Nona v Transport Accident Commission [2025] VCC 1870

1. Establishing a "serious injury" for the purposes of s 93(17)(a) of the Act, requires the plaintiff to show that the injury, its symptoms, and consequences amount to a serious long-term impairment or loss of a body function.
2. Whether an injury is a "serious injury" within the meaning of s 93(17) of the Act is to be assessed by application of the "narrative test".[7] Applying the test involves a two-stage process. The first relevantly requires assessing whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the plaintiff, "serious". The second relevantly requires a determination whether the injury, as so assessed, is objectively "serious" when compared with the range or "spectrum" of comparable cases,[8] and involves a consideration whether the injury is, when compared with other possible impairments, losses of body function or disfigurements, at least "very considerable", and more than "significant or marked".[9]
3. Consideration may be given to mental or behavioural disturbances or disorders that arise from a physical injury sustained in a transport accident in assessing the seriousness of an impairment or loss of a body function within ss 93(17)(a)-(b) of the Act.[10] That is, the mental or behavioural disturbance may be relied on to show how the physical injury has affected a plaintiff but this does not involve treating the psychological injury as a component of the physical injury.[11] Relying on a resulting or associated psychological impairment as a relevant guide to the impact or effect of the physical injury on the plaintiff requires showing a causal connection between the physical injury and the psychological injury. It will not be sufficient to show only causal connection between the psychological injury and the circumstances giving rise to the plaintiff's physical injury.[12] Any psychological injury resulting from the accident itself or its circumstances can only be relevant to a claim under s 93(17)(c).[13] But if the claimed impairment is the product of both organic and mental conditions, it may fall under s 93(17)(a) only if the claimed impairment is predominantly the product of an organic condition.[14] As already noted, the plaintiff no longer relies upon s 93(17)(c) of the Act.
4. The seriousness of the injury for the purposes of an application under s 93(4)(d) of the Act is to be assessed by considering the consequences relating to both pain and suffering and pecuniary disadvantage in a cumulative sense.[15] In contrast, in serious injury applications under s 134AB(16)(b) of the Accident Compensation Act 1985 and s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, pain and suffering consequences are considered separately from loss of earning capacity consequences.[16]
5. Pain and suffering or loss of enjoyment of life may be made worse by a plaintiff's inability to earn income in employment they once enjoyed undertaking, but that consequence is significantly more limited than one which takes account of the actual loss of earning capacity suffered.[17]

1. The plaintiff's application therefore engages only with s 93(17)(a) of the Act alleging injuries caused by the second transport accident (27 February 2020) to her cervical spine including a whiplash injury to the neck. Bilateral shoulder injury is no longer alleged, with the plaintiff conceding that any shoulder pain, predominantly right shoulder pain, is a consequence or manifestation of the cervical spine impairment and not a separate impairment.[18] The plaintiff's counsel properly conceded that this matter is "plagued by inconsistency".[19]
2. The defendant challenges the establishment of an organic condition of the cervical spine.[20] As noted above, the defendant maintains the issue of disentangling the injuries sustained in the accident occurring on 10 December 2019 from the accident occurring on 27 February 2020 is insurmountable to the plaintiff. The defendant also maintains that the injury to the cervical spine does not amount to a serious injury.[21] Additionally, in respect of the plaintiff's third affidavit affirmed 18 November 2025, the defendant challenges the plaintiff's credibility and reliability as "an accurate historian",[22] maintaining that it is a "construct".[23]

1. The plaintiff was born in Iraq in November 1963 and is currently 62 years old. She had a difficult upbringing in the Iraq war, and in approximately 1990 she fled to Jordan as a refugee.[24] In 1994 she was married to Najib Nona and later moved to Sudan where she lived for several years. In 1999 she migrated to Brisbane on a visa with her husband and ultimately moved to Melbourne in 2007. The plaintiff and Najid are parents to two adult sons, Savio and Carlo, who all reside together in Mickleham.
2. The plaintiff, who was aged 57 years at the time of the 2020 transport accident, was employed as a co-educator in a full-time capacity at the Good Samaritan Primary School in Roxburgh Park, providing bilingual support to migrant children.[25] She commenced that employment in 2016. The plaintiff has also completed a degree in psychology at a university in Iraq, as well as a Certificate III in Education at Glenroy TAFE.[26]
3. The plaintiff said that prior to her cervical spine injury she enjoyed various hobbies which included playing basketball with her sons, walking her dog, going to church on Sundays, gardening and cooking for her family.[27]
4. The plaintiff suffers from 'recurrent anxiety' which is connected to past traumata she has experienced. In or about 2007 she began experiencing panic attacks but was not prescribed any medication.[28] She sought out further psychiatric treatment for her anxiety in 2013 after her mother's death.[29]
5. The plaintiff has had health issues and injuries prior to the 2020 accident. The plaintiff underwent sinus surgery in 2015 at the Bacchus Marsh Hospital and reports having high blood pressure and high cholesterol.[30] Further, in September 2020 the plaintiff developed a sebaceous cyst on the left side of her mid-back which she believed was from stress,[31] and which required surgical intervention and ongoing treatment from her general practitioner, Dr Tom Quach.[32] Additionally, in or about January 2021 the plaintiff developed tennis elbow in her right elbow, which "eventually resolved".[33] She also developed some right knee pain in late 2020 and early 2021.[34]

1. The plaintiff has been involved in several motor vehicle accidents throughout her life. In 1984 in Iraq, the plaintiff's brother was driving, and she was a right-sided passenger when a large truck collided with the right side of the vehicle (1984 accident).[35] Whilst she did not sustain any physical injuries, she became fearful of being "in the vicinity of trucks".[36]
2. In 2007 the plaintiff was driving when she lost control of her vehicle, it skidded, and she "slightly swiped" the front of her vehicle on another car (2007 accident).[37] She did not suffer any injury, but she began to experience panic attacks thereafter and feared for the safety of her husband on the road.[38]
3. In or about November 2011 the plaintiff was involved in a collision as a passenger when her husband was driving (2011 accident). [39]
4. The plaintiff says she only experienced minor back pain after the 2011 accident. After experiencing ongoing pain in 2012, the plaintiff's general practitioner referred her for an MRI of her lower back and cervical spine which was completed on 26 September 2012. In relation to the cervical spine, this scan showed "no significant abnormality" and "minor cord indentation (without significant cord compression) at C3/4".[40] In relation to her lumbar spine, the scan showed:

"1. Sacralisation of the left L5 transverse process. 2. Multilevel disc degeneration. 3. At L4/5 there Is minor right-sided neural foramina) stenosis without neural compromise. The central canal and subarticular recesses are adequate throughout. 4. Minor multilevel facet joint degeneration."[41]

In her affidavit affirmed on 18 November 2025, the plaintiff said the pain she experienced following the 2011 accident resolved by 2014.[42]

1. As earlier noted, the 2019 accident happened when the plaintiff was driving on Donnybrook Road, she stopped at a give way sign and was rear ended by another vehicle.[43] The consequential injury the plaintiff suffered in the 2019 accident has been variously described by the plaintiff in her evidence and to medical practitioners as follows:
   • "left shoulder pain", "no head, neck pain", "neck examination: mild paracervical tenderness", "advise rest, analgesia, for x ray";[44]
   • "there was no immediate pain", "when asked what she felt, she said she could not explain: 'felt all my neck, very hot, pain, etc."'[45]
   • "I was jolted very hard and got a knock to the head" and was "in bad pain" . "In my mind the first accident was worse". "I was suffering from headaches when neck pain flared up".[46]
   • "minor injury to my left shoulder which caused mild to moderate shoulder pain", did not complain of "head, neck or upper back pain". Left shoulder pain resolved 14 December 2019. Took one day off work to attend an x-ray then returned to work.[47]
   • During cross-examination, the plaintiff's evidence about the injury she sustained in the 2019 accident was:

Q: And in the days and weeks and months after, you suffered, and continued to suffer, neck pain and left-shoulder pain, didn't you?
> >
> > A: Not that bad. It was like minor pain.
> >
> > Q: But you did suffer neck and left-shoulder pain, didn't you?
> >
> > A: Yeah, just a bit, just at the beginning. Just at the beginning. But like - sorry. It was like end of the year, so I have a rest at home[48].

Q: You referred in this affidavit to the transport accidents and you said this, 'In late 20 I had two car accidents that caused me physical and psychological injury and affected my quality of life'?

A: M'hmm.

Q: 'In my mind, the first accident was worse'?

A: Yeah

Q: 'The first accident was worse but both had lasting consequences'?

A: Worse not in pain, worse not in pain. Just like as a car accident, I don't like it.[49]

During the plaintiff's opening, the 2019 accident resulting injury was described as a "minor injury to her left shoulder, causing pain and associated difficulty turning her head, giving her headaches".[50]

1. Following the 2019 accident, the plaintiff was referred for an x-ray of her left shoulder, conducted on 11 December 2019, which reported no abnormalities.[51] On 29 September 2021 the plaintiff lodged a TAC Compensation Claim noting the injury details as "traumatic shock", "nerve pain", "back pain" and "neck pain".

