held about the plaintiff's addiction. Mr Stanley submitted that it is illogical why the GP who treated the plaintiff from 2012-2018 would be increasing medication at the rate identified if the plaintiff was at the same time telling his doctors as he claimed he did in his evidence that had been able to undertake all of his many physical activities including working on his cars and surfing.
20. Mr Stanley submitted that a report from Dr Duffy could have been anticipated.
21. Mr Stanley submitted that if the plaintiff is addicted to Methadone then he cannot be said to be stable as the injuries cannot be said to be of a permanent nature.
22. Mr Stanley submitted that although the plaintiff claims that he is now prevented from his previous activities as a result of the accident this contention was unsustainable. On the basis of the clinical notes of the Cambourne Clinic there were complaints of pain in the six years between the football injury and the 2018 accident. From 2013, OxyContin was prescribed to assist the plaintiff with pain management, and in May 2013 there was a question raised of a need for a fusion. Mr Stanley submitted that the report of Dr Du Toit dated 23 August 2013 identified the plaintiff with recurrent left leg symptoms and he had queried if the plaintiff may require spinal cord and possibly root ganglion stimulation and accordingly, referred the plaintiff to Mr Han, neurosurgeon.

1. Mr Brett challenged the defendant's thesis that the plaintiff was in "dire circumstances" before the 2018 accident, although he acknowledged that the plaintiff was taking Methadone and OxyContin following a significant football injury.
2. Mr Brett referred to evidence that the plaintiff experienced flare ups of pain in about 2012 and 2013 and of attending Mr Tiew Han who said of the plaintiff's pain prior to the accident that it "can be bothersome at times". Mr Han considered the potential utility of a caudal or transforaminal injection but it did not eventuate which Mr Brett submitted, was corroborative of the manageability of the condition of the plaintiff's spine prior to 2018.
3. Mr Brett submitted that although the plaintiff remained under the care of Dr McCoy and had apparent annual check-ups, in 2017 and after having reviewed the plaintiff's medication, he noted that the pain had been responsive to Methadone but its efficacy was waning and so it was increased. Mr Brett submitted that the absence of interventions between the time of the laminectomy in July 2006 and the 2018 accident should be regarded as inconsistent with the defendant's contention that by 2018 the plaintiff was already severely debilitated by the pre-existing condition to his back.
4. Mr Brett argued that despite the matters identified by Dr McCoy, including the possibility of neuromodulation, I should be satisfied that this did not proceed not because the plaintiff could not afford the surgery but rather because ultimately it was not determined to be warranted.
5. Mr Brett submitted that Methadone controlled the plaintiff's pain and enabled him to conduct his life to a much greater extent than has prevailed since and because of the effects of the 2018 accident.
6. Mr Brett relied on the report of Dr McCoy dated 16 July 2025 that:[72]

"Prior to the motor vehicle accident he was reasonably stable on an unchanging dose of medication', and it hadn't changed for some period of time before the accident, 'and able to undertake his work in the information technology sector. Since then it has led to a decrease in functioning including activities of daily living. He also struggles with the pain in the course of his work. It is evident that the car accident (multi vehicle accident), has caused more than a minor exacerbation of his pain".

7. Mr Brett placed considerable attention on what he characterised as deficiencies in the report of Associate Professor Laidlaw and his expression of opinion that although the plaintiff had suffered an aggravation from the 2018 accident to his pre injury condition, as opposed to an ordinary progression of it, he had recovered to his pre-accident state.
8. Mr Brett submitted it is significant that Associate Professor Laidlaw acknowledged that it had been unfortunate that he had not been able to review the plaintiff's extensive clinical documentation until after his examination was conducted and therefore had been unable to discuss with the plaintiff what Associate Professor Laidlaw described as the significant inconsistencies in the plaintiff's recounting of his pre 2018 accident symptoms.
9. Mr Brett noted that the clinical notes of the Cambourne Clinic of October 2016 recorded "surfers ear" which he submitted was consistent with the condition having developed as a result of the plaintiff surfing and provides some corroboration of the plaintiff and lay evidence that addressed the plaintiff's surfing before the 2018 accident despite the use of Methadone.
10. Although Mr Brett acknowledged that prior to the 2018 accident the plaintiff experienced pain, he urged me to accept that the use of Methadone was controlling and managing the pain to the extent that it allowed the plaintiff to go about his daily activities. Mr Brett submitted that if other treatment had been required prior to the 2018 accident then in all probability it would have been undertaken, however, there was no intervention and I could be satisfied that this was because the plaintiff's condition was being effectively managed prior to then.
11. Mr Brett submitted that I could be satisfied that the increase in the dosage of Methadone was a direct result of the 2018 aggravation. Mr Brett referred to the report of Dr McCoy dated 16 July 2025 who attributed the 2018 accident as having resulted in "more than a minor exacerbation of his pain".
12. Mr Brett noted that the although the plaintiff underwent a spinal stimulator trial in 2017 to assist with his pain it had not progressed beyond a trial but for reasons unknown.
13. Mr Brett addressed the plaintiff's constipation. He submitted that although it had to some degree presented as a pre-existing problem, it was not troubling the plaintiff to the extent it has developed since 2018, and as well, the plaintiff has more recently suffered the onset of diarrhoea.
14. Mr Brett submitted that overall I could be comfortably satisfied that the plaintiff had established an aggravation occasioned by the transport accident that itself has brought consequences that discharge the test for seriousness at law in that they are more than significant or marked and are at least very considerable.