1. There is no dispute about the circumstances of the 2020 accident, however I do note inconsistencies in the number of vehicles said to be involved.[52] As noted earlier, on 27 February 2020, at the time of the collision, the plaintiff was stopped at a keep clear area on Craigieburn Road when she was rear ended by another vehicle at low speed, approximately 5km per hour, as the last car to be hit in a chain reaction collision involving 3 other vehicles . The plaintiff agreed that the impact was at low speed and not a pile up as described by her counsel in opening.[53] At the time of impact, the plaintiff's head was turned to the left side as she was looking out her rear view mirror, and the collision made her head jerk forwards and backwards.[54] The plaintiff says she felt "a lot of pain immediately, which worsened over the afternoon".[55] The plaintiff told Associate Professor Peter Doherty, psychiatrist, that "the effect of the second transport accident was worse than the first, as she "was sensitised by the first."[56]
2. On the day of the transport accident[57] the plaintiff attended her general practitioner, Dr Tom Quach who noted the following:

"History: had another minor MCA this AM she is driver and another car hit her from back

The plaintiff said Dr Quach also recommended she take Panadol and contact a different clinic as he did not deal with TAC claims.[59] When Dr Quach's notes were put to the plaintiff during cross examination she said the following:

Q: And Dr Quach has recorded this - 27 February 2020 - 'Had another minor motor car accident this morning. No head injury. No loss of consciousness. Examination well. Neck, spine, non-tender. Range of movement: no abnormality detected.' So what I'm putting to you is that you did not have any tenderness or neck pain on the day that you attended Dr Quach, which was the day of the accident?

A: Yeah, I do have. Yeah, I do have neck pain.

Q: He's recorded that on examination, you were well and your neck and spine were - there was no tenderness and you had a normal range of movement of your neck. That's what Dr Quach recorded on the day of the second accident?

A: Yeah.

Q: And it was true, wasn't it?

A: Yeah, yeah.[60]

1. On 16 March 2020 the plaintiff attended upon Dr Roshan Fernando, general practitioner, at Tristar Medical Group who referred her for a CT of the cervical spine to investigate a whiplash injury.[61] The CT scan of her cervical spine dated 16 March 2020 reported:

"FINDINGS: > > No prevertebral soft tissue swelling. No evidence of cervical spine fracture or dislocation, noting nonfused posterior arch of Cl (normal variant). Imaged lung apices are clear. > > CONCLUSION: > > No evidence of cervical spine fracture or dislocation."[62]

2. Whilst the plaintiff says following the 2020 accident her pain did not improve, unlike the improvement following the 2019 accident,[63] there is no evidence of any complaints by the plaintiff of any neck or cervical spine pain in the Somerton Road Medical Centre medical records for a significant period despite the plaintiff's many visits to the clinic. During cross examination this gap in complaints was put to the plaintiff:

Q: And in the preceding - in that nine-month period, I suggest you didn't make any complaints at all to any of the doctors at the Somerton Road clinic about neck pain or shoulder pain?
> >
> > A: (Indistinct).
> >
> > Q: You didn't?
> >
> > A: You mean I didn't complain of my car accident when I visit Dr Quach?
> >
> > Q: Yes. You didn't complain, I suggest, about any neck pain or any shoulder pain - - -?
> >
> > A: Yes, I didn't, because - - -
> >
> > Q: - - - to any of these doctors in the months after the second accident?
> >
> > A: Yeah, because Dr Quach, from the beginning he say, 'Don't talk about your accident in front of me at all.' He said, 'I'm not dealing with TAC, so don't talk about it.' That's why I didn't.
> >
> > Q: I see. But you didn't just see Dr Quach, did you? You saw a doctor - various other doctors at this clinic from time to time?
> >
> > A: Yep, because sometime Dr Quach is away, so they put me with another doctor.
> >
> > Q: You've seen Dr Uzelpostaci, you've seen a Dr Manpreet Kaur?
> >
> > A: Yeah.
> >
> > Q: A Dr Subhi Yatron?
> >
> > A: M'hmm.
> >
> > Q: A Dr Sema Aydemir?
> >
> > A: Yeah.
> >
> > Q: You've seen all of those general practitioners in the months after the second car accident, in addition to Dr Quach - - -?
> >
> > A: Yeah.
> >
> > Q- - - and you didn't make any complaint at all of any neck pain or shoulder pain?
> >
> > A: No, because they are from the same clinic, all of them, and most of them, when I start just talk to them and I say - I can't say anything because all the GP, as I know, and my son know that, if I just start talking about it, they say, 'Uumpp. All the GP refuse to talk about it.[64]

3. The reference to the "nine-month period" in the extracted transcript is a reference to the period ending with the plaintiff's attendance on Dr Hanaa Yohana on 1 November 2020. But even here the complaint recorded about "mild pain" is not referable to any neck or cervical spine pain. Read in context, Dr Yohana's notes records that the plaintiff "has back wound on dressing with mild pain, no significant infection no fever".[65] The plaintiff's evidence to the effect that she did not raise complaints about neck or back pain during her visits at the clinic during which she consulted other medical practitioners because she had earlier been told by Dr Quach that he does not deal with TAC and the other doctors were from the same clinic and that "[a]ll the GP refuse to talk about it"[66] is not plausible and I do not accept the explanation. Rather I infer from the records that the plaintiff did not complain about neck or back pain during the various visits to practitioners at the clinic as she was not experiencing any neck or back pain because of the 2020 accident or at least not sufficiently serious to warrant a mention during her various visits in 2020.
4. Thereafter on 11 January 2021 the plaintiff attended Dr Ming Yong, general practitioner, at the Somerton Road Medical Centre complaining of pain in the right side of her neck and shoulder, with worsening neck pain and difficulty making right sided lane checks when driving.[67] Consequently, Dr Yong referred her to Dr Ali Humadi, orthopaedic surgeon, to review her neck pain.[68] During cross examination the plaintiff clarified that although Dr Yong was at the Somerton Road clinic she was able to discuss her neck and shoulder pain and her transport accident history with Dr Yong, however he left the clinic after a few months.[69]
5. In or about January 2021 the plaintiff was approved for physiotherapy treatment and attended six sessions with Mr Nash Egan including home based exercise programs and manual manipulation which provided temporary relief; however, she says that she continued to experience ongoing pain.[70]
6. On 2 February 2021 Mr Humadi referred the plaintiff for an MRI of the cervical spine.[71] The MRI cervical spine report of 25 February 2021 records:

"No neural compressive change. No spinal canal nor any neural exit foraminal stenosis. No significant spinal degeneration. Right C4-5 neural exit canal, which accommodates the exiting right C5 nerve root, appears normal and widely patent."[72]

7. The plaintiff attended Mr Humadi again on 31 March 2021 who diagnosed the plaintiff with a whiplash injury which could not be treated with surgical intervention, and instead recommended physiotherapy, hydrotherapy and osteo treatment, as well as psychological review. The plaintiff deposed that it was not possible to get this treatment due to the COVID-19 pandemic.[73]
8. The plaintiff deposed that as her pain was getting worse, she again attended Dr Humadi on 24 November 2021, who recommended pain management and a soft collar.[74]
9. On 23 March 2022 Dr Terence Lim examined the plaintiff, noting a chronic pain condition and central sensitisation, and recommended she enter a pain management programme and prescribed Cymbalta 30mg for its anti-depressant and chronic pain reducing effects.[75] The plaintiff took Cymbalta for 1-2 days, however, as it made her feel dizzy, drowsy and she was concerned for her safety whilst driving, she ceased taking the medication.[76]
10. In May 2022 the plaintiff began also attending the Annadale Family Medical Centre as it was close to where she was living. When it was put to the plaintiff that there is no evidence of complaints of neck pain in the medical records, she gave oral evidence that the doctors would also refuse to discuss and would tell her not to talk about her transport accident.[77] It was further put to the plaintiff during cross examination that she spoke of her transport accident-related injuries to two doctors, Dr Geemuni Wasantha Gunathilake and Dr Kumudu Siriwardene. The plaintiff explained that some doctors would ask but would not deal with her transport accident-related injuries,[78] and she did not find it necessary to discuss her reduction in working hours with her doctors.[79]
11. Again, I find the plaintiff's explanations implausible. Though it is doubtless the case that some medical practitioners might not wish to deal with TAC related claims, it stretches the bounds of credulity that so many medical practitioners encountered by the plaintiff refused to discuss the plaintiff's complaints about pain because the pain was associated with a transport accident. I therefore do not accept her evidence in this regard as explaining why she had not raised complaints about neck or back pain during her visits to practitioners at the Annadale Family Medical Centre.
12. On 27 June 2022 the plaintiff was referred for a bone scan by Dr Lim which concluded:

"Minor C3-4 disc irritation is of uncertain but doubtful clinical significance. No other osteoblastic cause of cervical neck pain demonstrated"[80]

13. On 5 July 2022 the plaintiff again attended Dr Lim for treatment who noted that the plaintiff had:

"Active neck range of motion was at least functional if not almost normal. The only movement that evoked pain exacerbation was active flexion where Mrs Nona reported experiencing an increase in right-sided back of neck pain. Active shoulder ranges of motion or both shoulders were within normal limits."[81]

When it was put to the plaintiff during cross-examination that at this time, she had pretty much a normal movement in her neck and shoulders, she disagreed and said that it is not normal.[82]

1. On 18 January 2023 the plaintiff began treatment at Craigieburn Physiotherapy with Ms Pamela Teoh where she attended eight sessions. During cross examination it was suggested to the plaintiff that she only complained about pain caused by the 2019 accident. The exchange is reproduced below:

Q: See the heading there 'Presenting Complaints'?
> >
> > A: Yep.
> >
> > Q: 'Complained of still having issues with cervical region and right shoulder following motor vehicle accident on 10 December 2019'?
> >
> > A: M'hmm.
> >
> > Q: That's what you told Pamela Teoh - - -?
> >
> > A: Yeah.
> >
> > Q: - - - was the cause of your neck and right-shoulder pain, wasn't it?
> >
> > A: Yes.
> >
> > Q: The accident in December of 2019?
> >
> > A: Yeah. I always been honest and tell truth because this is the first accident and second one. The first one was like small pain.
> >
> > Q: You haven't mentioned, I suggest, the second accident?
> >
> > A: Yeah, I do. I do mention.
> >
> > Q: She hasn't recorded it, though?
> >
> > A: Because the way she - her work is to do both of them. She say she need to adjust both of them, like as I told her.
> >
> > Q: Sorry, I missed that?
> >
> > A: Sorry.
> >
> > Q: Could you repeat that evidence, please?
> >
> > A: Yeah. So the minute I visit her - the first session, she said to me better to do both of them, to adjust them, to make you feel like more relax, because I said to her most of the time this one (indicating) more stiff than the other. The other one is like tiny bit - let's say 10 per cent - but this one (indicating) 80 per cent. But this is her way. She recommend needles and I said to her, 'I don't want needles.'[83]

2. The reference to "indicating" in the extract above, is a reference to the plaintiff indicating to her right shoulder.
3. The plaintiff deposed that she attempted to make an appointment with several pain management clinics however struggled due to distance and found a clinic to be unhelpful to her situation. Later, the plaintiff identified Precision Ascend, a pain management clinic in Essendon, and was placed on a waiting list.[84]
4. When the plaintiff was assessed by Precision Ascend in July 2023, the assessment recorded that a pain management programme was premature, and it was recommended that the plaintiff seek treatment for six months with a local exercise physiologist or physiotherapist before being reassessed[85]. To date the plaintiff has not undergone a pain management programme. During cross-examination it was put to the plaintiff that she did not return to Precision Ascend by reason of her psychological symptoms:

Q: This is the report - in the third paragraph they noted you presented with features of PTSD following your motor car accidents, plural, and they recommended you discuss with your GP a referral to a suitably qualified psychologist to help address this?
> >
> > A: Yep.
> >
> > Q: It was noted that, 'In addition to impacting your ability to drive/travel via car to attend our clinic to participate in a pain management program, PTSD is closely associated with chronic pain.' Do you agree that you were advised by the Precision Ascend clinic that you weren't suitable because you had trauma symptoms; anxiety and flashbacks and those sorts of things?
> >
> > A: Yes.
> >
> > Q: And after Precision Ascend gave you that advice, you haven't been back for any pain management with anyone else, have you?
> >
> > A: Yes.
> >
> > Q: You have?
> >
> > A: No.
> >
> > Q: No. That's because, I suggest, you are able to cope pretty well with your work and your activities of daily living with getting massages from your son and very occasional Panadol?
> >
> > A: Yeah.
> >
> > Q: Is that right?
> >
> > A: Yes.[86]

5. The plaintiff deposed that a day after her physiotherapy treatment the pain would come back,[87] so she ceased physiotherapy treatment and through a GP care plan began seeing an osteopath.[88]
6. As to medication, the plaintiff deposed that she will only take Panadol or Panamax when her pain "has flared up",[89] and otherwise does not take analgesic medication. She states she prefers laying down instead of taking painkilling medication, or she will ask her son to massage her shoulder, back and neck.[90]
7. Since 2023, the plaintiff has had little treatment of her neck or right shoulder.[91]

Employment history following the transport accident

1. Following the plaintiff's injury, she continued to work as a co-educator at Good Samaritan Primary School in Roxburgh Park. In her affidavit affirmed on 13 September 2023, the plaintiff says that due to the lockdown at the time, she "had to continue working" and "soldiered on".[92] Immediately after the accident the plaintiff was able to work from home due to the COVID-19 pandemic.[93]
2. In her third affidavit, the plaintiff states that she continued to work full-time hours whilst experiencing neck and right shoulder pain as she was the only person in her family "earning an income".[94] In cross-examination it was put to the plaintiff that her husband continued to earn an income commensurate with what he earnt prior to the plaintiff's accident. The plaintiff clarified that her husband was still earning some money "but the payment was not that good payment"[95] and her boys were also not earning an income, so she felt she had to work.
3. The plaintiff continued working full-time hours until the end of 2022, where once her family members had returned to employment, she arranged with the principal of the school to move down to part-time hours, having each Wednesday off and working 24 hours per week, starting in 2023.[96]
4. In her second affidavit affirmed on 4 October 2024, the plaintiff says that she is trying to "remain at work for the sake of [her] family"[97] but finds herself in "great pain"[98] at the end of a working day, and at times takes an extra day off work due to tiredness or pain. The plaintiff further states in her third affidavit, that at work she tries "to avoid sitting, standing still, or walking for long periods"[99] and relies on the understanding and assistance of her colleagues.