1. Understandably, the defendant emphasised the fact of the plaintiff's increasing use of Methadone before the 2018 accident as belying an aggravation in pain caused by the 2018 accident. Based on this pre-existing state of affairs the defendant made two principal contentions. First, Mr Stanley submitted that the continued use of such a strong opioid as Methadone to control pain during the years prior to the 2018 accident is inconsistent with the plaintiff's account that he was capable of participating in life and engaging in the many and varied activities of daily living together with a range of recreational and pleasurable pursuits and of him being 'about 95 per cent good' with only occasional flare ups of pain that accounted for ad hoc increases in the amount of Methadone he needed to consume. Second, Mr Stanley submitted that there is no reliable basis to find that the current dose and use of Methadone and, for example, its adverse effects on his stomach by way of worsened constipation and explosive diarrhea can be attributed to an aggravation to the spine resulting from the 2018 accident and increased dependence on Methadone.
2. By contrast, Mr Brett's emphasis was that the plaintiff's use and heavy consumption of Methadone is a red herring and that the focus of the application should be directed to how the 2018 accident has affected the plaintiff by way of increased pain and the loss of the ability to engage in his daily life. In this context, Mr Brett argued that I should give significant attention and probative worth to the lay affidavits that he submitted are in many respects corroborative of the plaintiff's evidence in chief.
3. I accept that since the 2018 transport accident the plaintiff has received ketamine injections into his lower back with the expectation that this would assist with a reduction in his dependence on Methadone and the legitimate concern of addiction from its continued use and because of constipation that had accompanied its continued use. This did not have the desired effect.
4. The plaintiff had radiofrequency denervation performed in 2024 but which also has not helped.
5. Prior to the 2018 accident, and in 2017, the plaintiff underwent a trial of a spinal cord stimulator but it did not proceed beyond the trial for reasons unknown.
6. Associate Professor Laidlaw believes that an aggravation to the plaintiff's lumbar spine occurred and was caused by the 2018 accident but that the condition of the lumbar spine and the consequences that were wrought by such aggravation has resolved to its pre accident state.
7. First, well prior to the 2018 transport accident the continuing effects of chronic pain from which the plaintiff suffered because of three football related injuries required him from time to time to take increased prescribed opioid based medication in order to manage that pain and to limit the intrusions his already degraded spine would otherwise have imposed on his ability to participate in activities of daily living and the various recreational and sporting pursuits he described as well as manage his employment. Initially this was with OxyContin but later with Methadone.
8. Second, the plaintiff's evidence of the amount of use of Methadone he required before the 2018 accident proved in a number of respects to be was unreliable. I do not accept that prior to early mid July 2017 the plaintiff was consistently needing to take only a single 10mg tablet a day. It does appear that at some time in April 2017, as a result of a flare up of pain that there was a temporary increase in the prescribed recommended consumption of Methadone to 4 x 10mg tablets per day and to be taken as needed. The plaintiff said he increased his consumption to 2 or 3 x 10mg (i.e. 20 or 30mg a day). After seeing Dr McCoy in about June 2017 the prescription of Methadone was reduced to 2 x 10mg daily. The plaintiff said that in order to cope with occasional flareups of pain that he might need to take say, 40mg a day, but certainly never any more than prior to the 2018 transport accident.
9. Dr Clayton Thomas said in his report dated 25 April 2019 that almost "all other IME reports do document the plaintiff's previous back problems but most, including my own, indicate that Mr King informed them that immediately prior to the 2018 MVA this was not causing him particular problems and/or requiring significant (or any) methadone".
10. Associate Professor Laidlaw said:[73]

"Kyran said that in the 18 months prior to the April 2018 MVA, he did have some pain that was well managed with oxycontin 10mg twice a day as required." > > and > > "He said that the pain condition he had before the MVA was very different to the problems he's had since the MVA, and his analgesic requirements have dramatically increased since the MVA."