Pain and suffering and work capacity consequences claimed

1. The plaintiff's evidence concerning the pain and suffering consequences of her cervical spine injury was to the following effect.
2. In her first affidavit affirmed on 13 September 2023,[100] the plaintiff says she is "in pain every day",[101] and has constant pain down the right side of the back of her neck and spine which radiates down her right shoulder and arm.[102] She notes that prior to 'the accident' she only had occasional neck pain, however now her neck and shoulders are "always stiff and sore".[103] But it is not clear whether the reference in the affidavit to the accident is intended to be a reference to the 2019 accident or the 2020 accident. The plaintiff says her pain makes her restless and she always has to move around, and the pain increases with any activity.[104] She says she often has neck pain which she believes gives her headaches.[105] The plaintiff says she gets dizzy which was an issue she never had prior to the 2019 accident.[106]
3. In her second affidavit the plaintiff says that cold weather increases her neck and shoulder pain, giving her a headache and making her tired.[107] She feels her neck is weak, and feels burning around her spine and the muscles further down her back, which she attributes to "the extra effort of holding [her] head up".[108]
4. In the plaintiff's third affidavit she states that since the 2020 accident turning her neck causes pain; she also cannot lift her right arm above her shoulder due to pain; and she cannot lift more than one to two kilograms with her right arm.[109]
5. The plaintiff told Dr Terence Lim on 5 July 2022, that her primary pain was on the right, at the suboccipital level, however he notes on examination that this area was not particularly tender.[110] In his affidavit affirmed on 4 October 2024 the plaintiff's husband says the plaintiff is "always holding her neck and pressing it, as well as touching the front of her head and pulling it back".[111]
6. The plaintiff continues to work, albeit in a reduced capacity, and finds that at the end of a working day she has to lay down or rest first as she is "usually in great pain"[112].
7. To treat her pain, the plaintiff sometimes puts a rolled towel under her head, or she gets her son to massage her, as she prefers her sons looking after her over taking medication. Sometimes she will "give in and take Panamax to get through the workday".[113] She also uses a special neck rest pillow, neck sponges, Deep Heat, Voltaren, and heat packs. She states she knows she cannot avoid the pain and therefore tries to push through flare ups.[114]
8. The plaintiff said she is afraid to take Cymbalta again given the potential side effect of nausea as she already feels "physically useless"[115] and does not want to feel nauseous as well. She states that she asked Dr Lim for a non-drowsy medication, but he told her Cymbalta was the only medication available.[116] This evidence is contrary to Dr Lim's record of a telehealth consultation with the plaintiff on 19 May 2022. In that record Dr Lim reports that the plaintiff stopped taking it due to having a viral infection and is on other medications to treat her symptoms.[117] During cross-examination the plaintiff said Dr Lim told her she didn't ask for medication because he told her "you don't need".[118] The plaintiff takes Coversyl 10mg for high blood pressure which was increased from 5mg around the time of her second affidavit. She states that she can "feel it" when she has high blood pressure and believes "this has been worse since the accident in 2020".[119]
9. The plaintiff says she feels useless, that she cannot do the things she likes, and is unhappy most of the time. She feels she cannot be there for her kids as normal. In her second affidavit the plaintiff states she feels hopeless and feels "the actual pain is getting worse because of these spiralling feelings".[120] The plaintiff says that she now tells her husband to leave her alone, whereas "before the accidents, especially the 2019 accident" she was "always happy to speak to him".[121]
10. The plaintiff states she sometimes is awoken from sleep due to pain and headaches,[122] and often thinks about her problems at night. She says she sometimes dreams about driving and having an accident or being stuck in her car, and that she did not have regular nightmares prior to the accident. She further states that her husband has said that she talks and calls out to him in her sleep.[123] She stated her son bought her a heated electric blanket as he thought it could ease her physical pain and relax her enough to ease her anxiety, but it was sometimes too hot and gave her a headache.[124]
11. The plaintiff says she used to cook twice daily and took pride in doing so, but now requires assistance from her family "to help carry heavy pots in the kitchen" or if she has to stand or bend over "for extended periods of time".[125] In her second affidavit affirmed on 4 October 2024 the plaintiff's husband stated that the plaintiff was always cooking or cleaning, and did not let him do anything at home. He said she was a very good cook, and people often came to their house for her cooking. He deposed that he did not know how to cook but learnt to cook rice to take some pressure off the plaintiff.[126] In an affidavit affirmed on 4 October 2024 the plaintiff's son said the plaintiff enjoyed managing the household.[127]
12. As to her personal care, the plaintiff states that since the 2019 accident she will not shower alone in case she falls over.[128] She says she has trouble getting dressed, doing her hair or reaching her hair to brush it, and requires assistance to put on her bra.[129]
13. Considering her domestic duties, the plaintiff says that "since the first accident",[130] presumably referring to the 2019 accident, she has not been able to garden as she "can't bend down to tend to the garden."[131] However, she gave evidence that she can water the garden twice a week and tend to her garden, that it is small and has fake grass.[132] She states that she used to do all the housework, kept the house clean, vacuumed, mopped, and did the laundry however she now cannot do it all on her own.[133] The plaintiff says she relies on her husband and both her kids to do "half of the work",[134] however it is "not the same".[135] She cannot physically push cleaning equipment, or "look down for extended periods of time",[136] she needs assistance to carry the laundry loads due to the weight, and cannot hang the clothes on the clothesline as it requires her to lift the clothes above her shoulder.[137] She requires her sons and husband to come shopping with her and carry the shopping bags. The plaintiff says that "they never had to do this before the first accident",[138] and her son deposed that "following the second accident someone has to always go shopping with her to carry the bags and to be with her as after a short time she wants to go home".[139] She says she has found it "difficult to carry heavy things since the first accident".[140]
14. The plaintiff enjoyed playing basketball with her sons between 1 to 2 times per week,[141] and prior to the 2019 accident would never miss watching their games, however, she now often does not attend.[142] In her third affidavit she states that "after the 2020 accident, the pain in my neck and limited range of my right shoulder prevent me from being able to play basketball anymore."[143] The plaintiff also has a 'maltese shih tzu' dog who she loved to walk every second day for 30 minutes, however she no longer finds it as enjoyable and will not go as often.[144] She deposed that if she takes her dog for a walk, she cannot go for more than 5 to 10 minutes as he pulls her and wants her to run which she cannot do.[145] In her third affidavit the plaintiff says that she used to walk her dog every second day for 30 minutes but now struggles to walk longer than 5 to 10 minutes because of the pain in her shoulder and that she does not walk the dog or go for walks with her husband or friends any more.[146]
15. In her second affidavit the plaintiff deposed that moving helps her pain and she tries to remain active through going for walks, and is determined to walk for as long as she can, but finds it difficult to remain active as she is "quite often exhausted by pain".[147] However, in her third affidavit the plaintiff stated that she can no longer walk more than a couple of minutes.[148]
16. In her first affidavit the plaintiff says that she used to go to church every Sunday, however she will now only go if her "pain levels allow it", and if she does go, the pain in her neck and shoulders increases during the service.[149] Her son stated that she will often not make it through a one and a half hour church service, and if she has to be there for the entire service she will constantly be moving around.[150] The plaintiff states in her third affidavit that this has "hampered" her connection with community.[151] She states she is more reclusive than she was prior to her injuries, and when friends ask her about holiday plans she has nothing planned as she wants to relax at home.[152]
17. In her first affidavit, the plaintiff discusses the impact the 2019 accident had on her ability to drive, saying driving has been more difficult "due to fear and also neck pain",[153] her neck pain prevents her from doing head checks easily, she stays to the left to avoid looking over her right shoulder,[154] she limits driving to short distances and will change her route depending on her feelings. She then states that the "second accident just made these sorts of feelings worse: it seemed to confirm the increased fears I had since the first accident."[155] In her second affidavit the plaintiff states that she feels "stressed and anxious in the car", a feeling which "has been there since the first accident and was made worse in the second".[156] The plaintiff says she is a nervous passenger, and her husband knows she is "scared a lot" which was not how she was "before the accident in December 2019".[157]
18. The plaintiff says she worked 38 hours a week prior to her injury. She says that it was easier to work from home during the COVID-19 lockdown, but when she returned to the school full-time, she struggled.[158] The plaintiff deposed that she felt she had to keep working as she was the sole income earner when her husband lost his job due to COVID-19.[159] She says her neck and shoulder pain is distracting, she has to move around a lot, and she relies on her colleagues to be understanding.[160] As earlier noted, in 2023 the plaintiff reduced her hours from full time to 4 days, or 24 hours, per week.

1. On 31 March 2021 Mr Ali Humadi, orthopaedic surgeon wrote to Dr Yong, general practitioner, opining that "the clinical picture of Shatha is consistent with whiplash injury given the neck and trapezius pain that she has and also the headache".[161] Mr Humadi recommended the plaintiff undergo "physiotherapy, hydrotherapy and osteo" treatment, with a focus on "building the strength in the muscle and rehabilitation",[162] and suggested a referral to a pain specialist.
2. On 24 November 2021 Mr Humadi wrote to the Transport Accident Commission and opined that the plaintiff's clinical presentation was "consistent with severe whiplash injury" which "could cause a longstanding neck pain",[163] and for which "sometimes there is no cure". Mr Humadi requested the approval of a referral to a pain specialist as well as a soft collar. Also on 24 November 2021, Mr Humadi wrote a referral to Dr Terence Lim, rehabilitation and pain medicine consultant, to request a pain specialist review for the "whiplash injury".[164]
3. In his report dated 14 March 2022, Mr Humadi stated that the plaintiff first presented with "neck pain and right-sided posterior neck and paraspinal pain radiated down to the right shoulder and right arm".[165] Reporting on his first examination of the plaintiff on 3 February 2021, Mr Humadi noted the following:

"On examination, she had pain and tenderness in the central and right paracentral neck. The cervical spine was very stiff, especially in rotation and flexion on the right side. > > I examined her neurology in the arm. There was a minor weakness in the right arm compared to the left, mainly due to pain inhibition."[166]

4. When reporting on her second attendance on 31 March 2021, Mr Humadi states "the injury was consistent with whiplash, with some soft tissue oedema",[167] and recommended physiotherapy and hydrotherapy. When reporting on her third attendance on 24 November 2021, Mr Humadi stated the plaintiff presented with "significant pain", difficulty walking, difficulty functioning at home, and frustration. He opined that surgery was not an option for the plaintiff's condition, and recommended a referral to a pain specialist, as well as a soft collar for severe pain.[168] In relation to future treatment, Mr Humadi recommended continuing with "nonoperative measures, including physiotherapy, hydrotherapy, muscle strengthening exercises and postural training".[169] He noted that "there are no restrictions with her neck movement, but any restrictions are determined by the pain that she has"[170] and explained that treatment is to make the pain more tolerable.
5. Mr Humadi, does not, in his reports and correspondence distinguish between the two accidents.