11. The relating by the plaintiff that he did not require any methadone is wrong.
12. Associate Professor Laidlaw described "significant inconsistencies" between the plaintiff's recounting of the pre-MVA symptoms/analgesic needs and those documented in the medical records.
13. Associate Professor Laidlaw concluded that based on the documentation the plaintiff's analgesic/opioid requirements since the 2018 accident are very similar to those in the weeks/months before it occurred. He reasoned that this was consistent with the plaintiff having presented with a well-documented back/lower limb chronic pain condition and thus he concluded that the aggravation from the 2018 accident had resolved.
14. Mr Brett criticised Associate Professor Laidlaw's second report because he had acknowledged that he had not been able to discuss with the plaintiff "significant inconsistencies between his recounting of the pre-MVA symptoms/analgesic needs, and those documented in the medical records",[74] as they had not been provided to him in time. I can put that argument to one side because at the end of the day the assessment and consequences of evidentiary inconsistencies is a matter for me, and not a medico legal expert, but the worth of the report of Associate Professor Laidlaw's opinion is his distillation of the recorded prescribed medication before and after the 2018 accident.
15. The plaintiff remains employed in full time employment and he discharges his duties being mindful of his movements and of pain.
16. Despite the plaintiff needing to take increased Methadone during flare ups before the 2018 accident, it is now argued that its efficacy has waned and he needs greater amounts to control his pain. While in the past Methadone allowed him to control flare ups and to regularly continue to engage in the suite of his recreational and sporting pursuits and activities of daily life that is not so today.
17. I am satisfied that since the 2018 accident the plaintiff has been taking and requires Methadone at a consistently higher dose than the records identify previously prevailed and which suggest a variable need.
18. In light of the plaintiff's evidence about the minimal amount of pain relief he needed before the 2018 accident, but that I find was not minimal, can I be satisfied that the plaintiff was going about all the various activities he described and engaging in the domestic and related everyday activities he spoke of until the intrusion caused by the 2018 accident?
19. Mr Brett's argument that I could be satisfied of the truthfulness of the plaintiff's evidence included that it was not just dependent on his evidence about these matters but that it is supported by the evidence of his partner and friends whose evidence was not challenged.
20. Mr Stanley submitted that the lay evidence was of no moment and there was no point to it being challenged
21. In going about my task, I am obliged to consider the plaintiff's application in light of the whole of the evidence and according to his burden to prove the elements of his case on the balance of probabilities. In my judgment, it could lend itself to unfairness if the application for the grant of leave in a particular case was refused based on a finding of a lack of credibility by a plaintiff on a matter such as the prescribed amount of medication both before and after a relevant injury if there is other probative and corroborative evidence that goes to make good a fact in issue namely, the differential in the pain and suffering consequences before and after injury. I am satisfied that this is a case where to adopt that approach would result in unfairness to the plaintiff.
22. I recognise that the medical evidence tendered in this case was, as has been observed of medical evidence in other cases of the present kind, to a significant extent, dependent upon an acceptance of the plaintiff's account of what he disclosed to doctors. The plaintiff's account to doctors and given in Court of a need for only minimal opioid medication to live the life he said he had been able to before the 2018 accident is wrong. Consequently, as far as those doctors who have said the plaintiff had limited pain before 2018 and that he required comparatively lesser doses of Methadone than has arisen since the 2018 accident, they do not accurately or completely reflect the full picture and their opinions are based on an incomplete history that in some measure is because of what the plaintiff told them. The truth of the matters is there were times when he did require variable amounts of pain relief and times that his pre injury pain flared up. I am satisfied that the plaintiff suffered years of back pain and the pain was at times significant enough to require far greater medication and far more regularly than the plaintiff deposed to or was willing to accept when confronted with the evidence identifying the same.
23. The plaintiff has been the author of incorrect and hence unreliable evidence about the extent of pain relief he required. The question is whether his unreliable and at times inaccurate evidence about his medications must prove adversely determinative of the outcome of the application without an assessment of the following considerations. The first of these centres on the argument relied on by Mr Brett that the greater need for Methadone does no more than show that whereas before 2018 such consumption allowed the plaintiff to get on with his life and go about it in a manageable way, that is not any longer the case and that is of itself evidence of the extent of the aggravation. The second argument is that the veracity of the plaintiff's deteriorated capacity is corroborated by the unchallenged lay evidence.
24. In Ifka the Court of Appeal said this:[75]