Dr Terence Lim, rehabilitation and pain medicine consultant

1. Dr Terence Lim, rehabilitation and pain medicine consultant, reported on 23 March 2022, that the plaintiff presented "complaining of suffering from chronic bilateral neck/shoulder girdle pain".[171] He reports that her "chronic pain condition is a consequence of having suffered 2 MVAs" and is due to a combination of "having become significantly pain-sensitised (central sensitisation)". He explains that "central sensitisation is a scientifically-proven, organic change in the CNS pain pathways resulting in ongoing pain generation, pain amplification and perpetuation" and which "once established, as in Mrs Nona's case, there is no cure".[172] Dr Lim notes that "it is likely that she would have been active above her centrally-sensitised lowered threshold resulting in ongoing pain generation". He further refers to her emotional state noting she was "emotionally distressed" and "tearful" during his assessment "in reaction to her current predicament", noting there is "fMRI evidence suggesting that "emotions can generate pain" but that the plaintiff did not have PTSD symptoms. Lastly, Dr Lim notes that her "active global neck range of motion was reduced due to the presence of tight muscles and pain exacerbation".[173] Dr Lim prescribed Cymbalta 30mg with a view to increasing to a standard dose of 60mg, for both its "antidepressant and chronic pain reducing effects"[174] and referred the plaintiff to a pain rehabilitation program.
2. Dr Lim reported on 5 May 2022,[175] that the plaintiff "remains in pain, unsurprisingly". He notes that the plaintiff had "some major side effects" when taking Cymbalta and was only taking the medication intermittently. Dr Lim again prescribed Cymbalta 30mg as well as "Maxolon 10mg TDS"[176] as needed. "TDS" is an acronym for the Latin phrase "ter die sumendum" meaning "to be taken three times daily." He recommended the plaintiff undergo a "nuclear medicine bone scan looking for inflammatory facet disease as an additional factor to her persistent neck pain",[177] and subsequently wrote to the TAC to request this scan. He also discussed "appropriate activity-pacing" and noted that the plaintiff "realised that she does need to reduce her hours to keep 'below threshold' to reduce pain".
3. Dr Lim in his report dated 2 May 2023,[178] records exploring various pain management program providers for the plaintiff to attend, and notes that the plaintiff is on a waiting list to attend Precision Ascend until November 2023.
4. In a report dated 19 May 2022, Dr Lim notes that the plaintiff ceased taking Cymbalta as she is suffering from a viral infection.[179]
5. As requested by Dr Lim, the plaintiff underwent a bone scan on 27 June 2022 which concluded, "Minor C3-4 disc irritation is of uncertain but doubtful clinical significance. No other osteoblastic cause of cervical neck pain demonstrated".[180] Dr Lim did not report on these findings.
6. In his last report dated 5 July 2022,[181] Dr Lim noted that the plaintiff presented as follows:

"Her "number 1" pain is on the right, at the suboccipital level, which is not particularly tender. However, she was exquisitely tender in a number of spots along the right extensor muscles as well as the upper trapezius muscles bilaterally and the left upper limb muscles which in turn reflects having become significantly pain-sensitised (central sensitisation), which is amplifying perpetuating her pain. > > Active neck range of motion was at least functional if not almost normal. The only movement that evoked pain exacerbation was active flexion where Mrs Nona reported experiencing an increase in right-sided back of neck pain. Active shoulder ranges of motion or both shoulders were within normal limits."

Mr Justin Moar, physiotherapist and clinical team leader

1. On 3 July 2023,[182] Mr Justin Moar, physiotherapist and clinical team leader at Precision Ascend reports on the plaintiff's attendance on the multidisciplinary team at Precision Ascend. He opined that "undertaking a 10-week intensive group-based pain program at this time is not recommended",[183] and rather recommended the plaintiff discuss with her GP seeking a referral to a psychologist, and a local exercise physiologist or physiotherapist, and implement such treatment for a period of 6 months, with a view to reassessing the plaintiff after that period.

1. On 29 April 2025,[184] Ms Pamela Teoh, physiotherapist, reported that the plaintiff presented with "issues with cervical region and right shoulder following MVA on 10 December 2019, no real improvement with treatment". On examination, Ms Teoh notes that the plaintiff presented with "painful mainly right suprascapular region, also painful right anterior shoulder" and restricted range of motion in both her cervical spine, and right shoulder. Ms Teoh recommended an ultrasound of the right shoulder, as well as a CT or MRI scan of the cervical region.

1. In his report dated 10 May 2022,[185] Dr Lester Walton, psychiatrist considered the plaintiff's diagnosis as "chronic mixed anxiety/depressive disorder with features of traumatisation", noting that there have been multiple traumatic events which contribute to her current psychiatric condition, however "it does appear that the index accidents in 2019 and 2020 have made a contribution to the enduring anxiety and depression".[186] Dr Walton considered the plaintiff's prognosis as "reasonably favourable" however she "will be left with long-term mood disturbance to which those accidents do make a contribution".[187]

1. On 27 June 2022,[188] Mr Stephen Doig, orthopaedic surgeon, reported that the plaintiff presented complaining that her neck "still feels numb" with "ongoing pain radiating towards both shoulders and it is static".[189] In the plaintiff history recorded, Mr Doig notes that the plaintiff said after the 2019 accident "she did not settle and she continued to have ongoing pain present".[190] On examination, Mr Doig notes the plaintiff was "tender on both sides of the cervical spine" and makes notes about her flexion and extension in her neck and shoulders. As to diagnosis, Mr Doig considers a "soft tissue injury to the cervical spine" and which he opines that "the [2019 accident] has been a significant contributing factor to her current situation"[191] where any pre-existing neck pain would have settled down and then been aggravated by the 2019 accident. Mr Doig opined that the plaintiff is likely to "continue to have some ongoing ache in the cervical spine"[192] and suspects "that there is nothing further that can be done" but it is "unlikely she will significantly deteriorate into the future".[193] When considering the plaintiff's impairment Mr Doig notes that the "accident on 27/02/20 does not alter or add to this impairment and as a consequence although she is a DRE Category 2, 5%, after second (sic)[194] accident, this is discounted back to zero for the [2020 accident]".[195]
2. In his addendum report dated 23 July 2022,[196] Mr Doig opined that "the pain that she had radiating towards her shoulders is primarily coming from the neck",[197] where there is a "slight restriction in flexion on both shoulders".

1. In his report dated 17 June 2024,[198] Dr Philip Sheard, orthopaedic surgeon, considers the plaintiff's diagnosis in respect of the 2019 accident and the 2020 accident separately. He reports in relation to the 2019 accident, the plaintiff's diagnosis is "left-sided whiplash type injury", and in relation to the 2020 injury, the plaintiff's diagnosis is "right-sided whiplash type injury".[199] He notes that the plaintiff is not being treated, and recommends a referral to a pain specialist to explore "painkillers and possible spinal injections", as well as physiotherapy treatment. Dr Sheard opines that in relation to the plaintiff's working capacity, she is restricted from working hours beyond "8:30 to 2:30 four days a week".[200]

1. On 29 August 2024,[201] Dr Albert Kaplan, psychiatrist, notes that the plaintiff "is still able to be happy", yet "any incident however can cause her to sink into despondency and experience anxiety".[202] He opines that due to the plaintiff's "traumatic and stressful experiences through her life, she is likely to remain emotionally somewhat fragile for the foreseeable future".[203] Dr Kaplan recommends the plaintiff be referred to a psychiatrist or psychologist for treatment if she is willing to resume counselling. He opines that the plaintiff's psychiatric condition "has not affected her social, domestic and recreational activities, and any restriction is related to her physical injury" and whilst her "emotional fragility" may have some impact on her work capacity, her capacity "will largely be determined by her physical injury".[204]

1. On 3 September 2024,[205] Mr Michael Dooley, orthopaedic surgeon considers the plaintiff's diagnosis in relation to the 2019 accident and the 2020 accident separately. He opines in the 2019 accident the plaintiff "sustained a soft tissue injury to the cervical spine region that involved musculoligamentous strain/sprain" as well as "some neck soreness after the accident" which "settled predominantly".[206] He opines that the plaintiff, in the 2020 accident, again "sustained a musculoligamentous sprain/strain type injury" and "it is possible some aggravation of early degenerative change occurred".[207] On examination, Mr Dooley reports "moderate to significant restriction of active range of motion of the cervical spine" and "symmetrical restriction of active range motion of both shoulders", however he also reports "there are inconsistent signs on clinical examination". He notes that "the constancy and intensity of her ongoing pain and her described disability are greater than one would expect to see for her organic condition"[208] and opines that the plaintiff's psychological condition significantly influences her ongoing symptoms".[209] Mr Dooley does not recommend any formal ongoing treatment as he opines this would "only tend to reinforce the psychological component of her presentation", and rather recommends the plaintiff remains active and undertakes "regular low impact exercise".