Counsel for the appellant submitted that, by reason of the failure of the respondent to cross-examine the appellant's husband (and likewise Dr Darling), the evidence of the appellant's husband (and similarly Dr Darling) was to be viewed as uncontested and therefore should have been accepted. We do not accept that submission. In many circumstances, such submissions might find favour with the Court. However, in the context of this case, we agree with the judge (and largely for the reasons given by his Honour) that when one examines the evidence, and the way the case unfolded, there is nothing in the point. We deal first with the affidavit of the appellant's husband. We shall deal later with the material (reports and records) provided by Dr Darling. > > The appellant's husband's affidavit was largely to the same effect as the appellant's affidavit evidence... > > While the plaintiff's husband could have been cross-examined as to the inadequacies and inaccuracies in his affidavit in the same way the appellant was successfully cross-examined, in our view, little was likely to have been achieved. The respondent had already successfully challenged the version set forth in the appellant's affidavits. Accordingly, in the context of this case, it was unnecessary to put the same material to the appellant's husband in cross-examination. His Honour's approach (which we have already set out above) was, with respect, correct.

1. In determining the outcome of the plaintiff's application I have been mindful of the following considerations:
   1. The entirety of the evidence must be synthesised.
   2. The evidence in a serious injury application cannot be tested to the same degree as is the case in a full contested trial.
   3. The medical evidence that both parties relied on consisted of reports of opinions the authors of whom cannot be tested or challenged.
   4. The grant of a certificate does not finally determine a plaintiff's rights or the capacity of a defendant to defeat a plaintiff's claim.
   5. Matters of causation must be understood in the contest of the nature of the application.[76]
2. I am not satisfied that the evidence of the plaintiff's partner addressing her observation of him and his reduced capacity in matters such as his everyday household activities, the mode of his sleeping and the interference that has resulted to their intimate life taken together with the evidence of his two long standing friends who before the 2018 accident surfed with the plaintiff, played football with him and socialised with him at pubs and listened to bands but not since, should be characterised as amounting to evidence of no more than a high degree of generality. Moreover, the clinical note of a 2017 attendance with 'surfers ear' is a small piece of inferential evidence that the plaintiff had continued to surf before the 2018 accident. The observations of the differences in the plaintiff's capacity to participate in various activities that the lay witnesses have described and the evidence from his partner are corroborative of the plaintiffs account concerning the same matters.
3. Despite the defendant having challenged the plaintiff's veracity of having engaged in the activities he described, on the basis that it was, to coin a word, "unbelievable", in light of the amount of medication the records disclosed he was prescribed at times, unlike Ifka, I am not satisfied that the challenge to his evidence was so effective as to permit me to find in light of the other and untested evidence that his account must also be untrue. I found some parts of the plaintiff's evidence wrong and other parts unreliable as they pertained to his recollection of the extent of medication he would sometimes need prior to the 2018 accident, as well as his evidence of weight gain, but I have not concluded that the plaintiff was a dishonest witness. Moreover, in the absence of the lay witnesses having been challenged about the matters deposed to, I have treated their evidence as buttressing the plaintiff's evidence. Accordingly, despite the plaintiff's unsatisfactory account at times of the amount of Methadone he required before the 2018 accident, the whole of the evidence satisfies me that he was able to engage in those aspects of life he described but has since lost. These are matters of significance.
4. Mr Stanley fairly recognised that if a cause of the outcomes in terms of the effects the plaintiff deposed to is found to have been the 2018 accident then it would be at least very problematic for the defendant to contest that they could not satisfy the threshold test for a grant of certificate for pain and suffering by way of an aggravation that is serious. In that sense then it must follow, but without taking into account the condition of the plaintiff's lumbar spine before the 2018 accident, but concentrating only on the evidence of the additional adverse effects since the 2018 accident and because of it, that it has caused to the plaintiff an aggravation that meets the test both when assessed according to range and as it has impacted the plaintiff. I am satisfied the aggravating effects of the 2018 accident are very considerable and certainly more than significant or marked.
5. I note the additional matters referred to by the defendant. The defendant submitted that because of the plaintiff's acknowledgement of an addiction to Methadone that I should not be satisfied that his condition is stable. Perhaps unsurprisingly given the very well published information in recent times of the addictive qualities of opioids such as OxyContin and Methadone, the plaintiff said that he had spoken with Dr McCoy a couple of times about it who confirmed to him the addictiveness of the same but he also said that he had not told Dr McCoy that he believed he was addicted because "I was hoping that all that stuff that we've had since the accident would mean that I don't have any more Methadone so I can wean off it and be done, but unfortunately that's just not what's happened, unfortunately".[77] The plaintiff also expressed embarrassment at what he considers an addiction. I am not satisfied that I should conclude on the state of the evidence that the plaintiff's belief that he has developed an addiction to Methadone should be conflated with the plaintiff's aggravation injury to his spine and so not be assessed as stable.
6. Furthermore, to the defendant's submission that I should be satisfied for a variety of reasons that the only reason the plaintiff is now presenting for the prescribing of and the consuming of Methadone is because of an addiction and not because of organic pain, then I do not accept it. The plaintiff recognised that he may be suffering an addiction. He says he was embarrassed about mentioning it to his doctors, but he said he has referred to it with Dr Duffy. In any event, even if there is a coexisting addiction, that it is not to preclude my finding that the ongoing prescribing of the Methadone is necessary for the management of the aggravating effects of the 2018 accident. The adverse effects that the pain relief required for the aggravation has occasioned to the plaintiff are direct consequences of the 2018 transport accident.
7. Finally, although I have not adopted Mr Brett's characterisation that the defendant's emphasis on the competing accounts of the use and trajectory of the plaintiff's Methadone is a red herring, because apart from anything else, the reliance that can be placed on a plaintiff's evidence is always important, yet in this case, I am satisfied that other evidence has balanced out the unreliability of the plaintiff's evidence of the extent of his previous use of strong medication and, therefore, I am not persuaded that his deficiencies on that issue constitutes the "magic bullet" that the defendant would have it represent or that it renders untrue the myriad of other consequences such as sleep and mode of sleeping, loss of intimacy, crippling intestinal functionality, and impaired capacity in a range of domestic activities that now present and to which not only the plaintiff deposed but others did as well. No submission was made that, for example, the plaintiff's condition is not permanent but in any event, there is an amplitude of evidence that it is. The plaintiff is fortunate to remain employed but I have not assessed his capacity to work as disentitling him to the relief claimed although I have taken it into account.
8. I will grant the plaintiff the relief sought in the Originating Motion and I will hear the parties on the form of final orders.