1. Associate Professor Peter Doherty, psychiatrist, reported on 9 November 2024[210] that when he assessed the plaintiff, she presented as a "mildly anxious person, with some reported mild features of traumatisation and persistent pain".[211] He opines that "there is no diagnosable pain-related psychiatric condition present", however, he also opines that pain causes concern to the plaintiff, and "limits her functional capacity".[212] Associate Professor Doherty further reports that the 2020 accident "caused a mild exacerbation of the recurrence of the anxiety disorder",[213] however also notes that "there are significant unrelated factors contributing to the current psychiatric condition". When considering the plaintiff's work capacity, he opines that when the combination of "pain and functional limitations, mild anxiety, tiredness, lethargy and problems with motivation" are all considered, "20 to 25 hours is probably her maximum" working capacity.[214]
2. As to the reports from all psychiatrists, I agree with the defendant that the psychiatrists are ad idem that the plaintiff presents with trauma‑type symptoms and anxiety and various fears which have origins back to Iraq and various other events which are outside the scope of this application. And in any event, the plaintiff does not allege any behavioural disturbances or disorders that arise from the physical injury which ought to be considered when assessing the seriousness of the impairment or loss of a body function alleged here. Nor is there evidence of any adjustment disorder or other mental consequence flowing from physical pain alleged.

1. In summary, the plaintiff contends as follows. The plaintiff acknowledges that the evidentiary record is marked by inconsistencies which appear in her own evidence, in histories she provided to treating practitioners at different times, and in the opinions expressed by both treating doctors and medico‑legal assessors. The inconsistencies complicate the task of determining causation and the nature of the injury. But the plaintiff says the inconsistences are explained by her personal inability to delineate between her psychological and physical difficulties.
2. The plaintiff contends that two principal issues arise for determination: first, whether the injuries sustained in the 2019 accidents and 2020 accidents can be disentangled to attribute the pleaded injury to one event; and second, whether the plaintiff has established that she suffers a "serious injury" within the meaning of the Act.
3. The plaintiff accepts that she bears the onus of establishing that the injury relied upon is attributable to a single accident. The plaintiff says that on the evidence, the injury claimed has arisen from the 2020 accident. The plaintiff contends that the cervical spine injury, described as a whiplash injury, was sustained in the 2020 accident and not in the 2019 incident.
4. The plaintiff says that the objective medical records provide some assistance. Following the 2019 accident, the plaintiff complained only of left‑shoulder pain, and an X‑ray of that shoulder was recommended. By contrast, after the 2020 accident, the plaintiff reported neck pain radiating predominantly to the right shoulder, and an MRI of the cervical spine was ordered. Although that scan revealed no structural abnormality, subsequent treating notes and medico‑legal reports consistently record ongoing neck pain with associated right‑shoulder symptoms. There is no evidence of continuing left‑shoulder pain beyond the early period following the 2019 accident.
5. The plaintiff says that although some medico‑legal assessors considered both accidents as potential contributors to a soft tissue injury, the plaintiff's histories and the pattern of treatment support the conclusion that the neck injury was occasioned by the 2020 accident. The plaintiff contends that the court should accept that the plaintiff, as a layperson, was not able to delineate precisely between the two events when providing histories, and that this contributed to the inconsistencies observed. The plaintiff contends that on balance, the evidence permits a finding that the pleaded cervical spine injury resulted from the 2020 accident.
6. As to the question of serious injury, the plaintiff says the evidence demonstrates that from 2020 until cessation of treatment in 2024, the plaintiff was repeatedly referred to pain management clinics and physiotherapy and prescribed analgesic medication. Her treating orthopaedic surgeon Mr Ali Humadi advised that her whiplash injury was unlikely to resolve and that management would focus on coping strategies rather than cure.
7. The plaintiff's evidence, supported by payslips, establishes that she reduced her working hours from 38 per week to 24 per week in early 2023, representing a 37% reduction. This change was attributed to the need to implement pacing strategies recommended by her doctors. The reduction in hours has resulted in a pecuniary disadvantage, although precise quantification is limited by the absence of complete financial records.
8. Functionally, the plaintiff contends she experiences limitations in neck range of motion, seating and standing tolerance, and the ability to raise her arms. These restrictions affect her capacity to undertake domestic activities, including laundry and cooking, and limit her participation in recreational pursuits such as sport with her sons. The plaintiff also reports difficulty attending church services due to pain when seated for extended periods.
9. The plaintiff contends that the court should accept that she has endeavoured to continue working and maintain family responsibilities despite her symptoms, but this stoicism does not diminish the reality of her pain and functional limitations. When considered cumulatively - persistent pain, reduced earning capacity, and interference with domestic and social activities - the consequences of the injury are 'very considerable' and more than 'significant' or 'marked'. The court should be satisfied that the plaintiff sustained a cervical spine injury in the 2020 accident, the consequences of which amount to a serious injury within the meaning of the Act.
10. For its part, the defendant in summary contends that that the plaintiff has not discharged the onus of establishing a serious injury within the meaning of the Act. Central to this submission is that which counsel for the defendant described as the "disentanglement problem".[215] The plaintiff bears the burden of delineating the impairment consequences attributable solely to the 2020 accident and the statutory scheme does not permit aggregation of impairments arising from separate accidents.[216] On the evidence, the defendant submits that no such delineation has been attempted and the belated attempt to do so in the plaintiff's third affidavit is a "construct" which contradicts the "gist and the tenor of the first two affidavits".[217]
11. The defendant points to the plaintiff's affidavits and medical histories. The first two affidavits, and the histories provided to treating and medico-legal practitioners, consistently record ongoing neck and left shoulder pain following the first accident, without abatement prior to the second. The third affidavit, filed shortly before the hearing, is said to contradict those earlier accounts and as noted is characterised by the defendant as a "construct," raising issues of the plaintiff's credibility and reliability.
12. The defendant says that the clinical records reveal no complaint of neck pain on the day of either accident and thereafter only sporadic references to symptoms, often implicating both accidents. Reports from Dr Humadi and Dr Lim do not address disentanglement. The physiotherapy report of April 2023 refers only to the first accident. The three medico-legal practitioners - Mr Doig, Dr Sheard and Mr Dooley - each obtained a history of two accidents with ongoing neck pain after the first.
13. Mr Doig's July 2022 report noted normal shoulder function and opined that the first accident was a significant contributing factor to the plaintiff's condition. Dr Lim similarly recorded normal range of movement in the neck and shoulders. Dr Sheard attributed 70% of shoulder impairment to the second accident but diagnosed the same whiplash-type injury from both accidents and did not separate their effects on the neck. Mr Dooley diagnosed a soft tissue cervical injury from the first accident and considered psychological factors to be significant.
14. The defendant submits that, even if disentanglement were not an issue, the plaintiff does not presently suffer a serious injury of the cervical spine. Treatment has been minimal: limited physiotherapy, no ongoing specialist involvement since mid-2022, and no prescription analgesia beyond brief use in 2022. The plaintiff has maintained full-time employment for several years post-accident and continues to work.
15. As to the reduction in the plaintiff's working hours, the defendant contends that this occurred long after the accidents, without medical recommendation or employer evidence, and cannot be attributed solely to the 2020 accident. The defendant says that the only medico-legal support for reduced hours is an unreasoned statement by Dr Sheard, which appears to assume impairment from both accidents. The defendant also says that that there is no evidence from which to infer that the plaintiff is stoic or to infer despondency as a reason for her lack of treatment, and the plaintiff's submission is little more than an invitation to speculate.
16. Finally, the defendant submits that the plaintiff's credibility is in issue, given inconsistencies between affidavits and her vague evidence regarding onset of symptoms. And as, in the defendant's submission, the third affidavit is a construct to overcome the disentanglement issue, the position reflected in the plaintiff's first two affidavits and medical histories should be preferred.

1. As already noted, the plaintiff's counsel properly conceded that this matter is plagued by inconsistency. The joint court book is replete with inconsistency in the plaintiff's affidavits, in the histories provided to various medical practitioners and in the resulting opinions. The plaintiff submits that the inconsistencies are due to the plaintiff's own inability to delineate between her psychological and physical difficulties. This submission cannot be accepted. It seems to me that the inconsistency has arisen because the plaintiff has sought most recently to deal with the disentanglement issue that she faced by seeking to play down in her third affidavit the significance of the 2019 accident.
2. Just a few examples will suffice to make good the point. In the third affidavit the plaintiff deposed that her neck and right shoulder pain has impacted her day-to-day, that turning her neck causes her pain, and she says that before the 2020 accident she did not have these difficulties.[218] Yet in her first affidavit the plaintiff deposed that after the first accident she was finding difficulty turning her head because of the pain this made driving difficult[219] and that driving became more difficult since the first accident due to fear and also neck pain.[220]
3. In her first affidavit the plaintiff deposed that the first accident was worse, but both had lasting consequences.[221] Yet in the third affidavit the plaintiff says that she suffered a "minor injury" to her left shoulder which caused mild to moderate shoulder pain.[222] In the same affidavit, the plaintiff deposed that on December 2019 when she saw Dr Yohana she described experiencing a left shoulder pain but no head, neck or upper back pain.[223] But in her first affidavit she said that she felt pain in her neck and left shoulder, and that she had pain in her neck and shoulders and headaches and that although she went back to work she was in "bad pain".[224] And further that she was suffering headaches when her neck flared up.[225]
4. Moreover, during cross examination the following exchange took place:[226]

Q: 'The first accident was worse but both had lasting consequences'?
> >
> > A: Worse not in pain, worse not in pain. Just like as a car accident, I don't like it.
> >
> > Q: But what you've said in this paragraph is both car accidents caused you physical and psychological injury?
> >
> > A: Yeah, both of them, but the second one was more bad. Very, very bad, the second one, but the first one wasn't that bad, the accident.
> >
> > Q: But that's not what you're saying in this affidavit, is it? In this affidavit, at paragraph 18, you're saying, on your oath, that in your mind, the first accident was worse?
> >
> > A: Yeah, worse than - - -
> >
> > Q: So can I suggest that your third affidavit, sworn yesterday, is, to that extent, not true?
> >
> > A: Sorry, what do you mean?
> >
> > Q: What I'm putting to you - I'll put this to you: you have sworn your third affidavit yesterday in an attempt to try and separate out the consequences of these two accidents, haven't you?
> >
> > A: Yes.
> >
> > Q: You agree with that?
> >
> > A: Yeah.
> >
> > ...
> >
> > Q: Again, I suggest the affidavit you swore yesterday completely contradicts everything you've said in these paragraphs about the effects of the first accident. Are you following?
> >
> > A: Sorry?
> >
> > Q: Do you understand that question?
> >
> > A: Yes, yep.
> >
> > Q: And it does, doesn't it? They both can't be right?
> >
> > A: Yep.

Q: Let me put this to you: in your first affidavit, you have clearly stated, I suggest, that after the first accident you had ongoing pain and restrictions in your neck and left shoulder?

A: Yep.

Q: And you've given a similar history to all of the doctors who have treated you in this case?

A: Yep.

Q: In your second affidavit, you said similar things, I suggest. That was sworn in October 2024?

A: Yeah.

Q: And it's only yesterday, when you swore your third affidavit, that you have tried to reconstruct the true history and blame the second accident for all of your neck pain?

A: Yeah. Yes.

Q: That's true, isn't it?

A: Yeah.

1. In the circumstances I accept the defendant's contention that the third affidavit sworn a few days before the hearing of the application is a construct. It seeks to erect circumstances which downplay the significance of the 2019 accident and the injuries the plaintiff sustained therein to overcome the difficulties posed in the evidence in bypassing the effect of s 93 of the Act.[227] Abandoning the application for a serious injury certificate related to the 2019 accident as the plaintiff did at the commencement of the hearing, does not overcome the difficulty. The plaintiff must still separately identify the injury and its effects resulting from the 2020 accident. I do not accept the plaintiff's evidence given in the third affidavit and so what is left of the plaintiff's evidence is her first and second affidavits and her oral evidence.

Has the plaintiff been able to disaggregate the injuries sustained in multiple transport accidents?

1. The terms of s 93 of the Act are unyielding. It does not permit a person to aggregate injuries over multiple transport accidents, or to make a claim for a 'gradual process injury' caused by multiple transport accidents.[228] As noted earlier, the plaintiff's third affidavit substantially contradicts the matters to which she deposed in her first and second affidavits. It also contradicts much of the histories taken by the various medical practitioners from the plaintiff.
2. As earlier noted, because I have rejected the plaintiff's evidence in her third affidavit, that which is left, apart from her oral evidence with which I have relevantly dealt earlier, is the plaintiff's first and second affidavits and the histories contained in the various medical reports.
3. That which is evident from the first and second affidavits and the medical histories in respect of the 2019 accident is that the plaintiff sustained an injury impacting her neck and left shoulder and that the pain associated with the injury did not abate. The 2020 accident resulted in whiplash injury to the cervical spine resulting in neck pain.
4. In his 27 June 2022 report, Mr Doig diagnosed the plaintiff with a soft tissue injury to the cervical spine resulting from the 2019 accident, noting that he considered the 2019 accident "has been a significant contributing factor to [the plaintiff's] current situation".[229] Ms Teoh notes in her 29 April 2025 report that the plaintiff is still having issues with the cervical region and right shoulder following the 2019 accident, with no real improvement. Dr Sheard notes in his 17 June 2024 report in relation to the 2019 accident that at that time, the plaintiff described neck pain relating to both shoulders and that "just prior to the second accident, she described a left-sided central neck pain which comes and goes, worse after work and on waking with radiation to the left shoulder"[230].
5. In Mr Dooley's report of 3 September 2024, Mr Dooley said that he considered the plaintiff had sustained a soft tissue injury in the cervical spine region in both accidents.
6. The plaintiff has made no attempt to delineate the impairment consequences of the 2019 accident from the 2020 accident, and the opposite has been the case in her first and second affidavits and in the medical reports. Counsel for the plaintiff says that the objective medical records provide some assistance. The plaintiff's suggestion during closing submissions that following the 2019 accident, she complained only of left‑shoulder pain should be rejected, and is patently contrary to the evidence in her first affidavit, which she adopted at the commencement of oral evidence and in which she explains that she had pain in her neck after the 2019 accident which ultimately resulted in her experiencing difficulty turning her head because of the pain. After the 2020 accident, the plaintiff also reported neck pain.
7. The plaintiff has in her evidence and in the histories given to the medical practitioners aggregated her cervical spine and neck injuries which are attributable to multiple transport accidents, namely the 2019 and 2020 accidents. The pain and suffering consequences set out in the plaintiff's evidence and in the histories given to medical practitioners also make no effort to delineate between the consequences flowing from the injury sustained in the two accidents. And save for the third affidavit which I have rejected, the applicant's evidence and the histories do not focus only or separately on the pain and suffering consequences flowing from the injury sustained in the 2020 accident.
8. It follows that the plaintiff's application for leave commence a proceeding to recover damages in respect of injuries the plaintiff claims resulted from the 2020 accident cannot succeed.

What is the plaintiff's injury and is that injury a serious injury?