[1] This particular is not an impairment of function.

[2] Perhaps an injury but no case was pursued as giving rise to impairment of function.

[3] No evidence was adduced regarding the same.

[4] No evidence was led to identify a permanent impairment to body function.

[5] The claim under paragraph (c) was not pursued.

[6] [1992] VicRp 58; [1992] 2 VR 129.

[10] Exhibit P3, Plaintiff Court Book ("PCB") 11-27.

[15] Exhibit P8, PCB 76-77, 147-148, 159-160.

[16] Exhibit P9, PCB 114-124, 127-138, 141-144, 149, 78-81, 150-151, 82-83, 161-165, 84-86.

[20] Exhibit P13, PCB 113, 125, 139-140.

[22] Exhibit P15, PCB 145-146, 152-153, 166-167.

[33] Exhibit D1, Defendant Court Book ("DCB") 5-6.

[40] However, the evidence identifies that the plaintiff stopped playing football prior to the 2018 accident. Given the evidence about the state of his back prior to the 2018 accident, it is questionable if he would have returned to playing football in any event.

[41] Although I will address this claim more fully elsewhere in these reasons, I note that the evidence that records the plaintiff's weight, calls into question the assertion.

[42] There was no report from the plaintiff's GP which proved to be unhelpful because of the potential insight the plaintiff's treating general practitioner might have been expected to give about the plaintiff's use of, and or, the extent of his dependency on methadone given the question of an addiction to it was raised in the hearing.

[43] Although references to permits for the prescribing of the drug were frequently mentioned, no evidence was produced of them.

[44] The amount of 100mg happens to coincide with the December 2017 clinical note.

[68] No evidence was adduced of the approval process applicable for the prescribing of the drug.

[71] [2014] VSCA 8.

[74] Exhibit D5, DCB 44; see also T156, L4-5.

[75] [2014] VSCA 8, [45-47].

[76] In Findlay v Transport Accident Commission [2025] VSCA 126 at [60-61], the Court of Appeal said "as was said by Gummow and Hayne JJ in Travel Compensation Fund v Tambree, '[i]t is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked'. The purpose for which the question is asked in a serious injury application is to determine whether an injured plaintiff should be granted leave to commence a common law proceeding for damages. As has been said before, a serious injury application is a 'gateway' proceeding, usually conducted with no oral evidence other than that of the plaintiff. The result of the application does not give rise to any liability to pay damages. Nor does it create any relevant issue estoppel. This Court has previously held that a plaintiff in a serious injury application must prove causation. However, the question, whether the evidence tendered in such a gateway application is sufficient for that purpose, needs to be considered in light of the limited purpose for which the question is being asked, and in light of the more limited scope of the evidence adduced on that issue than that which might be adduced in a full trial."