1. Given my conclusion in the preceding paragraph, it is not necessary to consider further whether the plaintiff currently suffers from a serious long-term impairment of a body function, but I will nonetheless set out my conclusion on that question. Considering the matters discussed below, I do not consider the plaintiff's impairment is a serious long-term impairment of her cervical spine.
2. The plaintiff said she experiences constant pain, which she describes as going down the back of her neck on the right side, radiating down her right shoulder and arm. She describes her neck as stiff and sore, that turning her neck causes pain, and she cannot lift her arm above her shoulder. She says her neck pain gives her headaches, gets worse in cold weather, and because of her neck weakness she feels burning around her spine and the muscles further down her back. She says her pain makes her restless and she must move around, but any activity increases her neck pain.
3. There is evidence that between the 2019 accident and the 2020 accident the plaintiff gave various histories which indicated ongoing pain between the accidents and corresponding treatment.[231]
4. The plaintiff has been prescribed Cymbalta for her pain; however, she ceased taking the medication after one to two days as it made her drowsy and feared this would interfere with her driving. She has tried using a special neck rest pillow, anti-inflammatory creams, a massage gun, neck sponges and heat packs. She does not want to rely on painkilling medication and will only take Panadol or Panamax if she must, or to help her get through a working day, but she prefers getting massages from her sons.
5. The plaintiff submitted that because she was told her condition would not entirely improve, nor was she offered treatment which would provide her a future without pain, she became despondent, failed to continue treatment and merely was taking the advice of her treaters.[232] This contention is rejected because it lacks any evidentiary foundation. As the defendant correctly points out there is no evidence directly suggesting the plaintiff ceased seeking treatment because of despondency nor is there any proper basis to infer despondency as a reason for her lack of treatment. The plaintiff's submission is little more than speculation.
6. While I accept that the plaintiff experiences pain given the lack of treatment and absence of prescription medication, I do not consider her pain to be significant. Treatment has been minimal - Mr Humadi, ceased involvement in early 2022; the pain specialist, Mr Lim, ceased involvement in July 2022. Physiotherapy consisted of approximately eight sessions, with the Craigieburn report relating only to the first accident. Physiotherapy is not ongoing. There has been no prescription of analgesia. The only prescribed medication was by Dr Lim in mid-2022, which the plaintiff took for two or three days. The plaintiff's evidence was that she occasionally used Panadol or Panamax. There is no report from a general practitioner, which a person in pain might be expected to visit for treatment and pain relief advice.
7. As noted earlier, the plaintiff returned to her pre-injury employment on a full-time basis, however in 2023 she reduced her working hours to 4 days or 24 hours per week. She attributes the delay in decreasing her hours to her husband and sons losing their jobs due to the COVID-19 pandemic, leaving her to be the sole breadwinner. That may be so but there is no medical report obtained at the time the plaintiff reduced her hours recommending that her hours be reduced because she did not have a capacity to work full-time. Indeed, Mr Doig's report of 27 June 2022 notes that the plaintiff is working full-time with full-time duties which Mr Doig considered was appropriate. That assessment is contrary to any suggestion by the plaintiff that there was an accident-related injury need for her to reduce her working hours.
8. There is no medical basis for reduced hours beyond Mr Sheard's opinion, which is based on both accidents. The plaintiff did not produce any treating practitioner recommended reduced hours. There are no incapacity certificates or employer evidence which pertain to the reasons for the reduction in hours. It cannot be inferred that, absent the 2020 accident alone, the plaintiff would still be working full-time. The evidence discloses that the plaintiff's neck pain relates to both accidents, so even if it be accepted that the plaintiff's reduced hours were necessitated because of the pain, this does not establish the reduction is only because of the injury sustained in the 2020 accident.
9. Consequently, I am not persuaded that any reduction in working hours and associated reduction in earnings or earning capacity is consequent on the plaintiff's injury sustained in the 2020 accident.
10. The plaintiff states that her sleep is often disturbed by pain, headaches, and thinking about her problems at night. She says she has dreams about car accidents and did not have regular nightmares before the accident.
11. The plaintiff's cognitive functioning has not obviously been affected. She continues to work as a co-educator providing bilingual support four days a week. Beyond that it seems clear on the evidence in the plaintiff's first affidavit that the first accident was a triggering event in relation to her experience of an earlier car crash and the stresses she experienced in the 1990s which came back to haunt her and that she was fearful of being on the road and had to force herself to get back in the car and drive.
12. The plaintiff also deposed in her first affidavit that whilst she had a fear following the 2020 accident the fear was present even before that accident, but it got worse.
13. Because the plaintiff's interrupted sleep is said to be the result of pain and dreams about car accidents, one cannot attribute the interruption solely or even predominately given the plaintiff's history, to the injury sustained in the 2020 accident.
14. The plaintiff says that she often asks her husband to leave her alone and has found she relies greatly on her husband and sons for support around the house and doing duties that she used to do on her own.
15. The plaintiff's capacity to undertake household duties as a function of her pain experience, which is the result of both accidents, again cannot solely or even predominately be ascribed to the injury sustained in the 2020 accident.
16. The plaintiff says she struggles to move her head to the side and cannot lift her arms above her shoulder. She says she used to go for long walks, but now can only tolerate a couple of minutes, and cannot walk her dog for five to ten minutes. The plaintiff also says she cannot lift more than one to two kilograms. The plaintiff further says her sitting tolerance is impacted, where she cannot sit through an entire church service which is typically one and a half hours. I note that during cross-examination the plaintiff stood several times.
17. I accept that the plaintiff has some mobility issues and that the activities described above have been impacted. Her mobility is a function of her pain experience which is the result of both accidents and similarly cannot on the evidence solely or even predominately be ascribed to the injury sustained in the 2020 accident.
18. The plaintiff reports that her ability to maintain self-care has been impacted, as she cannot shower alone, and her pain makes it difficult for her to reach and brush her hair, or dress, or put on her bra.
19. There is evidence that the plaintiff's performance of household and family duties has been affected as she avoids mopping and vacuuming, struggles to do light cleaning duties, has stopped cooking as regularly, does not go shopping by herself as she cannot carry the shopping bags, and requires assistance when doing laundry as she cannot carry more than one to two kilograms, or lift clothes above shoulder level to hang them on a clothesline. She says she cannot tend to her garden other than watering the garden twice a week. The plaintiff enjoyed managing her household and now relies on her husband and sons to help with half the work.
20. It was put to the plaintiff during cross-examination that she was exaggerating when she said she was unable to garden or prune any leaves, however she disagreed saying "I feel I can't".[233] She gave oral evidence that bending down when gardening hurts her neck and shoulder. It was also put to the plaintiff that she stopped gardening after the 2019 accident, and she gave evidence that she stopped because they moved house, and a landscaper had done the garden, so she didn't have to do anything at the time.[234]
21. I accept there is some impact on some of the plaintiff's daily living activities, but these are likewise the function of the pain experienced which cannot on the evidence be ascribed solely or even predominately to the injury sustained by the plaintiff in the 2020 accident.
22. As discussed earlier, the plaintiff no longer plays basketball with her sons and will only go to church on Sundays if her pain allows it. She says she is less social and prefers to relax at home rather than making holiday plans.
23. I accept the plaintiff is restricted in the manner described. But again, the impact is a function of pain she experiences which cannot on the evidence be ascribed solely or even predominately to the injury sustained by the plaintiff in the 2020 accident.
24. The plaintiff's evidence is that driving is difficult, and her pain prevents her from doing head checks easily. She confirms that she continues to drive to work and the shops, however she feels stressed and anxious when driving. The impact on the plaintiff's driving is even more difficult to assess by reference only to the 2020 accident injury. The plaintiff has a history of motor vehicle accidents as well as other trauma and she reported that after the first accident she developed a fear of driving and that she had difficulty driving because she could not turn her head due to the pain.
25. The affidavits of the plaintiff's husband[235] and eldest son[236] in which each deposes to their observations of the after accidents consequences for the plaintiff, serve to highlight the difficultly in ascribing the consequences each is said to have observed only to the 2020 accident injury and so proved little assistance to the plaintiff's claims. The consequences of the injury must be serious to the plaintiff. Those consequences will generally relate to pecuniary loss or disadvantage and pain and suffering experience by the plaintiff. Considering those consequences which are discussed above the plaintiff's impairment resulting from the 2020 accident, in comparison to a range of cases, including cases involving impairment of the brain, the spine and larger or weight bearing joints, and cases involving consequences such as pain requiring prescription medication, significant medical treatment, significant sleep deprivation and inability to work or socialise, falls short of the statutory threshold. In comparison with the range of possible impairments or losses, I do not consider the plaintiff's impairment can be fairly described at least as 'very considerable'.
26. For completeness, there is no diagnosed adjustment disorder or other mental condition arising from the plaintiff's physical pain. The psychiatric evidence is that the plaintiff's symptoms - trauma, anxiety, and fears - stem from pre-existing factors unrelated to the 2020 accident. And while psychological consequences may be considered in assessing a physical injury, there is no evidence of that here.

1. As the plaintiff in substance abandoned the application for leave in respect of the injury sustained in the 2019 accident, that application for leave is dismissed.
2. For the reasons given above the plaintiff's application for leave to commence a common law proceeding in respect of the injury sustained in the 2020 accident is refused.
3. I will hear the parties on costs.

[7] Transport Accident Commission v Katanas [2017] HCA 32, 262 CLR 550 at [4]-[5]

[9] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140

[10]Richards v Wylie [2000] VSCA 50, 1 VR 79 at [17], [24], [28]; Thapa v Transport Accident Commission [2021] VSCA 239 at [62]

[11] Richards at [17]; Rodda v Transport Accident Commission [2008] VSCA 276 at [103]

[12] Randhawa v Transport Accident Commission [2021] VSCA 135 at [79]

[13] Phelan v Transport Accident Commission [2013] VSCA 306 at [25]

[14] Transport Accident Commission v Kamel [2011] VSCA 110 at [65]-[66]

[15] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140

[16] Hooley v Transport Accident Commission [2019] VSCA 263 at [40]

[20] T56 L24-28; Meadows v Lichmore Pty Ltd [2013] VSCA 201

[39] JCB 13 [9] - There is some inconsistency in the material about who was driving the vehicle; Some medical histories indicate that the plaintiff was driving (JCB 94, JCB 99), while some indicate the plaintiff's husband was driving (JCB 114, JCB 118). In her affidavit the plaintiff deposed that her husband had the accident (JCB 13 [9]) - also in XXN (T18 L2-18). Ultimately the inconsistency is not material.

[46] JCB 14-15 [18], [19], [22], [26]

1. [52] JCB 103; Counsel for the plaintiff and the defendant both referred to 2 other cars (three in total) being involved in the 2020 accident throughout the transcript, but medical records containing the history given by the plaintiff and the affidavit indicated there were 3 other cars involved (four in total). At T28 the plaintiff's response about the number involved is ambiguous, partly because of the way the question is expressed - And your vehicle was at the very front of the three cars?‑‑‑Yes. Ultimately nothing turns on this.

[57] What the plaintiff did immediately after the accident is unclear. There is some evidence that the plaintiff drove home after the accident (JCB 89), and some that she drove afterwards and went to school, then her son brought her home (JCB 103).

[194] See JCB 78 where the DRE Category 2, 5% is attributable to the first accident

[216] Belgrave Heights Christian School v Moore [2020] VSCA 240 at [50]

[227] As to the effect of s 93 of the Act see Belgrave Heights Christian School v Moore [2020] VSCA 240 at [50]- [51]

[228] Belgrave Heights at [50]-[51]; Metro Trains Pty Ltd v Keay [2023] VSCA 223 at [37]